Case: 08-30419 Document: 00511020958 Page: 1 Date Filed: 02/04/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 4, 2010
No. 08-30419 Charles R. Fulbruge III
Clerk
KEITH MARK DILLON
Plaintiff-Appellant
v.
BRAD ROGERS; T.W. THOMPSON; SERGEANT EDWARDS; SERGEANT
WALKER; DEPUTY HARTZGLOU; LIEUTENANT HOLLIFIELD; THOMAS
PIETSCH
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
Before BENAVIDES, DENNIS, ELROD, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
Appellant Keith Mark Dillon appeals from the dismissal on summary
judgment of his suit under 42 U.S.C. § 1983 for abuse he allegedly suffered while
being held as a prisoner in Jena, Louisiana. For the reasons described below, we
vacate the judgment of the district court and remand for further development of
the record in this case.
I.
On August 29, 2005, when Hurricane Katrina made landfall in
southeastern Louisiana, Dillon was being held as a prisoner at the Jefferson
Parish Correctional Center (“Jefferson”), within the New Orleans metropolitan
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area. Due to the devastation caused by the hurricane, the Louisiana
Department of Public Safety and Corrections (“DPSC”) evacuated Dillon and
other inmates from Jefferson on August 31, 2005 and moved them to a
temporary facility in Jena, Louisiana (“Jena”). Dillon alleges that he was beaten
and mistreated by Appellees in late September 2005 during his detention at
Jena, resulting in hearing loss and other injuries. Shortly after this alleged
abuse, in early October 2005, DPSC transferred Dillon to Allen Correctional
Center (“Allen”) in Kinder, Louisiana, and the temporary facility at Jena closed.
In July 2006, Dillon filed this section 1983 suit alleging violations of his
civil rights during his incarceration. He proceeded pro se until late March 2007,
after which he was represented by counsel. In November 2007, Appellees filed
a motion to dismiss Dillon’s suit for failure to exhaust administrative remedies,
and shortly thereafter the magistrate judge hearing this case recommended that
Appellees’ motion be granted. However, the district court rejected the
magistrate’s recommendation and under Rule 12(d) converted Appellees’ motion
into a motion for summary judgment, as the parties had submitted evidence with
their briefing going beyond the factual allegations in their pleadings.
Subsequently, the district court granted summary judgment for Appellees in
March 2008, on the ground that Dillon had failed to exhaust administrative
remedies before bringing this suit. This appeal followed.
II.
Under the Prison Litigation Reform Act (“PLRA”), prisoners must properly
exhaust “such administrative remedies as are available” prior to filing a section
1983 action concerning prison conditions. 42 U.S.C. § 1997e(a) (2006); Woodford
v. Ngo, 548 U.S. 81, 83-84 (2006). Louisiana has a two-step Administrative
Remedy Procedure (“ARP”) for inmates, which they are required to use before
filing suit in district court. La. Admin. Code tit. 22, § 325(A) (2009). Generally,
the inmate commences the first step of the grievance process by writing a letter
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to the warden of his or her institution briefly setting out the basis for his or her
claim and the relief sought. § 325(G)(1)(a). The grievance letter should be
written within 90 days of the alleged event that is the subject of the complaint.
Id. The Warden has 40 days from the day the grievance is received to respond
to the request. Id. If following transfer to a new institution, the inmate files a
grievance regarding an action taken by his or her former institution, the former
institution “will complete the processing through the first step.” § 325(G)(8).
Furthermore, “[i]f the inmate believes the complaint is sensitive and would be
adversely affected if the complaint became known at [his or her] institution,” he
or she may skip the first step and file his or her complaint directly with
Louisiana’s Assistant Secretary of Adult Services. § 325(G)(6)(a).
The inmate may proceed to the second step of the ARP by appealing to the
Secretary of the DPSC if he or she is dissatisfied with the first step response.
