                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                       UNITED STATES CO URT O F APPEALS
                                                                 September 5, 2007
                                                       Elisabeth A. Shumaker
                           FO R TH E TENTH CIRCUIT         Clerk of Court



    CH ARLES CHRISTO PHER GULA S,

                 Plaintiff-Appellant,

    v.

    BERN ALILLO CO UNTY SHERIFF;
    W A RD EN O F TH E ESTA N CIA                        No. 06-2340
    C ORREC TIO N A L FA CILITY ;               (D.C. No. CIV-06-340 JH/LFG)
    U N K N OW N D EPU TIES O F THE                       (D . N.M .)
    BERNALILLO COUNTY SHERIFF’S
    DEPARTM ENT; UNKNOW N
    C ORREC TIO N A L O FFIC ER S OF
    TH E COR REC TIO N A L
    CORPORATION OF AM ERICA, in
    their individual and official capacities;
    C ORREC TIO N A L C OR PO RA TION
    O F A M ER IC A, IN C.; FN U
    HERNANDEZ, Deputy Sheriff;
    DARREN W HITE, Sheriff of
    Bernalillo County; LANE BLAIR,
    W arden of the Torrance County
    Detention Facility, in their individual
    and official capacities,

                 Defendants-Appellees.



                              OR D ER AND JUDGM ENT *

*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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
                                                                       (continued...)
Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.




      Charles G ulas, proceeding pro se on appeal as he did in the district court,

appeals from two orders of the district court dismissing without prejudice his first

and second amended complaints in this 42 U.S.C. § 1983 action. W e reverse and

remand for further proceedings.

                                   Background

      M r. Gulas filed a first amended complaint in which he alleged that

defendants took him into custody without a warrant and detained him in various

New M exico facilities, where they kept him in prison garb, threw away his legal

papers, kept him in isolation, denied him showers, and limited his access to a

telephone. He alleged that defendants extradited him to Sacramento, California,

without a valid demand by the State of California and without his consent, and

without providing him with an attorney or an opportunity to apply for a writ of

habeas corpus. However, he also alleged that he was arraigned in a state district

court in New M exico, where he signed an agreement to be extradited to California

within ten days. He alleged that he was detained in Sacramento for a month

without receiving counsel or being actively prosecuted. Based on these


*
 (...continued)
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                        -2-
allegations, M r. Gulas asserted that defendants violated various constitutional

rights, falsely imprisoned him, and violated the Uniform Criminal Extradition

Act, specifically N.M . Stat. § 31-4-10, 1 and 18 U.S.C. § 3182. 2 He sought

damages and injunctive relief.




1
      Section 31-4-10 provides, in relevant part:

             No person arrested upon such warrant shall be delivered over
      to the agent whom the executive authority demanding him shall have
      appointed to receive him unless he shall first be taken forthwith
      before a judge of a court of record in this state, who shall inform him
      of the demand made for his surrender and of the crime with which he
      is charged, and that he has the right to demand and procure legal
      counsel; and if the prisoner or his counsel shall state that he or they
      desire to test the legality of his arrest, the judge of such court of
      record shall fix a reasonable time to be allowed him within which to
      apply for a writ of habeas corpus.
2
      18 U.S.C. § 3182 provides, in its entirety:

             W henever the executive authority of any State or Territory
      demands any person as a fugitive from justice, of the executive
      authority of any State, District, or Territory to which such person has
      fled, and produces a copy of an indictment found or an affidavit
      made before a magistrate of any State or Territory, charging the
      person demanded with having comm itted treason, felony, or other
      crime, certified as authentic by the governor or chief magistrate of
      the State or Territory from whence the person so charged has fled,
      the executive authority of the State, District, or Territory to which
      such person has fled shall cause him to be arrested and secured, and
      notify the executive authority making such demand, or the agent of
      such authority appointed to receive the fugitive, and shall cause the
      fugitive to be delivered to such agent when he shall appear. If no
      such agent appears within thirty days from the time of the arrest, the
      prisoner may be discharged.

                                         -3-
      Because M r. Gulas applied for leave to file his case without prepayment of

fees under 28 U.S.C. § 1915(a), the district court examined the first amended

complaint under § 1915(e)(2)(B), which authorizes sua sponte dismissal of in

form a pauperis proceedings if the court determines that the action is frivolous or

malicious, fails to state a claim on which relief may be granted, or seeks damages

from a defendant who is immune from such relief. The court determined that the

first amended complaint had numerous deficiencies. To the extent M r. Gulas

sought redress for constitutional violations alleged to have occurred in California,

the court ruled that he had chosen the wrong forum, that it lacked jurisdiction

over California actors, and that none of the New M exico defendants had a role in

those alleged violations.

