F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 16, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOHN CHARLES GAU THIER,
Plaintiff-Appellant,
v. No. 06-7049
(D.C. No. 05-CV -268-FHS-SPS)
BILL REYNOLDS, W arden’s (E.D. Okla.)
Assistant at H.M .C.C.; HA SKELL
HIGG INS, W arden; SCOTT
M EACHAM , State Finance Director;
RON W ARD, Director, D .O.C.;
JIM RABON, Administrator of
D.O.C.; DAVID HENEKE, Director,
B oard of C orrections; V IC D.
W ILLIAM S, D.O.C. Correctional
Officer,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.
*
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
John Charles Gauthier, a recently paroled state prisoner proceeding pro se,
appeals the district court’s dismissal of his civil rights case. 1 In his 42 U.S.C.
§ 1983 complaint, Gauthier asserted that defendants had violated his rights by
taking various actions against him, including, but not limited to, confiscating his
legal materials, demoting him and transferring him from a correctional center to
the Oklahoma State Prison, unconstitutionally retaliating against him for his
litigation activities, reducing his earned credits, denying him access to a law
library that he also alleges w as inadequate, and unreasonably and illegally
depleting his prison trust fund. The district court dismissed M r. Gauthier’s
complaint after finding that he had “failed to make any viable argument that he
has exhausted his administrative remedies as to all of his claims.” R. doc. 45 at
4-5.
At the time of the district court’s M ay 2006 ruling, precedent in this circuit
required a prisoner to plead exhaustion with specificity or face dismissal of his
complaint under 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act
(PLRA). See Steele v. Fed. Bur. of Prisons, 355 F.3d 1204, 1210 (10th Cir.
2003). W e later clarified that this exhaustion requirement mandated total
exhaustion of every claim alleged in a complaint. Ross v. County of Bernalillo,
1
The district court granted M r. Gauthier’s m otion to proceed on appeal in
form a pauperis under 28 U .S.C. § 1915. W e remind M r. Gauthier that he must
continue making payments on his appellate filing fee until the entire balance is
paid.
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365 F.3d 1181, 1190 (10th Cir. 2004). Thus, a district court was required to
dismiss in its entirety a prisoner complaint containing one or more unexhausted
claims. Id.
Because the Supreme Court in Jones v. Bock, 127 S. Ct. 910, 921, 923-24
(2007), rejected the rulings in both Steele and Ross, neither the pleading
requirement of Steele nor the total-exhaustion requirement of Ross remains good
law. See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)
(acknowledging overruling of Steele); Freeman v. Watkins, 479 F.3d 1257, 1259
(10th Cir. 2007) (acknowledging overruling of both Steele and Ross).
In some rare cases, the district court may be able to discern from the face
of a complaint that a prisoner has failed to exhaust administrative remedies and
that he has no legitimate reason for failing to exhaust. Aquilar-Avellaveda,
478 F.3d at 1225. W e have reviewed M r. G authier’s complaint, see R. tab 1, and
find it unclear as to whether he has satisfied PLRA’s exhaustion requirement as to
all of his claims or w hether particular circumstances excuse compliance. On
remand, defendants, who have the burden of proof on the exhaustion issue, may
choose to raise exhaustion as an affirmative defense. Roberts v. Barreras,
No. 05-2373, 2007 W L 1113956, at *4, *7 (10th Cir. Apr. 16, 2007).
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Accordingly, we REVERSE and VACATE the district court’s order
dismissing M r. Gauthier’s complaint and REM AND to the district court for
further consideration in accordance with Jones v. Bock and this order and
judgment.
Entered for the Court
M ary Beck Briscoe
Circuit Judge
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