                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         OCT 8 2002
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 BRENT A. ELLIS,

             Plaintiff-Appellant,

 v.

 JAY SHELTON, Warden, Norton
 Correctional Facility; PATRICIA
                                                       No. 02-3081
 HUFFMAN, Senior Warden, FCCFW;
                                               (D.C. No. 01-CV-3116-GTV)
 ROBERT PURDUE, Deputy Warden,
                                                       (D. Kansas)
 Norton Correctional Facility;
 ROBERT STEPHENSON, I&I Lt.,
 Norton Correctional Facility; SANDY
 HUSTED, Mailroom Officer, Norton
 Correctional Facility; MARGARET
 VSETECKA, Mailroom Officer,
 Norton Correctional Facility;
 JEFFERY DILLMAN, Assistant
 Warden; and ANITY DEMBEC,
 FCCFW,

             Defendants-Appellees.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.




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       This order and judgment is not binding precedent, except under the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

The case is therefore ordered submitted without oral argument.

      This is a pro se state prisoner § 1983 civil rights appeal. Appellant sought

recognition by the state prison that an inmate in a Virginia prison is his common-

law wife. Appellant also sought injunctive relief requiring Appellees to validate

his common-law marriage or to allow Appellant to enter into a proxy marriage.

Prison regulations prohibit corresponding with another prisoner unless that

individual is one’s spouse or part of one’s immediate family, at penalty of

disciplinary action. While prison regulations require recognition of a common-

law spouse when the relationship was entered into prior to incarceration, the

regulations do not require such recognition for a common-law marriage that

commenced after incarceration began.

      Appellant also claimed retaliatory discipline and sought monetary damages.

The district court dismissed the complaint, finding no constitutional deprivation

in the regulations as applied to Appellant under these circumstances. In addition,

the district court held that Appellant had not administratively exhausted his claim

of retaliation. This appeal followed.

      The appeal was abated pending district court consideration of Appellant’s

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Fed. R. Civ. P. 59(e) motion which claimed that the regulations impose an

unconstitutional interference with his right to marry. The district court granted

the post-judgment motion, re-characterizing the dismissal as without prejudice, to

allow Appellant to attempt to receive administrative remedy. The abatement was

discharged and the appeal went forward.

      We have carefully reviewed the briefs, the district court’s disposition, and

the record on appeal. Nothing in the record or the briefs indicates that Appellant

has fully exhausted his administrative remedies. The Prison Litigation Reform

Act states that “[n]o action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a prisoner confined

in any jail, prison, or other correctional facility until such administrative remedies

as are available are exhausted.” 42 U.S.C. § 1997e(a) (2002).

      Apparently, Appellant has continuously claimed that Appellees have

refused to recognize his common-law marriage with the prisoner in Virginia.

However, Appellant has submitted nothing to prove that this common-law

marriage existed prior to his incarceration. Additionally, we cannot find any

documents supporting Appellant’s claim that he exhausted the procedure for

obtaining a proxy marriage. Appellant also has not exhausted his administrative

remedies for his claim that the Kansas regulations are unconstitutional.

Therefore, for substantially the same reasons as set forth by the district court in


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its Orders of February 21, 2002, and June 24, 2002, we hold that no relief is

available to Mr. Ellis pursuant to § 1983.

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

Immediate Restraining Order is DENIED. Appellant’s renewed Motion for

Appointment of Counsel is DENIED. Appellant’s renewed Motion for Default

Judgment is DENIED.

       We remind Appellant that because his motion to proceed without

prepayment of the appellate filing fee was 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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