* This order and judgment is not binding precedent, except under the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

Gilbert Dean Davis is a prisoner in the custody of the Oklahoma
1 We construe Mr. Davis’s pleadings liberally, holding them “to less

stringent standards than formal pleadings drafted by 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).

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Department of Corrections (DOC), housed in the Davis Correctional Facility

under a contract between the Corrections Corporation 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 violated his constitutional rights

by interfering with his practice of Islam and disciplining him without due process

of law.1 The district court entered summary judgment against Mr. Davis on two

grounds: failure to exhaust administrative remedies and, with regard to

disciplinary proceedings, lack of cognizable due-process 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 remedies 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 claimed he had exhausted available

administrative remedies and, as proof, attached four documents arising from the

prison grievance system. 

The district court ordered preparation of an investigative report pursuant to

Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (stating district court may
2 For the first time on appeal, Mr. Davis has submitted a form indicating that,

at the time he filed his complaint, he scored at the fifth-grade level in adult basic

(continued...)

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order prison officials to file investigative reports in prisoner civil rights suits). 

The Martinez report set out the prison’s multi-step grievance procedure 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 materials or “the rules to be

followed,” Rec., doc. 17 at 1, and that one individual had given him faulty advice. 

Id. He also claimed he had difficulty “in preparing and filing 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 that Mr.

Davis had “failed to make any viable argument that he ha[d] exhausted his

administrative remedies as to the claims brought in his complaint,” id., doc. 25, at

11, and granted defendants’ motion for summary judgment. This appeal followed.

In this court, Mr. Davis re-asserts and expands upon his argument that his

educational deficiencies make compliance with the grievance system

problematic.2

 We note, however, that Mr. Davis’s district court submissions did
2

(...continued)

education tests. We generally do not consider evidence not in the record before

the district court. See Nulf v. Int’l Paper Co., 656 F.2d 553, 559 (10th Cir. 1981).

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not describe insurmountable barriers to his filing of grievances and did not show

that prison officials had effectively foreclosed his efforts. See Steele, 355 F.3d at

1214. Indeed, the record demonstrates that Mr. Davis had initiated several

grievance proceedings. “An inmate who begins the grievance process but does

not complete it is barred from pursuing a § 1983 claim . . . for failure to exhaust

his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032

(10th Cir. 2002). Thus, summary judgment, “limited to 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 dismissal

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 violations

The district court also evaluated the merits of a subset of Mr. Davis’s

claims. Based upon Supreme Court precedent, the court determined defendants

were entitled to summary judgment on Mr. Davis’s allegations of due process

violations. “Prison disciplinary proceedings are not part of a criminal

prosecution, and the full panoply of rights due a defendant in such proceedings

does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). For a prison
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disciplinary hearing which may result in the loss of a liberty interest, due process

requires that the inmate receive “(1) advance written notice of the disciplinary

charges; (2) an opportunity, when consistent with institutional safety and

correctional goals, to call witnesses and present documentary evidence in his

defense; and (3) a written statement by the factfinder 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 proceedings lacked any of

these procedural protections. Moreover, we agree with the district court that there

exists “some evidence” to support the conclusions reached during the disciplinary

hearings. Rec., doc. 25 at 12. The court correctly 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 brief.

Entered for the Court

Stephanie K. Seymour

Circuit Judge