Terry Dean Gray v. Sara McQuilliams

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1280
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Terry Dean Gray, *
*
Appellant, *
* Appeal from the United States
v. * District court for the Eastern
* District of Arkansas.
Sara McQuilliams, Warden, North *
Central Unit, Arkansas Department * [UNPUBLISHED]
of Corrections; Debra Harris, Mrs., *
Law Library Supervisor, North *
Central Unit, Arkansas Department *
of Correction; Larry May, Assistant *
Director, Arkansas Department of *
Correction, *
*
Appellees. *
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Submitted: July 2, 2001
Filed: July 16, 2001
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Arkansas inmate Terry Gray appeals the district court’s1 adverse grant of
summary judgment in his pro se 42 U.S.C. § 1983 action against three Arkansas
Department of Correction (ADC) employees. Mr. Gray claimed that defendants
violated his right of access to the courts in a prior section 1983 action he had filed,
because of inadequacies in ADC’s law library, library-use policy, and legal assistance.
We affirm.
Having reviewed the record de novo, we agree with the district court that
Mr. Gray could not show the alleged deficiencies resulted in any actual injury in his
prior action, because it was dismissed for failure to exhaust administrative remedies.
See Lewis v. Casey, 518 U.S. 343, 351 (1996) (inmate cannot establish relevant actual
injury simply by establishing that prison law library or legal-assistance program is
theoretically subpar, but must demonstrate that alleged shortcomings hindered efforts
to pursue legal claim). We need not consider Mr. Gray’s contention that if he had been
afforded library access and legal assistance he would have argued that exhaustion was
not required, because he raises this contention for the first time on appeal. See
Alexander v. Pathfinder, Inc., 189 F.3d 735, 742 (8th Cir. 1999) (“we will not consider
arguments raised for the first time on appeal”). In any event, none of the supporting
cases he cites hold that 42 U.S.C. § 1997e(a) does not require an inmate to exhaust
available administrative remedies before filing a section 1983 conditions-of-
confinement action. See Castano v. Neb. Dep’t of Corr., 201 F.3d 1023, 1025 (8th
Cir.) (“we are not free to engraft upon [§1997e(a)] an exception that Congress did not
place there”), cert. denied, 121 S. Ct. 266 (2000).
1
The Honorable Henry L. Jones, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was referred for final disposition by consent of
the parties pursuant to 28 U.S.C. § 636(c).
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Mr. Gray also argues that the district court erred in failing to rule on his claim
that certain correctional officers retaliated against him. This argument lacks merit,
however, as the officers involved were not named as defendants.
The district court also denied Mr. Gray leave to file two amended complaints in
which he sought to bring additional retaliation claims. To the extent Mr. Gray’s
argument concerning the district court’s failure to rule on his retaliation claim
encompasses a challenge to the court’s denial of leave to amend, we see no abuse of
discretion. See Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001)
(standard of review). The court already had given Mr. Gray multiple opportunities to
amend, and one of the proposed amended complaints would have been futile, while the
other was non-specific and conclusory. See id. (denial of leave to amend is appropriate
if amendment would be futile).
Accordingly, we affirm, and we deny Mr. Gray’s pending motion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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