Boydston v. Dumas

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

SHANE ELLIE BOYDSTON PLAINTIFF

v. Civil No. 2:23-cv-02102-PKH-MEF

CAPTAIN DUMAS,

LT. McINTYRE,

CPL. ABERNATHY,

SHERIFF HOBE RUNION,

DEPUTY DUMAS

(All of Sebastian County Detention Center) DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28

U.S.C. § 636(b)(1) and (3), the Honorable P. K. Holmes, III, Senior United States District Judge,

referred this case to the undersigned for the purpose of making a Report and Recommendation.

Currently before the Court is the Defendants’ Motion for Summary Judgment.1 (ECF Nos. 22-

0F

24).

I. BACKGROUND

Plaintiff filed his Complaint on August 1, 2023. (ECF No. 1). That same day, the Court

entered an Order directing Plaintiff to submit a completed in forma pauperis (“IFP”) application

and an Amended Complaint by August 22, 2023. (ECF No. 2). Plaintiff submitted both on August

11, 2023. (ECF Nos. 4, 5). On August 14, 2023, Plaintiff submitted a Notice of Address Change

indicating he had been released from the Sebastian County Detention Center (“SCDC”). (ECF

1 The Motion is labelled and docketed as one for partial summary judgment, but it asks for the

dismissal of the entire case. The Court will infer that the document label was the result of clerical

error.

No. 8). On August 15, 2023, the Court entered an Order directing Plaintiff to resubmit his IFP

application to reflect his free world financial status. (ECF No. 9). When Plaintiff failed to do so,

the Court entered a Show Cause Order directing Plaintiff to show cause for his failure. (ECF No.

10). Plaintiff filed a second Notice of Address change on September 20, 2023. (ECF No. 11). In

it, he stated he had been transferred to an Arkansas Division of Correction Intake Unit, and he had

given his home address as the address to be used until he knew where he would be housed in the

ADC. (Id.). He also submitted a completed IFP application, and IFP status was granted on

September 21, 2023. (ECF No. 13).

Plaintiff’s Amended Complaint centers on his incarceration in SCDC. (ECF No. 4). For

his first claim, Plaintiff alleges that his Eighth Amendment right to be free from cruel and unusual

punishment was violated in “May 2023.”2 (Id. at 4). Plaintiff alleges he was injured due to

1F

overcrowding at SCDC. (Id. at 4-5). Specifically, he states the overcrowding caused him to fall

and hit his ribs on the toilet. (Id. at 5). He alleges a lack of showers, sanitation, and inmate

violence, but it is unclear from his allegations if he is contending that it was overcrowding or his

injury which led to these issues. (Id.). He alleges he suffered from bruised ribs and difficulty in

breathing from his fall onto the toilet. (Id. at 4-5). He states he requested medical attention and

was ignored by the nurse and told “I be Okay” by Defendants. (Id. at 4). Plaintiff alleges, “I was

physically unable to write on the kiosk,” presumably due to his injury. (Id. at 4-5). Plaintiff alleges

Defendants Capt. Dumas, Lt. McIntyre, Dep. Dumas, and Cpl. Abernathy did not support his

medical needs as an inmate. (Id. at 5). As a result, he was in “dire distress, in pain, and internal

suffering.” (Id.). He alleges Defendant Sheriff Runion is accountable for the other officer’s

actions. (Id.). Plaintiff made several changes to the form, but he appears to proceed against these

2 Plaintiff fails to provide a more specific date for any of his claims.

Defendants in both their official and individual capacity. (Id. at 4). For his official capacity claim

Plaintiff alleges:

“The Defendants listed have the custom and widespread policy of not following the

jail policy. Instead, they practice acting with malicious intent for personal pleasure

and no regard for inmate safety or medical needs. Supervisors are aware of this

and not only allow it, but actively participate in acting with malicious intent. This

widespread practice and custom caused the violation of my rights.” (Id. at 5).

