                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 14, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    JEFFR EY LA RSO N ,

                Plaintiff-Appellant,

    v.                                                   No. 04-1169
                                                  (D.C. No. 02-N-1922 (CBS))
    TO M M EEK ; LO RI M C GO WAN;                         (D . Colo.)
    EDD GILLESPIE,

                Defendants-Appellees.




                             OR D ER AND JUDGM ENT *


Before O’BRIEN, HOL LOW A Y, and BALDOCK , Circuit Judges.




         Jeffrey Larson, a Colorado state prisoner appearing pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint alleging violations of

his Eighth Amendment rights. W e have jurisdiction under 28 U.S.C. § 1291.

Because the district court primarily dismissed M r. Larson’s claims for failure to




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
exhaust administrative remedies under the Prisoner Litigation Reform Act

(PLRA), 42 U.S.C. § 1997e(a), we VACATE the dismissal of the claims against

Tom M eek and Lori M cGowan and REM AND for further consideration in light of

the recent Supreme Court decision in Jones v. Bock, 127 S. Ct. 910 (2007).

W e AFFIRM the dismissal of the claims against Edd Gillespie.

                                          I.

      M r. Larson asserted two claims arising from the conditions of his

confinement at Four M ile Correctional Center. 1 Essentially he asserted that

M r. M eek interfered with his ability to receive prescribed medications for his

diabetes and mental illnesses, that M r. M eek’s supervisor, M s. M cGowan,

approved or allowed these deprivations, and that M r. Gillespie also allowed the

deprivations by denying his grievances.

      The magistrate judge recommended M r. Larson’s complaint be dismissed

for failure to state a claim for a number of reasons, including M r. Larson’s



1
        M r. Larson sought to amend his complaint after the magistrate judge
recommended granting defendants’ motion to dismiss. The district court refused
to file his amended complaint and considered only the original complaint. Under
Fed. R. Civ. P. 15(a), however, M r. Larson was not obligated to seek the court’s
permission to file his amended complaint. That rule allows plaintiffs to amend
their complaint “once as a matter of course at any time before a responsive
pleading is served.” Defendants’ motion to dismiss is not considered a
“responsive pleading” for purposes of Rule 15(a), and thus M r. Larson could
amend his complaint prior to the district court’s ruling on the motion to dismiss.
See Glenn v. First Nat’l Bank, 868 F.2d 368, 370 (10th Cir. 1989). Accordingly,
we consider the allegations of the amended complaint as well as the original
complaint in our review.

                                          -2-
failures to describe with particularity how he exhausted his administrative

remedies with regard to his first claim and to show exhaustion as to his second

claim. The district court accepted the magistrate judge’s recommendations,

holding that M r. Larson had failed to show he exhausted his administrative

remedies on his claims and that he failed to show entitlement to either

compensatory or punitive damages, leaving only “a de m inimis case which cannot

go forw ard.” R. Doc. 53 at 8. M r. Larson appeals.

                                          II.

      W e must first address appellees’ argument that this court lacks jurisdiction

to hear this appeal because M r. Larson failed to file his notice of appeal within

thirty days of the district court’s dismissal. See Fed. R. App. P. 4(a)(1)(A);

Trotter v. Regents of the Univ. of N.M ., 219 F.3d 1179, 1182 (10th Cir. 2000).

      Judgment was entered M arch 22, 2004, so that M r. Larson had until April

21, 2004, to file his notice of appeal. He has submitted legal mail logs showing

mailings to this court, the district court, and opposing counsel on April 21, 2004.

This court received his misdirected notice of appeal on April 23, 2004, and

transferred it to the district court. The district court filed that notice of appeal as

of A pril 23, 2004, as directed by this court’s transmittal letter.

      The state defendants argue that M r. Larson’s notice of appeal was untimely

for two reasons. First, they argue that M r. Larson has never submitted a notarized

statement or a statement that complies w ith 28 U.S.C. § 1746 (unsworn

                                          -3-
declarations filed under penalty of perjury), so that he is not entitled to invoke the

prisoner “mailbox rule.” Second, they contend that he cannot apply both the

misdirected filing rule and the mailbox rule.

                                    M ailbox Rule

      Federal Rule of Appellate Procedure 4(c)(1) provides:

      If an inmate confined in an institution files a notice of appeal in
      either a civil or a criminal case, the notice is timely if it is deposited
      in the institution’s internal mail system on or before the last day for
      filing. If an institution has a system designed for legal mail, the
      inmate must use that system to receive the benefit of this rule.
      Timely filing may be shown by a declaration in compliance with
      28 U.S.C. § 1746 or by a notarized statement, either of w hich must
      set forth the date of deposit and state that first-class postage has been
      prepaid.

      This court has held that:

      [W ]e read Fed. R. App. P. 4(c)(1) to provide the mandatory method
      by which a prisoner, who does not have access to a legal mail
      system, proves compliance w ith the mailbox rule. If a prison lacks a
      legal mail system, a prisoner must submit a declaration or notarized
      statement setting forth the notice’s date of deposit with prison
      officials and attest that first-class postage was prepaid.

United States v. Ceballos-M artinez, 387 F.3d 1140, 1145 (10th Cir. 2004).

Unlike Ceballos-M artinez, however, M r. Larson used a legal mail system.

Ceballos-M artinez’s requirement of a declaration or notarized statement, then, is

inapplicable to this case. See Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir.

