*

 This order and judgment is not binding precedent except under the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

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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case 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 dismissing 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] products 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 his 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 statement for the preceding sixmonth period. Mr. Cosby failed to comply with this requirement. Mr. Cosby’s

Bivens action was then dismissed by the district court for failure to comply with

the provisions of 28 U.S.C. § 1915(a)(2), which requires 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 conditions 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 failed 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 out 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 was denied by the trial court, in

part due to Mr. Cosby’s failure to attach certified trust 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 dismiss

the appeal.

Even if we were to reach the merits in this case, however, we would affirm
-4-

the district court’s order. Mr. Cosby argues he had administratively exhausted his

claim, as he wrote asking for approval to buy his “hygience products,” and his

inability to purchase his skin care products amounts to cruel and unusual

punishment. For the reasons outlined by the district court, this action does not

suffice to exhaust Mr. Cosby’s administrative remedies. Mr. Cosby has failed to

convince us of any error.

Mr. Cosby’s appeal to this court is frivolous and lacks 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” under 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 frivolous, 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