                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1903
                                  ___________

James Daniel Kozohorsky, J.D.,         *
also situated and as applies,          *
                                       *
              Appellant,               *
                                       *
      v.                               *
                                       *
Greg Harmon, Warden at the Tucker      *
Maximum Security Unit at the ADC,      * Appeal from the United States
Arkansas Department of Correction;     * District Court for the
Kay Wade, CO II Mailroom               * Eastern District of Arkansas.
Supervisor at MSU, Arkansas            *
Department of Correction; Kenneth      *
Frazier, Sgt. MSU, Arkansas            *
Department of Correction, originally   *
sued as Frazier,                       *
                                       *
              Appellees.               *
                                  ___________

                          Submitted: April 18, 2003

                                 Filed: June 19, 2003
                                  ___________

Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.
      James Daniel Kozohorsky, an inmate at the Arkansas Department of
Corrections Maximum Security Unit (Tucker), appeals the District Court's dismissal
without prejudice of his 42 U.S.C. § 1983 action against various prison officials at
Tucker for failure to exhaust prison administrative remedies. Although we agree with
the District Court's decision to dismiss Kozohorsky's claims against Greg Harmon,
the warden at Tucker, for failure to exhaust administrative remedies, we remand the
case and instruct the District Court to grant Kozohorsky's motion to amend his
complaint to strike his claims against Harmon.

                                           I.

       In January 2000, Kozohorsky alleged various constitutional violations against
officials at Tucker, including Harmon; Kay Wade, a correction officer at Tucker; and
Kenneth Frazier, a sergeant at Tucker. Pursuant to the Prison Litigation Reform Act,
28 U.S.C. § 1915A(a)-(b) (2000), the District Court screened his complaint and
recommended dismissing all but the following claims: (1) claims against Frazier for
allegedly burning Kozohorsky's arm and hand with a chemical substance and for
retaliating against Kozohorsky by withholding notarization of certain affidavits and
a grievance; (2) claims against Wade for refusing to mail some of his legal letters; and
(3) claims against Harmon for refusing to take any action against Frazier for burning
him, for failing to adequately train and supervise Frazier, and for retaliating against
Kozohorsky for filing grievances. In July 2001, Harmon, Wade, and Frazier moved
for judgment on the pleadings, arguing that, with respect to the claims against
Harmon, Kozohorsky had not exhausted his administrative remedies and therefore the
court should dismiss the entire action pursuant to 42 U.S.C. § 1997e(a) (2000). A
Magistrate Judge held a hearing on the motion and recommended dismissing without
prejudice Kozohorsky's entire suit for failure to exhaust administrative remedies for
his retaliation and failure-to-supervise claims against Harmon. The Magistrate Judge
found that Kozohorsky submitted only one exhausted grievance in his complaint, the
grievance against Frazier.

                                          -2-
       In his objections to the Magistrate Judge's report and in a separate motion,
Kozohorsky requested that if the District Court determined Harmon was not a proper
defendant, the District Court should allow him to amend the complaint and dismiss
the claims against Harmon. After receiving Kozohorsky's motion to amend, a deputy
clerk for the United States District Court for the Eastern District of Arkansas struck
through the title of the motion to amend and renamed it "Supplement to the
Objections," and then docketed the motion under this new title. The deputy clerk
made the title change to the motion at the request of one of the District Court's law
clerks. On March 5, 2002, without explicitly ruling on Kozohorsky's motion to
amend his complaint, the District Court adopted the findings and recommendations
of the Magistrate Judge and dismissed Kozohorsky's complaint without prejudice.
This appeal followed.

                                         II.

       Kozohorsky first argues that the District Court erred in dismissing his
complaint for failure to exhaust administrative remedies with respect to his claims
against Harmon. We review the District Court's findings of fact for clear error and
conclusions of law de novo. See Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002)
(per curiam).

