After examining appellant’s brief and the 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) and 10th Cir. R.

34.1(G). The case is therefore submitted without oral argument. This order and

judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, or 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.

F I LED

United States Court of Appeals

Tenth Circuit

April 24, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES A. CHILDS,

Plaintiff-Appellant,

v.

JOE ORTIZ; BARRY PARDUS;

DENNIS BURBANK; RANDY

FOSHEE; WILLIAM RICHTER; T.

KEELER; LT. HOLCOMB; DONNA

MURPHY, et al.; M. WINDEN;

STEVE OWENS; DONALD McCALL;

J. BROWN; SGT. SIMMONS; K.

MEYER; PHIL MARMALEJO; JULIE

RUSSELL; JASON ELSE; ANTHONY

DECESARO; KAREN COOPER;

MICHAEL ARELLANO; SHERYL

HEBERT; R. TWILLEGER; L.A.

RAMIREZ,

Defendants-Appellees.

No. 06-1368

(D.C. No. 06-cv-741-ZLW)

(Colorado)

ORDER AND JUDGMENT

*
Because he is proceeding pro se, we review Mr. Child's filings liberally. See 1

Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991).

-2-

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

James A. Childs, a pro se state prisoner, brought a complaint in the district 1

court challenging various conditions of his confinement. The district court

dismissed his claims for failure to demonstrate exhaustion of administrative

remedies. We vacate the district court’s order and remand for further

consideration. 

Mr. Childs, a prisoner in custody of the Colorado Department of

Corrections, filed a multi-claim complaint in district court challenging the

conditions of his imprisonment. Prisoners must exhaust administrative remedies

before challenging prison conditions in federal court. See 42 U.S.C. § 1997e(a). 

Relying on our holding in Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1211

(10th Cir. 2003), which requires that prisoners demonstrate exhaustion in their

complaint by “either attach[ing] copies of administrative proceedings or

describ[ing] their disposition with specificity,” the district court concluded Mr.

Childs “failed to describe with specificity the exhaustion of each of his claims,”

and “dismissed [Mr. Childs’ claims] for failure to demonstrate exhaustion of the .

. . administrative-grievance procedure.” See Rec., vol. I, doc. 22 at 5. 

The Supreme Court recently held failure to exhaust administrative remedies
Because Mr. Childs demonstrated the existence of “a reasoned, 2

nonfrivolous argument on the law and the facts in support of the issues raised on

appeal,” McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812-13 (10th Cir. 1997),

we grant his request to proceed ifp.

-3-

as required by 42 U.S.C. § 1997e(a) is an affirmative defense and not a pleading

requirement. Jones v. Bock, 127 S.Ct. 910, 921 (2007). We have since

recognized that Jones overruled the pleading requirement outlined in Steele, the

basis for the district court’s dismissal of Mr. Childs’ complaint. See AquilarAvellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). As we said in

Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007), “it is no longer

appropriate for the district court to require an affirmative showing of exhaustion

at this stage of the case.”

In light of the recent rulings discussed above, we VACATE the district

court’s order and judgment of dismissal, and REMAND to the district court for

further proceedings.2

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge