                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  February 29, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                                  TENTH CIRCUIT


 GARY WAYNE RUSSELL,

          Plaintiff-Appellant,
 v.                                                     No. 07-7081
                                                  (D.C. No. CIV-06-377-S)
 JASON LINCOLN, Jail Administrator;                     (E.D. Okla.)
 JERRI CARRELL, Jail Nurse

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Gary Wayne Russell, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his civil rights claim under 42 U.S.C. § 1983. The court

granted defendants’ motion to dismiss because Russell had failed to exhaust his

administrative remedies before bringing suit. For substantially the same reasons

set forth by the district court, we AFFIRM.




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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. 32.1.
                                            I

      Russell claims he was denied access to legal and postal materials and was

subject to medical malpractice while imprisoned in the McCurtain County Jail in

Oklahoma. In his complaint, he alleged that he had exhausted his administrative

remedies before bringing the instant suit, as required by the Prison Litigation

Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). In support of this contention, he

attached copies of several “Request to Staff” and “Inmate Sick Call Request”

forms which he had filed with jail staff.

      Defendants filed a motion to dismiss, arguing that Russell had failed to

exhaust his administrative remedies. They attached to this motion copies of the

jail’s inmate grievance procedures. Under these procedures, inmates must first

submit a “Request to Staff,” detailing any perceived abridgments of the prisoner’s

rights and privileges. If an inmate is dissatisfied with the staff’s response to his

request, he must then file a written “grievance” addressed to the jail administrator

within seven to ten days. In addition to these procedures, defendants attached

three “Request to Staff” forms submitted by Russell that were not attached to his

complaint, and an “Inmate Grievance” form Russell filed in conjunction with one

of his “Request to Staff” forms. Because Russell improperly filed his “grievance”

concurrently with his request, and never filed grievances following responses to

his other requests, defendants urge that he had failed to exhaust the jail’s

administrative remedies.

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      In support of their motion to dismiss, defendants relied on Fitzgerald v.

Corrections Corp. of America, 403 F.3d 1134, 1139 (10th Cir. 2005), in which we

held that the plaintiff bears the burden of pleading exhaustion of administrative

remedies under the PLRA. After the motion was filed, but before the district

court ruled on it, the Supreme Court handed down its decision in Jones v. Bock,

127 S. Ct. 910 (2007). Jones held that exhaustion of administrative remedies

under the PLRA is an affirmative defense that must be pled by defendants, and

overturned a Sixth Circuit rule requiring prisoner plaintiffs to plead exhaustion.

Id. at 919-21. In light of Jones, defendants filed an amended motion to dismiss,

arguing that Russell’s failure to exhaust was clear from the face of his complaint

and the supporting documents attached thereto.

      After receiving several supplemental briefings and responses, the district

court granted defendants’ motion to dismiss because Russell had failed to exhaust

his administrative remedies. Russell now timely appeals from that decision.

                                         II

      We review de novo a district court’s dismissal of a prisoner’s § 1983 action

for failure to exhaust administrative remedies. Whitington v. Ortiz, 472 F.3d 804,

807 (10th Cir. 2007). Following Jones, the defendant bears the burden of raising

exhaustion in its responsive pleadings. Freeman v. Watkins, 479 F.3d 1257, 1260

(10th Cir. 2007). In addition, in determining whether to grant a motion to

dismiss, a court may only consider the materials in the pleadings and must accept

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all of the plaintiff’s allegations as true. Alvarado v. KOB-TV, L.L.C., 493 F.3d

1210, 1215 (10th Cir. 2007).

       Viewing the facts alleged by Russell as true, see id., we conclude that he

has failed to exhaust his administrative remedies. We first note that because

defendants raised the issue of exhaustion in their responsive pleadings, that issue

was properly presented to the district court. From the face of the complaint and

the materials submitted by the parties, it is apparent that Russell only completed

the first step in the jail’s two-step grievance process, by filing “Request to Staff”

forms. Moreover, he filed these forms only with respect to his legal materials and

medical claims, not his postal claims. Although Russell had filed a “Inmate

Grievance” form related to his medical claim, this form was improperly filed in

conjunction with, and not as an appeal from, his “Request to Staff.” Russell thus

failed to complete the second required step of the administrative grievance

process on any of his claims, and the district court properly dismissed Russell’s

suit as a result.

                                          III

       For the foregoing reasons, we AFFIRM the judgment of the district court.

We also GRANT Russell’s motion to pay the filing fee in partial payments, but




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we remind him that he is obligated to continue making such partial payments until

the entire fee has been paid.


                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




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