F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       March 15, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 R OY J. M A IN ,

               Plaintiff-Appellant,                      No. 06-1478
          v.                                             (D. Colorado)
 CINDY M ARTIN, Eye Doctor of                    (D.C. No. 06-CV-232-ZLW )
 AVCF and FCF; GEO RG E H UBB S,
 RN-III Director of Utilization
 M anagement; JOHN/JOAN DOES,
 M ovement Personnel,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.




      After examining appellant’s brief and the appellate record, this court 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        This order and judgment is not binding precedent except under the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.
      Proceeding pro se, Colorado state prisoner Roy J. M ain appeals the district

court’s dismissal of the civil rights complaint he brought pursuant to 42 U.S.C.

§ 1983. In his complaint, M ain alleged Defendants violated his Eighth

Amendment rights by denying adequate medical treatment for an eye condition.

The district court ordered M ain to show cause why his complaint should not be

dismissed for failure to exhaust administrative remedies. In response, M ain

conceded he had not filed any grievances regarding the claims raised in his

complaint but argued no administrative remedies were available to him. The

district court considered M ain’s arguments but dismissed his complaint without

prejudice, relying on our prior precedents that exhaustion is a pleading

requirement and that total exhaustion is required by the Prison Litigation Reform

Act. See Ross v. County of Bernalillo, 

, 1189 (10th Cir. 2004),

Steele v. Fed. Bureau of Prisons, 

, 1209 (10th Cir. 2003). M ain

then filed a document titled, “Plaintiff’s M otion for New Trial,” which the district

court properly construed as a motion seeking relief from the judgment pursuant to

Rule 59(e) of the Federal Rules of Civil Procedure. The district court denied the

motion.

      This court conducts a de novo review of a dismissal for failure to exhaust

administrative remedies. See Jernigan v. Stuchell, 

, 1032 (10th Cir.

2002). After the district court ruled in this case, the Supreme Court abrogated the

precedents upon which the court relied. Jones v. Bock, 

(2007). In

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Jones, the C ourt held failure to exhaust is an affirmative defense and “inmates are

not required to specially plead or demonstrate exhaustion in their complaints.”

abrogating 

. The Court also held the failure to

exhaust one or more claims does not require the dismissal of the entire action. 

abrogating 

. Accordingly, under Jones the

district court erred when it dismissed M ain’s complaint without prejudice for

failure to exhaust administrative remedies.

      W e reverse the dismissal of M ain’s complaint and remand the matter to

the district court for further proceedings. M ain’s application to proceed in form a

pauperis on appeal is granted, but he is reminded he remains obligated to

continue making partial payments until his appellate filing fee is paid in full. See

28 U.S.C. § 1915(b).

                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




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