                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 12 2001
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 HENRY J. DAVIS,

          Plaintiff-Appellant,
 v.

 MICHAEL ROARK and Board of                            No. 01-7014
 Correction Members, JAMES                       (D.C. No. 99-CV-576-S)
 SAFFEL, Department of Corrections                     (E.D. Okla.)
 Director, BOBBY BOONE, Warden,
 FRANK KEATING, Governor,

          Defendants-Appellees.




                             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


      *
        After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
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



       The factual basis for Davis’s claim of discrimination is not entirely clear
       1

from his complaint. In his complaint, Davis attributes poor treatment he allegedly
                                                                      (continued...)

                                         -2-
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



      1
       (...continued)
received in prison to his poverty and his exclusion from political processes that
occurred as a result of his criminal convictions. (Doc. 2 at 2.) The district court
also noted that Davis is a diabetic, but found that the DOC had not been restricted
from job assignments or educational opportunities because of diabetes. (Doc. 22
at 2.)

                                         -3-
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


      2
       The principle thrust of Davis’s brief on appeal asserts that the DOC’s
policy of double-celling prisoners constitutes double jeopardy. In addition, he
alleges additional claims pursuant to the Fifth, Sixth, Thirteenth, and Fourteenth
Amendments as well as Okla. Stat. tit. 57 § 138. Because these claims were not
asserted in his complaint, we do not consider them on appeal. Cf. Walker v.
Mather, 959 F.2d 894, 896 (10th Cir. 1992) (In general, this court will not
consider an issue on appeal that was not raised below).

                                         -4-
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.




      3
       In addition to the foregoing analysis, the district court correctly held that
Davis’s claim for damages arising from his unconstitutional incarceration fails
because his conviction has not been called into question through any state or
federal procedure, and therefore he cannot establish entitlement to damages for
his incarceration under 42 U.S.C. § 1983. See Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). Likewise, we concur with the district court’s finding that Davis
has not alleged sufficient facts to connect these individual Defendants to his
alleged injuries for the purposes of bringing a § 1983 claim. Cf., e.g., Worrell v.
Henry, 219 F.3d 1197, 1214 (10th Cir. 2000) (“Under § 1983 a defendant may not
be held liable under a theory of respondeat superior. Instead, to establish
supervisory liability, a plaintiff must show that an affirmative link exists between
the constitutional deprivation and either the supervisor’s personal participation,
his exercise of control or direction, or his failure to supervise.” (citations and
quotations omitted)).

                                         -5-
ENTERED FOR THE COURT



David M. Ebel
Circuit Judge




 -6-
