                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                     January 2, 2007
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court



 B RIA N A N DER SO N ,

          Plaintiff- Appellant,
                                                        No. 06-1112
 v.                                           (D.C. No. 05-CV-73-M SK-PAC)
                                                         (Colorado)
 GARY GOLDER, W arden,

          Defendant-Appellee.




                           ORDER AND JUDGMENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Brian Anderson, a state inmate appearing pro se, 1 appeals the district

court’s order dismissing without prejudice his 28 U.S.C. § 1983 action for failing



      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
      1
        Because he is proceeding pro se, we review M r. Anderson’s filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
to exhaust administrative remedies. W e review the district court’s dismissal for

failure to exhaust de novo, see Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th

Cir. 2002), and reverse and remand for further proceedings.

      M r. Anderson filed a § 1983 action asserting two claims. First, he contends

the prison failed to accommodate his post-traumatic stress disorder (PTSD) in

violation of his Eighth Amendment rights. In an attempt to alleviate his PTSD

symptoms, M r. Anderson asked the warden to reduce the frequency of cellmate

turnover, provide him with a single cell, or screen potential cellmates to reduce

the noise and light from their use of personal electronics. See Rec., vol. I,

compl., ex.’s 2, 4. The prison’s denial of these medical requests, M r. Anderson

asserts, violated his Eight Amendment rights. Second, M r. Anderson contends the

warden denied him and other veterans medical treatment because of their veteran

status in violation of the Equal Protection Clause. Specifically, he alleges “I and

other veterans at this prison are denied medical treatment due to us having

military related injuries and inmates that have not been in the military are given

adequate medical treatment.” Rec., vol. 1, compl. at 3.

      The district court dismissed M r. Anderson’s claims for failure to exhaust

his administrative remedies in violation of the Prison Litigation Reform Act

(PLRA), 42 U.S.C. § 1997e(a). Under the PLRA, the inmate bears the burden of

affirmatively pleading exhaustion by attaching copies of administrative

dispositions or describing with specificity the administrative proceeding and its

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outcome. Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003).

To satisfy this submission requirement, M r. Anderson included photocopies of a

series of three prison grievance forms with his complaint. See Rec., vol. I, compl.

ex.’s 2-4. The district court ruled that the prison grievance paperwork exhausted

M r. Anderson’s claimed denial of medical treatment for PTSD in violation of the

Eighth Amendment but did not exhaust the Equal Protection claim. The court

dismissed the entirety of M r. Anderson’s mixed complaint for his failure to

exhaust the second claim. See Ross v. County of Bernalillo, 365 F.3d 1181, 1189

(10th Cir. 2004) (The PLRA’s exhaustion requirement demands “total

exhaustion.”). M r. Anderson appeals the district court’s decision that his Equal

Protection claim was not exhausted. “W e review de novo the district court’s

finding of failure to exhaust administrative remedies.” Jernigan, 304 F.3d at

1032.

        W e assess this issue in light of the three grievance forms M r. Anderson

submitted to prison officials in a three-step procedure. On the first grievance

form, M r. Anderson stated, “W arden Golder you dictate and direct a policy

against veterans with P.T.S.D.” and “[t]his prison has a history of not treating

vets with P.T.S.D.” Rec., vol. I, compl. ex. 2 (italics added) . These claims of

non-treatment are specific to the inmates fulfilling two prerequisites, veteran

status and a PTSD diagnosis. Although M r. Anderson does not reference an equal

protection claim as such in this first grievance form, id., we review liberally the

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pleadings of pro se litigants like M r. A nderson. See Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991) (“if the court can reasonably read the pleadings to

state a valid claim . . . it should do so despite the plaintiff’s failure to cite proper

legal authority.”); Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004)

(prisoner “need not present legal theories in his grievance”); Burton v. Jones, 321

F.3d 569, 575 (6th Cir. 2003) (not requiring “a prisoner’s grievance to allege a

specific legal theory . . . that correspond[s] to all the required elements of a

particular legal theory.”). H ere, we believe M r. Anderson expressed his intent to

assert a veteran-specific policy in making an accusation of discriminatory

practice.

       M oreover, M r. Anderson unequivocally alleged discrimination based on

veteran status later in the grievance process. In the third step, M r. Anderson

maintained “[t]here are several veterans here that are discriminated against

because are [sic] injuries are military related, but inmates with civilian related

injuries receive treatment.” Rec., vol. I, compl. ex. 4. The district court, in its

dismissal order, construed M r. Anderson’s second § 1983 claim as “alleg[ing] that

inmates who were not in the military have been treated differently. . . violat[ing]

the Equal Protection Clause.” Rec., vol I, order at 3. 2    The court’s concise



       2
       The warden, in his brief to this court, characterizes M r. Anderson’s second
§ 1983 legal claim in the same manner as the district court. See Aple. Br. at 2
(“alleg[ing] that inmates who are not in the military have been treated differently
than former military inmates” in violation of the Equal Protection Clause).

                                            -4-
explanation of M r. Anderson’s § 1983 claim simply rephrases the allegation

previously made by M r. Anderson in his prison grievance. W e interpret the

phrase “treated differently,” as used by the district court, as functionally

equivalent to M r. Anderson’s claim that veterans were “discriminated against.”

See W ebster’s Third New International Dictionary 648 (1981) (defining

“discriminate” as, inter alia, “to make a difference in treatment . . . on a class.”)

(emphasis added). Thus, M r. Anderson’s § 1983 pleadings presented to the

district court the same claim made in his third grievance form. W e conclude

therefore that M r. Anderson’s second § 1983 claim was properly exhausted prior

to his filing in federal court.

       M r. Anderson has moved for leave to proceed on appeal without

prepaym ent of costs or fees. In order to succeed on his motion, he must show a

financial inability to pay the required filing fees and the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal. See 28 U.S.C. § 1915(a); M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809,

812 (10th Cir. 1997). Considering the success of M r. Anderson’s argument on

appeal, we conclude that appellant has made a rational argument on the law or

facts. Therefore, we GR A N T the motion for leave to proceed on appeal without

prepayment of costs or fees.

       Because M r. Anderson exhausted his administrative remedies in regards to

his second § 1983 claim, we REV ER SE the district court’s decision finding no

                                          -5-
exhaustion and R EM A N D for further proceedings. W e remind M r. Anderson that

he remains obligated to make partial payments until the filing fee is paid in full.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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