                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        June 23, 2005
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 ARVELL HORTON,

          Plaintiff-Appellant,
 v.                                                     No. 05-1022
 JOE ORTIZ, Exec. Dir. Corrections;                (D.C. No. 04-Z-1095)
 GARY GOLDER, Warden, S.C.F.;                            (D.Colo.)
 TERRY BARTRUFF, Major, Security,
 S.C.F.; MICHELLE NYCZ, Captain,
 L.U. #1 & 2, S.C.F.; MICHAEL
 WELTY, Officer, Security, S.C.F.;
 MAX BOELTER, Officer, Security,
 S.C.F.; F.N.U. LACHANCE, Officer,
 L.U. #2, S.C.F.; F.N.U. BUTLER,
 Lieutenant, L.U. #2, S.C.F.; Officially,

          Defendants-Appellees.


                             ORDER AND JUDGMENT         *




Before BRISCOE, LUCERO,           and MURPHY , 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       This order and judgment is not binding precedent, except under the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.
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.

      Plaintiff Arvell Horton appeals the district court’s dismissal of his civil

action without prejudice for failure to exhaust administrative remedies. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

      Horton, a prisoner in the custody of the Colorado Department of

Corrections (DOC), filed a pro se complaint seeking money damages and

declaratory relief pursuant to 42 U.S.C. §§ 1983, 1985, and 28 U.S.C. § 1342.

The magistrate judge ordered Horton to show cause why his complaint should not

be dismissed for failure to exhaust the DOC’s three-step administrative grievance

procedure. Horton was also required to file an amended complaint that complied

with Federal Rule of Civil Procedure 8. Horton belatedly filed an amended

complaint. He asserted he had exhausted each of his claims except for his

excessive force claim, which he argues has no exhaustion requirement. The

district court, noting the applicability of an administrative remedy procedure

through the DOC and this court’s requirement that all claims must be exhausted,

dismissed Horton’s complaint without prejudice for failure to exhaust.

      The prison litigation reform act (PLRA) “contains a total exhaustion

requirement . . ..” Ross v. County of Bernalillo, 365 F. 3d 1181, 1189 (10th Cir.

2004). This court has determined “that the presence of unexhausted claims in [a


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prisoner’s] complaint require[s] the district court to dismiss his [or her] action in

its entirety without prejudice.” Id.

      Horton argues dismissal was improper because (1) his claims are

meritorious, (2) he cannot be compensated “for an assault of this magnitude”

through the grievance procedure, Aplt. Br. at 4, (3) excessive force claims are not

prison condition claims, but fall within the Eighth Amendment’s protections from

cruel and unusual punishment and, as such, are not within the exhaustion

requirement, and (4) the district court cannot sua sponte raise failure to exhaust

under the PLRA.

      We reject Horton’s first argument that the district court should have

overlooked his failure to exhaust because his claims are meritorious. “If a

prisoner . . . submit[s] a complaint containing one or more unexhausted claims,

the district court ordinarily must dismiss the entire action without prejudice.”

Ross, 365 F.3d at 1190. Generally speaking, a district court may only reach the

merits of an unexhausted claim if the “claim is, on its face, frivolous, malicious,

fails to state a claim upon which relief can be granted, or seeks monetary relief

from a defendant who is immune from such relief, the court may dismiss the

underlying claim without first requiring the exhaustion of administrative

remedies.” Id. (quoting 42 U.S.C. § 1997e(c)(2)). Here, we conclude the district

court properly dismissed Horton’s claims without prejudice, leaving the merits of


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those claims to be resolved at a later time in the event that Horton chooses to

exhaust those claims and refile his complaint.

      With regard to Horton’s second argument that the administrative procedures

available are inadequate, the district court noted that DOC’s “Grievance

Procedure applies ‘to a broad range of complaints including, but not limited to:

policies and conditions within the institution that affects [sic] the offender

personally, actions by employees and offenders, and incidents occurring within

the institution that affects [sic] the offender personally.’” ROA, Doc. 25 (quoting

DOC Administrative Regulation 850-4, Grievance Procedure at IV.B.1.h.).

Horton provides no support for his argument that the DOC’s administrative

grievance procedure cannot address and respond to the assault Horton has alleged.

      We also reject Horton’s argument that Eighth Amendment claims fall

outside of the administrative exhaustion requirement. The Supreme Court has

held “the PLRA’s exhaustion requirement applies to all inmate suits about prison

life, whether they involve general circumstances or particular episodes, and

whether they allege excessive force or some other wrong.” Porter v. Nussle, 534

U.S. 516, 532 (2002). Accordingly, an excessive force claim is subject to the

exhaustion requirement.

      In an addendum to his opening brief, Horton argues that because the failure

to exhaust administrative remedies is an affirmative defense which should be pled


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by the defendant, the magistrate judge and district court erred by raising this

defense sua sponte and dismissing his complaint without prejudice. We disagree.

We have held that “we cannot view § 1997e(a) exhaustion as an affirmative

defense to be specially pleaded or waived. Instead, we conclude that § 1997e(a)

imposes a pleading requirement on the prisoner.” Steele v. Federal Bureau of

Prisons, 355 F. 3d 1204, 1210 (10th Cir. 2003). “To ensure compliance with the

[PLRA,] a prisoner must provide a comprehensible statement of his claim and

also either attach copies of administrative proceedings or describe their

disposition with specificity. These requirements facilitate the district court’s sua

sponte review on the exhaustion issue.” Id. at 1211. The district court did not err

in raising Horton’s failure to exhaust and in dismissing his complaint without

prejudice on that ground.

      We AFFIRM the district court’s dismissal of Horton’s complaint without

prejudice for failure to exhaust. Horton’s motion to proceed on appeal without

prepayment of fees is GRANTED, and he is reminded that he is obligated to

continue making partial payments toward the balance of his assessed fees and

costs until they are paid in full. We also DENY Horton’s motion for summary




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judgment recently filed with this court.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




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