FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                       October 28, 2019
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 ANTHONY JEROME KEE,

       Plaintiff - Appellant,

 v.                                                         No. 18-1467
                                                  (D.C. No. 1:17-CV-00264-MEH)
 RICK RAEMISCH; LT. FELZIEN; SGT.                            (D. Colo.)
 MARS; CO GUMP; TRAVIS TRANI;
 WARDEN ROMERO; JAMES OLSEN;
 ANTHONY DECESARO; JACOB
 KIRKLAND; MICHAEL SHERWOOD;
 CHRISTOPHER HIGGINS; SGT.
 WILSON; SGT. CHRUTCHER; CO
 PREDMORE; CO LAZONO; CO
 BAKER; CO SHUMATE; CO STROUP;
 SGT. CAMMACHO; CO HUDSON; CO
 JORDAN; CO HARVARD; CO
 PASSERO; CO MARTINEZ; CO
 VIGHIL; SGT. WOJOWSKI; SGT.
 MONTONANO; CO TRUJILLO; CO
 REED; CO HARRIS; CO WERTZ; CO
 KELLY; DR. HUGHES; JANE DOE,
 Dentist; OTHER CDOC EMPLOYEES,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges.
                  _________________________________

      Anthony Kee, a Colorado inmate appearing pro se,1 commenced this action

under 42 U.S.C. § 1983 against various officials of the Colorado Department of

Corrections (CDOC). After dismissing numerous claims and defendants under

28 U.S.C. § 1915(e)(2)(B)(i), the district court granted summary judgment for the

remaining defendants under 42 U.S.C. § 1997e based on a failure to exhaust

administrative remedies. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                   BACKGROUND

      On December 3, 2014, Kee told Betty Deal, his case manager at the Sterling

Correctional Facility (SCF), he was concerned for his safety, but he refused to give

any details. Deal relayed this to the Office of Intelligence, which responded that Kee

needed to provide more details. Deal also told Lt. Felzien, who oversaw inmate

housing. Felzien met with Kee, but Kee expressed no concerns. Nevertheless,

Felzien told Deal the facility should monitor Kee. On February 1, 2015, Kee was

moved to another housing pod and, that same day, was involved in a fight with three

inmates, for which he was disciplined due to his use of a weapon.

      Thereafter, Kee filed several grievances under CDOC’s Administrative

Regulation (AR) 850-04, which provides a three-step process for inmate grievances.

First, an inmate must file a Step 1 grievance within thirty days of when he knew, or



      1
         “Because [Kee] is pro se, we liberally construe his filings, but we will not act
as his advocate.” James v. Wadas, 

, 1315 (10th Cir. 2013).
                                            2
should have known, of the underlying facts. If unsatisfied with the result, the inmate

must file a Step 2 grievance within five days of receiving the written response; if

unsatisfied with the result of Step 2, the inmate must file a Step 3 grievance within

five days of receiving the written response. If a grievance is denied on procedural

grounds,2 CDOC will certify the inmate failed to exhaust the grievance process.

       From June 2015 to February 2016, Kee submitted several grievances alleging,

inter alia: (1) CDOC staff failed to protect him in connection with the February 2015

assault; (2) CDOC staff verbally harassed him and contaminated his meals and

hygiene products with an unspecified chemical agent; (3) CDOC staff retaliated

against him for filing grievances; (4) CDOC medical personnel provided inadequate

care for his pain related to the alleged tampering of his food and hygiene products;

(5) CDOC grievance officers inadequately investigated the grievances; and

(6) CDOC supervisors provided inadequate oversight and training. CDOC denied all

of the grievances on procedural grounds and certified them as not exhausted, except

for the one concerning medical care, which CDOC denied on the merits.

       On January 27, 2017, Kee initiated this § 1983 action. In his Second Amended

Complaint, he named thirty-four defendants and raised three Eighth Amendment



       2
         Examples include denials for untimeliness as well as “if the grievance is
incomplete, inconsistent with a former step, incomprehensible, illegible, requests
relief that is not available, fails to request relief, or in any other way fails to comply
with the provisions of AR 850-04,” R. Vol. 2 at 162 (brackets and internal quotation
marks omitted), including formatting requirements, such as “fit[ing] into space
provided” and containing “only one line of dialogue” in each “lined space of the
grievance form,” 

(brackets and internal quotation marks omitted).
                                             3
claims, a First Amendment retaliation claim, and a conspiracy claim. In reviewing

for frivolity, the district court dismissed Kee’s claims except: (1) an Eighth

Amendment failure-to-protect claim against Felzien; (2) an Eighth Amendment cruel-

and-unusual-punishment claim against Sgt. Marrs3 and Correctional Officer Gump;

and (3) a First Amendment retaliation claim against Marrs and Gump.