For his second claim, Plaintiff alleges Defendants Dep. Dumas and Cpl. Abernathy denied

him medical care in “May 2023.” (ECF No. 4 at 6). Plaintiff elaborates on his injury in this claim,

stating he tripped over another inmate, hitting his ribs on the toilet “with the full weight of his

body.” (Id.). He further alleges there were six inmates in a two-person cell. (Id.). Plaintiff alleges

he asked Dep. Dumas for medical attention and was refused. (Id.). He asked again the next

morning when his breathing was worse, and Dep. Dumas told him not to ask again. (Id.). Plaintiff

alleges he tried to tell the Nurse and Cpl. Abernathy at pill call that same day, but Cpl. Abernathy

told him to be quiet, followed him back to his cell while “making threats towards me along the

way.” Plaintiff alleges he developed a large bruise, had difficulty breathing, and later developed

pain in his lower back and sciatic area. (Id.). He alleges he is still experiencing pain and

discomfort. (Id.). Plaintiff checked the section of the form indicating he proceeds against

Defendants Dep. Dumas and Cpl. Abernathy in their individual capacity alone. (Id. at 7).

However, in the section where he is to describe the official capacity portion of the claim, he states

that Dep. Dumas and the rest of the guards act with malicious intent and no consequences and

make inmate safety and medical care their lowest priority. (Id.).

For his third claim, Plaintiff alleges Defendants Lt. McIntyre and Capt. Dumas subjected

him to unconstitutional conditions of confinement in “May 2023.” (ECF No. 4 at 7). He alleges

that, as the two highest ranking officers, they “failed to emphasize ethics and the importance of

inmate safety, especially the need to provide medical care.” (Id. at 8). He further alleges the

overcrowding of the facility led to dangerous conditions of confinement, including multiple and

“mostly undocumented” inmate on inmate attacks and injuries. (Id.). Plaintiff proceeds against

Defendants for this claim in both their official and individual capacities. (Id.). For his official

capacity claim, Plaintiff alleges the “highest ranking individuals in supervisor positions knowingly

allow malicious acts by all staff in their jail.” (Id.). He further alleges they have “developed and

allowed the custom and widespread practice of causing inmate rights violated,” and have “made

no attempt to correct these actions or implement a policy that safeguards inmate safety and

constitutional rights.” (Id. at 9).

For his fourth claim, Plaintiff alleges Defendant Sheriff Runion violated his rights in “May

2023.” (ECF No. 4 at 10). Specifically, he alleges Defendant Runion has “allowed supervisors

and staff to operate the jail at low standards.” (Id.). He alleges this directly led to his injury, denial

of medical care, and pain and suffering. (Id.). Plaintiff proceeds against Defendant Runion in his

official and individual capacities. (Id. at 11). To support his official capacity claim, Plaintiff

alleges the Sheriff “developed a blanket policy of allowing staff to act with malicious intent and

complete disregard for inmate safety. He has known about incidents like mine and helped the jail

staff stay out of trouble while ruining the word and reputation of the inmates.” (Id.).

Attached to Plaintiff’s Amended Complaint are written statements by two other inmates.

Neither is notarized or sworn under penalty of perjury. The first is by Eugene King and dated

August 6, 2023. (ECF No. 4 at 14). He states he was in the cell with Plaintiff in May 2023; it

was a two-man cell housing six inmates; and he was present when Plaintiff tripped over another

cellmate and landed on the toilet. (Id.). He states Plaintiff made a “noise in pain” and held his

side after hitting the toilet, showing issues with his breathing.3 (Id.). Plaintiff lifted his shirt, and

2F

he could first see a red area, and later a “large blue and black bruise.” (Id.). He states he has

witnessed Plaintiff continuing to have unidentified problems. (Id.). He states Plaintiff “tried to

report his injury to Deputy Dumas, but he said no and told him if he did report it he would face

consequences even though he could not get out of bed or take a shower.” (Id.). He further states

the other inmates helped Plaintiff for a few weeks as it was hard for him to “get around” in the

crowded cell. (Id.). Finally, he states Plaintiff “tried to tell a nurse and Abernathy about being

hurt, but Abernathy told him to go back to his cell and do not say anything.” (Id.).

