* This order and judgment is not binding precedent, e xcept under the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

### FEB 9 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
ADAM DMYTRYSZYN,

Plaintiff-Appellant,
v. BOB HICKOX; ARISTEDES W. ZAVARAS; ROY ROMER, Governor,

Defendants-Appellees. No. 98-1052 (D.C. No. 97-D-2225) (D. Colo.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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.-2-

Plaintiff appeals the district court’s sua sponte d ismissal of his 42 U.S.C. § 1983 action as frivolous. See 28 U.S.C. § 1915(e)(2)(B) (Supp. 1998). We affirm, but for reasons other than those relied upon by the district court. See, e.g. , United States v. Myers , 106 F.3d 936, 941 (10th Cir. 1997) (appellate court is free to affirm for any reason supported by recor d). The Prisoner Litigation Reform Act (PLRA) provides that “a prisoner confined in any jail, prison, or other correctional facility” may not bring an “action . . . with respect to prison conditions und er section 1983 . . .” if he has not first exhausted his administrative remedies. 42 U. S.C. § 1997e(a) (Supp. 1998);
see Garrett v. Hawk , 127 F.3d 1263, 1265 (10th Cir. 1997). This exhau stion requirement applies to plaintiff’s claim challengin g the amount of compensation he received for work performed outside the prison. Cf. 18 U.S.C. § 3626(g) (Supp. 1998) (defining, in another section of PLRA, “‘civil action with respect to prison conditions’” to mean “any civil proceeding arising under Federal law with respect to the conditions of confinement or the eff ects of actions by government officials on the lives of persons confined in prison”). See generally People v. Miller , 747 P.2d 12, 14 (Colo. Ct. App. 1987) (under Colo rado law, inmate remains “under confinement” despite non-resident st atus in community corrections facility and including work release).-3-

In his complaint, plaintiff acknowledged that he h ad not exhausted his administrative remedies, making only conclusory all egations that pursuit of such remedies might be futile. See Brown v. Toombs , 139 F.3d 1102, 1104 (6th Cir.) (prisoner must allege and show he has exhausted allavailable administrative remedies), cert. denied , 119 S. Ct. 88 (1998). Those allegations are insu fficient to excuse plaintiff’s failure to exhaust. See, e.g. , Wendell v. Asher , 162 F.3d 887, 892 (5th Cir. 1998). We therefore, AFFIRM the district court’s dismissa l of plaintiff’s § 1983 cause of action, but we REMAND to the district court to dismiss specifically without prejudice. See Brown , 139 F.3d at 1104. The mandate shall issue forthwith.

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