F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 1, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DO M INIC G RO LL,
Plaintiff - Appellant,
No. 06-1540
v. (D.C. No. 06-CV-1739-ZLW )
(D . Colo.)
BO BBY JOH NSON; JOE O RTIZ,
Defendants - Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **
Plaintiff-Appellant Dominic G roll, a state inmate appearing pro se, appeals
from the dismissal of his civil rights lawsuit pursuant to 42 U.S.C. § 1983. H e
complains that he was subjected to unsafe and discriminatory working conditions
and retaliated against for complaining about them w hile he was confined at the
Rifle C orrectional Center in Rifle, Colorado. The magistrate judge assigned to
*
This order and judgment is not binding precedent, except under the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.
the case ordered M r. Groll to show cause why his lawsuit should not be dismissed
for failure to exhaust administrative remedies. See id. § 1997e(a) (“No action
shall be brought w ith respect to prison conditions under . . . any . . . Federal law ,
by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available have been exhausted.”). M r. Groll filed a
response contending that he had exhausted his available remedies with respect to
one of the claims and that prison officials had prevented him from exhausting the
other. On December 4, 2006, the district court dismissed the lawsuit, holding that
M r. Groll had failed to abide by our total exhaustion requirement for prisoner
suits. See R. Doc. 7, at 3-4 (citing Ross v. County of Bernalillo, 365 F.3d 1181,
1189 (10th Cir. 2004)).
Less than a month later, the Supreme Court rejected the total exhaustion
rule in Jones v. Bock, — U.S.— , 127 S. Ct. 910, 924-26 (2007) (“[I]f a complaint
contains both good and bad claims, the court proceeds with the good and leaves
the bad.”). It further determined that exhaustion is an affirmative defense, not a
pleading requirement. Id. at 921. Thus, district courts now may raise exhaustion
sua sponte only in “rare cases” where “it is clear from the face of the complaint
that the prisoner has not exhausted his administrative remedies.” A quilar-
Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
This is not one of those rare cases. M r. Groll’s pro se complaint, which w e
construe liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972),
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documented the grievances he filed with respect to his working conditions, see R.
Doc. 3, at 4. Although M r. Groll did not allege that he exhausted his retaliation
claim, he attached a letter to Defendant W arden Bobby Johnson complaining
about the situation. See id. Ex. A. He later made clear that he had attempted to
pursue a retaliation grievance but that W arden Johnson refused to provide him
with a grievance form because his complaint did not raise a grievable issue. R.
Doc. 6, at 3. The Defendants have not responded to these allegations, nor have
they raised failure to exhaust as an affirmative defense. Accordingly, the district
court erred in dismissing M r. Groll’s lawsuit. See Freeman v. W atkins, 479 F.3d
1257, 1260 (10th Cir. 2007).
Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we VACATE the
decision below and REM AND for further proceedings. On remand, the
Defendants may raise any applicable defenses. M r. Groll’s motion to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915 is GRANTED, and he is reminded of
his obligation to continue making partial payments until the filing fee is paid in
full.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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