                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            JAN 3 2003
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 GERALD WAYNE HANNAH,
             Plaintiff-Appellant,                       No. 02-1211
 v.                                            (D.C. No. 00-WM-848 (CBS))
 KATHLEEN HAWK, Director B.O.P.;                         (D. Colo.)
 R. T. HOLT, Warden, USP Florence;
 TERRY FINNEGAN, Florence Hosp.
 Admin.; ROBERT E. WILLIAMS, DO
 Clinical Director; P.A.’s Under Dr.’s
 Orders; DAVID R. REITER, PA;
 VICTOR BOUDET, PA; HASHIM
 ERZOUKI, PA; CELESTINO N.
 GARCIA, PA; MARVELYN
 GUIANG, PA; VALENTIN
 HERNANDEZ, PA; J. KNOWLES,
 Warden; and VIRGLILO D.
 CAMAGAY,
             Defendants-Appellees.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this panel has



      *
       This order and judgment is not binding precedent, except under the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.
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(G).

The case is therefore ordered submitted without oral argument.

      This is a pro se federal prisoner civil rights appeal seeking monetary

damages and injunctive relief claiming deliberate indifference to serious medical

needs and cruel and unusual punishment. Mr. Hannah specifically claims that

Defendants denied him treatment for a neck injury and failed to respond to

complaints of severe neck pain. The magistrate judge recommended that the

complaint be dismissed without prejudice for failure to exhaust administrative

remedies. The district court adopted the recommendation. Appellant then filed

untimely objections. Although untimely, the district court considered the

objections and again ordered the complaint dismissed without prejudice for

failure to exhaust administrative remedies. Mr. Hannah appeals to this court.

      After a thorough review of the briefs and the record, and for substantially

the same reasons set forth in the district court’s April 2, 2002, Order adopting the

magistrate judge’s well-reasoned report and recommendation, we hold that no

relief is available to Mr. Hannah. Appellant did not exhaust his administrative

remedies before filing this suit. However, since Appellant’s action was dismissed

without prejudice, he may choose to file a new action in the district court once he

exhausts his administrative remedies.


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       The decision of the trial court is AFFIRMED. Appellant’s letter of

September 3, 2002, construed as a motion to supplement the record on appeal

with attached supplementary material is DENIED. Appellant’s “Motion to

Supplement the Record and Remand Due to Completion of Administrative

Remedies” filed September 16, 2002, is DENIED. Appellant’s request for

appointment of counsel is DENIED. Appellant’s motion to proceed without

prepayment of the appellate filing fee is GRANTED; he must continue making

partial payments on court fees and costs previously assessed until such have been

paid in full.

                                             Entered for the Court



                                             Monroe G. McKay
                                             Circuit Judge




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