      On November 1, 2018, a magistrate judge acting on the parties’ consent, see

28 U.S.C. § 636(c)(1), granted summary judgment in favor of Felzien, Marrs, and

Gump on the ground that Kee failed to exhaust his administrative remedies. The

court denied Kee’s motion for reconsideration. Kee timely brought this appeal.

                                    DISCUSSION

      Kee contends the district court erred in (1) dismissing the bulk of his Second

Amended Complaint as frivolous; (2) denying his request for appointment of counsel;

(3) denying his request for third-party records; and (4) granting summary judgment

on grounds of non-exhaustion.

I.    Order of Dismissal

      Kee first contends the district court erred in dismissing much of his Second

Amended Complaint as frivolous. We disagree.




      3
         Although the caption above, which is based on the district court’s caption,
spells the Sergeant’s name as “Mars,” we base our spelling on Marrs’s signed
affidavit. R. Vol. 1 at 235-39.
                                           4
      A. District Court Rulings

             i. Eighth Amendment – Failure to Protect

      As the district court described the Eighth Amendment failure-to-protect claim,

Kee alleged “he was attacked by other inmates a few hours after being moved to a

new pod by Defendant Felzien, who allegedly ignored [Kee]’s expressed concerns

about his safety in the new housing assignment.” R. Vol. 1 at 93. The court found

the allegations against Felzien were sufficient to proceed. However, because Kee did

“not allege any facts demonstrating that any other Defendant personally participated

in the decision to move [Kee] to a new pod,” 

dismissed as frivolous the

claim to the extent it was against any other defendant.

             ii. Eighth Amendment – Cruel and Unusual Punishment

      For his Eighth Amendment cruel-and-unusual-punishment claim, Kee alleged

CDOC staff contaminated his food and hygiene products with cleaning products or a

chemical agent, which caused his “mouth to burn and blister and his skin to rash and

peel.” 

(internal quotation marks omitted). The only specific incident he

alleged was “that on August 15, 2015, he experienced burning and pain in his mouth,

esophagus, and stomach after eating the meal tray provided by Defendant Gump, and

that Defendant Mars [sic] intentionally turned off his water supply for an hour and a

half.” 

allowed the claim against Marrs and Gump to proceed but

dismissed as frivolous the claim against the other defendants because the allegations

against them were “[v]ague and conclusory” and failed to show they “personally

participated in the alleged tampering.” 

                                           5
             iii. Eighth Amendment – Deliberate Indifference to Medical Needs

      For his Eighth Amendment deliberate-indifference claim, Kee alleged that he

told Dr. Hughes and “Jane Doe, Dentist,” about CDOC staff contaminating his food

and hygiene products but that “they failed to perform appropriate testing and provide

adequate treatment for his pain and suffering from the tampered food and hygiene.”

marks omitted). Kee conceded “medical services did perform

testing (9/16/15, 10/19/15, 10/27/15)”4 and “he was placed on several medications to

treat his stomach and intestinal pain on November 17, 2015,” but he complained that

the testing “was for conditions that [he] never complained of (STD’s [and] food

allergies), which results were negative,” that the “treatment was not timely,” and that

he was denied referral to “a specialist.” 

(internal quotation marks omitted).

The court found the allegations did “not support an arguable deliberate indifference

claim,” citing settled law that “medical malpractice, negligence, and a prisoner’s

disagreement with medical providers concerning his particular care are insufficient to

support an Eighth Amendment violation.” 

             iv. Eighth Amendment – Supervisory Liability

      For his Eighth Amendment supervisory-liability claim, Kee alleged several

named defendants (1) “failed to implement a policy that would protect [him] from

abuse and ensure that he received adequate medical treatment”; (2) failed to properly

“investigate[] his complaints of prisoner abuse that he raised in grievances and phone


      4
       CDOC’s response to the grievance addressing medical care also indicated he
was seen by a medical provider on August 19, September 2, and September 29, 2015.
                                           6
messages to the Colorado Bureau of Investigation”; and (3) “failed to properly train

and supervise their subordinates.” 

The district court dismissed the claim as

frivolous because (1) Kee’s “vague and conclusory allegations” were insufficient to

“demonstrate personal involvement, a causal connection to the constitutional

violation, and a culpable state of mind,” as necessary for supervisory liability; and

(2) “a denial of a grievance, by itself without any connection to the violation of

constitutional rights alleged by plaintiff, does not establish personal participation.”

marks omitted).

             v. First Amendment – Retaliation

      For his First Amendment retaliation claim, Kee alleged CDOC staff retaliated

against him for filing grievances alleging staff misconduct. Specifically, he alleged

Lt. Higgins and Sgt. Wilson verbally harassed him, whistled at him, and encouraged

other inmates to whistle and make loud noises to disturb him. Kee also alleged

CDOC staff would disrupt his telephone calls, leave his cell door open when he was

not there, and contaminate his food and hygiene products. The district court allowed

the retaliation claim to proceed against Marrs and Gump. But the court found the

allegations against Higgins and Wilson insufficient. The court also dismissed as

frivolous the claim against other named defendants because Kee failed to sufficiently

allege personal participation.

             vi. Conspiracy

      For his conspiracy claim, Kee alleged (1) certain CDOC staff conspired “to

harass and abuse” Kee; and (2) other members of CDOC staff conspired to derail his

                                            7
grievances and obstruct his “efforts to receive outside assistance.” 

(internal quotation marks omitted). The court dismissed the claim as frivolous

because Kee failed to allege “specific facts that show agreement and concerted action

by the defendants.” 

v. Hern, 

, 907 (10th Cir. 2000)).

The court also found Kee failed to allege personal participation to the extent the

claim was based on some of the defendants’ “supervisory responsibilities.” 

matters

       Finally, the court dismissed: (1) any claims against any other defendants due to

lack of allegations of personal participation, noting Kee had not included “factual

allegations regarding every listed Defendant”; and (2) any claims for money damages

against defendants in their official capacities as barred by sovereign immunity. 

       B. Discussion

       “We generally review a district court’s dismissal for frivolousness under

§ 1915 for abuse of discretion,” unless “the frivolousness determination turns on an

issue of law,” in which case our review is de novo. Fogle v. Pierson, 

,

1259 (10th Cir. 2006).5 A claim is frivolous when “it lacks an arguable basis either

in law or in fact.” 

marks omitted). In determining whether a



       5
         Because the 1995 Prison Litigation Reform Act amended the statute to
require, rather than permit, dismissal for frivolousness, we have questioned whether
the standard is now de novo instead of abuse of discretion. See Harold v. Univ. of
Colo. Hosp., 680 F. App’x 666, 671 n.1 (10th Cir. 2017). However, because Kee’s
claims fail under either standard, we need not resolve this issue.
                                           8
complaint is frivolous, the “factual allegations must be weighted in favor of the

plaintiff,” but we are not bound by the usual rule that we must accept the allegations

in the pleadings as true. Denton v. Hernandez, 

, 32 (1992).

      On appeal, Kee has not contested the district court’s ruling on his failure-to-

protect claim, and therefore, we decline to address it. See Coleman v. B-G Maint.

Mgmt. of Colo., Inc., 

, 1205 (10th Cir. 1997) (“Issues not raised in the

opening brief are deemed abandoned or waived.”). As for the other claims, we find

no error. The court properly found Kee failed to allege sufficient facts to show

personal participation by many of the named defendants. See Beedle v. Wilson,

, 1072 (10th Cir. 2005) (“Liability under § 1983 requires personal

participation in the unlawful acts.”). The court also properly found many allegations

were vague and conclusory, and we have long held, even with pro se complaints, a

court “should dismiss claims which are supported only by vague and conclusory

allegations.” Northington v. Jackson, 

, 1521 (10th Cir. 1992). For

many claims, Kee relied on speculation; for others, his own exhibits defeated his

claims.6



      6
        For example, his exhibits belie any notion of deliberate indifference to his
medical needs. CDOC’s responses to Kee’s grievance addressing his medical care
noted the numerous appointments he received, the findings from those examinations,
and the statements Kee made to the medical providers. Similarly, the written medical
requests Kee submitted show CDOC promptly responded, scheduled appointments,
and provided treatment. This case, thus, stands in stark contrast to the case that Kee
cites, which involved a prison nurse “ignor[ing] [an inmate’s] repeated complaints of
severe abdominal pain and requests for medical assistance, thus completely denying
[the inmate] any medical care although presented with recognizable symptoms which
                                           9
      On appeal, Kee has offered conclusory arguments and nonsequiturs but no

viable arguments, and it is not our role to “manufacture” one, United States v.

