                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-3481
                        ___________________________

                             Sergio Andrade Martinez

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

 Officer Fields; Randall Denzer, the Jail Administrator of the Washington County
                                 Detention Center

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                         Submitted: September 16, 2015
                            Filed: October 8, 2015
                                 [Unpublished]
                                ____________

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

PER CURIAM.

      Arkansas inmate Sergio Andrade Martinez appeals following the district
court’s adverse grant of summary judgment in his 42 U.S.C. § 1983 action. As
relevant, Martinez sought damages against Washington County Detention Center
(WCDC) correctional officer Chris Fields; claiming excessive force, he alleged that
in an April 3, 2012 incident, Fields slammed him against a wall, breaking his
shoulder, because he pushed a call button several times, although he did not know his
actions were disobedient due to a language barrier. Fields contended that Martinez
had not exhausted his administrative remedies as required by the Prison Litigation
Reform Act (PLRA), offering evidence indicating that Martinez had not filed a
grievance concerning the encounter; and also that Martinez could not prevail on the
merits, offering a two-part DVD recording of the April 3 encounter. After a hearing
was held before a magistrate judge to allow Martinez to resist summary judgment, the
district court found that Martinez’s failure to exhaust was unexcused; and that, based
on the video evidence, there was no jury issue on the excessive-force claim. On
appeal, Martinez challenges the determination on exhaustion, as well as the
alternative determination on the merits. We reverse and remand for further
proceedings on the excessive-force claim against Fields in his individual capacity.

       We conclude that Fields did not meet his burden of showing that Martinez’s
failure to exhaust administrative remedies was unexcused. See Porter v. Sturm, 781
F.3d 448, 451 (8th Cir. 2015) (defendants have burden of raising nonexhaustion as
affirmative defense and proving nonexhaustion); King v. Iowa Dep’t of Corr., 598
F.3d 1051, 1052 (8th Cir. 2010) (reviewing de novo district court’s interpretation of
PLRA’s exhaustion requirement); cf. Johnson v. Bi-State Justice Ctr., 12 F.3d 133,
135-36 (8th Cir. 1993) (when evidentiary hearing is held to determine whether pro
se inmate’s nonfrivolous § 1983 damage claims warrant jury trial, and only
inmate/plaintiff presents evidence, inmate’s evidence should be believed, all
justifiable inferences should be drawn in his favor, and credibility determinations
should be avoided). Martinez testified at the hearing through an interpreter that he
does not speak or understand English; there were no WCDC rules in Spanish despite
the large Hispanic population; at times he did not have access to writing materials
after the April 3 encounter; and others told him about the grievance process when it
was too late to file a grievance about the incident. Fields offered nothing countering
Martinez’s testimony, but later offered as evidence many forms Martinez had

                                         -2-
submitted after the incident, which were multi-purpose forms allowing inmates to
check a box to indicate whether it was a grievance, request, medical matter, or
disciplinary appeal. There was no evidence showing that the form was available in
Spanish, and the first such form Martinez submitted on which the grievance box was
checked was dated in September 2012. While the record before the district court
showed that Martinez had access to a writing instrument and that by May he had
someone who understood English to help him complete the forms for requests and
medical issues, it did not necessarily show he understood that he could use the same
form to submit a grievance complaining about the April 3 encounter with Fields. See
42 U.S.C. § 1997e(a) (inmate must exhaust all “available” remedies before bringing
§ 1983 suit); Porter, 781 F.3d at 452 (remedy prison officials prevent inmate from
using is not available remedy); cf. Mendez v. Sullivan, 488 Fed. Appx. 566, 568 (3d
Cir. 2012) (unpublished per curiam) (on question whether language barrier made
grievance process unavailable, defendants showed that prison handbook is available
in Spanish and distributed upon request to all Spanish-speaking inmates; and that
prison has at least one inmate fluent in both languages who is trusted to interpret and
translate for Spanish-speaking inmates, and if no inmate is available, prison arranges
for interpreter).

       As to the merits, our view of what is depicted on the two-part video differs
from that of the district court. See Murchison v. Rogers, 779 F.3d 882, 886-87 (8th
Cir. 2015) (reviewing de novo grant of summary judgment, viewing evidence in light
most favorable to non-movant, and giving non-movant benefit of all reasonable
inferences); Johnson, 12 F.3d at 135-36 (evidentiary hearing standard); see also
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2471-73 (2015) (pretrial detainee must
demonstrate only that force knowingly or purposely used against him was objectively
unreasonable). Among other things, while the district court found that Martinez
precipitated the confrontation by resisting his removal from the cell block into the
hallway, we question whether Martinez’s actions could be described as resistance, as
the events occurred quickly after Fields first grabbed Martinez’s arm. Further, the

                                         -3-
video clip of what happened in the hallway outside the cell block does not appear to
show Martinez resisting. See Edwards v. Byrd, 750 F.3d 728, 732 (8th Cir. 2014) (in
excessive-force claim brought by pretrial detainee, focus is on whether defendant’s
purpose in using force was to injure, punish, or discipline). Moreover, Martinez
testified that he did not understand that officers were telling him the call button was
to be used only for medical emergencies, and there were no signs in Spanish near the
button. As noted, Fields did not dispute the evidence that Martinez did not speak or
understand English; and he offered no evidence as to whether he knew Martinez
understood his orders, or why he saw the need to use physical force to remove
Martinez from the cell block, as opposed to using a lower level of intervention for an
uncooperative detainee as outlined in WCDC’s use-of-force policy. Finally, the
hearing evidence indicated that Martinez suffered a fractured clavicle, sprains, and
a contusion. Cf. Jackson v. Buckman, 756 F.3d 1060, 1067-68 (8th Cir. 2014) (use
of force does not amount to punishment in constitutional sense if it is incident of
some other legitimate government purpose; act of hitting pretrial detainee’s nose was
de minimus use of force not actionable under Due Process Clause, in part because
detainee conceded it did not cause any objectively verifiable injury). We thus find
that there is a jury issue on whether Fields used excessive force during his April 3
encounter with Martinez.

      The judgment is reversed, and the case is remanded for further proceedings
consistent with this opinion.
                       ______________________________




                                         -4-