The second statement is by Kennedy Sheppard and is also dated August 6, 2023. (ECF

No. 4 at 15). He repeats the same details as to the accident and injury. (Id.). He states:

“he tried to talk to CO. Dumas but was told not to report it. We tried to talk to nurse

and CO Abernathy about it also but CO Abernathy said no and go back to cell and

not say anything. CO Dumas threatened us, it would be bad if we said something.”

(Id.).

Plaintiff seeks compensatory and punitive damages. (Id. at 9). He seeks two million dollars

for pain, suffering, lost wages, and future medical expenses. (Id.).

Defendants filed their Motion for Summary Judgment on December 22, 2023. (ECF Nos.

22-24). They argue summary judgment in their favor is appropriate because Plaintiff failed to

exhaust his administrative remedies concerning his claims prior to filing this lawsuit. (ECF No.

22 at 1). Specifically, they argue that the SCDC grievance policy requires inmates to file a

grievance within 10 days of the incident grieved. (ECF No. 23 at 5). They note that this grievance

policy is detailed in the inmate handbook. Plaintiff received a copy of this handbook upon intake,

and it is also available on the inmate kiosk and electronic tablets. (Id.; 24-1 at 2). Defendants

3 The actual phrase written was “breathing irracically.” The Court will infer this to mean some

sort of difficulty with breathing. (Id. at 14).

provide an affidavit by Sergeant Eddie Smith, the Director of Inmate Management for SCDC, who

states that he examined the grievances filed by Plaintiff from April 2023 through August 2023.

(ECF No. 24-1). Plaintiff did not file a grievance concerning an injury from falling on a toilet until

July 12, 2023. (Id.). They argue he did not file a grievance concerning overcrowding in SCDC

until June 30, 2023, and this grievance was not appealed. (ECF No. 23 at 6). Finally, they argue

he did not file a grievance concerning the denial of medical care for his injury until July 12, 2023,

and that grievance did not allege any wrongdoing by any of the named Defendants. (Id. at 6-7).

Although Plaintiff filed what was labelled an appeal, he simply stated the reason of the appeal as,

“Thank you. This is from an incident a few months back as you should recall.” (Id. at 7). He did

not complete an appeal for this grievance. (Id.).

Defendants address Plaintiff’s allegation that he was physically unable to use the kiosk to

file a grievance by pointing out that he used the kiosk in April, May, June, and July to make other

unrelated requests. (ECF No. 23 at 6). In his affidavit, Sergeant Eddie Smith elaborates that

Plaintiff did not file any grievances in May, but he did utilize the kiosk to make other requests,

such as a request for a religious book on May 22, 2023. (ECF No. 24-1 at 2).

Plaintiff filed his Response and Statement of Disputed Facts on January 23, 2024. (ECF

Nos. 27, 28). In his Statement of Disputed Facts, Plaintiff disputes paragraphs 4, 5 and 6 of

Defendants’ Statement of Undisputed Facts. In paragraph 4, Defendants reference both his initial

Complaint and his Amended Complaint to point out a disparity in his allegations. (ECF No. 24 at

1-2). They note that in his initial Complaint he stated he was punched by another inmate, causing

him to fall and hit his ribs on the toilet. (Id. at 2). They note that in his Amended Complaint,

Plaintiff does not allege that he was punched, instead stating he tripped. (Id.). Plaintiff argues that

the Amended Complaint supersedes the initial Complaint. (ECF No. 28 at 1).

In paragraphs 5 and 6, Defendants lay out the SCDC grievance policy, including the

requirement that inmates must file a grievance within 10 days of an incident, and must file an

appeal of a grievance decision within three days. (ECF No. 24 at 2). Although Plaintiff disputes

these paragraphs, he does not address the grievance policy statements; instead, he states that he

received “threats of substantial retaliation” which made the grievance process unavailable to him.

(ECF No. 28 at 1). He further states he “was afraid to file a grievance for several weeks, for fear

of retaliation by faculty.” (Id.). Plaintiff does not provide any detail as to the content or context

of the alleged threats.

Plaintiff does not dispute anything else in Defendants’ Statement of Undisputed Facts. He

does not dispute the dates or content of the grievances filed as described by Defendants. (ECF No.

28 at 1-2). He does not dispute that he utilized the kiosk in May 2023 to make requests. (Id.).

In his Response, Plaintiff merely repeats the allegations of his Amended Complaint. (ECF

No. 27). He does not dispute that he failed to exhaust his administrative remedies, but he argues

that “threats of substantial retaliation made the administrative process unavailable.” (Id. at 2). He

argues “he received threats of physical injury and other forms of retaliation by the jail and prison

officials if the injury was reported or grievance process utilized.” (Id. at 1). He further argues:

“The Amended Complaint and witness statements show that the threats from Dep.

Dumas and Cpl. Abernathy were serious enough to deter the Plaintiff from filing a

grievance or reporting the injury. The witness statements show that any reasonable

inmate of ordinary firmness and fortitude would have been deterred from filing a

grievance or reporting the injury sustained by Plaintiff due to the serious nature of

the threats. (Id. at 2).

Again, Plaintiff does not provide any detail as to the content or context of the alleged threats.

Defendants filed their Reply on January 30, 2024. (ECF No. 29). They argue that

Plaintiff’s allegation that he failed to file a grievance out of fear of retaliation must fail for two

reasons: first, he has provided no proof of the alleged threats of retaliation; and second, he was not

actually deterred from filing grievances concerning the incident as he ultimately filed five

grievances related to his claims. (Id. at 2).4

3F

II. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986), the record “shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“Once a party moving for summary judgment has made a sufficient showing, the burden rests with

the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a

genuine issue of material fact exists.” National Bank of Commerce v. Dow Chemical Co., 165

F.3d 602, 607 (8th Cir. 1999).

The non-moving party “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient

evidence to support a jury verdict in their favor.” National Bank, 165 F.3d at 607 (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is

insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d

621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

4 They further note that Plaintiff’s allegations in his Response are contradicted by the facts stated

in his Original Complaint. (ECF No. 29 at 3). They argue he indicated on the complaint form that

he filed a grievance regarding his claims. They further note that, when asked “if there are any

reasons why you did not file a grievance, please state them here,” the Plaintiff indicated that this

question was “not applicable” to him. (Id.). “Generally, an amended complaint supersedes an

original complaint and renders the original complaint without legal effect.” Schlafly v. Eagle

Forum, 970 F.3d 924, 933 (8th Cir. 2020). Thus, this argument will not be considered further.

adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott

v. Harris, 550 U.S. 372, 380 (2007).

III. ANALYSIS

The Prison Litigation Reform Act (“PLRA”) mandates exhaustion of available

administrative remedies before an inmate files suit. Section 1997e(a) of the PLRA provides: “[n]o

action shall be brought with respect to prison conditions under section 1983 of this title, 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. § 1997e(a).

In Jones v. Bock, 549 U.S. 199, 219 (2007), the Supreme Court concluded that “exhaustion

[as required by the PLRA] is not per se inadequate simply because an individual later sued was

not named in the grievances.” “[T]o properly exhaust administrative remedies prisoners must

complete the administrative review process in accordance with the applicable procedural rules.”

Id. at 218 (internal quotation marks and citation omitted). The Court stated that the “level of detail

necessary in a grievance to comply with the grievance procedures will vary from system to system

and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries

of proper exhaustion.” Id.

The Eighth Circuit Court of Appeals has recognized only two exceptions to the PLRA

exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance

procedures, or (2) when the officials themselves fail to comply with the grievance procedures. See

Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (explaining a prisoner is only required to

exhaust those administrative remedies that are “available” and any remedies that prison officials

prevent a prisoner from utilizing are not considered available).

