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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12136
Non-Argument Calendar
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D.C. Docket No. 4:18-cv-00069-HLM
DELROY T. BOOTH,
Plaintiff - Appellant,
versus
LIEUTENANT R. ALLEN,
Correctional Officer of Georgia Department of Corrections,
SERGEANT. J. SMITH,
Correctional Officer of Georgia Department of Corrections,
COMMISSIONER, GEORGIA. DEPARTMENT OF CORRECTIONS,
WARDEN, HAYS STATE PRISON,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 20, 2019)
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Before WILSON, MARTIN, and HULL, Circuit Judges.
PER CURIAM:
Delroy Booth, a prisoner in Hays State Prison, brought a § 1983 action
against several defendants associated with the prison and the Georgia Department
of Corrections. The district court dismissed Booth’s claims sua sponte, finding
that he failed to exhaust his administrative remedies through the prison grievance
process before bringing his claims to federal court. Booth now appeals.
I.
Booth, proceeding pro se, brought a § 1983 action against several defendants
associated with Hays State Prison and the Georgia Department of Corrections.
Booth alleged that the defendants violated his civil rights by spraying him with a
chemical agent without provocation, preparing a false disciplinary report,
providing him with shirts deliberately contaminated with parasites, and refusing
him appropriate medical treatment for his resulting harms. Booth alleged that
these events occurred in May 2017, and that his disciplinary report was “reversed”
in August 2017.
Booth filed a grievance with Hays State Prison on January 5, 2018, detailing
these claims; his grievance was denied as untimely. He appealed the denial but
allegedly never received a response to the appeal. In his complaint in district
court, Booth included his grievance form and the response to his grievance as
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exhibits. These documents showed that Booth’s grievance was rejected because he
failed to submit his grievance form within ten days of the incident as the prison’s
policy required. Booth alleged that he did not submit a grievance form within ten
days because prison officials did not make the forms available to him.
A magistrate judge concluded in a report and recommendation that Booth’s
attached exhibits demonstrated that he had failed to file a timely grievance, and
therefore failed to exhaust his administrative remedies before suit. The report also
concluded that Booth had not exhausted his claim about intentional exposure to
parasites, as he had not included it in his grievance; furthermore, the claim was
factually frivolous.
Booth moved to alter the judgment, objecting to the report and alleging that
prison staff and supervisors had employed strategies to block the grievance
procedure and prevent lawsuits. Specifically, Booth alleged that staff members
were trained to withhold disciplinary reports until fourteen days after incidents and
grievance forms were not made available when the incidents at issue occurred.
Booth also alleged that he was unable to include his allegations about parasites in
his grievance because the Georgia Department of Corrections prohibits inmates
from including more than one issue on a grievance form.
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The district court denied Booth’s motion to alter the judgment, treating the
motion as an objection and concluding that it did not warrant reconsideration of the
court’s original order. Booth now appeals.
II.
If a plaintiff objects to portions of a report or recommendation, the court
reviews those portions de novo. Thomas v. Arn, 474 U.S. 140, 149, 106 S. Ct. 466,
472 (1985); see also 28 U.S.C. § 636(b)(1)(C). We review a district court’s
interpretation of § 1997e(a)’s exhaustion requirements and application of the
section to a plaintiff’s claims de novo. Alexander v. Hawk, 159 F.3d 1321, 1323
(11th Cir. 1998). We review the district court’s factual findings for clear error.
Bingham v. Thomas, 654 F.3d 1171, 1174–75 (11th Cir. 2011) (per curiam). In
reviewing plaintiff’s claims in a complaint, “we accept allegations in a complaint
as true and construe them in the light most favorable to the plaintiff.” Id. at 1175.
“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and are liberally construed.” Id. (internal quotation marks omitted).
