                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                    February 15, 2007
                             FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                       Clerk of Court
    W ALLA CE M ITCH ELL,

                Plaintiff-Appellant,

    v.                                                  No. 05-1476
                                              (D.C. No. 03-cv-387-EW N-OES)
    KEVIN ESTRADA, Correction                            (D . Colo.)
    Officer; JOE E. GUNJA, W arden;
    BRA ND ON E. PAYNE,
    EM T-Paramedic; BILL GRAN T,
    M .D., Psychiatrist; HA RLEY
    LAPPIN, Director, Bureau of Prisons,
    in their personal and professional
    capacities,

                Defendants-Appellees,

    and

    RACHEL M ILLER, R.N.,

                Defendant.



                             OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      W allace M itchell, a federal prisoner proceeding pro se, appeals the

dismissal of his claims that defendants (officials and employees of the United

States Bureau of Prisons (B OP)), violated his constitutional rights under the First,

Fifth, Sixth, and Eighth Amendments while he was a prisoner at the United States

Penitentiary in Florence, Colorado (USP-Florence). The recent Supreme Court

case of Jones v. Bock, Nos. 05-7058, 05-7142, 2007 W L 135890 (U.S. Jan. 22,

2007), abrogates Tenth Circuit cases construing the exhaustion requirements of

42 U.S.C. § 1997e(a), a provision of the Prison Litigation Reform Act of 1995

(PLRA). See Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004),

abrogated by Jones, 2007 W L 135890, at *13-*15; Steele v. Federal Bureau of

Prisons, 355 F.3d 1204 (10th Cir. 2003), abrogated by Jones, 2007 W L 135890,

at *11.

      Because the district court relied on the abrogated cases for its exhaustion

rulings, we reverse and remand for further proceedings on issues related to

exhaustion. W e also dismiss as moot M r. M itchell’s appellate challenges to the

denial of declaratory and injunctive relief based on his transfer from U SP-

Florence. Finally, we affirm the district court’s disposition of M r. M itchell’s

remaining issues.




                                          -2-
                                           I.

      In a series of complaints, amendments, and supplements, M r. M itchell

alleged that: (1) defendant Kevin Estrada, a correctional officer at USP-Florence,

had hired inmates to assault M r. M itchell in April 2003 and had placed a

continuing contract on his life; (2) defendant Joe E. Gunja, the USP w arden,

threatened to have M r. M itchell killed, placed known enemies in his cell, ordered

the April 2003 assault, and conspired with Officer Estrada; (3) defendant Brandon

Payne, a paramedic, refused to treat M r. M itchell for the serious injuries he

sustained in the assault; (4) defendant Harley Lappin, the Director of the BO P,

conspired with defendant Gunja to have M r. M itchell killed, ordered him

assaulted, and refused to transfer him to a safer facility; and (5) defendant Bill

Grant, the USP-Florence psychiatrist, denied him his necessary psychotropic

medications. 1 M r. M itchell sought damages, a declaratory judgment of official

wrongdoing, and an injunction requiring a protective transfer.

      Defendants filed motions to dismiss, which were referred to the magistrate

judge assigned to the case. M r. M itchell contested defendants’ motions and also

asked the magistrate judge to recuse himself and to disqualify the assistant United

States attorney as counsel for defendants. The magistrate judge recommended

denial of the motions to disqualify and recuse as lacking in merit.

1
      M r. M itchell also sued defendant Rachel M iller, a USP nurse, for denial of
medical treatment. Because M s. M iller has never been served and has never
appeared in this action, the claim against her is not relevant to this appeal.

                                          -3-
      Then, in a detailed seventy-six page recommendation, the magistrate judge

sorted through M r. M itchell’s claims. Based on the doctrine of sovereign

immunity, the magistrate judge recommended that the claims for damages,

declaratory relief, and injunctive relief against defendants in their official

capacities should be dismissed with prejudice.

