                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     January 11, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court



K Y LE L. H O U STO N ,

          Plaintiff-Appellant,

          v.

C. SH AM ES (Physican [sic] at
DRDC); FRED G. HUDSO N (Provider                        No. 06-1104
at DRDC); LOUIS CABILING (Doctor                       (D. Colorado)
at T.C.F.); KIM ORTEZ (Clinical                 (D.C. No. 05-CV-1405-ZLW )
Supervisor); BETTY ESQUIBEL
(Provider at T.C .F.); A . A N D ERSON
(R.N. at T.C.F.); DEBOR AH L.
BERRY (Provider at T.C.F.); and
VERNON M CDOW ELL (Case
M anager FM CC),

          Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R , and M CCO NNELL, Circuit Judges.


      After examining appellant’s brief and the appellate record, this court has

determined unanimously that oral argument would not materially assist the




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
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.

      Proceeding pro se, state prisoner Kyle Lee Houston appeals the district

court’s dismissal of the civil rights complaint he brought pursuant to 42 U.S.C.

§ 1983. Houston’s original complaint was signed by him on July 7, 2005, and

received by the district court on July 11, 2005. The district court concluded

Houston’s complaint was deficient because it did not state w ith specificity

whether he had exhausted his administrative remedies with respect to his Eighth

Amendment claims. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210

(10th Cir. 2003). Accordingly, the court ordered Houston to file an amended

complaint.

      In his amended complaint, Houston alleged Defendants violated his Eighth

Amendment rights by denying adequate medical treatment for (1) a prior injury to

his foot, (2) diabetes, (3) hypertension, and (4) stomach and abdominal pain. He

asserted he had attempted to exhaust administrative remedies with respect to these

claims but the prison staff failed to respond to his grievances within the required

time period. The district court, however, noted that Houston had initiated

administrative proceedings only after he filed his original complaint. The court

dismissed Houston’s complaint, concluding he had failed to exhaust his

administrative remedies before initiating his federal lawsuit.




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      Houston then filed a document titled, “M otion For Reconsideration,” which

the district court properly construed as a motion seeking relief from the judgment

pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. 1 The district

court denied the motion, noting that relief under Rule 60(b) is appropriate only in

extraordinary circumstances and concluding Houston had failed to demonstrate

the existence of such extraordinary circumstances. See Allender v. Raytheon

Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006).

      This court conducts a de novo review of a dismissal for failure to exhaust

administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th

Cir. 2002). W e review the denial of a Rule 60(b) motion for an abuse of

discretion. Allender, 439 F.3d at 1242. On appeal, Houston asserts D efendants

conspired to prevent him from exhausting his administrative remedies but

provides no factual basis for this assertion. He also argues a plaintiff proceeding

pursuant to 42 U.S.C. § 1983 is not obligated to exhaust administrative remedies.

It is well-settled, however, that a prisoner must exhaust administrative remedies

before filing a § 1983 lawsuit related to prison conditions. Steele, 355 F.3d at



      1
       The federal rules do not recognize a motion to reconsider. A litigant
seeking reconsideration must file a motion to alter or amend judgment pursuant to
Fed. R. Civ. P. 59(e), or a motion seeking relief from judgment under Fed. R. Civ.
P. 60(b). Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). A
Rule 59(e) motion must be filed within ten days of the entry of judgment, and if
timely, it tolls the time for filing the notice of appeal under Fed. R. App. P.
4(a)(4). A motion for reconsideration filed after the ten-day period is construed
as a motion seeking relief from judgment under Rule 60(b). Id.

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1207 (“Under the plain statutory language and the Supreme Court case law, the

substantive meaning of [42 U.S.C.] § 1997e(a) is clear: [R]esort to a prison

grievance process must precede resort to a court.” (quotation omitted)).

      Having review ed the entire record and considering Houston’s appellate

arguments, we conclude the district court did not err when it dismissed Houston’s

complaint without prejudice for failure to exhaust administrative remedies.

Further, the district court did not abuse its discretion when it denied H ouston’s

M otion for Reconsideration. Accordingly, we affirm the dismissal of Houston’s

complaint and the denial of his Rule 60(b) motion. Houston’s application to

proceed in forma pauperis on appeal is granted, but he is reminded that he

remains obligated to continue making partial payments until his appellate filing

fee is paid in full. See 28 U.S.C. § 1915(b).

                                        ENTERED FOR THE COURT


                                        M ichael R. M urphy
                                        Circuit Judge




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