## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3427

___________ 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 Harrison Foreman, Sgt., East Arkansas * Regional Unit, ADC; Brenda Parker, * [UNPUBLISHED] Corporal, East Arkansas Regional Unit, * ADC; Cheryl Evans, Lt., East Arkansas * Regional Unit, ADC; Lamontrell Jones, * C.O., East Arkansas Regional Unit, *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. *

___________ Submitted: June 7, 2007 Filed: June 8, 2007

___________ Before MURPHY, MAGILL, and BENTON, Circuit Judges.

___________-2- 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 Gr ant 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 gr ievance about the incident, some of the officers deprived him of yard time for six months. Further, because of grievances Hobbs had filed against two guard s, defendant Officer Edward Eaton twice falsely charged Hobbs with rule violati ons. 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 exhauste d 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 re port over Hobbs’s objections, and dismissed the lawsuit without prejudice. The court de nied 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-3- that the district court properly dismissed the retaliatory-disciplinary claim against Eaton, given that Hobbs failed to cont est 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 cour t or considered). However, the court erred by dismissing the remaining claims, as defendants asserted only that the retaliatory-discipline claim against Eaton was unexhausted. Th e Supreme Court has recently clarified that failure to exhaust is an affirmative defens e, and further, the Court has rejected a total-exhaustion rule. See id. at 921, 923-26.

Accordingly, we reverse and remand fo r further proceedings consistent with this opinion.

______________________________