                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1343
                                   ___________

Keith Eugene Washington,                 *
                                         *
             Appellant,                  *
                                         *
       v.                                * Appeal from the United States
                                         * District Court for the
Mark Uner, sued as Mark Jeffrey          * District of Minnesota.
Uner; Chryel Binder; Kirkpatrick,        *
Officer, sued in their individual and    * [UNPUBLISHED]
official capacities,                     *
                                         *
             Appellees.                  *
                                    ___________

                             Submitted: April 8, 2008
                                Filed: April 15, 2008
                                 ___________

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

      Minnesota inmate Keith Washington appeals the district court’s1 dismissal with
prejudice of his 42 U.S.C. § 1983 action, following the court’s adverse grant of
summary judgment based on his failure to exhaust administrative remedies. He also



      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Jeanne J.
Graham, United States Magistrate Judge for the District of Minnesota.
argues that the district court abused its discretion in denying his motion for
appointment of counsel.

       In his pro se complaint, Washington alleged that he was a prisoner informant
for the Office of Special Investigations (OSI), that he was assaulted in prison by
known gang members because of his work for OSI, and that defendants--despite
knowing the attack was imminent--failed to prevent the attack or protect him from
harm, in violation of his Eighth Amendment right to be free from cruel and unusual
punishment. In his complaint, Washington acknowledged that he did not file a
grievance against defendants, but he asserted that he took other steps intending to
invoke an administrative remedy and that he had been threatened by one of the OSI
investigators not to say “anything to anybody.”

       Upon de novo review, we agree with the district court that Washington’s
section 1983 action could not proceed because he had not exhausted his administrative
remedies. See 42 U.S.C. § 1997e(a) (“[n]o action shall be brought with respect to
prison conditions . . . by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted”); Jones v.
Bock, 127 S. Ct. 910, 918-23 (2007) (unexhausted claims cannot be brought in court
or considered; failure to exhaust is affirmative defense); Nerness v. Johnson, 401 F.3d
874, 876 (8th Cir. 2005) (per curiam) (defendant has burden of proving failure to
exhaust); Jones v. Coonce, 7 F.3d 1359, 1362 (8th Cir. 1993) (de novo review of
summary judgment decision). Although Washington submitted evidence showing that
he sent some letters to the Department of Corrections complaining about the assault,
the evidence also showed beyond genuine dispute that he did not follow the
established grievance procedure. See Woodford v. Ngo, 126 S. Ct. 2378, 2386 (2006)
(proper exhaustion demands compliance with agency’s deadlines and other critical
procedural rules). Further, while it is undisputed that an OSI investigator warned
Washington not to reveal his involvement with OSI, we cannot say that this warning
thwarted Washington’s right to utilize the grievance procedure. See Gibson v. Weber,

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431 F.3d 339, 341 (8th Cir. 2005) (inmates’s assertion that unnamed personnel “made
it clear” that he should voice complaints to medical personnel informally was not
evidence that any prison official thwarted initiation of grievance procedures or that
any official made it impossible to file grievances); Chelette v. Harris, 229 F.3d 684,
688 (8th Cir. 2000) (“Section 1997e(a) says nothing about a prisoner’s subjective
beliefs, logical or otherwise, about the administrative remedies that might be available
to him.”).

      We further hold that the court did not abuse its discretion in denying
Washington appointment of counsel. See Plummer v. Grimes, 87 F.3d 1032, 1033
(8th Cir. 1996) (standard of review; factors court is to consider include, inter alia,
whether plaintiff and court will benefit from appointment of counsel, legal and factual
complexity of case, and plaintiff’s ability to investigate and present his claim).

       Accordingly, we modify the dismissal of Washington’s action to be without
prejudice, see Calico Trailer Mfg. Co. v. Ins. Co. of N. Am., 155 F.3d 976, 978 (1998)
(affirming dismissal for failure to exhaust administrative remedies, but modifying to
be without prejudice), and we affirm the dismissal, as modified.
                           __________________________




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