                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                         May 3, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

 AARON LAUBACH,

                Plaintiff-Appellant,

          v.                                             No. 06-6338
                                                  (D.C. No. CIV-05-1294-F)
 JOSEPH SCIBA NA , W arden; T C                         (W .D. Okla.)
 PETERSON ; T JOR DA N; M ICH AEL
 EN G LA ND ; LA U RA PETR ASH;
 EDW AR D M CN ERN EY; D LU CH E;
 F M OLINA; BARBARA M ALCHER;
 W LEE; S ZEAVIN; SUSAN ENG LE;
 TILFO RD M OLSK NESS; B T JONES;
 M IKE M AZE; KEITH M CCO RA LL;
 AL K ESSLER; M AR GA RET
 GRISM NER; DEN ISE A YNES;
 DEBRA DES COM BS; SH AIN
 TERRALL; E FELTZ; D M OORE; S
 W ILLIS; J ASHLEY; J FOW NER,

                Defendants-Appellees,
          and

 N O RM A CA STR O,

                Defendant.



                             OR D ER AND JUDGM ENT *

      *
        This order and judgment is not binding precedent, except under the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.
      After examining the briefs and the appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
                                                                        (continued...)
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Plaintiff A aron Laubach appeals the district court’s dismissal of his pro se

prisoner complaint. In resolving his appeal, we consider the effect of the

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

exhaustion requirement of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.

§ 1997e(a).

      In November 2001, Plaintiff, an inmate at the Federal Correctional

Institution in El Reno, Oklahoma, injured his right ankle w hile playing soccer in

the prison gym. He alleges that he spent the next four years trying to obtain

adequate medical care for his injury, but that medical personnel consistently

misdiagnosed his injury, provided inadequate care, and took away the cane that he

needed for standing and walking. He further alleges that he was repeatedly

subjected to disciplinary sanctions because of his physical inability to obey staff

orders to walk without a cane. Plaintiff filed a complaint in October 2005,

seeking declaratory and injunctive relief as well as compensatory and punitive

damages. He attached to his complaint records demonstrating that he filed a

grievance in M ay 2002 regarding his medical care and that he filed several



(...continued)
without oral argument. See Fed. R. App. P. 34(f). The case is therefore ordered
submitted without oral argument.

                                         -2-
appeals relating to his disciplinary sanctions. In his disciplinary appeals, he

alleged that Defendant M cNerney improperly took his cane away, that the rest of

the medical department refused to reverse M r. M cNerney’s decision, and that it

was because of this improper medical treatment that he was unable to comply

with staff orders.

      In accordance with an order from the district court, Defendants filed a

report pursuant to M artinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). Defendants

also filed a 12(b) motion to dismiss asserting, among other grounds, that Plaintiff

had not administratively exhausted all claims in his complaint. Defendants

provided no documentation for this assertion other than their records relating to

the M ay 2002 grievance.

      After considering Defendants’ M artinez report and motion to dismiss, the

magistrate judge recommended dismissal of the case based upon failure to

exhaust. Citing to Steele v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir.

2003), in which we held that the PLRA places the burden of pleading and proving

exhaustion on the prisoner, the magistrate judge determined that Plaintiff had

only proven exhaustion of claims arising from the medical treatment he received

before M ay 16, 2002, when he filed his administrative grievance. She therefore

recommended dismissal of Plaintiff’s complaint based on our determination in

Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004), that a

prisoner’s entire complaint should be dismissed if any claims are unexhausted.

                                         -3-
The magistrate judge did note that the disciplinary appeals mentioned some of

Plaintiff’s medical concerns, but she apparently concluded that these appeals were

irrelevant to the question of exhaustion. The district court adopted the magistrate

judge’s report and recommendation and dismissed the complaint.

      W hile this appeal was pending, the Supreme Court issued an opinion that

abrogated both Ross and Steele. In Jones v. Bock, 127 S. Ct. 910 (2007), the

Court resolved a circuit split regarding the interpretation of the PLRA’s

exhaustion requirement. Overruling Ross, the Court concluded that the PLRA did

not require total exhaustion of all claims in a complaint. Id. at 923-26. Rather,

the Court held that when a complaint contains both exhausted and unexhausted

claims, district courts should follow the usual procedural rule of “proceed[ing]

with the good and leav[ing] the bad.” Id. at 924. W ith respect to Steele, the

Court held that failure to exhaust is an affirmative defense and that “inm ates are

not required to specially plead or demonstrate exhaustion in their complaints.”

Id. at 921. Although Jones did not specifically address the issue of the burden of

proving exhaustion, we have subsequently held that, as an affirmative defense,

exhaustion must be raised and proven by the defendants. Roberts v. Barreras,

No. 05-2373, 2007 W L 1113956, at *4 (10th Cir. Apr. 16, 2007).

      In light of Jones, this case must be remanded for further consideration by




                                         -4-
the district court. 1 Because of the significant shift in the burden of proof, the

court on remand should allow Defendants an opportunity to meet their burden of

proving failure to exhaust. 2

      For the foregoing reasons, we VAC ATE the district court’s decision and

R EM A N D for further proceedings in accordance with Jones v. Bock and this

opinion. W e D EN Y Defendant Susan Engle’s pro se motion to be dismissed,

which presents a factual question that is better left for resolution by the district

court on remand. W e GR A N T Plaintiff’s motion to correct the record. W e also

G R A N T Plaintiff’s motion to proceed on appeal without prepayment of filing

fees, and we remind him of his obligation to continue making partial payments

until the entire fee has been paid.

                                                Entered for the Court



                                                M onroe G. M cKay
                                                Circuit Judge




      1
        W e decline to address Defendants’ other asserted grounds for dismissal,
as they w ere not considered by the district court below.
      2
         The court should also reevaluate w hether Plaintiff’s disciplinary appeals
in fact exhausted some of his claims. W hile w e make no ruling on this issue, it
seems to us that resolving the underlying medical treatment issue must have been
a necessary predicate to deciding whether the disciplinary sanctions imposed were
appropriate.

                                          -5-
