Steve Cannon v. Green, No. 10-3028 (8th Cir. 2011)
Annotate this CaseCourt Description: Prisoner case - Prisoner Civil Rights. No error in dismissing claims against defendant Green as there was no evidence plaintiff had administratively exhausted the claims; dismissal should be without prejudice.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 10-3028 ___________ Steve Cannon, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Larry Norris, Director, Arkansas * Department of Correction; Goodman, * [UNPUBLISHED] Nurse; King, Nurse; Landry, Nurse; * Reese, Nurse; Bradley, Nurse; Harris, * Nurse, * * Defendants, * * Green, Ms., Classification, * * Appellee, * * Arkansas Department of Correction, * * Defendant. * ___________ Submitted: December 23, 2010 Filed: January 4, 2011 ___________ Before BYE, BOWMAN, and COLLOTON, Circuit Judges. ___________ PER CURIAM. Following entry of judgment in his 42 U.S.C. § 1983 action, Steve Cannon appeals the district court s1 grant of summary judgment to Ms. Green, a classification officer at the prison where Cannon was formerly incarcerated. After careful review, we agree with the district court that there was no evidence Cannon even attempted to exhaust administratively his claims against Green as required by the Prison Litigation Reform Act (PLRA). See King v. Iowa Dep t of Corr., 598 F.3d 1051, 1052 (8th Cir.), cert. denied, 79 U.S.L.W. 3226 (U.S. Oct. 12, 2010) (No. 10-5755) (reviewing de novo district court s interpretation of PLRA s administrative exhaustion provision); Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir 2008) (reviewing de novo grant of summary judgment). Accordingly, dismissal was required, see Jones v. Bock, 549 U.S. 199, 211, 218-20 (2007), but we clarify that the dismissal was without prejudice. ______________________________ 1 The Honorable Jerome T. Kearney, 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). -2-
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