                                                          F I L E D
                                                    United States Court of Appeals
                                                            Tenth Circuit
               UNITED STATES COURT OF APPEALS
                                                            FEB 4 2004
                      FOR THE TENTH CIRCUIT
                                                       PATRICK FISHER
                                                                Clerk

JUSTIN JOSEPH RUEB,

          Plaintiff-Appellant,

v.                                          No. 02-1267
                                    (D.C. No. 99-RB-1093 (PAC))
LOUIS MORALES; SCOTT MILLER;                  (D. Colo.)
TINA HOLMES; GEORGE
MATHIAS; STEVE HERSHEY;
JAMES JARVIS; CRAIG COLEMAN;
MELANIE GREGORY; SUSAN
ARGO; JAMES J. LONG; JAMES
WILBOURN; ALBERT MILLER;
JASON HOLT; JEREMY WHYTOCK;
MICHAEL CAREY; JOHN WORK;
SGT. BAILEY; DEP. ROMERO;
G. ROGERS; FRANK SHEESLEY;
J. CALDWELL; D. NOLDER,
also approx. 30 John & Jane Doe
defendants; ADAMS COUNTY,
COLORADO; ADAMS COUNTY,
BOARD OF COUNTY
COMMISSIONERS; ADAMS
COUNTY SHERIFF’S
DEPARTMENT; ADAMS COUNTY
DETENTION FACILITY; WILLIAM
SHEARER; CANDACE CARLSON;
LES ECKER; SGT. ARGO; WILLIAM
FARR; LISA SCHILLER; JANE
BELL; DEP. GRIGG; DEP. DEBACA;
DEP. O’BEREN; DEP. LITWEILER;
DEP. CRAWFORD; DEP. SAN
NICOLAS; DEP. ORTIZ; DEP.
GERDEMAN; DEP. POLLOCK; DEP.
J.S. STANELLE; DEP. J. DAY;
    DEPUTY WALKER; DEP.
    THOMATOS; DEP. VONCHAMP;
    TERRY HOWARD; MICHELLE
    PURSLEY; NURSE EVETTE;
    NURSE JOEY; NURSE MARY;
    DR. NOVINSKI; CORKY
    BACKLUND, Approx. 66 John/Jane
    Doe’s; DAVID JACCOBUCI;
    T. STEMBEL; ESPINOZA; DENNIS;
    O’REILY; H. NIMROD; WILLIAMS;
    ADAMS; ALBERTI; SCHUMACHER;
    S. TYRELL; MORGEN; T. DUFFY;
    ESPINOSA; B. SMITH; ROTH;
    WYKOFF; PHILLIPS; WIGGINS,

              Defendants-Appellees,

        and

    LT. WILBOURNE; JEFF HOLT;
    SUSAN ANDREWS; DEP.
    WHYTOCK; SGT. MILLER; BILL
    SHEARER; DEP. CAREY; SGT.
    LONG; JAMES ECKARD; TERRY
    HERRIED,

              Defendants.


                            ORDER AND JUDGMENT          *




Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.


*
      This order and judgment is not binding precedent, except under the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.

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      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.

      Plaintiff Justin Rueb, a state prisoner appearing pro se, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint. In a forty-count

amended complaint, Rueb alleged that the Adams County, Colorado Sheriff and

numerous Adams County deputy sheriffs and employees violated his

constitutional rights while he was a pre-trial detainee at the Adams County

Detention Center. The district court adopted all of the magistrate judge’s

numerous reports and recommendations (R&R), which had recommended

dismissal of some or all of the claims.

      We issued a show cause order directing the parties to address whether the

appeal met the finality requirement of 28 U.S.C. § 1291. We have determined

that the appeal does meet this requirement and that we do have jurisdiction under

§ 1291. We affirm in part, reverse in part, and remand for further proceedings.


                               I. Sanction Dismissal

      The district court dismissed the complaint in its entirety with prejudice

based on a R&R stating that Rueb had failed to comply with a March 15, 2001,

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court order either to make the February and March 2001 monthly filing fee

payments required by 28 U.S.C. § 1915(b) or to show cause why he had

insufficient means to make such payments. R. Docs. 153 at 1-2, 187 at 1, and

284 at 5. Rueb filed a timely response to this order demonstrating that his

monthly income from September 2000 through February 2001 never exceeded

$10.00, and that he had a negative $435.97 prison trust account balance as of

February 13, 2001. Doc. 154 at 3-4. Despite his lack of funds and his timely

response, the magistrate judge recommended Rueb’s complaint be dismissed

with prejudice as a sanction for failure to comply with the March 15, 2001 show

cause order. Doc. 187 at 2.

