* This order and judgment is not binding precedent, e xcept under the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

### SEP 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
MICHAEL SEAN EDMOND,

Plaintiff-Appellant,

v. CORRECTIONS CORPORATION OF AMERICA, doing business as National Registered Agents, Inc.; WILLIAM WILSON, JR., Warden of the Bent County Correctional Facility,

Defendants-Appellees. No. 98-1062 (D.C. No. 97-D-1883) (D. Colo.)

ORDER AND JUDGMENT *

Before ANDERSON, BARRETT, and TACHA , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 Appellant filed his motion to reconsider more than ten days after the court’s

judgment had entered; it is therefore properly cons trued as a motion pursuant to Fed. R. Civ. P. 60(b). An appeal from the denial o f such a motion “raises for review only the district court’s order of denial an d not the underlying judgment itself.” Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991). The wording of appellant’s notice of appeal suggests th at he may have intended to appeal from the underlying order of dismissal as we ll as from the order denying his motion for reconsideration. We need not concer n ourselves with appellant’s intent, however, because he filed his notice of app eal too late to appeal from the underlying dismissal. -2- this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff-Appellant Michael Sean Edmond appeals fro m the district court’s order denying his motion for reconsideration of its order dismissing his civil rights complaint, which he brought pursuant to 42 U.S.C. § 1983. 1 The district court dismissed his complaint sua sponte for failur e to exhaust administrative remedies. See 42 U.S.C. § 1997e(a). Appellant admitted in his c omplaint that he had not exhausted his administrative remedies throu gh the prison grievance process. He explained that some of his grievances had gone unanswered, and that he had been transferred to a new place of incarceration before he had the opportunity to complete the grievance process. In ordering the dismissal of his complaint, the district court found that appellant failed to actively proceed with his grievances through the process provided to him.-3-

In his motion for reconsideration, appellant presented additional arguments concerning his failure to exhaust his administrativ e remedies. He argued, inter alia, that the prison administration had hindered h is ability to exhaust his claims; that he could no longer exhaust the claims because they were time-barred under the inmate grievance procedure; and that 42 U.S.C. § 1997e(a) is unconstitutional. Without considering the merits of his new arguments , the district court concluded that the points which appellant presented should have or could have been argued in his complaint. Accordingly, it denied his motio n for reconsideration. We review this decision for abuse of discretion. See United States v. Castillo-Garcia , 117 F.3d 1179, 1197 (10th Cir.), cert. denied , 118 S. Ct. 395 (1997). It appears that in denying the motion for reconside ration, the district court relied on our principle that “arguments raised for the first time in a motion for reconsideration are not properly before the court a nd generally need not be addressed.” Id. That principle is inapplicable here because of appellant’s pro se status and the sua sponte dismissal of his complaint. Appellant had no opportunity to present argument concerning exhausti on other than in his motion for reconsideration. We nevertheless affirm the order of dismissal. We have reviewed each of appellant’s arguments concerning the exhaustion iss ue and have determined that2 The Order to Show Cause dated May 15, 1998, is disc harged. Appellant is

reminded, however, of his continued duty to make pa rtial payments toward the scheduled filing fee for this action. See 28 U.S.C. § 1915(b)(2). -4- they lack merit. The district court acted within i ts discretion in denying appellant’s motion for reconsideration. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED. 2

Entered for the Court

Deanell Reece Tacha Circuit Judge