Charlie Thornton, Jr. v. Officer/Jailer Boysen

Opinion

United States Court of Appeals For the Eighth Circuit

___________________________

No. 23-1608

___________________________

Charlie Lewis Thornton, Jr.

lllllllllllllllllllllPlaintiff - Appellant

v.

Jailer C/O Boysen; Warden John Benting, of Sioux Falls State Penitentiary, in individual and official capacity; Dental/Medical, of Sioux Falls SD Penitentiary, in official capacity; Department of Corrections, in individual and official capacity; Associate Warden Ponto, of Sioux Falls State Penitentiary, in individual and official capacity; Warden, Cook of Sioux Falls State Penitentiary, in individual and official capacity

lllllllllllllllllllllDefendants - Appellees

____________

Appeal from United States District Court for the District of South Dakota

____________

Submitted: September 13, 2023 Filed: September 18, 2023 [Unpublished]

____________

Before LOKEN, SHEPHERD, and GRASZ, Circuit Judges.

____________

PER CURIAM.

Former South Dakota inmate Charlie Thornton brought this 42 U.S.C. § 1983 action against the South Dakota Department of Corrections (SDDOC), prison wardens, and Jailer Boysen . He appeals the district court’s1 preservice dismissal of his claims against the SDDOC and the wardens, and the district court’s adverse grant of summary judgment in favor of the officer for failure to exhaust administrative remedies.

Upon careful consideration of the record and the parties’ arguments on appeal, we find no basis for reversal. See Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir. 2000) (reviewing de novo 28 U.S.C. § 1915(e)(2)(B) preservice dismissal); Townsend v. Murphy, 898 F.3d 780, 783 (8th Cir. 2018) (reviewing de novo grant of summary judgment); see also 42 U.S.C. § 1997e(a) (exhaustion requirement). Accordingly, we affirm, but modify the dismissal of Thornton’s failure-to-protect claim against Boysen to be without prejudice. See 8th Cir. R. 47B; see also Porter v. Sturm, 781 F.3d 448, 452 (8th Cir. 2015) (mandating dismissal without prejudice of unexhausted claim).

______________________________

1 The Honorable Karen E. Schreier, United States District Court for the District of South Dakota.