Joseph Stafford v. Gwen Brown , 114 F. App'x 769 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2508
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Joseph Stafford, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Gwen Brown, Case Manager, FCI- *
Forrest City; Cathy Hicks, Camp *
Administrator, FCI-Forrest City; * [UNPUBLISHED]
M. D. Morrison, Warden, FCI-Forrest *
City; John Does, Unknown Named *
Employees, Federal Bureau of Prisons, *
*
Appellees. *
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Submitted: November 24, 2004
Filed: December 9, 2004
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Before MURPHY, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Federal inmate Joseph Stafford appeals the district court’s1 Federal Rule of
Civil Procedure 12(b)(6) dismissal of his action brought under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for
failure to exhaust administrative remedies. Having carefully reviewed the record, see
McAlphin v. Toney, 375 F.3d 753, 754 (8th Cir. 2004) (per curiam) (standard of
review), we affirm.
A prisoner cannot bring a Bivens action involving prison conditions before
exhausting available administrative remedies. See 42 U.S.C. § 1997e(a); Porter v.
Nussle, 534 U.S. 516, 524, 532 (2002). We agree with the district court that Stafford
failed to provide proof of exhaustion as to his claim that he was transferred to the
federal correctional institution partly in retaliation for successfully helping other
inmates with legal and administrative matters. See Kozohorsky v. Harmon, 332 F.3d
1141, 1143 (8th Cir. 2003) (when multiple prison-conditions claims have been joined,
§ 1997e(a)’s plain language requires that available administrative remedies be
exhausted as to all claims). While the grievance he offered contained assertions that
he was transferred because of racial bias, it did not address his allegation about the
transfer occurring due to his law-clerk activities. As to Stafford’s request for leave
to amend, unlike the plaintiff in Kozohorsky, he was not specific enough as to how
he intended to amend his complaint. Cf. Kozohorsky, 332 F.3d at 1143-44 (district
court abused its discretion by implicitly denying motion to amend where requested
amendment would have cured defect necessitating dismissal and not required
additional discovery).
The district court was thus required to dismiss Stafford’s complaint without
prejudice. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (dismissal
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable Jerry W. Cavaneau, United States Magistrate Judge for the Eastern District
of Arkansas.
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required when inmate had not administratively exhausted before filing lawsuit). The
dismissal should not, however, count as a “strike” for purposes of 28 U.S.C.
§ 1915(g), because Stafford alleged exhaustion in his complaint; we revise the
judgment accordingly. Cf. Porter v. Fox, 99 F.3d 271, 274 (8th Cir. 1996) (per
curiam) (plaintiff who did not allege exhaustion of administrative remedies failed to
state claim).
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