Michael D. Marlin v. J. Jimenez ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3491
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Michael Duane Marlin, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
J. Jimenez; E J Prince, Dr.; S. Dawson; *
S. Smith; J. Dube-Gilley; G. Toliver; * [UNPUBLISHED]
E. Taylor; L. Sanders; G. Thompson, *
Assistant Warden; Emma J. Mitchell, *
Region Health Services Administrator, *
*
Appellees. *
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Submitted: June 23, 2008
Filed: June 27, 2008
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Federal inmate Michael Duane Marlin appeals the district court’s1 adverse grant
of summary judgment in his action brought under Bivens v. Six Unknown Named
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas, adopting in part the report and recommendations of
the Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern
District of Arkansas.
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Having carefully reviewed
the record and considered Marlin’s arguments, we find no basis for reversal. See
Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (standard of review).
However, the claims against defendant E. Taylor arose from alleged failures that
occurred shortly before the instant lawsuit was filed, and thus Marlin could not have
administratively exhausted those claims before filing suit and dismissal was required.
See Johnson v. Jones, 340 F.3d 624, 626-28 (8th Cir. 2003). Accordingly, we affirm,
but we revise the dismissal of the claims against defendant Taylor to be without
prejudice. See 8th Cir. R. 47B. We also deny Marlin’s motion for appointment of
counsel.
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