                                                                          F IL E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                          March 9, 2007
                            FO R T H E T E N T H C IR C U IT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

    ERNEST WEST,

             Plaintiff-Appellant,

     v.                                                    No. 06-1192
                                                   (No. 05-CV-441-REB-M JW )
    JOE ORTIZ, Executive Director of the                    ( D. Colo.)
    Colorado Department of Corrections
    (C.D.O.C.); FOUR M ILE
    CORRECTIONA L CENTER-
    W ARDEN (CARL ZENON);
    AR KA NSA S VALLEY
    C ORREC TIO N A L
    FA CILITY -WA R D EN (R ON
    LEY BA ); C .C .A . C OR REC TIO NAL
    C ORPO RA TIO N O F A M ER IC A;
    B EN T C OU N TY CO RR EC TIO NAL
    FACILITY-W ARDEN (JIM KEITH),
    and JO H N /JA N E D O ES, 1-X ,

             Defendants-Appellees.




                            O R D E R A N D JU D G M E N T *




*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before O ’B R IE N and B R O R B Y , Circuit Judges, and B R O W N , * * District Judge.




      This appeal arises out of the district court’s dismissal of plaintiff Ernest

W est’s action for failure to exhaust administrative remedies under the Prison

Litigation Reform Act of 1995 (PLRA). In its dismissal order, the district court

relied on tw o Tenth Circuit cases, Ross v. County of Bernalillo, 365 F.3d 1181

(10th Cir. 2004), and Steele v. Federal Bureau of Prisons, 355 F.3d 1204

(10th Cir. 2003), that construed the PLRA’s exhaustion provision, 42 U.S.C.

§ 1997e(a). But the recent, intervening Supreme Court decision in Jones v. Bock,

127 S. Ct. 910 (2007), abrogates Ross and Steele. Therefore, after first

establishing that we have jurisdiction under 28 U.S.C. § 1291, we reverse the

district court’s dismissal order and remand for further proceedings on the

exhaustion issue. W e also affirm two district-court orders denying M r. W est’s

motions for appointment of counsel and do not reach the court’s denial of his

motion for relief from judgment under Fed. R. Civ. P. 60(b).

                                           I.

      The procedural history of this case bears heavily on our jurisdictional

analysis, so we set it forth in some detail. M r. W est, an African-American, filed




**
       The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.

                                           -2-
his original complaint pro se, asserting a claim against all defendants under

42 U.S.C. § 1983. He alleged that while he w as a Colorado state prisoner,

defendants failed to protect him from racially motivated assaults by other inmates

at several detention facilities. The certificate of mailing in the original complaint

is dated M arch 2, 2005, but does not refer to mailing through a prison mail

system. See R., Doc. 3, unnumbered last page. The district court received the

complaint on M arch 3 and filed it on M arch 10, 2005. See id. at 1.

      M r. W est later obtained counsel, who filed three amended complaints,

adding a negligence claim against the CCA defendants. 1 After counsel filed the

third amended complaint in August 2005, in which he specifically alleged that

M r. W est w as released on M arch 2, 2005, see id., Doc. 20 at 3, ¶ 11, each set of

defendants filed a motion to dismiss on various grounds, including failure to

exhaust administrative remedies. In response, M r. W est’s counsel argued that

exhaustion did not apply because M r. W est was not incarcerated when the third

amended complaint was filed, and had not been incarcerated “since M arch of

2005.” See id., Doc. 43 at 6. On February 14, 2006, after briefing on the motion

to dismiss was complete, M r. W est’s counsel moved to withdraw, asserting that




1
      W e will refer to defendants Correctional Corporation of America and Jim
Keith as the “CCA defendants” and to defendants Joe Ortiz, Carl Zenon, and Ron
Leyba, Colorado D epartment of Corrections (CDOC) personnel, as the “CDOC
defendants.”

                                          -3-
the attorney-client privilege prohibited him from revealing the reasons for his

motion. The court granted the motion the next day.

      On M arch 22, 2006, the district court entered an order dismissing

M r. W est’s § 1983 claim without prejudice for failure to exhaust administrative

remedies under the PLRA and declining to exercise supplemental jurisdiction over

his negligence claim. See id., Doc. 59 at 5-6. The court characterized the

evidence before it as indicating that he was not released on parole until M ay 2,

2005, some two months after his original complaint was filed, and concluded that

because he was incarcerated at the time of filing, the PLRA exhaustion

requirement, 42 U.S.C. § 1997e(a), 2 applied under Norton v. City of M arietta,

432 F.3d 1145, 1150 (10th Cir. 2005). The court then found that M r. W est had

exhausted his administrative remedies as to only one of his § 1983 claims. 3 In

making this finding, the court placed the burden of proving exhaustion on

M r. W est pursuant to the now-abrogated rule in Steele v. Federal Bureau of

Prisons that a prisoner must affirmatively plead exhaustion and attach to his

complaint copies of relevant administrative dispositions of his grievances or “in


2
      Section 1997e(a) provides: “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.”
3
       Although the third amended complaint contained only one § 1983 claim, the
district court apparently considered each underlying incident to be a separate
§ 1983 claim for purposes of the Ross analysis. W e agree with that interpretation.

