* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### October 14, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALBERT MATHEWS, Plaintiff-Appellant,

v. COLORADO DEPARTMENT OF CORRECTIONS; GARY WATKINS, Warden, Fremont Correctional Facility; TIMOTHY GREEANY, Dr., Medical Staff; LOTTIE BECK; CONNIE BATSON; DAVE HOLT; THERESA MECHE; CAPT. DANSDILL; LT. McGINNISS; SGT. BABCOCK, Defendants-Appellees. No. 05-1010 (District of Colorado) (D.C. No. 04-Z-1301)

ORDER AND JUDGMENT *

BeforeBRISCOE , LUCERO , and MURPHY , Circuit Judges.
After examining appellant’s brief and the appellate record, this court has determined unanimously that oral argument would notmaterially assist the-2-

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 ora l argument. Proceeding pro se , state prisoner Albert Mathews appeals the distric t court’s dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. Mathews’ complaint contained two claims: (1) Defendants deprived him of his Eighth Amendment right to be free from cruel an d unusual punishment when they required him to clean a prison dumpster contai ning caustic chemicals without providing him with protective clothing, and (2) Def endants were deliberately indifferent to his medical needs when they refused to adequately treat the skin disorder he developed after the dumpster incident. Mathews submitted documentation indicating that he exhausted his admi nistrative remedies only with respect to his Eighth Amendment, medical-care claim . The district court dismissed Mathews’ complaint without prejudice, con cluding he had failed to exhaust his administrative remedies as to his claimthat his Eighth Amendment rights were violated when Defendants required him t o clean the dumpster without protective clothing. See Ross v. County of Bernalillo , 365 F.3d 1181, 1190 (10th Cir. 2004) (“If a prisoner does submit a complaint containing one or more unexhausted claims, the district court ordinarily must dismiss the entire action without prejudice.”).-3-

This court reviews a dismissal for failure to exhaust de novo. See Miller v. Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000). On appeal, Mathews does not make any reasoned argument that he exhausted his Ei ghth Amendment claim premised on his alleged exposure to toxic chemicals in the prison dumpster. Accordingly, we conclude that the district court did not err when it dismissed Mathews’ complaint without prejudice and affirm the district court’s order. See
Ross , 365 F.3d at 1190. Mathews’ application to proceed in forma pauperis on appeal is granted , but he is reminded that he remains obligated to c ontinue making partial payments until his appellate filing fee is paid in full. See 28 U.S.C. § 1915(b).
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge