Order Denying Motion To Reinstate (Page 3 of 5) in pdf

Order Denying Motion To Reinstate Page 3

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

Document 89

Filed 01/17/2008

Page 3 of 5

failure to exhaust administrative remedies is an affirmative defense under the PLRA,

and prison inmates are not required to plead or demonstrate exhaustion in their

complaints. Id., ___ U.S. at ___, 127 S. Ct. at 921.

II. ANALYSIS

In his Motion To Reinstate, Saleh asks that this case be reopened based on the

Supreme Court’s ruling in Jones v. Bock. He notes that this case was dismissed

because he had not named in his grievance the defendants named in his first claim for

relief, and because he had not exhausted administrative remedies as to all of the

claims stated in his complaint. Under Jones v. Bock, dismissal on these bases is not

proper.

I construe Saleh’s motion as a motion under Fed. R. Civ. P. 60(b), which

provides limited bases for relief from a judgment. In pertinent part, Rule 60(b) provides:

On motion and upon such terms as are just, the court may relieve a party

or a party's legal representative from a final judgment, order, or

proceeding for the following reasons: (1) mistake, inadvertence, surprise,

or excusable neglect; (2) newly discovered evidence ... (3) fraud ...; (4)

the judgment is void; (5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based has been reversed

or otherwise vacated, or it is no longer equitable that the judgment should

have prospective application; or (6) any other reason justifying relief from

the operation of the judgment. The motion shall be made within a

reasonable time, and for reasons (1), (2), and (3) not more than one year

after the judgment, order, or proceeding was entered or taken.

Saleh’s motion was filed about 30 months after I entered my order dismissing his

case. Thus, reasons (1), (2), and (3) of Rule 60(b) are inapplicable to his motion.

Reason (4) is inapplicable also. The only reasons conceivably applicable to this case

are reason (5), to the extent one could argue that it is inequitable for the judgment in

this case to have prospective application, and reason (6). I conclude that Saleh is not

Order Denying Motion To Reinstate Page 3