Willie Jones v. Douglas County Corrections Cen , 306 F. App'x 339 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3282
___________
Willie James Jones, *
*
Appellant, *
*
v. *
*
Douglas County Corrections *
Center; State of Nebraska, *
*
Appellees. *
___________ Appeals from the United States
District Court for the
No. 07-3306 District of Nebraska.
___________
[UNPUBLISHED]
Willie James Jones, *
*
Appellant, *
*
v. *
*
Danielle Unknown, from DCCC *
Mental Health, sued in their *
individual and official capacities; *
Unknown, Captain or SGT #352 *
DCCC, sued in their individual and *
official capacities; Bennett, DCCC, *
sued in their individual and official *
capacities; Unknown McNeil, #383 *
DCCC, sued in their individual and *
official capacities; Unknown, #409 *
DCCC, sued in their individual and *
official capacities; Unknown Ballard, *
#281 DCCC, sued in their individual *
and official capacities; Monica Bell, *
c/o, sued in their individual and *
official capacities, *
*
Appellees. *
___________
Submitted: December 3, 2008
Filed: January 9, 2009
___________
Before MELLOY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
In these consolidated appeals, former prisoner Willie Jones challenges two final
orders of the district court.1 In No. 07-3282, he appeals the district court’s adverse
grant of summary judgment in his 42 U.S.C. § 1983 action; and in No. 07-3306, he
appeals the district court’s dismissal of a second unrelated section 1983 complaint for
failure to state a claim.
After careful review, see Rouse v. Benson, 193 F.3d 936, 939 (8th Cir. 1999)
(district court’s grant of summary judgment reviewed de novo), we conclude that the
district court properly dismissed Jones’s complaint in No. 07-3282 because defendants
established that he failed to exhaust his administrative remedies. See 42 U.S.C.
§ 1997e(a) (“[n]o action shall be brought with respect to prison conditions . . . by a
prisoner confined in any jail, prison, or other correctional facility until such
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
-2-
administrative remedies as are available are exhausted”); Jones v. Bock, 549 U.S. 199,
211-17 (2007) (failure to exhaust is affirmative defense); Nerness v. Johnson, 401
F.3d 874, 876 (8th Cir. 2005) (per curiam) (defendant has burden of proving failure
to exhaust); Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (inmate must exhaust
all available administrative remedies before filing suit; “[i]f exhaustion was not
completed at the time of filing, dismissal is mandatory”). However, we modify the
dismissal to be without prejudice, see Calico Trailer Mfg. Co. v. Ins. Co. of N. Am.,
155 F.3d 976, 978 (8th Cir. 1998) (affirming dismissal for failure to exhaust
administrative remedies, but modifying to be without prejudice), and we affirm the
dismissal as modified.
We further conclude in No. 07-3306 that Jones has waived any challenge to the
district court’s dismissal of his complaint because he did not make any arguments
related to this dismissal in his opening brief. See Ahlberg v. Chrysler Corp., 481 F.3d
630, 634 (8th Cir. 2007) (points not meaningfully argued in opening brief are deemed
waived). Accordingly, we affirm the dismissal of his complaint.
______________________________
-3-