*This order and judgment is not binding precedent, except under the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

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*

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges. 

After examining appellant’s brief and the appellate record, this court has

determined unanimously that oral argument would not materially assist the
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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.

Proceeding pro se, state prisoner Albert Mathews appeals the district

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 and unusual punishment when

they required him to clean a prison dumpster containing caustic chemicals without

providing him with protective clothing, and (2) Defendants 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 administrative remedies only with

respect to his Eighth Amendment, medical-care claim. The district court

dismissed Mathews’ complaint without prejudice, concluding he had failed to

exhaust his administrative remedies as to his claim that his Eighth Amendment

rights were violated when Defendants required him to 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.”). 
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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 Eighth 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 continue

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