Slip Opinions Home
Page | Keyword | Case | Docket | Date: Filed / Added |    Download WordPerfect version (14201 bytes)     Download RTF version (8824 bytes)






JOE ORTIZ, Executive Director, CDOC; GARY WATKINS, Warden, Fremont Corr. Fac.; DR. CHARLES OLIN, Dir. Mental Health Svcs., FCF; RONALD WILKES, Captain/Laundry Supervisor, FCF; and MATT GOMEZ, Sgt./Laundry Supervisor, FCF, individually and in their official capacities,


No. 06-1278

(D.C. No. 05-cv-02498-ZLW)



Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

Robert W. Rosberg, Jr., a pro se state prisoner,(1) brought a complaint in the district court asserting a violation of his constitutional rights pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343. The district court dismissed his claims for failure to demonstrate exhaustion of administrative remedies. We vacate the district court's order and remand for further consideration.

Mr. Rosberg, a Colorado state prisoner, filed an action in district court alleging a violation of his Eighth Amendment right to be free from cruel and unusual punishment. The court noted that prisoners must exhaust administrative remedies before challenging prison conditions in federal court. See 42 U.S.C. § 1997e(a). The court then cited our holding in Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1211 (10th Cir. 2003), which requires that prisoners demonstrate exhaustion in their complaint by "either attach[ing] copies of administrative proceedings or describ[ing] their disposition with specificity." The court held Mr. Rosberg "failed to exhaust the [Colorado Department of Correction]'s grievance procedure," and dismissed his action on those grounds. Rec., vol. I, doc. 14 at 3. See also id. doc. 16 (denying Mr. Rosberg's motion to reconsider).

The Supreme Court recently held failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a) is an affirmative defense and not a pleading requirement. Jones v. Bock, 127 S. Ct. 910, 921 (2007). We have since recognized that Jones overruled the pleading requirement outlined in Steele, the basis for the district court's dismissal of Mr. Rosberg's complaint. See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). As we said in Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007), "it is no longer appropriate for the district court to require an affirmative showing of exhaustion at this stage of the case."

Because Mr. Rosberg has demonstrated the existence of "a reasoned, nonfrivolous argument on the law and the facts in support of the issues raised on appeal," McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812-13 (10th Cir. 1997), we GRANT his request to proceed ifp. In light of the recent rulings discussed above, we VACATE the district court's order and judgment of dismissal, and REMAND to the district court for further proceedings.


Stephanie K. Seymour

Circuit Judge

Click footnote number to return to corresponding location in the text.

*.After examining appellant's brief and the 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) and 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1.Because he is proceeding pro se, we review Mr. Rosberg's filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Slip Opinions Home
Page | Keyword | Case | Docket | Date: Filed / Added |    Download WordPerfect version (14201 bytes)     Download RTF version (8824 bytes)
Comments to: WebMaster, ca10 [at]
Updated: April 25, 2007.
HTML markup © 2007, Washburn University School of Law.