                                         -4-
the absence of written documentation, describe with specificity the administrative

proceeding and its outcome,” 355 F.3d at 1210 (quotation omitted). The court

then held that the presence of a single exhausted claim did not “save his

complaint from dismissal,” R., Doc. 59 at 5, under the now-abrogated rule in Ross

that a district court faced with a complaint containing both exhausted and

unexhausted claims “ordinarily must dismiss the entire action without prejudice,”

Ross, 365 F.3d at 1190. The court did not enter judgment on a separate document

pursuant to Fed. R. Civ. P. 58.

      On April 27, 2006, M r. W est, now pro se, filed a letter in the district court

in which he stated that he wanted to appeal if in fact his case had been dismissed,

a fact of which he was uncertain apparently because copies of the dismissal order

addressed to him had been returned to the court as undeliverable. See R., Doc. 64

at 1, 4. He also mentioned that he had been released from prison on M arch 2,

2005. See id. at 2. The court treated the letter as both a notice of appeal and a

Rule 60(b) motion. Acknowledging that the factual underpinning of its dismissal

may have been erroneous, the court purported to grant the Rule 60(b) motion and

ordered M r. W est to submit competent evidence that he was not incarcerated on

the date he commenced his action. Id., Doc. 69 at 2.

      On M ay 22, M r. W est filed a motion in the district court to proceed IFP on

appeal, w hich was denied. See id., Docs. 76, 77. He also filed a motion for



                                          -5-
appointment of counsel. See id., Doc. 75. Although the motion did not specify

whether M r. W est sought assistance of counsel for his Rule 60(b) motion in the

district court or for his appeal, a magistrate judge treated the motion as one for

appellate counsel and denied it on June 8 on the ground that it was more

appropriately made to this court. Id., Doc. 80.

       On June 14, M r. W est filed a motion entitled “M otion for [sic] Re-open

case at entry level at District Court.” Id., Doc. 81 at 1. Appended to the motion

is what appears to be a certified copy of his official time computation report from

the CDOC. Id. at 3-5. The report appears to show that he was released on

M arch 2, 2005, but also indicates that his parole was revoked on M arch 2, 2005.

Id. at 4.

       By order dated June 16, the district court treated the motion as one to

withdraw the appeal and denied it, directing M r. W est to this court if he wanted to

withdraw the appeal. Id., Doc. 82 at 1. M r. W est has not moved in this court to

withdraw the appeal. The court also treated the motion as one to appoint counsel

for purposes of the Rule 60(b) motion and denied it on the ground that M r. W est

did not need assistance of counsel to provide factual evidence concerning the date

of his release. Id. at 1-2. The court advised him to review its previous orders

about providing evidence concerning the date of his release. Id. at 2.




                                          -6-
      On June 30, M r. W est filed this court’s pre-printed and combined motion to

proceed IFP/opening brief on appeal in which he stated that based on the facts

before it, the district court had no choice but to dismiss the case without

prejudice, and that the court had not applied the wrong law. See Aplt. Opening

Br. at 3. He also stated that he was required to exhaust his administrative

remedies but thought that he had. Id. at 4. He did, however, argue that the

district court had erred in denying his M ay 22 motion for appointment of counsel,

id. at 3, but he did not file a formal notice of appeal as to that denial.

      On August 4, the district court denied M r. W est’s Rule 60(b) motion,

stating that “plaintiff has failed to make the requisite showing [that he was not

incarcerated as of the date this lawsuit was filed] within the time permitted by the

court.” CDOC defendants’ Resp. Br., Attach. A at 2 (copy of district court order,

Doc. 86).

      On August 8 and August 14, the two sets of defendants filed their appellate

response briefs, addressing only the issue of appointment of counsel. The CDOC

defendants also questioned this court’s jurisdiction over that issue. On

August 18, M r. W est filed what amounts to his appellate reply brief, stating,

among other things, that he had been released on M arch 2, 2005, and that in

mid-June 2006 he had submitted to the district court the information proving that

fact, as the court had requested. Aplt. Reply Br. at 1-3. Apparently in the



                                           -7-
alternative, he also discussed his efforts to exhaust and alleged that defendants

did not respond to all of his grievances. See id. at 4. He did not file a formal

notice of appeal from the denial of his Rule 60(b) motion.

