FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 March 29, 2012
                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court

    MARK KINKEAD,

                Plaintiff-Appellant,

    v.                                                   No. 11-5120
                                             (D.C. No. 4:08-CV-00562-JHP-FHM)
    TERRY DURBOROW, Sheriff of                           (N.D. Okla.)
    Ottawa County; RANDALL LLOYD,
    Ottawa County Jail Administrator;
    RUTH BENNETT, Citizen of Miami,
    OK, ER Physician for
    INTEGRIS-Miami; JIMMIE SOOTER,
    Citizen of Vinita, OK, Craig County
    Sheriff; B J FLOYD, Citizen of Vinita,
    OK Craig County Jail Administrator;
    ALETA SMITH-FOX, Physician
    Assistant with Integris and as the
    Ottawa County Jail physician
    assistant,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, MURPHY, and MATHESON, Circuit Judges.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiff Mark Kinkead, an Oklahoma state prisoner proceeding pro se,

appeals the district court’s grant of summary judgment in favor of defendants on

the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. We have

jurisdiction under 28 U.S.C. § 1291 and we affirm.

      Plaintiff pleaded guilty to charges of lewd acts against a child and was

given a deferred sentence. He was arrested on October 12, 2006, for a probation

violation and was booked into the Ottowa County Jail (OCJ). During intake, he

told a nurse he was suicidal and taking Prozac but he did not provide the medical

documentation required for the jail to dispense this medication. That night he

was twice beaten by other inmates. Jail officials took him to the emergency room

in the morning. He was examined and released back to OCJ. OCJ contracts with

independent contractors to provide medical assistance at OCJ, including

physician’s assistant Ms. Fox-Smith. Ms. Fox-Smith is the mother of the victim

of the lewd-acts crime for which plaintiff was convicted. Due to this relationship

and at her request, Ms. Fox-Smith did not see or provide medical care to plaintiff

while he was at OCJ. Plaintiff was transferred from OCJ to Craig County Jail

(CCJ) on October 23, 2006. He was housed in protective custody at CCJ except

for six days when he was placed in a holding cell after complaining of suicidal

tendencies. The CCJ facilities did not have an exercise yard. A physician

instructed CCJ to provide Prozac to plaintiff in February 2007.


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      Based on the foregoing, plaintiff filed his civil rights complaint against

OCJ Sheriff Durborow; OCJ Administrator Lloyd; CCJ Sheriff Sooter; CCJ

Administrator Floyd; Ms. Fox-Smith; and other defendants who have been

dismissed and are not parties to this appeal. As relevant to this appeal, plaintiff

alleged Durborow, Lloyd and Fox-Smith were deliberately indifferent to his

medical needs by denying his requests for Prozac and other medical care at OCJ

and that Durborow and Lloyd failed to protect him from inmate-on-inmate

violence. He alleged Sooter and Floyd were also deliberately indifferent to his

requests for Prozac and his other medical needs at CCJ, denied him access to

legal materials, and prevented him from having outside exercise.

      The district court granted summary judgment in favor of Ms. Fox-Smith

because it found no evidence in the record suggesting that she treated plaintiff or

had any knowledge of, or responsibility for, any of plaintiff’s medical care needs.

On appeal, plaintiff states that Ms. Fox-Smith was the contracted medical care

provider at OCJ, from which he makes the speculative assertion that she was

either prevented from providing him medical care or refused. Based upon our

review of the record, we agree that plaintiff did not present any evidence that

Ms. Fox-Smith had any knowledge of plaintiff’s medical needs, had any

responsibility for his medical care, prevented him from receiving treatment, or

denied him access to medical personnel capable of evaluating his need for

treatment. Thus, plaintiff failed to present any evidence that Ms. Fox-Smith

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knowingly disregarded an excess risk to his health or safety or was in any way

deliberately indifferent to any serious medical needs he had. See Farmer v.

Brennan, 

, 837 (1994) (articulating elements of a constitutional

claim for deprivation of adequate medical care). We therefore affirm the district

court’s grant of summary judgment in favor of Ms. Fox-Smith.

      The district court granted summary judgment in favor of Durborow, Lloyd,

Sooter and Floyd because plaintiff failed to exhaust his administrative remedies

before filing his civil rights complaint. “Under the Prisoner Litigation Reform

Act (‘PLRA’), a prisoner must exhaust his administrative remedies prior to filing

a lawsuit regarding prison conditions in federal court.” Little v. Jones, 

, 1249 (10th Cir. 2010) (citations omitted). A prison or prison system’s

regulations define the steps a prisoner must take to properly exhaust

administrative remedies and a prisoner “may only exhaust by following all of the

steps laid out” therein. 

de novo the district court’s conclusion that

a prisoner failed to exhaust administrative remedies. 

presented evidence that both OCJ and CCJ have specific

grievance procedures that require an inmate to submit a written grievance, which

is then given to the jail administrator. They presented evidence that the grievance

procedures are posted and available to all inmates. Plaintiff presented no

evidence to dispute this. Defendants Durborow and Lloyd presented evidence,

also undisputed by any evidence from plaintiff, that neither they nor others at

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OCJ received any grievance filed by plaintiff relating to his incarceration or

medical care and treatment at OCJ. Similarly, defendants Sooter and Floyd

presented evidence that neither they nor others at CCJ received any grievances

from plaintiff relating to his incarceration, medical care and treatment or lack of

exercise while he was at CCJ and that he filed only one Request to Staff, which

asked for hair clippers. Again, plaintiff did not present any disputing evidence.

      On appeal, plaintiff contends that he complied with all “available”

administrative remedies, but he did not present any evidence that he even

attempted to comply with the jails’ grievance procedures. He makes the

conclusory assertion that the defendants thwarted, prevented, and hindered his

access to the grievance procedures, again without any supporting evidence. He

claims he was forced to take matters into his own hands by contacting the

Oklahoma Department of Health and the Oklahoma Jail Inspector. This does not

relieve him of complying with the jail’s specific grievance procedures. See Fields

v. Okla. State Penitentiary, 

, 1112 (10th Cir. 2007) (“To exhaust

administrative remedies an inmate must properly comply with grievance

procedures. . . .”). Plaintiff claims jail officials only gave him non-carbon-copy

Request to Staff forms, so he is unable to demonstrate that he exhausted the

administrative remedies. But we do not pass on the substantive adequacy of a

jail’s grievance procedure. Plaintiff contends the defendants failed to meet their

burden of proving that he did not exhaust his administrative remedies, which is

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incorrect. Defendants presented undisputed evidence of each jail’s grievance

procedure and undisputed evidence that plaintiff did not file a grievance. Thus,

the district court correctly granted summary judgment in favor of the remaining

defendants based on plaintiff’s failure to establish exhaustion of the

administrative procedure, as required by the PLRA.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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