*This order and judgment is not binding precedent, except under the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

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, this 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). The case is

therefore ordered submitted without oral argument.

Kirm Kath, a federal prisoner appearing pro se, appeals the district court’s
2

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 the Eighth Amendment for

deliberate indifference to his medical condition by prison officials. Kath

contended he had exhausted his administrative remedies as required by 42 U.S.C.

§ 1997e(a) because he complained to the prison warden and medical personnel

about inadequate medical care. He also provided copies of inmate requests he had

submitted for medical care. Alternatively, Kath argued that prisoners who assert

Eighth Amendment claims are not required to exhaust administrative remedies

prior to filing suit. The district court rejected these contentions, finding that Kath

had not filed a formal grievance regarding his medical care and concluding the

action should be dismissed for failure to exhaust.

Kath filed a motion to reconsider, which the district 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 he had since completed

exhaustion of his administrative remedies. The district court found that Kath
3

failed “to allege any extraordinary circumstances that 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 for reinstituting his action. 

Kath’s motion to reconsider did not present the type of extraordinary

circumstances that give rise to Rule 60(b) relief. If Kath has in fact exhausted his

administrative remedies, he may refile his complaint and evidence that

exhaustion.

We AFFIRM the denial of Kath’s motion to reconsider and 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