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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10290
Non-Argument Calendar
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D.C. Docket No. 1:18-cv-00090-LAG-TQL
FLOYD ANTONIO HENRY,
Plaintiff-Appellant,
versus
CALHOUN SP WARDEN,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
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(February 24, 2021)
Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Floyd Henry, represented by counsel on appeal, appeals the district court’s
dismissal of his pro se 42 U.S.C. § 1983 complaint for failure to exhaust available
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administrative remedies as required by the Prison Litigation Reform Act (“PLRA”),
42 U.S.C. § 1997e(a). After careful review, we affirm.
The relevant background is this: Henry filed a pro se lawsuit under § 1983
against the Warden of Calhoun State Prison for failing to protect him from an attack
by another inmate. Henry alleged that, on December 16, 2017, a gang member
entered his cell and struck him with a chair, causing him to bleed profusely.
According to Henry, he was housed in an area previously reserved for members of
a faith-based program, but at some point, the population “changed to include
dangerous inmates.” Despite the change in population, Henry alleged, the Warden
failed to secure unbolted tables and chairs or to adequately monitor the area, which
allowed the attack to occur. Henry said he did not report the assault immediately
because he feared “gang retaliation,” but someone else reported the incident, and he
was treated by a nurse and questioned by a prison official on December 18.
The Warden moved to dismiss the complaint on the ground that Henry failed
to exhaust his available remedies under the prison’s grievance procedure. In support,
the Warden offered evidence that Henry did not file a grievance relating to the
incident until March 21, 2018, well outside the ten-day timeframe for initiating the
grievance process. The grievance was rejected as untimely, and that decision was
upheld on administrative appeal. Due to the rejection of his grievance as untimely,
the Warden argued that Henry’s complaint should be dismissed for failure to exhaust
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administrative remedies as required by the PLRA. The district court agreed and
granted the Warden’s motion to dismiss. This appeal followed.
We review de novo a district court’s interpretation and application of the
PLRA’s exhaustion requirement. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th
Cir. 2005). The PLRA requires prisoners who wish to challenge some aspect of
prison life to exhaust all available administrative remedies before resorting to the
courts. Jones v. Bock, 549 U.S. 199, 211 (2007); Porter v. Nussle, 534 U.S. 516,
532 (2002); see 42 U.S.C. § 1997e(a). The failure to exhaust requires dismissal.
Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2005).
To satisfy the exhaustion requirement, a prisoner must complete the
administrative process in accordance with the applicable grievance procedures set
by the prison. Jones, 549 U.S. at 218. As a result, an untimely grievance that is
rejected as such by prison officials does not satisfy the PLRA’s exhaustion
requirement. Johnson, 418 F.3d at 1156–59.
Nevertheless, although exhaustion is generally required, a remedy must be
“available” before a prisoner is required to exhaust it. Turner v. Burnside, 541 F.3d
1077, 1082, 1084 (11th Cir. 2008). “An inmate, that is, must exhaust available
remedies, but need not exhaust unavailable ones.” Ross v. Blake, 578 U.S. ___, ___,
136 S. Ct. 1850, 1858 (2016). An “available” remedy is one that is “capable of use
to obtain some relief for the action complained of.” Id. at 1859 (quotation marks
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omitted). Accordingly, “an inmate is required to exhaust those, but only those,
grievance procedures that are capable of use” to obtain relief. Id.
The Supreme Court has identified “three kinds of circumstances in which an
administrative remedy, although officially on the books, is not capable of use to
obtain relief.” Id. They are (1) when the grievance procedure “operates as a simple
dead end—with officers unable or consistently unwilling to provide any relief to
aggrieved inmates”; (2) when the administrative scheme is “so opaque that it
becomes, practically speaking, incapable of use”; and (3) “when prison
administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 1859–60 (emphasis added).
Henry concedes that he failed to file a timely grievance in accordance with
the prison-grievance procedure. He also does not challenge any aspect of the
grievance procedure itself. Nor does he attribute his failure to timely file a grievance
to the actions of any prison official. Accordingly, Henry does not present any of the
“three kinds of circumstances” that, according to the Supreme Court, may make a
grievance procedure unavailable. See id.
Instead, Henry argues that the grievance procedure was not “available”
because he feared gang retaliation if he filed a grievance related to the attack. But
he offers no legal support for his claim that, alone, fear of retaliation by other inmates
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may make a grievance procedure unavailable. 1 And the fact that he may have feared
retaliation from other inmates by using the grievance procedure does not mean that
the grievance procedure itself was “not capable of use to obtain relief.” Id. at 1859.
Other inmates are not employees or agents of the prison and have no role in the
administration of the prison-grievance procedure. Accordingly, Henry has not
shown that the prison’s grievance procedure was not “available.” See id.; Turner,
541 F.3d at 1082. He was therefore required to comply with its procedures before
filing suit, and his untimely grievance does not suffice. See Johnson, 418 F.3d at
1156–59.
Finally, even if we assume that, alone, other inmates could make a grievance
procedure unavailable, Henry’s allegations are not enough to establish that the
grievance procedure was unavailable in this case. Henry says he did not timely
report the incident because he feared gang retaliation (though he does not offer any
supporting details about that fear). But it appears that the incident was reported
anyway, and he was questioned by a prison official two days after the incident
occurred. Given these facts, it’s not clear why “a reasonable inmate of ordinary
firmness and fortitude” would fear taking the additional step of filing a grievance
against the Warden or the prison based on the incident. See Turner, 541 F.3d at 1085
1
It could be argued that the actions of other inmates may be attributed to prison officials
in certain circumstances. But Henry does not make that argument here, so we do not address it.
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(stating that a prisoner must show that “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”). And, in fact, Henry
did eventually file a grievance related to the incident, though there is no indication
of a change in prison circumstances. Therefore, even if, by itself, fear of retaliation
from other inmates could make a grievance procedure unavailable, Henry has not
made such a showing here.
Accordingly, the district court correctly concluded that Henry failed to
exhaust available administrative remedies as required by the PLRA. We therefore
affirm the dismissal of his complaint.
AFFIRMED.
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