The opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-11060
____________________
RICKY J. JOHNSON,
Plaintiff-Appellant,
versus
DR SHARON LEWIS,
Medical Director of GDC, et al.,
Defendants,
DR KEVIN MARLER,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:16-cv-00453-TES-MSH
____________________
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2 Opinion of the Court 24-11060
Before BRANCH, LUCK, Circuit Judges, and MORENO,* District
Judge.
MORENO, District Judge:
Ricky Johnson is an inmate in the custody and care of the
Georgia Department of Corrections. Johnson was diagnosed with
Hepatitis C in 2009, but did not receive medication for it until nine
years later. By then, Johnson's Hepatitis C had progressed to stage
F4 cirrhosis with indications of severe liver inflammation. Johnson
sued numerous prison doctors alleging that they were deliberately
indifferent to his serious medical needs in violation of the Eighth
Amendment. The district court granted summary judgment in fa-
vor of the doctors and dismissed all claims against them. Johnson
appealed both the district court’s grant of summary judgment and
its denial of his motion to amend the complaint. This Court re-
versed the district court’s grant of summary judgment and re-
manded for trial. 1 The case proceeded to trial against the other de-
fendant medical doctors and resulted in a jury verdict in Johnson’s
favor.2 However, prior to trial, the district court granted judgment
on the pleadings in favor of Dr. Marler and dismissed him from the
case on the basis that Johnson failed to exhaust his administrative
* The Honorable Federico A. Moreno, United States District Judge for the
Southern District of Florida, sitting by designation.
1 Johnson v. Lewis, 83 F.4th 1319 (11th Cir. 2023).
2 Jury Verdict, Johnson v. Lewis, 16-00453 (M.D. Ga. Mar. 6, 2024).
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24-11060 Opinion of the Court 3
remedies under the Prison Litigation Reform Act. This appeal fol-
lowed.
We find that the district court did not abuse its discretion in
permitting Dr. Marler to file a motion for judgment on the plead-
ings, and we affirm the district court’s holding that Johnson failed
to exhaust his administrative remedies.
I. BACKGROUND
A. Factual History
The underlying lawsuit was previously appealed to this
Court. Johnson v. Lewis, 83 F.4th 1319 (11th Cir. 2023), provides a
thorough review of the many factual disputes in this case. We bor-
row from that opinion any overlapping material. First, we provide
some background on Hepatitis C (“HCV”) and the Georgia Depart-
ment of Corrections (“GDC”) policy for treating it.
Hepatitis C is a bloodborne virus that affects one’s liver. It
can cause liver scarring and “fibrosis.” The most extreme form of
liver damage from Hepatitis C is called “cirrhosis” and it can have
fatal effects. Hepatitis C may take a long time to progress but irre-
spective of the rate, it can only be cured with medication.
The GDC has a policy for treating patients with HCV,
which has and continues to evolve as new treatments
and medicines become available. Because the relevant
time period in this case spans from 2012-2018, two
GDC policies are at issue: the 2012 policy and the
2016 policy. The 2012 policy provided for the admin-
istration of a triple-drug treatment when patients met
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4 Opinion of the Court 24-11060
certain criteria, including a liver biopsy showing stage
2 fibrosis and grade 2 inflammation. The policy also
provided for exceptions, stating that it was
not intended to be a substitute for pro-
fessional judgment by the managing
physician, [gastrointestinal], or [infec-
tious disease] consultant. Treatment is
always to be individualized base[d] on
any unique patient factors.
In other words, patients who did not meet the testing
criteria could still qualify for treatment if approved by
the managing physician or other professionals over-
seeing the patient's care.
In August 2016, the GDC updated its policy to ac-
count for the availability of newer, more effective
treatments than the triple-drug regimen. The 2016
policy differed from the 2012 policy in a few relevant
ways. First, it recognized a new class of HCV antiviral
drugs. Second, it required the administration of a Fi-
broSure test instead of a liver biopsy as part of a pa-
tient's treatment eligibility determination. Finally, it
created three priority levels for treatment, with med-
ication generally reserved for Priority 1 patients as de-
termined by their FibroSure results.
Johnson v. Lewis, 83 F.4th 1319, 1329 (11th Cir. 2023).
