UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HENRY J. DAVIS,

Plaintiff-Appellant,

v.

MICHAEL ROARK and Board of Correction Members, JAMES SAFFEL, Department of Corrections Director, BOBBY BOONE, Warden, FRANK KEATING, Governor,

Defendants-Appellees.

No. 01-7014

(D.C. No. 99-CV-576-S)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before EBEL, KELLY and LUCERO, Circuit Judges.

Petitioner-Appellant Henry J. Davis ("Davis"), a prisoner in Oklahoma's Mack Alford Correctional Center ("MACC"), appeals the district court's dismissal of his civil rights complaint. Davis sued Michael Roark, director of the Oklahoma Board of Corrections; the members of the Board of Correction; James Saffel, director of the Department of Corrections Director; MACC Warden Bobby Boone; and Oklahoma Governor Frank Keating (collectively "Defendants"). Davis's complaint alleged Defendants discriminated against him, and that they committed unspecified hate crimes against him. (Doc. 2 at 1.) Davis's complaint alleges violations of 42 U.S.C. § 12132 (exclusion from participation in programs or services of a public entity), 42 U.S.C § 1981 (denial of equal rights to make and enforce contracts), 42 U.S.C. § 1985(3) (conspiracy to interfere with civil rights), 18 U.S.C. § 242 (deprivation of rights under color of law because of race or status as an alien), and 18 U.S.C. § 1962 (racketeering). (Doc. 2 at 1-2.) The only specific factual allegations offered to support these claims is that he was double-celled with another inmate in violation of the Eight Amendment, and that he was denied the opportunity to accrue time credits against his sentence pursuant to the Oklahoma Prison Overcrowding Act, Okla. Stat. tit. 57 §§ 570-576. (Doc. 2 at 2.)

Davis further alleges that amendments to Oklahoma's "CAP" law to exclude prisoners suffering from unspecified disabilities constituted an unconstitutional ex post facto law or bill of attainder. (Doc. 2 at 3.)1 Davis's third claim appears to restate his Eight Amendment objection to forced double- celling of prisoners, and alleges that Defendants have violated a state-law requirement that prisons provide 120 feet of space per prisoner. Davis sought damages of $100 per day and a variety of forms of injunctive relief.

The district court dismissed the case pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), finding that it lacked any basis in law or fact and therefore was frivolous. (Doc. 22 at 5.) In reaching its judgment, the court considered the pleadings and motions before it as well as a special report prepared by the Oklahoma Department of Corrections at the court's direction. (Id. at 1.) We review a district court's determination that a case is frivolous for purposes of § 1915(e)(2)(B)(i) for abuse of discretion. See Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997).

In considering Davis's appeal, we are cognizant of his status as a pro se litigant, and therefore we liberally construe the allegations of his complaint. See Hunt v. Uphoff, 199 F.3d 1220, 1223 (10th Cir. 1999). "This court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).2
We affirm the district court's dismissal of these claims for substantially the reasons set forth in its order. To the extent that Davis seeks to demonstrate his entitlement to a reduction of his sentence, he must bring an action for habeas corpus under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1972) ("[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.").

Further, to the extent that Davis seeks damages for violations of his federal rights, he runs afoul of 42 U.S.C. § 1997e(a), which states: "No action shall be brought with respect to prison conditions under section 1983 of this title, 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." Davis has not alleged that he has made any effort to seek redress through state administrative processes. The DOC's report reviewing the factual background for Davis's claims finds that he unsuccessfully filed a grievance within the MACC contesting the denial of CAP credits. (Doc. 14.) Davis filed a second grievance with Lindsey E. Sharp of the Oklahoma DOC's Administrative Review Unit, which was returned to him unanswered because of procedural defects. (Id.) Although the record does not reflect precisely how Davis failed to comply with the state's procedural requirements for administrative review, it clearly establishes that his attempts to do so were deficient, and therefore that he is barred from seeking relief pursuant to 42 U.S.C. § 1997e(a).3

Accordingly, we AFFIRM the district court's conclusion that Davis's complaint is frivolous.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge