                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 3 2003
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

 JAMES M. DEBARDELEBEN,

               Plaintiff - Appellant,

 v.
                                                         No. 02-1241
 M V. PUGH, Warden; L. L. LEYBA,                     (D.C. No. 02-ES-562)
 D.O., Clinical Director; V. SUDLOW,                    (D. Colorado)
 Case Manager; OFFICER GRIGSBY;
 OFFICER MARTINEZ; and JOHN
 DOES 1 & 2, employees of U.S. Postal
 Service,

               Defendants - Appellees.


                            ORDER AND JUDGMENT


Before EBEL , HENRY , and HARTZ , 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(G). The case is

therefore ordered submitted without oral argument.    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not binding precedent, except under the doctrines of law of the case, res judicata,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.

      Plaintiff pro se James DeBardeleben, a federal prisoner, filed a Bivens

action in district court. He claimed that Defendants, various employees of the

United States Bureau of Prisons (BOP) and the United States Postal Service, had

violated his constitutional rights by harassing him. Specifically, he alleged that

Defendants had interfered with his mail, conducted improper searches of his cell,

denied him medication, blocked his phone calls, and permitted his photograph to

be taken without his consent. Plaintiff requested that the district court enter a

temporary restraining order or preliminary injunction prohibiting Defendants from

continuing the purported harassment. In an order of March 29, 2002, the district

court denied Plaintiff’s motion for preliminary relief.

      Plaintiff applied to this court for a writ of mandamus instructing the district

court to reverse its decision on his motion for preliminary injunction. We

addressed Plaintiff’s petition for mandamus in an order entered May 29, 2002.

Although we stated that mandamus relief was not available to Plaintiff, we

construed his petition as a timely notice of interlocutory appeal from the district

court’s denial of the motion for preliminary injunction.

      Meanwhile, the district court proceeded in its consideration of Plaintiff’s

underlying Bivens suit. In a June 7, 2002, order the district court found that


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Plaintiff had failed to exhaust administrative remedies, as required under 42

U.S.C. § 1997e, and thus the court dismissed Plaintiff’s complaint without

prejudice. The court acknowledged that Plaintiff had an appeal pending before

the Tenth Circuit but noted that the issue on appeal was not related to the question

whether Plaintiff had complied with the BOP’s administrative procedures.

      On August 14, 2002, Defendants moved to dismiss as moot Plaintiff’s

appeal from the district court’s denial of his motion for preliminary injunction.

Defendants argue that Plaintiff’s appeal became moot when the district court

dismissed the underlying complaint. We agree. The district court’s dismissal of

the action represented a final judgment that Plaintiff was not entitled to the

permanent relief sought in his complaint. That decision rendered moot the issue

before us on appeal—whether Plaintiff should be granted preliminary relief

pending a final judgment. See, e.g., Baker v. Bray, 701 F.2d 119, 122 (10th Cir.

1983) (“[T]he claim upon which the request for a preliminary injunction was

based . . . was dismissed by the district court, and this action certainly mooted the

issue raised herein.”)

      Plaintiff contends, however, that the appeal is not moot, because the

problems he has alleged are “capable of repetition yet evading review” and

therefore fall within an exception to the mootness doctrine. “This exception

applies when: (1) the duration of the challenged action is too short to be fully


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litigated prior to its cessation or expiration, and (2) there is a reasonable

expectation that the same complaining party . . . [will] be subjected to the same

action again.” United States v. Seminole Nation of Oklahoma, __ F.3d __, No.

01-7108, 2002 WL 31895070 at *2 (10th Cir. Dec. 31, 2002) (internal quotation

marks omitted). We do not believe that this exception applies here. Plaintiff’s

appeal did not become moot because his alleged injuries had ended, and Plaintiff

has not shown that his injuries are of the type that “evade review” by ceasing

before they can be fully litigated. On the contrary, Plaintiff has initiated

continued litigation with respect to the harassment he has allegedly suffered. He

states that in August 2002 he re-filed his Bivens suit in district court after having

exhausted his administrative remedies.

      We thus conclude that Plaintiff’s interlocutory appeal became moot when

the district court dismissed his Bivens action. Accordingly, Defendants’ motion

to dismiss appeal as moot is GRANTED. Plaintiff’s motion to consolidate

successive docket numbers of same case is DENIED.

                                         ENTERED FOR THE COURT



                                         Harris L Hartz
                                         Circuit Judge




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