Sylvester Barbee v. Lisbeth Murphy , 690 F. App'x 446 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3656
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Sylvester Barbee
lllllllllllllllllllll Plaintiff - Appellant
v.
Lisbeth Anne Murphy, Doctor, Ouachita River Correction Unit; Wendy Kelley,
Director of Health & Correctional Programs, Central Office ADC; Marie Lane,
Corizon, Oauchita River Correctional Unit
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Arkansas - Hot Springs
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Submitted: May 31, 2017
Filed: June 5, 2017
[Unpublished]
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Before GRUENDER, ARNOLD, and KELLY, Circuit Judges.
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PER CURIAM.
In this pro se 42 U.S.C. § 1983 action, Arkansas prisoner Sylvester Barbee
appeals after the district court1 adversely granted summary judgment on his
deliberate-indifference claims. Having carefully reviewed the record and the parties’
arguments on appeal, we agree with the district court’s reasoning and conclude that
summary judgment was properly granted. See Beaulieu v. Ludeman, 690 F.3d 1017,
1024 (8th Cir. 2012) (grant of summary judgment is reviewed de novo, viewing
record in light most favorable to nonmovant). However, we modify the judgment to
be without prejudice as to Barbee’s claim against Wendy Kelley, because that claim
was dismissed for failure to exhaust administrative remedies. Cf. Calico Trailer Mfg.
Co. v. Ins. Co. of N. Am., 155 F.3d 976, 978 (8th Cir. 1998) (modifying dismissal for
failure to exhaust administrative remedies to be without prejudice). The judgment is
affirmed as modified. See 8th Cir. R. 47B.
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1
The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas, adopting the report and recommendations of the Honorable
Mark E. Ford, United States Magistrate Judge for the Western District of Arkansas.
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