§ 325(G)(2)(a). If the inmate never receives a response to a first step grievance,
then he or she is entitled to proceed to the second step of the process upon the
expiration of the first step response time limit. § 325(G)(4)(a). If the inmate is
not satisfied with the second step response, he or she may then file suit in
district court. § 325(G)(2)(b).
III.
“We review the grant of summary judgment de novo, applying the same
standards as the district court.” In re Egleston, 448 F.3d 803, 811-12 (5th Cir.
2006) (internal quotations omitted). Summary judgment is appropriate when
“the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “We construe
all facts and inferences in the light most favorable to the nonmoving party when
reviewing grants of motions for summary judgment.” Murray v. Earle, 405 F.3d
278, 284 (5th Cir. 2005). Whether a prisoner has exhausted administrative
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remedies is a mixed question of law and fact. Carty v. Thaler, 583 F.3d 244, 252
(5th Cir. 2009). Similarly, while it is a question of law whether administrative
remedies qualify as being “available” under 42 U.S.C. § 1997e(a), availability
may sometimes turn on questions of fact. See Snider v. Melindez, 199 F.3d 108,
113-14 (2d Cir. 1999).
Since exhaustion is an affirmative defense, the burden is on Appellees to
demonstrate that Dillon failed to exhaust available administrative remedies.
Jones v. Bock, 549 U.S. 199, 216 (2007). Consequently, Appellees must establish
beyond peradventure all of the essential elements of the defense of exhaustion
to warrant summary judgment in their favor. See Martin v. Alamo Cmty. Coll.
Dist., 353 F.3d 409, 412 (5th Cir. 2003).
A.
Dillon does not seriously dispute that he failed to satisfy the steps of the
ARP that are prerequisite to filing a section 1983 action. Rather, he argues that
his suit should not be barred because there was no remedy “available” to him
during the 90-day period following the alleged abuse. Alternatively, he also
argues his failure to exhaust should be excused on the basis of estoppel or the
“special circumstances” surrounding his detention at Jena.
In opposition to Appellees’ various motions seeking to dismiss this case,
Dillon submitted affidavits alleging that no administrative grievance procedures
were available to prisoners at Jena and that prisoners were explicitly told not
to submit grievances. Dillon asserts that when he sought to file an
administrative complaint at Jena after he was abused in late September 2005,
Appellee Brad Rogers ordered him to kneel down for approximately an hour and
told him to “forget” about filing a grievance. He also claims that guards checked
prisoners’ outgoing mail and destroyed writings detailing abuses, blocking him
from filing a “sensitive issues” grievance under La. Admin. Code tit. 22, §
325(G)(6)(a). Nevertheless, Dillon did give a visiting lawyer a hand-written
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grievance, which he expected the lawyer to deliver to the DPSC. Dillon
discovered after he had filed suit that the lawyer had failed to forward the
grievance to the DPSC.
After the DPSC transferred Dillon to Allen in early October 2005, the 90-
day period during which he could have filed a grievance under section
325(G)(1)(a) had not yet elapsed and would not do so until late December.
However, Dillon alleges that Allen’s Captain Wheaton and inmate counsel
Dennis Coleman told him that he could not file an administrative grievance at
Allen for abuse suffered at Jena. Nevertheless, Dillon claims to have submitted
several grievances at Allen, requesting medical treatment for injuries sustained
at Jena and inquiring whether he was actually barred from filing a grievance at
Allen for abuse at Jena. Even if these grievances filed at Allen could qualify as
“first step” grievances applicable to the claims advanced in this suit, Dillon never
pursued them to the “second step” of the ARP process under section 325(G)(4)(a).
B.
Dillon argues this suit may proceed because there were no administrative
remedies “available” to exhaust at Jena and Allen. When “the relevant
administrative procedure lacks authority to provide any relief or to take any
action whatsoever in response to a complaint,” exhaustion is not required under
the PLRA because there is no “available” remedy. Booth v. Churner, 532 U.S.
