                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2082
                                   ___________

Luis Fargas,                           *
                                       *
             Appellant,                *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
United States of America; Federal      * District of Minnesota.
Bureau of Prisons; Officer Vavra;      *
Officer Smith; Lt. Miller, FBOP        * [UNPUBLISHED]
Correctional Official,                 *
                                       *
             Appellees.                *
                                  ___________

                             Submitted: October 2, 2009
                                Filed: October 13, 2009
                                 ___________

Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
                          ___________

PER CURIAM.

       Federal inmate Luis Fargas brought suit, as relevant, under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), claiming
that three officials at the Federal Medical Center in Minnesota violated his Fifth and
Eighth Amendment rights. Converting defendants’ motion to dismiss to a motion for
summary judgment, the district court1 dismissed the Bivens claims as unexhausted.
Fargas appeals.

       Upon careful de novo review, we conclude defendants’ unrebutted evidence
showed that Fargas failed to exhaust all available administrative remedies, because he
did not attempt informal resolution as required by 28 C.F.R. § 542.13(a) (before
inmate submits request for administrative remedy, inmate shall first present issue of
concern informally to staff, and staff shall attempt to resolve issue informally).
Therefore, defendants were entitled to judgment as a matter of law on the Bivens
claims, which were subject to dismissal. See 42 U.S.C. § 1997e(a) (prisoner may not
bring action with respect to prison conditions under any federal law before exhausting
all available administrative remedies); Fed. R. Civ. P. 56(c) (summary judgment is
appropriate when there is no genuine issue as to any material fact and moving party
is entitled to judgment as matter of law), (e)(2) (party opposing properly supported
summary judgment motion must set out specific facts showing genuine issue for trial);
Jones v. Bock, 549 U.S. 199, 211-24 (2007) (where failure to exhaust is pleaded as
affirmative defense, unexhausted claims are subject to dismissal under § 1997e(a));
Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam) (exhaustion
requirement under § 1997e(a) is affirmative defense that defendant has burden to
plead and prove); see also Fed. R. Civ. P. 12(d) (if matters outside pleadings are
presented and not excluded by court, motion under Rule 12(b)(6) must be treated as
one for summary judgment under Rule 56).

      Accordingly, we affirm, but we modify the dismissal to be without prejudice,
see Jones v. Douglas County Corr. Ctr., 306 Fed. Appx. 339, 340 (8th Cir. 2009)
(unpublished per curiam).

                       ______________________________



      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Janie S.
Mayeron, United States Magistrate Judge for the District of Minnesota.

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