FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED ST ATES COURT OF APPEALS 

TENTH CIRCUIT 

May 27, 2005 

PATRICK FISHER 

Clerk 

KIRM GARRETT KA TH, 

Plaintiff-Appellant, 

V. 

MR. IPPOLITO, Health Care 

Administrator; DOCTOR KRAUS, 

Health Care Provider, 

Defendants-Appellees. 

No. 04-1493 

(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.l(G). The case is 

therefore ordered submitted without oral argument. 

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

*This order and judgment is not binding precedent, except under the 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 I 0th Cir. R. 36.3. 

Appellate Case: 04-1493 Document: 010110642486 Date Filed: 05/27/2005 Page: 1
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 

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Appellate Case: 04-1493 Document: 010110642486 Date Filed: 05/27/2005 Page: 2
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. 

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Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

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