Plaintiff does not dispute that he failed to timely file and exhaust any grievances concerning

the claims in his Amended Complaint. Instead, he argues that the grievance process was

unavailable to him for two reasons: (1) he was physically unable to use the kiosk after he was

injured, and (2) Defendants Dep. Dumas and Cpl. Abernathy threatened him if he filed any

grievances concerning the incident. Both of his assertions, however, are contradicted by the

summary judgment record such that no reasonable jury could believe them.

Plaintiff alleges in his Amended Complaint that he was physically unable to use the kiosk

to submit grievances after his injury. Plaintiff provides no more specific date than just “May 2023”

for his claims. Defendants, however, have provided objective evidence in the form of an affidavit,

together with Plaintiff’s kiosk entries, that Plaintiff was physically able to access and use the kiosk

on to make either requests or grievances in April, May, June, July, and August 2023. Further,

Plaintiff does not dispute Defendants’ Statement of Fact that he used the inmate kiosk in May 2023

to make requests.

Plaintiff next argues that he was “substantially threatened” with retaliation by Defendants

Dep. Dumas and Cpl. Abernathy if he filed a grievance or otherwise reported the incident. To

prevail on a § 1983 claim for retaliation in violation of the First Amendment, a Plaintiff must

demonstrate: (1) that he engaged in a protected activity; (2) that the government official took

adverse action against him that would chill a person of ordinary firmness from continuing in the

activity; and (3) that the adverse action was motivated at least in part by the exercise of the

protected activity.” Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013) (citing Revels v. Vincenz,

382 F.3d 870, 876 (8th Cir. 2004)).

In general, “[c]onduct that retaliates against the exercise of a constitutionally protected

right is actionable, even if the conduct would have been proper if motivated by a different reason.”

Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001) (citation omitted); Madewell v. Roberts, 909

F.2d 1203, 1206 (8th Cir. 1990) (same). “Indeed, the retaliatory conduct does not itself need to be

a constitutional violation in order to be actionable.” Id.; See also Dixon v. Brown, 38 F.3d 379,

380 (8th Cir. 1994) (when retaliatory conduct is involved, there is no independent injury

requirement). “Yet, there are some injuries so de minimis that they do not rise to the level of

constitutional violation. ‘It would trivialize the First Amendment to hold that harassment for

exercising the right of free speech was always actionable no matter how unlikely to deter a person

of ordinary firmness from that exercise.’” Evenstad v. Herberg, 994 F. Supp. 2d 995, 1001 (D.

Minn. 2014) (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). “The ordinary-firmness

test is ... designed to weed out trivial matters from those deserving the time of the courts as real

and substantial violations of the First Amendment.” Santiago, 707 F.3d at 992 (citing Garcia v.

City of Trenton, 348 F.3d 726, 728 (8th Cir. 2003).

Because nearly every otherwise routine administrative decision may potentially be viewed

as a retaliatory act, it has been recognized that “[r]etaliation claims by prisoners are prone to abuse

since prisoners can claim retaliation for every decision they dislike.” Graham v. Henderson, 89

F.3d 75, 79 (2d Cir. 1996). Further, the courts have recognized that prison officials must have

broad administrative authority. Id. For this reason, it has been said that “courts must approach

prisoner claims of retaliation with skepticism and particular care.” Dawes v. Walker, 239 F.3d

489, 491 (2d Cir. 2001) (not every response to a prisoner’s exercise of a constitutional right is

actionable). See also Turner v. Mull, 784 F.3d 485 (8th Cir. 2015) (mere timing of events alone

does not establish the requisite causal link); Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996)

(per curiam) (Speculative and conclusory allegations cannot support a retaliation claim).

