United States v. Derrick K. Patterson

1The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Franklin
L. Noel, United States Magistrate Judge for the District of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2285
___________
Clarence H. Nash, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Harley G. Lappin, Sued as Harley B. *
Lappin; Harold Watts; G. L. * [UNPUBLISHED]
Hershberger, Sued as Gerald *
Hershberger; W. I. LeBlanc, Sued as *
Whitney I. LeBlance, Jr.; David *
Good; David Edwardy, *
*
Appellees. *
___________
Submitted: March 30, 2006
Filed: March 30, 2006
___________
Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Clarence Nash, an inmate at the Federal Medical Center (FMC), appeals the
district court’s 1 preservice dismissal of his 42 U.S.C. § 1983 complaint for failure to
exhaust administrative remedies.

-- 1 of 2 --

-2-
While the exhaustion requirement is an affirmative defense that a defendant
must plead and prove, see Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per
curiam), it is clear from the dates of the alleged incidents that Nash could not have
administratively exhausted all of his claims when he filed the instant lawsuit, cf.
Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (per curiam) (while statute of
limitations is affirmative defense, district court may properly dismiss in forma
pauperis complaint before service when it is apparent from face of complaint that
statute of limitations has run). Accordingly, we affirm but modify the dismissal to be
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).
______________________________

-- 2 of 2 --