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Cole v. Isherwood12/6/2002
the filing of a suit and is not a substantive element of the plaintiff's tort claim. In addition, we agree with those federal courts that have concluded that exhaustion of administrative remedies is merely a condition precedent to the filing of a § 1983 claim and not an element of such claim. See, Chelette v. Harris, 229 F.3d 684 (8th Cir. 2000); Underwood v. Wilson, supra. Therefore, the demurrer was not properly sustained on the ground that the petition failed to state a cause of action, and the Court of Appeals erred in affirming the sustaining of the demurrer and dismissal of the case.
3. Personal Jurisdiction
As an alternative justification for the dismissal of Cole's action, defendants argue that they were not properly served. The record does not disclose the manner in which service was obtained, and the issue was not specifically addressed by either the district court or the Court of Appeals. Accordingly, we do not address it.
V. CONCLUSION
For the foregoing reasons, we conclude that the Court of Appeals erred in affirming the dismissal of this action. We reverse the decision and remand the cause to the Court of Appeals with directions to reverse the judgment of the district court and remand the cause for further proceedings consistent with this opinion.
Reversed and remanded with directions.
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