Appellant Ricky Johnson is an inmate in the custody and care
of the Georgia Department of Corrections. He was diagnosed with
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24-11060 Opinion of the Court 5
Hepatitis C in 2009. On November 1, 2012, Dr. Chaudhary—who
is not a party to this appeal—prescribed the triple-drug therapy as
treatment for his Hepatitis C. He recommended that same treat-
ment for Johnson on April 25, 2013. At that time, Johnson and Dr.
Chaudhary agreed that Johnson would not begin treatment until
Johnson returned to Ware State Prison after a temporary reloca-
tion. Johnson returned in August 2013, but no treatment followed.
On May 9, 2014, while incarcerated at Ware State Prison, a
state-run prison within the GDC, Johnson filed a grievance stating:
I was approved for medical treatment for Hepatitis C.
Medical staff refuses to begin treatment . . . . I submit
that medical staff is being deliberately indifferent to a
serious medical need in violation of my 8th Amend-
ment right against cruel & unusual punishment. I
would like my treatment to begin immediately.
Ricky Johnson Grievance No. 173073, Ware State Prison, J.A. 1-1.
But, on July 31, 2014, Dr. Chaudhary withdrew the prescription for
triple-drug therapy and recommended continued monitoring, as
well as a repeat liver biopsy to take place in July 2015. The Ware
State Prison grievance was denied and Johnson appealed to the Of-
fice of Health Services Management in the GDC. The Department
denied the appeal on October 6, 2014.
On May 21, 2015, Johnson was transferred to Jenkins Cor-
rectional Facility, a private prison within the GDC. Appellee, Dr.
Kevin Marler, was the medical director and physician at Jenkins
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6 Opinion of the Court 24-11060
Correctional Facility. Johnson saw Dr. Marler for the first time in
July 2015.
At that time, Dr. Marler reviewed lab work and records for
Johnson, and conducted a physical exam. Dr. Marler notified John-
son that he would be placed in the chronic clinic, but would not
receive drug therapy. According to Johnson, Dr. Marler told him
he would consult with GDC doctors about the treatment, but John-
son never heard back. Johnson never received the liver biopsy that
Dr. Chaudhary recommended to take place by July 2015. Johnson
did have blood work done in July 2016, which Dr. Marler noted
“did not indicate a level of liver involvement then requiring treat-
ment.”
In April 2017, Dr. Lewis—who is not a party to this appeal—
reminded Dr. Marler that the GDC had updated its policy, in Au-
gust 2016, to require a FibroSure test as protocol for Hepatitis C.
In June 2017, Dr. Marler administered the test which indicated that
Johnson had liver cirrhosis and severe inflammation. On July 16,
Dr. Marler ordered an abdominal ultrasound to determine whether
the Fibro-Sure test results were an accurate reflection of the sever-
ity of Johnson's Hepatitis C. On November 2, 2017, Johnson was
transferred from Jenkins Correctional Facility to a different prison
and was no longer in Dr. Marler’s care.
B. Procedural History
Appellant Johnson filed the underlying lawsuit on October
12, 2016, against various prison doctors, including Appellee Dr.
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24-11060 Opinion of the Court 7
Marler. After years of pre-trial discovery, the district court set a fi-
nal dispositive motions deadline for July 31, 2019. Dr. Marler filed
a timely motion for summary judgment on numerous grounds. In
that motion, Dr. Marler argued that Johnson failed to exhaust his
administrative remedies. The district court adopted the recom-
mendation of the magistrate judge and denied Dr. Marler’s motion
for summary judgment on this point because the record was in-
complete on the matter and Dr. Marler bore the burden of proving
Johnson’s failure to exhaust. However, the court granted Dr.
Marler’s motion for summary judgment on all other grounds and
dismissed the case.
Johnson appealed on the basis that a reasonable jury could
find each of the defendants—including Dr. Marler—had been de-
liberately indifferent to his medical diagnosis and consequently vi-
olated his Eighth Amendment rights. This Court concluded that
there were genuine disputes of material fact as to whether the doc-
tors were deliberately indifferent to Johnson’s serious medical
needs and reversed the district court’s ruling. Johnson v. Lewis, 83
F.4th at 1328. The case was remanded to the district court.
On remand, a jury trial was set to begin on March 4, 2024.
Approximately three months before trial, Dr. Marler filed an expe-
dited motion for leave to file a dispositive motion on the exhaus-
tion issue. Johnson opposed the motion arguing lack of good cause,
forfeiture, and futility. Dr. Marler argued that the motion was per-
missible under Rule 12(c), that good cause existed because the ex-
haustion issue is a matter of abatement, and the issue had not been
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8 Opinion of the Court 24-11060
forfeited because it was raised in his initial motion for summary
judgment.
