                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 07a0206n.06
                                  Filed: March 21, 2007

                                            No. 05-4363

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


IRVING FRANK KRAMER, JR.,                               )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
                                                        )    THE NORTHERN DISTRICT OF
REGINALD A. WILKINSON and RONALD C.                     )    OHIO
MOOMAW,                                                 )
                                                        )
       Defendants-Appellees.


Before: SILER, MOORE, and GILMAN, Circuit Judges.

       PER CURIAM. Plaintiff Irving F. Kramer, Jr. appeals the district court’s dismissal of his

42 U.S.C. § 1983 claim alleging that the quality of mental health services provided by the Ohio

prison system has decreased, that he was treated inappropriately by staff, and that he has been forced

to take psychotropic medication. We reverse and remand in light of recent authority.

                                         BACKGROUND

       In 2005, Kramer filed a pro se complaint against Reginald Wilkinson1 and Dr. Ronald

Moomaw2 (collectively, “Defendants”) in district court, alleging violations of his Eighth Amendment

right to be free from cruel and unusual punishment. Kramer’s complaint alleges that “[m]ental



       1
           Director of the Ohio Department of Rehabilitation and Correction (“ODRC”).
       2
           Director of Clinical Services, ODRC Bureau of Mental Health Services.
No. 05-4363
Kramer v. Wilkinson, et al.

health in the Ohio prison system has gone down . . . ” and that “two doctors [have said he] would

have to go off [his] medication (lithium) because of kidney failure.” Kramer also claims that he was

placed in solitary confinement, sprayed with mace, and given shots against his will, all in an effort

to force him to “conform to his meds.” In March 2005, Defendants filed a motion to dismiss,

arguing, inter alia, that Kramer failed to exhaust administrative remedies. Three days later, the

district court, sua sponte, dismissed Kramer’s complaint without prejudice for failure to exhaust his

administrative remedies before seeking judicial relief. The district court then denied Defendants’

motion to dismiss as moot.

                                   STANDARD OF REVIEW

       We review the dismissal of a prisoner’s civil rights claim for failure to exhaust administrative

remedies de novo. Boyd v. Corrs. Corp. of America, 380 F.3d 989, 993 (6th Cir. 2004).

                                          DISCUSSION

       The district court below dismissed Kramer’s complaint for failure to prove exhaustion of

administrative remedies pursuant to the Sixth Circuit’s heightened pleading standards that were

designed to facilitate the screening requirement of the Prison Litigation Reform Act (“PLRA”), 110

Stat. 1321-71, as amended, 42 U.S.C. 1997e et seq. See Knuckles El v. Toombs, 215 F.3d 640, 642

(6th Cir. 2000); Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir. 1998) (per curiam). Under

these heightened pleading standards, prisoners bore the burden of pleading and proving exhaustion.

See Brown, 139 F.3d at 1104.

       In Jones v. Bock, 127 S. Ct. 910 (2007), however, the Supreme Court recently invalidated

these heightened pleading standards, holding that “failure to exhaust is an affirmative defense under

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Kramer v. Wilkinson, et al.

the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their

complaints.” Id. at 921. Although Jones was not decided at the time the district court dismissed

Kramer’s complaint, it is now controlling precedent. Thus, Kramer does not bear the burden of

specially pleading and proving exhaustion; rather, this affirmative defense may serve as a basis for

dismissal only if raised and proven by the defendants.

       We therefore REVERSE the district court’s sua sponte dismissal of Kramer’s complaint and

REMAND for further proceedings consistent with this opinion.




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