United States Court of Appeals

For the Eighth Circuit

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No. 13-2729

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Andre Porter

lllllllllllllllllllll Plaintiff - Appellant

v.

Matt Sturm, MDOC Div Director of Adult Grievances; Lisa Jones, MDOC

Constituate Officer

lllllllllllllllllllll Defendants

Dave Dormire, Prior Warden at JCCC

lllllllllllllllllllll Defendant - Appellee

Bill Galloway, Assistant Warden at JCCC

lllllllllllllllllllll Defendant

David Webster, Functional Unit Manager

lllllllllllllllllllll Defendant - Appellee

Judy Webster, Classifications Caseworker

lllllllllllllllllllll Defendant

Edward Ruppel, Classifications Caseworker

lllllllllllllllllllll Defendant - Appellee
Paul Gore, Grievance Officer; Leonard Neff, Corrections Officer I; Chris Koster,

Missouri Attorney General; Caleb M. Lewis, Assistant Attorney General

lllllllllllllllllllll Defendants

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Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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 Submitted: December 10, 2014

 Filed: March 23, 2015

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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Andre Porter, an inmate, sued officials of the Missouri Department of

Corrections (MDOC) for retaliation under 42 U.S.C. § 1983. The district court

granted themsummary judgment after dismissing Porter’s claimfor failure to exhaust

remedies. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, and

vacates and remands in part.

I.

On December 3, 2009, a guard gave Porter’s unit manager a letter found in

front of his former cell. The letter, addressed to Governor Jay Nixon with Porter’s

name on the return address, said it contained anthrax. The manager believed Porter

wrote the letter, although he knew that an inmate near Porter’s former cell had

threatened “to get” Porter, causing Porter’s transfer to a different housing unit two

weeks earlier. An independent investigation concluded that a different inmate wrote

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the letter but recommended a forensic handwriting exam. The manager and warden

took no further action.

Three months later, Porter filed an unrelated § 1983 case against the manager,

warden, and others. On May 25, 2010, several defendants were dismissed from the

case, including the manager and warden. On June 18, the Attorney General (having

waived service of process) appeared for the remaining defendant. 

Twelve days later, the manager, with the warden’s support, wrote a conduct

violation against Porter for the anthrax threat despite the investigation’s results

months earlier. On July 6, a disciplinary hearing found Porter “Guilty.” The hearing

relied solely on the manager’s accusation and did not “consult” the investigation. On

July 8, Porter was assigned to administrative segregation. 

To contest violations, inmates must follow a three-step grievance process. 

First, an inmate files an Informal Resolution Request (IRR). If dissatisfied with the

response to the IRR, the inmate files a formal grievance. MDOC Department

Manual, D5-3.2 Offender Grievance, III.L.1 (2009). If dissatisfied with the response

to the grievance, the inmate appeals within seven days, or the appeal is “considered

abandoned.” Id. at III.M.1. “After receiving the appeal response, the offender has

exhausted the grievance process.” Id. at III.M.12. “Expiration of the response time

limit at any stage of the process shall allow the grievant to move to the next stage of

the process.” Id. at III.K.9 (IRRs); III.L.18 (grievances). 

On July 14, Porter filed a timely IRR. According to the Manual, an IRR

“should be responded to assoon as practical, but within 40 calendar days of receipt.” 

Id. at III.K.6.e. Porter never received a response to the IRR.

On July 20, Porter had a second disciplinary hearing on the anthrax charge. 

This time, he wasfound “Not Guilty” with a recommendation to dismiss and expunge

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his violation. On August 5, the warden overruled the recommendation, reinstating

his administrative segregation. 

On August 25, still in segregation, Porter submitted a timely grievance. Porter

claimed that the warden violated his due process rights in retaliation for his unrelated

§ 1983 case. According to the Manual: “The superintendent/designee should

respond to offender grievances within 40 calendar days of receipt.” Id. at III.L.9.e. 

On October 19, over 40 days after the response was due, Porter requested an

appeal form. The next day, he received a letter from the MDOC notifying him that

the “investigation regarding this matter is complete, and evidence was not found to

implicate you in this matter. You were not issued a conduct violation either.” The

letter also stated, “While I am unsure why you are pursuing appeal of this matter,

which has been resolved in your favor, I do note your grievance . . . is pending final

response at the grievance level. Please remain patient as that review is completed.” 

Porter received the appeal form on October 29, ten days after requesting it. On

November 4, still in segregation, Porter appealed the MDOC’s lack of a “final

response” to his grievance. Porter was not released from segregation until he served 1

the five-month punishment for the violation.

On October 27, 2011—more than 14 months after Porter filed his grievance

form—the new warden finally responded to the grievance in a separate memo. The

response confirmed the dismissal and expungement of the violation and apologized

The November 2010 appeal should have been resolved within 100 days, but 1

Porter’s officer never filed the appeal. See id. at III.M.6 (“An appeal response should

be provided assoon as practical, but within 100 calendar days of receipt.”). On April

6, 2011, after learning that his appeal was never filed, Porter wrote the MDOC to

notify them of the appeal, stressing that his violation had not yet been resolved or

expunged. On October 5, he sent a similar letter to the Governor (which was referred

to the MDOC).

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for the delay. On November 2, Porter signed his grievance form, checking the box,

“I Accept this Decision” (and did not check “I Appeal this Decision”). He never

received a response to his November 2010 appeal, and he never appealed the

warden’s October 2011 final response.

On November 23, Porter filed pro se this § 1983 case, alleging that the conduct

violation was unlawful retaliation for his unrelated § 1983 case, violating his due

process rights. The district court dismissed the claim for failure to exhaust remedies

and granted summary judgment for the defendants.

II.

