*This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 23 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
GREGORY D. COSMO COSBY, Plaintiff-Appellant,
v. J. KNOWLES, Warden; J.M. GRECO, Associate Warden; RUTLEDGE, Admin. Captain; CHRIS EICHENLAUB, Unit Mgr., E/B Unit, Defendants-Appellees. No. 97-1400 (D.C. No. 97-D-1842) (D. Colo.)

ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Cosby is a federal prisoner. He filed a pro se complaint alleging a civil rights deprivation pursuant to Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971). The district court entered an order dismis sing the complaint without prejudice, which Mr. Cosby appeals.
Mr. Cosby’s complaint alleged the prison officials failed to “respond to the grievance denying the request for hygience [sic] pr oducts to be purchase [sic] by the plaintiff.” He wished to purchase “[l]otion, [ s]hampoo, [d]eodorant, or skin care products for his body.”
Mr. Cosby applied for permission to proceed with hi s litigation in the district court in forma pauperis . The district court served Mr. Cosby with written notice informing him he would not be allowed to do so unless he produced a certified copy of his prisoner trust fund account s tatement for the preceding sixmonth period. Mr. Cosby failed to comply with thi s requirement. Mr. Cosby’s Bivens action was then dismissed by the district court fo r failure to comply with the provisions of 28 U.S.C. § 1915(a)(2), which req uires submission of “a certified copy of the trust fund account statement ... for ... the 6-month period immediately preceding the filing of the complaint.”-3-

At the same time, the trial court ruled Mr. Cosby’s complaint lacked merit because he had failed to exhaust his administrative remedies. The trial court noted Mr. Cosby is a prisoner challenging the condi tions of his confinement pursuant to federal law. Relying upon 42 U.S.C. § 1997e(a), which provides such an action may not be brought “until such administrative remedies as are available are exhausted,” the court concluded Mr. Cosby had f ailed to exhaust. The trial court correctly spelled out the requirements for exhaustion, see 28 C.F.R. §§ 542.14 - 542.15, in its order and further spelled o ut where Mr. Cosby’s actions fell short.
Mr. Cosby has filed a motion for leave to proceed in forma pauperis on his appeal of the district court’s order. His motion w as denied by the trial court, in part due to Mr. Cosby’s failure to attach certifiedtrust fund statements for the six-month period immediately preceding the filing. We agree. Mr. Cosby has not met the requirements for prisoners who seek to appeal a civil action judgment in forma pauperis. 28 U.S.C. § 1915(a)(2). For this reason he cannot proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1). We deny his request and di smiss the appeal.
Even if we were to reach the merits in this case, h owever, we would affirm-4-

the district court’s order. Mr. Cosby argues he ha d administratively exhausted his claim, as he wrote asking for approval to buy his “ hygience products,” and his inability to purchase his skin care products amount s to cruel and unusual punishment. For the reasons outlined by the distri ct court, this action does not suffice to exhaust Mr. Cosby’s administrative remed ies. Mr. Cosby has failed to convince us of any error.
Mr. Cosby’s appeal to this court is frivolous and l acks merit. Because we dismiss the appeal based on our denial of Mr. Cosmo’s request to proceed in forma pauperis , we will not count this as a “prior occasion” unde r the Prison Litigation Reform Act. See 28 U.S.C. § 1915(g) (establishing a prior occasion must be “dismissed on the grounds that it is frivol ous, malicious, or fails to state a claim upon which relief may be granted”).
Mr. Cosmo's request to proceed in forma pauperis is DENIED , and the appeal is DISMISSED
.

Entered for the Court
WADE BRORBY United States Circuit Judge