UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANDREW SEAN LEAHY,

Plaintiff - Appellant,

v.

DOCTOR McCALLON, Medical Doctor at B.V.C.F.,

Defendant - Appellee.

No. 04-1216

(Colorado)

(D.Ct. No. 03-Z-2521)

ORDER AND JUDGMENT*

Before SEYMOUR, LUCERO, and O'BRIEN, 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)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument.

Andrew Sean Leahy, a state prisoner at the Sterling Correctional Facility in Sterling, Colorado, filed a §1983 action1 on December 11, 2003, alleging Dr. McCallon of the Buena Vista Correctional Facility violated his Eighth Amendment rights by acting with deliberate indifference toward his medical needs while he was in Dr. McCallon's care in September, 2001. On February 24, 2004, the magistrate judge, to whom the matter had been referred, ordered Leahy to file an amended complaint in order to (1) clearly and concisely set forth his claims and (2) demonstrate he exhausted his administrative remedies for each claim asserted. On March 25, 2004, Leahy filed his amended complaint. On April 16, 2004, the district court dismissed Leahy's complaint for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). Specifically, the court concluded Leahy waited more than two years before filing a grievance against Dr. McCallon, well beyond the thirty days allotted for filing a grievance with corrections officials.

Leahy then filed a notice of appeal from the decision dismissing his complaint and an application to take his appeal in forma pauperis. See 28 U.S.C. § 1915; Fed. R. App. P. 24. On July 6, 2004, the district court certified the appeal was not taken in good faith because Leahy had "not shown the existence of a reasoned, non-frivolous argument on the law and facts in support of the issues raised on appeal." (R. Doc. 16.) Therefore, it denied the application to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(3) ("An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."). Leahy renews his application for leave to proceed in forma pauperis in this court and also seeks appointment of counsel. Reviewing de novo a district court's finding of failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a), Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), and exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Having reviewed Leahy's opening brief, we, like the district court, cannot discern a reasoned, non-frivolous argument on the law and facts in support of the issues he raises on appeal. We are at a loss as to why we should excuse Leahy's complete lack of diligence in filing a grievance against Dr. McCallon (or any other corrections official) given his allegation he suffered a serious injury requiring surgery.

Accordingly, we AFFIRM the order of the district court dismissing Leahy's complaint. We DENY Leahy's application to proceed in forma pauperis and motion for appointment of counsel. Leahy is ordered to pay the full appellate

filing fee within twenty (20) days of this order.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge