Okey Garry Okpala v. D. B. Drew

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 24, 2007
No. 06-16257 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-01379-CV-1-KOB-JEO

OKEY GARRY OKPALA,

Plaintiff-Appellant,

versus

D. B. DREW, Warden, Federal
Correctional Institution,
Talladega, Alabama,
FEDERAL CORRECTIONAL INSTITUTION,
TALLADEGA, ALABAMA,
FEDERAL BUREAU OF PRISONS,
ASSOCIATE WARDEN M. M. MITCHELL,
C. RATLEDGE, Unit Manager, Delta
Unit, FCI, Talladega, Alabama,
et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(August 24, 2007)
Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Okey Garry Okpala, a federal prisoner proceeding pro se, appeals the district

court’s sua sponte dismissal of his Bivens 1 action for failure to exhaust

administrative remedies and failure to state a claim. After careful review of the

record and Okpala’s brief, we affirm.

A civil complaint filed by a prisoner seeking redress from a government

entity, officer or employee is screened by the district court, pursuant to 28 U.S.C.

§ 1915A. That section provides that the court shall dismiss the complaint if it is

“frivolous, malicious, or fails to state a claim upon which relief may be granted.”

28 U.S.C. § 1915A(b)(1). We review de novo the district court’s sua sponte

dismissal under § 1915A(b). Leal v. Georgia Dept. of Corr., 254 F.3d 1276, 1279

(11th Cir. 2001).

Section 1997e of Title 42, United States Code, as amended by the Prison

Litigation Reform Act (“PLRA”), provides the following: “No action shall be

brought with respect to prison conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail, prison, or other correctional

1
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).

2
facility until such administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). Pursuant to the three-tier system of administrative remedies

provided by 28 C.F.R. §§ 542.10, 542.11-542.16, and the BOP Program Statement

1330.7, in order to exhaust administrative remedies, Okpala was required first to

file a written complaint with the warden on form BP-9; he then was required to

appeal the Warden’s decision to the BOP regional director on form BP-10; finally,

Okpala was required to appeal to the BOP general counsel on form BP-11. It is

undisputed that prior to filing his action in district court, Okpala had not received a

decision on his form BP-11.2

On this record, the district court did not err by dismissing the complaint,

pursuant to § 1915A, because Okpala’s failure to exhaust administrative remedies -

- an affirmative defense -- was clear from the face of the complaint. Cf. Jones v.

Bock, 127 S. Ct. 910, 920-21 (2007) (holding that the PLRA’s exhaustion

requirement is an affirmative defense, but reiterating that under § 1915A(b), the

normal pleading rules remain unchanged, and thus, “[w]hether a particular ground

for opposing a claim may be the basis for dismissal for failure to state a claim

2
We are unpersuaded by Okpala’s argument that his exhaustion of remedies after he filed
this appeal mandates reversal. It is well-settled that the PLRA requires prisoners to exhaust
administrative remedies before filing suit with respect to prison conditions. 42 U.S.C. § 1997e(a);
Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir. 1998); see also Higginbottom v. Carter, 223
F.3d 1259, 1261 (11th Cir. 2000) (recognizing that “[t]he plain language of [§ 1997e(a)] makes
exhaustion a precondition to filing an action in federal court”).

3
depends on whether the allegations in the complaint suffice to establish that

ground, not on the nature of the ground in the abstract.”). Where, as here, an

affirmative defense appears on the face of a prisoner’s complaint, thereby revealing

that the prisoner cannot state a claim, the PLRA continues to require a district court

to dismiss the complaint. Cf. id. at 920-21 (noting that under Fed. R. Civ. P.

12(b)(6), a complaint may be dismissed if an affirmative defense, such as the

statute of limitations or official immunity, appears on the face of the complaint).

AFFIRMED.