Powell, 

, 1037 (10th Cir. 2014). Having reviewed the record, we

affirm the dismissal for substantially the same reasons as the district court.

II.   Appointment of Counsel

      Next, Kee contends the district court erred in denying his request for counsel.

The record does not support his claim.

      Although civil litigants “ha[ve] no Sixth Amendment right to counsel[,] . . .

a court has discretion to request an attorney to represent a litigant who is proceeding

in forma pauperis.” Johnson v. Johnson, 

, 1217 (10th Cir. 2006)

(per curiam). We review the denial of a civil litigant’s request for counsel for an

abuse of discretion. See Rachel v. Troutt, 

, 397 (10th Cir. 2016). “An

abuse of discretion occurs where the district court clearly erred or ventured beyond

the limits of permissible choice under the circumstances” or “issue[d] an arbitrary,

capricious, whimsical, or manifestly unreasonable judgment.” Birch v. Polaris

Indus., Inc., 

, 1247 (10th Cir. 2015) (internal quotation marks omitted).

      Contrary to his assertions, the court granted Kee’s motion for appointment of

counsel. However, the court cautioned that there may not be any counsel willing and

able to accept the appointment and that, as such, Kee remained responsible for his



potentially create[d] a medical emergency.” Al-Turki v. Robinson, 

,
1195 (10th Cir. 2014) (last alteration in original) (internal quotation marks omitted).

                                           10
case unless and until counsel was appointed. After nearly six months of a fruitless

search, the court entered an order informing Kee that the clerk’s office had exhausted

all efforts to find conflict-free counsel willing to accept the appointment and that Kee

would need to proceed pro se. Kee later submitted a letter, reiterating his request for

legal assistance, which the court construed as another motion for appointment of

counsel. The court denied the motion, reminding Kee the court had “already

attempted to locate conflict-free volunteer counsel.” R. Vol. 1 at 244.

      Although Kee contends he should have had the assistance of counsel, he has

not argued the district court in any way abused its discretion, and we discern no such

abuse. The court granted his request but was unable to find an attorney to take the

case, and Kee was not constitutionally entitled to counsel, see 

. Accordingly, Kee’s argument is without merit.

III. Discovery Rulings

      Kee next contends the district court erred in denying his discovery requests for

third-party records. The record does not support Kee’s claim.

      “We review the district court’s discovery decisions for abuse of discretion and

will reverse only if [Kee] makes a clear showing that the denial of discovery resulted

in actual and substantial prejudice.” Garcia v. Tyson Foods, Inc., 

,

1309 (10th Cir. 2014) (footnote and internal quotation marks omitted).

      Through a series of discovery-related filings, Kee sought any documents

created by CDOC concerning complaints he made to the Colorado Bureau of

Investigation (CBI) as well as any communications from CBI to CDOC about Kee.

                                          11
To the extent any such documents and communications existed, the district court

correctly noted Kee had not established the documents or communications were in

the “possession, custody, or control” of the three remaining defendants—Felzien,

Marrs, and Gump. R. Vol. 2 at 7. The court, thus, informed Kee he needed to

“follow the procedures outlined in Fed. R. Civ. P. 45” if he wanted “to conduct third-

party discovery.” 

does not show that Kee ever attempted to have a

subpoena issued to CDOC or CBI. Although he later filed a discovery request,

seeking, inter alia, the names of records custodians at CDOC and CBI, the court

denied the request for several reasons, including that it was beyond the discovery

deadline, which the court had already extended once at Kee’s request.

