[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
FILED
No. 06-11116 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_____________________________ June 20, 2008
THOMAS K. KAHN
D. C. Docket No. 05-00064- CV-6 CLERK
GREGORY B. BRYANT,
Plaintiff-Appellant,
versus
GLENN RICH,
R. D. COLLINS,
LT. RANDY BYRD,
SERGEANT JASON D. BURNS,
OFFICER FNU BYRD, et al.,
Defendants-Appellees.
____________________________
No. 06-12290
____________________________
D. C. Docket No. 05-00071- CV-6
ANDREW PRIESTER,
Plaintiff-Appellant,
versus
WARDEN GLENN RICH,
DEPUTY WARDEN R. D. COLLINS,
LIEUTENANT REGINALD T. LANGSTON,
SERGEANT RODNEY MCCLOUD,
SERGEANT BYRD, et al.,
Defendants-Appellees.
_________________________________________
Appeals from the United States District Court
for the Southern District of Georgia
_________________________________________
(June 20, 2008)
PETITION FOR REHEARING
Before EDMONDSON, Chief Judge, BIRCH and WILSON, Circuit Judges.
EDMONDSON, Chief Judge:
Andrew Priester and Gregory Bryant have filed a petition for
reconsideration en banc. Treating their petition for en banc reconsideration as a
petition for panel rehearing, we withdraw our opinion dated 31 May 2007 and
substitute the following opinion in its place:1
Two inmates — Andrew Priester (“Priester”) and Gregory Bryant
(“Bryant”) — brought individual suits against prison officials (“Defendants”)
1
Pursuant to 11th Cir. R. 35-5, we may treat a petition for rehearing en banc as a petition for
rehearing before the original panel.
2
under 42 U.S.C. § 1983 to contest the conditions of their confinement at Rogers
State Prison (“Rogers”). Defendants filed motions to dismiss, which the district
court treated as motions for summary judgment. Because both Priester and Bryant
failed to exhaust their administrative remedies, the district court dismissed
Priester’s and Bryant’s complaints without prejudice.2 Priester and Bryant now
appeal.3 Discovering no reversible error, we affirm.
I. Background
A. Andrew Priester
2
The district court recognized that Defendants’ motions were motions to dismiss; and in the light
of those motions, the district court ordered dismissals without prejudice. But it is true that the
district court also spoke of the motions as having been construed as or converted to summary
judgment motions. Given what the district court did — dismiss without prejudice — we understand
the “converted” language to mean, in context, that the court would (and did) use the procedures
characteristic of dealing with motions for summary judgment in deciding whether or not to grant a
dismissal. The district court mainly was telling the parties — to make certain that Priester and
Bryant had a meaningful opportunity to oppose Defendants’ motions — that matters beyond the
pleadings could be submitted and would be considered. In reality, no summary judgment was
granted in these cases: The merits of the disputes between the parties were not decided; no rights or
liabilities were finally determined.
3
We earlier consolidated Priester’s appeal, case number 06-12290, with Gregory Bryant’s appeal,
case number 06-11116.
3
Assuming for the moment that Priester’s factual allegations are true, here
are the facts. When Priester was incarcerated at Rogers, four prison officials
assaulted him on four different occasions between August and December 2003.
Despite knowledge of these beatings, both the warden and deputy warden
remained deliberately indifferent and failed to prevent Priester’s abuse. Priester
requested grievance forms from other Rogers officials to report the beatings; but
he received none. Priester also contends that prison officials at Rogers generally
used force or the threat of force to discourage inmates from filing grievances.
In January 2004, Priester received a transfer from Rogers to Georgia State
Prison (“GSP”). During a visit to the GSP infirmary, Priester reported his abuse at
Rogers to a psychiatrist and a counselor. He also requested a form to file a
grievance about the abuse. The psychiatrist and the counselor responded that his
mental health problems had caused him to be delusional; and, as a result, they
refused to give him a grievance form to report the beatings. Nothing suggests that
Priester made some further attempt to file a grievance about the abuse. He later
obtained and submitted a grievance form at GSP for an unrelated incident about
lost property.4
4
Priester filed this grievance on 13 October 2005.
4
Priester filed this suit against Defendants under section 1983; he alleges the
use of excessive force in violation of federal and state law. Before filing an
answer, Defendants moved to dismiss the suit because Priester failed to exhaust
his administrative remedies in accordance with the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a). The district court dismissed Priester’s complaint
without prejudice.
B. Gregory Bryant
As with Priester, we construe Bryant’s factual allegations as true.
According to Bryant, he was twice subjected to excessive force by prison officials
at Rogers. The warden and deputy warden were deliberately indifferent and failed
to prevent his abuse. The first incident occurred on 17 March 2004, when Bryant
was beaten and kicked by two officers at the instigation of another officer. Bryant
filed a grievance for the beating; but it was denied on 7 April 2004.
