                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         May 11, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court

 SHAW N RIV ERA,
               Plaintiff-Appellant,                      No. 06-1344
          v.                                (D.C. No. 05-CV-00300-W DM -M EH )
 LT. FRANK N ELSON; GARRY                                  (D . Colo.)
 PITTM AN; LT. PERFECTO HIJAR;
 LT. REYES M ARTINEZ; RICHARD
 M EDINA, CM ; DIANA SHAU FLER,
 CM ; W ILLIAM SCRUGGS, CM ;
 TOM LOPEZ,
               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      In this pro se state prisoner § 1983 appeal, Plaintiff alleges that he was

assaulted by a prison guard and subsequently subjected to disciplinary charges

arising out of the incident. The matter was referred to a magistrate judge, who


      *
        This order and judgment is not binding precedent, except under the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 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.
relied on Steele v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003),

and Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), for the

respective propositions that “[e]xhaustion is a pleading requirement, rather than

an affirmative defense” (Doc. # 93 at 6) and that the “total exhaustion rule”

requires dismissal where some claims are exhausted but others remain

unexhausted (id. at 11). The district court adopted this section of the magistrate

judge’s report and recommendation and therefore dismissed Plaintiff’s suit

without prejudice. 1

      Defendants appropriately concede that Jones v. Bock, --- U.S. ----, 127 S.

Ct. 910, 925-26 (2007), did away with the total exhaustion requirement. See also

Freeman v. Watkins, 479 F.3d 1257, 1259 (10th Cir. 2007). O f course, Jones also

overruled Steele by concluding that exhaustion is an affirmative defense. Thus,

the district erred in adopting these aspects of the magistrate judge’s report and

recommendation. Accordingly, we REV ER SE and REM AND the district court’s

dismissal of this action for a reexamination consistent with Jones. W e note our

recent clarification in Roberts v. Barreras, --- F.3d ----, 2007 W L 1113956 (10th

Cir. Apr. 16, 2007), of the burden of proof associated with the exhaustion



      1
        The magistrate judge also addressed the motion for summary judgment
brought by Defendant Nelson, the only defendant against whom Plaintiff
adequately exhausted his claim for excessive force. The district court, however,
denied as moot Defendant Nelson’s m otion for summary judgement given its
dismissal for lack of total exhaustion in accordance with Ross. Therefore, no
aspect of that motion is before this court on appeal.

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affirmative defense.

      Lastly, we GR A N T Plaintiff’s request for in forma pauperis status for

purposes of this appeal.

                                              Entered for the Court



                                              M onroe G. M cKay
                                              Circuit Judge




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