F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 15 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL SEAN EDMOND,
Plaintiff-Appellant,
v. No. 98-1062
(D.C. No. 97-D-1883)
CORRECTIONS CORPORATION OF (D. Colo.)
AMERICA, doing business as
National Registered Agents, Inc.;
WILLIAM WILSON, JR., Warden of
the Bent County Correctional Facility,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, BARRETT, and TACHA , 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This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff-Appellant Michael Sean Edmond appeals from the district court’s
order denying his motion for reconsideration of its order dismissing his civil
rights complaint, which he brought pursuant to 42 U.S.C. § 1983. 1
The district
court dismissed his complaint sua sponte for failure to exhaust administrative
remedies. See 42 U.S.C. § 1997e(a). Appellant admitted in his complaint that he
had not exhausted his administrative remedies through the prison grievance
process. He explained that some of his grievances had gone unanswered, and that
he had been transferred to a new place of incarceration before he had the
opportunity to complete the grievance process. In ordering the dismissal of his
complaint, the district court found that appellant failed to actively proceed with
his grievances through the process provided to him.
1
Appellant filed his motion to reconsider more than ten days after the court’s
judgment had entered; it is therefore properly construed as a motion pursuant to
Fed. R. Civ. P. 60(b). An appeal from the denial of such a motion “raises for
review only the district court’s order of denial and not the underlying judgment
itself.” Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991). The
wording of appellant’s notice of appeal suggests that he may have intended to
appeal from the underlying order of dismissal as well as from the order denying
his motion for reconsideration. We need not concern ourselves with appellant’s
intent, however, because he filed his notice of appeal too late to appeal from the
underlying dismissal.
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In his motion for reconsideration, appellant presented additional arguments
concerning his failure to exhaust his administrative remedies. He argued, inter
alia, that the prison administration had hindered his ability to exhaust his claims;
that he could no longer exhaust the claims because they were time-barred under
the inmate grievance procedure; and that 42 U.S.C. § 1997e(a) is unconstitutional.
Without considering the merits of his new arguments, the district court concluded
that the points which appellant presented should have or could have been argued
in his complaint. Accordingly, it denied his motion for reconsideration. We
review this decision for abuse of discretion. See United States v. Castillo-Garcia ,
117 F.3d 1179, 1197 (10th Cir.), cert. denied, 118 S. Ct. 395 (1997).
It appears that in denying the motion for reconsideration, the district court
relied on our principle that “arguments raised for the first time in a motion for
reconsideration are not properly before the court and generally need not be
addressed.” Id. That principle is inapplicable here because of appellant’s pro se
status and the sua sponte dismissal of his complaint. Appellant had no
opportunity to present argument concerning exhaustion other than in his motion
for reconsideration.
We nevertheless affirm the order of dismissal. We have reviewed each of
appellant’s arguments concerning the exhaustion issue and have determined that
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they lack merit. The district court acted within its discretion in denying
appellant’s motion for reconsideration.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED. 2
Entered for the Court
Deanell Reece Tacha
Circuit Judge
2
The Order to Show Cause dated May 15, 1998, is discharged. Appellant is
reminded, however, of his continued duty to make partial payments toward the
scheduled filing fee for this action. See 28 U.S.C. § 1915(b)(2).
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