Freeman vs. Watkins, No. 06-1394 (10th Cir. 2007)

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F IL E D United States Court of Appeals Tenth Circuit PUBLISH March 16, 2007 U N IT E D ST A T E S C O U R T O F A PP E A L S Elisabeth A. Shumaker Clerk of Court T E N T H C IR C U IT R USSELL E. FR EEM A N , Petitioner-A ppellant, v. GARY W ATKINS, Fremont Correctional Facility W arden, GLORIA M ASTERSO N, Fremont Correctional Facility Associate W arden, M ICHAEL CLARK, Fremont Correctional Facility Corrections Officer, Rec, LISA LEHN, Fremont Correctional Facility Lieutenant, CHARLES TAPPE, Fremont Correctional Facility Hearing Officer, BRIAN BRADEN, Fremont Correctional Facility Life Safety C oordinator, C HU CK D O N LEY, Fremont Correctional Facility Captain, M ARIA BORK, Fremont Correctional Facility Corrections Officer, DONNIE M cCLURE, Fremont Correctional Facility Corrections O fficer, D ARRYL DIRECTO, Fremont Correctional Facility Lieutenant, B ETTY RIGGIN, Frem ont Correctional Facility Lieutenant, JOH N C ARRO LL, Fremont Correctional Facility Case M anager III, RO BERT LEW IS, Fremont Correctional Facility Case M anager, LARRY REID, Colorado State Penitentiary W arden, CATHIE SLACK, Colorado State Penitentiary Associate W arden, JOE ORTIZ, No. 06-1394 Colorado Departm ent of Corrections Executive D irector, LIEU TEN ANT DEPPE, Frem ont Correctional Facility Lieutenant, CA THIE HO LST, Departm ent of Correction Law Librarian, CH AR LES GIGA NTE, Fremont Correctional Facility Captain, ROBERT ALLEN, Fremont Correctional Facility Associate W arden, ANGEL M EDINA, Colorado State Penitentiary Security M ajor, and A N Y A ND A LL O TH ER JO H N DOES, severally and jointly in their official capacity, Defendants-Appellees. A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T FO R T H E D IST R IC T O F C O L O R A D O (D .C . N O . 06-CV -405-Z ) Russell E. Freeman, appearing pro se. Before T A C H A , Chief Judge, H A R T Z , and T Y M K O V IC H , Circuit Judges. * T Y M K O V IC H , Circuit Judge. * After examining appellant s brief and the appellate record, this threejudge 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- Russell E. Freeman, a Colorado state prisoner, files this pro se appeal of the district court s dism issal of his civil rights case. In his 42 U.S.C. § 1983 complaint, Freeman asserted six violations of his constitutional rights: (1) denial of due process in connection with three disciplinary convictions, (2) cruel and unusual punishm ent based on the conditions of his confinement, (3) retaliation by the defendants, (4) unequal treatm ent based on his ethnic origin, (5) deprivation of personal property, and (6) denial of access to courts. A m agistrate judge ordered Freeman to file an am ended com plaint alleging specific facts (1) supporting the claim s he is asserting, (2) demonstrating how each defendant personally participated in the alleged constitutional violations, and (3) clarifying how he has exhausted the adm inistrative rem edies for each claim . Although Freem an s am ended com plaint sufficiently com plied with the m agistrate judge s first two requirements, he failed to demonstrate that he exhausted administrative remedies for all of his claim s. The district court found that Freeman properly exhausted remedies on his first claim the validity of disciplinary convictions, but failed to do so on his rem aining five claim s. Because Freeman failed to comply with our total exhaustion requirement for prisoner § 1983 claim s, the district court then dism issed the complaint and the entire action without prejudice. Freeman appeals the district court s determ ination. As he proceeds pro se, we construe his pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th -3- Cir. 1998). In this appeal, Freeman argues that the district court erred in (1) applying the total exhaustion requirement to his § 1983 action; (2) raising the exhaustion requirement sua sponte, holding that it is not an affirm ative defense, and placing the burden of establishing it on Freeman; (3) divesting itself of subject m atter jurisdiction based on the failure to exhaust; (4) finding that Freeman did not exhaust his available remedies; and (5) denying his m otion for leave in form a pauperis (IFP). Under the prior precedent of this circuit, Freeman s claim s would have been unavailing. In Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir. 2004), we construed the Prison Litigation Reform Act (PLRA) to append a total exhaustion requirement to § 1983 actions. Section 1997e(a) of Title 42 provides that [n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] . . . until such adm inistrative rem edies as are available are exhausted. W e interpreted this to require a prisoner to exhaust rem edies on all his claim s or face dism issal. Thus, if a prisoner subm its a complaint containing one or m ore unexhausted claim s, the district court m ust generally dism iss the entire action without prejudice. Id. Next, in Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209 (10th Cir. 2003), we parted com pany with those circuits interpreting § 1997e(a) s exhaustion requirem ent as an affirm ative defense. See, e.g., W yatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). Rather, we concluded that § 1997e(a) -4- charged prisoners with the burden of pleading exhaustion and a com plaint that fails to allege the requisite exhaustion of rem edies is tantam ount to one that fails to state a claim upon which relief m ay be granted. Steele, 355 F.3d at 1210. Consequently, prisoners m ust either attach copies of administrative proceedings or describe their disposition with specificity. Id. at 1211. Failure to so plead or demonstrate exhaustion would foreclose litigation of the claim s. The purpose of these two practices w as to reduce the burden of prisoner litigation on the courts and was consistent with the PLRA s m andate to judicially screen frivolous prisoner suits. Nevertheless, during the pendency of Freem an s appeal, the Suprem e Court handed down a decision which effectively overruled both Ross and Steele. In Jones v. Bock, W arden, 127 S. Ct. 910 (2007), the Court resolved the circuit splits surrounding these two issues and (1) found that the failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints, id. at 921, and (2) specifically abrogated the total exhaustion requirement, id. at 923 26. In concluding that exhaustion is an affirmative defense to be asserted and pleaded by defendants, the Court noted that under the Federal Rules of Civil Procedure practice a complaint requires only a short and plain statement of the claim, Rule 8(a), and exhaustion is usually treated as an affirmative defense, Rule 8(c). Id. at 919. The Court reasoned that, without specific leave from the -5- PLRA, courts should not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns. Id. The Court also disagreed with our interpretation of § 1997e(a) s no action shall be brought in Ross. W hile w e construed no action to mean a prisoner s entire case should be dismissed if it contained any unexhausted claim, the C ourt found this to be only boilerplate language. Id. at 924. Instead, it found that statutory references to an action have not typically been read to mean that every claim included in the action must meet the pertinent requirement before the action may proceed. Id. Furthermore, the Court dismissed our policy argument that total exhaustion furthers the PLRA s screening purpose. See Ross, 365 F.3d at 1190. On the contrary, the Court felt the rule could lead prisoners into filing separate suits with varying claims to avoid the harsh results of the total exhaustion requirement. Jones, 127 S. Ct. at 925 26. Accordingly, the C ourt mandated, if a complaint contains both good and bad claims, . . . court[s] proceed[] with the good and leave[] the bad. Id. at 924. Since Jones overrules Steele and Ross, we have no choice but to reverse the district court s order dismissing Freeman s action. See Acquilar-Avellaveda v. Terrell, No. 06-3334, 2007 W L 646150 at *2 (10th Cir. M ar. 5, 2007) ( Steele is no longer good law. ). Freeman no longer has the duty of pleading exhaustion, and therefore it is no longer appropriate for the district court to require an -6- affirmative showing of exhaustion at this stage of the case. As Jones makes clear, exhaustion is an affirmative defense and defendants now have the burden of asserting the failure to exhaust in their response pleadings. As we found in Acquilar-Avellaveda, this holding does not wholly foreclose the district court s ability to raise sua sponte the exhaustion requirement. If it is clear on the face of Freeman s complaint that he had not exhausted his administrative remedies, then the district court properly 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 Freeman. AcquilarAvellaveda, 2007 W L 646150 at *2. Nevertheless, we caution that only in rare cases w ill 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 w ithout a valid excuse. Id. Our decision today does not reach whether Freeman s complaint is susceptible to a sua sponte order to present information on exhaustion. Since we vacate the district court s findings on the issue of exhaustion in their entirety, we need not consider Freeman s other exhaustion-related claims. Finally, Freeman claims the district court failed to supply the reasons for denying his IFP motion in violation of Federal Rule of Appellate Procedure 24(a)(2). Rule 24(a)(2) states, [i]f the district court denies the motion [to -7- proceed in forma pauperis], it must state its reasons in writing. In its order denying Freeman s IFP motion, the district court held that Freeman s appeal is not taken in good faith because Plaintiff has not shown the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal. W hile we would ordinarily find such an explanation sufficient to satisfy Rule 24(a)(2), in this case, we grant Freeman s renewed IFP motion because the district court s conclusion likely rested on our now-superceded precedent. Consistent with the reasons set forth above, we VACATE the district court s decision and REM AND for further proceedings in accordance with Jones v. Bock. W e further GRANT Freeman s renewed IFP motion and remind him that he is obligated to make partial payments on the filing fee until the entire fee has been paid. -8-

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