Guerra v. Kempker
Guerra v. Kempker
Opinion of the Court
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
Accordingly, we reverse the dismissal order, and remand to the district court for further proceedings.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.