                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                       October 14, 2005
                                  TENTH CIRCUIT
                                                                        Clerk of Court


ALBERT MATHEWS,

          Plaintiff-Appellant,

v.

COLORADO DEPARTMENT OF
CORRECTIONS; GARY WATKINS,                             No. 05-1010
Warden, Fremont Correctional                       (District of Colorado)
Facility; TIMOTHY GREEANY, Dr.,                    (D.C. No. 04-Z-1301)
Medical Staff; LOTTIE BECK;
CONNIE BATSON; DAVE HOLT;
THERESA MECHE; CAPT.
DANSDILL; LT. McGINNISS; SGT.
BABCOCK,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, 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       This order and judgment is not binding precedent, except under the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. 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.
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 Albert Mathews appeals the district

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

1983. Mathews’ complaint contained two claims: (1) Defendants deprived him of

his Eighth Amendment right to be free from cruel and unusual punishment when

they required him to clean a prison dumpster containing caustic chemicals without

providing him with protective clothing, and (2) Defendants were deliberately

indifferent to his medical needs when they refused to adequately treat the skin

disorder he developed after the dumpster incident. Mathews submitted

documentation indicating that he exhausted his administrative remedies only with

respect to his Eighth Amendment, medical-care claim. The district court

dismissed Mathews’ complaint without prejudice, concluding he had failed to

exhaust his administrative remedies as to his claim that his Eighth Amendment

rights were violated when Defendants required him to clean the dumpster without

protective clothing. See Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th

Cir. 2004) (“If a prisoner does submit a complaint containing one or more

unexhausted claims, the district court ordinarily must dismiss the entire action

without prejudice.”).




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       This court reviews a dismissal for failure to exhaust de novo.          See Miller v.

Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000).          On appeal, Mathews does not

make any reasoned argument that he exhausted his Eighth Amendment claim

premised on his alleged exposure to toxic chemicals in the prison dumpster.

Accordingly, we conclude that the district court did not err when it dismissed

Mathews’ complaint without prejudice and           affirm the district court’s order.    See

Ross , 365 F.3d at 1190. Mathews’ 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



                                           Michael R. Murphy
                                           Circuit Judge




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