731, 736 (2001); see also Days v. Johnson, 322 F.3d 863, 867-68 (5th Cir. 2003)
(per curiam) (finding remedy “unavailable” when prisoner’s injury prevented him
from filing grievance), overruled by implication on other grounds by Jones, 549
U.S. at 216.1 We are unable to determine whether administrative remedies were
1
Of course, an administrative remedy does not become unavailable
simply because a prisoner has not timely or properly filed a grievance and is
consequently later barred from seeking further administrative relief. See
Woodford, 548 U.S. at 83-84.
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“available” for Dillon because the record was not sufficiently developed when the
district court granted summary judgment for Appellees.
The district court did not address whether any administrative remedies
were available to Dillon at Jena, instead focusing its analysis on whether
remedies were available at Allen. We agree with the district court that the focus
should be on availability at Allen—if remedies were available to Dillon at Allen,
their unavailability at Jena would not suffice to excuse his failure to exhaust.
Dillon was allegedly beaten at Jena in late September 2005 and was transferred
in early October 2005. When he arrived at Allen, he could have filed a timely
grievance for mistreatment at Jena anytime before late December 2005. See La.
Admin. Code tit. 22, § 325(G)(1)(a) (establishing 90-day deadline for filing
grievance following incident). If impediments to filing grievances render
remedies unavailable at one facility, remedies may become available again once
a prisoner has been transferred, unless there are other problems at the new
facility. See Bryant v. Rich, 530 F.3d 1368, 1379 (11th Cir. 2008).
Consequently, we turn to assessing the availability of remedies at Allen.
Dillon raises two arguments concerning availability at Allen. First, he contends
that the closure of Jena resulted in the unavailability of administrative remedies
at Allen. Section 325(G)(8) provides that “if [an inmate] files a request after
transfer on an action taken by the sending institution, the sending institution
will complete the processing through the first step.” La. Admin. Code tit. 22, §
325(G)(8). Since Jena closed after Dillon’s transfer, he asserts Jena could not
“complete the processing” of his grievance, and therefore there was no
administrative remedy available to him at Allen for the abuse he suffered at
Jena.
Second, Dillon argues that his failure to exhaust should be excused
because Captain Wheaton and inmate counsel Dennis Coleman allegedly told
him that he could not file a grievance at Allen for abuse suffered at Jena. While
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Dillon styles this as an estoppel argument, these statements by Wheaton and
Coleman could conceivably impact whether any remedies were “available” to
Dillon under 42 U.S.C. § 1997e(a). See Brown v. Croak, 312 F.3d 109, 112-13 (3d
Cir. 2002) (concluding that statements by prison officials about administrative
remedy process may render remedies unavailable). The district court rejected
Dillon’s assertion that these statements excuse exhaustion, relying on Lyon v.
Vande Krol, where the Eighth Circuit held that a prisoner’s mistaken
“subjective” understanding of a grievance procedure is irrelevant for determining
whether remedies are actually available. 305 F.3d 806, 809 (8th Cir. 2002). The
district court also found that allowing Dillon to rely on Wheaton’s and Coleman’s
statements would be inconsistent with this circuit’s “strict” approach to the
PLRA’s exhaustion requirement. See Days, 322 F.3d at 866 (citing Richardson
v. Spurlock, 260 F.3d 495, 499 (5th Cir.2001) and Wright v. Hollingsworth, 260
F.3d 357, 358 (5th Cir.2001)). Under our strict approach, we have found that
mere “substantial compliance” with administrative remedy procedures does not
satisfy exhaustion; instead, we have required prisoners to exhaust available
remedies properly. See Wright, 260 F.3d at 358; Spurlock, 260 F.3d at 499.
