[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 22, 2008
No. 07-15330 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00029-CV-CAR-5
TRACY ANTHONY MILLER,
Plaintiff-Appellant,
versus
JUDGE RICHARD PRYOR,
TYDUS MEADOWS,
LIEUTENANT WILLIAMS,
LT. DAVIS,
LASHANDA WARTHEN, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(October 22, 2008)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Tracy Anthony Miller, a pro se Georgia prisoner proceeding in forma
pauperis, appeals the dismissal, pursuant to 42 U.S.C. § 1997e(a), of his 42 U.S.C.
§ 1983 complaint for failure to exhaust administrative remedies. Miller alleged
that Men’s State Prison (“MSP”) officials were deliberately indifferent to his
medical needs and violated several of his rights. He also alleged that officials
refused to provide him with requested grievance forms. He further alleged that
after he was transferred out of MSP, officials at his new institution refused to
provide him with grievance forms to file an out-of-time grievance against the MSP
officials. On appeal, Miller argues that Jones v. Bock, 549 U.S. 199, 127 S. Ct.
910, 166 L. Ed. 2d 798 (2007), abrogated the requirement to file an out-of-time
grievance. Miller further argues that he was prevented from exhausting his
administrative remedies. For the reasons that follow, we affirm the district court’s
dismissal of Miller’s complaint without prejudice.
STANDARD OF REVIEW
We review de novo the dismissal of a § 1983 action for failure to exhaust
administrative remedies. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir.
2005). “We review the district court’s findings of fact for clear error.” Bryant v.
Rich, 530 F.3d 1368, 1377 (11th Cir. 2008). We hold pro se pleadings to a less
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stringent standard than attorney-drafted pleadings. Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).
DISCUSSION
The district court properly dismissed Miller’s complaint without prejudice
for failure to exhaust administrative remedies. An inmate must exhaust
administrative remedies before filing a § 1983 action to challenge prison
conditions. 42 U.S.C. § 1997e(a). Section 1997e(a)’s exhaustion requirement is
mandatory. Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 988, 152 L. Ed.
2d 12 (2002). A prisoner does not have to plead exhaustion in his complaint
because § 1997e(a)’s exhaustion requirement is an affirmative defense. Jones, 549
U.S. at ___, 127 S. Ct. at 920-21.
An exhaustion defense should be raised in a motion to dismiss. Bryant, 530
F.3d at 1374-75. “Where exhaustion . . . is treated as a matter in abatement . . . , it
is proper for a judge to consider facts outside of the pleadings and to resolve
factual disputes so long as the factual disputes do not decide the merits and the
parties have sufficient opportunity to develop a record.” Id. at 1376.
In Bryant,1 a Georgia prisoner alleged that he had been beaten by prison
officials on multiple occasions. Id. at 1372. He filed a grievance for the beating,
1
Bryant was a consolidated appeal of two Georgia prisoners, who individually brought §
1983 actions to challenge the conditions of the institution in which both were incarcerated.
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but it was denied. Id. He was beaten again, this time for filing the grievance. Id.
He was eventually transferred to another institution. Id. But he did not file a
grievance about the beatings before filing his § 1983 action. Id.
We determined in Bryant that Georgia prisoners must file out-of-time
grievances to exhaust administrative remedies. See id. at 1378-79. Because the
district court allowed the prisoner to develop the record regarding exhaustion, we
concluded that it did not err by acting as a factfinder in determining whether the
prisoner had access to grievance forms at his new institution. Id. at 1377.
Here, Miller has similarly failed to exhaust his administrative remedies as to
the alleged wrongdoing at MSP. He does not dispute that he successfully
submitted two other grievances at his new institution. Accordingly, the district
court did not clearly err in finding that Miller had a grievance procedure available
at his new institution. Since Miller has not exhausted his administrative remedies
available under that grievance procedure, the district court properly dismissed his
complaint without prejudice.
CONCLUSION
After carefully reviewing the record and the parties’ briefs, we discern no
reversible error.
AFFIRMED.
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