Lisa Leach v. Supt. Steven Moore

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 06-3445
___________

Lisa Leach, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Supt. Steven Moore; Karen Diegelman; *
Jennifer Miller; Shilane; Turner; - * [UNPUBLISHED]
Rakestraw; DeCastro; Dana Meyer; *
Don -; Karen Jacobi; CMS, Inc.; *
Beverly Thompson, R.N.; Nancy *
Schierding; Elizabeth Conley, *
*
Appellees. *
___________

Submitted: June 27, 2007
Filed: July 2, 2007
___________

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
___________

PER CURIAM.

After Missouri inmate Lisa Leach filed a complaint under 42 U.S.C. § 1983,
the district court dismissed one defendant under 28 U.S.C. § 1915A, and later
dismissed the entire suit for failure to exhaust administrative remedies. Leach appeals.
We grant Leach’s motion for leave to proceed in forma pauperis, and leave the fee-
collection details to the district court. See Henderson v. Norris, 129 F.3d 481, 484-85
(8th Cir. 1997) (per curiam). After careful review, see Cooper v. Schriro, 189 F.3d
781, 783 (8th Cir. 1999) (per curiam) (standard of review for § 1915A dismissal);
Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam) (standard of
review for application of Prison Litigation Reform Act (PLRA)), we affirm in part and
reverse in part.

Specifically, we find that the section 1915A dismissal of the Missouri
Department of Corrections (MDOC) Legal Department was proper. See Barket, Levy
& Fine, Inc. v. St. Louis Thermal Energy Corp., 948 F.2d 1084, 1086 (8th Cir. 1991)
(agency exercising state power is not “‘person’” subject to § 1983 suit). We also find
that the district court properly dismissed the claim against Dr. DeCastro, because
Leach did not contest defendants’ assertion that the exhausted grievance in the record
preceded the treatment from Dr. De Castro underlying the instant complaint. See
Jones v. Bock, 127 S. Ct. 910, 918-19, 923 (2007) (unexhausted claims cannot be
brought in court or considered). While the allegations arose from the allegedly
ongoing failure to provide proper care for Leach’s back pain, according to Leach’s
complaint allegations the failures attributed to Dr. De Castro related to different time
periods, to care received at a different prison, and to different wrongs. Similarly,
according to Leach’s complaint, the alleged actions of Nurse Beverly Thompson arose
after the grievance was exhausted.

The Supreme Court has clarified, however, that a lawsuit should not be
dismissed in its entirety merely because some claims are unexhausted, see Jones, 127
S. Ct. at 923-26 (rejecting total-exhaustion rule), and the remaining defendants should
not have been dismissed. First, Superintendent Steven Moore, Karen Diegelman, and
Jennifer Miller did not move to dismiss for failure to exhaust, and thus they should not
have been dismissed on that basis. See Nerness, 401 F.3d at 876 (PLRA’s exhaustion
requirement is affirmantive defense that defendant has burden to plead and prove);
Jones, 127 S. Ct. at 918-922 (confirming that failure to exhaust is affirmative defense).

-2-
 Second, the court was not provided with the necessary information to determine
whether Nurse Dana Meyer and Dr. Elizabeth Conley were named in the initial
grievance that was exhausted, and if they were not, whether the omission made a
difference under MDOC’s policy on exhausting administrative remedies. See Abdul-
Muhammad v. Kempker, 486 F.3d 444, 446 (8th Cir. 2007) (per curiam) (citing Jones
v. Bock for propositions that exhaustion is not necessarily inadequate merely because
individual later sued was not named in inmate’s grievance, and that prison’s
requirements, not PLRA, define boundaries of proper exhaustion).

Finally, although Nancy Schierding, Karen Jacobi, and Drs. Shilane, Turner,
and Rakestraw were not served, the complaint was dismissed before 120 days had
passed, see Fed. R. Civ. P. 4(m) (providing for dismissal of complaint without
prejudice if service is not made within 120 days), so Leach should be afforded the
opportunity to serve these defendants on remand.

Accordingly, we reverse except as to the MDOC Legal Department, Dr.
DeCastro, and Nurse Thompson, and we remand for further proceedings consistent
with this opinion.
______________________________

-3-