       Under § 1997e(a), a prisoner cannot bring a § 1983 action with respect to
prison conditions "until such administrative remedies as are available are exhausted."
See Porter v. Nussle, 534 U.S. 516, 524 (2002). We have previously held, as is the
case here, that "[w]hen multiple prison condition claims have been joined . . . the
plain language of § 1997e(a) requires that all available prison grievance remedies
must be exhausted as to all of the claims." Graves v. Norris, 218 F.3d 884, 885 (8th
Cir. 2000) (per curiam) (emphasis added). Because Kozohorsky did not exhaust his
administrative remedies on his failure-to-supervise claim against Harmon, he failed



                                         -3-
to exhaust all available administrative remedies as to all of his claims.1 See id. at
885–86 (holding dismissal proper where at least some of plaintiff's claims were
unexhausted when the district court ruled).

        Despite this defect in Kozohorsky's complaint, we believe the District Court
abused its discretion by implicitly denying his motion to amend the complaint. See
Wiles v. Capitol Indem. Corp., 280 F.3d 868, 871(8th Cir. 2002) (noting abuse-of-
discretion standard applies to a denial of a motion for leave to amend). Kozohorsky's
request to amend his complaint and dismiss Harmon would have cured the defect
necessitating the dismissal. Our decision here is guided by Rose v. Lundy, 455 U.S.
509 (1982), which addressed the exhaustion requirements for habeas corpus petitions.
In that decision, the Supreme Court adopted "a total exhaustion rule," which required
district courts to dismiss "mixed petitions" (i.e., petitions that contain both exhausted
and unexhausted claims). Id. at 510, 522. The Supreme Court stated that after a
district court dismisses such a mixed petition, the plaintiff could then return to state
court to exhaust his claims or file an amended petition in federal court including only
exhausted claims. Id. at 510. We think that the rule permitting a plaintiff to file an
amended petition, which includes only exhausted claims, is applicable here. In fact,
we have previously approved this practice in prison condition cases. See Thornton
v. Phillips County, Ark., 240 F.3d 728, 729 (8th Cir. 2001) (per curiam) (remanding
case to the District Court for consideration of plaintiff's objections to magistrate


      1
        Kozohorsky makes the novel argument that by the time he came to believe he
was the victim of retaliation by Harmon, he could not amend his existing grievance
against Frazier to include his retaliation and failure-to-supervise claims against
Harmon. Brief of the Appellant at 13, 16. This may be true of his retaliation claim,
but it certainly is not true of his failure-to-supervise claim. The record is clear that
Kozohorsky failed to exhaust his administrative remedies on this claim.
Kozohorsky's grievance against Frazier does not contain any allegation that Harmon
failed to adequately train and supervise Frazier and we see no reason Kozohorsky
could not have included this claim at the time he filed his grievance against Frazier.

                                          -4-
judge's report because the objections should have been treated as a motion for leave
to amend complaint).

       Moreover, we can think of no reason why Kozohorsky's motion to amend
should be denied. Based on the record before us, we must assume that the District
Court was aware of Kozohorsky's request to amend the complaint. We have
previously held that "absent a good reason for denial—such as undue delay, bad faith
or dilatory motive, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the non-moving party, or futility of amendment—leave
to amend should be granted." Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)). None of these reasons to deny
an amendment is present here. First, the deletion of Harmon as defendant would not
have required any additional discovery or changed any of the pretrial deadlines or
trial schedule. Second, Kozohorsky was not attempting to add any claims or
defendants. Third, Kozohorsky has not previously amended his complaint, and it
does not appear he showed any bad faith in failing to dismiss Harmon earlier.
Finally, the deletion of Harmon would have cured the defect requiring the dismissal
of his complaint.

     Accordingly, we conclude that the District Court's implicit denial of
Kozohorsky's motion to amend was an abuse of discretion, and we reverse and
remand for further proceedings consistent with this opinion.

      A true copy.

            Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -5-
