Addones Spencer v. Tara Hall, No. 14-2694 (8th Cir. 2014)
Annotate this CaseCourt Description: Prisoner case - Bivens action. The district court did not err in dismissing plaintiff's Bivens action for failure to exhaust administrative remedies.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 14-2694 ___________________________ Addones Spencer lllllllllllllllllllll Plaintiff - Appellant v. Tara Hall, FCI-Forrest City lllllllllllllllllllll Defendant - Appellee ____________ Appeal from United States District Court for the Eastern District of Arkansas - Helena ____________ Submitted: November 21, 2014 Filed: November 26, 2014 [Unpublished] ____________ Before GRUENDER, BENTON, and KELLY, Circuit Judges. ____________ PER CURIAM. Federal prisoner Addones Spencer appeals the district court’s1 dismissal without prejudice of his Bivens2 action against Tara Hall, for failure to exhaust administrative remedies. Having carefully reviewed the record and the parties’ briefs, we affirm. We first conclude that the district court did not abuse its discretion in dismissing without affording Spencer additional time for discovery, because he did not explain how further discovery would have helped him show that he had exhausted available remedies, or been prevented from doing so. Cf. Ray v. Am. Airlines, Inc., 609 F.3d 917, 922 (8th Cir. 2010) (abuse-of-discretion standard applies to district court’s determination that claim is ripe for decision). We further conclude that dismissal was proper because Spencer did not rebut Hall’s evidence that he had filed no grievance concerning the subject of his lawsuit, and he presented no evidence indicating that exhaustion was unavailable to him; on the contrary, the evidence established that he had filed thirty-three grievances unrelated to the claims in the present lawsuit. See 42 U.S.C. § 1997e(a) (exhaustion requirement); Hammett v. Cofield, 681 F.3d 945, 948-49 (8th Cir. 2012) (per curiam) (claim that exhaustion is unavailable requires sufficient showing in record; evidence of prisoner’s previous use of grievance procedures is relevant); see also King v. Iowa Dep’t of Corr., 598 F.3d 1051, 1052 (8th Cir. 2010) (dismissal for failure to exhaust administrative remedies is reviewed de novo). Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________ 1 The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable Beth Deere, United States Magistrate Judge for the Eastern District of Arkansas. 2 Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). -2-
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