                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          August 3, 2005
                               TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 KENNETH W. BREWER,
             Plaintiff-Appellant,                        No. 04-7112
 v.                                              (D.C. No. 03-CV-528-WH)
 MIKE MULLIN, Warden, OSP;                               (E.D. Okla.)
 ROBERT BERRY, Unit Manager;
 LIEUTENANT WHALA, CORPORAL
 HANCE, and SERGEANT MORGAN,
 Correctional Officers,
             Defendants-Appellees.


                          ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.



      After examining the briefs and the 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(G).

The case is therefore ordered submitted without oral argument.

      This is a pro se state prisoner civil rights appeal. Mr. Brewer filed a



      *
       This order and judgment is not binding precedent, except under the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.
complaint under 42 U.S.C. § 1983 and sought declaratory relief, compensatory

damages, and punitive damages for constitutional violations which allegedly

occurred during his incarceration at the Oklahoma State Reformatory in Granite,

Oklahoma. The alleged violations stemmed from a violent attack by one group of

inmates on another group of which Mr. Brewer was a member.

      Defendants filed a motion for summary judgment alleging, inter alia, that

Mr. Brewer failed to exhaust his administrative remedies. The district court

ordered a report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).

After considering the parties’ briefs, aided by the Martinez report, the district

court granted Defendants’ motion and dismissed the case without prejudice

because Mr. Brewer failed to exhaust his administrative remedies. Mr. Brewer

now appeals to this court.

      After a thorough review of the briefs, the relevant law, and the record, we

agree with the district court that Mr. Brewer has failed to exhaust the available

formal grievance procedure (the Inmate/Offender Grievance Process) on his

claim. Therefore, for substantially the same reasons as set forth in the district

court’s well-reasoned September 21, 2004, Order, we hold that no relief is

available to Mr. Brewer pursuant to § 1983.

      The decision of the trial court is affirmed. We remind Mr. Brewer that

because his motion to proceed without prepayment of the appellate filing fee was


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granted, he must continue making partial payments on court fees and costs

previously assessed until such have been paid in full.

      AFFIRMED.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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