This order and judgment is not binding precedent, except under the *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.

 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.

F I LED

United States Court of Appeals

Tenth Circuit

May 1, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DOMINIC GROLL,

Plaintiff - Appellant,

v.

BOBBY JOHNSON; JOE ORTIZ,

Defendants - Appellees.

No. 06-1540

(D.C. No. 06-CV-1739-ZLW)

(D. Colo.)

ORDER AND JUDGMENT

*

Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.**

Plaintiff-Appellant Dominic Groll, a state inmate appearing pro se, appeals

from the dismissal of his civil rights lawsuit pursuant to 42 U.S.C. § 1983. He

complains that he was subjected to unsafe and discriminatory working conditions

and retaliated against for complaining about them while he was confined at the

Rifle Correctional Center in Rifle, Colorado. The magistrate judge assigned to
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the case ordered Mr. Groll to show cause why his lawsuit should not be dismissed

for failure to exhaust administrative remedies. See id. § 1997e(a) (“No action

shall be brought with respect to prison conditions under . . . any . . . Federal law,

by a prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available have been exhausted.”). Mr. Groll filed a

response contending that he had exhausted his available remedies with respect to

one of the claims and that prison officials had prevented him from exhausting the

other. On December 4, 2006, the district court dismissed the lawsuit, holding that

Mr. Groll had failed to abide by our total exhaustion requirement for prisoner

suits. See R. Doc. 7, at 3-4 (citing Ross v. County of Bernalillo, 365 F.3d 1181,

1189 (10th Cir. 2004)).

Less than a month later, the Supreme Court rejected the total exhaustion

rule in Jones v. Bock, —U.S.—, 127 S. Ct. 910, 924-26 (2007) (“[I]f a complaint

contains both good and bad claims, the court proceeds with the good and leaves

the bad.”). It further determined that exhaustion is an affirmative defense, not a

pleading requirement. Id. at 921. Thus, district courts now may raise exhaustion

sua sponte only in “rare cases” where “it is clear from the face of the complaint

that the prisoner has not exhausted his administrative remedies.” AquilarAvellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).

This is not one of those rare cases. Mr. Groll’s pro se complaint, which we

construe liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972),
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documented the grievances he filed with respect to his working conditions, see R.

Doc. 3, at 4. Although Mr. Groll did not allege that he exhausted his retaliation

claim, he attached a letter to Defendant Warden Bobby Johnson complaining

about the situation. See id. Ex. A. He later made clear that he had attempted to

pursue a retaliation grievance but that Warden Johnson refused to provide him

with a grievance form because his complaint did not raise a grievable issue. R.

Doc. 6, at 3. The Defendants have not responded to these allegations, nor have

they raised failure to exhaust as an affirmative defense. Accordingly, the district

court erred in dismissing Mr. Groll’s lawsuit. See Freeman v. Watkins, 479 F.3d

1257, 1260 (10th Cir. 2007).

Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we VACATE the

decision below and REMAND for further proceedings. On remand, the 

Defendants may raise any applicable defenses. Mr. Groll’s motion to proceed in

forma pauperis pursuant to 28 U.S.C. § 1915 is GRANTED, and he is reminded of

his obligation to continue making partial payments until the filing fee is paid in

full.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge