Adolfo Gutierrez Avila, Jr. v. Ryan Bellefy, Being sued in his individual capacity

United States Court of Appeals
For the Eighth Circuit
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No. 24-3225
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Adolfo Gutierrez Avila, Jr.
lllllllllllllllllllllPlaintiff - Appellant
v.
Ryan Bellefy, Being sued in his individual capacity
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: July 28, 2025
Filed: August 5, 2025
[Unpublished]
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Before ERICKSON, STRAS, and KOBES, Circuit Judges.
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PER CURIAM.
Minnesota inmate Adolfo Avila, Jr. appeals following the district court’s1
adverse grant of summary judgment in his pro se 42 U.S.C. § 1983 action alleging
1The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota, adopting the report and recommendations of the Honorable
David T. Schultz, United States Magistrate Judge for the District of Minnesota.

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excessive force by a corrections officer. Upon careful de novo review, we affirm the
finding that he failed to exhaust his available administrative remedies before filing
suit. See 42 U.S.C. § 1997e(a) (prisoner may not bring action with respect to prison
conditions under federal law until he has exhausted available administrative
remedies); Smith v. Andrews, 75 F.4th 805, 808 (8th Cir. 2023) (standard of review).
We agree with the district court that there was no genuine issue of material fact as to
whether the grievance procedure was available to Avila despite his transfer to another
prison. See Ross v. Blake, 578 U.S. 632, 642-44 (2016) (grievance procedure may
be unavailable if officials are unable or consistently unwilling to provide any relief
to inmates, if it is so opaque that it is practically incapable of use by ordinary
prisoners, or if administrators thwart inmates from using process through
machination, misrepresentation, or intimidation). We find that the district court did
not abuse its discretion in denying Avila’s Federal Rule of Civil Procedure 59(e)
motion, see Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black
Hills, 141 F.3d 1284, 1286 (8th Cir. 1998) (standard of review); and we lack
jurisdiction to review the magistrate judge’s grant of the defendant’s motion for a stay
of discovery pending summary judgment on the exhaustion issue, see McDonald v.
City of Saint Paul, 679 F.3d 698, 709 (8th Cir. 2012) (appellate court could not
review appellant’s challenge to magistrate judge’s order denying non-dispositive
discovery motion because appellant failed to object to such order before district
court).
Accordingly, we affirm, but we modify the dismissal to be without prejudice.
See 8th Cir. R. 47B; Porter v. Sturm, 781 F.3d 448, 452 (8th Cir. 2015) (where inmate
did not exhaust remedies before filing suit, dismissal without prejudice was
mandatory).
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