Childs vs. Ortiz, No. 06-1368 (10th Cir. 2007)

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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS April 24, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court JAM ES A . CH ILD S, Plaintiff-Appellant, v. JOE O RTIZ; BA RR Y PARD US; D EN N IS B UR BA N K ; R AN D Y FOSHEE; W ILLIAM RICH TER; T. K EELER; LT. H O LC OM B ; D ONNA M U RPH Y , et al.; M . WIN D EN ; STEVE OW ENS; DO NA LD M cCA LL; J. BRO WN ; SG T. SIM M O N S; K. M EYER; PH IL M ARM ALEJO; JULIE R USSELL; JA SO N ELSE; A N THONY DECESARO; KAREN COOPER; M ICHA EL A RELLA N O ; SH ERYL H EBER T; R . TWILLEG ER ; L.A. RA M IREZ, No. 06-1368 (D.C. No. 06-cv-741-ZLW ) (Colorado) Defendants-Appellees. ORDER AND JUDGMENT * * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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. Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges. James A. Childs, a pro se state prisoner, 1 brought a complaint in the district court challenging various conditions of his confinement. The district court dismissed his claims for failure to demonstrate exhaustion of administrative remedies. W e vacate the district court s order and remand for further consideration. M r. Childs, a prisoner in custody of the Colorado Department of Corrections, filed a multi-claim complaint in district court challenging the conditions of his imprisonment. Prisoners must exhaust administrative remedies before challenging prison conditions in federal court. See 42 U.S.C. § 1997e(a). Relying on 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 district court concluded M r. Childs failed to describe with specificity the exhaustion of each of his claims, and dismissed [M r. Childs claims] for failure to demonstrate exhaustion of the . . . administrative-grievance procedure. See Rec., vol. I, doc. 22 at 5. The Supreme Court recently held failure to exhaust administrative remedies 1 Because he is proceeding pro se, we review Mr. Child'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). -2- 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). W e have since recognized that Jones overruled the pleading requirement outlined in Steele, the basis for the district court s dismissal of M r. Childs complaint. See AquilarAvellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). As w e 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. In light of the recent rulings discussed above, we VAC ATE the district court s order and judgment of dismissal, and REM AND to the district court for further proceedings. 2 ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge 2 Because M r. Childs demonstrated the existence of a reasoned, nonfrivolous argument on the law and the facts in support of the issues raised on appeal, M cIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812-13 (10th Cir. 1997), we grant his request to proceed ifp. -3-

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