      Kee has failed to demonstrate the district court erred. He also cites no

authority for his suggestion that defense counsel should have subpoenaed and

obtained the third-party records for him. See Aplt. Opening Br. at 40. He also cites

no authority for his assertion that pro se inmates lack “the access and ability to obtain

the information necessary to secure material evidence from a 3rd party.” 

only case he cites shows it can be done. See 

v. Woodford,

(E.D. Cal. 2008)). Having thoroughly reviewed the record, we

find neither an abuse of discretion nor prejudice.7



      7
         Kee also contends in his reply brief that the court erred in permitting the
defendants to redact certain discovery materials. However, “[t]he general rule in this
circuit is that a party waives issues and arguments raised for the first time in a reply
brief,” and “[w]e see no reason to depart from that rule here.” Reedy v. Werholtz,

, 1274 (10th Cir. 2011) (internal quotation marks omitted).
                                           12
IV. Order Granting Summary Judgment

      Finally, Kee contends the district court erred in granting summary judgment on

the grounds that he had failed to exhaust his administrative remedies. We disagree.

      This court “review[s] summary judgment decisions de novo,” “view[ing] the

evidence and draw[ing] reasonable inferences therefrom in the light most favorable to

the nonmoving party.” Talley v. Time, Inc., 

, 893 (10th Cir. 2019)

(internal quotation marks omitted). Summary judgment is warranted when “the

movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material

only if it might affect the outcome of the suit under governing law. And a dispute

over a material fact is genuine only if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Bennett v. Windstream Commc’ns,

Inc., 

, 1265-66 (10th Cir. 2015) (citation and internal quotation marks

omitted). If the movant “demonstrate[es] the absence of a genuine issue of material

fact,” the nonmovant must then “set forth specific facts from which a rational trier of

fact could find for the nonmovant.” 

(internal quotation marks

omitted). The nonmovant cannot rely on unsupported conclusory allegations. See

Salehpoor v. Shahinpoor, 

, 789 (10th Cir. 2004).

      Under the Prison Litigation Reform Act (PLRA), “[n]o action shall be brought

with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law,

by a prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This

                                            13
requires “proper exhaustion, . . . which means using all steps that the agency holds

out, and doing so properly (so that the agency addresses the issues on the merits).”

Woodford v. Ngo, 

, 90 (2006); see also Jones v. Bock, 

, 218

(2007) (noting “prisoners must complete the administrative review process in

accordance with the applicable procedural rules,” such as “[t]he level of detail

necessary in a grievance,” where such rules are “defined not by the PLRA, but by the

prison grievance process itself” (internal quotation marks omitted)). “[S]ubstantial

compliance is insufficient.” Fields v. Okla. State Penitentiary, 

, 1112

(10th Cir. 2007); see also Jernigan v. Stuchell, 

, 1032 (10th Cir. 2002)

(noting “[a]n inmate who begins the grievance process but does not complete it” has

not “exhaust[ed] his administrative remedies”).

      Here, the district court found Kee’s Eighth Amendment failure-to-protect

claim against Felzien was not exhausted because the only grievance underlying the

claim was denied as untimely. The court found Kee’s Eighth Amendment cruel-and-

unusual-punishment claim against Marrs and Gump was not exhausted because the

only grievance underlying that claim also was denied as untimely. Finally, the court

found the First Amendment retaliation claim against Marrs and Gump was not

exhausted because the grievances that included allegations on this topic were denied

on procedural grounds, such as seeking a remedy not available under AR 850-04 or

being untimely, vague, or duplicative.




                                          14
      On appeal, Kee does not dispute the district court’s determination that he

failed to exhaust his administrative remedies. Instead, he contends his failure to

exhaust should be excused because the remedies were not truly available.8

      “[T]he exhaustion requirement hinges on the availability of administrative

remedies . . . .” Ross v. Blake, 

, 1858 (2016) (brackets and internal

quotation marks omitted). In Ross, the Court identified “three kinds of

circumstances” when an administrative remedy is not available to prisoners:

(1) “when (despite what regulations or guidance materials may promise) [an

administrative procedure] operates as a simple dead end—with officers unable or

consistently unwilling to provide any relief to aggrieved inmates”; (2) “some

mechanism exists to provide relief, but no ordinary prisoner can discern or navigate

it” because it is “so opaque” or “so confusing”; and (3) “when prison administrators

thwart inmates from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” 

(internal quotation marks

omitted).



