Latoyin Davis v. Greg Harmon

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1863
___________
LaToyin Davis, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Greg Harmon, Warden, East Arkansas *
Regional Unit, ADC; Richard Clark, * [UNPUBLISHED]
Dr., East Arkansas Regional Unit, *
ADC; Correctional Medical Services, *
Inc., *
*
Appellees. *
___________
Submitted: August 16, 2010
Filed: August 19, 2010
___________
Before WOLLMAN, BOWMAN, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Inmate LaToyin Davis appeals the adverse grant of summary judgment entered
by the District Court in this 42 U.S.C. § 1983 action. We grant Davis’s motion for
leave to appeal in forma pauperis and leave fee collection to the District Court. See
Henderson v. Norris, 129 F.3d 481, 484–85 (8th Cir. 1997) (per curiam). Having
carefully reviewed the record, Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th
Cir 2008) (standard of review), we find that the District Court erred in addressing the
merits of Davis’s complaint. The defendants raised as an affirmative defense the fact
that Davis failed to exhaust his administrative remedies and there was undisputed
evidence that Davis did not appeal the denial of the two grievances he filed at the
Eastern Arkansas Regional Unit concerning the matters at issue here. Dismissal
without prejudice was therefore mandatory. See Johnson v. Jones, 340 F.3d 624, 627
(8th Cir. 2003); see also Jones v. Bock, 549 U.S. 199, 211–24 (2007) (noting that
where failure to exhaust is pleaded as affirmative defense, unexhausted claims are
subject to dismissal under 42 U.S.C. § 1997e(a); a prison’s requirements define the
boundaries of proper exhaustion); Lyon v. Vande Krol, 305 F.3d 806, 807–09 (8th
Cir. 2002) (en banc) (dismissing for lack of administrative exhaustion even though
trial had already been held on merits).
Accordingly, we affirm the dismissal, but we amend it to be without prejudice
for failure to exhaust administrative remedies.
______________________________
-2-