Zarska

ORDER AND JUDGMENT *

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.

Plaintiff-Appellant Eric Allen Zarska, an inmate at the El Dorado Correctional Facility (EDCF) in Kansas, appeals the dismissal of his pro se 42 U.S.C. § 1983 civil rights complaint. Mr. Zarska alleged that Defendant-Appellee Donald R. Higgins, a sergeant at EDCF, violated his First Amendment right to freedom of speech by filing a disciplinary charge in retaliation for an affidavit Mr. Zarska gave supporting another prisoner’s grievance.

The district court dismissed Mr. Zarska’s complaint for failure to exhaust his administrative remedies in accordance with 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act (PLRA). In a footnote, the court stated that it “likely would have dismissed plaintiffs claims on the merits had it further considered the matter.” R., Doc. 37 at 4 n. 1.

In a motion for reconsideration, Mr. Zarska argued that the exhibits attached to his complaint…