                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            JAN 31 2002
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 KODI A. THOMAS,
             Plaintiff-Appellant,                       No. 01-3276
 v.                                            (D.C. No. 00-CV-3259-GTV)
 (FNU) CARSON, 1st Sergeant; (FNU)                      (D. Kansas)
 SOUKUP, Colonel; (FNU) JONES,
 Colonel; AL HUNGERFORD, Unit
 Team Manager; and (FNU)
 VANMOOSE, Unit Team Counselor,
             Defendants-Appellees.


                          ORDER AND JUDGMENT *


Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      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 42 U.S.C. § 1983 civil rights appeal. Mr.


      *
       This order and judgment is not binding precedent, except under the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.
Thomas seeks damages and injunctive relief on his claim that prison officials are

not adequately protecting him or his family from harm. The district court denied

Mr. Thomas’s motion for a temporary restraining order or preliminary injunction

for failure to show that he is facing actual and imminent harm. The district court

dismissed Mr. Thomas’s complaint for failure to exhaust administrative remedies,

noting that Mr. Thomas did not have standing to raise the issue of failure to

protect his family. Mr. Thomas appealed to this court.

      Mr. Thomas’s constitutional claims require him to exhaust available

administrative remedies. See Booth v. Churner, 532 U.S. 731 (2001). We agree

with the district court that, since Mr. Thomas failed to pursue his grievances to

the Secretary of the Kansas Department of Corrections, he failed to exhaust

available administrative remedies. Therefore, his complaint must be dismissed. 1

      We review a district court’s denial of a preliminary injunction for an abuse

of discretion. Duvall v. Keating, 162 F.3d 1058, 1062 (1998). Mr. Thomas’s

request for a temporary restraining order or preliminary injunction requires him to

show that four conditions are met: (1) irreparable harm to Mr. Thomas if the

injunction is not granted; (2) a substantial likelihood that he will prevail on the

merits; (3) threatened injury to Mr. Thomas outweighs possible harm to the


      1
          We are in receipt of Mr. Thomas’ “Affadavit for Safety II.” Mr. Thomas
is still required to exhaust available administrative remedies before pursing his
claims in federal court.

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opposing party if the injunction is granted; and (4) that the injunction would not

be contrary to the public interest. ACLU v. Johnson, 194 F.3d 1149, 1155 (1999).

As evidenced above by our denial of Mr. Thomas’s appeal, Mr. Thomas has not

made the requisite showing that he is likely to succeed on the merits of his

constitutional claims. Therefore, we cannot say that the district court abused its

discretion in denying Mr. Thomas’s motion.

      After a thorough review of the briefs and the record, and for substantially

the same reasons set forth in the district court’s well-reasoned July 26, 2001

Order, we hold that no relief is available to Mr. Thomas.

      Appellant’s complaint is DISMISSED. Appellant’s motion for a temporary

restraining order or preliminary injunction is DENIED.

      We remind Appellant that because his motion to proceed in forma pauperis

on appeal was granted, he must continue making partial payments on court fees

and costs previously assessed until such have been paid in full.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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