Everett R. LYON, Appellee, v. Del VANDE KROL; Paul Hedgepeth; James Helling; Rabbi Jacobson, Appellants, 305 F.3d 806

MORRIS SHEPPARD ARNOLD, Circuit Judge. Everett Lyon, an inmate at the Iowa State Penitentiary (ISP), brought this civil rights suit under 42 U.S.C. § 1983 against ISP officials, claiming that the prison’s exclusion of him from participating in Jewish services and holidays violated his constitutional rights. Although Mr. Lyon had previously filed four civil rights complaints that had been dismissed as frivolous, the district court refused to dismiss his complaint as the so-called “three-strikes provision” of 28 U.S.C. § 1915(

g) required because it concluded that the statute was unconstitutional. See Lyon v. Vande Krol, 940 F.Supp. 1433 (S.D.Iowa 1996). On appeal from this order, we remanded the case to the district court with instructions to order Mr. Lyon to pay a filing fee or suffer the dismissal of his suit. See Lyon v. Vande Krol, 127 F.3d 763, 766 (8th Cir.1997). Mr. Lyon then paid his fee, the case went to trial, the jury rendered a verdict awarding him nominal and punitive damages, and the district court ordered injunctive relief in his favor. When the ISP officials appealed asserting, inter alia, that Mr.

Lyon’s suit should have been dismissed because he had failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a), a panel of our court remanded the case to determine whether the officials had prevented Mr. Lyon from exhausting those remedies. See Lyon v. Vande Krol, 270 F.3d 563, 567 (8th Cir.2001). We then granted the ISP officials’ petition for a rehearing en banc. We now reverse the judgment of the district court. I. As an initial matter, Mr.

Lyon maintains that the ISP officials have forfeited the right to argue that he did not exhaust his administrative remedies because they did not raise that issue in the district court at the first opportunity. We disagree. Although the district court ordered service of process on the ISP officials prior to the first appeal in this case, it entered a stay, pending appeal, of all proceedings in the district court before the ISP defendants were required to respond to the complaint. After we remanded the case and Mr.

Lyon’s fee-paid complaint was allowed to proceed, the ISP officials timely filed their motion to dismiss asserting that Mr. Lyon had not exhausted the administrative remedies available to him at ISP. Because the ISP officials raised the exhaustion issue at the first opportunity they have not waived their right to raise it here. We therefore turn to the merits of that argument. II.

The prison’s chaplain, defendant Del Vande Krol, testified that he had come to believe that a large number of inmates professed to be Jewish solely for the purpose of taking advantage of the special food accommodations made for Jewish inmates. In an effort to curtail this alleged abuse, defendant Rabbi Joseph Jacobson, a Jewish consultant for the prison, signed a memo drafted by Mr. Vande Krol excluding all but four inmates of ISP (of whom Mr. Lyon was not one) from participating in the Jewish services. When Mr. Lyon protested his exclusion, Mr.

Vande Krol responded by informing him that he had merely fulfilled his obligation to see to it that the recommendations of Rabbi Jacobson, as Jewish consultant to ISP, were implemented at the prison. Mr. Lyon then wrote a memo attempting to resolve the issue informally. Deputy Warden Paul Hedgepeth, another defendant, responded to the memo by informing Mr. Lyon that, although he would be permitted to attend Jewish services, he would not be allowed to participate. Mr. Hedgepeth went on to explain to Mr.

Lyon that “Jewish experts” suggested that prison inmates should not be converted to Judaism and that, in lieu of conversion, Mr. Lyon should simply engage in a course of Jewish study. The Prison Litigation Reform Act of 1996 (PLRA) amended 42 U.S.C. § 1997e(

a) to require that inmates who have civil rights claims must first exhaust all administrative remedies before bringing an action under § 1983. See Booth v. Churner, 532 U.S. 731, 733-34, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). This is true even though relief of the sort that the plaintiff is seeking is not available through the administrative procedures that are available. Id. at 737-41, 121 S.Ct. 1819. Mr. Lyon admits that there is a prison grievance procedure at ISP that provides a means to consider his constitutional claim and that he did not comply with it.

He says, however, that he did not pursue the procedure because Mr. Vande Krol told him that the decision to exclude him from participating in the ISP Jewish community was not Mr. Vande Krol’s to make and because Mr. Hedgepeth implied that the decision to exclude prisoners from participation rested in the hands of “Jewish experts” and not with ISP officials. Mr. Lyon maintains, in essence, that administrative remedies were not “available” within the meaning of the relevant statute because Mr. Vande Krol and Mr. Hedge-peth prevented him from exhausting them.

It is true that we have held that inmates cannot be held to the exhaustion requirement of the PLRA when prison officials have prevented them from exhausting their administrative remedies. For instance, in Foulk v. Charrier, 262 F.3d 687, 697-98 (8th Cir.2001), we concluded that the district court lacked a sufficient factual basis to find that an inmate had failed to exhaust his administrative remedies when prison officials had refused to respond to his informal resolution request that he completed to satisfy the requirements of the first part of the prison’s three-part grievance process. In Miller v.

Norris, 247 F.3d 736, 740 (8th Cir.2001), we similarly held that an inmate was prevented from exhausting his administrative remedies when prison officials failed to respond to his requests for grievance forms, and that the inmate’s failure to exhaust those remedies was not a bar to suit because they were not “available” to him. Though it is the burden of the defendant in a case such as this to show that a plaintiff prisoner failed to exhaust all available administrative remedies under the PLRA, it is not disputed in this case that Mr. Lyon did not exhaust them.

Under the PLRA, Booth, 532 U.S. at 737-41, 121 S.Ct. 1819, and all other applicable law, the question is a simple one: Was there a procedure available? There is no question in this case that there was, that Mr. Lyon was aware of it, and that he chose not to follow the steps that the procedure outlined. Mr. Lyon was never told that there was not a procedure, moreover, so there is no basis for the application of an estoppel principle here, even if one might otherwise be available. The statement made to Mr. Lyon by Mr. Vande Krol that the decision to exclude Mr.

Lyon from the Jewish services was made by an outside party to whom the prison would defer in that decision, was, at best, a prediction that Mr. Lyon would lose if he complained through the administrative grievance procedure. It was not a denial of Mr. Lyon’s right to complain, nor could the statement have misled him about the availability of the procedure. Similarly, the reference by Mr. Hedgepeth to “Jewish experts” implied that ISP officials were deferring to the judgment of others in their decision-making process, but it cannot in any event have changed the fact that procedures were available to Mr.

Lyon through which he could claim that his constitutional rights had been violated. It does not matter, finally, that Mr. Lyon may have subjectively believed that there was no point in his pursuing administrative remedies: We made it clear in Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.2000), cert. denied, 531 U.S. 1156, 121 S.Ct. 1106, 148 L.Ed.2d 977 (2001), that §> 1997e(

a) does not permit the court to consider an inmate’s merely subjective beliefs, logical or otherwise, in determining whether administrative procedures are “available.” III. For the reasons indicated, we believe that Mr. Lyon must first have exhausted his administrative remedies pursuant to the grievance procedure of the prison before his civil rights complaint could proceed. He did not do so. We therefore reverse the judgment of the district court and remand the case with directions to dismiss the complaint.