Bryant’s counselor advised him that he had five business days to appeal the
denial of his grievance, which he did on 14 April. But under the prison’s standard
operating procedures (“SOP”) in effect at the time, Bryant actually had only four
5
business days to file his appeal.5 In addition, the form on which Bryant submitted
his appeal stated that the appeal was due within four business days. The form also
indicated that an untimely appeal might be considered if the reason why it was
untimely was clearly stated. Bryant’s appeal was late and gave no explanation for
its tardiness; it was dismissed as untimely.
On 19 April 2004, Bryant was beaten again — this time in retaliation for
filing his grievance. Fearing another violent reprisal, he did not file a second
grievance. Bryant was eventually transferred to Wheeler Correctional Institution;
but he filed no grievances there about his mistreatment at Rogers.
Bryant brought suit under section 1983. Defendants filed motions to
dismiss, which the district court construed as motions for summary judgment. The
district court granted the motions and dismissed Bryant’s complaint without
prejudice for failure to exhaust administrative remedies under the PLRA.
II. Discussion
The PLRA requires inmates to exhaust available administrative remedies
before filing a lawsuit: “No action shall be brought with respect to prison
5
Bryant should have submitted his appeal no later than 13 April.
6
conditions under section 1983 . . . by a prisoner . . . until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This rule applies
to all inmate suits alleging excessive force, whether the prisoner alleges an
isolated episode of mistreatment or “a prolonged and sustained pattern of
harassment and intimidation by corrections officers.” See Porter v. Nussle, 122 S.
Ct. 983, 991-92 (2002) (internal quotation marks omitted).
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 remedies available under that procedure before pursuing
a § 1983 lawsuit.” Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005)
(quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir.2000)). We have no
discretion to waive this exhaustion requirement. Alexander v. Hawk, 159 F.3d
1321, 1325-26 (11th Cir. 1998).
A. Andrew Priester
That Priester filed no grievance at either Rogers or GSP about the beatings
he allegedly suffered is undisputed. Priester contends that he attempted to file
grievances at both facilities; but his requests for the pertinent forms were either
7
unanswered or denied. He also argues that Rogers officials deterred him from
filing grievances through the threat of violence. Thus, he argues that no grievance
procedure was “available” for him to exhaust.
Even assuming — without deciding — that no grievance procedures were
available to Priester at Rogers, the record supports that Priester did have grievance
procedures available to him when he transferred to GSP.6 Yet, he failed to exhaust
them.
We recognize that a grievance filed after Priester's transfer to GSP would
have been untimely. But the relevant grievance procedures provide inmates with
the opportunity to request consideration of untimely grievances for good cause.
Thus, Priester could have exhausted his administrative remedies by filing a
grievance at GSP and then by showing good cause for its tardiness. But, he filed
no grievance about the abuse. See Harper v. Jenkin, 179 F.3d 1311, 1312 (11th
Cir. 1999) (“Since appellant has not sought leave to file an out-of-time grievance,
6
We have said that an administrative remedy is not “available” if it is unknown and unknowable
to the inmate. Goebert v. Lee County, 510 F.3d 1312, 1323 (11th Cir. 2007). Other courts have said
that administrative remedies are not available to an inmate if prison officials do not respond to
grievances or if they prevent the filing of grievances. See, e.g., Jernigan v. Stuchell, 304 F.3d 1030,
1032 (10th Cir. 2002) (“[T]he failure to respond to a grievance within the time limits contained in
the grievance policy renders an administrative remedy unavailable”); Miller v. Norris, 247 F.3d 736,
740 (8th Cir. 2001) (“We believe that a remedy that prison officials prevent a prisoner from
‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a)”). We need not decide whether Priester
had administrative remedies available to him while he was incarcerated at Rogers because, given the
district court’s findings, Priester did have remedies available to him at GSP.
8
he cannot be considered to have exhausted his administrative remedies.”); cf.
Johnson, 418 F.3d at 1159 (“Prisoners must timely meet the deadlines or the good
cause standard of Georgia's administrative grievance procedures before filing a
federal claim.”).
Priester says that GSP officials denied him access to grievance forms.
Defendants attempt to rebut this contention by showing, among other things, that
Priester successfully obtained and submitted a grievance form at GSP but used it
for another matter: one involving lost property. Evidence of the property loss
grievance, however, does not necessarily refute Priester’s allegation that he was
denied grievance forms to report physical abuse. It is possible that Priester was
denied access to grievance forms at GSP for the purpose of reporting prison
beatings, but not for the purpose of reporting property loss. We conclude that
enough conflicting evidence exists to raise a genuine issue of material fact about
whether administrative remedies were available to Priester at GSP.
