                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-4142
                                  ___________

Chester William Sergent,              *
                                      *
            Appellant,                *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Larry Norris, Director, Arkansas      * Eastern District of Arkansas.
Department of Correction; John Doe, *
Arkansas Department of Correction     * [PUBLISHED]
Policy Maker 250; Gaylon Lay,         *
Warden, Delta Regional Unit, ADC;     *
Ray Hobbs, Deputy Director, Arkansas, *
Department of Correction,             *
                                      *
            Appellees.                *
                                 ___________

                         Submitted: April 23, 2003
                             Filed: May 16, 2003
                                  ___________

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

PER CURIAM.

       In February 2002 Arkansas inmate Chester Sergent filed a 42 U.S.C. § 1983
complaint against Arkansas Department of Correction (ADC) officials alleging, inter
alia, that he had been involuntarily exposed to secondary smoke from inmates
smoking tobacco in the Delta Regional Unit, where he was housed; he provided proof
of exhaustion as to the claim. In September 2002 Sergent moved for injunctive relief,
claiming he was exposed to tobacco smoke in the North Central Unit, where he was
then housed, in violation of ADC’s tobacco-free policy. Sergent was directed to
provide proof of exhaustion of his new claim within thirty days, and he submitted his
August 12, 2002 grievance regarding tobacco smoke in the North Central Unit. On
November 15 the district court1 determined that Sergent had produced only partial
evidence of exhaustion of his claim--the August 12 grievance--and had not submitted
the Warden’s response or the final disposition from the Assistant Director. The court
thus dismissed the case without prejudice for failure to exhaust administrative
remedies as required under 42 U.S.C. § 1997e(a).

      Sergent submits on appeal the August 15 Warden’s response; his August 17
appeal; September 27 and November 25 grievance-extension requests, both of which
he refused to grant; and the December 4 Assistant Director’s decision denying his
grievance. He argues that the resolution of his grievance was untimely under ADC
grievance procedure.

      Under ADC grievance procedure, an inmate must file a grievance, with a
grievance officer or the Warden’s designee, within fifteen days after the “grievance
occurrence.” The Warden’s written response must be provided within twenty
“working days” of receipt of the inmate’s grievance in non-emergency situations.
The inmate may appeal the Warden’s response, within ten working days, to the
Assistant Director. The Assistant Director must respond to the appeal in writing
within twenty working days. When a longer period of time is required for response
or resolution, the inmate must be notified, on a Grievance Extension Form, of the
reason for the delay and its expected length; time limits for responding may be
extended only with the written agreement of the inmate. The entire grievance process


      1
       The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
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must be completed within sixty-five working days unless a valid extension has been
agreed to, or it can be documented that unforeseen circumstances have occurred--such
as the respondent’s absence or illness, the loss of documents in the mail, or other
causes outside the parties’ control. See Ark. Dep’t of Corr. Admin. Directive 97-08
(July 3, 1997).

       Prison officials’ failure to timely respond to a grievance could be a basis for a
prisoner to show that he exhausted “available” administrative remedies. See Foulk
v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (district court lacked sufficient factual
basis to find inmate failed to exhaust administrative remedies when prison officials
had refused to respond to informal resolution request); Miller v. Norris, 247 F.3d 736,
740 (8th Cir. 2001) (remedy that prison officials prevent inmate from using is not
“available” remedy under § 1997e(a); inmate’s allegations that prison failed to
respond to his requests for grievance forms were sufficient to raise inference that he
had exhausted “available” remedies).

       Significantly, however, we find no evidence in the record before us that
Sergent asserted below, to the district court, that he was being prevented from
effectively utilizing grievance procedures. At the time his case was dismissed,
Sergent had received the Warden’s response, had appealed to the Assistant Director,
and had received and refused one grievance-extension request. He did not submit this
material to the district court, and we see no other indication in the record that Sergent
made reference below to an untimely grievance process. Thus, on the record that was
before the district court at the time that it ruled, we conclude that the court properly
dismissed the case without prejudice for failure to exhaust. Cf. McAlphin v. Morgan,
216 F.3d 680, 682 (8th Cir. 2000) (per curiam) (upholding dismissal for failure to
exhaust because inmate did not allege exhaustion in his complaint or attach evidence
of exhaustion, and thus did not satisfy burden of showing exhaustion).

      Accordingly, we affirm.

                                           -3-
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

       I respectfully dissent because the record shows that Mr. Sergent had exhausted
his administrative remedies before the district court dismissed his complaint. While
Mr. Sergent did not specifically call the magistrate judge's attention to the
untimeliness of the prison officials' response, he did indicate the date on which he
filed his grievance, and it is up to the district court to apply the law to the facts. I
cannot emphasize enough that prison grievance procedures are law: They are state-
made rules and no one, including a prisoner, is required to plead law. Law is for
courts to find and apply. Under the law in this case, the time for a response from
prison officials had passed, and so Mr. Sergent had fully exhausted the grievance
procedure. The prison officials offered no evidence that there were unforeseen
circumstances that would have extended the period.

       My point is not that Mr. Sergent has been prevented from using the grievance
procedure, so Miller v. Norris, 247 F.3d 736 (8th Cir. 2001), is beside the point. My
point is the opposite: Mr. Sergent used the procedure and exhausted it.

       I would therefore reverse the judgment of the district court and remand the case
for further proceedings.

      A true copy.

             Attest:

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




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