However, our strict approach does not absolutely foreclose the possibility that
prison officials’ statements concerning administrative remedies can render such
remedies unavailable. We have long recognized the importance of ensuring that
inmates have avenues for discovering the procedural rules governing their
grievances, see Alexander v. Tippah County, 351 F.3d 626, 630 (5th Cir. 2003)
(per curiam) (premising ruling that remedies were available on prisoner’s
knowledge of grievance procedures); Ferrington v. La. Dep’t of Corrs., 315 F.3d
529, 532 (5th Cir. 2002) (per curiam) (premising ruling that remedies were
available on fact that prisoner “was well aware of the general procedural
requirements described in the inmate handbook”), as has the Eighth Circuit. See
Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (premising ruling that
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remedies were available on prisoners’ admission of receipt of prisoner guidebook
and guidebook’s explanation of “the applicable grievance procedure and its
application to all aspects of inmate life”). When a prisoner has no means of
verifying prison officials’ claims about the administrative grievance process,
incorrect statements by officials may indeed make remedies unavailable.
Unfortunately, we are unable to determine whether the district court’s
grant of summary judgment was appropriate, as no discovery has been
conducted in this case and the record is fragmentary as a result. First, there is
not enough evidence in the record concerning what Dillon knew or could have
discovered about the ARP system for us to determine whether Wheaton’s and
Coleman’s alleged statements made remedies unavailable. Since Dillon filed
grievances at Allen and asked the lawyer visiting Jena to mail a grievance
directly to the DPSC, it is clear that Dillon had some understanding of the ARP
system. What is less clear is what Dillon knew or could have discovered about
the proper manner to proceed with a grievance regarding events at Jena after
its closure and his transfer. The record does not contain a copy of the Allen
inmate handbook or other guides to the ARP system that Dillon could have
relied on instead of Wheaton and Coleman. The record does indicate that upon
incarceration, prison officials usually describe the ARP system to new inmates
at orientation. However, before Katrina, Dillon was incarcerated at Jefferson,
a parish facility, and the record suggests that DPSC facilities like Allen could
have different grievance procedures than parish facilities do. Without a firmer
grip on what Dillon could have discovered about the truth of Wheaton’s and
Coleman’s claims in materials like an inmate handbook, we cannot determine
if summary judgment was warranted.
Second, during oral argument, we questioned Appellees’ counsel about the
applicability in this situation of section 325(G)(8)’s directive that a “first step”
grievance concerning Jena should be processed at Jena. In response, counsel
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stated that the DPSC was operating under “emergency procedures” while Dillon
was incarcerated at Jena and Allen, and that consequently the DPSC “could
suspend any rules as necessary” during this period, such as the rule that Jena
process all “first step” grievances from transferred inmates. Since the record
does not clearly establish whether this provision was in force while Dillon was
at Allen, we find it inappropriate at this time to rule on its meaning. Cf.
Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 527-29
(5th Cir. 1982) (concluding that summary judgment was “inappropriate” because
record did not contain complete copy of collective bargaining agreement being
interpreted).
These problems notwithstanding, Appellees assert that there is sufficient
evidence in the record to demonstrate that administrative remedies were
available at Allen. Specifically, they point to DPSC records showing that from
the date of Dillon’s transfer to Allen in early October 2005 until the date this
suit was filed in July 2006, 53 evacuee-inmates at Allen filed grievances. During
the same period, DPSC headquarters directly received five grievances from
evacuee-inmates. While this evidence demonstrates that Katrina and Rita
evacuees did file grievances while at Allen, and that they also sent grievances
directly to DPSC headquarters, there is no indication that any of these
grievances concerned events that took place at Jena and, even if they did, that
any remedy was available in light of the facility’s closure. Due to the
fragmentary nature of the record, we direct the district court to permit Dillon to
conduct discovery concerning exhaustion and the availability of administrative
remedies.
C.
In addition to arguing that administrative remedies were unavailable,
Dillon contends that Appellees should be estopped from raising the defense of
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exhaustion. Specifically, he points to his treatment at Jena, where Appellee
Brad Rogers allegedly ordered Dillon to kneel in Rogers’ office until he “forgot”
about filing a grievance, and where corrections officials allegedly destroyed all
outgoing mail containing grievances. Also, as another basis for estoppel, Dillon
relies on the alleged advice from Wheaton and Coleman indicating that filing a
grievance at Allen for problems at Jena was not possible.