      W e ordered each set of defendants to file a supplemental brief on two

issues: (1) whether M r. W est’s reply brief may be construed as the functional

equivalent of a notice of appeal from the district court’s order denying his

Rule 60(b) motion and (2) the merits of that denial. The defendants have filed

their supplemental briefs, and M r. W est has had the opportunity to reply. W e now

turn to our analysis.

                                          II.

      Because M r. W est appears pro se, we review his pleadings and other papers

liberally and hold them to a less stringent standard than those drafted by

attorneys. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). As

we explain, we have jurisdiction over M r. W est’s appeal from the order

dismissing his § 1983 claim, the orders denying his motions for appointment of

counsel, and the order denying his Rule 60(b) motion. W e reverse the dismissal

order, affirm the orders denying appointment of counsel, do not reach the merits

of the Rule 60(b) issue, and remand for further proceedings.




                                          -8-
      A. Appellate Jurisdiction.

      “Rule 3 of the Federal Rules of Appellate Procedure conditions federal

appellate jurisdiction on the filing of a timely notice of appeal.” Sm ith v. Barry,

502 U.S. 244, 245 (1992). The only document M r. W est filed that the district

court treated as a notice of appeal was his letter of April 27, 2006, which

discussed his wish to file an appeal if in fact his case had been dismissed. The

CCA defendants contend that the notice was untimely. W e disagree. But before

considering timeliness, we first must determine whether the dismissal order was

final for purposes of our jurisdiction under 28 U.S.C. § 1291.

      W hether the dismissal order was final for purposes of § 1291 depends on

whether the order terminated “all matters as to all parties and causes of action.”

Utah v. Norton, 396 F.3d 1281, 1286 (10th Cir. 2005) (quotations omitted). To

make this determination, we look at the substance of the district court’s dismissal

order. See Albright v. U NU M Life Ins. Co. of Am., 59 F.3d 1089, 1092 (10th Cir.

1995). Although purporting to dismiss M r. W est’s § 1983 claims for failure to

exhaust administrative remedies, see R., Doc. 59 at 6, the court specifically

stated that it was compelled to follow the prescription in Ross that a “‘district

court ordinarily must dismiss the entire action without prejudice’” when a

prisoner complaint contains both exhausted and unexhausted claims. Id. at 5

(emphasis added) (quoting Ross, 365 F.3d at 1190). Furthermore, the court



                                          -9-
declined to exercise supplemental jurisdiction over the negligence claim,

dismissing it without prejudice, and it construed M r. W est’s April 27 letter in part

as a notice of appeal from the dismissal order. W e therefore conclude that the

court’s dismissal order was a final order appealable under § 1291.

      As to timeliness, the general rule is that a notice of appeal in a civil case

“must be filed with the district clerk within 30 days after the judgment or order

appealed from is entered.” Fed. R. App. P. 4(a)(1)(A ). However, subject to

certain exceptions not relevant to the dismissal order, Fed. R. Civ. P. 58(a)(1)

requires that “[e]very judgment and amended judgment must be set forth on a

separate document.” The district court did not set forth a judgment on a separate

document, and the dismissal order itself could not be considered the separate

document that triggers the running of the appellate filing period because it was

six pages long and contained detailed legal analysis and reasoning, see Deboard

v. Sunshine M ining & Ref. Co., 208 F.3d 1228, 1236-37 (10th Cir. 2000).

“[W]here no separate judgment is entered within 150 days, judgment is deemed

entered when 150 days have run from entry [of an order] in the civil docket

[under Fed. R. Civ. P. 79(a)].” Funk v. LFLM Defendants, 382 F.3d 1058, 1064

(10th Cir. 2004). Thus, the 30-day period for filing the notice of appeal does not




                                         -10-
begin to run until judgment is deemed entered. See Fed. R. App. P. 4(a)(7)(A). 4

However, a district court’s “failure to set forth a judgment or order on a separate

document when required by Federal Rule of Civil Procedure 58(a)(1) does not

affect the validity of an appeal from that judgment or order.” Fed. R. App.

