## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3188

___________ Timothy Alan Guerra, *

* Appellant, *

* v. * Appeal from the United States * District Court for the Gary Kempker; Tony Gammon; Sara * Eastern District of Missouri. Litterst, Mail Room Supervisor; Larry * Scott, Associate Superintendent; Troy * [UNPUBLISHED] Steele, Associate Superintendent; * Rebecca Johnston; Susan Cox; Roger * Dennison, Caseworker, Moberly * Correctional Center, Moberly, * Missouri; Unknown Pendurthi, Doctor * of Behavioral Health Concepts, * Jefferson City, MO; Unknown Sayed; * A. Reddy, Sr., Doctor; A. E. Daniels; * Tom Clements, Asst. Director, Missouri * Department of Corrections, Jefferson * City, MO; Unknown Abraham, Doctor, * Correctional Medical Services, * Jefferson City, MO; Ralf Salke, * Regional Medical Director, Jefferson * City, MO; Robert Hampton, Doctor, * Moberly Correctional Center; Unknown * Conoly, Doctor, Chief Medical Officer, * Correctional Medical Services, * Jefferson City, Missouri; Unknown * Baker, Doctor, Moberly Correctional * Center; Arthur S. Keiper, III, M.D., * Doctor, Fulton, Missouri; Jerry Hudson, *-2- Functional Unit Manager, Moberly * Correctional Center; Michael Groose, * Asst. Director, Missouri Department of * Corrections; Dean Minor, Functional * Unit Manager, Moberly Correctional * Center; Unknown Patterson, C.O.I., * Moberly Correctional Center; R. * Arends, C.O.I., Moberly Correctional * Center; James Rockenfield, Director of * Recreation, Moberly Correctional * Center; Terry Winston, Constituent * Services, Jefferson City, Main Offices; * Cindy Wilson, Litigation Coordinator, * Missouri Department of Corrections, * Jefferson City Main Offices; Terry * Barnes, Mail Room Supervisor, * Moberly Correctional Center; Lisa * Falkner, Functional Unit Manager, * Moberly Correctional Center; Sherry * Blattel-Dunseith, Assoc. Supt., Moberly * Correctional Center; Tom Anderson, * Assoc. Supt., Moberly Correctional * Centera; Teresa Thornburg, Associate * Supt., Moberly Correctional Center, *

* Appellees. *

___________ Submitted: June 1, 2005 Filed: June 17, 2005

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

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PER CURIAM.-3- Missouri inmate Timothy Guerra appeals the district court’s preservice dismissal of his 42 U.S.C. § 1983 complaint against defendant prison personnel for
failure to exhaust administrative remedies. We reverse.

An inmate’s failure to exhaust available administrative remedies, as required by 42 U.S.C. § 1997e(a), is an affirmative defense, which need not be pleaded by plaintiff, and which is subject to waiver by the defendant. See Nerness v. Johnson
, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam); Foulk v. Charrier , 262 F.3d 687, 697 (8th Cir. 2001). We disagree with the district court’s conclusion that it was evident from the face of Guerra’s complaint that he had not met section 1997e(a)’s requirement, and we conclude that Guerra’s complaint should not have been dismissed sua sponte on this basis. We also conclude that Guerra’s complaint, while lengthy and involving numerous claims, satisfied the requirements of Federal Rule of Civil Procedure 8(a).

Accordingly, we reverse the dismissal order, and remand to the district court for further proceedings.

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