“Estoppel is an equitable doctrine invoked to avoid injustice in particular
cases,” and “a hallmark of the doctrine is its flexible application.” Heckler v.
Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 59 (1984). In a
number of PLRA cases, we have held that estoppel provides a basis for excusing
a prisoner’s failure to exhaust administrative remedies. See, e.g., Days, 322 F.3d
at 866; Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998), overruled by
implication on other grounds by Jones, 549 U.S. at 216. However, in this case,
we conclude that estoppel is not appropriate. A party claiming estoppel must,
among other things, demonstrate that he or she “reasonably relied on the
conduct of the other to his [or her] substantial injury.” Mangaroo v. Nelson, 864
F.2d 1202, 1204 (5th Cir. 1989). In this case, Dillon cannot show detrimental
reliance on the alleged interference with the ARP process at Jena because it was
not the cause of his inability after his transfer to file a grievance concerning his
treatment at Jena. Furthermore, although the alleged statements by Wheaton
and Coleman may well have rendered remedies unavailable, as described above,
they cannot estop Appellees. Neither Wheaton nor Coleman are defendants in
this case, and Appellees are being sued in their individual capacities. See
Macias v. Zenk, 495 F.3d 37, 45-46 (2d Cir. 2007) (noting that “depending on the
facts pertaining to each defendant, it is possible that some individual defendants
may be estopped, while others may not be” (quoting Hemphill v. New York, 380
F.3d 680, 689 (2d Cir. 2004)); Sur v. Glidden-Durkee, 681 F.2d 490, 493 (7th Cir.
1982) (explaining that each defendant “may be estopped . . . only by reason of its
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own actions”). Consequently, Appellees are not estopped from raising
exhaustion as an affirmative defense.
D.
Finally, Dillon asserts that his failure to exhaust should be excused
because of this case’s “special circumstances,” namely Hurricane Katrina, his
evacuation to Jena, the ad-hoc arrangements surrounding his detention at the
temporary facility, and the alleged abuse of prisoners there. While Dillon’s
allegations, if true, indicate that conditions at Jena were reprehensible, we do
not believe this grants us license to carve out new exceptions to the PLRA’s
exhaustion requirement, an area where our authority is constrained. Cf.
Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002) (finding that PLRA forbids
courts from recognizing “undue prejudice” exception to PLRA’s exhaustion
requirement). To the extent that Hurricane Katrina and its aftermath disrupted
Louisiana’s ARP system, we believe such issues can be addressed by analyzing
whether any administrative remedies are “available” under section 1997e(a).
IV.
Since we remand this case, we must also address the procedure by which
the district court should resolve disputes pertaining to exhaustion of
administrative remedies. When Appellees filed their motion to dismiss for
failure to exhaust administrative remedies, they attached affidavits and records
in support of the factual claims in their motion. Dillon responded in kind,
providing several affidavits and copies of grievances to support his motion
opposing Appellees’ motion to dismiss. Faced with this evidence going beyond
the facts alleged in the parties’ pleadings, the district court converted Appellees’
motion to dismiss into a motion for summary judgment. Rule 12(d) provides that
“[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56.” As noted above, on summary judgment,
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all facts and inferences must be construed in the light most favorable to the
nonmoving party. Murray, 405 F.3d at 284.
Appellees argue, however, that the district court should not have
converted their motion. Instead, they assert that the court should have ruled on
their motion to dismiss and, if necessary, resolved any factual disputes
concerning exhaustion on the basis of the evidence before it. In support of this
position, Appellees point to the decisions of three of our sister circuits in Pavey
v. Conley, 544 F.3d 739, 741-42 (7th Cir. 2008), Bryant v. Rich, 530 F.3d at 1373-
77, and Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). In these cases,
the Seventh, Ninth, and Eleventh Circuits all agreed that judges may resolve
factual disputes concerning exhaustion of remedies without the participation of
a jury. However, they diverged as to the proper procedure for deciding these
questions. In both Wyatt and Bryant, the Ninth and Eleventh Circuits held that
exhaustion should be resolved via an “unenumerated” Rule 12(b) motion rather
than on a motion for summary judgment. 315 F.3d at 1119; 530 F.3d at 1374-75.