P. 4(a)(7)(B). Therefore, after the dismissal order w as entered on the civil

docket, M r. W est was free to file a notice of appeal without waiting for either the

entry of judgment on a separate document pursuant to Fed. R. Civ. P. 58 or the

running of the 150-day period. See Utah v. Norton, 396 F.3d at 1287 (explaining

that Fed. R. App. P. 4(a)(7)(B) permits an appellant to appeal from a final

judgment not set forth on a separate document prior to the running of the 150-day



4
      Federal Rule of Appellate Procedure 4(a)(7)(A) provides:

             A judgment or order is entered for purposes of this Rule 4(a):

               (i) if Federal Rule of Civil Procedure 58(a)(1) does
             not require a separate document, when the judgment or
             order is entered in the civil docket under Federal Rule of
             Civil Procedure 79(a); or

               (ii) if Federal Rule of Civil Procedure 58(a)(1)
             requires a separate document, when the judgment or
             order is entered in the civil docket under Federal Rule of
             Civil Procedure 79(a) and when the earlier of these
             events occurs:
                     • the judgment or order is set forth on a separate
                     document, or
                     • 150 days have run from entry of the judgment or
                     order in the civil docket under Federal Rule of
                     Civil Procedure 79(a).

                                         -11-
limit of Fed. R. App. P. 4(a)(7)(A)(ii)). M r. W est filed his notice of appeal on

April 27, long before the 150-day period ran. Accordingly, the 30-day period of

limitations of Fed. R. App. P. 4(a)(1)(A) was never triggered, and the notice of

appeal w as timely.

      The April 27 notice of appeal confers appellate jurisdiction over the

dismissal order and any prior interlocutory orders. See Cole v. Ruidoso M un.

Sch., 43 F.3d 1373, 1383 n.7 (10th Cir. 1994) (“a notice of appeal that names the

final judgment is sufficient to support review of all earlier orders that merge in

the final judgment”) (quotation omitted). To confer appellate jurisdiction over

the post-dismissal orders denying his motions to appoint counsel or his Rule 60(b)

motion, therefore, M r. W est should have filed an additional or amended notice of

appeal from those orders at the appropriate time. See Fed. R. App.

P. 4(a)(4)(B)(ii); E.E.O.C. v. Wal-M art Stores, Inc., 187 F.3d 1241, 1250

(10th Cir. 1999) (dismissing appeal from order denying motion for attorney’s fees

issued after notice of appeal was filed for lack of separate notice of appeal);

Stouffer v. Reynolds, 168 F.3d 1155, 1172 (10th Cir. 1999) (dismissing appeal

from denial of Rule 60(b) motion because appellant failed to file separate notice

of appeal). He did not. This failure, however, is not dispositive. “If a document

filed within the time specified by [appellate] Rule 4 gives the notice required by

[appellate] Rule 3, it is effective as a notice of appeal.” Smith, 502 U.S. at



                                         -12-
248-49. An appellate brief that meets these requirements will suffice as a notice

of appeal. Id. at 249.

      W e conclude that M r. W est’s reply brief may be construed as a notice of

appeal from the order denying his Rule 60(b) motion. It was filed less than thirty

days after entry of the order, which satisfies Fed. R. App. P. 4(a)(4)(B)(ii), and

provides the notice required by Fed. R. App. P. 3, in particular by designating the

order appealed from. Both sets of defendants agree with this conclusion. W e

further conclude that treated as a notice of appeal, the reply brief encompasses the

district court’s post-dismissal orders denying his motions for counsel. Those

orders, filed June 8 and June 16, were nonfinal and not immediately appealable

absent certification under 28 U.S.C. § 1292(b). See Cotner v. M ason, 657 F.2d

1390, 1391-92 (10th Cir. 1981) (per curiam). The only other way for M r. W est to

appeal from them, therefore, was by appealing from the denial of the Rule 60(b)

motion, which was a final, appealable order into which the orders denying

appointment of counsel were merged. Cf. Cole, 43 F.3d at 1383 n.7. 5



5
       W e pause to note that, “[a]lthough filing notice of appeal generally divests
the district court of jurisdiction over the issues on appeal, the district court retains
jurisdiction over collateral matters not involved in the appeal.” Lancaster v.
Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998) (citation and
quotation omitted). M r. W est’s motions for appointment of counsel concerned a
collateral matter, so the district court’s consideration of them was proper. W e
also note that a notice of appeal does not divest a district court of jurisdiction to
consider a Rule 60(b) motion, although it prevents a district court from granting
                                                                          (continued...)

                                          -13-
      B. M erits of M r. W est’s appeal.

      Having established our jurisdiction, we now may turn to the merits of this

appeal. A s w e have noted above, the Supreme Court recently abrogated two

Tenth Circuit cases on which the district court relied in dismissing M r. W est’s

§ 1983 claim for failure to completely exhaust administrative remedies. In Jones

v. Bock, the Court abrogated Steele by holding “that 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.” 127 S. Ct. at 921.

