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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14730
Non-Argument Calendar
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D.C. Docket No. 5:12-cv-00122-WTH-PRL
MICHAEL DONAWA,
Plaintiff-Appellant,
versus
FNU GILMORE, etc., et al.,
Defendants,
WARDEN, FCC COLEMAN II,
RAYMOND HOLT,
Regional Director - FBOP,
THOMAS R. KANE,
BOP Director,
ROY C. CHEATHAM,
Associate Warden,
LOUIS WILLIAMS,
Coleman II Captain, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 2, 2014)
Before PRYOR, MARTIN and COX, Circuit Judges.
PER CURIAM:
Michael Donawa, a federal prisoner proceeding pro se, appeals the district
court’s sua sponte dismissal of his amended civil rights complaint for failure to
state a claim, pursuant to 28 U.S.C. § 1915A, based on a failure to exhaust
administrative remedies. In its dismissal order, the court stated that Donawa
conceded his failure to exhaust, although it did not identify where the concession
occurred. Because Donawa’s complaint did not concede a failure to exhaust, and
in fact suggested that he exhausted his administrative remedies, we reverse the
district court’s order and remand for further proceedings.
On appeal, Donawa contends that the district court erred in dismissing his
complaint because he did not fail to exhaust his administrative remedies. 1 The
Defendants did not file a response brief.
We review a district court’s sua sponte dismissal for failure to state a claim
under 28 U.S.C. § 1915A de novo, taking the allegations in the complaint as true.
1
Donawa also contends that the district court failed to provide him with adequate notice and
dismissed his complaint in order to control its docket and discourage prisoner litigation. After
careful review, we find no merit in these contentions.
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Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). Moreover, we hold pro
se pleadings to a less stringent standard than pleadings drafted by attorneys and
liberally construe them. Id. at 1110.
The Prison Litigation Reform Act (“PLRA”) requires federal and state
prisoners to exhaust available administrative remedies before bringing an action
before a court. 42 U.S.C. § 1997e(a); Alexander v. Hawk, 159 F.3d 1321, 1324
(11th Cir. 1998). But, a plaintiff is not required to plead or demonstrate exhaustion
in the complaint because the PLRA’s exhaustion requirement is an affirmative
defense. Jones v. Bock, 549 U.S. 199, 216–17, 127 S.Ct. 910, 921–22 (2007)
(discussing dismissal for failure to state a claim under § 1915A and explaining that
the PLRA does not impose heightened pleading standards). A district court may
sua sponte dismiss a complaint under § 1915A for failure to exhaust only when
lack of exhaustion “appears on the face of the complaint.” Bingham v. Thomas,
654 F.3d 1171, 1175 (11th Cir. 2011).
Here, the district court erred for two reasons. First, the record simply does
not support the court’s conclusion that Donawa conceded that he failed to exhaust
administrative remedies. Rather, the complaint repeatedly asserted that Donawa
pursued the BOP’s administrative remedies, even though Donawa was not required
to affirmatively plead exhaustion. Second, Donawa also alleged in the complaint
that he was threatened and retaliated against for the administrative complaints he
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did pursue. We have previously held that in some situations “a prison official’s
serious threats of substantial retaliation against an inmate for lodging or pursuing
in good faith a grievance make the administrative remedy ‘unavailable,’ and thus
lift the exhaustion requirement.” Turner v. Burnside, 541 F.3d 1077, 1085 (11th
Cir. 2008). So, Donawa’s complaint—while not a model of clarity—suggests that
the exhaustion requirement was met and any event does not concede that
administrative remedies were not exhausted.
The district court erred by dismissing the complaint when failure to exhaust
administrative remedies was not apparent on the face of the complaint.
Accordingly, the district court’s order is reversed, and we remand for further
proceedings.
REVERSED AND REMANDED.
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