We decide, however, that the district judge did not err by acting as a
factfinder in resolving this factual dispute.7 Instances exist — such as those
7
Adopting the magistrate judge’s finding that Priester’s claim about not having access to
grievance forms was not credible, the district court declared “that, irrespective of whether the issue
is reached under Rule 12(b)(1), 12(b)(6), or 56, exhaustion constitutes a preliminary issue for which
no jury trial right exists, and therefore judges can and should make credibility determinations on
exhaustion-excusal issues.”
9
involving jurisdictional issues8 — when judges may resolve factual questions.9
One such instance is when a judge must decide a motion to dismiss for failure to
exhaust nonjudicial remedies. See Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th
Cir. 2003) (“In deciding a motion to dismiss for a failure to exhaust nonjudicial
remedies, the court may look beyond the pleadings and decide disputed issues of
fact.”).
Even though a failure-to-exhaust defense is non-jurisdictional,10 it is like a
defense for lack of jurisdiction in one important sense: Exhaustion of
administrative remedies is a “matter[] in abatement, and ordinarily [does] not deal
with the merits.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1360 at 78 n.15 (3d ed. 2004); see also Wyatt, 315 F.3d at 1119
8
A district court judge may make factual findings when resolving purely jurisdictional issues.
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). In Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former
Fifth Circuit that were rendered prior to 1 October 1981.
9
Although the Supreme Court recently announced in Jones v. Bock, 127 S. Ct. 910 (2007), that
failure to exhaust under the PLRA was an affirmative defense, it did so in resolving the question
whether the PLRA required plaintiffs, instead of defendants, to plead specifically that all
administrative remedies had been exhausted. See id. at 921 (“We conclude that failure to exhaust
is an affirmative defense under the PLRA, and that inmates are not required to specially plead or
demonstrate exhaustion in their complaints.”). Jones decided nothing about the independent
question of whether a judge, as opposed to the jury, may resolve disputed facts about exhaustion.
10
The Supreme Court has confirmed that exhaustion under the PLRA is not a jurisdictional
prerequisite. Woodford v. Ngo, 126 S. Ct. 2378, 2392 (2006) (stating that it is “clear that the PLRA
exhaustion requirement is not jurisdictional”).
10
(“[W]e have held that the failure to exhaust nonjudicial remedies that are not
jurisdictional should be treated as a matter in abatement . . . .”); 18 James Wm.
Moore, Moore’s Federal Practice § 131.30[3][b] at 104 (3rd ed. 2008) (noting that
a determination “that [a court] has no subject matter jurisdiction, that personal
jurisdiction of defendants or of indispensable parties is lacking, that venue is
improper, or that plaintiff has failed to comply with some prerequisite to filing
suit, such as exhaustion of administrative remedies . . . is not a determination of
the claim, but rather a refusal to hear it”). That exhaustion is nothing more than a
precondition to an adjudication on the merits is confirmed by the language of the
PLRA itself: “No action shall be brought with respect to prison conditions . . .
until such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a); cf. Harris v. Garner, 216 F.3d 970, 982 (11th Cir. 2000) (en banc) (“[A]s
we have explained “brought” means filed . . . . Congress chose its words and we
will heed them.”).
Because exhaustion of administrative remedies is a matter in abatement and
not generally an adjudication on the merits, an exhaustion defense — as in
Priester’s case — is not ordinarily the proper subject for a summary judgment;
instead, it “should be raised in a motion to dismiss, or be treated as such if raised
in a motion for summary judgment.” Ritza v. Int’l Longshoremen’s &
11
Warehousemen’s Union, 837 F.2d 365, 368-69 (9th Cir. 1988); see also Wyatt,
315 F.3d at 1119 (explaining “that ‘[s]ummary judgment is on the merits,’ whereas
‘dismissal of an action on the ground of failure to exhaust administrative remedies
is not on the merits.’” (alteration in original) (citations omitted)).11
That motions to dismiss for failure to exhaust are not expressly mentioned
in Rule 12(b) is not unusual or problematic. “‘Federal courts . . . traditionally have
entertained certain pre-answer motions that are not expressly provided for by the
rules.’” Ritza, 837 F.2d at 369 (quoting 5C Wright & Miller, supra, § 1360 at 77).
For instance, courts may decide motions to dismiss that are “‘closely related to the
management of the lawsuit and might generally be characterized as involving
matters of judicial administration.’” Id.; see, e.g., Int’l Ass’n of Entrepreneurs of
Am. v. Angoff, 58 F.3d 1266, 1271 (8th Cir. 1995) (“While pre-answer motions
are ostensibly enumerated in Fed. R. Civ. P. 12(b), district courts have the
11
We decide the case before us: one where dismissal was without prejudice and where neither
party has evidenced that administrative remedies at GSP are absolutely time barred or otherwise
clearly infeasible. We do not mean to say today that a failure to exhaust can never correctly result
in a dismissal with prejudice. See Johnson, 418 F.3d at 1157 (stating that without “the prospect of
a dismissal with prejudice, a prisoner could evade the exhaustion requirement by filing no
administrative grievance or by intentionally filing an untimely one, thereby foreclosing
administrative remedies and gaining access to a federal forum without exhausting administrative
remedies” (internal quotation marks omitted)); see also Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir.
