                                       File Name: 07a0073n.06
                                       Filed: January 30, 2007

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                              No. 05-1026

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

FREDRICK FISHER,

          Plaintiff-Appellant,

v.                                                           ON APPEAL FROM THE
                                                             UNITED STATES DISTRICT
GEORGE PRIMSTALLER et al.,                                   COURT FOR THE EASTERN
                                                             DISTRICT OF MICHIGAN
          Defendants-Appellees.


                                                         /

Before:          MARTIN, GUY, and CLAY, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff Fredrick Fisher, an inmate at the Southern

Michigan Correctional Facility, brought this action against several Michigan Department of

Corrections Officials, alleging that they denied him necessary medical care in violation of the Eighth

Amendment, retaliated against him for his use of the prison’s grievance process in violation of the

First Amendment, and conspired to obstruct justice in violation of 42 U.S.C. § 1985.

          The district court dismissed Fisher’s complaint based on his failure to exhaust administrative

remedies under 42 U.S.C. § 1997e, part of the Prison Litigation Reform Act. Applying this Court’s

existing precedent, the district court specifically found that Fisher’s complaint contained both

exhausted and unexhausted claims, that Fisher failed to plead exhaustion of each of his claims with

specificity, and that he failed to plead exhaustion with respect to each named defendant. All of these
No. 05-1026
Fisher v. Primstaller, et al.
Page 2

failures were considered fatal to his cause of action.

        After Fisher brought the present appeal, the Supreme Court granted certiorari in Jones v.

Bock, 126 S. Ct. 1462 (2006), and we held his appeal in abeyance pending the disposition of that

case. The Supreme Court recently issued its decision in Jones, reversing the relevant precedent of

this Court on all three exhaustion issues, and holding that (1) “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;” (2) “exhaustion is not per se inadequate simply because an

individual later sued was not named in the grievances;” and (3) where a complaint contains both

exhausted and unexhausted claims, the district court should proceed with the exhausted claims while

dismissing the unexhausted claims, rather than dismissing the complaint in its entirety. Jones v.

Bock, Nos. 05-7058 and 05-7142, slip op. at 15-16, 19, 19-23 (U.S. Jan. 22, 2007).

        Based on the Supreme Court’s ruling in Jones, we reverse the district court’s full dismissal

of Fisher’s complaint, and remand the case for further proceedings consistent with Jones.
