Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.felix Gomez, Plaintiff-appellant, v. B. Thomas, Lt., G.l. Henman, and Floyd Gardner, Captain,defendants-appellees, 933 F.2d 1019 (10th Cir. 1991)

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); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff-appellant Felix Gomez filed this action pursuant to 28 U.S.C. § 1331 seeking declaratory and injunctive relief and monetary damages. The district court dismissed the action without prejudice, noting plaintiff had failed to exhaust his administrative remedies.

The record reveals plaintiff had in fact not exhausted the administrative remedies available to him at the time the district court entered its order on January 14, 1991. Prison officials indicated they were conducting an ongoing investigation concerning this matter. The district court properly dismissed this case. See McCarthy v. Maddigan, 914 F.2d 1411, 1412 (10th Cir. 1990).

On appeal, plaintiff claims he received verification on February 25, 1991 indicating all avenues of administrative relief had been exhausted. The district court dismissed this case without prejudice, thus allowing plaintiff to file a new action after all administrative remedies have been exhausted. If plaintiff believes his claims are meritorious and he has in fact exhausted his administrative remedies, he must file a new action with the district court rather than pursuing this case on appeal.

Plaintiff has failed to present a reasoned argument on the law and facts in support of the issues raised on appeal. We therefore deny plaintiff leave to proceed in forma pauperis on appeal. Coppedge v. United States, 369 U.S. 438 (1962). We waive the fees, reach the merits of this appeal, and AFFIRM. The mandate shall issue forthwith.