                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         June 19, 2007
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court


 JOSE M EDINA ESCOBAR,

               Plaintiff - Appellant,                    No. 06-1451
          v.                                               D. Colo.
 L. REID; K. CO OPER; E. CELLA; T.              (D.C. No. 06-CV-1222-ZLW )
 H A U CK S; E. PER RY ; D .
 GALLAGHER; SGT. BINDER; C/O
 VA LDEZ; J. BRO W N; J. SIM S; E.
 D ICLU SIO N ; E. M O RA ; A . LUNA;
 R. W ENCL; J. W ERMERS; R.
 OLIVETT; C/O JAC KSON; L.
 M O N TO YA ; LT. PA U LIN O ; JOHN
 DOW , Lt.; C/O SANTOS; C/O
 RAYM OND; D. SM ITH, Sgt.; C/O
 W ILLIAM S; C/O B ALL,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination


      *
        This order and judgment is not binding precedent except under the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.
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.

      Jose M edina Escobar, a pro se Colorado state prisoner, brought a 42 U.S.C.

§ 1983 complaint against several prison guards and officials asserting several

violations of his constitutional rights. 1 The district court dismissed Escobar’s

claims for failure to demonstrate exhaustion of administrative remedies. W e

reverse.

                                        Background

      In June 2006, Escobar filed a complaint against eighteen prison guards at

the Cañon City State Penitentiary in Colorado alleging he was repeatedly

subjected to excessive force, denied meals, showers, sleep and adequate medical

treatment, subjected to prison guards spitting in his food, sexually assaulted and

denied due process in connection with a disciplinary conviction, all in retaliation

for grievances and prior lawsuits he filed. Escobar claims these incidents violated

his Eighth Amendment right to be free from cruel and unusual punishment and his

Fourteenth Amendment right to substantive and procedural due process. On July

11, 2006, Escobar filed a Supplemental Complaint and an Addition to Plaintiff’s

Supplem ental Complaint, adding seven more defendants based on two incidents

after he filed the initial complaint.



      1
        Because Escobar is proceeding pro se, we review his filings liberally.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

                                            -2-
      On his prisoner complaint form, Escobar checked the box indicating he did

not exhaust his available administrative remedies. In explanation, Escobar

attached a motion from a lawsuit he filed in 2003 in which he asked the district

court to allow him to exhaust his administrative remedies. Escobar also alleged

he was restricted to filing one grievance per month under Colorado Department of

Corrections A dministrative Regulation 850-4 and had his legal documents

destroyed during repeated cell shake-downs by the defendants.

      On A ugust 3, 2006, M agistrate Judge Boland filed an Order to Show Cause

raising the issue of exhaustion of administrative remedies under the Prison

Litigation Reform Act (PLRA). See 42 U.S.C. § 1997e(a) (“No action shall be

brought with respect to prison conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.”).

Based on Steele v. Fed. Bureau of Prisons, M agistrate Boland imposed upon

Escobar the burden of pleading exhaustion by requiring him to “‘either attach

copies of administrative proceedings or describe their disposition with

specificity.’” (R. Vol. 1, Doc. 12 at 3, quoting Steele, 355 F.3d 1204, 1210-11

(10th Cir. 2003).) He advised Escobar that § 1997e(a) imposes a total exhaustion

requirement on prisoners and if he has not exhausted administrative remedies on

all of his claims, the entire complaint must be dismissed. (R. Vol. 1, Doc. 12 at

4, citing Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004).)

                                         -3-
      Escobar replied to the show cause order by stating: “At no time has the

Plaintiff been able to show-produce to the court any grievances alleging excessive

force and/or the intentional infliction of harm, injury, pain and suffering by

Defendants, nor can he produce a Step III grievance pertaining to any form of

severe harassment.” (R. Vol. 1, Doc. 15 at 2.) He explained that when he

attempts to file grievances based on excessive force, they are denied and a

reference is made to an April 17, 2003 letter from W arden Reid which states:

“Records indicate that you have filed multiple (approximately 30) grievances

since September 24, 2002. Twenty-six of these grievances were filed on staff

misconduct. There is no proof or evidence of these incidents.” (R. Vol. 1, Doc.

15 at 7.) The letter proceeded to warn Escobar if he continued to file frivolous

grievances, without proof or evidence, he would be limited to one grievance per

month in accordance with Colorado Department of Corrections Administrative

Regulation 850-4. A July 3, 2003, follow-up letter from W arden Reid was

included with Escobar’s response which shows the W arden restricted him to filing

one grievance per month for six months based on Escobar’s continued filing of

frivolous grievances. The letter indicated Escobar could request reinstatement of

an unrestricted ability to grieve on December 30, 2003. (Id.) Escobar claims to

have made this request several times since then, but his ability to grieve without

restriction has not been restored.

      Escobar’s response also contained allegations of threats and physical abuse

                                         -4-
by prison officials in reaction to his filing grievances, in addition to the

confiscation and destruction of his materials during cell shake-downs. It

identified Escobar’s attempts to contact multiple persons outside of the prison

system requesting that he be allowed to exhaust administrative remedies based on

excessive force. Finally, it stated he believes he made sufficient good faith

efforts to fulfill his obligation to exhaust all administrative remedies and “any

further persistence to exhaust is unreasonable and creates a serious dangerous risk

of further irreparable injury to [himself].” (R . Vol. 1, Doc. 15 at 4.)

