Milligan v. Reed

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 16, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
M ICHA EL M ILLIG A N ,
Petitioner-A ppellant, No. 07-1024
v. (D . of Colo.)
B ILL REED , N A TH A N A LG IEN, (D.C. No. 06-cv-911-ZLW -BNB)
JO HN DOE, and ENDRE SAM U, in
their individual capacities,
Respondents-Appellees.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
M ichael M illigan, proceeding pro se, appeals the district court’s dismissal
of his 42 U.S.C. § 1983 and 28 U.S.C. § 1343 action, generally alleging
retaliation and violations of his First and Eighth Amendment rights. M illigan
originally filed a pro se complaint, an amended complaint, and a supplemental
*
This order and judgment is not binding precedent except under the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.
**
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.
complaint. On July 12, 2006, the district court ordered M illigan to file a second
amended complaint using a court-approved form. M illigan complied with that
order, but on September 11, 2006, a magistrate judge filed an order to show cause
requiring M illigan to establish why the second amended complaint should not be
dismissed for failure to exhaust administrative remedies.
After reviewing M illigan’s response, the district court then determined that
M illigan failed to complete grievance procedures for three of his seven claims.
Based on our prior precedent requiring that a prisoner demonstrate exhaustion of
administrative remedies for every claim in a complaint, the district court
dismissed M illigan’s second amended complaint. See Steele v. Fed. Bureau of
Prisons, 355 F.3d 1204, 1209–10 (10th Cir. 2003) (holding prisoners have the
burden of pleading exhaustion) and Ross v. County of Bernalillo, 365 F.3d 1181,
1189 (10th Cir. 2004) (holding prisoner must exhaust remedies on all claims
presented). The district court also denied M illigan’s motion to reconsider and
motion for leave to proceed in form a pauperis, ruling that the appeal was not
taken in good faith. See 28 U.S.C. § 1915(a)(3).
W e recently recognized that the Supreme Court’s decision in Jones v. Bock,
127 S. Ct. 910 (2007), overruled both Steele and Ross. See Freeman v. Watkins,
479 F.3d 1257 (10th Cir. 2007). Accordingly, M illigan need not show in his
complaint that he has administratively exhausted his claims. See Jones, 127 S.
Ct. at 921. Rather, defendants should now raise failure to exhaust as an
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affirmative defense. See id. Furthermore, M illigan may proceed on his exhausted
claims even if he has not exhausted others. See id. at 923–26.
In light of the foregoing discussion, we V ACATE the district court’s
decision and REM AND for further proceedings in accordance with Jones v. Bock.
W e further grant M illigan’s renewed motion for leave to proceed in forma
pauperis. W e remind M illigan of his obligation under this decision to continue
making partial payments on the filing fee until the entire fee has been paid.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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