                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 06-2534
                                  ___________

Grady Newingham,                     *
                                     *
            Appellant,               *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Eastern District of Arkansas.
David Westbrook, Sgt., Maximum       *
Security Unit, ADC; Turoty Hayes,    *       [UNPUBLISHED]
CO-I, Maximum Security Unit, ADC; *
Greg Harmon, Warden, Maximum         *
Security Unit, ADC; Kay Wade,        *
Corporal, Maximum Security Unit,     *
ADC,                                 *
                                     *
            Appellees.               *
                                ___________

                            Submitted: September 19, 2006
                               Filed: November 1, 2006
                                ___________

Before MAGILL, SMITH, and BENTON, Circuit Judges.
                            ___________

PER CURIAM.

       Grady Newingham, an Arkansas prisoner, appeals the district court’s order
denying his motion to reinstate and amend his previously dismissed 42 U.S.C. § 1983
action. He also has moved to proceed in forma pauperis (IFP) on appeal. Leaving fee
collection to the district court, we grant Newingham IFP status, and we remand.
       In May 2002 and September 2003, Newingham filed two section 1983 actions
that were consolidated in the district court. He claimed that various prison officials
were deliberately indifferent to his safety and had conspired to cover up an April 2001
assault on him. The district court dismissed the complaint for failure to exhaust
administrative remedies as required by 42 U.S.C. § 1997e(a). On appeal we affirmed,
stating dismissal without prejudice was merited because Newingham had not shown
exhaustion as to his claim against one defendant. See Newingham v. Westbrook, 140
Fed. Appx. 634 (8th Cir. Aug. 9, 2005) (unpublished per curiam).

      In April 2006, Newingham moved to reinstate and amend his dismissed civil
action to delete any unexhausted claims. The district court summarily denied the
motion.

       While the federal rules do not provide specifically for a motion to reinstate,
there is precedent in this circuit for liberally construing such a motion as initiating a
new civil action. See Miller v. Norris, 247 F.3d 736, 738-39 (8th Cir. 2001) (so
construing pro se “Motion to Reinstate Cause” filed two months after dismissal of
prisoner’s § 1983 action for failure to exhaust administrative remedies). We therefore
construe Newingham’s April 20, 2006, motion to reinstate as initiating a new civil
action, with the motion to be treated as the initial complaint, open to amendment, see
Fed. R. Civ. P. 15(a). Newingham’s clear intent is to proceed on a section 1983 action
with only exhausted claims. If on remand defendants contend that any claim is
unexhausted, the district court should afford Newingham the opportunity to
demonstrate exhaustion and to excise any unexhausted claim.

       Accordingly, we vacate the order denying the motion to reinstate, and remand
for the district court to open a separate civil action as of April 20, 2006, treating the
served reinstatement motion as the served initial complaint in the new action.
                          ______________________________



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