Addones Spencer v. Tara Hall , 583 F. App'x 599 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2694
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Addones Spencer
lllllllllllllllllllll Plaintiff - Appellant
v.
Tara Hall, FCI-Forrest City
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Helena
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Submitted: November 21, 2014
Filed: November 26, 2014
[Unpublished]
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Before GRUENDER, BENTON, and KELLY, Circuit Judges.
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PER CURIAM.
Federal prisoner Addones Spencer appeals the district court’s1 dismissal
without prejudice of his Bivens2 action against Tara Hall, for failure to exhaust
administrative remedies. Having carefully reviewed the record and the parties’ briefs,
we affirm.
We first conclude that the district court did not abuse its discretion in
dismissing without affording Spencer additional time for discovery, because he did
not explain how further discovery would have helped him show that he had exhausted
available remedies, or been prevented from doing so. Cf. Ray v. Am. Airlines, Inc.,
609 F.3d 917, 922 (8th Cir. 2010) (abuse-of-discretion standard applies to district
court’s determination that claim is ripe for decision). We further conclude that
dismissal was proper because Spencer did not rebut Hall’s evidence that he had filed
no grievance concerning the subject of his lawsuit, and he presented no evidence
indicating that exhaustion was unavailable to him; on the contrary, the evidence
established that he had filed thirty-three grievances unrelated to the claims in the
present lawsuit. See 42 U.S.C. § 1997e(a) (exhaustion requirement); Hammett v.
Cofield, 681 F.3d 945, 948-49 (8th Cir. 2012) (per curiam) (claim that exhaustion is
unavailable requires sufficient showing in record; evidence of prisoner’s previous use
of grievance procedures is relevant); see also King v. Iowa Dep’t of Corr., 598 F.3d
1051, 1052 (8th Cir. 2010) (dismissal for failure to exhaust administrative remedies
is reviewed de novo).
Accordingly, we affirm. See 8th Cir. R. 47B.
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1
The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable Beth
Deere, United States Magistrate Judge for the Eastern District of Arkansas.
2
Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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