Clarence H. Nash v. Harley B. Lappin, No. 05-2285 (8th Cir. 2006)
Annotate this CaseCourt Description: Prisoner case - prisoner civil rights. Dismissal for failure to exhaust affirmed without comment, although the dismissal is modified to be without prejudice.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 05-2285 ___________ Clarence H. Nash, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Harley G. Lappin, Sued as Harley B. * Lappin; Harold Watts; G. L. * [UNPUBLISHED] Hershberger, Sued as Gerald * Hershberger; W. I. LeBlanc, Sued as * Whitney I. LeBlance, Jr.; David * Good; David Edwardy, * * Appellees. * ___________ Submitted: March 30, 2006 Filed: March 30, 2006 ___________ Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges. ___________ PER CURIAM. Clarence Nash, an inmate at the Federal Medical Center (FMC), appeals the district court s1 preservice dismissal of his 42 U.S.C. ยง 1983 complaint for failure to exhaust administrative remedies. 1 The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, adopting the report and recommendations of the Honorable Franklin L. Noel, United States Magistrate Judge for the District of Minnesota. While the exhaustion requirement is an affirmative defense that a defendant must plead and prove, see Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam), it is clear from the dates of the alleged incidents that Nash could not have administratively exhausted all of his claims when he filed the instant lawsuit, cf. Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (per curiam) (while statute of limitations is affirmative defense, district court may properly dismiss in forma pauperis complaint before service when it is apparent from face of complaint that statute of limitations has run). Accordingly, we affirm but modify the dismissal to be without prejudice. See Calico Trailer Mfg. Co. v. Ins. Co. of N. Am., 155 F.3d 976, 978 (8th Cir. 1998) (modifying dismissal for failure to exhaust administrative remedies to be dismissal without prejudice). ______________________________ -2-
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