The district court held a telephonic hearing on January 23,
2024. Immediately following the hearing, the court granted Dr.
Marler’s motion as permitted under Federal Rule of Civil Proce-
dure 12(c). To ensure the motion did not delay trial, the district
court instructed Dr. Marler to file the motion the following day.
One day later, Dr. Marler filed a Rule 12(c) motion for judgment
on the pleadings based on the exhaustion defense. Johnson filed a
response on February 14, 2024. On February 23, 2024, the district
court granted Dr. Marler’s Motion for Judgment on the Pleadings,
finding that Johnson failed to exhaust his administrative remedies
as to Dr. Marler. In so doing, the district court noted that Dr.
Marler had been given “ample opportunity” to provide a sufficient
record for an exhaustion defense and his tactics were “frustrating
to say the least.” Nevertheless, the district court determined that
the “gracious drafting” of Rule 12(c) “undoubtedly permitted his
strategic maneuver.” Consequently, Dr. Marler was dismissed as a
defendant in the case. The two remaining defendant physicians
proceeded to a jury trial on the set date of March 4, 2024, conclud-
ing with a judgment in favor of Johnson. This appeal followed.
II. STANDARDS OF REVIEW
There are two issues that require our review in this case.
First, whether the district court erred in holding that Johnson did
not exhaust his administrative remedies against Dr. Marler. Sec-
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24-11060 Opinion of the Court 9
ond, whether the district court erred in granting Dr. Marler’s mo-
tion for leave to file an out-of-time dispositive motion under Fed-
eral Rule of Civil Procedure 12(c).
We review the exhaustion question de novo and defer to the
district court’s factual findings unless there is evidence of clear er-
ror. Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015). Clear
error is present if after reviewing all the evidence, we are “left with
the definite and firm conviction that a mistake has been commit-
ted.” Bryant v. Rich, 530 F.3d 1368, 1377 (11th Cir. 2008) (quotation
omitted).
District courts have broad discretion to manage their cases,
to control the dockets and scheduling orders. Chudasama v. Mazda
Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997); Clinton v. Jones,
520 U.S. 681 (1997). A decision to grant an out-of-time motion is
evaluated under the same standard as a modification of a pre-trial
scheduling order, which we review for abuse of discretion. Santiago
v. Lykes Bros. S.S. Co., 986 F.2d 423, 427 (11th Cir. 1993). “An abuse
of discretion occurs when a district court commits a clear error of
judgment, fails to follow the proper legal standard or process for
making a determination, or relies on clearly erroneous findings of
fact.” Yellow Pages Photos, Inc. v. Ziplocal, LP, 846 F.3d 1159, 1163
(11th Cir. 2017). Even if we find that the district court abused its
discretion, we defer to the district court’s decision so long as the
error was harmless. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261,
1276 (11th Cir. 2008). “[T]he standard for harmless error is whether
the complaining party’s substantive rights were affected.” Id.
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10 Opinion of the Court 24-11060
III. ANALYSIS
The Prison Litigation Reform Act (“the Act”) requires pris-
oners to exhaust all administrative remedies prior to suing in fed-
eral court challenging prison conditions. 42 U.S.C. § 1997e(a). The
exhaustion provision of the Act states:
No action shall be brought with respect to prison con-
ditions 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 reme-
dies as are available are exhausted.
42 U.S.C. § 1997e(a). The defendant bears the burden of proving
that the plaintiff has failed to exhaust his administrative remedies.
Jones v. Bock, 549 U.S. 199, 216 (2007).
The purpose of the exhaustion requirement is to “eliminate
unwarranted federal-court interference with the administration of
prisons” by putting prison officials on notice that there is a problem
and giving them “time and opportunity to address complaints in-
ternally before allowing the initiation of a federal case.” Goebert v.
Lee Cnty., 510 F.3d 1312, 1322 (11th Cir. 2007) (quoting Woodford v.
Ngo, 548 U.S. 81, 93 (2006)). The requirement is designed “to alert
prison officials to a problem, not to provide personal notice to a
particular official that he may be sued.” Jones, 549 U.S. at 219. Fur-
ther, “[a] prisoner need not name any particular defendant in a
grievance in order to properly exhaust his claim.” Parzyck v. Prison
Health Servs., Inc., 627 F.3d 1215, 1218–19 (11th Cir. 2010). The Act
“requires that a prisoner provide as much relevant information as
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24-11060 Opinion of the Court 11
he reasonably can in the administrative grievance process, [but] it
does not require that he do more than that.” Brown v. Sikes, 212
F.3d 1205, 1207 (11th Cir. 2000).
To properly exhaust administrative remedies under the Act,
a prisoner must comply with the prison’s grievance procedures at
his prison. Jones, 549 U.S. at 218. The GDC’s standard operating
procedures apply to “[a]ll offenders committed to the Department
of Corrections in state prisons [and] private prisons.” Ga. Dep’t of
Corr., Standard Operating Procedures, Statewide Grievance Proce-
dure, J.A. 240-4, at 1, Dec. 10, 2012. Therefore, Johnson was subject
to the same grievance procedures while he was at Ware State
Prison and Jenkins.
The GDC grievance procedures require the prisoner to (1)
file an original grievance, and (2) appeal to central office. Id. at 7.
Prisoners are limited to two active grievances at once, with some
exceptions. Id. at 6. The grievance complaint must be “a single is-
sue/incident” and must be filed “no later than 10 calendar days
from the date the offender knew, or should have known of the facts
giving rise to the grievance.” Id. at 7. The prisoner has “7 calendar
days from the date he/she receives the response to the Original
Grievance (including a rejection as untimely) to file a Central Of-
fice Appeal.” Id. at 11. “Where a Grievance is filed in reference to a
different facility, the Grievance Coordinator at the offender’s cur-
rent facility will retain a copy of the Grievance and will forward the
Original Grievance to the Grievance Coordinator at the named fa-
cility for processing.” Id. at 13-14. The Grievance Form instructs
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12 Opinion of the Court 24-11060
inmates that they “must include specific information concerning
[their] grievance to include dates, names of persons involved, and
witnesses.” Id. at Attach. 1.
A.
First, we address whether Johnson exhausted all administra-
tive remedies available against Dr. Marler. Johnson asks this Court
to reverse the district court’s ruling that he did not satisfy the ex-
haustion requirement. He argues that the grievance he filed and
appealed while at Ware State Prison satisfied the exhaustion re-
quirement for this case against Dr. Marler. Because we conclude
that Johnson’s claims against Dr. Marler do not concern the exact
same issue as his initial grievance, we affirm the district court’s
holding that Johnson failed to exhaust his administrative remedies.
In Parzyck, this Court considered whether a Florida prisoner
exhausted his administrative remedies against a prison doctor, Dr.
Cherry. 627 F.3d at 1217. To exhaust administrative remedies, the
Florida Department of Corrections’ grievance procedures required
the inmate to file a formal grievance with the warden at the prison
and to submit an appeal to the Office of the Secretary of the Florida
Department of Corrections. Id. at 1218. The inmate filed a formal
grievance in November 2006 complaining that he was denied con-
sultations with an orthopedic specialist as recommended by prison
medical staff to treat his severe back pain. Id. His formal grievance
was rejected, and he appealed to the Office of the Secretary. Id. The
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24-11060 Opinion of the Court 13
Secretary denied his appeal in March 2007. Id. It was at that mo-
ment that this Court indicated the inmate had exhausted his admin-
istrative remedies. Id. at 1219.
In January 2007, while Parzyck’s appeal to the Office of the
Secretary was pending, Dr. Cherry was appointed as the Chief
Health Officer at the prison. Id. at 1218. The district court con-
cluded that because the grievance only addressed acts and omis-
sions that occurred prior to Dr. Cherry’s appointment, Dr. Cherry
could not be held liable, therefore, the inmate had not exhausted
administrative remedies as to any claim against Dr. Cherry. But on
appeal, this Court held that the district court erred on the exhaus-
tion point by “confus[ing] the question of Dr. Cherry’s liability on
the merits of the claim with the separate and distinct question of
whether [the inmate] exhausted his administrative remedies.” Id.
Ultimately, the Parzyck Court held that the inmate’s griev-
ance sufficiently exhausted administrative remedies even though it
did not name Dr. Cherry because it had accomplished the Act’s
purpose by alerting prison officials to the problem—denial of an
orthopedic consult—and giving them the opportunity to resolve it
before being sued. Id. at 1219. The grievance procedures did not
require inmates to “file new grievances addressing every subse-
quent act by a prison official that contributes to the continuation of
a problem already raised in an earlier grievance.” Id. Therefore, the
inmate “was not required to initiate another round of the adminis-
trative grievance process on the exact same issue each time another
request for an orthopedic consultation was denied.” Id.; see also
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14 Opinion of the Court 24-11060
Johnson v. Johnson, 385 F.3d 503, 521 (5th Cir. 2004) (“[P]risoners
need not continue to file grievances about the same issue.”), Turley
v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (“[P]risoners need not
file multiple, successive grievances raising the same issue”), Howard
v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008) (explaining that an
inmate did not need to raise “redundant” grievances to satisfy the
exhaustion requirement).
Determining whether the exhaustion requirement has been
fulfilled requires us to decide whether the issue raised in this law-
suit is the “exact same issue” as the one previously grieved by the
inmate. Parzyck, 627 F.3d at 1219. In other words, we must decide
if the issue in this case constitutes “the continuation of a problem
already raised in an earlier grievance.” Id. If so, then the prison of-
ficials were given an “time and opportunity” to resolve the issue
prior to this suit, which is exactly what the exhaustion requirement
is intended to do. Woodford, 548 U.S. at 93. In comparing Johnson’s
grievance at Ware State Prison to his claims against Dr. Marler, we
find that the grievance did not concern the same issue as this suit.
In accordance with the GDC’s grievance procedures, John-
son filed an administrative grievance in May 2014 at Ware State
Prison requesting approved medical treatment for his Hepatitis C
to begin. Context clarifies that he specifically grieved about the tri-
ple-drug therapy treatment that Dr. Chaudhary had prescribed in
November 2012 and recommended again in April 2013. But Dr.
Chaudhary decided in July 2014 that the triple-drug therapy was no
longer the best course of action, withdrew the prescription for it,
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and recommended continued monitoring as well as a repeat liver
biopsy take place in July 2015. Thereafter, Johnson was transferred
to Jenkins in May 2015 and began seeing Dr. Marler in July 2015.
In this case, Johnson complains about three specific in-
stances of deliberate indifference by Dr. Marler. First, Johnson ar-
gues that Dr. Marler ignored Dr. Chaudhary’s recommendation for
a liver biopsy in July 2015 and substituted it with a FibroSure test
that was not conducted until June 2017. Johnson, 83 F.4th at 1330.
Second, that after receiving the FibroSure results indicating severe
progression of Johnson’s Hepatitis C—F4 liver cirrhosis—Dr.
Marler did nothing. Id. Third, that other than scheduling an ultra-
sound for Johnson which was conducted in August 2017, Dr.
Marler failed to treat Johnson’s Hepatitis C at all before Johnson
was transferred to another facility in November 2017. Id. In con-
trast, Johnson’s grievance at Ware State Prison concerned one spe-
cific issue: failure to receive triple-drug therapy. Accordingly, John-
son brings before us issues that prison officials never had time or
opportunity to resolve prior to being hailed into federal court. This
is in stark contrast to the inmate in Parzyck who alerted prison offi-
cials by complaining about the same issue in both his initial griev-
ance and in the lawsuit.
Johnson asserts that the Ware State Prison grievance alerted
prison officials to a more general issue: failure to treat Hepatitis C.
Accordingly, he argues that his complaints with respect to Dr.
Marler constitute the “exact same issue” as his complaints in his
initial grievance. But the Ware State Prison grievance states, “I was
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16 Opinion of the Court 24-11060
approved for medical treatment for Hepatitis C” and “I would like
my treatment to begin.” And the only treatment Johnson had pre-
viously been approved for was triple-drug therapy. Therefore, the
only treatment he could be referring to in the grievance is the tri-
ple-drug therapy. Further, as we explained above, Dr. Chaudhary
subsequently withdrew Johnson’s prescription for triple-drug ther-
apy in July 2014, a year before Johnson met Dr. Marler and two-
and-a-half years before he filed this suit. So, failure to provide triple-
drug therapy cannot be the issue in this suit.
Johnson’s argument regarding a general grievance fails on
another ground. The GDC’s grievance procedures suggest that a
general grievance does not suffice for exhaustion purposes. The
grievance procedures state:
Where a Grievance is filed in reference to a different
facility, the Grievance Coordinator at the offender’s
current facility will retain a copy of the Grievance and
will forward the Original Grievance to the Grievance
Coordinator at the named facility for processing.
