FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 8, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MAURICE L. MILES, JR.,
Plaintiff - Appellant,
v. No. 17-3100
(D.C. No. 5:16-CV-03152-SAC-DJW)
(FNU) CONRAD, Deputy, Reno County (D. Kan.)
Sheriff's Department, in his official
capacity; (FNU) SWONGER, Deputy,
Reno County Sheriff's Department, in his
official capacity; (FNU) MONDRAGON,
Deputy, Reno County Sheriff's
Department, in his official capacity; (FNU)
CARDER, Sergeant, Reno County Sheriff's
Department, in his official capacity,
Defendants - Appellees.
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ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
_________________________________
Plaintiff Maurice L. Miles, Jr., acting pro se, appeals the dismissal of his claim
under 42 U.S.C. § 1983 by the United States District Court for the District of Kansas.
The district court held that it was clear from the face of Plaintiff’s complaint that he did
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under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.
not exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a). We have
jurisdiction under 28 U.S.C. § 1291 and reverse.
“[F]ailure to exhaust is . . . an affirmative defense rather than a pleading
requirement.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
Therefore, the district court may sua sponte raise the question of failure to exhaust only
when the “complaint [makes] it clear through . . . affirmative statements that [the
plaintiff] ha[s] not exhausted his administrative remedies.” Id. We have cautioned
against such sua sponte dismissals because “determin[ing] whether an inmate has
exhausted his administrative remedies requires an understanding of the remedies
available and thus likely would require information from the defendant as well as the
inmate.” Id. at 1225–26 (internal quotation marks omitted). Further, “courts . . . are
obligated to ensure that any defects in exhaustion were not procured from the action or
inaction of prison officials.” Id. at 1225.
Plaintiff, a pretrial detainee in the Reno County Jail in Hutchinson, Kansas, filed
his first pro se § 1983 complaint on July 13, 2016, against a sergeant and three deputies
in the jail, alleging that they failed to protect him from an assault by his cellmate and then
failed to offer medical treatment. The complaint asserts that Plaintiff filed a grievance
but was told the matter was not a grievable issue.
The district court sent Plaintiff a notice of deficiency, requiring that he file his
complaint on the proper form. He did so on July 29, 2016. The new complaint repeats
the essentials of his original claim, but with much less detail. On the portion of the form
that states, “I have previously sought informal or formal relief from the appropriate
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administrative officials regarding the acts complained of,” Plaintiff did not check either
the “yes” or “no” box, and lines for further explanation were left blank. Aplt. App.
Vol. 1 at 28.
The district court did not explain why it found the Plaintiff’s complaint to be
facially deficient with regard to exhaustion of administrative relief. We assume that in
looking at the second complaint the court found the blank administrative-relief section to
be sufficient for a dismissal under 42 U.S.C. § 1997e(a). But that silence in the
complaint does not suffice. See Aquilar-Avellaveda, 478 F.3d at 1225 (“Because [the
plaintiff’s] complaint was silent as to whether he had exhausted his administrative
remedies—which is acceptable under [Supreme Court authority]—the district court erred
in requesting [the plaintiff] to supplement the record on that issue.”). Moreover,
Plaintiff’s original complaint specifically alleges the filing of a grievance, denial of the
grievance, and dismissive responses from the defendants. It appears from the omission of
detail concerning his claim in the new complaint that Plaintiff thought his original
complaint was still to be considered by the court. Because “we must construe a pro se
appellant’s complaint liberally,” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007), we
are particularly reluctant to agree that Plaintiff has conceded that he failed to exhaust his
administrative remedies. Thus, his complaint did not warrant sua sponte dismissal under
42 U.S.C. § 1997e(a).
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We REVERSE the district court’s dismissal and GRANT Plaintiff’s motion to
proceed in forma pauperis.
Entered for the Court
Harris L Hartz
Circuit Judge
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