                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          APR 8 2005
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 JAMES R. DUNCAN,

           Plaintiff - Appellant,
                                                        No. 04-1419
 vs.                                             (D.C. No. 02-F-561 (BNB))
                                                         (D. Colo.)
 CAPTAIN GIBSON; CAPTAIN
 MIRCHEIA,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


       Plaintiff-Appellant James Duncan, a state inmate appearing pro se, appeals

from the district court’s grant of summary judgment in favor of the defendant

prison officials in his § 1983 action.

       The parties are familiar with the facts and we need not restate them here.


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Upon reviewing the record, we are satisfied that the district court was correct in

granting summary judgment in favor of Defendants-Appellees as Mr. Duncan

failed to exhaust administrative remedies. See Porter v. Nussle, 534 U.S. 516,

532 (2002); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Even

assuming that Mr. Duncan was affirmatively misled by prison officials that his

excessive force claim could not be grieved (thereby excusing the exhaustion

requirement), he has failed to demonstrate a genuine issue of material fact on that

claim. See Fed. R. Civ. P. 56(e). Given the nature of this case, we refuse to

appoint counsel. See Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991)

(identifying factors courts consider in deciding whether to appoint counsel in civil

cases).

      Mr. Duncan’s motion to proceed on appeal without prepayment of fees is

GRANTED, his motion for reconsideration of appointment of counsel is

DENIED, and the district court’s judgment is AFFIRMED. Mr. Duncan is also

reminded that he is obligated to make partial payments to this court until the

entire appellate filing fee is paid in accordance with 28 U.S.C. § 1915(b).


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge



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