Opinion
Civil Case No. 05-cv-02290-LTB-PAC.
March 16, 2007
ORDER
In this 42 U.S.C. § 1983 action, the Magistrate Judge recommends that the Court grant Defendants' Motion to Dismiss Amended Complaint filed June 12, 2006, Docket #20. The Plaintiff has filed specific written objections to the Magistrate Judge's recommendation and therefore I have reviewed the recommendation de novo.
The Magistrate Judge first recommends dismissal for failure to exhaust administrative remedies recognizing that failure to exhaust is an affirmative defense rather than a pleading requirement. Jones v. Bock, ___ U.S. ___, 127 S.Ct. 910, 921 (2007). After the Magistrate Judge issued his recommendation, the Tenth Circuit Court of Appeals decided Jose Eli Aquilar-Avellaveda v. Terrell, ___ F.3d ___, No. 06-3334 (10th Cir. March 5, 2007). There the Tenth Circuit recognized that courts can dismiss prisoner complaints for failure to state a claim if it is clear from the face of the complaint that the prisoner has not exhausted his administrative remedies but cautioned that such action be taken only in rare cases because to determine whether an inmate has exhausted his administrative remedies requires an understanding of the remedies available and thus likely would require information from the defendant has well as the inmate. On de novo review, I cannot conclude that the Magistrate Judge's recommendation is correct in this particular respect.
Assuming exhaustion, however, the Magistrate goes on to analyze defendant's assertion of the qualified immunity defense and recommends dismissal upon this independent basis. Upon my de novo review, I conclude that the Magistrate Judge's recommendation to grant the motion upon the basis of qualified immunity is correct. Accordingly
IT IS ORDERED that Defendant's Motion to Dismiss Amended Complaint filed June 12, 2006, Docket #20, is GRANTED and the above action is DISMISSED.