      The R&R did not explain how Rueb failed to comply with the court order

and made several errors. First, Rueb was not obligated under § 1915(b) to make a

February or March 2001 payment because he had a long-standing negative

account balance, and the amount in his account for these months did not exceed

$10.00. 28 U.S.C. § 1915(b)(2) (stating that payment required only when amount

in account exceeds $10.00). Rueb noted this in response to the show cause

order and in his objections to the R&R. R. Docs. 154 at 1-2 and 191 at 2-4.

Second, the show cause order referred only to missed payments in February and

March 2001, Doc. 153 at 2, yet the R&R stated the March 2001 show cause order

was based on missed payments in April, May, June, and July 2001, Doc. 187 at 1.


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Missed payments in those months, however, had not been the subject of any show

cause order. Moreover, even if Rueb had somehow failed to comply with the

show cause order, neither the magistrate judge nor the district court addressed the

relevant factors set forth in   Ehrenhaus v. Reynolds , 965 F.2d 916 (10th Cir.

1992), which must ordinarily be considered by the court before choosing

dismissal as a just sanction.    See id. at 921. We therefore reverse the dismissal

of Rueb’s complaint for failure to comply with the March 15, 2001 show

cause order.


                   II. Mandatory Exhaustion of Prison Remedies

       We decline, with one exception noted in Part IV below, to address any of

Rueb’s remaining allegations of error because the magistrate judge incorrectly

concluded Rueb was not required to exhaust his administrative remedies. As

a result, additional proceedings will now ensue on remand that may result in

different resolutions of Rueb’s claims.

       The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall

be brought with respect to prison conditions” until a prisoner exhausts his

available administrative remedies.” 42 U.S.C. § 1997e(a);       see also 42 U.S.C.

§ 1997e(h) (defining “prisoner” to include a pre-trial detainee). The magistrate

judge concluded at the outset of this case that Rueb’s complaint was not subject

to PLRA’s exhaustion requirement because he sought only monetary relief, which

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was not an available remedy to pre-trial detainees at the Adams County Detention

Center. See R. Doc. 132 at 14. The magistrate judge relied upon this circuit’s

ruling in Garrett v. Hawk , 127 F.3d 1263, 1267 (10th Cir. 1997), but shortly after

the R&R was issued, Garrett was overruled by the Supreme Court in           Booth v.

Churner , 532 U.S. 731 (2001).      Booth held that even where an inmate seeks

money damages and the grievance process does not permit such awards,

exhaustion is required as long as there is authority to take some responsive action.

Id. at 736-41.

       It is now clear that exhaustion of available prison remedies is “mandatory”

for all “inmate suits about prison life.”      Porter v. Nussle , 534 U.S. 516, 524, 532

(2002). “Congress ha[s] eliminated both discretion to dispense with

administrative exhaustion and the condition that it be ‘plain, speedy, and

effective.’” Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002) (quoting

Booth , 532 U.S. at 739). Neither the parties nor the court can ignore PLRA’s

exhaustion requirement, even if the issue is first recognized on the eve of trial.

See Steele v. Fed. Bureau of Prisons        , __ F.3d __, 2003 WL 23019855, at *4-6

(10th Cir. Dec. 29, 2003) (No. 02-1492). On remand, the district court shall

address in the first instance whether Rueb satisfied his exhaustion requirements

under PLRA. See id . at 5-6.




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                                III. Tolling Arguments

       The district court adopted the magistrate judge’s recommendation to

dismiss most of the forty claims in the first amended complaint as time-barred

under the applicable two-year statute of limitations.       See Workman v. Jordan ,

32 F.3d 475, 482 (10th Cir. 1994) (applying Colorado’s two-year personal injury

limitations period to § 1983 claims). In doing so, the magistrate judge rejected

Rueb’s tolling arguments, two of which may be affected by the PLRA exhaustion

requirement.

       First, Rueb argued that the statute of limitations should be tolled during

the period in which he attempted to exhaust his administrative remedies. The

magistrate judge rejected this argument based on the incorrect premise that

exhaustion was not required. Colorado law governs the tolling issue in this

§ 1983 case.   See Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). As the

magistrate judge noted, Colorado recognizes equitable tolling when circumstances

make it impossible for a plaintiff to file his claims within the statutory limitations

period. See, e.g., Dean Witter Reynolds, Inc. v. Hartman         , 911 P.2d 1094, 1097-98

(Colo. 1996) (equitable tolling may apply where extraordinary circumstances

prevent plaintiff from filing timely claim despite good faith effort);     Garrett v.

Arrowhead Improvement Ass’n        , 826 P.2d 850, 853 (Colo. 1992) (“equity provides

a basis for tolling a statute of limitations in appropriate circumstances”).

                                             -7-
Although we decline to decide the legal issue in the first instance, we do conclude

that Rueb has raised at least a colorable claim that Colorado would equitably toll

the relevant statute of limitations during the actual exhaustion of administrative

remedies required by 42 U.S.C. § 1997e(a).         See Gartrell v. Gaylor , 981 F.2d 254,

258 (5th Cir. 1993) (remanding case for determination whether Texas would

permit equitable tolling in view of requirement that plaintiff exhaust prison

grievance procedures before filing § 1983 action).

       Second, Rueb argued he should be able to pursue his claims outside the

limitations period under a continuing violation theory. The district court rejected

this argument, relying by analogy on    Thomas v. Denny’s, Inc ., 111 F.3d 1506

(10th Cir. 1997), in which this circuit reasoned that “the continuing violation

theory is a creature of the need to file administrative charges, and because [the

relevant] claim does not require filing such charges before a judicial action may

be brought, the continuing violation theory is simply not applicable.”       Id. at 1514.

While we decline to decide in the first instance whether a continuing violation

theory may be applied to § 1983 claims, we do conclude that the district court

erred in rejecting this theory on the now-overruled premise that Rueb was not

obligated to pursue administrative remedies before bringing suit. On remand,




                                             -8-
the district court should reconsider these two tolling arguments in light of

§ 1997e(a)’s mandatory exhaustion requirement.     1




                              IV. Third Amendment

      We do affirm the district court’s denial of Rueb’s requests to file a third

amended complaint, for the reasons stated in the relevant R&Rs. R. Doc. 185


1
       The district court’s summary adoption of the numerous R&Rs created
confusion with respect to its intended disposition of several claims. The
magistrate judge concluded claim seven was partially time-barred and failed to
state a claim, R. Doc. 132 at 18, 23, but did not include it in the summary listing
of dismissed claims, see id . at 31. A subsequent order amended the R&R to
recommend dismissal of claim seven for failure to state a claim,      see Doc. 206
at 1, 3, but the district court did not dismiss claim seven in its final order, except
to the extent it (erroneously) dismissed the entire complaint as a sanction.

        The initial R&R describes claim eight as dismissed in its entirety,
dismissed in part, and as not dismissed. Doc. 132 at 31. The magistrate judge
later described claim eight as time-barred in its entirety,  see Doc. 185 at 11, but
entered a subsequent order clarifying that claim eight was not dismissed as
time-barred, see Doc. 206. Still later, the magistrate judge recommended denial
of Rueb’s motion for partial summary judgment on claim eight because there
were disputed issues of material fact.     See Doc. 258 at 4. The district court
adopted all of the R&Rs, without noting their inconsistencies, and ordered claim
eight dismissed as time-barred in part and in whole, yet also adopted the
recommendation that claim eight proceed to trial. Doc. 284 at 4, 5.

       The district court’s order does not list claims six and fourteen in the final
listing of time-barred claims, though these claims were described in the body of
the relevant R&R as time-barred and are not listed as claims that survived
dismissal. See Doc. 132 at 2, 4, 18, 31. Finally, the district court listed claims
fifteen and thirty-five as being dismissed as time-barred both in whole and in part.
To the extent required after resolution of the exhaustion and tolling issues, the
district court is directed on remand to clarify its disposition of claims six, seven,
eight, fourteen, fifteen, and thirty-five.

                                          -9-
and 217. The district court had already allowed two amended complaints, and

it did not abuse its discretion in refusing to allow a third amendment.    See

Uselton v. Commercial Lovelace Motor Freight, Inc.        , 940 F.2d 564, 586-87

(10th Cir. 1991).

       Rueb’s motion to use the original record is GRANTED; his motion to file

multiple opening briefs is GRANTED; his motion to strike appellees’ brief is

DENIED; his motion to Supplement Opening Brief No. 1 is GRANTED.

We GRANT Rueb’s motion to proceed in forma pauperis, and remind him that

he is obligated to make partial payments of the filing fee until the entire fee has

been paid. See 28 U.S.C. § 1915(b). The judgment of the district court

is AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings consistent with this order and judgment.


                                                         Entered for the Court



                                                         Stephanie K. Seymour
                                                         Circuit Judge




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