2004) (indicating that dismissal with prejudice would be appropriate where “administrative remedies
have become unavailable after the prisoner had ample opportunity to use them and no special
circumstances justified failure to exhaust”).
12
discretion to recognize additional pre-answer motions, including motions to stay
cases within federal jurisdiction when a parallel state action is pending.”). We
regard exhaustion of administrative remedies as a matter of judicial administration.
The Supreme Court has described Congress’s purpose in enacting the PLRA’s
exhaustion requirement in terms of managing prisoner litigation:
Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity
and improve the quality of prisoner suits; to this purpose, Congress
afforded corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case.
In some instances, corrective action taken in response to an inmate’s
grievance might improve prison administration and satisfy the inmate,
thereby obviating the need for litigation. In other instances, the
internal review might filter out some frivolous claims. And for cases
ultimately brought to court, adjudication could be facilitated by an
administrative record that clarifies the contours of the controversy.
Porter v. Nussle, 122 S. Ct. 983, 988 (2002) (internal quotation marks and
citations omitted). Accordingly, exhaustion should be decided on a Rule 12(b)
motion to dismiss; and in fact, this Circuit has previously done so. See, e.g.,
13
Johnson, 418 F.3d at 1153-54 (remanding to the district court with instructions to
dismiss plaintiff’s complaint for failure to exhaust administrative remedies).
When a court “treats [a] motion as having been brought under Rule 12(b),
then it is subject to the rules and practices applicable to the most analogous Rule
12(b) motion.” 5C Wright & Miller, supra, § 1360 at 91. For judges to resolve
factual disputes where the motion to dismiss is not an adjudication on the merits
is not uncommon. For instance, it is well-established that a judge may make
factual findings about subject matter jurisdiction on a Rule 12(b)(1) motion to
dismiss. Williamson, 645 F.2d at 413. Likewise, a judge may make factual
findings necessary to resolve motions to dismiss for lack of personal jurisdiction,
improper venue, and ineffective service of process. See, e.g., Hyatt Int’l Corp. v.
Coco, 302 F.3d 707, 713 (7th Cir. 2002) (personal jurisdiction); Future Tech.
Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1247 (11th Cir. 2000)
(personal jurisdiction); Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1139-40
(9th Cir. 2004) (improper venue); 5B Wright & Miller, supra, § 1353 at 340, 345
(stating that “the defense of improper service of process involves a matter in
abatement and does not go to the merits of the action” and that any “factual
question raised by the affidavits or other evidence presented on a Rule 12(b)(4) or
a Rule 12(b)(5) motion should be determined by the district court”). Where
14
exhaustion — like jurisdiction, venue, and service of process — is treated as a
matter in abatement and not an adjudication on the merits,12 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 merits13 and the parties have
sufficient opportunity to develop a record.14 See Ritza, 837 F.2d at 369 (“[W]here
a factual issue arises in connection with a jurisdictional or related type of motion,
the general view is that there is no right of jury trial as to that issue . . . and that
the court has a broad discretion as to the method to be used in resolving the
factual dispute.” (emphasis added) (second alteration in original) (internal
quotation marks omitted)); Wyatt, 315 F.3d at 1119-20 (“In deciding a motion to
dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond
the pleadings and decide disputed issues of fact.”). Requiring jury trials to
12
It bears noting that where, as in this case, exhaustion is not adjudicated as part of the merits, it
is unlike a defense under Rule 12(b)(6) for failure to state a claim, which is generally decided on the
merits. See NAACP v. Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990) (stating that “dismissal for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a ‘judgment on the
merits’”).
13
Cf. Lawrence v. Dunbar, 919 F.2d 1525, 1530 (11th Cir. 1990) (stating that a district court
should apply a Rule 56 summary judgment standard “when the jurisdictional basis of a claim is
intertwined with an element of the cause of action because, in those cases, the attack on jurisdiction
is also an indirect attack on the merits”).
14
See Wyatt, 315 F.3d at 1120 n.14 (“[I]f the district court looks beyond the pleadings to a factual
record in deciding the motion to dismiss for failure to exhaust — a procedure closely analogous to
summary judgment — then the court must assure that [the plaintiff] has fair notice of his opportunity
to develop a record.”).
15
resolve factual disputes over the preliminary issue of exhaustion would be a novel
innovation for a matter in abatement15 and would unnecessarily undermine
Congress’s intent in enacting the PLRA’s exhaustion requirement: that is, to
“reduce the quantity and improve the quality of prisoner suits.” Porter, 122 S. Ct.
at 988.
