Michael Mitchell v. Mario Peart , 79 F. App'x 238 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3508
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Michael A. Mitchell, also known as *
Klayton Elway Eammelli, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Mario Peart, Deputy Warden; Unknown * [UNPUBLISHED]
Gissler, Unit Manager HU3; Mark *
Danner; Teresa Predmore; Sabatka *
Rine; Harold W. Clarke, Director, *
*
Appellees. *
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Submitted: October 7, 2003
Filed: October 21, 2003
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Before BYE, BOWMAN, and RILEY, Circuit Judges.
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PER CURIAM
Nebraska inmate Michael A. Mitchell appeals the district court’s dismissal with
prejudice of his 42 U.S.C. § 1983 complaint, wherein he claimed Eighth Amendment
violations based on his alleged exposure to environmental tobacco smoke (ETS). We
affirm based on Mitchell’s failure to establish administrative exhaustion--an issue
raised by defendants, but not addressed by the district court--and we therefore
modify the dismissal to be without prejudice. Cf. McAlphin v. Morgan, 216 F.3d
680, 682 (8th Cir. 2000) (per curiam) (complaint properly dismissed without
prejudice where plaintiff prisoner “did not satisfy his burden of showing”
exhaustion).
Dismissal is required when an inmate has not exhausted administrative
remedies before filing his lawsuit. See 42 U.S.C. § 1997e(a); Johnson v. Jones, 340
F.3d 624, 627 (8th Cir. 2003). Mitchell submitted no evidence of exhaustion with his
complaint, and he admittedly had received no response to his most recent ETS-related
grievance before he filed the instant lawsuit. We decline to entertain Mitchell’s
arguments about the district court’s denial of attorneys’ fees and costs, and we deny
as moot appellees’ motion for summary affirmance.
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