Opinion
No. 06-3491.
Submitted: June 23, 2008.
Filed: June 27, 2008.
Appeal from the United States District Court for the Eastern District of Arkansas.
Michael Duane Marlin, Beaumont, TX, pro se.
Gwendolyn Dewees Hodge, U.S. Attorney's Office, Little Rock, AR, for Appellees.
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
[UNPUBLISHED]
Federal inmate Michael Duane Marlin appeals the district court's adverse grant of summary judgment in his action brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Having carefully reviewed the record and considered Marlin's arguments, we find no basis for reversal. See Popoalii v. Carr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (standard of review). However, the claims against defendant E. Taylor arose from alleged failures that occurred shortly before the instant lawsuit was filed, and thus Marlin could not have administratively exhausted those claims before filing suit and dismissal was required. See Johnson v. Jones, 340 F.3d 624, 626-28 (8th Cir. 2003). Accordingly, we affirm, but we revise the dismissal of the claims against defendant Taylor to be without prejudice. See 8th Cir. R. 47B. We also deny Marlin's motion for appointment of counsel.
The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas, adopting in part the report and recommendations of the Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District of Arkansas.