Turning to this case, we note that Priester did not say in his affidavit to the
district court that his failure to file a grievance at GSP was due to his fear of
violent reprisal at GSP. To the extent that Priester suggests on appeal that he
feared beatings at GSP, we will not consider that new argument. See Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). The
facts about whether Priester failed to exhaust his administrative remedies at GSP
do not bear on the merits of his claim that he was subjected to violent abuse at
Rogers. Also, because the district court treated Defendants’ motions to dismiss
like motions for summary judgment, Priester was given an opportunity to develop
a record by obtaining affidavits and attaching them to his filings; and Priester did
15
What we decide today is no innovation. We are aware of no precedent in this Circuit allowing
the question of exhaustion under the PLRA to go to a jury. Nor are we aware of a published
precedent in this Circuit in which we decided that a judge had no authority to decide disputed facts
about exhaustion, as a precondition to suit under the PLRA. Cases decided on the basis of no
disputed facts about exhaustion are materially different from this case, presenting different questions
for decision.
16
so.16 We conclude, therefore, that the district judge did not err by acting as the
factfinder on whether Priester had access to grievance forms at GSP to report his
abuse at Rogers.
We review the district court’s findings of fact for clear error. Cf.
Lawrence, 919 F.2d at 1530 (stating that, where the jurisdictional facts are not
intertwined with the merits, the “standard of reviewing a district court’s findings
of jurisdictional facts is the clearly erroneous standard”). “For a factual finding to
be clearly erroneous, this court, after reviewing all of the evidence, must be left
with the definite and firm conviction that a mistake has been committed.”
Dresdner Bank AG v. M/V Olympia Voyager, 465 F.3d 1267, 1275 (11th Cir.
2006) (internal quotation marks omitted). The district court found that Priester’s
allegation that he was denied access to grievance forms at GSP was not credible,
especially given unrebutted evidence that Priester successfully filed a grievance
16
Priester introduced evidence outside of the pleadings in his response to Defendants’ motions
to dismiss. Motions to dismiss not enumerated under Rule 12(b) are governed by Rule 43(c), which
permits courts to hear evidence outside of the record on affidavits submitted by the parties. See Fed.
R. Civ. P. 43(c); Ritza, 837 F.2d at 369 (citing 5C Wright & Miller, supra, § 1360 at 91). Priester
did not request an evidentiary hearing on the issue of exhaustion, nor has he raised the district court’s
failure to hold an evidentiary hearing as an error in this appeal. At least in the absence of a timely
request for an evidentiary hearing and where the resulting order is to be a dismissal without
prejudice, a district court may resolve material questions of fact on submitted papers for the PLRA’s
exhaustion of remedies requirement. Cf. Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1251
(11th Cir. 2005) (concluding that “it is not an abuse of discretion to decide a motion to dismiss for
want of jurisdiction on the basis of affidavits and other documents when neither party makes a timely
and unequivocal request for an evidentiary hearing”).
17
at GSP, although it was one for property loss.17 That the district court drew this
inference is not unreasonable, even if cause to disagree also exists. See Anderson
v. City of Bessemer City, 105 S. Ct. 1504, 1511 (1985) (“If the district court’s
account of the evidence is plausible in light of the record viewed in its entirety,
the court of appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence differently.”).
Accordingly, we cannot say that the district court committed clear error in finding
that Priester had access to grievance forms at GSP by which he could have
reported the prison abuse at Rogers. We accept that Priester failed to exhaust his
administrative remedies in the light of the PLRA.
17
The district judge wrote that he “agreed” with the magistrate judge’s credibility findings. The
magistrate judge also had written these things:
Of course, [Priester] avers that unidentified staff at GSP continued to deny him
access to grievance forms. This farfetched contention simply cannot be taken at face
value. Not infrequently, this Court has considered cases involv[ing] the alleged use
of excessive force at GSP; even in these cases, GSP officials have not prevented
prisoner plaintiffs from fully exhausting the administrative process. See, e.g., Palmer
v. Smith, CV 604-075 (S.D. Ga. June 29, 2004). [Priester’s] suggestion that prison
officials at GSP denied him access to grievance forms for over two years in order to
protect colleagues at Rogers is sorely lacking in credibility. The believability of the
averment is further eroded by the fact that other inmates at Rogers who have recently
brought excessive force claims against Defendants did file grievances regarding their
claims. See, e.g., Hooks v. Rich, CV 605-065 (S.D. Ga. July 13, 2005).
By the way, Priester has not objected to the district court’s consideration of the filings and its own
records in other inmate cases.