Verbal threats may be sufficiently adverse to meet the chilling requirement, particularly if

they are contextually supported threats of death or serious harm. Speculative and conclusory, or

de minimis allegations, however, cannot support a retaliation claim. See e.g. Santiago, 707 F.3d

at 991 (“threats of death, issued by a correctional officer tasked with guarding a prisoner’s

segregated cell, would chill a prisoner of ordinary firmness from engaging in the prison grievance

process”); Burton v. Livingston, 791 F.2d 97, 100 (8th Cir. 1986) (guard pointing a gun at inmate,

cocking it, and threatening him with “instant death” immediately after inmate had testified against

another guard sufficiently adverse); but see Rustan v. Rasmussen, 208 F.3d 218 (8th Cir. 2000)

(unpublished) (allegations that Defendants harassed and verbally threatened him in retaliation for

a grievance did not form the basis of a cognizable § 1983 claim); Evenstad v. Herberg, 994 F.Supp.

2d 995, 1001 (D. Minn. 2015) (Alleged statement that “we’ll be ramping things up” not actionable.

“Without a more specific reference to [inmate] or what he might have coming, without a history

of abuse or a pattern of threats, and unaccompanied by any menacing gesture, [the correctional

officer’s] statement simply is not sufficiently threatening to chill a person of ordinary firmness

from continuing a protected activity.”); see also Dunbar v. Barone, 487 F. App’x 721, 723 (3d Cir.

2012) (unpublished) (“verbal threats and [a] few gestures of racial harassment” are not sufficiently

adverse to support a retaliation claim); Riley v. Coutu, 172 F.R.D. 228, 235 (E.D. Mich. 1997)

(“Certain means of ‘retaliation’ may be so de minimis as not to inhibit or punish an inmate’s rights

of free speech. Many verbal responses by officials of resentment or even ridicule would fall into

this safe harbor of permitted response.”).

Here, Plaintiff makes only vague and de minimis allegations regarding the threats. These

include that “he received threats of physical injury and other forms of retaliation by the jail and

prison officials if the injury was reported or grievance process utilized,” that Defendants Dep.

Dumas and Cpl. Abernathy “made substantial threats,” and that any inmate would have been

deterred from filing a grievance due to the “serious nature of the threats.” (ECF No. 27 at 1-2).

Plaintiff does not, however, provide any detail as to the content or context of these alleged threats.

He does not describe exactly what was threatened; he does not describe when and how the

statements were made; he does not describe where they were made; and he does not describe any

accompanying physical gestures. Plaintiff attached two documents from other inmates to his

Amended Complaint which also state that threats were made. These were not notarized or sworn

under penalty of perjury. They also fail to provide any detail as to the content or context of the

threats. Instead, they simply state Plaintiff was told “he would face consequences,” and that “it

would be bad if we said something.” (ECF No. 4 at 14-15). All these statements, either from

Plaintiff or the other inmates, are vague and de minimis statements which cannot support a claim

for retaliation. Finally, Plaintiff was not deterred from filing grievances about the alleged incident.

He simply did so later than the 10-day timeframe required by the SCDC grievance policy, and

therefore, he could not administratively exhaust any of his grievances.

Thus, Plaintiff’s arguments that the SCDC process was unavailable to him are contradicted

by the summary judgement record such that no reasonable jury could believe him. He failed to

exhaust his administrative remedies for his claims, and Defendants are entitled to summary

judgment as a matter of law.

IV. CONCLUSION

Accordingly, it is recommended that Defendants’ Motion for Summary Judgment (ECF

No. 22) be GRANTED, and Plaintiff’s Amended Complaint (ECF No. 4) be DISMISSED

WITHOUT PREJUDICE.5

4F

The parties have fourteen (14) days from receipt of the Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

Referral Status: This case should not remain referred as the case has been recommended

for dismissal in this Report and Recommendation.

DATED this 10th day of July 2024.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE

5 Claims that are dismissed for failure to exhaust administrative remedies should be dismissed

without prejudice. See Sergent v. Norris, 330 F.3d 1084, 1085 (8th Cir. 2003) (per curiam).