      As to the claims related to the alleged incidents in New M exico, the district

court dismissed the complaint without prejudice under Fed. R. Civ. P. 12(b)(6) for

two reasons. First, the court determined that not only had M r. Gulas failed to

allege that he had exhausted his administrative remedies under 42 U.S.C.

§ 1997e(a), a provision of the Prison Litigation Reform Act of 1995 (PLRA), as

required by Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir.

2003), which was controlling precedent at the time, but he in fact admitted that he

had not pursued any administrative remedies whatsoever. Second, the court

determined that the first amended complaint suffered from internal

inconsistencies regarding M r. Gulas’s New M exico state-court extradition

                                         -4-
proceedings, including whether he had requested an attorney, requested to apply

for habeas relief, or agreed to extradition. The court further stated that it could

not discern whether amendment could cure the problems w ith the complaint,

reasoning that the exhaustion issue was fatal, but that the other problems “may

simply be poor draftsmanship.” R., Doc. 5 at 5.

      A month after the district court filed its order dismissing the first amended

complaint, M r. Gulas filed a second amended complaint. The court issued

another order of dismissal without prejudice, stating that because the first

amended complaint had been dismissed, it “could not be amended in this current

lawsuit.” Id., Doc. 9. The court viewed the second amended complaint as being

“without force and effect,” and advised M r. Gulas that if he wished to pursue his

cause of action, he had to file a new lawsuit. Id. This appeal followed. W e have

jurisdiction under 28 U.S.C. § 1291. 3




3
       In each of the two dismissal orders, the district court stated it was
dismissing the complaint without prejudice. W hile a dismissal of a “complaint
[without prejudice] is ordinarily a non-final, nonappealable order (since
amendment would generally be available), . . . dismissal of [an] entire action is
ordinarily final.” M oya v. Schollenbarger, 465 F.3d 444, 449 (10th Cir. 2006)
(quotation omitted). Our review of the two dismissal orders indicates that the
court intended to dismiss M r. G ulas’s entire action without prejudice.
Accordingly, the dismissal orders were final and appealable under our “practical
approach.” Ton Servs, Inc. v. Qwest Corp., ___ F.3d ___, No. 06-4052, 2007 W L
2083744, at *1 n.4 (10th Cir. July 23, 2007) (quotation omitted); cf. Patel v.
Fleming, 415 F.3d 1105, 1107-08 (10th Cir. 2005) (exercising jurisdiction under
§ 1291 over appeal from dismissal without prejudice for failure to exhaust under
PLRA).

                                          -5-
                                     Discussion

      On appeal, M r. Gulas broadly argues that under the liberal reading to which

he is entitled as a pro se litigant, his pleadings state a claim upon which relief can

be granted. 4 Although he has not specifically argued that the district court erred

in applying PLRA’s exhaustion requirement, our de novo review, see Jernigan v.

Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), reveals errors in the court’s

application of the exhaustion requirement that compel us to remand. W e also

conclude that to the extent PLRA does not apply to his claims, the court should

permit M r. Gulas an opportunity to amend his pleading.

      To reiterate briefly, the district court concluded that PLRA’s exhaustion

requirement applied to the first amended complaint because many of the claims

concerned jail or prison conditions. The court then applied Steele’s holding that

exhaustion is an affirmative pleading requirement and determined that

M r. Gulas’s express statement that he had not pursued any administrative

remedies showed that he had failed to exhaust. But the district court made no

finding that M r. Gulas was “confined in a jail, prison, or other correctional

facility” when he filed the action, which is a prerequisite for the application of

PLRA’s exhaustion requirement. Norton v. City of M arietta, 432 F.3d 1145,

4
       M r. Gulas also argues that any statute of limitations applicable to his
second amended complaint be equitably tolled. Based on our view that he need
not file a new lawsuit, we consider this issue moot. He has not challenged the
district court’s ruling concerning allegations pertaining to constitutional
violations alleged to have occurred in California.

                                          -6-
1150 (10th Cir. 2003). Nothing in any of M r. Gulas’s pleadings indicates that he

was confined when he filed the action; rather, he described himself as a California

citizen and provided what appears to be an ordinary street address. On remand,

the court must determine whether M r. Gulas was confined when he filed this

action. If he was not, then PLRA’s exhaustion requirement does not apply. See

id.