18
B. Gregory Bryant18
Bryant raises two exhaustion issues on appeal. First, he argues that his
appeal of the warden’s denial of his first grievance – although untimely –
satisfied the PLRA’s exhaustion requirement. We disagree. To exhaust
administrative remedies in accordance with the PLRA, prisoners must “properly
take each step within the administrative process.” Johnson, 418 F.3d at 1158
(internal quotation marks omitted). If their initial grievance is denied, prisoners
must then file a timely appeal. See id. (stating in dicta that “[t]o exhaust
remedies, a prisoner must file complaints and appeals in the place, and at the
time, the prison’s administrative rules require” (internal quotation marks omitted)
(alteration in original)); cf. Harper, 179 F.3d at 1312 (concluding that a prisoner
who declined to appeal an untimely grievance failed to exhaust his administrative
remedies).
18
Although Bryant filed his notice of appeal before the district court entered final judgment for
all Defendants, his notice of appeal was not premature. “[W]here final judgment has been entered
as to all defendants who have been served with process and only unserved defendants remain, the
district court’s order may be considered final under 28 U.S.C. § 1291 for purposes of perfecting an
appeal.” Insinga v. LaBella, 817 F.2d 1469, 1469-70 (11th Cir. 1987). Here, the district court
granted partial summary judgment on 23 January 2006 to all Defendants who had been served with
process. On 3 February, Bryant moved to dismiss the remaining Defendants, all of whom remained
unserved. Because these Defendants had not yet been served, the district court’s grant of partial
summary judgment to all served Defendants was a final appealable order. As such, Bryant’s notice
of appeal filed on 9 February was not untimely.
19
Although Bryant properly filed a grievance reporting his first allegation of
abuse, he nevertheless failed to file a timely appeal under the SOP in effect at the
time. Bryant contends, however, that he was merely following his counselor’s
instructions in submitting his appeal within five business days instead of four.
Bryant also contends that his appeal was delayed because he received no appeal
form until the day before he filed his appeal. Even if we were to accept that
Bryant’s appeal was untimely because his counselor was mistaken about the time
limits, we cannot say that Bryant successfully exhausted his administrative
remedies. The prison’s administrative appeals process permitted the time limits
to be waived for good cause; yet at no time has Bryant sought a waiver. Because
Bryant did not pursue a good cause waiver after his appeal was dismissed as
untimely, he did not fully exhaust the administrative remedies available to him.
See Johnson, 418 F.3d at 1158-59 (“Prisoners must timely meet the deadlines or
the good cause standard of Georgia’s administrative grievance procedures before
filing a federal claim.” (emphasis added)).
Second, Bryant argues that he failed to report the second incident of prison
abuse, which occurred in retaliation for filing his first grievance, because he
feared additional violent reprisals by Rogers officials. This argument is
unavailing. Like Priester, Bryant was later transferred to another prison where
20
the threat of violence was removed.19 There, he could have filed an out-of-time
grievance and then shown good cause for its untimeliness. Because he did not,
Bryant failed to exhaust an administrative remedy that was available to him. In
sum, we conclude that Bryant — like Priester — did not exhaust all
administrative remedies as required by the PLRA.
III. Conclusion
Because neither Priester nor Bryant exhausted all of their administrative
remedies before filing their suits, we affirm the district court’s decisions
dismissing their claims without prejudice.
Affirmed.
19
Bryant points to no evidence in the record that he was threatened with retaliation for filing a
grievance at the new prison.
21
WILSON, Circuit Judge, concurring in part, dissenting in part:
I concur in the majority’s opinion with respect to Gregory Bryant. I do not
think, however, that the majority’s opinion in Part II-A can be reconciled with the
recent Supreme Court decision in Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910,
166 L. Ed. 2d 798 (2007).
In Jones, the Chief Justice, writing for a unanimous Supreme Court,
overturned several judicially-created procedural rules adopted by courts to
implement the PLRA’s exhaustion requirement. Jones v. Bock, 549 U.S. 199, 127
S. Ct. 910, 166 L. Ed. 2d 798 (2007). Several circuits had begun treating
exhaustion under the PLRA as a special pleading requirement that the prisoner
must sufficiently demonstrate in his complaint. See Rivera v. Allin, 144 F.3d 719,
731 (11th Cir. 1998); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998) (per
curiam). Jones expressly overturned this practice, stressing that the courts should
not have departed from their “usual practice under the Federal Rules on the basis
of perceived policy concerns.” Jones, 549 U.S. at —, 127 S. Ct. at 919-920. It
noted that “when Congress mean[s] to depart from the usual procedural
requirements, it [does] so expressly,” id. at 921, and when the PLRA is silent on a
procedural issue “the usual practice should be followed,” id. at 919. The Court
22
made it clear that crafting and imposing procedural rules that are not required by
the PLRA “exceeds the proper limits on the judicial role.” Id. at 914.
Failure to exhaust under the PLRA is an affirmative defense the defendant
must plead and prove. Id. at 915. It is subject to the usual procedural practice.
Id. at 919.
Our usual practice is to consider affirmative defenses, such as failure to
exhaust administrative remedies or statute of limitations,1 on summary judgment
pursuant to Federal Rule of Civil Procedure 56.2 See, e.g., Carmichael v. Nissan
Motor Acceptance Corp., 291 F.3d 1278, 1279 (11th Cir. 2002) (per curiam)
(statute of limitations); Morton’s Mkt., Inc. v. Gustafson’s Dairy, Inc., 198 F.3d
823, 828-29 (11th Cir. 1999) (same); Goebert v. Lee County, 510 F.3d 1312,
1322 (11th Cir. 2007) (failure to exhaust under the PLRA); Miller v. Tanner, 196
F.3d 1190, 1192 n.5 (11th Cir. 1999) (same); Stewart v. Booker T. Washington
Ins., 232 F.3d 844, 846 (11th Cir. 2000) (failure to exhaust under Title VII);
1
In Jones, the Court analogized failure to exhaust to the affirmative defense of statute of limitations. 127
S. Ct. at 920-21.
2
If, however, a plaintiff fails to make sufficient allegations in his complaint such that an affirmative
defense appears on its face, his complaint may be subject to dismissal under Rule 12(b)(6). Jones, 127 S. Ct.
at 921; Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (“A complaint is subject to dismissal under
Rule 12(b)(6) when its allegations, on their face, show that an affirmative defense bars recovery on the
claim.”). On the other hand, once “matters outside the pleadings are presented,” as they were in this case,
a motion for dismissal pursuant to 12(b)(6) is no longer appropriate, and “the motion must be treated as one
for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).
23
accord Ruggiero v. County of Orange, 467 F.3d 170, 173 (2d Cir. 2006) (failure
to exhaust under the PLRA).
A district court should not grant summary judgment where genuine issues
of material fact exist about an affirmative defense. See Fed. R. Civ. P. 56(c); see
also Mason v. Bridger, 261 F. App’x 225, 227-28 (11th Cir. 2008) (unpublished)
(failure to exhaust under the PLRA); Lyons v. Serrano, 205 F. App’x 719, 722
(11th Cir. 2006) (unpublished) (same); Pri-Har v. Corrs. Corp., 154 F. App’x
886, 887 (11th Cir. 2005) (unpublished) (same). This is our usual procedural
practice with respect to affirmative defenses, whether it be the defense of statute
of limitations, see, e.g., Morton’s Mkt., 198 F.3d at 833 (reversing the district
court’s grant of summary judgment where genuine issue of material fact existed
as to whether statute of limitations was tolled), or failure to exhaust under Title
VII, see, e.g., Stewart, 232 F.3d at 846 (reversing the district court’s grant of
summary judgment for failure to exhaust where genuine issue of material fact
existed as to whether the exhaustion was timely).
The majority departs from our usual procedural practice by directing
district courts to treat failure to exhaust not as an affirmative defense, but to
24
consider it on a “motion to dismiss” not enumerated in Rule 12(b).3 More
strikingly, rather than submitting genuine issues of material fact to the jury, the
majority compels district courts to decide these factual issues. Cf. Fed. R. Civ. P.
56(c).
As support for its position, the majority cites Ninth Circuit precedent,
including Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), which treats failure to
exhaust under the PLRA as a matter in abatement, subject to an unenumerated
Rule 12(b) motion to dismiss. Wyatt was decided, however, in light of long-
standing Ninth Circuit precedent which treats exhaustion in other contexts under
this particular procedural framework. See Ritza v. Int’l Longshoremen’s and
Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1988) (per curiam) (failure
to exhaust contractual grievance procedures); Stauffer Chem. Co. v. Food & Drug
Admin., 670 F.2d 106, 108 (9th Cir. 1982) (failure to exhaust administrative
remedies); Studio Elec. Technicians Local 728 v. Int’l Photographers of the
Motion Picture Indus., Local 659, 598 F.2d 551, 552 n. 2 (9th Cir. 1979) (failure
3
Although exhaustion under the PLRA is an affirmative defense, the majority regards it as “a matter of
judicial administration,” likening it to lack of subject matter jurisdiction, lack of personal jurisdiction,
improper venue, or ineffective service of process. Each of the latter defenses, however, are enumerated in
Rule 12(b), Fed. R. Civ. Pro. 12(b)(1)-(4), while failure to exhaust is not. In the context of failure to exhaust
under the PLRA, the Supreme Court has indicated that deviations from the usual procedural practice “must
be obtained by the process of amending the Federal Rules, and not by judicial interpretation.” Jones, 127
S. Ct. at 922 (internal quotation marks omitted).
25
to exhaust intra-union remedies). Thus, the Wyatt court did not depart from its
usual procedural practice when considering exhaustion under the PLRA.4
This Court, on the other hand, has consistently treated exhaustion in other
contexts on summary judgment, determining whether “there is no genuine issue
of material fact.” Counts v. Am. Gen. Life and Accident Ins. Co., 111 F.3d 105,
108 (11th Cir. 1997) (failure to exhaust administrative remedies under ERISA);
Turner v. Am. Fed’n of Teachers Local 1565, 138 F.3d 878, 881-82 (11th Cir.
1998) (failure to exhaust contractual remedies under the LMRA); Stewart, 232
F.3d at 846 (failure to exhaust administrative remedies under Title VII). The
majority would subject exhaustion under the PLRA to an entirely different
procedural framework than the one this Court applies to exhaustion in other
contexts.
4
It is also worth noting that several district courts have expressed concern that Wyatt is irreconcilable
with Jones. See Chatman v. Johnson, No. CIV S-06-0578 MCE EFB P, 2007 WL 2023544, at *3 (E.D. Cal.
July 11, 2007) (“While the Ninth Circuit [in Wyatt] has stated that Rule 12(b) is the proper mechanism for
resolving questions [of exhaustion under the PLRA] the reason underlying that decision has been
undermined. [Wyatt] found that failure to exhaust was a matter in abatement which should be raised in a
motion made under ‘unenumerated Rule 12(b).’ However, the United States Supreme Court [in Jones]
recently clarified that failure to exhaust is an affirmative defense which defendant has the burden of pleading
and proving. Federal courts appropriately consider affirmative defenses on summary judgment.” (citations
and footnote omitted)); Gregory v. Adams, No. CIV S-05-1393 FCD EFB P, 2007 WL 2481769, at *3 (E.D.
Cal. Aug. 29, 2007) (same); Maraglia v. Maloney, 499 F. Supp. 2d 93, 94-9 (D. Mass. 2007); Lunney v.
Brureton, No. 04 Civ. 2438(LAK)(GWG), 2007 WL 1544629, at *10 n.4 (S.D.N.Y. May 29, 2007).
26
In light of the PLRA and Title VII’s purposes, I see no reason to treat
exhaustion under each statute differently. Congress enacted the PLRA, in part,
“to reduce the quantity and improve the quality of prisoner suits” and to “afford[]
corrections officials time and opportunity to address complaints internally before
allowing the initiation of a federal case.” Porter v. Nussle, 534 U.S. 516, 524-25,
122 S. Ct. 983, 988, 152 L. Ed. 2d 12 (2002). Indeed, “in some instances,
corrective action taken in response to an inmate’s grievance might . . . obviat[e]
the need for litigation.” Id. at 525. Likewise, in order to promote cooperation
and voluntary compliance with Title VII, as opposed to litigation, Congress
created an administrative framework to encourage parties to “settle disputes
through conference, conciliation, and persuasion” before allowing the aggrieved
party to file a lawsuit. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.
Ct. 1011, 1017, 39 L. Ed. 2d 147 (1974). This Court treats failure to exhaust
under Title VII on summary judgment, whereby a court “must avoid weighing
conflicting evidence or making credibility determinations.” Stewart, 232 F.3d at
848 (reversing a district court’s grant of summary judgment for failure to exhaust
under Title VII due the existence of a genuine issue of material fact as to whether
exhaustion was timely). I see no compelling reason to depart from this practice
when dealing with failure to exhaust under the PLRA.
27
Furthermore, I am unaware of, and majority does not point out, any
precedent wherein this Court has treated exhaustion, or any other affirmative
defense, as a “matter in abatement,” directing a district court to decide genuine
issues of material fact. Accordingly, by departing from our usual procedural
practice with respect to exhaustion and other affirmative defenses, and treating
exhaustion under the PLRA under this novel procedural framework, the majority
adopts an approach that is in tension with Jones. See 549 U.S. at —, 127 S. Ct. at
919 (stressing that when the PLRA is silent on a procedural issue “the usual
practice should be followed”).
Lastly, treating exhaustion on summary judgment does not undermine
Congress’s intent in enacting the PLRA. A prisoner cannot defeat summary
judgment by relying on sham affidavits, bare and self-serving allegations, or other
evidence that is incredible as a matter of law. He must raise more than a mere
scintilla of evidence in support of his position: in order to defeat summary
judgment, there must be evidence on which the jury could reasonably find for the
prisoner. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L.
Ed. 2d 202 (1986)). In the vast majority of cases where the defendant raises
exhaustion, a prisoner’s failure to exhaust will be clear. In these cases, summary
28
judgment should be granted. In some cases, however, where enough evidence
exists such that a jury could reasonably find that the prisoner has exhausted his
available remedies, the court should abstain from weighing the evidence and deny
summary judgment.
29