Roberts v. Barreras, --- F.3d ----, 2007 WL 1113956(10th Cir. April 16, 2007)
Pro se federal inmate brought Bivens action against Santa Fe County Adult Detention Center for exposing him to dangerous secondhand smoke and denying him access to legal materials, violating his constitutional rights. The 10th sent the case back once to the district court (J. Armijo) to determine if equitable tolling extended the period of limitations, thus making P’s filing timely. The district court found no reason to toll the SL, even though P attested to filing numerous administrative grievances, thus exhausting them, relating to his claim (grievances toll the SL) and the Detention Center admitted to not keeping track of all administrative grievances. Dist Ct. held P had not met his burden to show exhaustion.
The Supreme Court recently overruled the 10th Cir. requirement that a P must demonstrate administrative exhaustion, Jones v. Bock, 127 S.Ct. 910, 921 (2007), and now failure to exhaust is an affirmative defense that D must show. So, for equitable tolling of the statute of limitations, the burden lies with the plaintiff; to show administrative exhaustion, the burden lies with the defendants. READ the opinion if you have this issue but, bottom line: the district court applied the wrong burden, and 10th reversed and sent back for District court to allow defendant to raise the failure to exhaust defense.