United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3427

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Harold Hobbs, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Harrison Foreman, Sgt., East Arkansas *

Regional Unit, ADC; Brenda Parker, * [UNPUBLISHED]

Corporal, East Arkansas Regional Unit, *

ADC; Cheryl Evans, Lt., East Arkansas *

Regional Unit, ADC; Lamontrell Jones, *

C.O., East Arkansas Regional Unit, *

ADC; Albert Norton, CO-II, East *

Arkansas Regional Unit, ADC; Kathy *

Steward, Sgt., East Arkansas Regional *

Unit, ADC; Edward Eaton, CO-II, East *

Arkansas Regional Unit, ADC; Grant *

Harris, Warden, Varner Unit, ADC; *

Greg Harmon, Warden, East Arkansas *

Regional Unit, ADC; Larry Norris, *

Director, Arkansas Department of *

Correction, *

*

Appellees. *

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Submitted: June 7, 2007

Filed: June 8, 2007

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Before MURPHY, MAGILL, and BENTON, Circuit Judges.

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PER CURIAM.

Arkansas inmate Harold Hobbs appeals the district court’s adverse grant of

summary judgment in his 42 U.S.C. § 1983 action. While housed at the Varner Unit,

Hobbs filed a complaint in February 2006 naming several Eastern Arkansas Regional

Unit officers; Wardens Greg Harmon and Grant Harris; and Arkansas Department of

Correction Director Larry Norris. He claimed Eighth Amendment violations and

retaliation, alleging that certain defendant officers used excessive force during an

October 19, 2005 incident; and that when Hobbs wrote a grievance about the incident,

some of the officers deprived him of yard time for six months. Further, because of

grievances Hobbs had filed against two guards, defendant Officer Edward Eaton twice

falsely charged Hobbs with rule violations. Finally, Director Norris and Warden

Harris had improperly transferred Hobbs to EARU, and Warden Harmon would not

investigate a grievance. 

Defendants moved for summary judgment, arguing (with supporting

documentation) that Hobbs had not exhausted his administrative remedies as to the

retaliatory-discipline claim against Eaton. Hobbs responded but provided no evidence

that he had exhausted this claim. The magistrate judge recommended granting the

summary judgment motion, noting that when multiple prison condition claims had

been joined, administrative remedies had to be exhausted as to all claims. The district

court adopted the magistrate judge’s report over Hobbs’s objections, and dismissed

the lawsuit without prejudice. The court denied leave to appeal in forma pauperis

(IFP), and Hobbs renews his IFP motion in this court. 

We grant Hobbs’s motion for leave to appeal IFP, 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). As to the merits, this court reviews de novo the application of the

Prison Litigation Reform Act, and for clear error any underlying findings of fact. See

Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam). We conclude
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that the district court properly dismissed the retaliatory-disciplinary claim against

Eaton, given that Hobbs failed to contest defendants’ evidence that he had not

exhausted this claim. See Jones v. Bock, 127 S. Ct. 910, 918-19, 923 (2007)

(unexhausted claims cannot be brought in court or considered). However, the court

erred by dismissing the remaining claims, as defendants asserted only that the

retaliatory-discipline claim against Eaton was unexhausted. The Supreme Court has

recently clarified that failure to exhaust is an affirmative defense, and further, the

Court has rejected a total-exhaustion rule. See id. at 921, 923-26. 

Accordingly, we reverse and remand for further proceedings consistent with

this opinion. 

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