FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

APR 7 2005 

PATRICK FISHER 

Clerk 

JAMES RALPH DAWSON, JR., 

Plaintiff-Appellant, 

V. 

ROBERTTAYLOR;RONALD 

CARTER; DEBBIE OUTEN; 

RICHARD MISCHIARA; JOHN 

BOWKER, 

Defendants-Appellees. 

No. 04-1183 

(D.C. No. 99-M-148 (BNB)) 

(D. Colo.) 

ORDER AND JUDGMENT* 

Before EBEL, BALDOCK, and KELLY, Circuit Judges. 

After examining the briefs and 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); 10th Cir. R. 34.l(G). The case is 

therefore ordered submitted without oral argument. 

This order and judgment is not binding precedent, except under the 

doctrines of law of the case, res judicata, and collateral estoppel. The court 

generally disfavors the citation of orders and judgments; nevertheless, an order 

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

Appellate Case: 04-1183 Document: 010110533921 Date Filed: 04/07/2005 Page: 1
James Ralph Dawson, Jr., appeals the dismissal of his civil rights action, 

with prejudice, for lack of exhaustion. We reverse to allow the district court to 

examine the status of Mr. Dawson's claims in light of this court's decision in 

Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), which was issued 

after the district court rendered its decision in this matter. 

In Ross, we held that mixed complaints-complaints that include both 

exhausted and unexhausted claims-should be dismissed without prejudice. Id. at 

1190. We also held that a grievance adjudicated on the merits, even if untimely, 

could satisfy the exhaustion requirement. Id. at 1186. And we held that, under 

some circumstances, an inmate need not complete every stage of the grievance 

process in order for administrative remedies to be considered exhausted. Id. at 

1187. 

Our review of the record on appeal indicates that at least one of 

Mr. Dawson's claims (the November 13, 1998 transfer) may have been timely 

grieved. Supp. Docs. Al, A2, A3; Tr. at 6; see also Aplee. Br. at 5. Thus, it 

appears that Mr. Dawson may have properly exhausted his remedies with regard 

to this issue. In addition, in light of Ross, there may be questions whether certain 

other claims were properly exhausted. 1 Given these potential issues, we feel that 

The record indicates that Mr. Dawson's formal grievance of his major issue 

(whether defendants were deliberately indifferent to his welfare when they celled 

(continued ... ) 

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Mr. Dawson's arguments regarding exhaustion will benefit from further 

exploration at the district court level. 

Once the district court has determined which, if any, claims are properly 

exhausted, it should proceed accordingly. If all of Mr. Dawson's claims are fully 

exhausted, then the district court can proceed to the merits. If the district court 

remains convinced that some or all of Mr. Dawson's claims are unexhausted, an 

appropriate remedy is dismissal of the entire complaint without prejudice. Ross, 

365 F.3d at 1190. Or if it finds that the complaint is a mixed complaint, the 

district court may give Mr. Dawson an opportunity to voluntarily dismiss his 

unexhausted claims and proceed with his exhausted claims. Cf Rose v. Lundy, 

455 U.S. 509, 510 (1982) (applying similar remedy in habeas case). 2 

Defendants-Appellees' motion to supplement the record is GRANTED. 

Mr. Dawson 's motion to proceed on appeal in forma pauperis is GRANTED, and 

he is reminded that he is obligated to continue making partial payments until the 

1

( ••• continued) 

him with his former victim) was likely filed untimely. One question, though, is 

whether the prison accepted it and adjudicated it on the merits, even though it was 

untimely. If so, Mr. Dawson would be deemed to have properly exhausted his 

remedies. See Ross, 365 F.3d at 1186. Also, Mr. Dawson suggests that, with 

regard to some of his issues, he received relief through the informal grievance 

process, so that he did not need to pursue the grievance process any further in 

order to exhaust his administrative remedies. See id. at 1187. 

2 Of course, the district court may also rely on 42 U.S.C. § 1997e(c)(2), 

which allows dismissal on the merits without exhaustion in some circumstances, 

if appropriate. 

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entire appellate filing fee has been paid. The judgment of the district court is 

REVERSED and REMANDED for further proceedings. The mandate shall issue 

forthwith. 

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Entered for the Court 

Bobby R. Baldock 

Circuit Judge 

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