United States Tenth Circuit

The burden of proof for the exhaustion of administrative remedies in a suit governed by the Prison Litigation Reform Act (PLRA) lies with the defendant. In a Bivens action brought by a federal corrections inmate alleging that he was exposed to harmful secondhand smoke and denied access to legal materials in violation of his constitutional rights while he was under defendants' care, summary judgment against plaintiff is reversed and remanded where: 1) a remand was necessary for addressing a statutory tolling issue; and 2) the district court erred in ruling that plaintiff had not exhausted his administrative remedies.

Appellate Information

• Decided 04/16/2007
• Published 04/17/2007

Judges

• McCONNELL, Circuit Judge., Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

Court

• United States Tenth Circuit

Counsel

• For Appellant:
  
• Ethan Erwin Roberts, pro se.


• For Appellees:
  
• Patrick D. Allen and April D. White, Yenson, Lynn, Allen & Wosick, P.C., Albuquerque, NM, for Defendants-Appellees Cornell Corrections, Inc., Santa Fe County, Lawrence Barreras, and Major Romero.  Deborah D. Wells, Kennedy, Moulton & Wells, P.C., Albuquerque, NM, for Defendant-Appellee CMS. James R. Wood, Miller Stratvert P.A., Albuquerque, NM, for Defendant-Appellee Donna Deming.