The Court also held that a complete-exhaustion rule, such as we adopted in Ross,

was an unwarranted departure from the general rule that “if a complaint contains

both good and bad claims, the court proceeds with the good and leaves the bad.

Only the bad claims are dismissed; the complaint as a whole is not.” Id. at 924

(quotation and brackets omitted).

      M r. W est did not take issue with the dismissal of his action until his reply

brief. Generally, we do not consider an issue that is raised for the first time in a



5
 (...continued)
such a motion unless it notifies this court of its intention to grant the motion upon
proper remand. See Allison v. Bank One-Denver, 289 F.3d 1223, 1243 (10th Cir.
2002); Aldrich Enters., Inc. v. United States, 938 F.2d 1134, 1143 (10th Cir.
1991). It was proper, therefore, for the district court to consider and deny
M r. W est’s Rule 60(b) motion without notifying this court. The district court’s
order purporting to grant the motion did not afford relief from judgment; it merely
permitted M r. W est to file additional evidence for the court’s consideration, and
so was consistent with the rule stated in Allison and Aldrich Enterprises.

                                           -14-
reply brief because it deprives the appellee of a chance to respond, which

increases the opportunity for the court to make an improvident or ill-advised

decision. See Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir.

1994). But in view of the Supreme Court’s intervening decision in Jones, as well

as the suggestion of the CDOC defendants that we remand because of Jones, w e

will make an exception to our waiver rule and consider the propriety of the

district court’s dismissal order. Doing so does not defeat the purpose of the rule

because both sets of appellees have had the opportunity to respond concerning

M r. W est’s incarceration status and our course is clear under Jones. W e therefore

hold that the district court’s allocation of the burden to M r. W est to prove

exhaustion under Steele, as well as the court’s dismissal of both exhausted and

unexhausted claims pursuant to Ross, are erroneous under Jones. On remand, the

district court should consider the exhaustion issue in light of Jones.

      Based on the foregoing conclusion, we need not decide whether the district

court abused its discretion in denying M r. W est’s Rule 60(b) motion, although it

appears the district court may have overlooked the C DOC time computation report

he submitted in support of that motion. Instead, we leave to the district court to

determine in the first instance the applicability of the PLRA’s exhaustion

requirement because that determination requires the resolution of fact questions

concerning M r. W est’s precise incarceration status when he mailed or filed the



                                          -15-
original complaint. See Norton, 432 F.3d at 1150 (PLRA’s exhaustion

requirement inapplicable if plaintiff was not confined in a jail, prison, or other

correctional facility when he brought suit). The district court also should

consider giving leave to the parties to file additional briefs concerning whether

M r. W est w as on parole w hen he filed this action and whether such status subjects

him to the PLRA’s exhaustion requirement, as the CDOC defendants have argued

in their supplemental appellate brief. 6

      As to the orders denying M r. W est’s motions for appointment of counsel,

we review for abuse of discretion. Rucks v. Boergermann, 57 F.3d 978, 979

(10th Cir. 1995). To the extent M r. W est sought appellate counsel, the magistrate

judge correctly determined that a motion to this court was more appropriate.

R., Doc. 80. 7 To the extent M r. W est sought counsel for purposes of his

Rule 60(b) motion, the district court properly ruled he did not require assistance

of counsel in order to provide factual information relevant to his incarceration

status when he commenced this action. Id., Doc. 82 at 1-2. Accordingly, we

conclude that the district court did not abuse its discretion in denying the motions.




6
      Although the CDOC defendants urge us to affirm on alternate grounds of
sovereign immunity and lack of personal participation, we decline to do so.
7
      M r. W est did file a motion to appoint counsel with this court, which was
denied.

                                           -16-
                                            III.

       W e REVERSE the district court’s dismissal order and REM AND for further

proceedings in accordance with Jones v. Bock, 127 S. Ct. 910 (2007), and this

order and judgment. W e A FFIRM the district court’s orders denying M r. W est’s

motions for appointment of counsel. Because we have treated M r. W est’s reply

brief, filed August 18, 2006, as the functional equivalent of a notice of appeal

from the district court’s order denying relief under Fed. R. Civ. P. 60(b), the clerk

of this court is directed to send a copy of the reply brief to the clerk of the district

court pursuant to Fed. R. App. P. 4(d). M r. W est’s motion to proceed IFP is

granted, and we remind him of his obligation to continue making partial payments

until his appellate filing fee is paid in full.


                                                       Entered for the Court




                                                       W ade Brorby
                                                       Circuit Judge




                                            -17-
