                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       June 22, 2006
                              FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                        Clerk of Court

    B RIA N MC G O LD RIC K; TO D
    PA BST; M A RC US WA SH IN G TON;
    JEFFR EY J. SPER RY ,

                 Plaintiffs-Appellants,

    v.                                                   No. 05-3438
                                                  (D.C. No. 04-CV-3125-CM )
    ROGER W ERHOLTZ, Secretary,                            (D . Kan.)
    Kansas Department of Corrections,
    in his individual and official capacity,

                 Defendant-Appellee.




                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.




         Plaintiffs Brian M cGoldrick, Tod Pabst, M arcus W ashington, and Jeffrey

Sperry are state prisoners at the Lansing Correctional Facility in Lansing, Kansas.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
Defendant Roger W erholtz is the Secretary of Corrections for the Kansas

Department of Corrections. Appearing pro se, plaintiffs appeal from the order

and the related judgment entered by the district court dismissing without

prejudice all of the claims asserted in their complaint under 42 U.S.C. § 1983.

Plaintiffs also appeal from the district court’s order denying their motion to alter

or amend judgment under Fed. R. Civ. P. 59(e). W e reverse in part and affirm in

part.

        In their § 1983 complaint, plaintiffs asserted two claims against defendant.

First, plaintiffs alleged that defendant has violated their rights under the First and

Fourteenth Amendments by enacting a regulation that prohibits them from

possessing sexually explicit materials. Second, plaintiffs alleged that defendant

has violated their Fourth and Fourteenth Amendment rights, and committed

certain state-law torts, by requiring that ten percent of all monies they receive be

placed in mandatory prison savings accounts. Plaintiffs requested a declaratory

judgment, injunctive relief, and compensatory and punitive damages. Plaintiffs

also requested that the district court certify their case as a class action under

Fed. R. Civ. P. 23. Although plaintiffs did not define the class in their complaint,

they assert in their appellate brief that they sought to certify a class consisting of

“all Kansas inmates.” Aplts. Br. at 3.

        In this appeal, we are presented with issues concerning the requirement

under 42 U.S.C. § 1997e(a) that a prisoner must exhaust his prison administrative

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remedies before seeking relief under § 1983. As set forth in plaintiffs’ brief, it is

undisputed that plaintiff Sperry has exhausted his prison administrative remedies

with regard to all of the claims asserted in plaintiffs’ complaint. Aplts. Br. at 2-3.

It is also undisputed, however, that plaintiffs M cGoldrick, Pabst, and W ashington

have exhausted their prison administrative remedies only with regard to the claim

challenging the ban on sexually explicit materials. Id.

      Applying 42 U.S.C. § 1997e(a) and this court’s “total exhaustion rule,” the

district court granted defendant’s motion for summary judgment and dismissed all

of the claims asserted in plaintiffs’ complaint without prejudice. The court’s

dismissal was based on the fact that plaintiffs’ complaint contained both

exhausted and unexhausted claims, R., Doc. 37 at 5 (stating that “plaintiffs have

failed to exhaust all available administrative remedies with respect to some of the

claims in their complaint”), and the court’s reasoning was based on this court’s

decision in Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir. 2004)

(holding that § 1997e(a) “requires inmates to exhaust fully all of their claims

before filing in federal court. If a prisoner does submit a complaint containing

one or more unexhausted claims, the district court ordinarily must dismiss the

entire action without prejudice.”). The court also relied on this same reasoning to

deny plaintiffs’ Rule 59(e) motion. R., Doc. 43 at 3-4.

      W e are governed by a mixed standard of review in this appeal. On the one

hand, “[o]ur review of a dismissal under [§ 1997e(a)] for failure to exhaust

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administrative remedies is de novo.” Ross, 365 F.3d at 1185. By contrast, “[t]his

court reviews the district court’s ruling on [plaintiffs’] Rule 59(e) motion for

abuse of discretion.” Loughridge v. Chiles Power Supply Co., 431 F.3d 1268,

1275 (10th Cir. 2005).

      The district court’s summary judgment order raises tw o issues. To begin

with, the court did not address plaintiffs’ request that a class of prisoners be

certified under Fed. R. Civ. P. 23, and the court thus did not consider whether the

request for certification of a class action had any effect on the exhaustion issues.

In addition, the court did not acknowledge or address the fact that Ross involved a

single prisoner-plaintiff who had pled both exhausted and unexhausted claims, as

opposed to the situation here where there are multiple plaintiffs. Ross, 365 F.3d

at 1182.

      In their brief, plaintiffs cite cases standing for the proposition that the

prisoner exhaustion requirement is satisfied in a class action where a single

member of the class has exhausted his or her administrative remedies with respect

to each claim raised by the class, and this is known as “vicarious exhaustion.”

Aplts. Br. at 3 (citing Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004);

Lewis v. Washington, 265 F. Supp. 2d 939 (N.D. Ill. 2003); Jones v. Berge,

172 F. Supp. 2d 1128 (W .D. W is. 2001)). Although we agree with plaintiffs that

the vicarious exhaustion rule might save their claims if the district court had

certified a class of prisoners (assuming, without deciding, that this circuit would

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follow the vicarious exhaustion rule), the district court did not certify a class

here. M oreover, because plaintiffs are pro se, the district court would have

abused its discretion if it had certified a class action. See Fymbo v. State Farm

Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (holding that this court

reviews the issue of whether representative parties are adequate class

representatives under Fed. R. Civ. P. 23(a)(4) for abuse of discretion, and that

class representatives cannot appear pro se); see also Oxendine v. W illiams,

509 F.2d 1405, 1407 (4th Cir. 1975) (holding that pro se prisoners are not

adequate representatives for a class); 7A Charles Alan W right, Arthur R. M iller

& M ary Kay Kane, Federal Practice and Procedure § 1769.1 at 450 & n.13

(3d ed. 2005) (stating rule that “class representatives cannot appear pro se,”

and citing supporting case law ).

      That said, we nonetheless conclude that the district court erred in

dismissing plaintiff Sperry’s claims. As noted above, it is undisputed that

plaintiff Sperry exhausted all of the claims asserted in plaintiffs’ complaint, and

we see no reason to penalize him for the failure of his co-plaintiffs to exhaust all

of their claims. As a result, we hold that the district court should have applied the

total exhaustion rule to each plaintiff separately, and that the rule therefore does

not bar plaintiff Sperry’s claims.

      Accordingly, we AFFIRM the order and the related judgment entered by the

district court dismissing all of the claims of plaintiffs M cGoldrick, Pabst, and

                                          -5-
W ashington without prejudice. Because the district court did not abuse its

discretion, we also AFFIRM the denial of relief under Fed. R. Civ. P. 59(e) with

regard to plaintiffs M cGoldrick, Pabst, and W ashington. W e REVERSE and

VACATE the portions of the order and the related judgment entered by the

district court dismissing the claims of plaintiff Sperry, and the latter claims are

REM ANDED to the district court for further proceedings.


                                                      Entered for the Court


                                                      M ary Beck Briscoe
                                                      Circuit Judge




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