Richard Bower v. Marie Austin ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1678
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Richard Bower
lllllllllllllllllllll Plaintiff - Appellant
v.
Wendy Kelley
lllllllllllllllllllll Defendant
Marie Austin, Mrs., CMS Administrator, Cummins Unit, ADC; Martin Zoldessy,
Dr., Dentist, Cummins Unit, ADC
lllllllllllllllllllll Defendants - Appellees
John Doe, Dr., Dentist, Cummins Unit
lllllllllllllllllllll Defendant
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: December 13, 2012
Filed: December 13, 2012
[Unpublished]
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Before WOLLMAN, BYE, and GRUENDER, Circuit Judges.
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PER CURIAM.
Arkansas Department of Correction (ADC) inmate Richard Bower sought
damages in a 42 U.S.C. § 1983 action against Correctional Medical Services (CMS)
Administrator Marie Austin and CMS head dentist Dr. Martin Zoldessy.1 He alleged
that they refused to have his dental implants removed and cleaned for over two years,
which caused him to suffer infections. Austin and Zoldessy moved for summary
judgment on the ground that Bower did not exhaust his administrative remedies as to
them because he did not name them in his grievance as required by ADC policy. The
district court granted their motion and dismissed the claims against them without
prejudice.
Appellees do not dispute that Bower exhausted his grievance regarding
inadequate dental care; they argue that his failure to name them specifically in the
grievance precluded exhaustion of his claims against them. This court has rejected
such an argument. See Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012) (per
curiam) (concluding that exhaustion requirement is satisfied if prison officials decide
procedurally flawed grievance on merits; agreeing with, inter alia, Reed-Bey v.
Pramstaller, 603 F.3d 322, 324-26 (6th Cir. 2010)). We also reject appellees’ other
arguments.
Accordingly, we reverse the grant of summary judgment to Austin and
Zoldessy, remand for further proceedings on the claims against them, and otherwise
affirm the judgment.
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1
Bower also sued Wendy Kelley and an unidentified dentist. Kelley was
dismissed below and on appeal. The claims against the unidentified dentist were
dismissed below without prejudice; Bower does not appeal that ruling. See Griffith
v. City of Des Moines, 387 F.3d 733, 739 (8th Cir. 2004) (claims not briefed on
appeal are deemed abandoned).
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