F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 23 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
GREGORY D. COSMO COSBY,
Plaintiff-Appellant,
v. No. 97-1400
(D.C. No. 97-D-1842)
J. KNOWLES, Warden; J.M. GRECO, Associate (D. Colo.)
Warden; RUTLEDGE, Admin. Captain; CHRIS
EICHENLAUB, Unit Mgr., E/B Unit,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY, and BRISCOE, 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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent except under the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.
Mr. Cosby is a federal prisoner. He filed a pro se complaint alleging a civil
rights deprivation pursuant to Bivens v. Six Unknown Named Agents , 403 U.S. 388
(1971). The district court entered an order dismissing the complaint without
prejudice, which Mr. Cosby appeals.
Mr. Cosby’s complaint alleged the prison officials failed to “respond to the
grievance denying the request for hygience [sic] products to be purchase [sic] by
the plaintiff.” He wished to purchase “[l]otion, [s]hampoo, [d]eodorant, or skin
care products for his body.”
Mr. Cosby applied for permission to proceed with his litigation in the
district court in forma pauperis . The district court served Mr. Cosby with written
notice informing him he would not be allowed to do so unless he produced a
certified copy of his prisoner trust fund account statement for the preceding six-
month period. Mr. Cosby failed to comply with this requirement. Mr. Cosby’s
Bivens action was then dismissed by the district court for failure to comply with
the provisions of 28 U.S.C. § 1915(a)(2), which requires submission of “a
certified copy of the trust fund account statement ... for ... the 6-month period
immediately preceding the filing of the complaint.”
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At the same time, the trial court ruled Mr. Cosby’s complaint lacked merit
because he had failed to exhaust his administrative remedies. The trial court
noted Mr. Cosby is a prisoner challenging the conditions of his confinement
pursuant to federal law. Relying upon 42 U.S.C. § 1997e(a), which provides such
an action may not be brought “until such administrative remedies as are available
are exhausted,” the court concluded Mr. Cosby had failed to exhaust. The trial
court correctly spelled out the requirements for exhaustion, see 28 C.F.R. §§
542.14 - 542.15, in its order and further spelled out where Mr. Cosby’s actions
fell short.
Mr. Cosby has filed a motion for leave to proceed in forma pauperis on his
appeal of the district court’s order. His motion was denied by the trial court, in
part due to Mr. Cosby’s failure to attach certified trust fund statements for the
six-month period immediately preceding the filing. We agree. Mr. Cosby has not
met the requirements for prisoners who seek to appeal a civil action judgment in
forma pauperis. 28 U.S.C. § 1915(a)(2). For this reason he cannot proceed in
forma pauperis. See 28 U.S.C. § 1915(a)(1). We deny his request and dismiss
the appeal.
Even if we were to reach the merits in this case, however, we would affirm
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the district court’s order. Mr. Cosby argues he had administratively exhausted his
claim, as he wrote asking for approval to buy his “hygience products,” and his
inability to purchase his skin care products amounts to cruel and unusual
punishment. For the reasons outlined by the district court, this action does not
suffice to exhaust Mr. Cosby’s administrative remedies. Mr. Cosby has failed to
convince us of any error.
Mr. Cosby’s appeal to this court is frivolous and lacks merit. Because we
dismiss the appeal based on our denial of Mr. Cosmo’s request to proceed in
forma pauperis , we will not count this as a “prior occasion” under the Prison
Litigation Reform Act. See 28 U.S.C. § 1915(g) (establishing a prior occasion
must be “dismissed on the grounds that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted”).
Mr. Cosmo's request to proceed in forma pauperis is DENIED , and the
appeal is DISMISSED .
Entered for the Court
WADE BRORBY
United States Circuit Judge
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