Blevins v. Reid

U.S. Court of Appeals for the Tenth Circuit March 29, 2007

Blevins v. Reid, 220 F. App'x 856 (10th Cir. 2007)

Opinion

ORDER AND JUDGMENT *

MONROE G. McKAY, Circuit Judge.

In this pro se state prisoner civil rights appeal, Plaintiff attacks his twice having been classified and placed in administrative segregation, the forfeiture of his property, and various conditions of his confinement. Relying on Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003), the district court dismissed Plaintiffs second amended complaint for failure to establish exhaustion of administrative remedies.

*857 In Aquilar-Avellaveda v. Terrell, 478 F.3d 1223 (10th Cir. 2007), we recognized that the Supreme Court’s recent decision in Jones v. Bock, — U.S.-, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007) abrogated Steele by determining that failure to exhaust is an affirmative defense and that prisoners are not required to specially plead or prove exhaustion in a complaint. 1

In light of Jones v. Bock, the case is REMANDED for reconsideration consistent with that decision. See Aquilar-Avellaveda, 478 F.3d at 1226. We GRANT Plaintiffs renewed motion for leave to proceed without prepayment of the appellate filing fee, and remind Petitioner of his obligation to continue making partial payments until the entire fee has been paid in accordance with the Clerk’s Office assessment of partial payments.

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. 34.1(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This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.

. We note that Plaintiffs original and amended complaints allege that he has exhausted administrative remedies on all his claims because the Colorado Department of Corrections failed to answer his grievance petition with the 45-day time frame allotted by § 850-4 of the Colorado Department of Correction Administrative Regulations.

Reference

Full Case Name: Terry BLEVINS, Plaintiff-Appellant, v. Larry REID, Warden, CSP; John Doe # 1 Tom M., Chairperson Ad Seg Hearing; Judy Lindsey, Initiating Employee; Cathy Slack, Administrative Head/Director, Defendants-Appellees
Status: Unpublished