                                                                  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.
                      _________________________________

                             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 This order and judgment is not binding precedent, except under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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