      The magistrate judge next evaluated M r. M itchell’s damage claims against

defendants in their individual capacities for exhaustion of available administrative

remedies in accordance with 42 U.S.C. § 1997e(a). 2 The magistrate judge applied

the abrogated rule expressed in Steele, 355 F.3d at 1209-10, that

      in this circuit, the exhaustion requirement is not an affirmative
      defense, but instead, must be sufficiently pled and/or documented by
      an inmate in his Complaint and failure to do so is the same as failing
      to state a claim upon which relief may be granted. Therefore, the
      burden with regard to the exhaustion requirements belongs to the
      inmate who must supply well-pled factual allegations and/or
      documentation in his pleadings. To satisfy this burden, the inmate
      who desires to pursue a prison conditions claim in federal court will
      necessarily need to maintain accurate records of his or her grievance
      activities.. . . [T]he ultimate issue is and remains whether the
      plaintiff has well-pled factual allegations and/or provided sufficient
      documentation of exhaustion with regard to his individual claims. . . .

R., Doc. 149, at 25-26 (citation omitted).



2
       Section 1997e(a) provides:

       No action shall be brought with respect to prison conditions under
       section 1983 of this title, or any other Federal law, by a prisoner
       confined in any jail, prison, or other correctional facility until such
       administrative remedies as are available are exhausted.


                                           -4-
      W ith this explicit allocation of the burden, the magistrate judge concluded

that M r. M itchell had demonstrated exhaustion of his claims against M r. Gunja,

with the exception of newly-added allegations of a conspiracy with M r. Estrada

and M r. Lappin. He then determined that none of M r. M itchell’s other claims

were exhausted. The magistrate judge w as unpersuaded by M r. M itchell’s

argument that any lack of actual exhaustion should be excused on the ground that

the prison grievance process was not available to him during critical time periods.

The magistrate judge recommended allowing voluntary dismissal of the

unexhausted claims w ith prejudice and proceeding with the exhausted claim

against M r. Gunja.

      M r. M itchell objected to the recommendation and, as the district court

stated, “[c]onsistent with his approach to the prison grievance process and his

approach in tendering supplemental pleadings to the court, he . . . filed numerous

supplemental objections w ithout ever showing why he could not have placed all

his objections into a single document.” R., Doc. 170, at 1. Upon its de novo

review , the district court agreed with the magistrate judge’s dissection of the facts

and recommendation to dismiss with prejudice the official-capacity claims. The

court, however, refused to allow voluntary dismissal of the unexhausted claims.

The district court decided that the “better course is to . . . dismiss all of the

individual-capacity claims w ithout prejudice” under the recently abrogated rule

announced in Ross, 365 F.3d at 1189, that the PLRA requires dismissal of an

                                            -5-
action in its entirety without prejudice if a prisoner’s complaint contains

unexhausted claims. R., Doc. 170 at 2.

                                           II.

      On appeal, M r. M itchell asserts that the district court erred: (1) in denying

his motions for disqualification of the assistant United States attorney and recusal

of the magistrate judge; (2) in dismissing without prejudice his damages claims for

failure to demonstrate total exhaustion; and (3) in dismissing with prejudice his

claims for declaratory and injunctive relief. This court has jurisdiction pursuant to

28 U.S.C. § 1291.

      “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. Dept. of

Corr., 165 F.3d 803, 806 (10th Cir. 1999). “In determining whether 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.

      Our standard of review is dependent on the issue under examination. W e

review the denial of the disqualification and recusal motions for abuse of

discretion. Chavez v. New M exico, 397 F.3d 826, 839 (10th Cir. 2005)

(disqualification of counsel); United States v. Burger, 964 F.2d 1065, 1070

(10th Cir. 1992) (recusal of presiding judge). The district court’s legal

                                           -6-
determination to dismiss with prejudice the claims for declaratory and injunctive

relief and his damages claims without prejudice are reviewed de novo. See Hunt v.

Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994) (dismissal for legal insufficiency);

Ross, 365 F.3d at 1185 (dismissal for failure to exhaust).

