                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                DEC 21 2004
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 ANDREW SEAN LEAHY,

           Plaintiff - Appellant,

 v.                                                         No. 04-1216
                                                             (Colorado)
 DOCTOR McCALLON, Medical                               (D.Ct. No. 03-Z-2521)
 Doctor at B.V.C.F.,

           Defendant - Appellee.


                              ORDER AND JUDGMENT *


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



       After examining the briefs and 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. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

       Andrew Sean Leahy, a state prisoner at the Sterling Correctional Facility in



       *
        This order and judgment is not binding precedent except under the doctrines of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; nevertheless, an order may be cited under the terms and conditions of
10th Cir. R. 36.3.
Sterling, Colorado, filed a §1983 action 1 on December 11, 2003, alleging Dr.

McCallon of the Buena Vista Correctional Facility violated his Eighth

Amendment rights by acting with deliberate indifference toward his medical

needs while he was in Dr. McCallon’s care in September, 2001. On February 24,

2004, the magistrate judge, to whom the matter had been referred, ordered Leahy

to file an amended complaint in order to (1) clearly and concisely set forth his

claims and (2) demonstrate he exhausted his administrative remedies for each

claim asserted. On March 25, 2004, Leahy filed his amended complaint. On

April 16, 2004, the district court dismissed Leahy's complaint for failure to

exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). Specifically,

the court concluded Leahy waited more than two years before filing a grievance

against Dr. McCallon, well beyond the thirty days allotted for filing a grievance

with corrections officials.

      Leahy then filed a notice of appeal from the decision dismissing his

complaint and an application to take his appeal in forma pauperis. See 28 U.S.C.

§ 1915; F ED . R. A PP . P. 24. On July 6, 2004, the district court certified the appeal

was not taken in good faith because Leahy had "not shown the existence of a

reasoned, non-frivolous argument on the law and facts in support of the issues

raised on appeal." (R. Doc. 16.) Therefore, it denied the application to proceed


      1
       42 U.S.C. § 1983 (civil rights action against state actor).

                                            -2-
in forma pauperis. See 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in

forma pauperis if the trial court certifies in writing that it is not taken in good

faith.”). Leahy renews his application for leave to proceed in forma pauperis in

this court and also seeks appointment of counsel. Reviewing de novo a district

court's finding of failure to exhaust administrative remedies under 42 U.S.C. §

1997e(a), Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), and

exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      Having reviewed Leahy's opening brief, we, like the district court, cannot

discern a reasoned, non-frivolous argument on the law and facts in support of the

issues he raises on appeal. We are at a loss as to why we should excuse Leahy’s

complete lack of diligence in filing a grievance against Dr. McCallon (or any

other corrections official) given his allegation he suffered a serious injury

requiring surgery.

      Accordingly, we AFFIRM the order of the district court dismissing

Leahy’s complaint. We DENY Leahy’s application to proceed in forma pauperis

and motion for appointment of counsel. Leahy is ordered to pay the full appellate

filing fee within twenty (20) days of this order.

                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge



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