                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3283
                                   ___________

EVERETT R. LYON,                  *
                                  *
         Plaintiff-Appellee,      *
                                  *
     v.                           * Appeal from the United States
                                  * District Court for the
DEL VANDE KROL; PAUL              * Southern District of Iowa.
HEDGEPETH; JAMES HELLING;         *
RABBI JACOBSON,                   *
                                  *
         Defendants-Appellants.   *
                             ___________

                             Submitted: May 16, 2001
                                Filed: November 2, 2001
                                 ___________

Before MORRIS SHEPPARD ARNOLD, BRIGHT and BYE, Circuit Judges.
                         ___________

BRIGHT, Circuit Judge.

       Everett R. Lyon ("Lyon"), an inmate at the Iowa State Penitentiary ("ISP"),
brought a civil rights action against ISP officials claiming his constitutional rights
were violated because his right to practice the Jewish religion was limited. After
preliminary matters relating to the constitutionality of 28 U.S.C. § 1915(g) were
resolved, the matter was remanded for trial. A jury entered a verdict against the ISP
officials, awarding Lyon nominal damages, punitive damages and injunctive relief.
The ISP officials appeal. We remand for further proceedings for reasons stated in this
opinion.

I.    BACKGROUND

       Lyon is an inmate at the ISP. Vande Krol is the ISP chaplain. Rabbi Jacobson
previously served as the ISP's on-site Jewish consultant and presently serves as an
unpaid consultant. In late 1995 and early 1996, Chaplain Vande Krol observed that
a large number of inmates who professed to be Jewish were abusing the special food
privileges they were given for the Jewish holidays. Vande Krol notified Rabbi
Jacobson of the problem and sent him a draft of a memo excluding all but four
inmates from the ISP Jewish community.

       On February 13, 1996, a memo bearing Rabbi Jacobson's signature was sent
to the ISP Jewish community limiting the inmates who would be allowed to
participate in Jewish activities. The memo identified two criteria whereby inmates
could be considered "sincerely Jewish": (1) show proof of their prior
participation/background of Judaism to the Jewish consultant; or (2) fall under a
grandfather clause to include those inmates who have been continuously and
consistently in attendance of Jewish Sabbath services for the three previous years and
have shown a sincere, committed sense of belief in the Judaic faith. The memo
identified four inmates who would be allowed to participate in the ISP Jewish life.
Lyon was not included in the list.

        On March 14, 1996, Vande Krol sent a memo to inmates on the Jewish chapel
list at the ISP. The memo explained that Vande Krol received a letter from Rabbi
Jacobson and that only four inmates would be allowed to participate fully in the ISP's
Jewish life. For others who wished to participate, Vande Krol directed the inmate to
"verify his Jewish background to the satisfaction of the Jewish consultant." Those
who wished to convert to Judaism were instructed to complete a two-year course of

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study under the direction of the Jewish consultant. There is no evidence that the two-
year study course was ever made available to the ISP inmates.

       On March 18, 1996, Lyon sent an inmate memo to Vande Krol explaining that
he had been a member of the Jewish community for the three years necessary to be
included on the list of inmates allowed to participate in Jewish activities. Lyon went
on to request kosher food for celebrating Passover. Vande Krol responded by telling
Lyon that,

      the Jewish rabbi has made this recommendation to ISP due to the abuses
      that were taking place. I do not control the Jewish community, but see
      to it that recommendations made by consultants to ISP are administered.
      (While I had no input into the choice of the four, I understand it took
      into account Jewish background, etc.)

App. at 101.

       On May 30, 1996, Lyon sent another inmate memo, in his words, "attempting
an informal resolution of a grievance." Again Lyon asserted the right to practice his
Jewish faith. Deputy Warden Paul Hedgepeth’s response read: "You are permitted
to attend the Jewish service. The experts suggest STUDY, attend service but do not
participate, & the kosher food issue is not relevant. The experts also say no one
should be converted to Judism [sic] while in prison." App. at 102 (emphasis in
original).

      Lyon maintains that he regularly attended Jewish services from 1992 to March
1996 (when the ISP authorities excluded him from religious services) and that after
March 1996 the ISP violated his First Amendment right to freedom of religion by
prohibiting his participation in the ISP Jewish life.




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       The district court denied the ISP officials' motion to dismiss, denied the ISP
officials' motion for summary judgment, and tried the case to a jury; the jury entered
a verdict against the ISP officials, awarding Lyon nominal damages, punitive
damages, and injunctive relief. The district court denied the ISP officials' motion for
judgment as a matter of law and their motion for a new trial. The district court upheld
the jury's nominal damages award, reversed the jury's punitive damages award against
the former and present ISP wardens, and reduced the punitive damages award against
Vande Krol from $100,000 to $30,000. Lyon obtained one dollar in nominal damages
against Vande Krol, Helling, and Hedgepeth, and, as previously mentioned, $30,000
punitive damages against Vande Krol. The district court also granted injunctive relief
directing ISP officials to allow Lyon access to Jewish artifacts, services, and kosher
food. The ISP officials appeal.

II.   DISCUSSION

       The district court had jurisdiction under 28 U.S.C. § 1343. We have
jurisdiction under 28 U.S.C. § 1291. The defendants' notice of appeal was timely
filed.

      We review the district court's findings of fact under the clearly erroneous
standard and its conclusions of law de novo. Camberos v. Branstad, 73 F.3d 174, 176
(8th Cir. 1995) (citing Paramount Pictures Corp. v. Metro Program Network, Inc., 962
F.2d 775, 777 (8th Cir. 1992)).

