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Gallagher v. Shelton

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Before KELLY, BRISCOE, and HOLMES, Circuit Judges.

Plaintiff Michael P. Gallagher, an inmate in the custody of the Kansas Department of Corrections appearing pro se, appeals the district court’s dismissal of his 42 U.S.C. § 1983 action. The district court dismissed Gallagher’s amended complaint for failure to exhaust administrative remedies and for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the dismissal of Counts I, II, and III of Gallagher’s complaint. We also affirm the dismissal of Gallagher’s claims on Counts IV and V, but we remand with directions to vacate the dismissal on Counts IV and V only for the purpose of clarifying that such dismissal is without prejudice.*fn1 *fn2

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