Christopher Love v. Larry May, (8th Cir. 2003)

Docket Number: 02-3838

Linked as:

Text

United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 02-3838

Christopher Love, Appellant, v. Larry May, Deputy Director, Arkansas Department of Correction; Greg Harmon, Warden, Maximum Security Unit, ADC; Terry James, Assistant Warden, Maximum Security Unit, ADC; Defendants, Henley, Captain, Varner Unit, ADC; Culclager; Ramos; Prather, Security Officer, Maximum Security Unit, ADC; Willie Jackson, Inmate Hall Porter, Maximum Security Unit, ADC, Appellees.

Submitted: May 2, 2003

Filed: May 21, 2003

Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.

PER CURIAM.

Arkansas inmate Christopher Love brought this 42 U.S.C. § 1983 action asserting claims arising from another inmateÂ’s attack on him. Prior to service, the district court1 dismissed the action on the ground that Mr. Love had failed to exhaust administrative remedies for his claims against defendants Larry May, Greg Harmon, and Terry James.

We agree that, because Mr. Love did not file grievances against those three defendants, dismissal was proper. See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002) (administrative exhaustion is prerequisite to § 1983 prison-conditions lawsuit even if administrative remedies are not plain, speedy, and effective, and relief inmate seeks is not available); Graves v. Norris, 218 F.3d 884, 885-86 (8th Cir. 2000) (per curiam) (dismissal proper where at least some of plaintiffÂ’s claims were unexhausted when district court ruled). We note that under the prisonÂ’s grievance procedure, Mr. Love can no longer timely file grievances relating to events that occurred in 2002, and thus he cannot administratively exhaust the claims he asserted against May, Harmon, and James.

Accordingly, we affirm the district courtÂ’s dismissal, but we modify the dismissal to be without prejudice, so that Mr. Love may file in the district court a complaint that includes only his exhausted claims. We also deny Mr. LoveÂ’s pending motion and vacate our previous order dismissing May, Harmon, and James from the appeal.

Appeal from the United States

District Court for the Eastern

District of Arkansas.

[UNPUBLISHED]

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

[1] The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable Henry L. Jones, Jr., United States Magistrate Judge for the Eastern District of Arkansas.