Mr. Clark, proceeding pro se, filed this 42 U.S.C. § 1983 action in 2004, naming as defendants the Colorado Department of Corrections and various employees. He alleged that the defendant officials were deliberately indifferent to his medical needs because (1) he was denied effective medication for severe back and leg pain for an extended period of time, and his necessary back surgery was improperly delayed; and (2) after his eventual surgery, he did not receive in a timely manner prescribed pain medication, orthopedic shoes, certain hose for his legs, a leg brace, or a medical pillow.

The district court dismissed Mr. Clark's claims without prejudice because he failed to exhaust administrative remedies as to his first claim. In a prior order and judgment, we affirmed the district court's decision. See Clark I, 151 Fed. Appx. 630. We reasoned that "the [Prison Litigation Reform Act] contains a total exhaustion requirement, and . . . the presence of unexhausted claims in [a prisoner]'s complaint require[s][a] district court to dismiss his action in its entirety without prejudice." Id. at 632 (quoting Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004)).

In its order granting Mr. Clark's petition for a writ of certiorari, the Supreme Court instructed this court to reconsider his claims in light Jones v. Bock, 127 S. Ct. 910 (2007). Clark II, 127 S. Ct. 1352.

In Jones, the Supreme Court held that prisoners need not specially plead that they have exhausted administrative remedies. See id. at 921. Instead, under the Prison Litigation Reform Act, the failure to exhaust administrative remedies is an affirmative defense. Id.

The Court also disagreed with the "total exhaustion" requirement that we established in Ross. Instead, the Supreme Court held "if a complaint contains both good and bad claims, . . . court[s] proceed[ ] with the good and leave[ ] the bad." Jones, 127 S. Ct. at 924. See Freeman v. Watkins, 479 F.3d 1257, 1259 (10th Cir. 2007) (observing that the Supreme Court's decision in Jones "effectively overruled" our decision in Ross ).

Although Jones did not specifically address the issue of the burden of proving exhaustion, we have subsequently held that, as an affirmative defense, exhaustion must be raised and proven by the defendants. Roberts, __ F.3d __ at *4.

However, we have also held that, if it is clear from on the face of a prisoner's complaint that he has not exhausted his administrative remedies, then the district court may raise the exhaustion question sua sponte, consistent with 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, and seek additional information from the prisoner. Aquilar-Avellaveda, 478 F.3d at 1226. Importantly, "[a] district court cannot dismiss the complaint without first giving the inmate an opportunity to address the [exhaustion] issue." Id. (internal quotation marks omitted). Moreover, "only in rare cases will a district court be able to conclude from the face of the complaint that a prisoner has not exhausted his administrative remedies and that he is without a valid excuse." Id. at 1225.

We therefore conclude that this case should be remanded to the district court for further proceedings in light of Jones, Roberts, and Aquilar-Avellaveda.

Mr. Clark has filed a motion seeking reimbursement from Appellees of his costs on appeal, specifically the filing fees. Costs are taxed against an appellee "if a judgment is reversed." Fed. R. App. P. 39(a)(3). In this instance, however, we have not reversed the judgment of the district court. Instead, we have vacated our judgment and remanded to the district court for consideration of precedent that did not exist at the time the district court entered its judgment.

When a judgment is vacated, "costs are taxed only as the court orders." Id. 39(a)(4). As a general matter, the only recoverable costs are those incurred in copying documents that this court requires parties to file. See id. 39(c); 10th Cir. R. 39.1. Mr. Clark has not provided an itemized and verified bill of costs demonstrating that he incurred any such costs. Fed. R. App. P. 39(d)(1). More importantly, however, even if he had incurred such costs, the circumstances under which we vacated our judgment are not such that an award of costs to Mr. Clark would be warranted.

To the extent that Mr. Clark seeks reimbursement for costs taxable in the district court, such as filing fees, see id. 39(e), the motion is denied without prejudice to refiling in the district court. To the extent that Mr. Clark seeks reimbursement for costs taxable in this court, the motion is denied.

Accordingly, we VACATE the district court's dismissal of Mr. Clark's complaint and remand the case for further consideration in accordance with Jones, Roberts, and Aquilar-Avellaveda. We DENY Mr. Clark's motion for costs, without prejudice to his seeking costs taxable in the district court.

Entered for the Court,

Robert H. Henry

United States Circuit Judge

^*. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and 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.

^2.After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

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