Hancock v. Kehoe et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
DANIEL HANCOCK,
Plaintiff,
v.
MIKE KEHOE, et al.,
Defendants.
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No. 4:25-cv-01831-JMD
MEMORANDUM AND ORDER
Pro se inmate Daniel Hancock sued the Governor of Missouri, the Director of the
Department of Corrections, a prison warden, a shift commander, and a sergeant under 42
U.S.C. § 1983 over prison conditions. He also filed a motion to proceed in forma pauperis.
But he admits he has not exhausted his administrative remedies under the Prison Litigation
Reform Act. That is fatal. His complaint is therefore dismissed without prejudice, and his
motion is denied as moot.
Prisoners must exhaust internal grievance procedures before suing about prison
conditions. Under the Prison Litigation Reform Act, “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997(e)(a). This means exhausting the internal
grievance procedures created by the prison because “it is the prison’s requirements, and not
the [Act], that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218
(2007).
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Although exhaustion is an affirmative defense, “a court may dismiss a complaint for
failure to exhaust administrative remedies if it is plain on the face of the complaint that a
grievance 	procedure 	has 	not 	been 	exhausted.” Davis 	v. Torshein, 	No. 	1:22-cv-00080-
SEP, 2022 WL 4299780, at *2 (E.D. Mo. Sept. 19, 2022) (citing Jones v. Bock, 549 U.S. 199,
215–16 (2007)). “A court may sua sponte dismiss a complaint” for this reason. 	Custis v.
Davis, 851 F.3d 358, 361 (4th Cir. 2017); see also Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir.
2007) (“Under Jones, however, a court can dismiss a case prior to service on defendants for
failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear
that the prisoner failed to exhaust.”).
Hancock admits that he has not exhausted the Missouri Department of Corrections’
grievance procedures. He writes that at the time of filing this complaint, his grievance is in
the appeal stage. 	ECF 1 at 7. 	He sues anyway—even though he admits the internal
grievance process “is not complet[e]”—simply because he “would like to get this lawsuit[ ] into
action.” 	Id. 	But Hancock must wait until the grievance process concludes before filing in
federal court. 	Exhaustion is “mandatory” under the Act: “unexhausted claims cannot be
brought in court.” 	Jones, 549 U.S. at 211 (emphasis added).1 	Judges lack discretion to
deviate from this mandate. Ross v. Blake, 578 U.S. 632, 638–39 (2016). While inmates can
be excused from exhausting administrative remedies when prison officials prevent them from
using grievance procedures or when the officials themselves fail to comply with the
procedures, Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005), Hancock has not alleged that
here. The face of his complaint reveals that he has not exhausted administrative remedies.
1 The date of exhaustion is measured at the time of filing. Johnson v. Jones, 340 F.3d 624,
627 (8th Cir. 2003).
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IT IS HEREBY ORDERED that this action is DISMISSED without prejudice for
failure to exhaust administrative remedies. ECF 1. Hancock’s motion to proceed in forma
pauperis is DENIED AS MOOT. ECF 2.
Dated this 30th day of January, 2026
__________________________________
JOSHUA M. DIVINE
UNITED STATES DISTRICT JUDGE
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