           United States Court of Appeals
                      For the Eighth Circuit
                  ___________________________

                          No. 13-2729
                  ___________________________

                              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
                                    ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                          Submitted: December 10, 2014
                             Filed: March 23, 2015
                                 ____________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                       ____________

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 them summary judgment after dismissing Porter’s claim for 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


                                          -2-
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 as soon 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 was found “Not Guilty” with a recommendation to dismiss and expunge

                                         -3-
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.1 Porter was not released from segregation until he served
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


      1
        The November 2010 appeal should have been resolved within 100 days, but
Porter’s officer never filed the appeal. See id. at III.M.6 (“An appeal response should
be provided as soon 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).

                                          -4-
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.


                                         -5-
       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

                                         -6-
remedies not “available” where prison officials failed 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’ non-
compliance 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 from effectively 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).




                                         -7-
        This court need not review Porter’s case on the merits or opine on the summary
judgment.2 See Jones, 549 U.S. at 211 (“There is no question that exhaustion is
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.
                           ______________________________




      2
       After oral arguments on appeal, Porter filed a pro se motion for preliminary
injunction and temporary restraining order. In light of this opinion, his motion is
denied.

                                         -8-
