Smith v. Unknown Corrections Officer, MSP , 196 F. App'x 451 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2271
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Charles B. Smith, *
*
Appellant, *
*
v. *
*
Unknown Corrections Officer, MSP; * Appeal from the United States
Gary Campbell, Dr., CMS; Elizabeth * District Court for the
Conley, Dr., CMS; Dora Schriro, Dir., * Eastern District of Missouri.
MDOC; Randee Kaiser, Dir., CMS; *
Dave Dormire, Supt., MSP; Deborah *
Steinmann, RN, CMS; Lance Luria, * [UNPUBLISHED]
Dir., CMS; Unknown Williams; *
Denise Ponder, RN, CMS; Jacinda *
Burch, Reg. Adm., CMS; Steve Long, *
Asst. Dir., MDOC; Jacques Lamour, *
Dr., CMS, *
*
Appellees. *
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Submitted: September 7, 2006
Filed: September 14, 2006
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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Missouri inmate Charles B. Smith appeals from an order of the district court
dismissing his complaint without prejudice.
Smith filed this 42 U.S.C. § 1983 action alleging civil rights violations.
Defendants Dr. Elizabeth Conley, Dr. Gary Campbell, Deborah Steinmann, and Dave
Dormire moved to dismiss for failure to state a claim and for failure to exhaust
administrative remedies. The district court granted defendants’ motions, noting that
Smith’s complaint did not specifically allege full exhaustion of his administrative
remedies as to each defendant, and that he did not demonstrate exhaustion of
administrative remedies.
An inmate’s failure to exhaust available administrative remedies, as required
by 42 U.S.C. § 1997e(a), is an affirmative defense, which need not be pleaded by
plaintiff. See Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam).
We also note that it is not apparent from the face of the complaint or from the record
that Smith had not met the applicable exhaustion requirements when he filed his suit.
Cf. Abdul-Muhammad v. Kempker, 450 F.3d 350, 352 (8th Cir. 2006) (affirming
dismissal where careful review of record of case supports district court’s conclusion
that administrative remedies had not been exhausted before complaint was filed);
Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (per curiam) (while statute of
limitations is affirmative defense, district court may properly dismiss in forma
pauperis complaint before service when it is apparent from face of complaint that
statute of limitations has run).
Accordingly, we reverse the district court’s order, and remand to the district
court for further proceedings.
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