[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13393 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 9, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cv-00069-DHB-WLB
ARNOLD VERNARD PORTER,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
DR. WILLIAM SIGHTLER,
MD,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(February 9, 2012)
Before TJOFLAT, EDMONDSON, and CARNES, Circuit Judges.
PER CURIAM:
Arnold Porter, proceeding pro se,1 appeals the district court’s dismissal of
his 42 U.S.C. § 1983 claim against William Sightler, a prison physician and
Porter’s primary care provider at Wheeler Correctional Facility in Alamo, Georgia.
The district court dismissed the case without prejudice, finding that Porter had not
properly exhausted his administrative remedies as required by the Prison
Litigation Reform Act.
I.
While incarcerated at Wheeler, Porter suffered a heart attack on October 15,
2007. He filed an informal grievance with the prison’s grievance coordinator on
April 14, 2008, alleging that Dr. Sightler caused his heart attack by providing
improper care. Because Porter filed that informal grievance six months after his
heart attack, the grievance coordinator rejected it as untimely under the prison’s
three-step grievance procedure. That procedure is: (1) if a Wheeler inmate has a
complaint against prison staff, that inmate must first file an informal grievance
within ten days of the event about which he complains, but the ten-day time limit
may be waived upon a showing of good cause; (2) if the informal grievance does
not resolve the inmate’s complaint, he may file a formal complaint with the
1
Porter was represented by an attorney for part of the proceedings in this case, but that
attorney eventually filed a motion to withdraw as counsel, which the court granted.
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prison’s warden; and (3) if the warden denies the formal complaint, the inmate
may appeal to the Georgia Department of Corrections’ central office.
After the rejection of his informal grievance as untimely filed, Porter filed a
42 U.S.C. § 1983 complaint in federal district court against Dr. Sightler. He
alleged that the doctor’s deliberate indifference to his serious medical needs,
which ultimately caused his heart attack, was cruel and unusual punishment in
violation of the Eighth Amendment and a violation of his Fourteenth Amendment
right to due process. Dr. Sightler moved for summary judgment, based in part on
Porter’s failure to exhaust his administrative remedies as required by the PLRA.
The district court treated that motion as a motion to dismiss and dismissed the case
without prejudice because it found that Porter had not timely filed an informal
grievance and had not shown good cause for his untimely filing. This appeal
followed.
II.
Under the PLRA, “a prisoner confined in any jail, prison, or other
correctional facility” cannot bring a § 1983 action “until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Therefore, when
a state provides a grievance procedure for its prisoners, . . . an inmate alleging
harm suffered from prison conditions must file a grievance and exhaust the
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remedies available under that procedure before pursuing a § 1983 lawsuit.”
Bryant v. Rich, 530 F.3d 1368, 1372 (11th Cir. 2008) (quotation marks omitted).
To properly exhaust their administrative remedies, state “[p]risoners must timely
meet the deadlines or the good cause standard of [the state’s] administrative
grievance procedures before filing a federal claim.” Johnson v. Meadows, 418
F.3d 1152, 1159 (11th Cir. 2005).
The failure to exhaust administrative remedies is an affirmative defense
under the PLRA, Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2005),
which is treated as a matter in abatement, Turner v. Burnside, 541 F.3d 1077, 1082
(11th Cir. 2008). The defendant should raise that defense in a motion to dismiss
or the court should treat it as such if the defendant raises it in a motion for
summary judgment. Bryant, 530 F.3d at 1375. And because “exhaustion is
nothing more than a precondition to an adjudication on the merits,” the district
court may resolve factual disputes if the parties have had a “sufficient opportunity
to develop a record.” Id. at 1374, 1376.
We review de novo the dismissal of a lawsuit for failure to exhaust
administrative remedies under the PLRA, Parzyck v. Prison Health Servs., Inc.,
627 F.3d 1215, 1217 n.2 (11th Cir. 2010), but we review for clear error the court’s
factfindings, Bryant, 530 F.3d at 1377.
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III.
The district court did not clearly err in finding that Porter, without good
cause, untimely filed his informal grievance. He filed that grievance, which listed
October 15, 2007, as the date of Dr. Sightler’s alleged misconduct, on April 14,
2008—obviously not within ten days of October 15, 2007. There is no evidence
in the record that Porter ever requested or was granted a good-cause waiver for the
untimely filing. Nor has Porter alleged what that good cause might be. Because
he untimely filed his informal grievance without good cause, he did not exhaust
his administrative remedies.
Porter asks us to excuse his failure to exhaust his administrative remedies,
asserting that, but for his attorney’s malpractice, he would have filed an affidavit
swearing that he had requested and was denied a formal grievance within ten days
of October 15, 2007. Porter did not mention that request and denial in his
complaint or in his deposition, and there is no evidence in the record showing that
he actually made such a request. We will not allow him to file that affidavit now
because it was not before the district court and would not show that the court
clearly erred in finding that he filed his informal grievance untimely and without
good cause.
AFFIRMED.
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