                                                                           FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                     UNITED STATES CO URT O F APPEALS
                                                                      October 17, 2007
                                                    Elisabeth A. Shumaker
                              TENTH CIRCUIT             Clerk of Court



    DANNY R. CAM PBELL,

               Plaintiff-Appellant,
                                                            No. 07-7041

         v.                                             (E.D. Oklahoma)
                                                (D.C. No. CIV-06-343-RA W -SPS)
    M IKE M ULLIN; DEBBIE
    ALD RIDG E,

               Defendants-A ppellees.




                             OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G).

        Danny Campbell, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint against tw o prison officials.




*
   This order and judgment is not binding precedent except under the doctrines of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.
M r. Campbell alleged that state prison officials had violated his constitutional

rights on at least twelve occasions. W e affirm the district court’s dismissal

without prejudice.

                                 I. BACKGROUND

      M r. Campbell filed this action while an inmate in the custody of the

Oklahoma D epartment of Corrections (ODOC) incarcerated at Joseph Harp

Correctional Center in Lexington, Oklahoma. His complaint revolves around

events that allegedly occurred during his incarceration at Dick Conner

Correctional Center in Hominy, Oklahoma (DCCC) and Oklahoma State

Penitentiary in M cAlester, Oklahoma (OSP). M r. Campbell appears to allege that

the defendants violated his constitutional rights when various prison officials (1)

placed him in disciplinary segregation at DCCC for twenty days; (2) directed a

racial slur tow ard him; (3) transferred him to O SP; (4) placed him in disciplinary

segregation at OSP; (5) transferred him to a mental health unit; (6) placed him in

H-Block at OSP; (7) placed him in disciplinary segregation for more than one

month; (8) deprived him of lights; a winter coat; and limited his yard visits; (9)

refused to allow him to leave his flooded cell; (10) allowed his toilet to overflow ;

(11) failed to do his laundry; and (12) allowed certain medications to be

administered to him in 1989.




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                                  II. DISCUSSION

      W e apply a de novo review to the district court’s finding of failure to

exhaust. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). In

reviewing the district court’s dismissal, we must determine “whether the

complaint contains enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). In other w ords,

“the complaint must give the court reason to believe that this plaintiff has a

reasonable likelihood of mustering factual support for these claims.” Ridge at

Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). Because

M r. Campbell 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).

      The Prison Litigation Reform Act requires prisoners to exhaust available

administrative remedies before bringing an action under 42 U.S.C. § 1983 in

federal court. See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524

(2002). At the time of the district court’s decision, our precedent required

prisoners to affirmatively plead exhaustion. See Steele v. Fed. Bureau of Prisons,

355 F.3d 1204, 1210 (10th Cir. 2003) (concluding § 1997e(a) imposes a pleading

requirement on the prisoner). Thus, upon review of the prisoner’s complaint, a

court could dismiss sua sponte for failure to exhaust.




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      Recently, in Jones v. Bock, the Supreme Court determined “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. 910, 921 (2007). The prisoner no longer must demonstrate that each and

every one of the claims in his complaint has been exhausted, and the failure to

exhaust one claim does not result in the dismissal of them all. Id. at 923-26.

Rather, only those claims that remain unexhausted may be dismissed. Id. at 923

(“All agree that no unexhausted claim may be considered.”). W hether a pleading

requirement or the subject of an affirmative defense, “there is no question that

exhaustion is mandatory under the PLRA and that unexhausted claims cannot be

brought in court.” Id. at 918-19 (citing Porter, 534 U.S. at 524). Here, the

defendants raised M r. Campbell’s failure to exhaust in a motion to dismiss. Thus,

the district court’s consideration of the exhaustion issue was proper both before

and after Jones.

      Before ruling on the exhaustion issue, the district court requested

defendants file a M artinez report to investigate the incidents forming the basis of

M r. C ampbell’s complaint. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir.

1978) (holding that a report may be necessary to determine certain preliminary

issues). The M artinez report indicated that M r. Campbell filed one grievance for

an alleged assault and battery that took place in 2001 or 2002, which is not at




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issue in this case. M r. Campbell did not file any grievances regarding the alleged

constitutional violations while he was incarcerated at DCCC or O SP.

      In their motion to dismiss, the defendants note that proper exhaustion in

this case would have entailed full compliance with the ODOC’s four-step

grievance procedures, as found in ODOC OP-090124. Rec. doc. 35, Ex. 1. At

each step, if a prisoner does not receive a satisfactory response, he may proceed

to the next step. The first step is to seek informal resolution by talking with staff;

the second step is to file a written request to staff; the third step is to submit a

grievance; and the fourth step is to appeal an unfavorable decision on a grievance

to an appropriate review ing officer. Having reviewed M r. Campbell’s claims, w e

agree that the district court correctly concluded that he failed to exhaust these

grievance procedures on each claim before us.

                                  III. CONCLUSION

      Accordingly, we A FFIRM the district court’s dismissal of M r. Campbell’s

complaint without prejudice. M r. Campbell is reminded to continue making

partial payments of his appellate filing fee until the entire balance is paid.



                                  Entered for the Court,



                                  Robert H. Henry
                                  United States Circuit Judge



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