                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JUN 29 2004
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 MARVIN B. DAVIS, JR.,

          Plaintiff-Appellant,
 v.                                                          No. 04-3122
 CHARLES E. SIMMONS, Secretary of                   (D.C. No. 01-CV-3186-GTV)
 Corrections for the Kansas Department of                   (D. Kansas)
 Corrections; LOUIS E. BRUCE, Warden,
 Hutchinson Correctional Facility;
 KANSAS DEPARTMENT OF
 CORRECTIONS; BRUCE BROWER,
 CCII, acting Unit Team Manager,
 Hutchinson Correctional Facility;
 WILLIAM E. CUMMINGS, Secretary of
 Corrections Designee for Kansas
 Department of Corrections; GEORGE
 VAUGHN, District Manager for Aramark
 Correctional Services; ARAMARK
 SERVICES, INC., Aramark Correctional
 Services,

          Defendants-Appellees.




                                 ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.


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        This order and judgment is not binding precedent, except under the doctrines of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

       Marvin Davis, Jr., a Kansas state prisoner appearing pro se and proceeding in

forma pauperis, appeals the district court’s dismissal of his 42 U.S.C. § 1983 action. We

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

       In his complaint, Davis alleged that while he was confined at the Hutchinson

Correctional Facility (HCF), he was required to work for Aramark Correctional Services,

Inc., a company that contracted with the Kansas Department of Corrections (KDOC) to

provide food service to HCF. According to Davis, Aramark paid him a small hourly

wage for his work, far less than the minimum wage mandated under Kansas law. Davis

alleged that he filed grievances with HCF and KDOC and that HCF officials and

Aramark employees retaliated against him by filing false incident reports and by

transferring him to another KDOC facility. Davis’ complaint sought declaratory and

injunctive relief, as well as damages in the form of what he characterized as “back pay”

(i.e., the difference between what he was actually paid and the minimum wage to which

he was entitled). The complaint also requested class certification to include as plaintiffs




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all inmates similarly situated to Davis.1

         The district court dismissed Davis’ claim for failure to exhaust administrative

remedies. We review the district court’s order of dismissal de novo. See Jernigan v.

Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“We review de novo the district court’s

finding of failure to exhaust administrative remedies.”).

         The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) requires inmates to

exhaust “available” administrative remedies prior to filing an action under § 1983, even

where the “available” remedies appear futile at providing the kind of remedy sought.

Jernigan, 304 F.3d at 1032. Administrative review by correction officials is intended “to

reduce the quantity and improve the quality of prisoner suits” by “filter[ing] out some

frivolous claims” and, at a minimum, “clarif[ying] the contours of the controversy.”

Porter v. Nussle, 534 U.S. 516, 524-25 (2002). In a § 1983 action, the burden is on an

inmate to sufficiently plead exhaustion of grievance proceedings, which includes

supplying supporting information or documentation on exhaustion of prison grievance

proceedings. See Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir.

2003).



         A substantial part of Davis’ complaint focused on another claim, i.e., that KDOC
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and HCF officials failed to provide him and other inmates with “a plain, speedy and
effective resolution system for” their grievances. ROA, Doc. 1 at 6. That claim was
dismissed by the district court for failure to state a claim upon which relief could be
granted. There is no indication in Davis’ appellate pleadings that he is attempting to
appeal the dismissal of that claim. Even if Davis did intend to appeal the dismissal of that
claim, we find no error on the part of the district court.

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       With these standards in mind, we turn to the record on appeal. Davis alleges he

first asserted his failure-to-pay-minimum-wage claim in a grievance filed with a unit team

counselor at HCF on July 3, 2000. According to Davis, the grievance was rejected

without comment on July 13, 2000. On that same date, he allegedly attempted to appeal

to the warden of HCF, but the warden did not respond. Davis alleges he therefore filed a

second grievance directly with the Secretary of the KDOC. On or about October 20,

2000, the Secretary allegedly denied the grievance.

       Davis’ supporting documentation confirms only part of his allegations. Although

the documentation indicates he filed a grievance on July 3, 2000, the only claim referred

to in that documentation pertains to a kitchen supervisor’s alleged failure to provide

Davis with a sufficient amount of french fries during a meal on July 1, 2000. Similarly,

there is no indication that his initial appeal to the warden on July 13, 2000, mentioned the

claim now asserted in his § 1983 complaint. It is true that the second grievance filed by

Davis directly with the Secretary of KDOC contained two sentences referring to the

failure-to-pay-minimum-wage claim. However, as noted by the district court, those

references were buried at the end of a two-page, single-spaced complaint regarding the

french fry claim. Not surprisingly, the Secretary’s response on October 20, 2000,

contained no mention of the failure-to-pay-minimum-wage claim, and addressed only the

french fry claim.

       In light of these facts, we agree with the district court that Davis has failed to


                                              4
demonstrate exhaustion of his administrative remedies. Simply put, Davis has failed to

establish that, in pursuing his failure-to-pay-minimum-wage claim, he pursued all of the

administrative procedures made available to him by the KDOC. Even though Davis

ultimately presented the claim to the Secretary of KDOC, there is no indication in the

record that lower-level officials at KDOC or HCF were given the opportunity to address

the claim, and thus no administrative record was otherwise compiled regarding the claim.

To now conclude that Davis adequately exhausted his administrative remedies would

effectively remove the incentive for him and other inmates to follow the KDOC’s

procedures. See Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002) (concluding

that “unless the prisoner completes the administrative process by following the rules the

state has established for that process, exhaustion has not occurred”).

        The judgment of the district court is AFFIRMED. We remind Davis of his

obligation to continue making partial payments of the appellate filing fee until paid in

full.

                                          Entered for the Court

                                          Mary Beck Briscoe
                                          Circuit Judge




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