[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 20, 2012
No. 11-10247
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 0:09-cv-61159-WPD
BEN-SHALOM YISRAEL,
a.k.a. Donnie Jackson,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
SARGEANT GIL,
SGT. JACKSON,
DEPUTY RYAN,
DEPUTY CAMPBELL,
MEDICAL STAFF, et al.,
lllllllllllllllllllllllllllllllllllllll l Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 20, 2012)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Ben-Shalom Yisrael, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of the defendants on his 42 U.S.C. § 1983 claims. The
district court concluded that Yisrael had not exhausted his administrative remedies
as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
I.
Yisrael, a Florida state prisoner, filed a second amended complaint alleging
constitutional violations under § 1983 by three correctional officers at the
Broward County Jail.1 He asserted that one of the officers had ordered the other
two to “assault and batter” him, which resulted in damage to his teeth and
permanent disfigurement. The defendants answered, denied liability, and asserted
as an affirmative defense that Yisrael had not exhausted his administrative
remedies.
The defendants then filed a motion for summary judgment. They asserted
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The complaint also alleged constitutional violations by unknown medical and food
service personnel. After review under 28 U.S.C. § 1915, a magistrate judge recommended
dismissal of claims against those defendants and the district court adopted that recommendation.
Yisrael’s notice of appeal does not include that order. In any event, he does not argue those
claims against those defendants, so they are abandoned. See Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008) (holding that issues not briefed on appeal by a pro se litigant are deemed
abandoned).
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that the PLRA required Yisrael to exhaust all available administrative remedies or
else his action was barred and must be dismissed. A magistrate judge issued a
report recommending the district court grant the defendants’ motion for summary
judgment based on lack of exhaustion of administrative remedies. Yisrael filed no
objections to the report, and the district court adopted the report and after de novo
review granted the defendants’ motion for summary judgment. This is Yisrael’s
appeal.
II.
We review de novo a district court’s grant of summary judgment, drawing
all inferences and reviewing all evidence in the light most favorable to the
nonmoving party. Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1309 (11th Cir.
2011). We also review de novo the district court’s interpretation and application
of the PLRA. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005).
The PLRA provides that “[n]o action shall be brought with respect to
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). Failure to
exhaust is fatal to the underlying claim, Johnson, 418 F.3d at 1158–59, and we
have no discretion to waive the exhaustion requirement, Bryant v. Rich, 530 F.3d
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1368, 1373 (11th Cir. 2008).
The district court granted summary judgment to the defendants because it
concluded that Yisrael had not exhausted his available administrative remedies as
required by the PLRA when he filed his § 1983 claim. Even construing his pro se
brief liberally, Yisrael does not argue that he did exhaust his remedies and has
therefore abandoned that argument. See Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008). The closest he gets to arguing this issue is a conclusory
statement in his brief that the grievance records custodian lied in his affidavit
when he said Yisrael had not filed a grievance. But conclusory allegations,
particularly when they are unsworn, do not create genuine issues of material fact.
See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). The district court did
not err in granting summary judgment to the defendants.
AFFIRMED
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