Bryan Croft v. Larry Rowley , 192 F. App'x 582 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2288
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Bryan Croft, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Larry Rowley; Jim Moore; Steve Long; *
Chris Taylor; Leslie Carsey; Homer * [UNPUBLISHED]
Shrum; Ken Carlton; Richard Watson; *
Michelle Actman, in their individual *
and official capacities, *
*
Appellees. *
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Submitted: August 18, 2006
Filed: August 23, 2006
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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Missouri inmate Bryan Croft appeals the district court’s1 grant of defendants’
motion to dismiss his complaint and the court’s denial of his Federal Rule of Civil
Procedure 59(e) motion, in his suit brought under 42 U.S.C. § 1983 and state law.
1
The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
Having reviewed the record and appellate submissions, we agree that Croft
failed to exhaust his administrative remedies, see 42 U.S.C. § 1997e(a); Abdul-
Muhammad v. Kempker, 450 F.3d 350, 351-52 (8th Cir. 2006), and we also find no
abuse of discretion in the district court’s dismissal of Croft’s post-judgment motion,
see United States v. Metro St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)
(standard of review). We note, however, that both the dismissal of Croft’s section
1983 claims for failure to exhaust, and the dismissal of his state-law claims after the
district court chose not to exercise jurisdiction, should have been without prejudice.
See Calico Trailer Mfg. Co. v. Ins. Co. of N. Am., 155 F.3d 976, 978 (8th Cir. 1998)
(modifying dismissal for failure to exhaust administrative remedies to be dismissal
without prejudice); Labickas v. Ark. State Univ., 78 F.3d 333, 334-35 (8th Cir. 1996)
(per curiam) (modifying dismissal to reflect that state-law claims over which district
court declined to exercise pendent jurisdiction were dismissed without prejudice).
Accordingly, we affirm the dismissal and the denial of post-judgment relief, but
we modify the dismissal to be without prejudice. See 8th Cir. R. 47B.
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