United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-4142

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Chester William Sergent, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

Larry Norris, Director, Arkansas * Eastern District of Arkansas.

Department of Correction; John Doe, *

Arkansas Department of Correction * [PUBLISHED]

Policy Maker 250; Gaylon Lay, *

Warden, Delta Regional Unit, ADC; *

Ray Hobbs, Deputy Director, Arkansas, *

Department of Correction, *

*

Appellees. *

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 Submitted: April 23, 2003

 Filed: May 16, 2003

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Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.

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PER CURIAM.

In February 2002 Arkansas inmate Chester Sergent filed a 42 U.S.C. § 1983

complaint against Arkansas Department of Correction (ADC) officials alleging, inter

alia, that he had been involuntarily exposed to secondary smoke from inmates

smoking tobacco in the Delta Regional Unit, where he was housed; he provided proof
1

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

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of exhaustion as to the claim. In September 2002 Sergent moved for injunctive relief,

claiming he was exposed to tobacco smoke in the North Central Unit, where he was

then housed, in violation of ADC’s tobacco-free policy. Sergent was directed to

provide proof of exhaustion of his new claim within thirty days, and he submitted his

August 12, 2002 grievance regarding tobacco smoke in the North Central Unit. On

November 15 the district court1

 determined that Sergent had produced only partial

evidence of exhaustion of his claim--the August 12 grievance--and had not submitted

the Warden’s response or the final disposition from the Assistant Director. The court

thus dismissed the case without prejudice for failure to exhaust administrative

remedies as required under 42 U.S.C. § 1997e(a).

Sergent submits on appeal the August 15 Warden’s response; his August 17

appeal; September 27 and November 25 grievance-extension requests, both of which

he refused to grant; and the December 4 Assistant Director’s decision denying his

grievance. He argues that the resolution of his grievance was untimely under ADC

grievance procedure.

Under ADC grievance procedure, an inmate must file a grievance, with a

grievance officer or the Warden’s designee, within fifteen days after the “grievance

occurrence.” The Warden’s written response must be provided within twenty

“working days” of receipt of the inmate’s grievance in non-emergency situations.

The inmate may appeal the Warden’s response, within ten working days, to the

Assistant Director. The Assistant Director must respond to the appeal in writing

within twenty working days. When a longer period of time is required for response

or resolution, the inmate must be notified, on a Grievance Extension Form, of the

reason for the delay and its expected length; time limits for responding may be

extended only with the written agreement of the inmate. The entire grievance process
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must be completed within sixty-five working days unless a valid extension has been

agreed to, or it can be documented that unforeseen circumstances have occurred--such

as the respondent’s absence or illness, the loss of documents in the mail, or other

causes outside the parties’ control. See Ark. Dep’t of Corr. Admin. Directive 97-08

(July 3, 1997).

Prison officials’ failure to timely respond to a grievance could be a basis for a

prisoner to show that he exhausted “available” administrative remedies. See Foulk

v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (district court lacked sufficient factual

basis to find inmate failed to exhaust administrative remedies when prison officials

had refused to respond to informal resolution request); Miller v. Norris, 247 F.3d 736,

740 (8th Cir. 2001) (remedy that prison officials prevent inmate from using is not

“available” remedy under § 1997e(a); inmate’s allegations that prison failed to

respond to his requests for grievance forms were sufficient to raise inference that he

had exhausted “available” remedies).

Significantly, however, we find no evidence in the record before us that

Sergent asserted below, to the district court, that he was being prevented from

effectively utilizing grievance procedures. At the time his case was dismissed,

Sergent had received the Warden’s response, had appealed to the Assistant Director,

and had received and refused one grievance-extension request. He did not submit this

material to the district court, and we see no other indication in the record that Sergent

made reference below to an untimely grievance process. Thus, on the record that was

before the district court at the time that it ruled, we conclude that the court properly

dismissed the case without prejudice for failure to exhaust. Cf. McAlphin v. Morgan,

216 F.3d 680, 682 (8th Cir. 2000) (per curiam) (upholding dismissal for failure to

exhaust because inmate did not allege exhaustion in his complaint or attach evidence

of exhaustion, and thus did not satisfy burden of showing exhaustion).

Accordingly, we affirm.
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MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

I respectfully dissent because the record shows that Mr. Sergent had exhausted

his administrative remedies before the district court dismissed his complaint. While

Mr. Sergent did not specifically call the magistrate judge's attention to the

untimeliness of the prison officials' response, he did indicate the date on which he

filed his grievance, and it is up to the district court to apply the law to the facts. I

cannot emphasize enough that prison grievance procedures are law: They are statemade rules and no one, including a prisoner, is required to plead law. Law is for

courts to find and apply. Under the law in this case, the time for a response from

prison officials had passed, and so Mr. Sergent had fully exhausted the grievance

procedure. The prison officials offered no evidence that there were unforeseen

circumstances that would have extended the period.

My point is not that Mr. Sergent has been prevented from using the grievance

procedure, so Miller v. Norris, 247 F.3d 736 (8th Cir. 2001), is beside the point. My

point is the opposite: Mr. Sergent used the procedure and exhausted it.

I would therefore reverse the judgment of the district court and remand the case

for further proceedings.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.