Order Denying Motion To Reinstate (Page 2 of 5) in pdf

Order Denying Motion To Reinstate Page 2

Case 1:03-cv-00180-REB-CBS

Document 89

Filed 01/17/2008

Page 2 of 5

administrative process any of the defendants named in his first claim for relief. Id. The

Magistrate Judge recommended also that Saleh’s second and third claims for relief be

dismissed because Saleh had not exhausted his administrative remedies as to all of the

claims in his complaint. Id. See, e.g., Ross v. County of Bernalillo, 365 F.3d 1181,

1189 (10

Cir. 2004), abrogated by Jones v. Bock, ___ U.S. ___, 127 S. Ct. 910

(2007).

On September 10, 2004, I entered an order adopting the Magistrate Judge’s

recommendation, and dismissing without prejudice Saleh’s claims against the

defendants in their individual capacities. Order Adopting Recommendation of United

States Magistrate Judge [#70], filed September 10, 2004. Saleh’s claims against the

defendants in their official capacities were dismissed with prejudice. Id. Saleh then

filed a notice of appeal. On May 16, 2005, the United States Court of Appeals for the

Tenth Circuit issued an order dismissing Saleh’s appeal for lack of prosecution. Order

[#82], filed May 16, 2005.

On January 22, 2007, the United States Supreme Court issued its opinion in

Jones v. Bock, ___ U.S. ___, 127 S. Ct. 910 (2007). The Court held, inter alia, that

under the Prison Litigation Reform Act of 1995 (PLRA), courts should not dismiss

prisoner complaints in their entirety when the plaintiff presents some claims for which

administrative remedies have been exhausted, and some claims for which

administrative remedies have not been exhausted. Id., ___ U.S. at ___ - ___ , 127 S.

Ct. at 923 - 926. The Court held also that exhaustion is not per se inadequate simply

because a defendant named in a lawsuit was not named in prison grievances filed on

the same issue. Id., ___ U.S. at ___, 127 S. Ct. at 923. Further, the Court held that

Order Denying Motion To Reinstate Page 2