2005) (“To summarize, an inmate must establish timely filing under the mailbox

rule by either (1) alleging and proving that he or she made timely use of the



                                          -4-
prison’s legal mail system if a satisfactory system is available, or (2) if a legal

mail system is not available, then by timely use of the prison’s regular mail

system in combination with a notarized statement or a declaration under penalty

of perjury of the date on which the documents were given to prison authorities

and attesting that postage was prepaid.”). By alleging that he used the legal mail

system and filing a copy of the prison’s legal mail log with this court, M r. Larson

has satisfied his obligation to prove timely use of the legal mail system.

                               M isdirected Filing Rule

      The defendants also submit that, under Federal Rule of Appellate Procedure

4(d), M r. Larson’s misdirected notice of appeal must be treated as if it were filed

in the district court as of the date that it was received in this court, so that his

notice was two days late. Rule 4(d) provides that when a notice of appeal is sent

to the court of appeals, “the clerk of that court must note on the notice the date

when it was received and send it to the district court. The notice is then

considered filed in the district court on the date so noted.”

      M r. Larson’s notice of appeal would be considered timely, though, if Rule

4(c)(1) and 4(d) are applied together, with the “receipt” date at this court being

considered the date w hen M r. Larson placed his notice of appeal in the prison’s

legal mail system. W e see no reason why the two rules should not be applied

together. Thus, the mailbox rule and the misdirected filing rules combine to make

this appeal timely, and we have jurisdiction to decide this appeal.

                                           -5-
                                         III.

      W e review a § 1997e(a) dismissal for failure to exhaust administrative

remedies de novo. Ross v. County of Bernalillo, 365 F.3d 1181, 1185 (10th Cir.

2004), abrogated on other issues by Jones, 127 S. Ct. at 923-25. “Dismissal of a

pro se complaint for failure to state a claim is proper only where it is obvious that

the plaintiff cannot prevail on the facts he has alleged and it would be futile to

give him an opportunity to amend.” Perkins v. Kan. Dep’t of Corr., 165 F.3d

803, 806 (10th Cir. 1999). “In determining w hether dismissal is proper, we must

accept the allegations of the complaint as true and . . . construe those allegations,

and any reasonable inferences that might be drawn from them, in the light most

favorable to the plaintiff.” Id.

      The district court properly dismissed the claims against M r. G illespie.

Nothing in either the original complaint or the amended complaint indicates any

action or omission by M r. G illespie beyond his denial of M r. Larson’s grievances.

M r. Gillespie’s denial of the grievances alone is insufficient to establish personal

participation in the alleged constitutional violations. See Lomholt v. Holder,

287 F.3d 683, 684 (8th Cir. 2002) (per curiam). This situation, which is fatal to

M r. Larson’s case, cannot be corrected by amending the complaint.

Consequently, we affirm the dismissal of the claims against M r. Gillespie.

      M r. Larson does allege personal participation by M r. M eek in his original

and amended complaints and appears to allege personal participation by and/or

                                         -6-
supervisory liability for M s. M cGowan in his amended complaint. Because the

district court’s dismissal primarily relied on M r. Larson’s failure to show he

exhausted his claims against these defendants, these claims must be remanded for

further consideration in light of Jones. Until Jones, this court’s precedent

characterized exhaustion as a pleading requirement and required prisoners to

attach copies of administrative dispositions or describe the proceedings w ith

specificity. Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir.

2003). In Jones, however, the Supreme Court concluded that “failure to exhaust

is an affirmative defense under the PLRA, and that inmates are not required to

specially plead or demonstrate exhaustion in their complaints.” 127 S. Ct. at 921.

Since “[e]xhaustion is an affirmative defense, . . . the burden of proof is on the

defendants.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); accord Ray v.

Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Nerness v. Johnson, 401 F.3d 874, 876

(8th Cir. 2005) (per curiam). In light of this significant shift in the evidentiary

burden, we conclude that the district court should be given the opportunity in the

first instance to evaluate defendants’ proof of nonexhaustion. 2



2
       W e recognize the district court identified other reasons for dismissing
M r. Larson’s action, including failures to show sufficient physical injury under
42 U.S.C. § 1997e(e) to recover damages for a mental or emotional injury and to
show the level of conduct necessary for punitive damages. W e are not certain the
district court properly evaluated M r. Larson’s damages claims. But even if
M r. Larson cannot recover compensatory or punitive damages, he may still
be entitled to pursue his action and receive an award of nominal damages.
                                                                        (continued...)

                                          -7-
      Finally, on appeal M r. Larson also claims that the PLRA discriminates

against prisoners with mental impairments. W e decline to address this issue

because it w as not raised in the district court in the first instance. See Oliveros v.

M itchell, 449 F.3d 1091, 1095 (10th Cir. 2006).

                                          IV.

      W e GRANT M r. Larson’s motion to proceed without prepayment of costs

and fees, and he is reminded that he is obligated to continue making partial

payments until the entire fee has been paid. W e AFFIRM the dismissal of the

claims against defendant Gillespie. W ith regard to the claims against defendants

M eek and M cG ow an, w e V A CA TE the district court’s decision and REM AND

for further proceedings in accordance with Jones, 127 S. Ct. at 921.


                                                 Entered for the Court



                                                 Terrence L. O’Brien
                                                 Circuit Judge




2
 (...continued)
See Searles v. Van Bebber, 251 F.3d 869, 876, 878-79 (10th Cir. 2001)
(concluding that § 1997e(e) limits an inmate’s ability to recover for mental or
emotional injuries, but does not bar recovery of nominal or punitive damages);
see also City of Riverside v. Rivera, 477 U.S. 561, 574 (1986) (“Regardless of the
form of relief he actually obtains, a successful civil rights plaintiff often secures
important social benefits that are not reflected in nominal or relatively small
damages awards.”).

                                           -8-
