F I LED

United States Court of Appeals

Tenth Circuit

March 5, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSE ELI AQUILARAVELLAVEDA,

Plaintiff-Appellant,

v.

DUKE TERRELL, Warden, USPLeavenworth,

Defendant-Appellee.

No. 06-3334

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 06-CV-3201)

Jose Eli Aquilar-Avellaveda, appearing pro se.

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.

EBEL, Circuit Judge.
 As the district court noted, appellant’s name has been referred to as 1

“Aguilar-Avellaneda” in other records. In this appeal, the appellant uses

“Aquilar-Avellaveda,” which was the name employed by the district court. 

 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 2

403 U.S. 388 (1971). Mr. Aquilar-Avellaveda’s complaint sought relief under 42

U.S.C. § 1983; the Alien Tort Claims Act, 28 U.S.C. § 1350; and a range of

federal rules permitting a court to compel production of documents, depositions

and subpoenas. The district court construed the complaint as a Bivens action.

 The district court granted Aquilar-Avellaveda’s motion to proceed on 3

appeal in forma pauperis under 28 U.S.C. § 1915. We remind Mr. AquilarAvellaveda that he must continue making payments on his appellate filing fee

until the entire balance is paid.

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Jose Eli Aquilar-Avellaveda, a federal prisoner proceeding pro se on a 1

Bivens complaint, seeks discovery, injunctive relief, and damages related to 2

allegations that federal prison staff violated his civil rights under the First, Fifth

and Eighth Amendments to the Constitution. He claims that the warden, Duke

Terrell, and other prison officials intercepted and destroyed legal materials he

needed to prepare for his direct appeal, and alleges that they continue to segregate

him without cause and impose lighting conditions that disrupt his sleep. The

district court dismissed Mr. Aquilar-Avellaveda’s complaint for failure to exhaust

administrative remedies, but in light of a recent ruling from the United States

Supreme Court, we vacate and remand for further consideration. 

Mr. Aquilar-Avellaveda filed a complaint in the United States District

Court for the District of Kansas on July 18, 2006, alleging that prison officials

violated his civil rights under 42 U.S.C. § 1983 and 28 U.S.C. § 1350. The court 3
 The Bureau of Prisons was not served with the complaint at issue and did 4

not enter an appearance in this matter. Moreover, the district court did not order

the Bureau to enter an appearance.

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noted that under federal law, Mr. Aquilar-Avellaveda must exhaust his

administrative remedies before bringing his action. See 42 U.S.C. § 1997e(a)

(“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 remedies as are available are

exhausted.”). The district court relied on our precedent in Steele v. Federal

Bureau of Prisons holding that a prisoner, to avoid dismissal of his complaint

under the Prison Litigation Reform Act (PLRA), must plead exhaustion with

specificity. 355 F.3d 1204, 1210 (10th Cir. 2003). 

Because Mr. Aquilar-Avellaveda had not included in his pleadings any

information suggesting that he had pursued administrative remedies, the court

ordered that Mr. Aquilar-Avellaveda be granted twenty days to supplement the

record. Mr. Aquilar-Avellaveda timely responded with some information

documenting his attempts at complying with the Bureau of Prison’s administrative

remedy program, and also alleged that prison officials prevented him from

completing the administrative process. The district court found the 4

documentation insufficient. Specifically, the court observed that some notices

were not dated, and found that Mr. Aquilar-Avellaveda had not demonstrated that

he had sought further administrative review of the warden’s alleged failure to
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respond to the prisoner’s grievance. The court dismissed the complaint without

prejudice, concluding that Mr. Aquilar-Avellaveda failed to comply with the

PLRA’s exhaustion requirement at 42 U.S.C. § 1997e(a).

In Steele, we adopted the view that Section 1997e(a) required a prisoner to

plead and demonstrate that he had exhausted his administrative remedies prior to

bringing his complaint about prison conditions in court. 355 F.3d at 1210. We

stated that a prisoner must either “attach a copy of the applicable administrative

dispositions to the complaint, or, in the absence of written documentation,

describe with specificity the administrative proceeding and its outcome.” Id.

(quotation, citations and alteration omitted). The district court properly relied on

this holding in reviewing Mr. Aquilar-Avellaveda’s complaint and requesting

additional information about whether he had exhausted his administrative

remedies.

However, the United States Supreme Court has recently rejected that rule,

holding that failure to exhaust is only an affirmative defense rather than a

pleading requirement. Jones v. Bock, ___ U.S. ___, 127 S. Ct. 910, 921 (2007)

(“We conclude 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.”). Accordingly, our pleading requirement from Steele is no

longer good law. Because Mr. Aquilar-Avellaveda’s complaint was silent as to

whether he had exhausted his administrative remedies – which is acceptable under
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Jones – the district court erred in requesting Mr. Aquilar-Avellaveda to

supplement the record on that issue. 

If the complaint had made it clear through Mr. Aquilar-Avellaveda’s

affirmative statements that he had not exhausted his administrative remedies, the

district court could have raised the exhaustion question sua sponte, consistent

with 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, and sought

additional information from Mr. Aquilar-Avellaveda. Jones suggests that district

courts can dismiss prisoner complaints for failure to state a claim if it is clear

from the face of the complaint that the prisoner has not exhausted his

administrative remedies. Jones, 127 S. Ct. at 921. However, courts also are

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

action or inaction of prison officials. See, e.g., Jernigan v. Stuchell, 304 F.3d

1030, 1032 (10th Cir. 2002) (stating that although 42 U.S.C. § 1997e requires

inmates to exhaust “available” administrative remedies, the “failure [of prison

officials] to respond to a grievance within the time limits contained in the

grievance policy renders an administrative remedy unavailable”). The facts

ordinarily pled in allegations concerning prison conditions frequently will not

give a definitive answer as to whether a prisoner has completed his internal

grievance process or whether he was thwarted in his attempts to do so.

We believe that only in rare cases will a district court be able to conclude

from the face of the complaint that a prisoner has not exhausted his administrative
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remedies and that he is without a valid excuse. When a district court is given the

opportunity to address the exhaustion question due to affirmative but not

conclusive statements in the prisoner’s complaint, we follow the Fourth Circuit in

holding that “a district court cannot dismiss the complaint without first giving the

inmate an opportunity to address the issue.” See Anderson v. XYZ Corr. Health

Servs., 407 F.3d 674, 682 (4th Cir. 2005). “District courts taking this approach

must exercise caution. 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.” 

Id. at 683 n.5.

We REVERSE and VACATE the district court’s order and judgment

dismissing Mr. Aquilar-Avellaveda’s complaint, and REMAND to the district

court for further consideration in accordance with Jones v. Bock and this opinion.