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Tenth Circuit Follows Jones v. Bock, Reverses Full-Exhaustion Predicate in § 1983 Cases
by John E. Dannenberg
The Tenth Circuit U.S. Court of Appeals realigned its jurisprudence to comport with the U.S. Supreme Court ruling in Jones v. Bock, 127 S.Ct. 910 (2007) [see: PLN, May 2007, p.36], which held that failure to exhaust administrative remedies in a prisoner’s 42 U.S.C. § 1983 civil rights action is an affirmative defense. The Tenth Circuit had previously held, in Steele v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003), that exhaustion is a burden that falls to the prisoner to plead and prove in the initial complaint.
Colorado state prisoner Russell Freeman appealed a U.S. District Court’s dismissal of his § 1983 complaint that alleged six violations of his constitutional rights: due process denial in disciplinary convictions, cruel and unusual punishment in conditions of confinement, retaliation, ethnic discrimination, loss of property, and denial of access to the courts. The district court found that Freeman had at most exhausted his administrative remedies as to just one of the six claims. Following Tenth Circuit precedent, the court dismissed the entire complaint without prejudice to either Freeman’s full exhaustion or his voluntary withdrawal of the five unexhausted claims.
While Freeman’s appeal of this dismissal was pending, the U.S. Supreme Court decided Bock, which had the effect of overruling Steele. Citing Bock, the Tenth Circuit agreed that “if a complaint contains both good and bad claims, ... court(s) proceed with the good and leave the bad.” Thus, the appellate court held that Freeman no longer had the duty of pleading exhaustion and the district court could no longer demand such from him. The Court of Appeals additionally noted that according to its post-Bock ruling in Aquilar-Avellaveda v. Terrell, 478 F.3d 1223 (10th Cir. 2007), a district court retains the authority to raise the exhaustion requirement sua sponte. Thus, under 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, the court could request additional information from Freeman. However, the Tenth Circuit did not rule on that issue here.
The Court of Appeals also reviewed Freeman’s in forma pauperis (IFP) application, which the district court had denied pursuant to Fed.R.App.Proc. 24(a)(2) – without adequate explanation, according to Freeman. In an abundance of caution, because the district court’s denial had likely rested on the Tenth Circuit’s now-overruled precedent related to exhaustion requirements, the appellate court granted Freeman’s IFP application but reminded him of his partial payment fee obligations. See: Freeman v. Watkins, 479 F.3d 1257 (10th Cir. 2007).
The Tenth Circuit U.S. Court of Appeals realigned its jurisprudence to comport with the U.S. Supreme Court ruling in Jones v. Bock, 127 S.Ct. 910 (2007) [see: PLN, May 2007, p.36], which held that failure to exhaust administrative remedies in a prisoner’s 42 U.S.C. § 1983 civil rights action is an affirmative defense. The Tenth Circuit had previously held, in Steele v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003), that exhaustion is a burden that falls to the prisoner to plead and prove in the initial complaint.
Colorado state prisoner Russell Freeman appealed a U.S. District Court’s dismissal of his § 1983 complaint that alleged six violations of his constitutional rights: due process denial in disciplinary convictions, cruel and unusual punishment in conditions of confinement, retaliation, ethnic discrimination, loss of property, and denial of access to the courts. The district court found that Freeman had at most exhausted his administrative remedies as to just one of the six claims. Following Tenth Circuit precedent, the court dismissed the entire complaint without prejudice to either Freeman’s full exhaustion or his voluntary withdrawal of the five unexhausted claims.
While Freeman’s appeal of this dismissal was pending, the U.S. Supreme Court decided Bock, which had the effect of overruling Steele. Citing Bock, the Tenth Circuit agreed that “if a complaint contains both good and bad claims, ... court(s) proceed with the good and leave the bad.” Thus, the appellate court held that Freeman no longer had the duty of pleading exhaustion and the district court could no longer demand such from him. The Court of Appeals additionally noted that according to its post-Bock ruling in Aquilar-Avellaveda v. Terrell, 478 F.3d 1223 (10th Cir. 2007), a district court retains the authority to raise the exhaustion requirement sua sponte. Thus, under 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, the court could request additional information from Freeman. However, the Tenth Circuit did not rule on that issue here.
The Court of Appeals also reviewed Freeman’s in forma pauperis (IFP) application, which the district court had denied pursuant to Fed.R.App.Proc. 24(a)(2) – without adequate explanation, according to Freeman. In an abundance of caution, because the district court’s denial had likely rested on the Tenth Circuit’s now-overruled precedent related to exhaustion requirements, the appellate court granted Freeman’s IFP application but reminded him of his partial payment fee obligations. See: Freeman v. Watkins, 479 F.3d 1257 (10th Cir. 2007).
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