United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2470
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Harvey Jones, *
*
Appellant, *
*
v. *
*
Larry Norris, Director, Arkansas *
Department of Correction; Arkansas *
Post Prison Transfer Board, Members, *
Board of Correction; Ray Hobbs, *
Assistant Director, Arkansas * Appeal from the United States
Department of Correction; Crystal * District Court for the Eastern
Woods, Classification Officer, * District of Arkansas.
Cummins Unit, ADC; Max Mobley, *
Deputy Director, Arkansas * [PUBLISHED]
Department of Correction; Oluyinka *
Adediji, Dr., Cummins Unit, ADC, *
originally sued as Adediji; M D Reed; *
Dottie Yarbrough, Grievance Officer, *
Cummins Unit, ADC, originally sued *
as Dottie Yardbrough; T Compton, *
Inmate Grievance Supervisor, *
Arkansas Department of Correction, *
*
Appellees. *
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Submitted: September 18, 2002
Filed: October 9, 2002
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Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
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PER CURIAM.
Harvey Jones, an Arkansas inmate, sued the Corrections defendants for
incorrectly classifying him medically, assigning him an inappropriate job based on
his medical needs, and failing to treat his medical needs. Jones is seeking
reclassification from field duty because he claims his back, neck, right hand injuries
and hemorroids cause him pain during this work. Jones’s current medical
classification notes Jones cannot grip with his right hand, but can accomplish field
work. Jones filed multiple grievances requesting medical reclassification and job
reassignment, but each grievance was denied. On June 6, 2000, the doctor examining
Jones noted the tendon inflamation in Jones’s right hand had improved and Jones’s
current restrictive classification seemed “excessive.” Nevertheless, Jones was
maintained at his current classification status.
The magistrate judge recommended denying Jones’s motion for partial
summary judgment and dismissing Jones’s petition without prejudice for failing to
exhaust prison grievance remedies against Mobley and Compton. Jones objected to
the magistrate’s report and recommendation, attaching copies of prison grievances
against Mobley and Compton. The district court* referred the objections and prison
grievance forms to the magistrate. The magistrate analyzed Jones’s grievances, and
recommended that Jones’s complaint be dismissed without prejudice because the
grievance forms did not show Jones had exhausted his prison remedies. First, the
magistrate noted that the grievance forms were not submitted until after the lawsuit
was filed. Second, the magistrate noted the grievances were returned without
decision on the merits because Jones failed to follow proper grievance procedure.
*
The Honorable Stephen M. Reasoner, United States District Judge for the
Eastern District of Arkansas.
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Thus, the grievances did not receive substantive review by prison authorities. After
de novo review, the district court adopted the magistrate’s recommendations and
dismissed Jones’s petition without prejudice for failure to exhaust all claims. Jones
now appeals pro se. Having reviewed the district court’s findings of fact for clear
error and conclusions of law de novo, we affirm the dismissal of Jones’s complaint.
Walker v. Maschner, 270 F.3d 573, 576 (8th Cir. 2001).
The Prison Litigation Reform Act (PLRA) amendments to 42 U.S.C.
§ 1997e(a), mandate exhaustion of available administrative remedies before an inmate
files suit. Booth v. Churner, 532 U.S. 731, 738-39 (2001). Because Jones’s medical
classification is unchanged, filing a proper grievance against all defendants remains
an available remedy. Jones must exhaust prison grievances before filing suit in
federal court. Maschner, 270 F.3d at 576-77. Thus, the district court correctly
dismissed Jones’s complaint without prejudice. Graves v. Norris, 218 F.3d 884, 885
(8th Cir. 2000) (dismissing petition when not all claims are exhausted).
Although Jones has not exhausted available grievance procedures, we
nevertheless dismiss the complaint as frivolous under 42 U.S.C. § 1997e(c) (2000).
A complaint is frivolous when it lacks an arguable basis in either law or fact. Nietzke
v. Williams, 490 U.S. 319, 325 (1989). To succeed on his complaint, Jones must
show defendants were deliberately indifferent to his serious medical needs. Estelle
v. Gamble, 429 U.S. 97, 106 (1976). The record shows that Jones received 13
medical examinations in 2001, an evaluation to determine the need for
reclassification, and recommendations to treat his muscular back pain with Tylenol.
Defendants’ responses to Jones’s interrogatories support their assertions that Jones
is being treated appropriately. To support his contentions, Jones signed affidavits
restating conclusory allegations about his need for medical care and reclassification.
Jones provided no evidence beyond these conclusory allegations, which are
insufficient to create a question of material fact. At best, Jones’s allegations state a
difference in opinion between himself and his doctors or allege a mistake in
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classification or treatment. Neither differences of opinion nor medical malpractice
state an actionable Constitutional violation. Estelle, 429 U.S. at 105-06; Smith v.
Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990). In addition, the record shows that
before the medical grievances, Jones filed a grievance for being required to work in
the field without pay. Defendants assert Jones’s medical complaints are an attempt
to avoid the prison’s work requirement. Jones has provided no evidence or affidavits
to dispute this assertion.
We affirm the dismissal of Jones’s complaint. Further, we agree with the
magistrate judge that dismissal of Jones’s complaint should be considered a strike
within the meaning of 28 U.S.C. § 1915(g) (2000). See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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