UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES RALPH DAWSON, JR.,

Plaintiff-Appellant,

v.

ROBERT TAYLOR; RONALD CARTER; DEBBIE OUTEN; RICHARD MISCHIARA; JOHN BOWKER,

Defendants-Appellees.

No. 04-1183

(D.C. No. 99-M-148 (BNB))

(D. Colo.)

ORDER AND JUDGMENT*

Before EBEL, BALDOCK, and KELLY, 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. 34.1(G). The case is therefore ordered submitted without oral argument.

James Ralph Dawson, Jr., appeals the dismissal of his civil rights action, with prejudice, for lack of exhaustion. We reverse to allow the district court to examine the status of Mr. Dawson's claims in light of this court's decision in Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), which was issued after the district court rendered its decision in this matter.

In Ross, we held that mixed complaints–complaints that include both exhausted and unexhausted claims–should be dismissed without prejudice. Id. at 1190. We also held that a grievance adjudicated on the merits, even if untimely, could satisfy the exhaustion requirement. Id. at 1186. And we held that, under some circumstances, an inmate need not complete every stage of the grievance process in order for administrative remedies to be considered exhausted. Id. at 1187.

Our review of the record on appeal indicates that at least one of Mr. Dawson's claims (the November 13, 1998 transfer) may have been timely grieved. Supp. Docs. A1, A2, A3; Tr. at 6; see also Aplee. Br. at 5. Thus, it appears that Mr. Dawson may have properly exhausted his remedies with regard to this issue. In addition, in light of Ross, there may be questions whether certain other claims were properly exhausted.1 Given these potential issues, we feel that Mr. Dawson's arguments regarding exhaustion will benefit from further exploration at the district court level.

Once the district court has determined which, if any, claims are properly exhausted, it should proceed accordingly. If all of Mr. Dawson's claims are fully exhausted, then the district court can proceed to the merits. If the district court remains convinced that some or all of Mr. Dawson's claims are unexhausted, an appropriate remedy is dismissal of the entire complaint without prejudice. Ross, 365 F.3d at 1190. Or if it finds that the complaint is a mixed complaint, the district court may give Mr. Dawson an opportunity to voluntarily dismiss his unexhausted claims and proceed with his exhausted claims. Cf. Rose v. Lundy, 455 U.S. 509, 510 (1982) (applying similar remedy in habeas case).2

Defendants-Appellees' motion to supplement the record is GRANTED. Mr. Dawson's motion to proceed on appeal in forma pauperis is GRANTED, and he is reminded that he is obligated to continue making partial payments until the entire appellate filing fee has been paid. The judgment of the district court is REVERSED and REMANDED for further proceedings. The mandate shall issue forthwith.

Entered for the Court

Bobby R. Baldock

Circuit Judge