On the other hand, in Pavey, the Seventh Circuit suggested that summary
judgment provides a proper vehicle for settling exhaustion disputes. 544 F.3d
at 741.
We agree with our sister circuits that factual disputes concerning
exhaustion may be resolved by judges. However, we also conclude that when
courts rule on exhaustion on the basis of evidence beyond the pleadings, the
nonmoving party should be granted the protections of Rule 56. Consequently,
we find that the district court did not err in converting Appellees’ motion into a
motion for summary judgment under Rule 12(d).
A.
There is a right to a jury trial under the Seventh Amendment for actions
brought under section 1983 seeking legal relief. See City of Monterey v. Del
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Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999). This right, however,
does not guarantee jury resolution of all factual disputes that arise in the course
of litigation. Judges have the power to resolve certain threshold issues without
the participation of a jury before the adjudication of a case on its merits. For
example, when subject matter jurisdiction over a case turns on disputed facts,
judges have the power to resolve these disputes in assuring themselves of their
courts’ jurisdiction. See, e.g., Wetmore v. Rymer, 169 U.S. 115, 120-21 (1898);
Chatham Condo. Ass’ns v. Century Vill., Inc., 597 F.2d 1002, 1012 (5th Cir.
1979). That said, a prisoner’s failure to exhaust administrative remedies does
not deprive courts of subject matter jurisdiction in suits covered by the PLRA.
See Woodford, 548 U.S. at 101. But the factfinding power of judges is not limited
to addressing subject matter jurisdiction. It also extends to deciding factual
questions concerning certain affirmative defenses like personal jurisdiction and
venue, which may be waived by a defendant. See, e.g., Walk Haydel & Assocs.,
Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241-42 (5th Cir. 2008) (personal
jurisdiction); Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1139-40 (9th Cir.
2004) (venue).
Exhaustion resembles personal jurisdiction and venue in that it is an
affirmative defense that allows defendants to assert that plaintiffs have not
invoked the proper forum for resolving a dispute. Pavey, 544 F.3d at 741. The
Supreme Court has described exhaustion in similar terms, as “rule of judicial
administration” controlling access to the courts, Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 50-51 & n.9 (1938), akin to doctrines like
“abstention, finality, and ripeness . . . that govern the timing of federal-court
decisionmaking.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992). Since
exhaustion is a threshold issue that courts must address to determine whether
litigation is being conducted in the right forum at the right time, we conclude
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that judges may resolve factual disputes concerning exhaustion without the
participation of a jury.2
B.
Having determined that disputed facts about exhaustion may be decided
by judges, we now address whether the district court’s conversion of Appellees’
motion to dismiss into a motion for summary judgment was appropriate. The
Ninth and Eleventh Circuits have both concluded that questions concerning
exhaustion should be resolved on an unenumerated 12(b) motion to dismiss, and
not via summary judgment. Bryant, 530 F.3d at 1374-75; Wyatt, 315 F.3d at
1119-20. In this circuit, however, we have frequently approved of using
summary judgment to address exhaustion and other affirmative defenses not
enumerated in Rule 12(b). See, e.g., Swanson v. Hearst Corp. Long Term
Disability Plan, 586 F.3d 1016, 1019 (5th Cir. 2009) (per curiam) (affirming
summary judgment dismissal for failure to exhaust administrative remedies);
Mitchell v. Cont’l Airlines, Inc., 481 F.3d 225, 227, 232 (5th Cir. 2007) (approving
dismissal of suit without prejudice on summary judgment for failure to exhaust);
Hager v. NationsBank N.A., 167 F.3d 245, 247-48 & n.1 (5th Cir. 1999)
(approving of district court’s granting plaintiff “procedural safeguards of Rule
56” after defendant moved to dismiss for failure to exhaust but relied on
affidavits to support factual allegations); Songbyrd, Inc. v. Bearsville Records,
Inc., 104 F.3d 773, 775-76 & n.3 (5th Cir. 1997) (approving of district court
addressing affirmative defense of liberative prescription via summary
judgment); Carpenters Local Union No. 1846, 690 F.2d at 499-500, 527-29
2
We do not determine today who should serve as factfinder when
facts concerning exhaustion also go to the merits of a prisoner’s claim. See
Pavey, 544 F.3d at 741-42. In this case, the facts regarding the availability of
remedies at Allen do not overlap with the facts going to the merits of Dillon’s
claims alleging abuse at Jena.
