Sylvester Barbee v. Correctional Medical Services , 394 F. App'x 337 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1891
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Sylvester Barbee, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Correctional Medical Services; Jan *
Alexander, Medical Director, * [UNPUBLISHED]
Diagnostic Unit, ADC; Nnamdi *
Ifediora, Dr., Diagnostic Unit, ADC; *
James Blackmon, Dr., Cummins Unit, *
ADC; Does, John, Doctor, or Jane, *
Nurse, Correctional Medical *
Services, *
*
Appellees. *
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Submitted: August 18, 2010
Filed: August 23, 2010
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Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
In these consolidated cases filed by Sylvester Barbee, the district court granted
summary judgment to defendants Jan Alexander, Nnamdi Ifediora, and James
Blackmon, and dismissed the claims against them with prejudice; and also dismissed
with prejudice, under 28 U.S.C. § 1915A, a separate amended complaint against the
remaining defendants for failure to state a claim for relief. Barbee appeals. We affirm
in part, and vacate and remand in part.
We agree with the district court that the separate amended complaint was
properly dismissed for failure to state a claim. See Cooper v. Schriro, 189 F.3d 781783 (8th Cir. 1999) (per curiam) (de novo review). However, as to the grant of
summary judgment, see Meuir v. Greene County Jail Employees, 487 F.3d 1115, 1118
(8th Cir. 2007) (standard of review), we conclude that the district court should not
have reached the merits of Barbee’s claims against defendants Alexander, Ifediora,
and Blackmon, who raised as an affirmative defense that Barbee failed to exhaust his
administrative remedies. See 28 U.S.C. § 1997e(a) (no action may be brought with
respect to prison conditions by prisoner confined in correctional facility until such
administrative remedies as are available are exhausted). The district court found, and
we agree, that the record supported this affirmative defense. Once the court
determined that the claims were unexhausted, it was required to dismiss them without
prejudice. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (if exhaustion was
not completed at time of filing suit, dismissal is mandatory); Lyon v. Vande Krol, 305
F.3d 806, 807, 809 (8th Cir. 2002) (en banc) (although case went to trial, dismissal of
complaint was required because inmate failed to exhaust administrative remedies and
defendants did not waive defense).
Accordingly, we affirm the dismissal of the amended complaint, see 8th Cir. R.
47B, but we vacate the grant of summary judgment to defendants Alexander, Ifediora,
and Blackmon and remand with instructions to dismiss the claims against these
defendants without prejudice for failure to exhaust administrative remedies, see
Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (remanding with directions to
dismiss complaint without prejudice where record showed failure to exhaust). We
also deny Barbee’s pending motion.
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