Federal law provides that a prisoner may not bring an action “with respect to
prison conditions under section 1983” until they have exhausted all available
administrative remedies. 42 U.S.C. § 1997e(a). To properly exhaust
administrative remedies, a prisoner must “complete the administrative review
process in accordance with the applicable procedural rules” of the prison grievance
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process. Jones v. Block, 549 U.S. 199, 218, 127 S. Ct. 910, 922 (2007) (internal
quotation marks omitted); Woodford v. Ngo, 548 U.S. 81, 88, 126 S. Ct. 2378
(2006). An inmate fails to exhaust available administrative remedies if he files “an
untimely or other procedurally defective administrative grievance.” Id.
Under § 1997e, failure to exhaust is an affirmative defense; inmates need not
“specifically plead or demonstrate exhaustion in their complaints.” Jones v. Bock,
549 U.S. 199, 216, 127 S. Ct. 910, 921 (2007). A district court may dismiss an
action sua sponte, however, if an affirmative defense—including failure to
exhaust—appears on the face of the complaint. Id. at 215, 127 S. Ct. at 921;
Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011); see also Alexander,
159 F.3d at 1328 (affirming a district court’s sua sponte dismissal of an action for
failure to exhaust administrative remedies as required by § 1997e(a)).
The district court correctly held that Booth failed to exhaust his claim
regarding harms caused by prison officials contaminating his clothing with
parasites because Booth did not adequately allege this incident on his grievance
form. Booth later alleged that he could only discuss one issue on a grievance form,
but he has not suggested that he was barred from filing more than one grievance
form, nor has he explained why he did not file another grievance form. Thus, we
affirm the district court’s determination that Booth failed to exhaust his
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administrative remedies with respect to this claim. As for the claims that Booth
adequately alleged on his grievance form, however, further analysis is required.
“Under § 1997e(a), the exhaustion requirement hinges on the ‘availability’
of administrative remedies”—that is, an inmate “must exhaust available remedies,
but need not exhaust unavailable ones.” Ross v. Blake, 136 S. Ct. 1850, 1858
(2016). An administrative remedy is not truly available to obtain relief if: (1) the
administrative procedure “operates as a simple dead end,” with “officers unable or
consistently unwilling to provide any relief to aggrieved inmates”; (2) the
administrative scheme is so opaque and confusing that no reasonable prisoner can
use it; or (3) “prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.” Id. at
1858–60. Prison administrators may frustrate inmates’ efforts to bring a grievance
by, for example, misleading or threatening inmates to prevent them from using the
proper procedures. Id. at 1860.
In Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008), we established a two-
step process for resolving motions to dismiss prisoner lawsuits for failure to
exhaust administrative remedies. First, district courts must “look to the factual
allegations in the motion to dismiss and those in the prisoner’s response and accept
the prisoner’s view of the facts as true. The court should dismiss if the facts as
stated by the prisoner show a failure to exhaust.” Whatley v. Warden, Ware State
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Prison, 802 F.3d 1205, 1209 (11th Cir. 2015) (describing the Turner test). In the
second step, “if dismissal is not warranted on the prisoner’s view of the facts, the
court makes specific findings to resolve disputes of fact, and it should dismiss if,
based on those findings, defendants have shown a failure to exhaust.” Id.
Turner concerned review of a motion to dismiss; here, in contrast, the
district court dismissed Booth’s claims sua sponte. Even so, we need only apply
the first step from Turner to conclude that the court did not conduct a full analysis.
The district court adopted the magistrate’s report and recommendation and
determined that nothing in Booth’s objections warranted rejection of the report and
recommendation because the grievance response attached to Booth’s complaint
established that he had not timely filed a grievance. The court did not, however,
discuss Booth’s allegations—included on his grievance form and in his objection
to the magistrate’s report—that prison officials withheld certain necessary forms to
thwart his efforts to timely file. Accepting all allegations in Booth’s complaint as
true and construing them in the light most favorable to him, especially in his pro se
capacity, it is not entirely clear that the administrative remedies that Booth failed to
exhaust were available to him.
The district court dismissed Booth’s claims before the defendants responded
to his allegations. While the defendants may be able to assert the affirmative
defense of failure to exhaust and show that the grievance process permitted Booth
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to timely file, they have not yet done so. We vacate and remand in part the
decision of the district court so that the court may consider Booth’s remaining
claims and proceed to hear responses from defendants.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED IN
PART.
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