[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 8, 2010
No. 09-16272 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00081-CV-4-SPM-WCS
GREGORY H. SCHLICHER,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS, et al.,
Defendants,
KEITH MURPHY, Captain,
VALENTINE, Captain, Taylor Correctional
Institution,
TERRY CRUCE, Lieutenant, Taylor Correctional
Institution,
CLARK, Officer, Taylor Correctional
Institution,
KOCH, Officer, Taylor Correctional
Institution, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 8, 2010)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Gregory H. Schlicher, a Florida state prisoner proceeding pro se, appeals the
district court’s dismissal of his civil rights action, 42 U.S.C. § 1983 for failure to
exhaust administrative remedies under 42 U.S.C. §1997e(a).
Schlicher filed a pro se fourth amended complaint against various prison
guards and the prison psychologist, alleging that he was denied access to his
written and legal materials and prison grievance forms, threatened for filing
grievances, denied psychological treatment, and subjected to harassment and
abuse. The district court dismissed the complaint because it concluded that
Schlicher had failed to exhaust his administrative remedies, as required under 42
U.S.C. § 1997e(a).
We review “de novo a district court’s interpretation and application of
42 U.S.C. § 1997e(a)’s exhaustion requirement.” Johnson v. Meadows, 418 F.3d
1152, 1155 (11th Cir. 2005). The Prison Litigation Reform Act provides that
2
“[n]o action shall be brought with respect to prison conditions under [42 U.S.C.
§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). To “properly exhaust” administrative
remedies, a prisoner must complete the administrative review process, as set forth
in the applicable prison grievance process. Jones v. Bock, 549 U.S. 199, 218
(2007). In Florida, the applicable procedure requires the state prisoner to (1) file
an informal grievance with a designated prison staff member, (2) “file a formal
grievance with the warden’s office,” and (3) “submit an appeal to the Secretary of
the [F]DOC.” Chandler v. Crosby, 379 F.3d 1278, 1288 (11th Cir. 2004) (citing
Fla. Admin. Code Ann. §§ 33-103.005 to -103.007).
When a prisoner alleges that he did not have timely access to the required
grievance forms, he still fails to exhaust his administrative remedies if he does not
request consideration of an untimely grievance. Bryant v. Rich, 530 F.3d 1368,
1373 (11th Cir. 2008). But when “a prison official’s serious threats of substantial
retaliation against an inmate for lodging in good faith a grievance make the
administrative remedy ‘unavailable,’ . . . the exhaustion requirement as to the
lodging a grievance or pursuing a particular part of the process” is lifted. Turner
v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008). A remedy is deemed
3
“unavailable” when “(1) the threat actually did deter the plaintiff inmate from
lodging a grievance or pursuing a particular part of the process; and (2) the threat
is one that would deter a reasonable inmate of ordinary firmness and fortitude
from lodging a grievance or pursuing the part of the grievance process that the
inmate failed to exhaust.” Id.
Schlicher argues on appeal that the efforts he made, including filing
informal grievances regarding his access to grievance forms, writing letters to the
Secretary of the FDOC, a federal judge, and the inspector general, and making
verbal complaints to various prison officials, were sufficient to exhaust his
administrative remedies. He also contends that, by preventing him from obtaining
grievance forms and threatening him, defendant prison officials rendered the
grievance process “unavailable” to him.
The record reflects that Schlicher filed several grievances between July
2007 and January 2008. These grievances were either filed at the wrong level or
not appealed after they were denied. Therefore, after a thorough review of the
record, we affirm for the reasons given in the magistrate judge’s report dated
October 15, 2009.
AFFIRMED.
4