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Keith Washington v. Jessica Symmes, etc., 07-3314 (2008)

Court: Court of Appeals for the Eighth Circuit Number: 07-3314 Visitors: 4
Filed: Nov. 06, 2008
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 07-3314 _ Keith Eugene Washington, * Suing as Keith Washington, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Jessica Symmes; Kathy Reid; * Barb Nelson; Keri Anderson; * [UNPUBLISHED] Aillijo Allidis, * * Appellees. * _ Submitted: November 3, 2008 Filed: November 6, 2008 _ Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges. _ PER CURIAM. Minnesota inmate Keith Washington appeals t
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                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3314
                                   ___________

Keith Eugene Washington,                *
Suing as Keith Washington,              *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Jessica Symmes; Kathy Reid;             *
Barb Nelson; Keri Anderson;             * [UNPUBLISHED]
Aillijo Allidis,                        *
                                        *
             Appellees.                 *
                                   ___________

                             Submitted: November 3, 2008
                                Filed: November 6, 2008
                                 ___________

Before WOLLMAN, SMITH, 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. Washington, then incarcerated at Oak Park Heights Correctional
Facility in Minnesota, claimed that (1) he suffered a delay in seeing a physician for

      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court 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.
chest pain, because nursing staff misdiagnosed his pain as being caused by excessive
exercise, and (2) at times he was denied “comfort” medication.

       After de novo review of the record, see Popoalii v. Corr. Med. Servs., 
512 F.3d 488
, 499 (8th Cir. 2008), we agree with the district court that Washington’s delayed-
medical-treatment claim failed, because Washington presented no evidence that any
delay in seeing a physician worsened his condition; rather, defendants’ evidence
showed that a physician ultimately diagnosed Washington with a benign heart murmur
that caused no dysfunction. See Laughlin v. Schriro, 
430 F.3d 927
, 929 (8th Cir.
2005) (objective seriousness of treatment delay must be measured by reference to
effect of delay as shown by verifying medical evidence).

       As to Washington’s claim that he was denied “comfort” medication, the district
court properly dismissed this claim, without discussing its merits, for lack of
administrative exhaustion. See Johnson v. Jones, 
340 F.3d 624
, 627 (8th Cir. 2003)
(if exhaustion is not completed at time of filing, dismissal is mandatory).

       Accordingly, we affirm, but we modify the dismissal of the medication claim
to be without prejudice, see Jones v. Bock, 
549 U.S. 199
, 219-24 (2007). See 8th Cir.
R. 47B.
                       ______________________________




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Source:  CourtListener

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