      8
        Kee argues in his reply brief that his claims were, in fact, exhausted, on the
grounds that (1) the grievance concerning his medical care, which CDOC denied on
the merits, referenced the alleged contamination of his food and hygiene products,
see Aplt. Reply Br. at 2-6; and (2) he “utilized other (CDOC) approved procedures in
his attempts to get help,” including the “Emergency Grievance Procedure” and the
“Tipsline Procedure,” 

The record indicates the alleged “Tipsline Procedure”
was for matters related to “prohibited sexual behavior,” R. Supp. 3 at 12, 14, 16, 18,
19, which was not at issue here. Regardless, Kee did not raise these arguments in his
opening brief, and therefore, they are waived. See Reedy v. Werholtz, 

,
1274 (10th Cir. 2011).

                                          15
      Kee first contends his failure to exhaust should be excused because CDOC

staff harassed and intimidated him and because of “irregularities and

misrepresentations” in the processing of his grievances.9 Aplt. Opening Br. at 36-37.

For this exception, Kee needed to “produce specific facts that show there is a genuine

issue of fact as to whether (1) the threat, machination, or intimidation actually did

deter him from lodging a grievance and (2) the threat, machination, or intimidation

would deter a reasonable inmate of ordinary firmness and fortitude from lodging a

grievance.” May v. Segovia, 

, 1235 (10th Cir. 2019) (brackets and

internal quotation marks omitted); see also Tuckel v. Grover, 

, 1254

(10th Cir. 2011) (noting both a subjective prong—that the inmate was actually

thwarted—and an objective prong—that a reasonable inmate would have been

thwarted). Kee has not satisfied the subjective prong because he has not shown he

was ever “deter[red] . . . from lodging a grievance.” 

. Indeed,

the sheer number of his grievances belies such a claim. Kee has failed to satisfy this

exception to exhaustion.

      Next, Kee contends the administrative process was not available because “it

operate[d] as a simple dead end, with officers unable or consistently unwilling to

provide any relief to aggrieved inmates.” Aplt. Opening Br. at 38. His conclusory

assertion is insufficient to establish CDOC’s prison grievance system was a dead end.

There is no evidence in the record regarding other “aggrieved inmates,” 

      9
         Kee asserts CDOC made mistakes in handling his first grievance, but none of
his allegations undermine CDOC’s determination that the grievance was untimely.
                                           16
record shows CDOC did investigate Kee’s claims, when he properly presented them.

For example, in responding to Step 1 of his first grievance, in which Kee complained

CDOC failed to protect him from other inmates, CDOC reviewed his records and

noted (1) he lived at that facility for almost three years without incident; and

(2) when he reported his safety concerns in December 2014, he said he was “not a

snitch” and refused to “give any details.” R. Supp. 1 at 50. Similarly, with the first

two steps of his grievance regarding his medical care, which CDOC did not deny on

procedural grounds, CDOC reviewed Kee’s medical records, noting the providers’

findings and the statements he made to the providers. This belies his suggestion that

his claims were not meaningfully investigated. To the extent CDOC did not

investigate more, that often was the result of Kee’s failure to provide details in his

grievances. Kee, thus, has failed to satisfy this exception.

      Although he has failed to show that any of the circumstances identified in Ross

apply to his grievances, Kee offers two additional arguments for why his failure to

exhaust should be excused. First, he insists he “was diligent with his efforts to

exhaust remedies,” noting some of his grievances were denied as untimely for being

only one day late. Aplt. Opening Br. at 38. However, this is effectively a claim of

substantial compliance, which we have rejected. See 

.

      Additionally, Kee contends “[t]he Court errored [sic] when it allowed the

Defendants to use affidavit statements to support the exhaustion claim.” Aplt.

Opening Br at 39. However, he offers no explanation of how the court erred or how

it impacted the exhaustion analysis. To the extent he elaborates in his reply brief that

                                           17
the affidavits contained “false information” concerning CDOC’s staff’s ability to

monitor or disrupt inmate phone calls, Aplt. Reply Br. at 8, such an assertion has no

bearing on the procedural grounds for the denial of that particular grievance, which

included: (1) the remedy sought (staff discipline) was not available under AR 850-04;

and (2) Kee violated the formatting requirements by writing outside the designated

space. See R. Supp. 1 at 65. Accordingly, Kee’s argument is without merit.

                                   CONCLUSION

      The judgment of the district court is affirmed. We grant Kee’s motion to

proceed without prepayment of fees but remind him of his continuing obligation to

make partial payments until the filing fee has been paid in full. All other pending

motions are denied.


                                           Entered for the Court


                                           Terrence L. O’Brien
                                           Circuit Judge




                                          18