                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JUL 20 2004
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 CLYNTON CHASE,

           Plaintiff - Appellant,

 v.                                                       No. 04-3031
                                                  (D.C. No. 02-CV-3264-GTV)
 LEE CONNER, Warden, United States                          (D. Kan.)
 Penitentiary, Leavenworth; A. W.
 BEEZY, Associate Warden, United
 States Penitentiary, Leavenworth;
 (FNU) JONES, Unit Manager, United
 States Penitentiary, Leavenworth;
 (FNU) TALHAM, Acting Unit
 Manager, United States Penitentiary,

           Defendants - Appellees.


                              ORDER AND JUDGMENT           *




Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.



          Clynton Chase, a prisoner appearing pro se, brought a civil rights complaint

maintaining that prison officials were deliberately indifferent to his medical needs



      The case is unanimously ordered submitted without oral argument pursuant
      *

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
and failed to protect him from a fellow inmate. On November 26, 2002, the

district court dismissed Chase’s complaint without prejudice for failure to exhaust

administrative remedies under 42 U.S.C. § 1997e(a), as amended by the Prison

Legal Reform Act of 1995. Chase appeals from that order; we exercise

jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

      Chase brought claims under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), stating that he was assaulted

by a cellmate and seeking damages under the Eighth Amendment for deliberate

indifference by prison officials. Because Chase is a prisoner, however, he must

exhaust the available administrative remedies prior to seeking relief in court. 42

U.S.C. § 1997e(a). With respect to this requirement, Chase acknowledged that he

did not pursue administrative remedies on his claim. In his complaint, Chase

explained that he “felt these matters could no longer be resolved on an

administrative level.” (Compl. at 5.) The district court noted that a prisoner must

exhaust administrative remedies in all circumstances, see Booth v. Churner, 532

U.S. 731, 740–41 (2001), and it dismissed the complaint without prejudice.

      On appeal, Chase does not contest the district court’s finding that he failed

to exhaust administrative remedies; rather, he asserts that he “requested that the

District Court reopen [his] case under the discretion of Motion to Reconsideration

to allow [him] the time to exhaust the administrative remedies.” (Appellant’s Br.

at 4.) While we must affirm the district court’s dismissal, we stress that the
dismissal was without prejudice. Thus if Chase timely exhausts his administrative

remedies in the future, he may again pursue the underlying complaint in federal

district court.

       Finally, we note that Chase has yet to make partial payments on the fee for

this appeal; we remind him that he is obligated to continue making payments until

the entire fee has been paid.



                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge