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(genuine issue of material fact prevents dismissal on summary judgment for
failure to exhaust); Ecology Ctr. of La., Inc. v. Coleman, 515 F.2d 860, 865-67
(5th Cir. 1975) (same). We see no need to diverge from our common practice,
and consequently conclude that the district court did not err in addressing
Appellees’ exhaustion affirmative defense on summary judgment.3
C.
As a final matter, we now provide a brief summary of how district courts
should approach exhaustion questions under the PLRA. When the defendant
raises exhaustion as an affirmative defense, the judge should usually resolve
disputes concerning exhaustion prior to allowing the case to proceed to the
merits. If the plaintiff survives summary judgment on exhaustion,4 the judge
may resolve disputed facts concerning exhaustion, holding an evidentiary
hearing if necessary. Then, if the judge determines that the plaintiff has
3
In a number of cases, we have held that exhaustion under the PLRA
is considered “on pleadings without proof,” and that as “long as the plaintiff has
alleged exhaustion with sufficient specificity, lack of admissible evidence in the
record does not form the basis for dismissal.” Underwood v. Wilson, 151 F.3d
292, 296 (5th Cir. 1998) (per curiam), overruled by implication by Jones, 549 U.S.
at 216; see also Days, 322 F.3d at 866. These cases should not be read to suggest
that courts may never look beyond the pleadings in resolving exhaustion
questions, as the district court did in this case when it converted Appellees’
motion to dismiss into a motion for summary judgment. Underwood and Days
were decided before it became clear that exhaustion under the PLRA is not a
pleading requirement that plaintiffs must satisfy at the outset of litigation. See
Jones, 549 U.S. at 211-12; Johnson v. Johnson, 385 F.3d 503, 516 n.7 (5th Cir.
2004). Consequently, they addressed the proper standards for dismissing a
prisoner’s case sua sponte for failure to exhaust, a practice that is no longer
appropriate unless failure to exhaust is apparent on the face of a plaintiff’s
complaint. See Carbe v. Lappin, 492 F.3d 325, 327-28 (5th Cir. 2007).
4
In many cases, the judge will be able to rule on exhaustion without
allowing any discovery. However, in some cases, unique circumstances may
arise that necessitate allowing some discovery prior to ruling, such as where the
availability of administrative remedies is contested.
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exhausted administrative remedies or that his or her failure to exhaust should
be excused, the case may proceed to the merits. On appeal, when the judge
below has served as factfinder, we will review rulings on exhaustion de novo,
Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999), but will accept the judge’s
factual conclusions unless they are clearly erroneous. Carty, 583 F.3d at 252-53.
V.
For the foregoing reasons, we VACATE the district court’s grant of
summary judgment for Appellees and REMAND this case for discovery and
further development of the record.
16
Case: 08-30419 Document: 00511020958 Page: 17 Date Filed: 02/04/2010
No. 08-30419
DENNIS, Circuit Judge, concurring in part and concurring in the judgment.
I CONCUR in the judgment in this case and CONCUR in the opinion
except for Parts IIIC & IIID. In my view since the factual record in this case is
insufficiently developed this court cannot yet know whether the doctrines of
estoppel or “special circumstances” have any applicability. I therefore believe
reaching these questions is premature at this stage in the proceedings.
17