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judgment is not binding precedent, except under the doctrines of law of the case,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

ROBERT W. ROSBERG, JR.,

Plaintiff-Appellant,

v.

JOE ORTIZ, Executive Director,

CDOC; GARY WATKINS, Warden,

Fremont Corr. Fac.; DR. CHARLES

OLIN, Dir. Mental Health Svcs., FCF;

RONALD WILKES, Captain/Laundry

Supervisor, FCF; and MATT GOMEZ,

Sgt./Laundry Supervisor, FCF,

individually and in their official

capacities,

Defendants-Appellees.

No. 06-1278

(D.C. No. 05-cv-02498-ZLW)

(Colorado)

ORDER AND JUDGMENT

*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.
Because he is proceeding pro se, we review Mr. Rosberg'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-

Robert W. Rosberg, Jr., a pro se state prisoner, brought a complaint in the 1

district court asserting a violation of his constitutional rights pursuant to 42

U.S.C. § 1983 and 28 U.S.C. § 1343. 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. Rosberg, a Colorado state prisoner, filed an action in district court

alleging a violation of his Eighth Amendment right to be free from cruel and

unusual punishment. The court noted that prisoners must exhaust administrative

remedies before challenging prison conditions in federal court. See 42 U.S.C. §

1997e(a). The court then cited 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 court held

Mr. Rosberg “failed to exhaust the [Colorado Department of Correction]’s

grievance procedure,” and dismissed his action on those grounds. Rec., vol. I,

doc. 14 at 3. See also id. doc. 16 (denying Mr. Rosberg’s motion to reconsider).

The Supreme Court recently held failure to exhaust administrative remedies

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
-3-

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

basis for the district court’s dismissal of Mr. Rosberg’s 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.”

Because Mr. Rosberg has demonstrated the existence of “a reasoned,

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. 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.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge