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


 O RLA N DO CO RTEZ C LA RK ,

               Plaintiff-Appellant,                     No. 05-1121
          v.                                           (D. Colorado)
 C OLO RA D O D EPA RTM EN T OF                    (D.C. No. 04-Z-2414)
 CO RRECTION S; DR . NW EKE,
 C.C.C.F. M edical; DR.
 FALLHOUSE, C.C.C.F. M edical;
 DR. JOSEPH W ERNER, A.V.C.F.
 M edical; CIND RA M AR TINEZ,
 M RT II, A.V.C.F. M edical;
 A N TH O NY DEC ESA RO , C DOC
 GRIEVANCE OFFICER; DR.
 RAYM OND L. LILLY; and DR.
 KENNETH D. DANYLCHUCK;

               Defendants-Appellees.




                            OR D ER AND JUDGM ENT *


Before H E N RY, M cKA Y, and EBEL, Circuit Judges. **




      *
         This order and judgment is not binding precedent except under the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 appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See F ED . R.A PP . P. 34( F ) and 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
      Orlando Cortez Clark, a Colorado state prisoner appearing pro se, filed this

42 U.S.C. § 1983 action against the Colorado Department of Corrections and

various employees. He alleged that the defendant officials w ere deliberately

indifferent to his medical needs. The district court dismissed his complaint on the

grounds that M r. Clark had not exhausted one of his claims. In a prior order and

judgment, this court affirmed that decision. See Clark v. Colo. Dep’t of Corr. 151

Fed. Appx. 630 (10th Cir. 2005) (“Clark I”).

      M r. Clark filed a petition for a writ of certiorari in the United States

Supreme Court. The Court granted M r. Clark’s petition, vacated our order and

judgment, and remanded the case for further consideration. See Clark v. Colo.

Dep’t of C orr., 127 S. Ct. 1352 (2007) (“Clark II”).

      On M arch 30, 2007, this court entered an order (a) recalling the October 25,

2005 mandate that we issued to the United States District Court for the District of

Colorado and (b) vacating our prior order and judgment. Subsequently, M r. Clark

filed a motion seeking reimbursement from the defendants-appellees for his costs

on appeal, specifically the filing fees.

      For the reasons set forth below , we now: (a) vacate the district court’s

February 2005 Order and Judgment of Dismissal; (b) remand the case to the

district court for further proceedings in light of Jones v. Bock, 127 S. Ct. 910

(2007), Aquilar-Avellaveda v. Terrell, 478 F.3d 1223 (10th Cir. 2007), and



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Roberts v. Barreras, __ F.3d __, No. 05-2373, 2007 W L 1113956 (10th Cir. Apr.

16, 2007); and (c) deny M r. Clark’s motion for costs, without prejudice to his

seeking reimbursement for costs taxable in the district court.



                                 I. BACKGROUND

      M r. Clark, proceeding pro se, filed this 42 U.S.C. § 1983 action in 2004,

naming as defendants the Colorado Department of Corrections and various

employees. He alleged that the defendant officials were deliberately indifferent

to his medical needs because (1) he was denied effective medication for severe

back and leg pain for an extended period of time, and his necessary back surgery

was improperly delayed; and (2) after his eventual surgery, he did not receive in a

timely manner prescribed pain medication, orthopedic shoes, certain hose for his

legs, a leg brace, or a medical pillow.

      The district court dismissed M r. Clark’s claims without prejudice because

he failed to exhaust administrative remedies as to his first claim. In a prior order

and judgment, we affirmed the district court’s decision. See Clark I, 151 Fed.

Appx. 630. W e reasoned that “the [Prison Litigation Reform Act] contains a total

exhaustion requirement, and . . . the presence of unexhausted claims in [a

prisoner]’s complaint require[s][a] district court to dismiss his action in its

entirety without prejudice.” Id. at 632 (quoting Ross v. County of Bernalillo, 365

F.3d 1181, 1189 (10th Cir. 2004)).


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      In its order granting M r. Clark’s petition for a writ of certiorari, the

Supreme Court instructed this court to reconsider his claims in light Jones v.

Bock, 127 S. Ct. 910 (2007). Clark II, 127 S. Ct. 1352.



                                  II. D ISC USSIO N

                     1. Reconsideration of M r. Clark’s claims

      In Jones, the Supreme Court held that prisoners need not specially plead

that they have exhausted administrative remedies. See id. at 921. Instead, under

the Prison Litigation Reform Act, the failure to exhaust administrative remedies is

an affirmative defense. Id.

      The C ourt also disagreed with the “total exhaustion” requirement that we

established in Ross. Instead, the Supreme Court held “if a complaint contains

both good and bad claims, . . . court[s] proceed[ ] with the good and leave[ ] the

bad.” Jones, 127 S. Ct. at 924. See Freeman v. W atkins, 479 F.3d 1257, 1259

(10th Cir. 2007) (observing that the Supreme Court’s decision in Jones

“effectively overruled” our decision in Ross ).

      Although Jones did not specifically address the issue of the burden of

proving exhaustion, we have subsequently held that, as an affirmative defense,

exhaustion must be raised and proven by the defendants. Roberts, __ F.3d __ at

*4.




                                          -4-
      However, we have also held that, if it is clear from on the face of a

prisoner’s complaint that he has not exhausted his administrative remedies, then

the district court may raise the exhaustion question sua sponte, consistent with 42

U.S.C. § 1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, and seek additional

information from the prisoner. A quilar-Avellaveda, 478 F.3d at 1226.

Importantly, “[a] district court cannot dismiss the complaint without first giving

the inmate an opportunity to address the [exhaustion] issue.” Id. (internal

quotation marks omitted). M oreover, “only in rare cases will a district court be

able to conclude from the face of the complaint that a prisoner has not exhausted

his administrative remedies and that he is without a valid excuse.” Id. at 1225.

      W e therefore conclude that this case should be remanded to the district

court for further proceedings in light of Jones, Roberts, and Aquilar-Avellaveda.



                           2. M r. Clark’s motion for costs

      M r. Clark has filed a motion seeking reimbursement from Appellees of his

costs on appeal, specifically the filing fees. Costs are taxed against an appellee

“if a judgment is reversed.” F ED . R. A PP . P. 39(a)(3). In this instance, however,

we have not reversed the judgment of the district court. Instead, we have vacated

our judgment and remanded to the district court for consideration of precedent

that did not exist at the time the district court entered its judgment.




                                          -5-
      W hen a judgment is vacated, “costs are taxed only as the court orders.” Id.

39(a)(4). As a general matter, the only recoverable costs are those incurred in

copying documents that this court requires parties to file. See id. 39(c); 10 TH

C IR . R. 39.1. M r. Clark has not provided an itemized and verified bill of costs

demonstrating that he incurred any such costs. F ED . R. A PP . P. 39(d)(1). M ore

importantly, however, even if he had incurred such costs, the circumstances under

which w e vacated our judgment are not such that an aw ard of costs to M r. Clark

would be warranted.

      To the extent that M r. Clark seeks reimbursement for costs taxable in the

district court, such as filing fees, see id. 39(e), the motion is denied without

prejudice to refiling in the district court. To the extent that M r. Clark seeks

reimbursement for costs taxable in this court, the motion is denied.

                                III. C ON CLU SIO N

      Accordingly, we V ACATE the district court’s dismissal of M r. Clark’s

complaint and remand the case for further consideration in accordance with

Jones, Roberts, and Aquilar-Avellaveda. W e DENY M r. Clark’s motion for costs,

without prejudice to his seeking costs taxable in the district court.



                                 Entered for the Court,


                                 Robert H. Henry
                                 United States Circuit Judge


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