                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4404
                        ___________________________

                                 Arthur Lee English

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

   Jim Payne, Security Director; Shawn Howard; Robert Riddle; Tiffany Vrba;
                      Michael James Agema; David Smith

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                           Submitted: November 8, 2017
                              Filed: April 30, 2018
                                  [Unpublished]
                                 ____________

Before SHEPHERD, MURPHY, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

      In this 42 U.S.C. § 1983 action, Iowa inmate Arthur English alleges that
various Iowa Department of Corrections officials (IDOC defendants) failed to protect
him from Michael Agema, another inmate who was a known sexual predator; failed
to provide him adequate medical care; discriminated and retaliated against him; and
conspired with each other and Agema to violate his civil rights. The district court
dismissed the claims against Agema for failure to state a claim, and granted summary
judgment in favor of the IDOC defendants based on English’s failure to exhaust
administrative remedies. We agree with the district court that English failed to state
any viable claims against Agema. See Kelly v. City of Omaha, Neb., 813 F.3d 1070,
1075 (8th Cir. 2016).

       Upon de novo review, however, we conclude that summary judgment was
improperly granted on English’s claims against the IDOC defendants because those
defendants did not establish that he failed to exhaust “such administrative remedies
as [were] available” to him. See 42 U.S.C. § 1997e(a); Porter v. Sturm, 781 F.3d 448,
451 (8th Cir. 2015) (“Nonexhaustion is an affirmative defense, and defendants have
the burden of raising and proving the absence of exhaustion.”); Foulk v. Charrier, 262
F.3d 687, 697–98 (8th Cir. 2001) (defendants’ burden includes showing that remedies
were available). With their summary judgment motion, the IDOC defendants
submitted a copy of the IDOC grievance policy and a certified record of English’s
grievance history. As relevant, English’s grievance record shows that, in the weeks
leading up to his filing of this lawsuit, he submitted grievances relating to “Staff
Behavior/Action,” “Medical-Care,” “Legal,” and “Privileges”; and that those
grievances were “Not Processed.” Under the IDOC grievance policy, “Not
Processed” is a designation for grievances that include insufficient information, are
incomplete, or for which the inmate did not attempt informal resolution. The policy
does not allow administrative appeals from a “Not Processed” designation; instead,
it directs the inmate to complete and resubmit the grievance.

       In response to the summary judgment motion, English submitted an affidavit
in which he attested that he had “repeatedly filed grievances addressing all of these
issues” and that those grievances had been “not-addressed, denied or determined to
be non-grievable.” The record does not include English’s grievances, and there is no
other evidence showing they contained insufficient information, were incomplete, or

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were submitted before he attempted informal resolution. Viewing English’s averment
in the light most favorable to him and given the absence of the grievances from the
record, we conclude that the IDOC defendants have not established that the grievance
policy was “available” to English to the extent his grievances were designated as “Not
Processed.” See Porter, 781 F.3d at 451; Foulk, 262 F.3d at 697–98 (inmate may
have exhausted remedies when prison officials failed to respond to his informal
resolution request). Moreover, the IDOC defendants have not shown that the IDOC
grievance policy was available to English for a second reason specific to his failure-
to-protect claim: by its own terms, the policy excludes allegations of inmate-on-
inmate sexual abuse from its scope. See Ross v. Blake, 136 S. Ct. 1850, 1860–62
(2016) (a grievance policy may not be “available” to the extent an entire category of
claims is excluded from its scope).

      Accordingly, the judgment is affirmed as to the dismissal of English’s claims
against Agema, and reversed as to the grant of summary judgment on his claims
against the IDOC defendants. The case is remanded to the district court for further
proceedings.

SHEPHERD, Circuit Judge, concurring in part and dissenting in part.

      I agree that English failed to state a claim against Agema. I also agree that the
IDOC defendants did not show that the IDOC grievance policy was available to
English for his failure-to-protect claim.

       I disagree, however, with the conclusion that the IDOC defendants failed to
meet their burden of showing that administrative remedies were available to English
for his other claims. It was undisputed that English “repeatedly filed grievances
addressing all of these issues.” It was also undisputed that all of his grievances were
administratively addressed in some manner, that some were deemed incomplete, that
the IDOC policy provided that he could have “completed properly and resubmitted”

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the grievances deemed incomplete, and that he did not attempt to resubmit the
grievances deemed incomplete. Under these circumstances, I would conclude that
English did not make a sufficient showing that the IDOC defendants prevented him
from exhausting his administrative remedies. See Hammett v. Cofield, 681 F.3d 945,
948 (8th Cir. 2012) (per curiam) (in case where it was conceded that two of plaintiff’s
claims were not fully exhausted, and he appeared to argue on appeal that
administrative remedies were not available to him, plaintiff did not make sufficient
showing that prison officials prevented him from exhausting his administrative
remedies); cf. Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (affirming grant
of summary judgment based on failure to exhaust administrative remedies; noting that
plaintiffs “presented no evidence that any prison official thwarted an attempt to
initiate the procedures or that any official made it impossible for them to file
grievances”).

       Accordingly, I would affirm the district court’s grant of summary judgment as
to all of English’s claims against the IDOC defendants, except for his failure-to-
protect claim.
                       ______________________________




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