                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-1053
                                  ___________

James Miller,                            *
                                         *
             Appellant,                  *
                                         *
      v.                                 *
                                         *
Larry Norris, Director, Arkansas         *
Department of Correction; Marvin         * Appeal from the United States
Evans, Warden, Brickeys Unit,            * District Court for the Eastern
Arkansas Department of Correction;       * District of Arkansas.
M. Williams, Shift Captain, Brickeys     *
Unit, Arkansas Department of             *
Correction; Billy Taylor, Lt., Brickeys *
Unit, Arkansas Department of             *
Correction; Shernell Wade, Guard,        *
Brickeys Unit, Arkansas Department       *
of Correction; Lanell Jefferson, Guard, *
Brickeys Unit, Arkansas Department       *
of Correction,                           *
                                         *
             Appellees.                  *
                                    ___________

                            Submitted: January 8, 2001

                                Filed: April 12, 2001
                                 ___________
Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and ALSOP,
      District Judge.1
                          ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       In January, 1996, while James Miller was incarcerated in the Arkansas
Department of Correction (ADC), he was stabbed by another inmate. He thereafter
completed his state prison term and was incarcerated in federal prison for another
crime. While in federal prison, Mr. Miller, acting pro se, filed a civil rights action, see
42 U.S.C. § 1983, against six ADC employees alleging, inter alia, that at the time of
the stabbing they violated his constitutional rights by being deliberately indifferent to
his safety. See Farmer v. Brennan, 511 U.S. 825, 828 (1994).

       Upon the defendants' motion, the magistrate judge, sitting by consent of the
parties, see 28 U.S.C.§ 636(c)(1), see also Fed. R. Civ. P. 73(a), dismissed the original
action without prejudice based on Mr. Miller's failure to exhaust his administrative
remedies as required by the Prison Litigation Reform Act of 1995 (PLRA), see
42 U.S.C. § 1997e(a). Mr. Miller did not appeal the dismissal.

        Approximately two months later, Mr. Miller filed in the same civil action a
motion to compel the ADC to provide him with grievance forms. In that motion, he
alleged that in response to the dismissal of his § 1983 action, he had written to the
ADC requesting administrative forms for filing a grievance but that the ADC did not
respond, and that his mother had also attempted without success to obtain the forms for
him. About two weeks after filing the motion to compel, Mr. Miller, still acting pro se,
filed in the same proceeding a document titled "Motion to Reinstate Cause," arguing
that by failing to respond to the requests for grievance forms, the ADC prevented him


      1
      The Honorable Donald D. Alsop, United States District Judge for the District
of Minnesota, sitting by designation.

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from exhausting his administrative remedies. As exhibits to the motion, he attached a
letter to the ADC and a signed return receipt for certified mail.

       Mr. Miller contended in his motion that under the circumstances the court should
not require exhaustion and should "reinstate" his § 1983 action. The magistrate judge
entered an order denying the motion to reinstate, and Mr. Miller appeals that order.
We vacate the order and remand to the district court for further proceedings.

                                             I.
       We address, first, the nature of Mr. Miller's "Motion to Reinstate Cause." We
note that the federal rules do not provide specifically for such a motion, and that the
text of Mr. Miller's motion does not cite any procedural rule. By filing this motion
Mr. Miller sought to pursue his § 1983 action again, this time based on allegations that
after the first dismissal the ADC prevented him from exhausting his remedies. By
moving to reinstate, Mr. Miller may have mistakenly treated the dismissed action as if
it were stayed, since prisoners' § 1983 actions were stayed pending exhaustion prior to
passage of the PLRA. See Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998). We
do not believe, however, that such a mistake is fatal. We construe his pro se "Motion
to Reinstate Cause" liberally in favor of Mr. Miller, see Haines v. Kerner, 404 U.S.
519, 520-21 (1972) (per curiam), and we conclude that the motion should have been
treated as initiating a new civil action on the date that it was filed.

      We note that Arkansas's three-year personal injury statute of limitations, see Ark.
Code Ann. § 16-56-105(3), applies to this § 1983 action filed in Arkansas, see
Ketchum v. City of West Memphis, Arkansas, 974 F.2d 81, 82 (8th Cir. 1992), and that
Mr. Miller's motion to reinstate was filed more than three years after he was stabbed.
The question arises, then, whether Mr. Miller's action is time-barred.

      We conclude that it is not. Arkansas has a so-called saving statute, which
provides that "[i]f any action is commenced within the time ... prescribed ... and the

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plaintiff therein suffers a nonsuit ... the plaintiff may commence a new action within
(1) one year after the nonsuit," see Ark. Code Ann. § 16-56-126. The saving statute,
along with Arkansas Supreme Court interpretations of that statute, is considered when
determining whether a plaintiff's § 1983 action is time-barred. See Whittle v. Wiseman,
683 F.2d 1128, 1129 (8th Cir. 1982). Because a plaintiff in a state action that is
governed by the three-year time limitation in Ark. Code Ann. § 16-56-105(3) may
claim the benefits provided by the saving statute, see Carton v. Missouri Pacific
Railroad Co., 295 Ark. 126, 128-29, 747 S.W.2d 93, 94 (1988), a plaintiff in a § 1983
action, which is governed by the same statute of limitations, also may do so. See
Whittle, 683 F.2d at 1129.

       Here Mr. Miller's original action was commenced within the time prescribed, and
"a dismissal of a complaint on defendant's motion" without prejudice, as occurred here,
"is the same as a nonsuit," Carton, 295 Ark. at 128, 747 S.W.2d at 94. Therefore
Mr. Miller had an additional year from the date that his action was dismissed to
commence a new action. Because he filed his motion to reinstate, which we have
construed as a new action, less than three months after the dismissal was entered, we
hold that his new action is not time-barred.

                                            II.
        On appeal, Mr. Miller argues for the first time that the PLRA's exhaustion
requirement does not apply to him because since leaving the ADC he has not been a
"prisoner" as that term is used in 42 U.S.C. § 1997e(a). We agree with the defendants
that this argument comes too late. Although Mr. Miller left the ADC for federal prison
before he filed the original action, he neither contested the defendants' motion to
dismiss nor appealed the district court's dismissal for failure to exhaust administrative
remedies. Even if we construed Mr. Miller's motion to reinstate as a post-judgment
motion under Fed. R. Civ. P. 60(b), moreover, the motion could not substitute for a
timely appeal. See Arnold v. Wood, 238 F.3d 992, 998 (8th Cir. 2001).


                                          -4-
       Although the dismissal was without prejudice, "an issue actually decided in a
non-merits dismissal is given preclusive effect in a subsequent action between the same
parties," Pohlmann v. Bil-Jax, Inc., 176 F.3d 1110, 1112 (8th Cir. 1999) (emphasis in
original). Here the court decided in the first action that Mr. Miller was bound by
§ 1997e(a); we believe that he is now precluded from arguing to the contrary.

       We also conclude, however, that Mr. Miller alleged facts in his motion that may
establish compliance with the statutory exhaustion requirement. The statute provides
that "[n]o action shall be brought with respect to prison conditions under section 1983
... by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted," see § 1997e(a). This provision
does not require exhaustion of all remedies; it requires the exhaustion of "such
administrative remedies as are available." Although the PLRA does not provide a
definition, the plain meaning of the term "available" is "capable of use for the
accomplishment of a purpose: immediately utilizable ... accessible," see Webster's
Third New International Dictionary 150 (1986).

       We believe that a remedy that prison officials prevent a prisoner from
"utiliz[ing]" is not an "available" remedy under § 1997e(a), and that Mr. Miller's
allegations raise an inference that he was prevented from utilizing the prison's
administrative remedies. See Johnson v. Garraghty, 57 F. Supp. 2d 321, 329 (E.D.
Va. 1999) (dispute as to whether prisoner plaintiff was prevented from exhausting
remedies required evidentiary hearing to determine whether remedies were "available");
cf. Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (per curiam), cert. denied,
526 U.S. 1133 (1999) (citing with approval pre-PLRA decision commenting that
administrative remedy was inadequate where prison officials ignored or interfered with
the prisoner's attempts to exhaust remedies).

     While we do not resolve at this time the question of whether Mr. Miller, in fact,
complied with § 1997e(a), we conclude that the allegations in his motion to reinstate

                                          -5-
were sufficient to raise an inference that he had exhausted his "available" remedies.
We therefore believe that this matter should be remanded to the district court to open
a separate civil action nunc pro tunc as of the date that Mr. Miller's "Motion to
Reinstate Cause" was filed.

                                          III.
       Accordingly, we vacate the district court's order denying Mr. Miller's motion to
reinstate, we remand this matter to the district court, and we direct the district court to
open a separate civil action nunc pro tunc as of October 25, 1999 (the date that
Mr. Miller's "Motion to Reinstate Cause" was filed); to treat Mr. Miller's "Motion to
Reinstate Cause" as the initial complaint in the new action; to treat the original service
of the motion to reinstate upon the defendants' attorney in 1999 as service of the
complaint in the new action; and for further proceedings consistent with this opinion.
We also suggest that because of the decisions that we have made in this opinion
regarding pleadings and procedure, the district court may wish to order Mr. Miller to
file an amended complaint in the new action.

      A true copy.

             Attest:

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




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