* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 18 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

GILBERT DEAN DAVIS,

Plaintiff - Appellant,

v. CORRECTIONS CORPORATION OF AMERICA; CHARLES RAY, Warden; BILL BOYD, Assistant Warden; EZELL, Deputy Warden,

Defendants - Appellees. No. 04-7048 (D.C. No. 02-CV-215-S) (E. D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , McCONNELL , and TYMKOVICH , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Gilbert Dean Davis is a prisoner in the custody of the Oklahoma1 We construe Mr. Davis’s pleadings liberally, holdin g them “to less

stringent standards than formal pleadings drafted b y lawyers” because he is a pro se litigant. Haines v. Kerner , 404 U.S. 519, 520 (1972); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). -2- Department of Corrections (DOC), housed in the Davi s Correctional Facility under a contract between the Corrections Corporatio n of America (CCA) and the DOC. Mr. Davis filed a pro se civil rights complaint requesting injunctive relief under 42 U.S.C. § 1983. He alleged defendants viol ated his constitutional rights by interfering with his practice of Islam and disci plining him without due process of law. 1 The district court entered summary judgment again st Mr. Davis on two grounds: failure to exhaust administrative remedies and, with regard to disciplinary proceedings, lack of cognizable due-pr ocess violations. We affirm. A. Failure to exhaust administrative remedies Under the Prison Litigation Reform Act (PLRA), 42 U .S.C. § 1997e(a), an inmate must exhaust available administrative remedi es before filing a civil-rights suit with respect to prison conditions. See Steele v. Fed. Bureau of Prisons , 355 F.3d 1204, 1206 (10th Cir. 2003). Mr. Davis claime d he had exhausted available administrative remedies and, as proof, attached fou r documents arising from the prison grievance system. The district court ordered preparation of an invest igative report pursuant to Martinez v. Aaron , 570 F.2d 317, 319 (10th Cir. 1978) (stating distr ict court may2 For the first time on appeal, Mr. Davis has submitt ed a form indicating that,

at the time he filed his complaint, he scored at th e fifth-grade level in adult basic (continued...) -3- order prison officials to file investigative report s in prisoner civil rights suits). The Martinezreport set out the prison’s multi-step grievance p rocedure and described Mr. Davis’s inconsistent approach to the process. Supporting documentation demonstrated that, although Mr. Davis had filed several grievances on an assortment of issues, he had not pursued any grievance to exhaustion. Defendants moved for summary judgment, in part on the ground that Mr. Davis failed to exhaust his administrative remedies . Mr. Davis responded that officials had refused to provide him with writing m aterials or “the rules to be followed,” Rec., doc. 17 at 1, and that one individ ual had given him faulty advice. Id. He also claimed he had difficulty “in preparing andfiling legal papers” because he is “a slow learner and thinker and is currently enrolled in class to receive his G.E.D.” Id. , doc. 23 at 2. The district court determined thatMr. Davis had “failed to make any viable argument that he ha[d] exhausted his administrative remedies as to the claims brought inhis complaint,” id. , doc. 25, at 11, and granted defendants’ motion for summary judg ment. This appeal followed. In this court, Mr. Davis re-asserts and expands upo n his argument that his educational deficiencies make compliance with the g rievance system problematic. 2We note, however, that Mr. Davis’s district courtsubmissions did2 (...continued)

education tests. We generally do not consider evid ence not in the record before the district court. See Nulf v. Int’l Paper Co ., 656 F.2d 553, 559 (10th Cir. 1981). -4- not describe insurmountable barriers to his filing of grievances and did not show that prison officials had effectively foreclosed hi s efforts. See Steele , 355 F.3d at 1214. Indeed, the record demonstrates that Mr. Dav is had initiated several grievance proceedings. “An inmate who begins the g rievance process but does not complete it is barred from pursuing a § 1983 cl aim . . . for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Thus, summary judgment, “limitedto the narrow issue of exhaustion and the prisoner’s efforts to exhaust,” was the appropriate disposition of Mr. Davis’s claims, Steele , 355 F.3d at 1212, particularly given that a dismi ssal for failure to exhaust administrative remedies does not preclude curing the defect if that is still a viable option. Id. at 1212-13. B. Failure to allege cognizable due process violatio ns The district court also evaluated the merits of a s ubset of Mr. Davis’s claims. Based upon Supreme Court precedent, the co urt determined defendants were entitled to summary judgment on Mr. Davis’s al legations of due process violations. “Prison disciplinary proceedings are n ot part of a criminal prosecution, and the full panoply of rights due a d efendant in such proceedings does not apply.” Wolff v. McDonnell , 418 U.S. 539, 556 (1974). For a prison-5-

disciplinary hearing which may result in the loss o f a liberty interest, due process requires that the inmate receive “(1) advance writt en notice of the disciplinary charges; (2) an opportunity, when consistent with i nstitutional safety and correctional goals, to call witnesses and present d ocumentary evidence in his defense; and (3) a written statement by the factfin der of the evidence relied on and the reasons for the disciplinary action.” See Superintendent, Mass. Corr. Inst., Walpole v. Hill , 472 U.S. 445, 454 (1985) (citing Wolff , 418 U.S. at 563- 67). The findings also must be “supported by some evidence in the record.” Id

. Mr. Davis does not argue that his disciplinary proc eedings lacked any of these procedural protections. Moreover, we agree w ith the district court that there exists “some evidence” to support the conclusions r eached during the disciplinary hearings. Rec., doc. 25 at 12. The court correctl y entered summary judgment on the merits of Mr. Davis’s due process claims. Accordingly, after consideration of the record on appeal, the parties’ briefs, and the district court’s order, we AFFIRM the judgment of the district court. We DENY Mr. Davis’s motion to strike appellees’ response br ief. Entered for the Court Stephanie K. Seymour Circuit Judge