Jones v. Douglas Cnty

4 Citing cases

  1. Owens v. Robinson

    356 F. App'x 904 (8th Cir. 2009)   Cited 2 times
    Affirming the dismissal of a similar challenge to Iowa's parole review procedure for failure to exhaust administrative remedies

    Iowa inmate Frank Owens appeals the district court's adverse grant of summary judgment in his 42 U.S.C. ยง 1983 action against Elizabeth Robinson (the Chair of the Iowa Board of Parole) and Clarinda Correctional Facility personnel. After careful de novo review, see Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2006), we conclude that dismissal was proper as to the claim against Robinson, because she established that Owens failed to exhaust his administrative remedies as required under 42 U.S.C. ยง 1997e(a); however, we modify the dismissal to be without prejudice, see Jones v. Douglas County Corr. Ctr., 306 Fed.Appx. 339, 340 (8th Cir. 2009) (unpublished per curiam). As to the remaining defendants, we conclude that dismissal was proper for the reasons stated by the district court.

  2. U.S. v. Fargas

    334 F. App'x 40 (8th Cir. 2009)   Cited 4 times
    Affirming dismissal but modifying to be without prejudice

    w before exhausting all available administrative remedies); Fed.R.Civ.P. 56(c) (summary judgment is appropriate when there is no genuine issue as to any material fact and moving party is entitled to judgment as matter of law), (e)(2) (party opposing properly supported summary judgment motion must set out specific facts showing genuine issue for trial); Jones v. Bock, 549 U.S. 199, 211-24, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (where failure to exhaust is pleaded as affirmative defense, unexhausted claims are subject to dismissal under ยง 1997e(a)); Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam) (exhaustion requirement under ยง 1997e(a) is affirmative defense that defendant has burden to plead and prove); see also Fed.R.Civ.P. 12(d) (if matters outside pleadings are presented and not excluded by court, motion under Rule 12(b)(6) must be treated as one for summary judgment under Rule 56). Accordingly, we affirm, but we modify the dismissal to be without prejudice, see Jones v. Douglas County Corr. Ctr., 306 Fed.Appx. 339, 340 (8th Cir. 2009) (unpublished per curiam).

  3. Weston v. United States

    1:15CV84 (M.D.N.C. Sep. 17, 2015)   Cited 3 times

    Actions that have been dismissed for failure to exhaust administrative remedies have generally been dismissed without prejudice. See, e.g., Jones v. Douglas Cty. Corr. Ctr., 306 Fed. Appx. 339, 340 (8th Cir. 2009) (holding that if a claimant fails to exhaust administrative remedies under the FTCA then the claim should be dismissed without prejudice); Fawcett v. United States, No. 4:13CV01828, 2014 WL 4183683, at *4 (E.D. Ohio Aug. 21, 2014) (recommending dismissal without prejudice because of plaintiff's failure to exhaust administrative remedies); Murphy v. United States, Civil Action No. 3:12-1919, 2013 WL 4520756, at *5 (M.D. Pa. Aug. 26, 2013) (dismissing premature claim under FTCA "while [plaintiff's] administrative claims are considered"); Diabate v. Delta Airline, No.13-CV-0918 (PJS/JJK), 2014 WL 48001, at *8 (D. Minn. Jan. 7, 2014) ("[B]ecause Diabate failed to comply with the presentment requirements of ยง 2675(a), his conversion claim against TSA must be dismissed without prejudice."). This court therefore will grant Defendant's motion to dismiss and dismiss Plaintiff's claim without prejudice, allowing Plaintiff to refile in this court after exhausting her administrative remedies.

  4. Hudacek v. Shinseki

    Case No. 4:09CV00312 ERW (E.D. Mo. Apr. 26, 2010)   Cited 1 times

    See Wallin v. Minn. Dep't of Corr., 153 F.3d 681, 688 (8th Cir. 1998) (claim dismissed for failure to exhaust administrative remedies because "[a]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge") (internal quotations and citation omitted). The Court therefore concludes that Defendant is entitled to judgment in his favor due to Plaintiff's failure to exhaust his administrative remedies, but instead of granting summary judgment, the Court will dismiss Plaintiff's claim without prejudice in the event he may be able to pursue it through the EEOC. Cf. Jones v. Douglas County Corr. Ctr., 306 F. App'x 339, 340 (8th Cir. 2009) (unpublished disposition) (modifying dismissal with prejudice for failure to exhaust administrative remedies to dismissal without prejudice); Fargus v. United States, 334 F. App'x 40, 40-41 (8th Cir. 2009) (unpublished disposition) (same). The Court also notes that Defendant's Motion for Summary Judgment could have been filed as a motion to dismiss, as the administrative record was the only evidence submitted in support of the motion.