Grady Newingham v. David Westbrook , 140 F. App'x 634 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3555
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Grady Newingham, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
David Westbrook, Sgt., Maximum *
Security Unit, ADC; Turoty Hayes, * [UNPUBLISHED]
CO-I, Maximum Security Unit, ADC; *
Greg Harmon, Warden, Maximum *
Security Unit, ADC; Kay Wade, *
Corporal, Maximum Security Unit, *
ADC, *
*
Appellees. *
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Submitted: July 27, 2005
Filed: August 9, 2005
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Before MELLOY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
Arkansas inmate Grady Newingham appeals the district court’s1 dismissal of
his 42 U.S.C. § 1983 action against various prison employees for failure to exhaust
administrative remedies. We affirm, but modify the dismissal to be without prejudice
and clarify that the dismissal does not count as a “strike” under 28 U.S.C. § 1915(g).
Dismissal is merited because Newingham failed to show he exhausted his
administrative remedies as to his claim that Defendant Arkansas Department of
Correction Director Larry Norris failed to protect him from an assault. See
Kozohorsky v. Harmon, 332 F.3d 1141, 1143 (8th Cir. 2003). Newingham’s
argument on appeal that administrative remedies were unavailable to him because
they did not provide for monetary relief is without merit. See Booth v. Churner, 582
U.S. 731, 734 (2001).
Accordingly, we affirm.
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1
The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendation of the Honorable
Henry L. Jones, Jr., United States Magistrate Judge for the Eastern District of
Arkansas.
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