60 F.3d 837NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
James CLICK, Plaintiff--Appellant,v.Jerry JOHNSON, Edward L. Evans, Billie Moser;  Rob P.Melton, Defendants--Appellees.
No. 94-6298.
United States Court of Appeals, Tenth Circuit.
July 10, 1995.

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.
ANDERSON, Circuit Judge.


1
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 cause is therefore ordered submitted without oral argument.


2
James Click appeals from an adverse summary judgment dismissing with prejudice that portion of his complaint which is in the form of a civil rights action under 42 U.S.C.1983, and dismissing without prejudice that part of his complaint which seeks relief in the nature of habeas corpus.  The latter ruling is based on Mr. Click's failure to exhaust his claims in state court.


3
We have reviewed the file and have considered Mr. Click's arguments on appeal.  We conclude that the district court did not err;  and we adopt the substance of the magistrate judge's report and recommendation filed July 1, 1994, and the order of the district court filed July 26, 1994.


4
AFFIRMED.


5
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1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993.  151 F.R.D. 470.


