                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-1013
                                    ___________

Jimmy G. Nixon, Sr.,                  *
                                      *
             Appellant,               *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Eastern District of Arkansas.
Linda Sanders, Warden FCI - Forrest   *
City; Rebecca Lewis, Chaplain, FCI - *
Forrest City; Howard Collier,         * [UNPUBLISHED]
Chaplain, FCI - Forrest City,         *
                                      *
             Appellees.               *
                                 ___________

                              Submitted: August 7, 2007
                                 Filed: August 17, 2007
                                  ___________

Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

      Federal inmate Jimmy G. Nixon, Sr., appeals the district court’s order
dismissing, for failure to exhaust administrative remedies, his action filed pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). We reverse and remand.

      After Nixon filed this action complaining of religious harassment, defendants
sought dismissal or summary judgment based on Nixon’s failure to exhaust his
administrative remedies. In support, defendants submitted prison records and an
attorney’s declaration. Nixon responded, and the magistrate judge recommended
dismissal of the complaint, finding that it was clear from defendants’ papers, and
Nixon’s lack of proof to the contrary, that Nixon had not fully exhausted his
administrative remedies. Nixon did not file objections, and the district court adopted
the magistrate judge’s report and dismissed Nixon’s complaint without prejudice for
failure to exhaust. This appeal followed.

       We review the district court’s findings of fact for clear error and its conclusions
of law de novo, see Kozohorsky v. Harmon, 332 F.3d 1141, 1143 (8th Cir. 2003), but
because Nixon did not object to the magistrate judge’s report, any error is not
reversible unless it is plain error, cf. Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir.
1994) (reviewing magistrate judge’s findings of fact for plain error where habeas
petitioner failed to file objections to report and recommendation).

       Under 42 U.S.C. § 1997e(a), a prisoner must exhaust all available
administrative remedies before a civil action can be brought with respect to prison
conditions. See Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) (per curiam);
Porter v. Nussle, 534 U.S. 516, 524 (2002) (federal inmates suing under Bivens must
first exhaust administrative remedies). Administrative exhaustion is an affirmative
defense that defendants have the burden to plead and prove. See Jones v. Bock, 127
S. Ct. 910, 919-22 (2007).

      We conclude that Nixon raised a factual dispute as to whether he was denied
the necessary forms to grieve the religious harassment that was the subject of his
Bivens action. In various submissions,1 Nixon complained to prison officials that staff
members were ignoring his BP-8½ grievance forms--the initial step in the grievance

      1
       These included Nixon’s September 14, 2004 letter to the warden and October
13, 2004 letter (recipient unnoted); “inmate request” forms; a sworn statement; and
additional letters to the warden and others.

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process--and were refusing to provide him with BP-9, -10, and -11 forms which are
needed to proceed through the Bureau of Prisons’ administrative-remedy process. See
28 C.F.R. § 542.10-.18; Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (prisoner’s
allegations that prison officials denied his requests for grievance forms could raise
inference that he was prevented from utilizing prison’s administrative remedies;
remedy that prison officials prevent prisoner from utilizing is not “available” under
§ 1997e(a)).

       We further find that the error was plain, and in the interest of the fairness,
integrity, and public reputation of judicial proceedings, we exercise our discretion to
order correction of the error. See Allen v. Entergy Corp., Inc., 193 F.3d 1010, 1014
(8th Cir. 1999) (discussing plain error). Therefore, we remand for a determination
whether--in light of Nixon’s allegations that the prison withheld grievance forms--the
grievance procedure in this case was “available” within the meaning of section
1997e(a) to administratively exhaust Nixon’s religious-harassment claim. See Miller,
247 F.3d at 740.

       Accordingly, we vacate the judgment and we remand this matter to the district
court for further proceedings consistent with this opinion.
                        ______________________________




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