                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           DEC 14 2004
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    BUCK COOK, SR.,

                  Plaintiff-Appellant,

    v.                                                    No. 03-6341
                                                    (D.C. No. 03-CV-974-F)
    RON WARD, Director DOC,                               (W.D. Okla.)

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before SEYMOUR , KELLY , and McCONNELL , 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.




*
      This order and judgment is not binding precedent, except under the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.
      Plaintiff Buck Cook, Sr., an Oklahoma state prisoner proceeding pro se,   1



filed an action pursuant to 42 U.S.C. § 1983 alleging the denial of due process

and seeking compensatory and punitive damage relief, because he did not have an

opportunity to earn level 4 credits for one year after he was charged with a prison

misconduct that was later dismissed. The district court adopted the magistrate

judge’s recommendation that the action be dismissed without prejudice under

28 U.S.C. §§ 1915(e)(2) and 1915A,    2
                                          because Mr. Cook failed to show he

exhausted administrative remedies, as is required by 42 U.S.C. § 1997e. We

affirm.

      Mr. Cook was found guilty of a prison group disruption misconduct based

on an incident occurring on July 18, 2000, and demoted from credit level 4. He

appealed, alleging his due process rights were violated because he was not

allowed to present staff witnesses or videotape evidence at the disciplinary

hearing. The appeal was denied. Mr. Cook then filed a mandamus action in state

district court asserting the same due process violations. The action was dismissed

as moot after the Oklahoma Department of Corrections ordered rehearing based

on the due process violations. Upon rehearing, on July 16, 2001, the misconduct


1
      We liberally construe Mr. Cook’s pro se pleadings.   See Haines v. Kerner ,
404 U.S. 519, 520 (1972) (per curiam);   Cummings v. Evans , 161 F.3d 610, 613
(10th Cir. 1998).
2
      Defendant Ron Ward was never served.

                                           -2-
charges were dismissed as lacking an evidentiary basis, and, on July 24, Mr. Cook

was returned to credit level 4.

       In his complaint filed on July 18, 2003, Mr. Cook alleged that his due

process rights were violated because his level 4 credit status was not backdated to

the date of the misconduct and he therefore lost level 4 credits for one year,

which amounted to the loss of one and one half years of good time and the

opportunity for parole.   3
                              He sought compensatory and punitive damages to remedy

the alleged failure to restore his credits. He, however, indicated that he did not

seek prison administrative relief with respect to his claim, but he unsuccessfully

requested relief through the Oklahoma tort claims process.   4




3
      Mr. Cook further clarified his allegations in his objections to the magistrate
judge’s report and recommendation:

       Plaintiff suffered a loss of his level IV status for over a year, and
       these credits that were lost have, [n]ot been restored by DOC.
       Plaintiff understands that he cannot retrieve his earned credits in this
       cause of action, but due to the given fact that plaintiff will have to
       spend an extra three (3) years in prison as a direct result of the
       non-restoration of his credits he would have earned if he maintained
       his Level IV status, and due to the plaintiff also being denied access
       to his Parole hearing in March 2001, as a direct result of his
       Maximum Security Status due to the erroneous misconduct, plaintiff
       was denied his freedom (Parole) and being detained from his freedom
       (earned credits) as a direct result of the misconduct that was
       over-turned.

R., Doc. 8 at 5.
4
       In the tort claims request, Mr. Cook indicated that his case manager and the
                                                                      (continued...)

                                           -3-
      We review the district court’s dismissal for failure to exhaust

administrative remedies de novo.       Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th

Cir. 2002). Under § 1997e(a), “[n]o action shall be brought with respect to prison

conditions under section 1983 . . . by a prisoner confined in any . . . prison . . .

until such administrative remedies as are available are exhausted.” This

“exhaustion requirement applies to all prisoners seeking redress for prison

circumstances or occurrences.”     Porter v. Nussle , 534 U.S. 516, 520 (2002). It is

mandatory, even if the prisoner seeks relief, such as damages, that may not be

available through the prison grievance process.      Id. at 524; see Booth v. Churner ,

532 U.S. 731, 734, 741 & n.6 (2001) (requiring exhaustion of remedies even if

damage relief is unavailable, but another form of relief is available). Nothing in

the record before us indicates that Mr. Cook sought prison administrative relief

with respect to retroactive reinstatement of level 4 credits. We therefore conclude

the district court correctly dismissed the request for damages for failure to

exhaust administrative remedies.   5




4
 (...continued)
warden’s assistant informed him that he would be returned to level 4 as of
July 18, 2000, the date of the misconduct, but that did not happen.
5
      We note that in Gamble v. Calbone , 375 F.3d 1021, 1032 (10th Cir. 2004),
a 28 U.S.C. § 2241 habeas action, this court awarded a full restoration of benefits
upon a finding of the denial of due process and no evidence to support
misconduct convictions.

                                            -4-
      In the district court, as on appeal, Mr. Cook complained in a conclusory

and unsupported fashion about denial of access to a prison law library or legal

assistance. Because he has not alleged and cannot allege facts showing he was

unable to pursue a specific legal claim due to lack of access to a prison law

library or legal assistance, he fails to state a claim for denial of access to the

courts. See Lewis v. Casey , 518 U.S. 343, 349-53 (1996).

      Also, in light of the district court’s dismissal without prejudice and

Mr. Cook’s failure to exhaust administrative remedies, the district court did not

abuse its discretion in implicitly denying Mr. Cook leave to amend his complaint.

      The judgment of the district court is AFFIRMED. Mr. Cook’s motion for

leave to proceed on appeal without prepayment of costs or fees is GRANTED, but

he must make partial payments as specified in 28 U.S.C. § 1915(b)(1) until the

entire filing fee is paid. The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       Paul J. Kelly, Jr.
                                                       Circuit Judge




                                           -5-
