*2 continuously inmates who have been those SHEPPARD Before MORRIS of Jewish consistently attendance and BYE, ARNOLD, Circuit and BRIGHT previous for the three services Sabbath Judges. sincere, a commit- years and shown have BRIGHT, Judge. Circuit faith. The in the ted sense of belief Judaic who would four inmates memo identified inmate (“Lyon”), an at R. Everett (“ISP”), ISP Jewish participate allowed Penitentiary be to State Iowa against ISP in the list. rights civil action not included brought life. rights claiming his constitutional officials Krol sent a On March practice to right because violated chapel list on the Jewish memo inmates limited. After religion was the Jewish explained The memo at ISP. the consti- relating to preliminary matters from Rabbi received a letter Vande Krol 1915(g) were re- tutionality of 28 U.S.C. would only four inmates and that Jacobson solved, for matter was trial. remanded fully in the ISP’s participate allowed against the ISP jury a verdict A entered others wished Jewish life. For who damages, officials, awarding nominal in- Krol directed participate, Vande relief. injunctive damages punitive background “verify mate to his Jewish remand for appeal. We the Jewish consultant.” satisfaction for stated in proceedings further reasons Judaism Those who wished convert opinion. this two-year complete were instructed I. BACKGROUND study under the course of direction evidence There is no Jewish consultant. at the ISP. Vande an inmate was ever two-year study that the course Rabbi Jacobson chaplain. Krol is to the ISP inmates. made on-site available previously served as the ISP’s Jew- 18,1996, On March Lyon sent an damages, inmate injunctive relief. The dis- memo to Vande Krol explaining he trict court denied the ISP officials’ motion had been a member of the Jewish commu- judgment as a matter of law and their *3 nity for years the three necessary be motion for a new trial. The district court included on the list inmates allowed to upheld jury’s the nominal damages award, in participate Jewish activities. reversed jury’s punitive damages request on to went kosher food for cele- against award present former and ISP brating Passover. responded Vande Krol wardens, and reduced the punitive dam- by telling Lyon that, ages against award Vande Krol from

the Jewish rabbi has $100,000 made this $30,000. recom- Lyon obtained one mendation to ISP due to the that abuses dollar in damages nominal against taking place. were I do not the Krol, control Helling, and, and Hedgepeth, pre- as Jewish community, but see to it that viously mentioned, $30,000 punitive dam- by recommendations made consultants ages against Vande Krol. The district (While to ISP are administered. I had granted court also injunctive relief direct- no input four, into the choice of the I ing ISP officials to allow access to understand it into took account Jewish artifacts, services, and kosher food. etc.) background, The appeal. App. at 101. II. DISCUSSION 30, 1996, May Lyon sent another memo, words, inmate “attempting his an The jurisdiction district court had under informal grievance.” resolution of a Again § 28 U.S.C. 1343. jurisdiction We have right asserted the practice § under 28 U.S.C. 1291. The defendants’ Deputy faith. Warden Paul Hed- notice of appeal timely was filed. gepeth’s response permit- read: “You are We review the district court’s find

ted attend the Jewish service. The ings of fact under the clearly erroneous experts STUDY, suggest attend service standard and its conclusions of law de but do not participate, & the kosher food Branstad, novo. Camberos v. 73 F.3d issue is not The experts relevant. also say (8th Cir.1995) 176 (citing Paramount Pic no one should be converted to Judism [sic] tures Program Network, v. Metro Corp. in prison.” while App. at (emphasis 102 Inc., (8th Cir.1992)). original). Act, Under the Prison Litigation Reform Lyon maintains that he regularly attend- “[n]o action shall brought be with respect ed Jewish services from 1992 to March prison (when conditions under section 1983 of the ISP authorities excluded title, any law, this or other services) by Federal religious him from and that after prisoner jail, confined in any prison, or March 1996 the ISP violated his First other facility correctional such right Amendment until admin- to freedom of religion istrative remedies as are by prohibiting available are ex- his participation in 1997e(a). hausted.” 42 § Jewish life. U.S.C.

The district court denied ISP offi- recognized district court dismiss, cials’ motion to denied the ISP courts considering the Litigation Prison officials’ motion summary judgment, Reform requirements Act’s exhaustion and tried the jury; to a jury case have reached different conclusions. The entered verdict officials, against district weighed court the conflicting case awarding Lyon damages, nominal punitive 1997e(a)’s law and determined that ex- readily however, matter, is not an issue excusable. requirements

haustion In his by reference to Booth. that, addressed as it had explained first The court briefing jur- supplemental cases, § not initial brief is in other ruled case, this of Booth to applicability this sec- on exhaustion under isdictional response Krol’s that Vande remedy Lyon argues if a viable can excused tion him to 18 memo led believe his March unavailable. him from the list of to exclude the decision did not ex- concluding After prison not a decision Jewish inmates ISP, at remedies his administrative haust but a decision grievable, that was his fail- court chose excuse the district *4 consultant, Lyon had no for which Jewish court stated administrative ure. The effect, told him Krol In Vande recourse. Lyon and to not available were remedies through ISP remedy that no was available for this justifications of a number gave made the decision was because procedures (1) would conclusion, dismissal including: was and the matter by the rabbi ability to file an- Lyon’s prejudice unduly Krol’s hands. out of Vande (because the offi- action other court late in was complaint claim that his Lyon’s argument their exhaustion cials raised limita- of administrative grievable through statute game and because not (2) the court had al- running); by Hedgepeth’s procedures tions is bolstered was of time significant amount ready referring suggestions invested to the May 30 memo (3) case; inability of response in the energy “experts” of and views convince ISP officials inmates to reso- other to reach an informal Lyon’s effort (4) Lyon’s com- policy; and change their maintains Lyon grievance. lution of the relief, monetary which was sought plaint proceedings that no further administrative by prison’s adminis- for provided not to him after Vande available procedure. Hedge- trative was not his stated the decision au- decision-making implied the peth also review, it is clear Upon lay with offi- thority on this issue non-ISP Lyon’s re consideration of district court’s cials. longer ap monetary relief is no quest for Churner, Booth v. 532 propriate under prevented from ex Lyon was If 1822-25, 149 121 S.Ct. U.S. by remedies hausting his administrative (2001). Booth, In the Su L.Ed.2d 958 responded who never prison if a adminis held that preme Court into directly, then this falls complaints case authority take has procedure trative Eighth cases the line of recent Circuit an inmate’s response some action be held to the where an inmate cannot Litigation Reform the Prison grievance, requirement be exhaustion claim even if the is requires Act exhaustion proceed were no “available” cause there damages and mone solely monetary for Charrier, F.3d 687 262 ings. See Foulk in the ad not available tary damages are Cir.2001) (8th (finding the district court makes it Booth proceeding. ministrative to find Foulk lacked sufficient factual basis required where that exhaustion is plain prison officials to exhaust where failed are avail prison administrative remedies reso to Foulk’s informal respond failed to if the available administrative able even steps request first of three [the lution precise, or provide the remedies do not Miller v. process]); prison’s grievance full, sought. relief Cir.2001) (find (8th Norris, 736 utilizing from ing prevented was Miller question The of whether administrative who by prison remedies officials in this available were available remedies failed to respond requests grievance for a denial responsibility on Mr. Vande forms). part, Krol’s not a statement that griev- no procedure ance was available to determine issue open. exhaustion remains We whether was true or to undo what cannot reach the merits or dismiss until experts” “Jewish had allegedly done. In- Thus, that issue is resolved. we remand to deed, it quite plain that there was such a evidentiary district court for an hear procedure, it, that Mr. Lyon knew and that ing to determine whether pre was he was not most, denied access to it. At vented exhausting from ISP administrative Mr. Krol’s predic- statement was a Miller, proceedings by ISP officials. See tion that Mr. would lose if he filed 247 F.3d at (citing to Johnson v. Gar grievance, but this does not mean that a (E.D.Va. raghty, 57 F.Supp.2d grievance procedure was not available to 1999) proposition that determining him. Mr. therefore cannot be re- prisoner plaintiff whether a prevented lieved of the responsibility of pursuing that from exhausting remedies requires an evi- procedure or consequences of failing dentiary hearing to decide whether reme *5 to do so. “available”). dies were remand the district court will determine whether I therefore respectfully dissent.

shall held to or of the relieved exhaus

tion requirement under

rule judgment whether the previously en

tered in the case shall remain or whether

the action shall be prej dismissed without

udice for failure to exhaust. III. CONCLUSION PARTY, MISSOURI REPUBLICAN A reasons, For the foregoing we retain Party Committee; Political Pierce for jurisdiction but remand this matter to the Auditor, Committee; A Candidate district court for further proceedings, on Pierce; Charles A. Ellinger; Marc expedited basis, an consistent with this Zahnd, Citizens for Eric A Candidate opinion. Committee; Zahnd; Eric Lee R. Keith; Reid, Citizens to Elect Mike A ARNOLD, MORRIS SHEPPARD Committee; Candidate Michael J. Circuit Judge, dissenting. Reid; Reid, Appel Elaine Tschee I believe that judgment in this case lees/Cross-Appellants, should be reversed because Mr. did not exhaust his administrative remedies. respect, With I justification can find no LAMB, G. In Charles His Official Ca the court’s pacity view that such remedies were as Executive Director of the not available within the meaning Commission; of the Missouri Ethics Robert statute Gardner, because Mr. Capacity Vande somehow In His Official as Lyon. misled If Mr. Mr. Krol had Chair of the Missouri Ethics Commis told Mr. Lyon that grievance sion; Flood, there nowas Patricia In Her Official procedure, or had Capacity refused to him furnish as Vice-Chair Mis forms, with available we Commission; would have a dif- souri Ethics Richard here, ferent taking Adams, case. But Lyon’s Spielbusch, Mr. Elaine Donald value, allegations at merely Gann, face there Greenwell, and Mike In Their