Strope vs. McKune, No. 05-3344 (10th Cir. 2007)

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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS April 9, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court M ICHA EL LEE STR OPE, also known as Gordon E. Strope, Plaintiff - Appellant, v. No. 05-3344 (D.C. No. 04-CV-3204-JTM ) (D . Kan.) DAVID R. M cKUNE, W arden, Lansing C orrectional Facility; JASON SU TTLEY, Officer, Lansing C orrectional Facility; TA BO R M EDILL, Counselor, Lansing Correctional Facility; R. SUTTLES, Counselor, Lansing Correctional Facility; FRANK DORION, Kitchen M anager, Lansing Correctional Facility; DUA NE M UCKENTHALER, Counselor, Lansing Correctional Facility; CO LLETTE W INKELBAUER, Classification Staff, Lansing C orrectional Facility; ANN M CDOW ELL, Lansing Correctional Facility; W ILLIAM CU M M INGS, Assistant for the Secretary of Corrections; M IKE NEVE, Deputy W arden, Lansing Correctional Facility, in their individual capacities, Defendants - Appellees. OR D ER AND JUDGM ENT * * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Before KELLY, O BRIEN, and TYM KOVICH, Circuit Judges. ** Plaintiff-Appellant M ichael Lee Strope, a state inmate appearing pro se, appealed the district court s dismissal of his civil rights action against State corrections personnel, without prejudice, and the denial of his motion to reconsider. The district court s dismissal was predicated on a total exhaustion requirement for § 1983 suits involving prison conditions. See 42 U.S.C. § 1997e(a); Ross v. County of Bernalillo, 365 F.3d 1181, 1189-90 (10th Cir. 2004), overruled by Jones v. Bock, 127 S. Ct. 910 (2007); Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1211 (10th Cir. 2003), overruled by Jones v. Bock, 127 S. Ct. 910 (2007); see also Freeman v. W atkins, F.3d , 2007 W L 779273, at *2 (10th Cir. 2007) (noting that Jones v. Bock overruled R oss and Steele); Aquilar-Avellaveda v. Terrell, 478 F.3d 1223 (10th Cir. 2007) (same). W e affirmed, noting that it appeared that M r. Strope had not exhausted all of his claims w hen he filed his complaint and that evidence concerning his attempts to exhaust came too late given summary judgment proceedings. Strope v. M cKune, No. 05-344, 2006 W L 246138, at *1 (10th Cir. Feb. 2, 2006), vacated 127 S. Ct. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. -2- 1215 (2007). The Supreme Court vacated our judgment for reconsideration in light of Jones v. Bock and we recalled our mandate. W e now reverse the district court s orders dismissing and denying reconsideration and remand this case for reconsideration in light of Jones v. Bock. W e remind M r. Strope that he must continue to make partial payments until the entirety of his appellate filing fee balance is paid. REVERSED. The district court s orders dismissing the action and denying reconsideration are VACATED, and the case is REM ANDED, for proceedings consistent with this Order and Judgment. Entered for the Court Paul J. Kelly, Jr. Circuit Judge -3-

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