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Total Exhaustion Rule Should Apply Separately to Each Plaintiff

The Tenth Circuit Court of Appeals has held that when multiple prisoners
join in a civil rights complaint, but only one of those prisoners has
exhausted administrative remedies on all of the claims asserted, it is
error to dismiss the action for failure to exhaust against all the prisoners.

In this action, four Kansas prisoners filed a lawsuit against prison
officials to challenge rules that ban sexually explicit materials and that
require ten percent of all monies a prisoner receives be placed in a
mandatory prison savings account.

Only one prisoner had exhausted his administrative remedies on both claims
while the other three had exhausted only one of the claims. The Kansas
federal district court applied the "total exhaustion rule" and dismissed
the action against all prisoners without prejudice. The prisoners appealed.

The Tenth Circuit held it was proper to dismiss the action against the
prisoners who had not administratively exhausted all claims in the
complaint. The other prisoner, however, should not have been penalized for
his fellow plaintiffs' failure. The district court should have applied the
total exhaustion rule separately.

Accordingly, the district court's order was affirmed in part and reversed
in part. See: McGoldrick v. Werholtz, 185 Fed.Appx. 741 (10th Cir 2006)

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Related legal case

McGoldrick v. Werholtz

185 Fed.Appx. 741, 2006 WL 1704463 (C.A.10 (Kan.))

This case was not selected for publication in the Federal Reporter.

Please use FIND to look at the applicable circuit court rule before citing this opinion. Tenth Circuit Rule 36.3. (FIND CTA10 Rule 36.3.)

United States Court of Appeals,Tenth Circuit.

Brian McGOLDRICK; Tod Pabst; Marcus Washington; Jeffrey J. Sperry, Plaintiffs-Appellants,


Roger WERHOLTZ, Secretary, Kansas Department of Corrections, in his individual and official capacity, Defendant-Appellee.

No. 05-3438.

June 22, 2006.
*742 Brian McGoldrick, Lansing, KS, pro se.
Tod Pabst, Lansing, KS, pro se.
Marcus Washington, Lansing, KS, pro se.
Jeffrey J. Sperry, Lansing, KS, pro se.

Robert G. Allison-Gallimore, Ralph De Zago, Asst. Aty. Gen., Brian D. Sheern, Office of the Attorney General State of Kansas, Topeka, KS, for Defendant-Appellee.

Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


FN* 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. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.


**1 Plaintiffs Brian McGoldrick, Tod Pabst, Marcus Washington, and Jeffrey Sperry are state prisoners at the Lansing Correctional Facility in Lansing, Kansas. Defendant Roger Werholtz is the Secretary of Corrections for the Kansas Department of Corrections. Appearing pro se, plaintiffs appeal from the order and the related judgment entered by the district court dismissing without prejudice all of the claims asserted in their complaint under 42 U.S.C. § 1983. Plaintiffs also appeal from the district court's order denying their motion to alter or amend judgment under Fed.R.Civ.P. 59(e). We reverse in part and affirm in part.

In their § 1983 complaint, plaintiffs asserted two claims against defendant. First, plaintiffs alleged that defendant has violated their rights under the First and Fourteenth Amendments by enacting a regulation that prohibits them from possessing sexually explicit materials. Second, plaintiffs alleged that defendant has violated their Fourth and Fourteenth Amendment rights, and committed certain state-law torts, by requiring that ten percent of all monies they receive be placed in mandatory prison savings accounts. Plaintiffs*743 requested a declaratory judgment, injunctive relief, and compensatory and punitive damages. Plaintiffs also requested that the district court certify their case as a class action under Fed.R.Civ.P. 23. Although plaintiffs did not define the class in their complaint, they assert in their appellate brief that they sought to certify a class consisting of "all Kansas inmates." Aplts. Br. at 3.

In this appeal, we are presented with issues concerning the requirement under 42 U.S.C. § 1997e(a) that a prisoner must exhaust his prison administrative remedies before seeking relief under § 1983. As set forth in plaintiffs' brief, it is undisputed that plaintiff Sperry has exhausted his prison administrative remedies with regard to all of the claims asserted in plaintiffs' complaint. Aplts. Br. at 2-3. It is also undisputed, however, that plaintiffs McGoldrick, Pabst, and Washington have exhausted their prison administrative remedies only with regard to the claim challenging the ban on sexually explicit materials. Id.