                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 14 2005
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    ARTHUR JOHN ALLOWAY,

             Plaintiff-Appellant,

    v.                                                  No. 04-7060
                                                  (D.C. No. 01-CV-558-P)
    GLYNN BOOHER, Warden over John                      (E. D. Okla.)
    Lilly Correctional Center; REGINALD
    HINES, Warden over Jess Dunn
    Correctional Center; MARTY
    SIRMONS, Warden over Howard
    McLeod Correctional Center;
    LENORA JORDON, Warden over
    James Crabtree Correctional Center;
    MELINDA GUILFOYLE, Designee
    for the Director of Corrections;
    HENRY, Officer, Corrections officer
    at HMCC; JIM RABON, Sentence
    Administrator for ODOC; BILL
    REYNOLDS, Warden Sirmon’s
    Administrative Assistant; MIKE
    PATE, Hearing Examiner for Warden
    Sirmons at HMCC,

           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      This order and judgment is not binding precedent, except under the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
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before SEYMOUR , McCONNELL , and TYMKOVICH , 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Arthur John Alloway brought a civil rights action under 42 U.S.C. § 1983,

asserting nine claims concerning various conditions of his confinement. The

district court dismissed Mr. Alloway’s claims as frivolous under 28 U.S.C.

§ 1915(e)(2)(B), and Mr. Alloway appeals. We review a § 1915(e)(2)(B)

dismissal de novo, taking the allegations in the complaint as true.    McBride v.

Deer , 240 F.3d 1287, 1289 (10th Cir. 2001).

       Before we can consider the merits of Mr. Alloway’s claims, we must

determine whether he properly exhausted his administrative remedies.     1
                                                                             Under the


1
       In light of our disposition of this appeal, we do not take any position on the
merits of Mr. Alloway’s various claims. We note, however, that Mr. Alloway
alleges that he suffered a violation of his Fifth Amendment right against self-
incrimination when prison officials revoked his earned good-time credits due to
his non-participation in a sex offender treatment program, and that several courts
have found that increasing the length of incarceration (including by revoking
earned credits) may constitute unconstitutional compulsion under     McKune v. Lile ,
536 U.S. 24 (2002). See United States v. Antelope , 395 F.3d 1128, 1137-38 (9th
Cir. 2005); Donhauser v. Goord , 314 F. Supp. 2d 119, 132 (N.D.N.Y. 2004);
Bender v. N.J. Dep’t of Corr. , 812 A.2d 1154, 1159 (N.J. Super. Ct. App. Div.
                                                                        (continued...)

                                            -2-
Prison Litigation Reform Act, complete exhaustion of administrative remedies is a

mandatory prerequisite to filing a § 1983 claim concerning prison conditions.

42 U.S.C. § 1997e(a); Booth v. Churner , 532 U.S. 731, 741 (2001);      Jernigan v.

Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). The district court did not

explicitly address exhaustion, presumably because it viewed Mr. Alloway’s claims

as frivolous. See 42 U.S.C. § 1997e(c)(2) (allowing a court to dismiss a frivolous

action without first requiring exhaustion of remedies).

      Our review of the record indicates that Mr. Alloway’s complaint may be a

mixed complaint; in other words, it may contain both exhausted and unexhausted

claims. Particularly, it appears that Mr. Alloway failed to exhaust his

administrative remedies with regard to several claims, but that he may have

exhausted his remedies with regard to his claims concerning the loss of earned

credits (from refusing to admit to his offenses in connection with a sex offender

treatment program) and his objections to an auditor unilaterally deducting his

credits. R. Doc. 38, Part III, attachs.

      In this case, we feel that it is appropriate to allow the district court to

determine in the first instance the exhaustion status of each of Mr. Alloway’s

claims. Once the district court has made its determination, it should proceed


1
 (...continued)
2003) ; but cf. Chavez v. Martinez , 538 U.S. 760, 769, 778 (2003) (discussing
when a Fifth Amendment violation is complete and when liability should lie).

                                          -3-
accordingly. This court has held that, if a prisoner’s complaint is a mixed

complaint, or if it contains no exhausted claims, an appropriate remedy is

dismissal of the entire action without prejudice.   Ross v. County of Bernalillo ,

365 F.3d 1181, 1189-90 (10th Cir. 2004). In the alternative, the district court

may allow Mr. Alloway to voluntarily dismiss any unexhausted claims and to

proceed with any exhausted claims.      Cf. Rose v. Lundy , 455 U.S. 509, 522 (1982)

(applying similar remedy in habeas case).

       Mr. Alloway’s motion to proceed on appeal in forma pauperis is

GRANTED, and he is reminded that he is obligated to continue making partial

payments until the entire appellate filing fee has been paid. Mr. Alloway’s

motion for sanctions and his request for counsel on appeal are DENIED. The

judgment of the district court is REVERSED and REMANDED for further

proceedings. The mandate shall issue forthwith.

                                                      Entered for the Court


                                                      Timothy M. Tymkovich
                                                      Circuit Judge




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