* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### May 27, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
KIRM GARRETT KATH, Plaintiff-Appellant,
v. No. 04-1493 MR. IPPOLITO, Health Care Administrator; DOCTOR KRAUS, Health Care Provider, Defendants-Appellees. (D.C. No. 04-Z-568) (D. Colo.)

ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and MURPHY , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Kirm Kath, a federal prisoner appearing pro se, app eals the district court’s2

denial of his motion to reconsider its dismissal of his civil rights complaint without prejudice for failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a). We exercise jurisdiction under 28 U.S. C. § 1291 and affirm. Kath brought his claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), alleging he suffered severe debilitating back pain and seeking damages under th e Eighth Amendment for deliberate indifference to his medical condition by prison officials. Kath contended he had exhausted his administrative remed ies as required by 42 U.S.C. § 1997e(a) because he complained to the prison ward en and medical personnel about inadequate medical care. He also provided co pies of inmate requests he had submitted for medical care. Alternatively, Kath ar gued that prisoners who assert Eighth Amendment claims are not required to exhaustadministrative remedies prior to filing suit. The district court rejected these contentions, finding that Kath had not filed a formal grievance regarding his medi cal care and concluding the action should be dismissed for failure to exhaust. Kath filed a motion to reconsider, which the distri ct court construed as a motion under Rule 60(b) because more than ten days had passed since entry of the original order. See Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991). In his motion to reconsider, Kath alleged h e had since completed exhaustion of his administrative remedies. The dis trict court found that Kath3

failed “to allege any extraordinary circumstances t hat would justify a decision to reconsider and vacate the order,” ROA, Doc. 15 at 2 , as provided under Massengale v. Oklahoma Bd. of Examiners in Optometry , 30 F.3d 1325, 1330 (10th Cir. 1994). The district court did not abuse its discretion in denying the motion to reconsider. See id. The district court correctly concluded that Kath’ s filing of a motion to reconsider was not the proper vehicle forreinstituting his action. Kath’s motion to reconsider did not present the typ e of extraordinary circumstances that give rise to Rule 60(b) relief. If Kath has in fact exhausted his administrative remedies, he may refile his complain t and evidence that exhaustion. We AFFIRM the denial of Kath’s motion to reconsiderand the dismissal of Kath’s action for substantially the same reasons as set forth in the district court’s orders dated July 19, 2004, and October 29, 2004.

Entered for the Court Mary Beck Briscoe Circuit Judge