UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL LEE STROPE, also known as Gordon E. Strope,

Plaintiff - Appellant,

v.

DAVID R. McKUNE, Warden, Lansing Correctional Facility; JASON SUTTLEY, Officer, Lansing Correctional Facility; TABOR MEDILL, Counselor, Lansing Correctional Facility; R. SUTTLES, Counselor, Lansing Correctional Facility; FRANK DORION, Kitchen Manager, Lansing Correctional Facility; DUANE MUCKENTHALER, Counselor, Lansing Correctional Facility; COLLETTE WINKELBAUER, Classification Staff, Lansing Correctional Facility; ANN MCDOWELL, Lansing Correctional Facility; WILLIAM CUMMINGS, Assistant for the Secretary of Corrections; MIKE NEVE, Deputy Warden, Lansing Correctional Facility, in their individual capacities,

Defendants - Appellees.

No. 05-3344

(	D.C. No. 04-CV-3204-JTM)

(D. Kan.)

ORDER AND JUDGMENT*

Before KELLY, O'BRIEN, and TYMKOVICH, Circuit Judges.**

Plaintiff-Appellant Michael Lee Strope, a state inmate appearing pro se, appeals the district court's dismissal of his civil rights action against State corrections personnel, without prejudice, and the denial of his motion to reconsider. In his complaint, Mr. Strope claimed violations of the First, Eighth, and Fourteenth Amendments. In particular, he argues that (1) the quality of the Kosher food served is inadequate, (2) he is treated differently than non-Jewish inmates, (3) the defendants have taken retaliatory action against him in transferring him to a "psycho cell-house," (4) his grievances have not been adequately or timely addressed, (5) he has not been made aware of ongoing religious meetings and services, and (6) the defendants have conspired against him.

Defendants moved for summary judgment on multiple grounds including a failure to exhaust. R. Docs. 46, 47 at 10-11. The district court concluded that Mr. Strope had failed to satisfy the total exhaustion rule of 42 U.S.C. § 1997e(a) and Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1211 (10th Cir. 2003). It found that Mr. Strope had not exhausted claims (5) and (6), and that Mr. Strope's complaint admitted lack of exhaustion by noting that two grievances had not been answered at the time of filing. R. Doc. 68 at 4; Doc. 1 at 11. Without benefit of a response by the Defendants, the district court next denied Mr. Strope's Rule 60(b) motion to reconsider, R. Doc. 70, finding that Mr. Strope's "motion merely reargues points this court has already considered and dismissed." R. Doc. 71 at 1.

While we understand that Mr. Strope attached documentary evidence to his Rule 60(b) motion indicating that (1) he had exhausted his claims and (2) the two grievances identified by the district court as evidence of the failure to exhaust were not processed by prison officials, we note that as a general rule, a party is not allowed to marshal evidence in response to a summary judgment motion after it has been decided. And although the failure to process a grievance may render an administrative remedy unavailable, see Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), it was incumbent upon Mr. Strope to marshal any such evidence before the district court decided the summary judgment motion, not after. We review the denial of a Fed. R. Civ. P. 60(b) motion for an abuse of discretion. In re Gledhill, 76 F.3d 1070, 1080 (10th Cir. 1996). The denial of a Rule 60(b) motion is not an abuse of discretion where, as here, the motion simply attempts to advance argument supported by evidence previously available but not presented to the court. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); see also Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (internal quotations omitted). As such, we find no abuse of discretion by the district court in denying Mr. Strope's Rule 60(b) motion.

We remind Mr. Strope that he must continue to make partial payments until the entirety of his appellate filing fee balance is paid.

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge