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J. KNOWLES, Warden; J.M. GRECO, Associate Warden; RUTLEDGE, Admin. Captain; CHRIS EICHENLAUB, Unit Mgr., E/B Unit,


No. 97-1400

(D.C. No. 97-D-1842)

(D. Colo.)


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.

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."

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 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


United States Circuit Judge

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*. 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.

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