                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                             FOR THE TENTH CIRCUIT                            March 15, 2019
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 DALTON LAX,

       Plaintiff - Appellant,
                                                              No. 18-3238
 v.                                                  (D.C. No. 5:18-CV-03201-SAC)
                                                               (D. Kansas)
 CORIZON MEDICAL STAFF;
 SHAWNEE COUNTY JAIL,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before McHUGH, KELLY, and MORITZ, Circuit Judges.
                  _________________________________

       Mr. Dalton Lax is currently housed at the El Dorado Correctional Facility in El

Dorado, Kansas, but the events giving rise to this suit occurred during his confinement at

the Shawnee County Jail in Topeka, Kansas. Mr. Lax filed a complaint under 42 U.S.C.

§ 1983, claiming a violation of his Eighth Amendment right to a minimum standard of

medical care while in prison for his “critical eye condition.” See ROA at 4–5. The district

court dismissed his complaint sua sponte under the Prison Litigation Reform Act


       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
(“PLRA”), 42 U.S.C. § 1997e(a), for failure to exhaust administrative remedies. Mr. Lax

appealed.

       Before us, Mr. Lax asserts that the district court erred in dismissing his complaint

as unexhausted because he does not bear the burden of pleading exhaustion, and the

district court did not ensure that any administrative remedies were available before

dismissing his complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and

remand.

                                        BACKGROUND

       On August 9, 2018, Mr. Lax filed a complaint in federal district court under 42

U.S.C. § 1983. Mr. Lax alleged that he had been incarcerated “for the last [twenty-

three] months with a critical eye condition.” ROA at 4. He allegedly informed the jail

medical staff of this condition, but they accused him of lying and failed to provide

any medical treatment. In response, Mr. Lax sued.

       Mr. Lax filed a form complaint provided by the district court. That form

complaint included the following statement: “I have previously sought informal or

formal relief from the appropriate administrative officials regarding the acts

complained of.” ROA at 7. Mr. Lax had the option to select either “yes” or “no,” but

he left both boxes blank.

       After receiving Mr. Lax’s complaint, the district court ordered Mr. Lax to

show cause why his complaint should not be dismissed for failure to exhaust

administrative remedies under the PLRA. Mr. Lax’s response to the order to show

cause argued that his case should not be dismissed because his civil rights were

                                             2
violated but was silent on the question of exhaustion. The district court dismissed Mr.

Lax’s complaint sua sponte for failing to “show good cause why his Complaint

should not be dismissed for failure to exhaust administrative remedies.” ROA at 17.

The defendants were never served with process because the district court dismissed

the case on preservice screening.

                                          ANALYSIS

      Because Mr. Lax is challenging the district court’s dismissal based on his

failure to exhaust administrative remedies, we review that dismissal de novo. See

Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (noting that this court

reviews de novo a “district court’s dismissal of an inmate’s suit for failure to exhaust

his or her administrative remedies”) (internal quotation marks omitted).

      Under the PLRA, a prisoner must exhaust all available administrative remedies

“prior to filing a lawsuit regarding prison conditions in federal court.” Little v. Jones,

607 F.3d 1245, 1249 (10th Cir. 2010) (citing 42 U.S.C. § 1997e(a)). The “failure to

exhaust is an affirmative defense,” however, and “inmates are not required to

specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549

U.S. 199, 216 (2007). Because exhaustion is not a pleading requirement, the silence

of an inmate’s complaint on the question is not in and of itself grounds for dismissal

or to request that the inmate “supplement the record on that issue.” See Aquilar–

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

      That is not to say that a district court may never sua sponte dismiss a prisoner

complaint for failure to exhaust administrative remedies. The district court can do so

                                            3
in the “rare cases” in which “it is clear from the face of the complaint that the

prisoner has not exhausted his administrative remedies.” Id. “The facts ordinarily

pled in allegations concerning prison conditions frequently will not give a definitive

answer as to whether a prisoner” has failed to exhaust his administrative remedies,

but even when they do, district courts “are obligated to ensure that any defects in the

exhaustion were not procured from the action or inaction of prison officials,” that is,

to determine whether the unexhausted administrative remedies were “available” to

the prisoner. See id. (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.

2002) (explaining that administrative remedies may be rendered unavailable by the

action or inaction of prison officials)). In short, courts should “exercise caution” and

seek further information from the defendant before making the determination that a

complaint should be dismissed for failure to exhaust. Id. at 1225–26 (quoting

Anderson v. XYZ Corr. Health Servs., 407 F.3d 674, 683 n.5 (4th Cir.2005) (“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.” (quoting Anderson, 407 F.3d at 682)).

      Here, the district court appears to have dismissed Mr. Lax’s complaint because

it was “clear on the face of the complaint” that Mr. Lax had not exhausted his

administrative remedies. ROA at 12, 17. But the only support offered for this

determination is that Mr. Lax “did not answer the question on his [c]omplaint

inquiring . . . whether or not he ha[d] sought administrative relief” and that his

response to the court’s order to show cause “fail[ed] to address his failure to exhaust

                                            4
his administrative remedies.” ROA at 11–12, 17. Neither assertion justifies dismissal

here.

        Mr. Lax’s failure to answer the question on the form complaint about

exhaustion does not make it clear that Mr. Lax did not exhaust his claim. The

complaint is simply silent on the question. Per the Supreme Court, Mr. Lax’s

complaint need not address exhaustion. Jones, 549 U.S. at 216 (noting that “inmates

are not required to specially plead or demonstrate exhaustion in their complaints”).

And, as we note in Aquilar-Avellaveda, Mr. Lax does not bear the burden of proving

the absence of the exhaustion affirmative defense. 478 F.3d at 1225. So “the district

court erred in requesting Mr. [Lax] to supplement the record on this issue” via its

order to show cause. Id.

        Further, even if the district court were correct that Mr. Lax’s complaint clearly

evinced a failure to exhaust on its face, nothing in the district court’s orders

demonstrates that the district court met its obligation to ensure that any

administrative remedies were available to Mr. Lax. Id. (explaining that district courts

“are obligated to ensure that any defects in exhaustion were not procured from the

action or inaction of prison officials”). Although the district court gave Mr. Lax “an

opportunity to address the issue,” it did not acquire any “information from the

defendant,” as the defendant was never served. See id. at 1225–26 (quoting Anderson,

407 F.3d at 682).




                                            5
      Based on our review of the complaint and the district court’s decision, we

cannot agree that Mr. Lax’s complaint may be dismissed sua sponte for failure to

exhaust administrative remedies under 42 U.S.C. § 1997e(a).1

                                       CONCLUSION

      We VACATE the dismissal of Mr. Lax’s complaint and REMAND for further

proceedings consistent with this opinion.

                                             Entered for the Court


                                             Carolyn B. McHugh
                                             Circuit Judge




      1
         Mr. Lax also asks this court to order the District of Kansas to revise its pro se
complaint screening procedures to completely remove the exhaustion question that
requires the litigant to select box “yes” or box “no.” The inclusion of the exhaustion
question on the form complaint is concerning because it shifts the burden on this
defense, see Jones, 59 U.S. at 216 (holding that the 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”), and attempts to achieve
indirectly what cannot be achieved directly, see Aquilar-Avellaveda, 478 F.3d at
1225–26 (holding that the district court erred by asking the inmate to supplement the
record on exhaustion). But we need not reach this issue here.
                                            6
