Mathews v. Colorado Department of Corrections , 146 F. App'x 988 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 14, 2005
TENTH CIRCUIT
Clerk of Court
ALBERT MATHEWS,
Plaintiff-Appellant,
v.
COLORADO DEPARTMENT OF
CORRECTIONS; GARY WATKINS, No. 05-1010
Warden, Fremont Correctional (District of Colorado)
Facility; TIMOTHY GREEANY, Dr., (D.C. No. 04-Z-1301)
Medical Staff; LOTTIE BECK;
CONNIE BATSON; DAVE HOLT;
THERESA MECHE; CAPT.
DANSDILL; LT. McGINNISS; SGT.
BABCOCK,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
After examining appellant’s brief and the appellate record, this court has
determined unanimously that oral argument would not materially assist the
*
This order and judgment is not binding precedent, except under the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.
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.
Proceeding pro se, state prisoner Albert Mathews appeals the district
court’s dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. §
1983. Mathews’ complaint contained two claims: (1) Defendants deprived him of
his Eighth Amendment right to be free from cruel and unusual punishment when
they required him to clean a prison dumpster containing caustic chemicals without
providing him with protective clothing, and (2) Defendants were deliberately
indifferent to his medical needs when they refused to adequately treat the skin
disorder he developed after the dumpster incident. Mathews submitted
documentation indicating that he exhausted his administrative remedies only with
respect to his Eighth Amendment, medical-care claim. The district court
dismissed Mathews’ complaint without prejudice, concluding he had failed to
exhaust his administrative remedies as to his claim that his Eighth Amendment
rights were violated when Defendants required him to clean the dumpster without
protective clothing. See Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th
Cir. 2004) (“If a prisoner does submit a complaint containing one or more
unexhausted claims, the district court ordinarily must dismiss the entire action
without prejudice.”).
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This court reviews a dismissal for failure to exhaust de novo. See Miller v.
Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000). On appeal, Mathews does not
make any reasoned argument that he exhausted his Eighth Amendment claim
premised on his alleged exposure to toxic chemicals in the prison dumpster.
Accordingly, we conclude that the district court did not err when it dismissed
Mathews’ complaint without prejudice and affirm the district court’s order. See
Ross , 365 F.3d at 1190. Mathews’ application to proceed in forma pauperis on
appeal is granted , but he is reminded that he remains obligated to continue
making partial payments until his appellate filing fee is paid in full. See 28
U.S.C. § 1915(b).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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