Frank Owens v. Donald Mallinger, et al, No. 09-2114 (8th Cir. 2010)
Annotate this CaseCourt Description: Civil Case - prisoner civil rights. Preservice dismissal of civil rights action is summarily affirmed.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2114 ___________ Frank R. Owens, * * Appellant, * * v. * * Donald J. Mallinger; Dr. Sanchez; * Nurse Julie Pihl; Dennis Brumbaugh; * Rich Barlow; Mendez; Jack Bates; * Donald Aschbrenner; Darrell Moeller; * Dave DeGrange; Ronald Welder; John * Ault; Matt Rehm; Mary Fett; Gary * Deen; Charles Harper, * * Appellees. * Appeal from the United States District Court for the Southern District of Iowa. [UNPUBLISHED] ___________ Submitted: January 14, 2010 Filed: January 29, 2010 ___________ Before BYE, RILEY, and SHEPHERD, Circuit Judges. ___________ PER CURIAM. Iowa inmate Frank Owens appeals the district court s1 preservice dismissal of his 42 U.S.C. § 1983 action, in part without prejudice. Upon de novo review, see 1 The Honorable Robert W. Pratt, Chief Judge, United States District Court for the Southern District of Iowa. Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir. 2000) (per curiam) (citing Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (per curiam)), we conclude dismissal was proper. See Will v. Mich. Dep t of State Police, 491 U.S. 58, 70-71 (1989) (holding that because the Eleventh Amendment immunizes the states from suit, neither a state nor its officials acting in their official capacities are persons under § 1983 when sued for damages); Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007) (declaring that if a § 1983 complaint is silent as to the capacity in which a defendant is sued, this court interprets the complaint as including only official-capacity claims); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) ( [A] prisoner s claim for injunctive relief to improve prison conditions is moot if he or she is no longer subject to those conditions ); see also Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005) (noting this court may affirm a dismissal on any basis supported by the record). We affirm. ______________________________ -2-
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