                  United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 06-3427
                                ___________

Harold Hobbs,                          *
                                       *
             Appellant,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas.
Harrison Foreman, Sgt., East Arkansas *
Regional Unit, ADC; Brenda Parker,     * [UNPUBLISHED]
Corporal, East Arkansas Regional Unit, *
ADC; Cheryl Evans, Lt., East Arkansas *
Regional Unit, ADC; Lamontrell Jones, *
C.O., East Arkansas Regional Unit,     *
ADC; Albert Norton, CO-II, East        *
Arkansas Regional Unit, ADC; Kathy *
Steward, Sgt., East Arkansas Regional *
Unit, ADC; Edward Eaton, CO-II, East *
Arkansas Regional Unit, ADC; Grant *
Harris, Warden, Varner Unit, ADC;      *
Greg Harmon, Warden, East Arkansas *
Regional Unit, ADC; Larry Norris,      *
Director, Arkansas Department of       *
Correction,                            *
                                       *
             Appellees.                *
                                  ___________

                          Submitted: June 7, 2007
                             Filed: June 8, 2007
                              ___________

Before MURPHY, MAGILL, and BENTON, Circuit Judges.
                           ___________
PER CURIAM.

       Arkansas inmate Harold Hobbs appeals the district court’s adverse grant of
summary judgment in his 42 U.S.C. § 1983 action. While housed at the Varner Unit,
Hobbs filed a complaint in February 2006 naming several Eastern Arkansas Regional
Unit officers; Wardens Greg Harmon and Grant Harris; and Arkansas Department of
Correction Director Larry Norris. He claimed Eighth Amendment violations and
retaliation, alleging that certain defendant officers used excessive force during an
October 19, 2005 incident; and that when Hobbs wrote a grievance about the incident,
some of the officers deprived him of yard time for six months. Further, because of
grievances Hobbs had filed against two guards, defendant Officer Edward Eaton twice
falsely charged Hobbs with rule violations. Finally, Director Norris and Warden
Harris had improperly transferred Hobbs to EARU, and Warden Harmon would not
investigate a grievance.

       Defendants moved for summary judgment, arguing (with supporting
documentation) that Hobbs had not exhausted his administrative remedies as to the
retaliatory-discipline claim against Eaton. Hobbs responded but provided no evidence
that he had exhausted this claim. The magistrate judge recommended granting the
summary judgment motion, noting that when multiple prison condition claims had
been joined, administrative remedies had to be exhausted as to all claims. The district
court adopted the magistrate judge’s report over Hobbs’s objections, and dismissed
the lawsuit without prejudice. The court denied leave to appeal in forma pauperis
(IFP), and Hobbs renews his IFP motion in this court.

       We grant Hobbs’s motion for leave to appeal IFP, and leave the fee-collection
details to the district court. See Henderson v. Norris, 129 F.3d 481, 484-85 (8th Cir.
1997) (per curiam). As to the merits, this court reviews de novo the application of the
Prison Litigation Reform Act, and for clear error any underlying findings of fact. See
Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (per curiam). We conclude


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that the district court properly dismissed the retaliatory-disciplinary claim against
Eaton, given that Hobbs failed to contest defendants’ evidence that he had not
exhausted this claim. See Jones v. Bock, 127 S. Ct. 910, 918-19, 923 (2007)
(unexhausted claims cannot be brought in court or considered). However, the court
erred by dismissing the remaining claims, as defendants asserted only that the
retaliatory-discipline claim against Eaton was unexhausted. The Supreme Court has
recently clarified that failure to exhaust is an affirmative defense, and further, the
Court has rejected a total-exhaustion rule. See id. at 921, 923-26.

       Accordingly, we reverse and remand for further proceedings consistent with
this opinion.
                      ______________________________




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