David Wayne Boyles v. T. Park

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2161
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David Wayne Boyles, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
T. Park, Lt., Wrightsville Unit, ADC; *
R. McAllister, Major, Wrightsville * [UNPUBLISHED]
Unit, ADC; Perry, Major, Wrightsville *
Unit, ADC; Clifford Terry, Warden, *
Wrightsville Unit, ADC; Cook, *
Assistant Warden, Wrightsville Unit, *
ADC; Grant Harris, Warden, Pine *
Bluff Unit, ADC; M. Capel, *
Assistant Warden, Pine Bluff Unit, *
ADC; Ybarra, Officer, Pine Bluff *
Unit, ADC; Brooks, Lt., Pine Bluff *
Unit, ADC; Q. Haynes, Ms., A.R.O., *
Pine Bluff Unit, ADC; C. W. Hall, *
Captain, Pine Bluff Unit, ADC; *
Shilling, Sgt., Pine Bluff Unit, ADC; J. *
Hudson, Captain, Pine Bluff Unit, *
ADC; Vent, Sgt., Pine Bluff Unit, *
ADC; John Doe, Grievance Officer, *
ARO, East Arkansas Regional Unit, *
ADC; Walton, Classification Officer, *
East Arkansas Regional Unit, ADC; *
Powell, Lt., East Arkansas Regional *
Unit, ADC; Barnes, Captain, East *
Arkansas Regional Unit, ADC; *
Jackson, Captain, East Arkansas *
Regional Unit, ADC; Scudamore, *
Captain, East Arkansas Regional Unit, *
ADC; Dub D. Carnes, Sgt., East *
Arkansas Regional Unit, ADC; Grey, *
Sgt., East Arkansas Regional Unit, *
ADC; Henry, Sgt., East Arkansas *
Regional Unit, ADC; Dean Officer, *
East Arkansas Regional Unit, ADC; *
Bell, Officer, East Arkansas Regional *
Unit, ADC; Johnson, Officer, East *
Arkansas Regional Unit, ADC; Evans, *
Officer, East Arkansas Regional Unit, *
ADC; Attwater, Officer, East Arkansas *
Regional Unit, ADC; Smith, Officer, *
East Arkansas Regional Unit, ADC; *
Welington, Officer, East Arkansas *
Regional Unit, ADC; Cooksey, *
Assistant Warden, East Arkansas *
Regional Unit, ADC; Banks, Assistant *
Warden, East Arkansas Regional Unit, *
ADC; Harmon, Warden, East Arkansas *
Regional Unit, ADC; Edwards, Dr., *
East Arkansas Regional Unit, ADC; *
Lou, Dr., East Arkansas Regional Unit, *
ADC; Minor, Ms. East Arkansas *
Regional Unit, ADC; Humphries, Sgt., *
East Arkansas Regional Unit, ADC; *
Larry Norris, Director, Arkansas *
Department of Correction; Jim Smith, *
Compliance Attorney, Arkansas *
Department of Correction; M. Pecock, *
A.D.C. Attorney; R. Hobbs, Assistant *
Director, Arkansas Department of *
Correction; R. Dobbs, Assistant *
Director, Arkansas Department of *
Correction; T. Compton, Grievance *
Super., Arkansas Department of *
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Correction; R. Clark, Internal Affairs, *
Arkansas Department of Correction; J. *
Gibson, Internal Affairs, Arkansas *
Department of Correction; J. Byrd, *
Internal Affairs, Arkansas Department *
of Correction; L. May, Assistant *
Director, Arkansas Department of *
Correction; Wingaurd, Lt., Pine Bluff *
Unit, ADC; Tobar, Sgt., Ms., EARU, *
Arkansas Department of Correction; *
Lt. Crumpton, EARU, Arkansas *
Department of Correction, *
*
Appellees. *
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Submitted: November 4, 2004
Filed: November 8, 2004
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Before RILEY, McMILLIAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Arkansas inmate David Wayne Boyles (Boyles) appeals the district court’s1
preservice dismissal of his 42 U.S.C. § 1983 complaint for failure to exhaust his
administrative remedies. Having carefully reviewed the record, we affirm. See
Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (per curiam) (standard of
review).
1
The Honorable George Howard, Jr., United States District Judge for the
Eastern District of Arkansas, adopting the findings and recommendation of the
Honorable Henry L. Jones, Jr., United States Magistrate Judge for the Eastern District
of Arkansas.
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A prisoner cannot bring a section 1983 prison-conditions lawsuit before
exhausting available administrative remedies. See 42 U.S.C. § 1997e(a). After the
magistrate directed Boyles to provide proof of exhaustion, Boyles submitted over 100
exhausted and unexhausted grievances, but the exhausted grievances did not cover
the multitude of claims raised in his complaint. Further, while there was some
evidence in the record below about problems with the grievance process, the evidence
was not specific enough to show that prison officials had prevented Boyles from
administratively exhausting the issues he raised in the instant lawsuit. Cf. Sergent v.
Norris, 330 F.3d 1084, 1085-86 (8th Cir. 2003) (per curiam) (prison official’s failure
timely to respond to grievance could show prisoner exhausted “available” remedies;
remedy that prison official prevents inmate from using is not available) (citing Miller
v. Norris, 247 F.3d 736, 740 (8th Cir. 2001).
Thus, the district court was required to dismiss Boyles’s complaint without
prejudice. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (dismissal
required when inmate has not administratively exhausted remedies before filing
lawsuit); Kozohorsky v. Harmon, 332 F.3d 1141, 1143 (8th Cir. 2003) (when multiple
prison- conditions claims have been joined, section 1997e(a)’s plain language
requires that available administrative remedies be exhausted as to all claims);
Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000) (remanding with directions to
dismiss complaint without prejudice where record showed failure to exhaust), cert.
denied, 531 U.S. 1156 (2001). The dismissal should not, however, count as a “strike”
for purposes of 28 U.S.C. § 1915(g), because Boyles alleged exhaustion in his initial
complaint; and we revise the judgment accordingly. Cf. Porter v. Fox, 99 F.3d 271,
274 (8th Cir. 1996) (plaintiff who did not allege exhaustion of administrative
remedies failed to state claim).
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