Charlie Lewis Thornton, Jr. v. Jailer C/O Boysen

United States Court of Appeals
For the Eighth Circuit
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No. 23-1608
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Charlie Lewis Thornton, Jr.
lllllllllllllllllllllPlaintiff - Appellant
v.
Jailer C/O Boysen; Warden John Benting, of Sioux Falls State Penitentiary,
in individual and official capacity; Dental/Medical, of Sioux Falls SD
Penitentiary, in official capacity; Department of Corrections, in individual and
official capacity; Associate Warden Ponto, of Sioux Falls State Penitentiary,
in individual and official capacity; Warden, Cook of Sioux Falls State
Penitentiary, in individual and official capacity
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of South Dakota
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Submitted: September 13, 2023
Filed: September 18, 2023
[Unpublished]
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Before LOKEN, SHEPHERD, and GRASZ, Circuit Judges.
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PER CURIAM.

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Former South Dakota inmate Charlie Thornton brought this 42 U.S.C. § 1983
action against the South Dakota Department of Corrections (SDDOC), prison
wardens, and Jailer Boysen . He appeals the district court’s1 preservice dismissal of
his claims against the SDDOC and the wardens, and the district court’s adverse grant
of summary judgment in favor of the officer for failure to exhaust administrative
remedies.
Upon careful consideration of the record and the parties’ arguments on appeal,
we find no basis for reversal. See Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir.
2000) (reviewing de novo 28 U.S.C. § 1915(e)(2)(B) preservice dismissal); Townsend
v. Murphy, 898 F.3d 780, 783 (8th Cir. 2018) (reviewing de novo grant of summary
judgment); see also 42 U.S.C. § 1997e(a) (exhaustion requirement). Accordingly, we
affirm, but modify the dismissal of Thornton’s failure-to-protect claim against Boysen
to be without prejudice. See 8th Cir. R. 47B; see also Porter v. Sturm, 781 F.3d 448,
452 (8th Cir. 2015) (mandating dismissal without prejudice of unexhausted claim).
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1The Honorable Karen E. Schreier, United States District Court for the District
of South Dakota.
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