Rosberg vs. Ortiz, No. 06-1278 (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 ROBERT W . ROSBERG, JR., Plaintiff-Appellant, v. JOE ORTIZ, Executive D irector, CDOC; GARY W ATKINS, W arden, Fremont Corr. Fac.; DR . CH AR LES OLIN, Dir. M ental Health Svcs., FCF; RONALD W ILKES, Captain/Laundry Supervisor, FCF; and M ATT G OM EZ, Sgt./Laundry Supervisor, FCF, individually and in their official capacities, No. 06-1278 (D.C. No. 05-cv-02498-ZLW ) (Colorado) Defendants-Appellees. ORDER AND JUDGMENT * Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges. * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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. 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. W e vacate the district court s order and remand for further consideration. M r. 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 M r. 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 M r. 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). W e have since 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). -2- recognized that Jones overruled the pleading requirement outlined in Steele, the basis for the district court s dismissal of M r. Rosberg s 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. Because M r. Rosberg has 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), w e G R A NT his request to proceed ifp. In light of the recent rulings discussed above, we VAC ATE the district court s order and judgment of dismissal, and R EM A N D to the district court for further proceedings. ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge -3-

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