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Nixon v. Sanders

United States Court of Appeals, Eighth Circuit
Aug 17, 2007
243 F. App'x 197 (8th Cir. 2007)

Summary

In Nixon v. Sanders, 243 F. App'x 197 (8th Cir. 2007), the Eighth Circuit concluded that Nixon, the prisoner plaintiff, had raised a factual dispute as to whether he was denied grievance forms, and the court reversed the district court's dismissal of Nixon's claims based on the ground that he had not fully exhausted his administrative remedies.

Summary of this case from Ainsworth v. Droz

Opinion

No. 06-1013.

Submitted: August 7, 2007.

Filed: August 17, 2007.

Appeal from the United States District Court for the Eastern District of Arkansas.

Jimmy G. Nixon, Sr., Anthony, NM, pro se.

Gwendolyn Dewees Hodge, U.S. Attorney's Office, Little Rock, AR, for Appellees.

Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.


[UNPUBLISHED]


Federal inmate Jimmy G. Nixon, Sr., appeals the district court's order dismissing, for failure to exhaust administrative remedies, his action filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We reverse and remand.

After Nixon filed this action complaining of religious harassment, defendants sought dismissal or summary judgment based on Nixon's failure to exhaust his administrative remedies. In support, defendants submitted prison records and an attorney's declaration. Nixon responded, and the magistrate judge recommended dismissal of the complaint, finding that it was clear from defendants' papers, and Nixon's lack of proof to the contrary, that Nixon had not fully exhausted his administrative remedies. Nixon did not file objections, and the district court adopted the magistrate judge's report and dismissed Nixon's complaint without prejudice for failure to exhaust. This appeal followed.

We review the district court's findings of fact for clear error and its conclusions of law de novo, see Kozohorsky v. Harmon, 332 F.3d 1141, 1143 (8th Cir. 2003), but because Nixon did not object to the magistrate judge's report, any error is not reversible unless it is plain error, cf. Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (reviewing magistrate judge's findings of fact for plain error where habeas petitioner failed to file objections to report and recommendation).

Under 42 U.S.C. § 1997e(a), a prisoner must exhaust all available administrative remedies before a civil action can be brought with respect to prison conditions. See Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) (per curiam); Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (federal inmates suing under Bivens must first exhaust administrative remedies). Administrative exhaustion is an affirmative defense that defendants have the burden to plead and prove. See Jones v. Bock, ___ U.S. ___, 127 S.Ct. 910, 919-22, 166 L.Ed.2d 798 (2007).

We conclude that Nixon raised a factual dispute as to whether he was denied the necessary forms to grieve the religious harassment that was the subject of his Bivens action. In various submissions, Nixon complained to prison officials that staff members were ignoring his BP-8½ grievance forms — the initial step in the grievance process — and were refusing to provide him with BP-9, -10, and -11 forms which are needed to proceed through the Bureau of Prisons' administrative-remedy process. See 28 C.F.R. § 542.10-.18; Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (prisoner's allegations that prison officials denied his requests for grievance forms could raise inference that he was prevented from utilizing prison's administrative remedies; remedy that prison officials prevent prisoner from utilizing is not "available" under § 1997e(a)).

These included Nixon's September 14, 2004 letter to the warden and October 13, 2004 letter (recipient unnoted); "inmate request" forms; a sworn statement; and additional letters to the warden and others.

We further find that the error was plain, and in the interest of the fairness, integrity, and public reputation of judicial proceedings, we exercise our discretion to order correction of the error. See Allen v. Entergy Corp., Inc., 193 F.3d 1010, 1014 (8th Cir. 1999) (discussing plain error). Therefore, we remand for a determination whether — in light of Nixon's allegations that the prison withheld grievance forms — the grievance procedure in this case was "available" within the meaning of section 1997e(a) to administratively exhaust Nixon's religious-harassment claim. See Miller, 247 F.3d at 740.

Accordingly, we vacate the judgment and we remand this matter to the district court for further proceedings consistent with this opinion.


Summaries of

Nixon v. Sanders

United States Court of Appeals, Eighth Circuit
Aug 17, 2007
243 F. App'x 197 (8th Cir. 2007)

In Nixon v. Sanders, 243 F. App'x 197 (8th Cir. 2007), the Eighth Circuit concluded that Nixon, the prisoner plaintiff, had raised a factual dispute as to whether he was denied grievance forms, and the court reversed the district court's dismissal of Nixon's claims based on the ground that he had not fully exhausted his administrative remedies.

Summary of this case from Ainsworth v. Droz

In Nixon, the Eighth Circuit found that a factual dispute existed after the parties presented similar evidence to the evidence presented here. See also Conner v. Doe, 285 F. App'x 304 (8th Cir. 2008) (finding that a jail's grievance officer's declaration that there was no record of plaintiff filing a grievance insufficient to establish failure to exhaust in the face of plaintiff's assertion in his complaint that he had filed relevant grievances but did not receive copies of them or responses to them).

Summary of this case from Ainsworth v. Droz
Case details for

Nixon v. Sanders

Case Details

Full title:Jimmy G. NIXON, Sr., Appellant, v. Linda SANDERS, Warden FCI-Forrest City…

Court:United States Court of Appeals, Eighth Circuit

Date published: Aug 17, 2007

Citations

243 F. App'x 197 (8th Cir. 2007)

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