UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MICHAEL A. CAMPBELL, Plaintiff - Appellant,

v. JODY JONES, in her official and individual capacities; NADINE KELLOGG, in her official and individual capacities; REBECCA MAKER, in her official and individual capacities, Defendants - Appellees. No. 16-6287 (D.C. No. 5:13- CV-00926-R) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , MATHESON , and McHUGH , Circuit Judges.

________________ _________________ Michael A. Campbell, a pro se Oklahom a inmate, filed this 42 U.S.C. § 1983 action, claiming prison offi cials violated his constitu tional rights by withholding his medication and denying him treatment after he suffered a stroke. The district court granted defendants summary judgment, ruling that Mr. Campbell failed to exhaust his administrative remedies. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 12, 2017
Elisabeth A. Shumaker Clerk of Court2 I The administrative grievance process for Oklahoma prisoners is well documented. It requires an “informal consultation with staf f, then three written steps: a Request to Staff form, a formal grievan ce, and an appeal to the ad ministrative review authority [ARA].” Thomas v. Parker , 609 F.3d 1114, 1117 (10th Cir. 2010). Appeals to the ARA, which includes the chief medical offi cer (CMO), complete the administrative grievance process. Little v. Jones , 607 F.3d 1245, 1249 & n. 3 (10th Cir. 2010). Inmates facing a “substantial ri sk of personal injury or other irreparable harm” may submit an emergency grievance directly to the reviewing authority, R., Vol. 2 at 200 (Okla. Dep’t of Corr. (ODOC) Offender Grievance Process OP-090124 § VIII.A), which is “[t]he facility head or facility correctional he alth services administrator (CHSA),” id. at 188 (Offender Grievance Process OP-090124 § I.E).
II Mr. Campbell has high blood pressure. On December 30, 2012, his cell flooded with sewage, forcing him to evacuate and ab andon his blood-pressure medication. After six days of unsuccessfully requesting replac ement medication from the prison’s medical staff, specifically defendants Maker and Kellogg, Mr. Campbell suffered a stroke. He was hospitalized for three days and discharged back to prison with new prescriptions and instructions to follow-up with the prison’s doctor. Thirteen days later, however, he still had not been seen for a fo llow-up or been given his re placement medication. Consequently, on January 22 , 2013, Mr. Campbell submitted a detailed, two-page emergency grievance to the CMO, Genese McCoy, explaining hi s circumstances and3 asking that he be treated in accord with his discharge instructions. 1 He also asked that the prison’s medical staff be made to understand that withholding his medication caused him to suffer a stroke and was endangering his life. Last, he asked that defendants be terminated. The CMO returned the grie vance unanswered, stating it was not an emergency, it sought disciplinary action agains t the staff (which could not be addressed through the grievance process ), and it should have been subm itted to the facility’s CHSA, defendant Jody Jones. Given this latter directive, Mr. Campbell sent Ms. Jones, the CHSA, a Request to Staff on January 31, asking that she implemen t a policy to ensure that prisoners receive their medication to avoid “an unnecessary stroke like what happened to me.” R., Vol. 1 at 63. Ms. Jones replied, “Medica tion administration policy exists.” Id. Dissatisfied with this resp onse, Mr. Campbell submitted a nearly identical copy of his emergency grievance to the prison’s ward en on February 12, seeking to implement the same policy he sought in his Request to Staff. The warden’s designee returned the grievance unanswered, stati ng it should have been file d with the prison’s CHSA,
Ms. Jones.

