                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       February 8, 2006
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court

 MARVIN B. DAVIS, JR.,

               Plaintiff-Appellant,                   No. 05-3233
          v.                                           (D. Kansas)
 CHARLES E. SIMMONS,                          (D.C. No. 01-CV-3186-GTV)
 Secretary of Corrections for the
 Kansas Department of Corrections;
 LOUIS E. BRUCE, Warden,
 Hutchinson Correctional Facility;
 KANSAS DEPARTMENT OF
 CORRECTIONS; BRUCE
 BROWER, CCII, acting Unit Team
 Manager, Hutchinson Correctional
 Facility; WILLIAM E.
 CUMMINGS, Secretary of
 Corrections Designee for Kansas
 Department of Corrections;
 GEORGE VAUGHN, District
 Manager for Aramark Correctional
 Services; ARAMARK SERVICES,
 INC., Aramark Correctional
 Services,

               Defendants-Appellees.


                           ORDER AND JUDGMENT *



      *
        This order and judgment is not binding precedent, except under the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
may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before EBEL, McKAY, and HENRY, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Marvin B. Davis, Jr., a state prisoner appearing pro se, brought suit in 2001

alleging that various prison officials violated his civil rights by (1) assigning him

to work for less than the minimum wage, and (2) retaliating against him after he

filed grievances. The district court dismissed his claims for failure to exhaust

administrative remedies as required by the Prison Litigation Reform Act

(“PLRA”), and we affirmed the district court in June 2004. Mr. Davis then filed a

motion for relief from judgment in district court pursuant to Rule 60(b). The

district court denied this motion, as well as Mr. Davis’s motion for

reconsideration. For the reasons stated below, we AFFIRM the district court.

                                  I. BACKGROUND

      The facts and circumstances relating to Mr. Davis’s § 1983 claims are

contained in our June 29, 2004 opinion affirming the dismissal of these claims.

Davis v. Simmons, 103 F. App’x 344, 345 (10th Cir. 2004) (unpublished). Mr.

Davis filed his motion for relief from judgment, pursuant to Rule 60(b)(6), on

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February 24, 2005. In that motion, Mr. Davis argued that federal courts do not

have the power to dismiss, sua sponte, his claims for failure to exhaust

administrative remedies because (1) such dismissal violates the separation of

powers doctrine, and (2) exhaustion is an affirmative defense that must be pled by

the defendants. The district court held that his arguments were “clearly

foreclosed by Tenth Circuit authority,” and dismissed the motion as well as Mr.

Davis’s subsequent motion for reconsideration. On appeal, Mr. Davis raises these

same two issues, and additionally argues that he did, in fact, exhaust all

administrative remedies available to him.

                                    II. DISCUSSION

       Rule 60(b) provides five specific reasons that a district court may “relieve a

party . . . from a final judgment, order, or proceeding.” F ED . R. C IV . P RO .

60(b)(1)-(5). Rule 60(b)(6) provides relief for “any other reason justifying relief

from the operation from the judgment.” We review the district court’s denial of a

60(b) motion for abuse of discretion. Cummings v. Gen. Motors Corp., 365 F.3d

944, 954 (10th Cir. 2004). “Parties seeking relief under Rule 60(b) have a higher

hurdle to overcome because such a motion is not a substitute for an appeal.” Id.

at 955. “Rule 60(b)(6) relief is even more difficult to attain and is appropriate

only when it offends justice to deny such relief. The denial of a 60(b)(6) motion

will be reversed only if we find a complete absence of a reasonable basis and are


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certain that the decision is wrong.” Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d

1281, 1293 (10th Cir. 2005) (internal citation, quotation marks, and ellipsis

omitted).

      A.     Separation of Powers and Sua Sponte Dismissal

      As the district court correctly noted, this Circuit fully considered the

arguments Mr. Davis raises in Steele v. Federal Bureau of Prisons, 355 F.3d

1204, 1209-12 (10th Cir. 2003). There, we explicitly held that exhaustion is a

pleading requirement, not an affirmative defense. Id. at 1210 (“The next question

concerns the procedural characterization of exhaustion: is it an essential

allegation of a prisoner’s claim or is it an affirmative defense? . . . [W]e believe

that a prisoner must plead exhaustion in his complaint.”). We also explained that

in some situations, it would be appropriate for a district court to sua sponte

dismiss a complaint for failure to exhaust administrative remedies: “[pleading]

requirements facilitate the district court’s sua sponte review on the exhaustion

issue.” Id. at 1211.

      Mr. Davis contends that requiring him to plead exhaustion amounts to a

heightened pleading requirement in contravention of Swierkiewicz v. Sorema, 534

U.S. 506 (2002), and that judicially requiring heightened pleading usurps

Congress’s lawmaking function in violation of the separation of powers doctrine.

Again, our opinion in Steele addresses this issue. In Steele, we explicitly


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considered Swierkiewicz and decided that requiring a prisoner to plead exhaustion

“do[es] not amount to a judicially-created heightened pleading requirement . . . .

[T]he need to plead exhaustion with specificity does not take its authority from

the Federal Rules of Civil Procedure, but from the [PLRA].” 355 F.3d at 1210-11

(internal quotation marks omitted).

      B.     Actual Exhaustion of Remedies

      The district court stated that “[a] 60(b) motion is not a vehicle to reargue

the merits of the underlying judgment, to advance new arguments which could

have been presented in the parties’ original motion papers, or as a substitute for

appeal.” Rec. doc. 26, at 2 (Order, filed April 18, 2005) (citing Servants of

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Cashner v. Freedom

Stores, Inc., 98 F.3d 572, 576-77 (10th Cir. 1996)). Because Mr. Davis’s

arguments related to whether he actually did exhaust his administrative remedies

were considered by both the district court and this court during his previous

appeal, we need not reconsider these arguments here. Motions under Rule 60(b)

“are inappropriate vehicles to reargue an issue previously addressed by the court.”

Servants of Paraclete, 204 F.3d at 1012.

                                III. CONCLUSION

      For the reasons stated above, we AFFIRM the district court’s order

dismissing Mr. Davis’s motion. We remind Mr. Davis of his obligation to

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continue making partial payments of his appellate filing fee until the entire




balance is paid in full.




                                       Entered for the Court,




                                       Robert H. Henry
                                       Circuit Judge




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