                           UNITED STATES COURT OF APPEALS
                                    TENTH CIRCUIT
                            Byron White United States Courthouse
                                     1823 Stout Street
                                  Denver, Colorado 80257
                                      (303) 844-3157
Patrick J. Fisher, Jr.
       Clerk

                                          January 31, 2001


       TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT

       RE: 00-1158, Nasious v. Ray, et al.
           Filed on January 19, 2001

             The order and judgment contains two clerical errors. On page four, second
       line down from the top of the page, the reference to “28 U.S.C. § 1916(b)” is
       corrected to read “28 U.S.C. § 1915(b).” Also, on page four, in lines five, six and
       seven, the references to appellant’s payment of the filing fee to the clerk of this court
       are corrected to reflect that appellant shall pay the filing fee to the clerk of the
       United States District Court for the District of Colorado.

               A copy of the corrected order and judgment is attached.

                                                      Sincerely,

                                                      Patrick Fisher, Clerk of Court


                                                      By:    Keith Nelson
                                                             Deputy Clerk


       encl.
                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                     UNITED STATES COURT OF APPEALS                     JAN 19 2001

                            FOR THE TENTH CIRCUIT                  PATRICK FISHER
                                                                            Clerk


    JOHN NASIOUS,

                Plaintiff-Appellant,

    v.                                                   No. 00-1158
                                                     (D.C. No. 99-Z-2468)
    CHARLES RAY, Warden; MIKE                              (D. Colo.)
    WISE, Chief of Security; GAIL
    MILLER, Mailroom Superintendent;
    MS. MARTINEZ, Mailroom Clerk;
    CORRECTIONS CORPORATION
    OF AMERICA, and John Doe,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before BALDOCK , PORFILIO , and BRORBY , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff John Nasious, proceeding pro se, appeals from the district court’s

dismissal without prejudice of his prisoner’s civil rights complaint alleging

violation of 42 U.S.C. § 1983. The court dismissed the complaint for failure to

exhaust administrative remedies.    See 42 U.S.C. § 1997e(a). We exercise

jurisdiction under 28 U.S.C. § 1291, and affirm in part and reverse in part.

      We review a dismissal for failure to exhaust administrative remedies

de novo. Miller v. Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000). At the time

of the alleged incident, Mr. Nasious was incarcerated at the Bent County

Correctional Facility in Las Animas, Colorado.      He alleged that defendants at that

facility unlawfully interfered with his legal mail, denying him access to the

courts, and sought monetary damages and injunctive relief.        Under §1997e(a),

“[n]o action shall be brought with respect to prison conditions under section

1983 of this title, or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are

available are exhausted.” This exhaustion requirement is mandatory.        Garrett v.

Hawk , 127 F.3d 1263, 1265 (10th Cir. 1997)      . In his complaint, Mr. Nasious

admitted that he had not exhausted his administrative remedies.




                                           -2-
      We note, however, that Mr. Nasious sought monetary damages in addition

to injunctive relief, and those claims are not subject to § 1997e(a)’s exhaustion

requirement where prison administrative procedures do not allow for such relief.

Menghini , 213 F.3d at 1246. The government has informed the court that the

Colorado Department of Corrections administrative remedies available to

prisoners do not include damages and concedes that the district court’s dismissal

of the claim for monetary damages was erroneous. Appellee’s Answer Br. at 4.

The district court’s dismissal of Mr. Nasious’s claim for money damages is

therefore reversed and remanded for further proceedings.

      Mr. Nasious is now incarcerated at the Crowley County Correctional

Facility in Olney Springs, Colorado, and had been transferred there before the

district court dismissed his claim for injunctive relief. Because Mr. Nasious has

not alleged facts indicating that he may be transferred back to the Bent County

facility, his claim for prospective injunctive relief regarding Bent County’s mail

policy is now moot.   See McAlpine v. Thompson , 187 F.3d 1213, 1216 (10th Cir.

1999) (noting that “when a favorable decision will not afford plaintiff relief, and

plaintiff’s case is not capable of repetition yet evading review, we have no

jurisdiction under Article III” because the “controversy is no longer live and

ongoing” and the prisoner cannot “demonstrate a good chance of being likewise

injured [by the defendant] in the future”) (quotation omitted).


                                           -3-
      Finally, Mr. Nasious had moved for leave to proceed on appeal without

prepayment of fees under 28 U.S.C. § 1915(b), and has consented to

disbursement of partial payments of the filing fees from his prison account. We

grant Mr. Nasious’s application to proceed         in forma pauperis . He must pay

$105.00 to the clerk of the district court. His custodian shall, within thirty days

of the date of this order, deduct and pay to the clerk of the United States District

Court for the District of Colorado an amount equal to 20 percent of the greater

of:

      A) the average monthly deposits to his account, or

      B) the average monthly balance in his account for the 6-month period
      immediately preceding filing of the notice of appeal in this case.

      In either event, Mr. Nasious’s custodian shall forward payments from his

account equal to 20 percent of the preceding month’s income each time the

account exceeds $10.00 until the filing fees are paid in full. The district court

clerk for the District of Colorado is directed to serve a copy of this order on

Mr. Nasious’s custodian forthwith.




                                             -4-
      The judgment of the United States District Court for the District of

Colorado is REVERSED as to the claim for monetary damages, AFFIRMED

as to the claim for injunctive relief, and REMANDED to the district court for

further proceedings.   The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




                                         -5-