1 By this date, January 22, Mr. Campbe ll had filed three other documents that did not advance his efforts to exhaust. On January 2, he filed a request for medical services, asking for a knee brace and repla cement medication. He was told that replacement medication was forthcoming. On January 10, he submitted a Request to Staff, seeking to implement a policy to ensure nurses did not withhold high-blood pressure medication and urging that defendant Maker be te rminated. The Request to Staff was returned unanswered because it sought discip linary action against a staff member, which could not be addressed through the grievance process. On January 14, Mr. Campbell submitted a Request to Staff, seeking th e name of a staff member who was involved with his care. The Request to Staff was answered that same day.4 Mr. Campbell therefore submitted his grievan ce to Ms. Jones on February 18. She returned it unanswered for two reasons, the second of which was invalid: First, she wrote, “No additional pages a llowed except for the original ‘Request to Staff.’” Id. at 68. Second, she wrote, “All medical grievances will be submitted to th e facility CHSA,” id. , which it clearly was. Also, Ms. Jones warned him that he could be subject to grievance restrictions and, in a separate correspondence, she stated that because he failed to rectify the procedural errors in his grievance—appa rently by failing to remove any additional pages—he “waived/forfeited the opportunity to proceed in the grievance process” under Offender Grievance Process OP-090124 § VI.B.6, id. at 70. This was incorrect, however, because the only previously id entified procedural error wa s Mr. Campbell’s mistake in sending his February 12 grievance to the warden rather than the CHSA, which he corrected. In any event, Mr. Campbell resubm itted his grievance to Ms. Jones, prompting her to impose grievance restrictions under Offender Grievance Process OP-090124 § IX. It is undisputed that Mr. Campbell did not s ubmit a final grievance appeal to the CMO. A magistrate judge determined that, unde r these circumstances, there was an inference that the final stage of the grievanc e process was unavailable. The district court declined to adop t that conclusion, however, ruling th at Ms. Jones’ error in rejecting Mr. Campbell’s grievance did not render the fi nal administrative appeal stage unavailable and Mr. Campbell’s failure to pursue it demonstrat ed that he failed to exhaust. The court therefore granted summary judgment to defendants on exha ustion grounds, and Mr. Campbell appealed.5 III “We review summary judgment decisions de novo, applying the same legal standard as the district court.” Tuckel v. Grover , 660 F.3d 1249, 1251 (10th Cir. 2011) (internal quotation marks omitted). “Summary judgment is appropriate when there is no genuine issue of ma terial fact and the movant is entitled to judgment as a matter of law.” Id. (internal quotation marks omitte d). Because Mr. Campbell is pro se, we afford his materi als a liberal construction but do not act as his advocate. See United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009). “There is no question that exhausti on is mandatory under the Prison[] Litigation Reform Act (PLRA) and that unexhausted claims cannot be brought in
court.” Thomas , 609 F.3d at 1117 (brackets and in ternal quotation marks omitted). Exhaustion is required “[e]ven where the ‘a vailable’ remedies w ould appear to be futile at providing the kind of remedy sought.” Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). Remedies are unavaila ble if prison offici als are “unable or consistently unwilling to provi de any relief,” if “no ordinary pris oner can make sense of what [the grievance pro cess] demands,” or if “administrators thwart inmates from taking advantage of a grievance process thro ugh machination, misrepresentation, or intimidation.” Ross v. Blake , 136 S. Ct. 1850, 1859-60 (201 6). “[P]risoners must complete the administrative review pro cess in accordance w ith the applicable procedural rules[]—rules that are de fined not by the PLRA, but by the prison grievance process itself.” Thomas , 609 F.3d at 1118 (internal quotation marks6 omitted). “An inmate who begins the grie vance process but does not complete it is barred from pursuing a § 1983 claim . . . .” Jernigan , 304 F.3d at 1032. Our review of the record confirms that Mr. Campbell failed to exhaust his administrative remedies. Although Ms. Jones rejected hi s February 18 grievance and incorrectly stated that he waived or forfeited his part icipation in the grievance process, Mr. Campbell did not avail himself of a final appeal to the CMO, who might have rectified the error a nd granted his requests. See Woodford v. Ngo , 548 U.S. 81, 89 (2006) (“Exhaustion gives an agency an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court . . . .” (internal quotation marks omitted)); see also R., Vol. 2 at 197 (Offender Grievance Procedure OP-090124 § VII.A.2 (stating that an “offender may appeal . . . [p]robable error committed by the reviewing authority. ”)). Nor did he ch allenge Ms. Jones’ imposition of restrictions, wh ich also was appealable. See R., Vol. 2 at 202 (Offender Grievance Procedure OP-090124 § IX.A.2) (“ If the determination of abuse of the process is taken at the first level of review , the action is appealable to the appropriate administrative review authority.”). Mr. Campbell failed to avail himself of these remedies, and his failure to complete the grievance process dem onstrates he did not exhaust. See Jernigan , 304 F.3d at 1032. Mr. Campbell offers three arguments for excusing his failure to complete the grievance process. He first relies on hi s emergency grievance, arguing that his only option was to file the emer gency grievance with Ms. Mc Coy, the CMO, and once she rejected it, he exhausted hi s remedies because any appeal to her would have been7 futile and redundant. But there is no fu tility exception to the exhaustion rule, see Booth v. Churner , 532 U.S. 731, 741 n.6 (2001), and there would have been no redundancy if Mr. Campbell had submitted his emergency gr ievance to the reviewing authority, Ms. Jones—the CHSA, rather than the CMO, as provided by OP-090124 § VIII.A, see R., Vol. 2 at 200 (“[Emergency g]ri evances may be submitted directly to the reviewing authority . . . .”). 2 Under those circumstances, an unfavorable response would have been appealable to the CMO pursuant to OP-090124 § VIII.B-C. Mr. Campbell’s failure to fo llow these procedural directives does not excuse him from them. See Little , 607 F.3d at 1249 (“[A]n inmate may only exhaust by properly following all of the steps laid out in the prison system’s grievance procedure.” (emphasis added)). Second, Mr. Campbell recites a portion of the magistrate judge’s report and recommendation, which concluded there was an inference that defendants thwarted his efforts to exhaust the fi nal appeal stage of the ad ministrative process. The magistrate judge reasoned th at Ms. Jones gave an i nvalid reason for denying the February 18 grievance, refused to allow Mr. Campbell to resubmit it, stated he waived or forfeited his part icipation in the grievance pr ocess, and threatened to

2 There is an option for filing an emer gency grievance directly with the ARA or CMO “[i]f the complaint involves the re viewing authority and is of a sensitive nature.” R., Vol. 2 at 200 (Offender Grievance Process OP-090124 § VIII.A.4). Although Mr. Campbell referen ces this provision, he o ffers no developed argument as to how he invoked or satisfied it, nor doe s he cite anything in the record indicating that he previously raised such an argument. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10t h Cir. 2005) (“[T]he court cannot take on the responsibility of serving as the [pro se] li tigant’s attorney in constructing arguments and searching the record.”).8 impose grievance restrictions (in fact, she eventually did impose restrictions). Mr. Campbell seems to suggest this all rendered the fi nal appeal stage unavailable under our decisions in Little and Tuckel v. Grover , 660 F.3d 1249 (10th Cir. 2011), but we disagree. As the district court correctly explai ned, Mr. Campbell’s failure to pursue a final appeal with the CMO distinguishes his case from Little , where the inmate took the final appeal to the ARA and the ARA incorrectly rejected it, 607 F.3d at 1248, 1250. Under those circumst ances, we stated that “[ b]ecause the AR A exceeded its authority when it rejected [t he] grievance appeal, it re ndered that final step of exhaustion unavailable.” Id. at 1250. Mr. Campbell, how ever, never appealed to the CMO. Nor is his case similar to Tuckel , where a prison official apparently recommended that several inmates assault the plaintiff in retaliation for filing a grievance. 660 F.3d at 1251. We recognized that “when a prison official inhibits an inmate from utilizing an administrative pro cess through threats or intimidation, that process can no longer be sa id to be ‘available.’” Id. at 1252-53. But here, there is no evidence that official s attempted to threat en, intimidate, or confuse Mr. Campbell. Ms. Jones gave an invalid reason for denying a grievance and incorrectly attempted to exclude him from the administrative pr ocess. These decisi ons were appealable, and nothing prevented Mr. Ca mpbell from challenging them. Finally, Mr. Campbell offers a hybrid of his first two arguments, asserting his remedies were unavailable under Ross v. Blake , 136 S. Ct. 1850, 1859-60 (2016), and his emergency grievance to the CMO satisfi ed the final step of ODOC’s grievance9 policy. But he offers nothing to satisfy Ross ’s criteria for d eeming remedies unavailable, and we decline to interpret Ms. Jones’ mistakes as an affirmative effort to thwart the process. As for Mr. Campbell’s emergency grievance, it should have been filed with the
CHSA. See R., Vol. 2 at 200 (Offender Grievan ce Process OP-090124 § VIII.A). To the extent he insists that ODOC’s process “allows an a lternative final step which provides (either or) an appeal to the Admini strative Review Author ity or to the Chief Medical Official,” Aplt. Br. at 3T, that option exists in the normal , non-emergency grievance procedure, see R., Vol. 2 at 197 (Offender Grievance Process OP-090124 § VII.B (“The offender may make a fina l appeal to the ad ministrative review authority or chief medical officer, wh ichever is appropria te . . . .”)). Mr. Campbell has filed a motion to s upplement the record to support his assertion that an emergency grievance submitted directly to the CMO concludes the administrative process. He seeks to s upplement the record w ith an excerpt of ODOC’s updated emergency grievance pro cess and another inmate’s grievance material, specifically a le tter from ODOC’s medical se rvices manager. These materials fail to establish that Mr. Campbell’s emergenc y grievance exhausted his remedies. The updated ODO C policy was inapplicable at the time Mr. Campbell filed his grievance, and the excerpt of that policy is su bstantively identical to the governing provisions here. Moreover, the letter states that the inmate filed a “Misconduct/Grievance Appeal to Administ rative Review Authority” concerning a complaint raised in an “emerge ncy grievance.” Mot. to Supp. at 4. The appeal was10 returned unanswered in part because “[ t]he medical administrative reviewing authority’s ruling is final.” Id. Mr. Campbell says this pr oves he was not required to appeal the CMO’s ruling, but this letter does not indicate whether the inmate’s grievance was denied as a non- emergency, as Mr. Campbell’ s was, or whether it was resolved on some other basis. The letter is not probative of Mr . Campbell’s situation and does not demonstrate that he exha usted his administrative remedies.
IV The judgment of the district court is affirmed. The motion to supplement the record is granted. Mr. Ca mpbell’s motion to proceed on appeal without prepayment of costs and fees is granted. The releva nt statute, 28 U.S.C. § 1915(a)(1), does not permit litigants to avoid payment of filing and docketing fees, only prepayment of those fees. Although we have disposed of this ma tter on the merits, Mr. Campbell remains obligated to pay all filing and docke ting fees. He is di rected to continue making partial payments until all fe es have been paid in full.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge