                                                           FILED
                                                United States Court of Appeals
                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                September 5, 2007
                                 TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 JA M ES E. V A N H OU TEN ,

               Plaintiff-Appellant,                      No. 07-3167
          v.                                          District of Kansas
 CARRIE M ARLETT, Unit Team                     (D.C. No. 06-CV-3308-SAC)
 M anager, El Dorado Correctional
 Facility, in her official and individual
 capacity; DEBBIE BRATTON, Deputy
 W arden, El Dorado Correctional
 Facility, in her personal capacity,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      James E. Van Houten, a pro se Kansas state prisoner, brought a 42 U.S.C. §

1983 complaint against two prison officials, asserting that 24-hour confinement in

a “no-contact cell” violated his constitutional rights. The district court dismissed




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1.
Van Houten’s claims for failure to demonstrate exhaustion of administrative

remedies. W e vacate and remand.



      On April 27, 2006, M r. Van Houten was placed into a no-contact cell,

allegedly for brawling with one M r. Harris. M r. Van Houten was isolated until

M ay 27, 2006. On September 27, 2006, M r. Van Houten filed a grievance with

the prison unit team, which was dismissed as untimely under K an. Admin. Regs. §

44-15-101b.

      M r. Van Houten filed a 42 U.S.C. § 1983 claim with the district court

November 8, 2006, alleging violations of the Eighth and Fourteenth Amendments.

On N ovember 30, 2006, the district court ordered M r. Van H outen to show cause

that the case should not be dismissed because his untimely grievance failed to

properly exhaust administrative remedies. [R. Doc. 3 at 2] M r. Van Houten

objected to dismissal, arguing that Kan. Admin. Regs. § 44-15-101b allows one

year to file grievances. The district court disagreed with M r. Van Houten’s

statutory interpretation and dismissed the case for failure to state a claim for

relief on April 17, 2006. [R. Doc. 6 at 1–2.] M r. Van Houten moved to appeal

this order on M ay 22, 2007, which the district court allowed as a good-cause

extension of the normal 30-day deadline to file notice, as permitted by Rule

4(a)(5) of the Federal Rules of Appellate Procedure. [R. Doc. 10 at 1–2.]




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      Until January 2007, this Circuit held that exhaustion was a pleading

requirement in prison lawsuits such that “a complaint that fails to allege the

requisite exhaustion of remedies is tantamount to one that fails to state a claim

upon which relief may be granted.” Steele v. Fed. Bureau of Prisons, 355 F.3d

1204, 1210 (10th C ir. 2003) (quotation omitted). This is no longer good law,

however. After the district court ordered M r. Van Houten to prove exhaustion,

but before the case w as dismissed, the Supreme Court overruled this Circuit’s

interpretation in Jones v. Bock, 127 S.Ct. 910, 915 (2007). Exhaustion is now an

affirmative defense, and “inmates are not required to specially plead or

demonstrate exhaustion in their complaints.” Id. at 921.

      In “rare cases” a district court can “conclude from the face of the complaint

that a prisoner has not exhausted his administrative remedies and that he is

without a valid excuse.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225

(10th Cir. 2007). A court may raise the exhaustion question sua sponte by

concluding that a complaint is unexhausted under Bock, but none of the district

court’s orders demonstrate awareness that exhaustion is no longer a pleading

requirement. W e must therefore vacate the district court’s order dismissing M r.

Van Houten’s complaint. See Freeman v. Watkins, 479 F.3d 1257, 1260 (10th

Cir. 2007).

      W e VAC ATE the district court's order dismissing M r. Van Houten’s

complaint, and R EM A N D to the district court for further consideration in

                                         -3-
accordance with Jones v. Bock. M r. Van Houten also filed a motion to submit

additional evidence, consisting of citations to judicial decisions he deems relevant

to the merits of his case. The motion is DENIED because no such motion is

necessary. M r. Van Houten is free to cite pertinent authority if and when the

district court reaches the merits of his claim.



                                                Entered for the Court,



                                                M ichael W . M cConnell
                                                Circuit Judge




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