This court reviews de novo a grant of summary judgment, viewing facts most

favorably to the nonmovant. Torgerson v. City of Rochester, 643 F.3d 1031, 1042

(8th Cir. 2011) (en banc). Summary judgment is proper “if the movant shows that

there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a).

An inmate must exhaust all available administrative remedies before bringing

a § 1983 suit. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007); Burns

v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014). Available remedies are “capable of

use for the accomplishment of a purpose: immediately utilizable [and] accessible.” 

Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (finding exhaustion does not

require use of “all” remedies). An inmate satisfies § 1997e(a) by pursuing “the prison

grievance process to its final stage” to “an adverse decision on the merits.” Burns,

752 F.3d at 1141. It does not matter that the inmate “subjectively believed that there

was no point in his pursuing administrative remedies.” Lyon v. Vande Krol, 305 F.3d

806, 809 (8th Cir. 2002) (en banc). Nonexhaustion is an affirmative defense, and

defendants have the burden of raising and proving the absence of exhaustion. Jones,

549 U.S. at 211-12.

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The question here is: “Was there a procedure available?” See Lyon, 305 F.3d

at 809. The remedies available to Porter were the IRR, the formal grievance, and the

appeal from that grievance. To exhaust all available remedies, Porter needed to

appeal from the warden’s October 2011 grievance response, even if he believed an

appeal would be ineffective. See id. Instead of choosing “I Appeal this Decision,”

he chose “I Accept this Decision,” abandoning his claim. 

Porter argues that his November 2010 appeal exhausted his remedies. 

However, that appeal addressed only the MDOC’s refusal to provide a final response

and is not an appeal from an “adverse grievance decision.” This court need not

decide whether Porter’s remedies were effectively exhausted in the period between

his November 2010 appeal and the warden’s October 2011 final response, since

Porter did not file this suit during that year. 

Porter also argues that since the response was in a memo separate from the

grievance form, there was no “decision” on the form for him to accept. This

argument has no merit—Porter had the opportunity to appeal the alleged technical

error. In Burns, the plaintiff did not exhaust his remedies because he had not

requested review of his distinct § 1983 claims before asserting them in federal court. 

Burns, 752 F.3d at 1141. Similarly, Porter did not request review of any issue in the

grievance response before asserting his § 1983 claim. Thus, Porter accepted the final

response and did not pursue the MDOC’s grievance process to its final stage.

Porter seems to claim he is excused from exhausting remedies because prison

officials withheld grievance procedures. Inmates are excused from exhausting

remedies “when officials have prevented prisoners from utilizing the procedures, or

when officials themselves have failed to comply with the grievance procedures.” 

Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005). “[A] remedy that prison

officials prevent a prisoner from ‘utiliz[ing]’ is not an ‘available’ remedy under §

1997e(a) . . . .” Miller, 247 F.3d at 740 (second alteration in original) (finding

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remedies not “available” where prison officialsfailed to respond to inmate’s requests

for grievance forms). See also Sergent v. Norris, 330 F.3d 1084, 1085-86 (8th Cir.

2003) (per curiam) (finding prison official’s failure to timely respond to grievance

could show inmate had exhausted “available” remedies); Foulk v. Charrier, 262 F.3d

687, 697-98 (8th Cir. 2001) (finding inmate may have exhausted remedies when

MDOC prison officials refused to respond to IRR). 

The delays in responding to Porter are apparently unjustified. However, they

did not prevent him from utilizing grievance procedures, and the officials’ noncompliance did not cause remedies to be unavailable. Unlike the plaintiffs in Miller

and Foulk, Porter was able to file a grievance and eventually receive a response

(despite the MDOC’s failure to respond to his IRR and his appeal while his grievance

was pending). Cf. Miller, 247 F.3d at 740; Foulk, 262 F.3d at 697-98. Porter does

not allege he tried to appeal when he accepted the decision, that prison officials

prevented him from appealing, or that they told him any remedies were unavailable. 

See Sergent, 330 F.3d at 1086 (finding that, although grievance resolution was

untimely, inmate was not “prevented fromeffectively utilizing grievance procedures”

because he received a response and was able to appeal). Aware of the grievance

procedure, he freely chose not to pursue the final stage after he received his

resolution. 

Porter did not exhaust his remedies in accordance with 42 U.S.C. § 1997e(a). 

Dismissal without prejudice is mandatory. Hammett v. Cofield, 681 F.3d 945, 949

(8th Cir. 2012) (per curiam) (affirming, in part, dismissal without prejudice for §

1997e(a) failure to exhaust); Washington v. Uner, 273 Fed. Appx. 575, 577 (8th Cir.

2008) (per curiam) (modifying district court’s dismissal to clarify that § 1997e(a)

failure to exhaust is dismissed without prejudice); Maddix v. Crawford, 216 Fed.

Appx. 605, 606 (8th Cir. 2007) (per curiam) (same). 

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This court need not review Porter’s case on the merits or opine on the summary

judgment. See Jones, 549 U.S. at 211 (“There is no question that exhaustion is 2

mandatory under the PLRA and that unexhausted claims cannot be brought in

court.”); Lyon, 305 F.3d at 809 (holding an inmate “must first have exhausted his

administrative remedies pursuant to the grievance procedure of the prison before his

civil rights complaint could proceed”); Barbee v. Corr. Med. Servs., 394 Fed. Appx.

337, 337 (8th Cir. 2010) (per curiam) (affirming dismissal without prejudice but

vacating grant of summary judgment).

* * * * * * *

The dismissal is affirmed, summary judgment vacated, and the case remanded

with directions to dismiss without prejudice.

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After oral arguments on appeal, Porter filed a pro se motion for preliminary 2

injunction and temporary restraining order. In light of this opinion, his motion is

denied.

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