      If the district court determines on remand that M r. Gulas was confined

when he filed this action, there are two other matters the district court must

consider before dismissing the action sua sponte. In its first dismissal order, the

court correctly observed that PLRA’s exhaustion requirement applies only to

prisoner suits that concern conditions of confinement, see 42 U.S.C. § 1997e(a);

Porter v. Nussle, 534 U.S. 516, 525 (2002), and that many of the allegations in

M r. Gulas’s first amended complaint concerned these conditions. However, it

appears that some of his claims do not pertain to conditions of confinement,

namely, those concerning M r. G ulas’s warrantless arrest and extradition.

Therefore, if the court finds that M r. Gulas was confined when he filed this

action, the court should consider whether any of his claims do not concern

conditions of his confinement and, if any do not, whether he may proceed on

those claims regardless of any failure to exhaust.

      The other matter the district court must consider if it determines that

M r. Gulas was confined when he filed this action is subsequent case law on sua

                                          -7-
sponte dismissals for failure to exhaust. Although good law at the time of the

district court’s dismissal orders, Steele was later abrogated by the holding in

Jones v. Bock, 127 S. Ct. 910, 921 (2007), that exhaustion is an affirmative

defense, not a pleading requirement. However, we have read Jones as leaving

open the possibility of sua sponte dismissal but have admonished district courts to

“exercise caution” in taking such an approach. Aquilar-Avellaveda v. Terrell,

478 F.3d 1223, 1225 (10th Cir. 2007).

      Sua sponte dismissal may be appropriate w here a plaintiff’s failure to

exhaust is clear from the face of the complaint and the court ensures that the

failure to exhaust is not due to the action or inaction of prison officials, that is,

whether the prisoner “was thwarted in his attempts to [exhaust].” Id. But “only

in rare cases will a district court be able to conclude from the face of a complaint

that a prisoner has not exhausted his administrative remedies and that he is

without a valid excuse.” Id. W hen there are “affirmative but not conclusive

statements” in the complaint regarding exhaustion, “a district court cannot

dismiss the complaint without first giving the inmate an opportunity to address

the issue.” Id. (quotation omitted). Furthermore, sua sponte dismissal for failure

to exhaust under PLRA “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 (quotation omitted).




                                           -8-
      Here, M r. Gulas stated that he had not pursued administrative remedies.

This affirmative statement, however, is not conclusive regarding whether he was

thwarted in his attempt to do so. Notably, M r. Gulas alleged that he was

transferred several times during his detention in New M exico, which may have

hindered his opportunity to pursue any such remedies. Thus, if the district court

determines that M r. Gulas was confined when he filed this action and seeks to

dismiss, sua sponte, claims concerning conditions of confinement for failure to

exhaust, the court must consider whether there were any administrative remedies

available to M r. Gulas and, if so, whether the acts of others prevented him from

exhausting those remedies.

      The district court advanced another reason for dismissing the first amended

com plaint— that it w as inadequate because of internal inconsistencies— but we

cannot assume that PLRA is inapplicable and affirm on this alternate basis. It is

well-established that courts are to construe pro se pleadings and other papers

liberally, applying a less stringent standard than formal pleadings drafted by

lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,

935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). The Supreme Court recently has

reinforced this concept in connection with the liberal pleading standard of Fed. R.

Civ. P. 8(a)(2) and (f). See Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per

curiam) (Rule 8(a)(2)’s liberal standard “is even more pronounced” where a

plaintiff proceeds w ithout counsel). In considering the first amended complaint,

                                         -9-
the court recited the liberal pro se standard, but its alternate resolution of the case

is at odds with the general rule that “[d]ismissal of a pro se complaint for failure

to state a claim is proper only where it is obvious that the plaintiff cannot prevail

on the facts he has alleged and it would be futile to give him an opportunity to

amend.” Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999)

(emphasis added). Again, the court stated that it was unable to ascertain if all of

the deficiencies could be remedied by amendment— the failure to exhaust could

not, but the other problems might only be due to poor draftsmanship.

Consequently, if the court determines on remand that it cannot dismiss sua sponte

all of the claims for failure to exhaust under PLRA, the court should consider

whether M r. Gulas’s pleadings state a claim upon which relief can be granted

and, if not, whether to permit further amendment.

                                      Conclusion

      The orders of the district court dismissing the first amended complaint and

the second amended complaint are REVERSED and VACATED, and the case is

REM ANDED for further proceedings consistent with this order and judgment.


                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




                                          -10-
