* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GREG BRUMLEY, Plaintiff - Appellant, vs. SUSAN GABRIEL, Classifications Manager, EDCF; MICHAEL A. NELSON, Warden; DALE FRAZIER, Unit Team Manager; WILLIAM ADKINS, Unit Team; DAVID R. MCCUNE, Warden, LCF; (NMI) HERSH, Unit Team, LCF; (NFN) RUTLEDGE, Unit Team, LCF; JOHN DOES, Un-named Kansas Department of Corrections Employees, all in their individual capacities, Defendants - Appellees. No. 97-3051 (D.C. No. 96-CV-3318) (D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges. **- 2 -

Mr. Brumley, an inmate appearing pro se and in form a pauperis, appeals from the denial of his motion for reconsideration. He seeks declaratory, injunctive and compensatory relief from various Kan sas prison officials. He contends that a requirement that he participate in a sexual offenders treatment program while in prison violates several constituti onal provisions, as well as various state statutory and regulatory provisions. See generallyNeal v. Shimoda , 131 F.3d 818 (9th Cir. 1997). Because he has not a greed to participate in the program, he alleges that he has been subject to adv erse classification decisions (from Level III to Level I), withholding of good ti me credits, and inability to be considered for a job. He relies heavily upon Payne v. Kansas Parole Bd. , 887 P.2d 147, 151 (Kan. Ct. App. 1994), which held thatprogram participation requirements as a condition of parole eligibility d o not apply retroactively to those convicted prior to enactment. The district court never reached the merits, holdin g that Mr. Brumley had failed to exhaust administrative remedies in accord ance with 42 U.S.C. § 1997e(a). Judgment was entered on July 5, 1996. Mr. Brumley moved for an extension of time to file a motion for reconsiderat ion, but not before the ten day period in Fed. R. Civ. P. 59(e) had expired. There after, Mr. Brumley’s motion for reconsideration was filed, correctly construed as aFed. R. Civ. P. 60(b) motion, and denied by the district court.- 3 -

Our review is for an abuse of discretion. AlthoughMr. Brumley did not allege exhaustion, he included in his complaint a d escription of his efforts to bring his claims to the attention of prison authori ties, see I R. doc. 2, ¶ 10(b-i), and a decision by the warden rejecting his claims, see id. exh. H. In his motion for reconsideration, Plaintiff acknowledged that hi s attempts to exhaust have been informal. See I R. doc. 8, ¶ 5(b) (“With no adequate formal admi nistrative remedy available to him, Plaintiff has attempted to informally resolve this issue for eight months . . . .). In that motion he urged that (1) § 1997e did not apply because this was a Bivens action, (2) under prior law, the district court co uld have continued the action pending exhaustion and must do so now, (3) the federal courts have a duty to exercise jurisdiction, (4) exhaustion would be futile because no administrative remedy is available and the Kansa s Department of Corrections has predetermined the issue. Grounds (1) - (3) are meritless, and the district court did not abuse its discretion in concluding that exh austion should be required. AFFIRMED. All pending motions are denied.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge