                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      February 5, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                  TENTH CIRCUIT


 WESLEY I. PURKEY,

          Plaintiff-Appellant,
 v.                                                       No. 06-3389
 CCA DETENTION CENTER;                              (D.C. No. 03-3157-CM)
 FREDRICK LAWRENCE; ANDRE                                  (D. Kan.)
 FORD; MARTETO WILLINGHAM;
 JACQUELYN BANKS; KENNETH
 DAUGHERTY; LANCE ADKINS;
 and MICHAEL SULLIVAN,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before MCCONNELL, BALDOCK, and GORSUCH, Circuit Judges.


      Defendant Corrections Corporation of America (CCA) is a private Maryland

corporation under contract with the United States Marshals Service to detain and

house federal prisoners. Plaintiff Wesley Purkey, a federal prisoner formerly held

at CCA’s facility in Leavenworth, Kansas, instituted this suit in federal court against

CCA and various CCA employees. Purkey’s Amended “Petition” (Complaint) states

multiple Bivens claims for alleged violations of his constitutional rights, as well as


      *
         This order and judgment is not binding precedent except under the doctrines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.
one pendant state law tort claim.

      In the district court, Defendants filed a Motion to Dismiss. The district court

concluded Purkey failed to prove he exhausted available administrative remedies in

regard to Count VI of his Amended Complaint, which states a claim for excessive

force. The Prison Litigation Reform Act (PLRA) requires that prisoners exhaust

available administrative remedies before they initiate lawsuits related to the

conditions of their confinement. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th

Cir. 2002).   Consequently, the district court granted Defendants’ motion and

dismissed Purkey’s entire Amended Complaint without prejudice.

      On appeal, Purkey argues the district court erred in: (1) placing the burden of

proving he exhausted available administrative remedies on him; (2) ruling he failed

to exhaust available administrative remedies in regard to Count VI, and

(3) dismissing his entire Amended Complaint without prejudice.               We have

jurisdiction under 28 U.S.C. § 1291. We vacate and remand in order to give the

district court an opportunity to reconsider its opinion in light of the Supreme Court’s

decision in Jones v. Bock, 127 S. Ct. 910 (2006), and resulting changes in our

Court’s PLRA precedent.

                                          I.

      The PLRA states that: “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

                                          2
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s

requirement that an inmate exhaust all available administrative remedies before

initiating suit is “mandatory,” whether or not such remedies “meet federal

standards.” Woodford v. Ngo, 126 S. Ct. 2378, 2382 (2006). This “exhaustion

requirement applies to all inmate suits about prison life, whether they involve

general circumstances or particular episodes, and whether they allege excessive force

or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

      Prior to the Supreme Court’s ruling in Jones, we issued our opinions in Steele

v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003), and Ross v. County

of Bernalillo, 365 F.3d 1181 (10th Cir. 2004). Steele held that prisoners have the

burden of pleading the exhaustion of available administrative remedies under the

PLRA and that failure to properly plead exhaustion of such remedies amounts to

failure to state a claim upon which relief may be granted. See 355 F.3d at 1209-10.

In Ross, we held that the PLRA incorporates a total exhaustion requirement. See 365

F.3d at 1189. Thus, we held an inmate’s entire case must be dismissed if it contains

a single unexhausted claim. See id.

      In this case, the district court faithfully applied Steele in placing the burden

on Purkey to plead exhaustion of available administrative remedies. The district

court also followed our ruling in Ross in dismissing Purkey’s entire Amended

Complaint once it concluded Purkey had not exhausted available administrative

remedies in regards to Count VI. As we have recognized, however, “Jones overrules

                                          3
[both] Steele and Ross.” Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007).

      In Jones, the Supreme Court addressed several procedural requirements

adopted by lower courts, requiring a prisoner, under the PLRA, to “allege and

demonstrate exhaustion in his compliant . . . and requir[ing] courts to dismiss the

entire action if the prisoner fails to satisfy the exhaustion requirement as to any

single claim in his compliant.” 127 S. Ct. at 914. The Supreme Court’s holding in

Jones 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” clearly abrogated our holding in Steele. Id. at 921. Similarly, the

Supreme Court’s conclusion in Jones that the PLRA does not alter the legal norm by

which “[o]nly” unexhausted (or “bad claims”) in a complaint “are dismissed” –

rather than “the complaint as a whole” – abrogates our holding in Ross. Id. at 924.



      Post-Jones, we stated that prisoners “no longer [have] the duty of pleading

exhaustion.” Freeman, 479 F.3d at 1260. “As Jones makes clear, exhaustion is an

affirmative defense and defendants now have the burden of asserting the failure to

exhaust in their respons[ive] pleadings.” Id. Relying on Jones, we also recently held

that “the burden of proof for the exhaustion of administrative remedies in a suit

governed by the PLRA lies with the defendant.” Roberts v. Barreras, 484 F.3d 1236,

1241 (10th Cir. 2007).      Further, we have recognized that “under the newly

announced rules of Jones,” the failure to exhaust available administrative remedies

                                         4
“on one claim does not warrant dismissal of the entire action.” Id. at 1244.

                                         II.

      The district court did not have the opportunity to apply Jones, or our post-

Jones case law, when it ruled on Defendants’ motion. As a result, and through no

fault of its own, the district court’s treatment of Defendants’ Motion to Dismiss was

in error. See Peterson v. Shearson/American Express, Inc., 849 F.2d 464, 466 (10th

Cir. 1988) (“The general rule is that[,] absent injustice, an appellate court should

apply the case law in effect at the time it renders its decision.”). A remand is

necessary in order to give the district court an opportunity to apply the new PLRA

framework – as laid down by Jones and our post-Jones precedents – to the

present case.

      Defendants raised the issue of exhaustion in regard to Count VI in their

memorandum in support of their Motion to Dismiss. As such, Defendants satisfied

their post-Jones “burden of asserting the failure to exhaust in their respons[ive]

pleadings.” Freeman, 479 F.3d at 1260. On remand, however, Defendants also bear

the burden of proving Purkey failed to exhaust available administrative remedies in

regard to Count VI.     See Roberts, 484 F.3d at 1241.       Thus, Defendants must

necessarily prove that: (1) administrative remedies were, in fact, available to Purkey

after he left CCA’s custody, and (2) Purkey failed to exhaust these remedies. 1 If the


      1
          At this juncture, we are unsure whether administrative remedies were, in
                                                                     (continued...)

                                          5
district court concludes administrative remedies were, in fact, available to Purkey

and that Purkey failed to exhaust these remedies, only Purkey’s unexhausted claims

may be dismissed. See Freeman, 479 F.3d at 1260 (stating that “‘if a complaint

contains both good and bad claims, . . . court[s] proceed[] with the good and leave[]

the bad’” (quoting Jones, 127 S. Ct. at 924)).

      REVERSED AND REMANDED.

                                        Entered for the Court,



                                        Bobby R. Baldock
                                        United States Circuit Judge




      1
        (...continued)
fact, available to Purkey after he left CCA’s custody or whether Purkey failed to
exhaust the administrative remedies actually available to him. CCA’s grievance
policy merely states that: “If a grievance is submitted for review and the grievant
is released from custody, efforts to resolve the grievance will normally continue.”
See Policy 14-5.5(I)(3) (emphasis added). This section hardly states an unequivocal
rule. Further, nothing in § 14-5.5(I)(3) clearly indicates that prisoners released from
CCA’s custody are required to comply with all other sections of CCA’s grievance
policy, including those sections pertaining to appeals.

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