This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

October 3, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARVIN R. WASHINGTON,

Plaintiff-Appellant, No. 06-7025

v. (E.D. Oklahoma)

CORRECTIONS CORPORATION OF

AMERICA; FIXICO, Officer; BOYD,

Warden; CHARLES RAY, Active

Warden; SEBELKA, Officer; and

STORY, Officer,

Defendants-Appellees.

(D.C. No. CIV-03-364-WH)

ORDER AND JUDGMENT

*

Before HENRY, BRISCOE, and O’BRIEN, 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.
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Marvin R. Washington is an Oklahoma state prisoner proceeding pro se. 

He appeals the district court’s dismissal of his complaint, which alleged several

claims under 42 U.S.C. § 1983, including that defendants denied him due process

when he was found guilty of a particular misconduct charge, discriminated against

him with regard to another misconduct charge. He also alleges retaliation and

denial of his equal protection rights for his filing of lawsuits, denial of his First

Amendment rights to a Kosher diet and to purchase prayer oils from an outside

vendor, cruel and unusual punishment through usurious commissary prices, and

violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18

U.S.C. § 1962. 

We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the

district court’s dismissal without prejudice for failure to exhaust administrative

remedies, as required by 42 U.S.C. § 1997e(a). 

I. BACKGROUND

Mr. Washington alleges various constitutional violations that arise out of

distinct events. With respect to his first claim, he alleges that on May 1, 2002, he

was charged with and found guilty of Disobedience to Orders for possessing a

personal pair of Reebok shoes. He contends that he was found guilty of the

offense and punished with the loss of earned credits and canteen restrictions and a

decrease in his earner credit level. Mr. Washington, who describes himself as
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“black” inmate, alleges that other Caucasian inmates who were charged with

misconduct had the charges dismissed. 

Second, Mr. Washington alleges that on February 19, 2003, Officer Fixico

issued him a misconduct for Disobedience to Order for smoking. Mr. Washington

contends that there was no evidence of the offense and that a Caucasian inmate

who was smoking received no misconduct.

As to his third claim, Mr. Washington alleges that as a “Black Hebrew

Isralist [sic]” he was arbitrarily denied a Kosher diet and the use of prayer oils. 

See Rec. vol. I, doc. 25, at 7 (amended complaint filed Apr. 20, 2004). He

contends that he was informed that only Islamists and Wiccans could receive

prayer oils and that only Jews could be served a Kosher diet.

Finally, Mr. Washington contends that the prison grocery’s more than 300

percent markup of certain items violated his Eighth Amendment right to be free

from cruel and unusual punishment, as well as the state and federal usury laws,

and RICO.

The defendants filed a motion for summary judgment, alleging that Mr.

Washington has failed to exhaust his administrative remedies as certain of his

claims under 42 U.S.C. § 1997e(a). The district court granted the motion and

denial Mr. Washington’s subsequent motion for clarification.
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II. DISCUSSION

We review de novo a district court’s dismissal of a complaint for failure to

exhaust administrative remedies. Patel v. Fleming, 415 F.3d 1105, 1108 (10th

Cir. 2005). We accept the allegations in the complaint as true, and make all

reasonable factual inferences in Mr. Washington’s favor. Martinez v. Garden,

430 F.3d 1302, 1304 (10th Cir. 2005). Additionally, we must construe his

arguments liberally because he is pro se. Id.; Haines v. Kerner, 404 U.S. 519,

520 (1972).

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action

shall be brought with respect to prison conditions under section 1983 of this title 

. . . until such administrative remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). The prisoner must exhaust all administrative remedies available even

if administrative procedures “would appear to be futile at providing the kind of

remedy sought.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). 

“An inmate who begins the grievance process but does not complete it is barred

from pursuing a § 1983 claim under PLRA for failure to exhaust his

administrative remedies.” Id. at 1032.

As the district court explained, the Davis Correctional Facility, where Mr.

Washington was housed during the alleged violations, has a three tier approach to

resolving inmate complaints. To exhaust available remedies at the facility, an

inmate must (1) attempt to resolve matters informally, (2) file a grievance with
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the facility, and (3) appeal any unresolved matter to the facility head. See Rec.

vol. II, doc. 66, Ex. A (Affid. of David Brown, dated May 27, 2005)

“To satisfy the PLRA’s exhaustion requirement, a prisoner must do more

than allege that he has exhausted his administrative remedies. To [show

exhaustion], a prisoner must . . . attach a copy of the applicable administrative

dispositions to the complaint, or, in the absence of written documentation,

describe with specificity the administrative proceeding and its outcome.” Simmat

v. U.S. Bureau of Prisons, 413 F.3d 1225, 1237 (10th Cir. 2005) (internal

quotation marks, citation, and alteration omitted). The defendants indicate that

Mr. Washington exhausted his prayer oils claim, and filed grievances but did not

exhaust his smoking and usurious pricing claim, and did not appear to initiate the

administrative process for his other claims. “The policies of the PLRA thus

strongly support a reading of that statute that requires inmates to exhaust fully all

of their claims before filing in federal court. If a prisoner does submit a

complaint containing one or more unexhausted claims, the district court ordinarily

must dismiss the entire action without prejudice.” Ross v. County of Bernalillo,

365 F.3d 1181, 1190 (10th Cir. 2004). We agree with the district court’s

dismissal without prejudice.

We have carefully reviewed Mr. Washington’s appellate brief, the district

court’s order, and the record on appeal, and agree that Mr. Washington has failed

to exhaust all of his available administrative remedies. Nowhere in the record is
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there evidence that Mr. Washington properly used the available prison grievance

process to make and exhaust all of his constitutional claims. 

III. CONCLUSION

Accordingly, we AFFIRM the district court’s dismissal for failure to

exhaust pursuant to 42 U.S.C. § 1997e(a) without prejudice.

Entered for the Court,

Robert H. Henry

Circuit Judge