Rosberg v. Ortiz

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, No. 06-1278
Fremont Corr. Fac.; DR . CH AR LES (D.C. No. 05-cv-02498-ZLW )
OLIN, Dir. M ental Health Svcs., FCF; (Colorado)
RONALD W ILKES, Captain/Laundry
Supervisor, FCF; and M ATT G OM EZ,
Sgt./Laundry Supervisor, FCF,
individually and in their official
capacities,
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judgment is not binding precedent, except under the doctrines of law of the case,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).
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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 Aquilar-
Avellaveda 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
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