Summary
affirming dismissal without prejudice when plaintiff, who was prisoner at time of filing of initial complaint but was then released during the pending litigation, failed to exhaust administrative remedies
Summary of this case from Garrett v. BernsenOpinion
No. 06-1803.
Submitted: April 4, 2007.
Filed: April 5, 2007.
Appeal from the United States District Court for the Eastern District of Arkansas.
Dwight R. Houston, Brickeys, AR, pro se.
Asheton M. Carter, Attorney General's Office, Little Rock, AR, Michelle Banks Odum, Humphries Lewis, White Hall, AR, for Appellees.
Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
[UNPUBLISHED]
Former Arkansas inmate Dwight R. Houston appeals the district court's orders (1) dismissing certain defendants under 28 U.S.C. § 1915A, and denying a preliminary injunction and a temporary restraining order (TRO); and (2) granting the remaining defendants' motion to reconsider their motion to dismiss for failure to exhaust administrative remedies, and dismissing the action. We affirm.
We lack jurisdiction to review the denial of a TRO, see Hamm v. Groose, 15 F.3d 110, 112-13 (8th Cir. 1994), and because Houston is no longer an inmate, the preliminary-injunction issue is moot, cf. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (claim for injunctive relief to improve prison conditions was moot when prisoner was transferred and no longer subject to those conditions). As to the dismissals under section 1915A and for failure to exhaust administrative remedies, we find no basis for reversal. See Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam) (administrative exhaustion); Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (per curiam) (§ 1915A). The documents that Houston offered below showed that he had not exhausted his claims when he filed his initial complaint. See Jones v. Bock, ___ U.S. ___, 127 S.Ct. 910, 918-19, 923, 166 L.Ed.2d 798 (2007) (unexhausted claims cannot be brought in court or considered). Even if Houston was prevented from fully exhausting the grievance he filed in May 2005 about his revised medical classification and job assignment, see Sergent v. Norris, 330 F.3d 1084, 1085-86 (8th Cir. 2003) (per curiam) (remedy that prison official prevents inmate from using is not available), we find that those defendants allegedly involved in the classification and job assignment were properly dismissed for lack of service of process, or for failure to state a claim. We also find no abuse of discretion in the denial of appointed counsel. See Phillips v. Jasper County Jail, 437 F.3d 791, 794 (8th Cir. 2006).
Accordingly, we affirm. See 8th Cir. R. 47B.