                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       March 2, 2007
                                    TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court

 TER RENCE L. R OB IN SO N -B EY,

          Plaintiff - Appellant,
                                                        No. 06-3326
 v.                                              (D.C. No. 02-CV-3417-SAC)
                                                          (D . Kan.)
 (FNU) FEK ETEE, Unit M anager, USP
 Leavenworth; (FNU) JOHNSON, Case
 M anager, U SP Leavenw orth; (FNU)
 W ILSO N, Counselor, USP
 Leavenworth; H. W ATTS, National
 Inmate Appeals Coordinator, USP
 Leavenworth; K. JOHNSO N, Regional
 Coordinator, USP Leavenworth;
 (FNU) CO NNERS, W arden, USP
 Leavenworth; A. W . M AUBURY, Unit
 M anager Coordinator, USP
 Leavenworth; (FNU) ASHM AN, Unit
 M anager Coordinator, USP
 Leavenworth; (FNU) ODOM , SIS,
 Lieutenant, U SP Leavenw orth; (FNU)
 CA STILL, Lieutenant, USP
 Leavenworth; (FN U ) D IC KER SON,
 O fficer, U SP Leavenw orth; (FNU)
 BR OW N, Counselor, USP
 Leavenworth,

          Defendants - Appellees.



                              OR D ER AND JUDGM ENT *



      *
        This order and judgment is not binding precedent, except under the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 KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **


      Plaintiff-Appellant Terence L. Robinson-Bey, a federal inmate appearing

pro se, appeals from the district court’s dismissal of his lawsuit against various

federal prison officials. The district court liberally construed M r. Robinson-Bey’s

complaint as asserting a tort claim under the Federal Tort Claims Act (FTCA), 28

U.S.C. §§ 1346(b), 2671 - 2680, and civil rights claims pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

The district court dismissed the Bivens claims for failure to exhaust and the

FTCA claim for failure to state a claim. Our jurisdiction arises under 28 U.S.C. §

1291, and we affirm.

      In his complaint, M r. Robinson-Bey alleges that, on numerous occasions,

he informed the staff at the United States Penitentiary in Leavenworth, Kansas

(“USP Leavenworth”) that he faced hostility from other prisoners, that, as a

result, he feared for his own safety, and that he wished to be moved to another

housing unit. Despite these pleas, M r. Robinson-Bey alleges that he was not

moved to another unit and that, on February 2, 2002, he was assaulted by a group

of prisoners. He also claims that, after the assault, he was illegally placed in the


      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

                                         -2-
Special Housing Unit (SH U), his property was either given away by prison staff

or stolen, and that prison staff retaliated against him for filing grievances. He

claims that the staff’s violated his Eighth Amendment right to be free from cruel

and unusual punishment by failing to transfer him and placing him in the SHU.

He also claims that the staff’s retaliation against him for filing grievances

violated his First Amendment free speech rights. And he claims that because the

prison staff disposed of or stole his personal property, he is entitled to recover

under the FTC A.

      The PLRA requires prisoners to exhaust prison grievance procedures before

filing suit. See 42 U.S.C. § 1997e(a); Jones v. Bock, __S.Ct.__, 2007 W L

135890, at *3-4 (Jan. 22, 2007). Until recently, we had held that the exhaustion

requirement is a pleading requirement, the burden of which falls on the prisoner

to meet, see Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209 (10th Cir.

2003), but the Supreme Court, in Jones, held that exhaustion is an affirmative

defense the defendant must plead and prove, see 2007 W L 135890, at *11.

M oreover, 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. 1 Id. at *13-15. Rather, only those

      1
         The district court, in its order dismissing M r. Robinson-Bey’s claims, did
state, adhering to our prior precedents, that exhaustion is a pleading requirement
which falls on the plaintiff and that total exhaustion is required by the PLRA.
See R. Doc. 72 at 2-3, 10. The district court’s order is ambiguous, however, as to
whether it relied upon the now defunct pleading requirement and total exhaustion

                                         -3-
claims that remain unexhausted may be dismissed. Id. at *13 (“All agree that no

unexhausted claim may be considered.”). 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 order to exhaust his administrative remedies, a federal prisoner must

“seek formal review of an issue which relates to any aspect of” his imprisonment.

28 C.F.R. § 542.10(a). First, “an inmate shall . . . present an issue of concern

informally to staff.” Id. § 542.13(a). If this fails to satisfy the inmate, he must

submit his complaint, using Form BP-9, to the W arden within 20 days of the

occurrence giving rise to the complaint. Id. § 542.14(a). If he is dissatisfied with

the response at that level, within 20 days of the W arden’s response, he must

appeal to the Regional Director of the Bureau of Prisons, using Form BP-10. Id. §

542.15(a). Finally, within 30 days of the Regional Director’s response, the

inmate may file a final administrative appeal to the General Counsel of the

Bureau of Prisons, using Form BP-11. Id.

      As previously mentioned, M r. Robinson-Bey has brought Bivens claims for

violation of his Eighth Amendment rights arising out of his assault by fellow


rule in dismissing M r. Robinson-Bey’s claims. Nonetheless, remand is not
required because both parties were allowed sufficient briefing on the exhaustion
issue in the district court and we are permitted to affirm on any ground supported
by the record. See M aldonado v. City of Altus, 433 F.3d 1294, 1302-03 (10th
Cir. 2006) (“[W]e have discretion to affirm on any ground adequately supported
by the record, so long as the parties have had a fair opportunity to address that
ground.”) (alteration, quotation marks, and citation omitted).

                                          -4-
prisoners and subsequent transfer to the SH U. He has also brought a First

Amendment claim for retaliation and an FTCA claim for lost or stolen property.

See R. Doc. 1 at 2, 3. In response to these claims, on December 9, 2005,

Defendants filed a motion to dismiss, arguing that “[M r. Robinson-Bey] cannot

demonstrate that he has exhausted the administrative remedies for any of the

claims raised in his Complaint.” R. Doc. 53 at 15. This statement is sufficient

for Defendants to plead the affirmative defense of failure to exhaust, see Fed. R.

Civ. P. 8(e)(1); it does not necessarily mean, however, that they have proven non-

exhaustion. W e, therefore, must consider whether Defendants have proven non-

exhaustion as to each of M r. Robinson-Bey’s three claims.

      The district court below held that M r. Robinson-Bey had properly

exhausted his FTCA claim and proceeded to address its merits. Having reviewed

the record, we agree with the district court that M r. Robinson-Bey’s FTCA claim

was properly exhausted.

      As to M r. Robinson-Bey’s First and Eighth Amendment claims, the

documentary evidence attached to Defendants’ motion to dismiss adequately

demonstrates that M r. Robinson-Bey failed to properly exhaust these claims. A

careful review of this evidence reveals that, on April 10, 2002, M r. Robinson-Bey

initially filed a complaint with the regional office. This complaint was denied

because M r. Robinson-Bey failed to present his issue to the W arden first and the

issue was not sensitive (a “sensitive” issue may excuse a prisoner from presenting

                                        -5-
his complaint to the W arden first). M r. Robinson-Bey’s appeal of this denial to

the national level was unsuccessful for the same reasons.

      Next, on September 26, 2002, M r. Robinson-Bey filed a complaint at the

institutional level regarding the alleged assault, seeking a transfer and

compensation for lost or stolen property. His claim was denied because, at the

time of the complaint, the Special Investigation Section at the prison was still

investigating M r. Robinson-Bey’s case, and therefore it would have been

inappropriate to comment on his allegations at that time. The W arden explained

that “[o]nce an investigation is completed and a determination as to your status

has been made, you will again be free to pursue an Administrative Remedy if you

do not agree with the decision.” R. Doc. 53 Ex. 1 Att. 3 at 2. On October 25,

2002, M r. Robinson-Bey filed an appeal of the W arden’s decision at the regional

level, which was subsequently denied on the same grounds— the investigation into

the assault on M r. Robinson-Bey was still pending. Finally, on December 9,

2002, M r. Robinson-Bey appealed the regional level decision to the national

level. This appeal was denied, however, because M r. Robinson-Bey failed to

provide the national level with copies of either his institutional or regional level

grievances. The national level informed M r. Robinson-Bey that he could

resubmit his appeal with proper documentation within fifteen days of the date of

its denial of his complaint. M r. Robinson-Bey never did so.

      In sum, Defendants have adequately shown that M r. Robinson-Bey did not

                                         -6-
exhaust either his First or Eighth Amendment claims because he failed to follow

proper procedure in presenting his complaints and also presented them

prematurely. In his attempt to demonstrate exhaustion in the district court, M r.

Robinson-Bey submitted his own documentary evidence. This material included

letters both to and from M r. Robinson-Bey, several return receipts for letters that

M r. Robinson-Bey sent in an effort to exhaust his available remedies, a rejection

notice from the regional office, and several affidavits by M r. Robinson-Bey and

other inmates attesting to the inadequacies of the grievance response system at

USP Leavenworth. None of this evidence, however, demonstrates that M r.

Robinson-Bey presented his claims to Bureau of Prisons staff in a procedurally

sound manner or that his complaints were not made prematurely. As a result, the

district court was correct in dismissing M r. Robinson-Bey’s First and Eighth

Amendment claims on exhaustion grounds.

      Turning to the merits of M r. Robinson-Bey’s FTCA claim, the district court

held that this claim failed because it fell within one of the exceptions to the

FTCA’s waiver of sovereign immunity. Because the FTCA does not waive the

United States’ sovereign immunity for “[a]ny claim arising in respect of . . . the

detention of any goods, merchandise, or other property by any . . . law

enforcement officer,” 28 U.S.C. § 2680(c), the district court was correct in

granting Defendants’ motion to dismiss M r. Robinson-Bey’s FTCA claim for lost

or stolen property allegedly in their possession, see Steele, 355 F.3d at 1213-14,

                                         -7-
abrogated on other grounds by Jones, 2007 W L 135890, at *11.

      AFFIRM ED. W e GRANT IFP status and remind M r. Robinson-Bey of his

continuing obligation to make partial payments until the filing fee is paid.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                         -8-
