[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10563 ELEVENTH CIRCUIT
Non-Argument Calendar JAN 17, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:10-cv-00116-RAL-AEP
CHRISTOPHER MICHAEL BROWN,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
D. B. DREW, Warden,
DR. FNU NEGRON, Clinical Director,
FNU ACEBAL, Hospital Administrator,
FNU MONTALVO, Assistant Hospital Administrator,
DR. FNU LEE,
FNU FRANANDEZ, P.A.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 17, 2012)
Before TJOFLAT, EDMONDSON and BARKETT , Circuit Judges.
PER CURIAM:
Christopher Brown, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action, for failure to exhaust his
administrative remedies. On appeal, Brown argues that the district court erred in
dismissing his complaint for failure to exhaust his administrative remedies because
he only had to exhaust such administrative remedies that were available to him.
The administrative process was made unavailable to him because he could not
timely resubmit his appeal within the 10 days given since he did not receive the
response within that time period.
“[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 PLRA provides that “[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” his 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, 127 S.Ct.
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910, 922-923, 166 L.Ed.2d 798 (2007). A prisoner cannot satisfy the exhaustion
requirement by filing an untimely or otherwise procedurally defective
administrative grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 92-103, 126
S.Ct. 2378, 2387-93, 165 L.Ed.2d 368 (2006). However, an administrative
remedy that was not discovered, and which could not have been discovered
through reasonable effort, until it was too late for it to be used is not an “available”
remedy. Goebert v. Lee Cnt’y, 510 F.3d 1312, 1324 (11th Cir. 2007). A remedy is
not available if it is unknown or unknowable because such a remedy is not
“capable for use for the accomplishment of a purpose.” Id. at 1323. Although
inmates must exhaust their available administrative remedies, they are not required
to “craft new procedures when prison officials demonstrate . . . that they will
refuse to abide by the established ones.” Turner v. Burnside, 541 F.3d 1077, 1083
(11th Cir. 2008) (internal citations omitted).
Title 28 C.F.R. § 542.10 et seq., of the Code of Federal Regulations sets out
the process by which a federal prisoner can “seek formal review of an issue
relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a).
Pursuant to the procedure, an inmate first must present an issue of concern
informally to staff. Id. at § 542.13(a). If dissatisfied with the staff response, the
inmate then may submit a formal written request to the warden (BP-9) within 20
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calendar days of the date on which the basis for the request occurred. Id. at
§ 542.14(a). An inmate who is not satisfied with the warden’s response may
submit an appeal on the appropriate form (BP-10) to the appropriate Regional
Office within 20 calendar days of the date the warden signed the response, and if
he is not satisfied with the Regional Office’s response, may submit an appeal on
the appropriate form (BP-11) to the General Counsel within 30 calendar days of
the date the Regional Office signed the response. Id. at § 542.15(a). The
applicable time for filing a formal grievance or an appeal may be extended when
the inmate demonstrates a valid reason for the delay, which means “a situation
which prevented the inmate from submitting the request within the established
time frame.” Id. at §§ 542.14(b); 542.15(a).
Even if an appeal is untimely because the prisoner counselor incorrectly
informed the prisoner of the date the appeal was due, the prisoner still fails to
exhaust his administrative remedies if he does not seek a waiver for good cause in
filing an untimely appeal. Bryant v. Rich, 530 F.3d 1368, 1378-1379 (11th Cir.
2008). In Bryant, a Georgia state prisoner argued that his appeal of the warden’s
denial of his first grievance, despite being untimely, satisfied the exhaustion
requirements. Id. at 1378. Bryant argued that his untimely appeal exhausted the
administrative grievance process because he was merely following his counselor’s
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instructions to submit his appeal within five business days instead of four business
days. Id. This Court concluded, however, that Bryant failed to exhaust his
administrative remedies because the prison’s administrative appeals process
permitted the time limits to be waived for good cause, but at no time did Bryant
pursue a good cause waiver after his appeal was dismissed as untimely. Id. at
1378-1379. The record reflected that despite the counselor advising Bryant of the
deadline, the form on which Bryant submitted his appeal stated that the appeal was
due within four business days and also indicated that an untimely appeal might be
considered if the reason why it was untimely was clearly stated. Id. at 1372.
Bryant’s appeal was late and he gave no explanation for why it was late. Id.
Here, the record reflects that Brown’s appeal to the Regional Office was
rejected as being untimely filed and his appeal to the General Counsel was rejected
due to his appeal to the Regional Office being untimely filed. As such, Brown did
not complete the three-step administrative review process set forth by the FBOP.
See Woodford, 548 U.S. at 92-103, 126 S.Ct. at 2387-2393 (providing that an
untimely appeal does not satisfy the exhaustion requirements). However, the
administrative process was rendered unavailable to Brown because the delay in
delivering the response from the Regional Office to Brown prevented him from
being able to timely resubmit his appeal to the Regional Office as required. The
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administrative process does allow for a motion for extension of time to file an
appeal; however, nothing in the record establishes that Brown was aware or could
readily become aware of his right to request an extension of time to resubmit his
appeal. As such, all administrative remedies were not available to Brown and he
is excused from the exhaustion requirements. Because there is nothing in the
record indicating that Brown was aware of the process for requesting an extension
of time to resubmit his appeal, this case is distinguishable from our holding in
Bryant. Accordingly, the district court erred in dismissing Brown’s action for
failure to exhaust his administrative remedies. For the reasons stated above, we
vacate the judgment of the district court and remand the case for further
proceedings not inconsistent with this opinion.
VACATED AND REMANDED.
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