      The district court reviewed Escobar’s reply and found the five grievances

submitted with his complaint did not demonstrate exhaustion because they did not

address all of Escobar’s claims and they failed to show he completed the

Colorado Department of Corrections three-step grievance procedure. The court

also concluded two Step I grievance forms submitted by Escobar in his reply were

insufficient because they did not relate to any of the issues raised in Escobar’s

complaint or demonstrate completion of the three-step grievance procedure.

Finally, the court addressed Escobar’s restriction on filing one grievance per

month. It found Escobar failed to allege which specific claims or issues he was

unable to raise because of the restriction on filing grievances or when he

attempted to raise those issues. The court noted that none of the six grievances

Escobar produced, which were filed after the restriction in 2003, were denied due

to the restriction. Therefore, the court determined Escobar was not denied access

                                           -5-
to the Department of Corrections’ grievance procedure and he failed to satisfy his

burden to allege with specificity how he has exhausted administrative remedies

for all of the claims and issues raised in his complaint. 2

                                      Discussion

      At the time of its decision, the district court properly relied on Steele and

Ross to dismiss Escobar’s complaint for failure to plead and demonstrate

exhaustion of administrative remedies. However, the Supreme Court has recently

rejected these cases by holding that failure to exhaust is an affirmative defense

relieving prisoners from pleading and demonstrating exhaustion and eliminating

the total exhaustion rule. Jones v. Bock, --U.S.--, 127 S. Ct. 910, 921, 924-26

(2007); Freeman v. W atkins, 479 F.3d 1257, 1260 (10th Cir. 2007) (recognizing

Jones overruled Steele and Ross). However, if a complaint makes it clear through

the prisoner’s affirmative statements he has not exhausted his administrative

remedies, the district court may raise the exhaustion question sua sponte provided

it seeks additional information from the prisoner. See Aquilar-Avellaveda v.

Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). Courts “also are obligated to

ensure that any defects in exhaustion were not procured from the action or

inaction of prison officials.” Id. “[O]nly in rare cases w ill a district court be able

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

      2
        W e note the district court did not dismiss Escobar’s complaint based on
the now-defunct total exhaustion rule, but rather dismissed it because none of
Escobar’s claims had been exhausted.

                                           -6-
administrative remedies and that he is without a valid excuse.” Id. “‘District

courts taking this approach must exercise caution. To determine whether an

inmate has exhausted his administrative remedies requires an understanding of the

remedies available and thus likely would require information from the defendant

as well as the inmate.’” Id. at 1225-26 (quoting Anderson v. XYZ Corr. Health

Servs., 407 F.3d 674, 683 n.3 (4th Cir. 2005)).

       The face of Escobar’s complaint stated he had not exhausted his available

administrative remedies and provided reasons why. M agistrate Boland raised the

issue of exhaustion sua sponte and gave Escobar the opportunity to address it.

The district court responded to Escobar’s claim he was prevented from exhausting

his administrative remedies because he is limited to one grievance per month. It

did not, however, address whether Escobar’s remaining allegations of retaliation

and destruction of papers prevented him from exhausting administrative remedies.

In light of Aquilar-Avellaveda v. Terrell, we conclude it is unclear from the

record whether the defects in exhaustion were produced from the action or

inaction of prison officials. 3

       The judgment of the district court dismissing Escobar’s complaint without

prejudice is reversed and remanded for further proceedings consistent with this

       3
        In his opening brief, Escobar cited to Hemphill v. New York, 380 F.3d
680 (2nd Cir. 2004), in support of his claim that he attempted to use an alternative
approach to filing grievances rather than complying with administrative
procedural requirements. W e issue no opinion on the applicability or
persuasiveness of Hemphill at this time.

                                         -7-
order and judgment. W e deny all pending motions filed by Escobar. 4

                                              ENTERED FOR THE COURT


                                              Terrence L. O’Brien
                                              Circuit Judge




      4
         On November 30, 2006, Escobar filed a motion entitled: “Appellant
request that court review and consider this letter herein.” On January 16, 2007,
Escobar filed a document entitled: “Supplemental information regarding: habit-
routine practice of retaliatory harassment-badgering of plaintiff-appellant by the
defendants-appellees and co-defendants.” On February 16, 2007, Escobar filed a
motion for leave to submit a supplemental complaint against additional
defendants. On M arch 6, 2007, Escobar filed a “plea for mercy from the court to
stop the punishment, the intentional infliction of pain.” On M arch 27, 2007,
Escobar filed an emergency petition for w rit of mandamus asking the court to
compel prison medical staff to stop contaminating his medication. On M ay 16,
2007, Escobar filed a “M otion for Temporary Restraining Order and/or
Preliminary Injunction.” On M ay 30, 2007, Escobar submitted “these last pieces
of evidence.” O n M ay 31, 2007, Escobar filed a “M otion to Introduce this
Supplem ental C omplaint” w ith supporting affidavit and included two letters tw o
letters he sent to the Colorado Attorney General’s office. In many instances these
motions and documents contain new allegations and complaints against new
defendants. Since they are not appropriately addressed for the first time in this
appellate forum, we deny all of them. See Tele-Communications, Inc. v.
Commissioner, 104 F.3d 1229, 1232-33 (10th Cir. 1997) (discussing why an
appellate court seldom considers an issue not presented to the district court).
       In addition to above described motions, Escobar requested an appointment
of counsel in the conclusion of his opening brief. To the extent Escobar is
seeking appointment of counsel in this Court, the issue is moot. Appointment of
counsel was denied in the district court and Escobar has not appealed from the
denial. That issue is not before us.

                                        -8-
