                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       October 3, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 R ALPH M ER CA D O ,

               Plaintiff-Appellant,

          v.                                            No. 06-1155
                                                    District of Colorado
 R. W ILEY, Present W arden; R.                 (D.C. No. 05-CV-2306-ZLW )
 HOOD, Pass [sic] W arden; M .
 BARBEE, Safety Specialist; R.
 BAUER, Health Services
 Administrator; CHUCK TURNER,
 Pass [sic] Facilities, M anager; M ARK
 M ASER, Heating Ventilation A/C
 Forem an; JO H N D OE #1, U nknown
 Facilities Officer; J. W ADAS,
 Correctional Officer; H. TRAPP, Pass
 [sic] N urse Practitioner; R . C URRIN,
 C orrectional O fficer; R . SM ITH,
 Educational Officer; HA RRELL
 W ATTS, Central Office
 A dm inistrator; JO H N O R JA N E DOE
 #2, Unknown,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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
                                                                       (continued...)
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      On November 15, 2005, Ralph M ercado, a federal prisoner proceeding pro

se, filed a civil rights complaint against various prison officials under Bivens v.

Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

He alleged that he did not receive immediate medical attention for an asthma

attack caused by chemical fumes emitted during a replacement of the hot water

heat exchanger in his prison unit. He also alleged that two of the defendants

conspired to make false statements on his medical records in response to his

grievance.

      The district court dismissed the action for failure to exhaust administrative

remedies with regards to his conspiracy claim. Although M r. M ercado appeals

the district court’s dismissal, his submissions to this Court articulate no grounds

for doing so. The order of dismissal is therefore affirmed.

      In conjunction with his brief on appeal, M r. M ercado filed a “M otion for

Leniency,” which explained that at the time the appeal was filed, he believed that

failure to appeal would result in his claims being time barred if he refiled after




      *
       (...continued)
conditions of 10th Cir. R. 36.3.




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exhausting administrative remedies. W e do not decide whether the statute of

limitations will have run if M r. M ercado refiles his claim, as it does not have

bearing on whether or not his appeal is frivolous. The motion before the court

does not appear to request any relief that we have authority to grant, and is

therefore denied.

      Because M r. M ercado fails to raise any nonfrivolous argument in support of

his appeal, see M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.

1997), we deny his M otion for Leave to Proceed on Appeal W ithout Prepayment

of Costs or Fees.

      The district court’s judgment is AFFIRM ED. Appellant’s “M otion for

Leniency” is DENIED. The Plaintiff’s M otion for Leave to Proceed on Appeal

W ithout Prepayment of Costs or Fees is DENIED. M r. M ercado shall remit the

full amount of the filing fee to the Clerk of the District Court within thirty (30)

days of this order, in accordance w ith his request in the M otion filed on A ugust

21, 2006. Any other motions are DENIED.



                                                Entered for the Court,

                                                M ichael W . M cConnell
                                                Circuit Judge




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