      Under the Prison Litigation Reform Act, "[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).




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       The district court recognized that the courts considering the Prison Litigation
Reform Act's exhaustion requirements have reached different conclusions. The
district court weighed the conflicting case law and determined that § 1997e(a)'s
exhaustion requirements were excusable. The court first explained that, as it had
ruled in other cases, § 1997e(a) is not jurisdictional and exhaustion under this section
can be excused if a viable remedy is unavailable.

       After concluding that Lyon did not exhaust his administrative remedies at ISP,
the district court chose to excuse his failure. The court stated that administrative
remedies were not available to Lyon and gave a number of justifications for this
conclusion, including: (1) dismissal would unduly prejudice Lyon's ability to file
another court action (because the ISP officials raised their exhaustion claim late in the
game and because the statute of limitations was running); (2) the court had already
invested a significant amount of time and energy in the case; (3) the inability of other
inmates to convince ISP officials to change their policy; and (4) Lyon's complaint
sought monetary relief, which was not provided for by the prison’s administrative
procedure.

      Upon review, it is clear that the district court's consideration of Lyon's request
for monetary relief is no longer appropriate under Booth v. Churner, 121 S. Ct. 1819,
1822-25 (2001). In Booth, the Supreme Court held that if a prison administrative
procedure has authority to take some action in response to an inmate's grievance, the
Prison Litigation Reform Act requires exhaustion even if the claim is solely for
monetary damages and monetary damages are not available in the administrative
proceeding. Booth makes it plain that exhaustion is required where prison
administrative remedies are available even if the available administrative remedies
do not provide the precise, or full, relief sought.

      The question of whether administrative remedies were available to Lyon in this
matter, however, is not an issue readily addressed by reference to Booth. In his initial

                                          -5-
brief and in supplemental briefing on the applicability of Booth to this case, Lyon
argues that Vande Krol's response to his March 18 memo led him to believe that the
decision to exclude him from the list of Jewish inmates was not a prison decision that
was grievable, but a decision of the Jewish consultant, for which Lyon had no
recourse. In effect, Vande Krol told him that no remedy was available through ISP
procedures because the decision was made by the Jewish rabbi and the matter was out
of Vande Krol’s hands.

      Lyon’s argument that his complaint was not grievable through ISP
administrative procedures is bolstered by Hedgepeth’s May 30 memo referring to the
suggestions and views of Jewish “experts” in response to Lyon’s effort to reach an
informal resolution of the grievance. Lyon maintains that no further administrative
proceedings were available to him after Vande Krol stated the decision was not his
and Hedgepeth also implied the decision-making authority on this issue lay with non-
ISP officials.

       If Lyon was prevented from exhausting his administrative remedies by ISP
officials who never responded to his complaints directly, then this case falls into the
line of recent Eighth Circuit cases where an inmate cannot be held to the § 1997e(a)
exhaustion requirement because there were no “available” proceedings. See Foulk
v. Charrier, No. 00-1132, 2001 WL 930556 (8th Cir. Aug. 17, 2001) (finding the
district court lacked sufficient factual basis to find Foulk failed to exhaust where
prison officials failed to respond to Foulk’s informal resolution request [the first of
three steps in the prison’s grievance process]); Miller v. Norris, 247 F.3d 736 (8th
Cir. 2001) (finding Miller was prevented from utilizing available remedies by prison
officials who failed to respond to requests for grievance forms).

       The exhaustion issue remains open. We cannot reach the merits or dismiss
until that issue is resolved. Thus, we remand to the district court for an evidentiary
hearing to determine whether Lyon was prevented from exhausting ISP administrative

                                         -6-
proceedings by ISP officials. See Miller, 247 F.3d at 740 (citing to Johnson v.
Garraghty, 57 F. Supp. 2d 321, 329 (E.D.Va. 1999) for the proposition that
determining whether a prisoner plaintiff was prevented from exhausting remedies
requires an evidentiary hearing to decide whether remedies were “available”). On
remand the district court will determine whether Lyon shall be held to or relieved of
the exhaustion requirement under § 1997e(a) and rule whether the judgment
previously entered in the case shall remain or whether the action shall be dismissed
without prejudice for failure to exhaust.

III.   CONCLUSION

       For the foregoing reasons, we retain jurisdiction but remand this matter to the
district court for further proceedings, on an expedited basis, consistent with this
opinion.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

       I believe that the judgment in this case should be reversed because Mr. Lyon
did not exhaust his administrative remedies. With respect, I can find no justification
for the court's view that such remedies were not available within the meaning of the
statute because Mr. Vande Krol somehow misled Mr. Lyon. If Mr. Vande Krol had
told Mr. Lyon that there was no grievance procedure, or had refused to furnish him
with available forms, we would have a different case. But here, taking Mr. Lyon's
allegations at face value, there was merely a denial of responsibility on
Mr. Vande Krol's part, not a statement that no grievance procedure was available to
determine whether that was true or to undo what "Jewish experts" had allegedly done.
Indeed, it is quite plain that there was such a procedure, that Mr. Lyon knew it, and
that he was not denied access to it. At most, Mr. Vande Krol's statement was a
prediction that Mr. Lyon would lose if he filed a grievance, but this does not mean
that a grievance procedure was not available to him. Mr. Lyon therefore cannot be

                                         -7-
relieved of the responsibility of pursuing that procedure or of the consequences of
failing to do so.

      I therefore respectfully dissent.

      A true copy.

            Attest:

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




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