      A.     Disqualification of counsel and recusal of magistrate judge

      M r. M itchell alleges that the magistrate judge had a duty to recuse himself

because he held a preformed opinion on the case and also that the assistant United

States attorney should have been disqualified as counsel for defendants due to a

conflict of interest. W e see no abuse of discretion in either ruling because

M r. M itchell has alleged no facts to support his claims. See Chavez, 397 F.3d at

840 (requiring evidence of conflict to demonstrate abuse of discretion in denying

disqualification motion); In re M cCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004)

(requiring reasonable factual basis to question the presiding judge’s impartiality).

M r. M itchell’s asserted conclusions, beliefs, and opinions are insufficient to form

a basis for disqualification or recusal.

      B.     Exhaustion of administrative remedies

      M r. M itchell’s complaint and supplemental filings assert that he complied

with prison procedures in exhausting administrative remedies for his damages

claims and, even if he did not, he fully pursued the remedies that were available to

him. The magistrate judge determined that M r. M itchell had failed to meet his

burden of demonstrating exhaustion and recommended dismissal for failure to

                                           -7-
state a claim. 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.” 2007

W L 135890, at *11. 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). 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. 3

      Furthermore, the district court’s determination that most of M r. M itchell’s

claims were not exhausted led to its decision to dismiss the case under the total

exhaustion rule previously applied in this circuit. See Ross, 365 F.3d at 1189.

The Supreme Court, however, has rejected the proposition that the PLRA demands

a departure from the general principle that “if a complaint contains both good and



3
       M r. M itchell alleges that the grievance process was not available to him
during critical periods due to injuries sustained in the cell assault, hospitalization,
lockdown of the Special Housing Unit, and absence from custody. W e note that
the magistrate judge evaluated these allegations under the cause-and-prejudice
framew ork developed in habeas corpus cases to excuse procedural default. There
is no need for an analogy to the law of habeas corpus. Under § 1997e(a), the
question is straightforward: whether the prisoner has exhausted “such
administrative remedies as are available.” See Underwood v. Wilson, 151 F.3d
292, 295 (5th Cir. 1998) (noting that PLRA does not define “available,” and
applying dictionary definitions of “capable of availing; having sufficient power or
force to achieve an end, . . . capable of use for the accomplishment of a purpose:
immediately utilizable, . . . accessible or may be obtained”) (quotations omitted).

                                          -8-
bad claims, the court proceeds with the good and leaves the bad. Only the bad

claims are dismissed; the complaint as a whole is not.” Jones, 2007 W L 135890,

at *13 (quotation and alteration omitted). On remand, the district court should be

mindful that the presence of unexhausted claims does not require the dismissal of

M r. M itchell’s entire case.

       C.     Declaratory and injunctive relief

       M r. M itchell also argues that the district court erred in dismissing with

prejudice his claims for a declaratory judgment and injunctive relief. W e note that

M r. M itchell is no longer an inmate at USP-Florence. An inmate’s transfer from a

prison facility generally moots claims for declaratory and injunctive relief related

to conditions of confinement. See Green v. Branson, 108 F.3d 1296, 1299-1300

(10th Cir. 1997) (holding that release from prison moots claims for declaratory and

injunctive relief); Love v. Summit County, 776 F.2d 908, 910 n.4, 912 (10th Cir.

1985) (indicating that the general rule applies to a transfer betw een prisons).

Because M r. M itchell has been transferred to another facility, his claims for

declaratory and injunctive relief are moot. Thus, this court lacks jurisdiction to

consider the district court’s ruling on M r. M itchell’s declaratory judgment and

injunction claims. See Green, 108 F.3d at 1299.

                                           III.

       W e REVERSE AND REM AND all rulings on exhaustion for further

proceedings in accordance with Jones, 2007 W L 135890, and this order and


                                           -9-
judgment. W e DISM ISS the declaratory judgment and injunctive relief claims as

m oot. The remainder of the district court’s judgment is AFFIRMED.



                                                  Entered for the Court


                                                  M ichael W . M cConnell
                                                  Circuit Judge




                                       -10-