Ga. Dep’t of Corr., Standard Operating Procedures, Statewide
Grievance Procedure, J.A. 240-4, at 13–14. The inclusion of the
term “named” suggests that to successfully grieve about another
facility, the inmate must identify that facility by name. The Of-
fender Grievance Form also requires inmates to “include dates,
names of persons involved, and witnesses” within reason. Id. at At-
tach. 1. Because Johnson did not know he would later be trans-
ferred to Jenkins Correctional Facility and treated by Dr. Marler,
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24-11060 Opinion of the Court 17
he could not have included that information when he filed his
Ware State Prison grievance. Therefore, it was impossible for him
to grieve about anything that happened at Jenkins Correctional Fa-
cility in his Ware State Prison grievance. Basic logic confirms that
it is impossible to grieve about an issue, doctor, or facility that you
have yet to encounter.
Johnson cites no precedent that supports concluding that a
general grievance can put prison officials on notice ad infinitum. To
hold as much would belie the purpose of the exhaustion require-
ment. One general medical grievance cannot afford prison officials
a meaningful opportunity to resolve a myriad of issues. To hold
otherwise would increase rather than eliminate unwarranted fed-
eral court interference with the administration of prisons. The case
before us provides a clear example. One grievance concerning
treatment for Hepatitis C cannot satisfy the exhaustion require-
ment against all future doctors, at all future facilities, for all treat-
ments related to Johnson’s Hepatitis C.
We hold that Johnson’s claims against Dr. Marler do not
concern the “exact same issue” as the Ware State Prison grievance
and therefore failed to alert prison officials to the issues alleged
against Dr. Marler. Johnson’s complaints against Dr. Marler were
not merely a “continuation of a problem already raised in an earlier
grievance.” In turn, Johnson was required to file a new grievance
alerting prison officials to the specific alleged deliberate indiffer-
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18 Opinion of the Court 24-11060
ence at issue here. Accordingly, we affirm the district court’s hold-
ing that Johnson’s grievance at Ware State Prison did not exhaust
his administrative remedies as to Dr. Marler.
B.
Next, we turn to the district court’s decision to grant Dr.
Marler’s motion for leave to file a dispositive motion after the dead-
line for dispositive motions had already passed. Johnson argues that
the district court abused its discretion by allowing Dr. Marler to file
a motion for judgment on the pleadings four-and-a-half years after
the deadline and three months before trial. We disagree and affirm
the district court’s decision.
Dr. Marler initially raised an exhaustion defense in a timely-
filed motion for summary judgment in July 2019. The district court
denied the motion and did not rule on exhaustion because the rec-
ord was incomplete as to that issue. In late December 2023, three
months before trial, Dr. Marler asked the court for permission to
file an out-of-time dispositive motion regarding his exhaustion de-
fense. The district court granted Dr. Marler leave to file. He filed a
Rule 12(c) motion for judgment on the pleadings, and the district
court granted it. In so doing, the district court noted that Dr. Marler
had been given “ample opportunity” to provide a sufficient record
for an exhaustion defense and his tactics were “frustrating to say
the least.” Johnson v. Lewis, No. 16-00453, Slip Op. 2-3 (M.D. Ga.
Feb. 23, 2024). Nevertheless, the district court determined that the
“gracious drafting” of Rule 12(c) “undoubtedly permitted his stra-
tegic maneuver.” Id.
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Johnson argues the district court abused its discretion be-
cause it erroneously believed it was required to permit the out-of-
time motion under Rule 12(c). To support his position, Johnson
points us to the district court’s comments during the telephonic
hearing:
I think Rule 12(c) gives them the chance to do this. . .
I’m not happy about it. I don’t think that Dr. Marler
was as diligent as he should have been in responding,
et cetera, but I think Rule 12(c) does not preclude an-
other motion. I feel I’m hamstrung by the rules there
on that. . . So I think the rules bind me up as far as
12(c).
Tel. Conf. Hr’g Tr., J.A. 293 at 32:1-12, Jan. 23, 2024. Johnson also
argues that the district court’s express finding that Dr. Marler “had
not been as diligent as he could have been” is sufficient to vacate
the ruling for lack of good cause as is required under Rule 16(b)(4).
See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418–19 (11th Cir.
1998)(holding that good cause requires the diligence of the party
seeking the extension).
On the other hand, Dr. Marler argues that this Court should
not rely on offhand comments made during a teleconference to
conclude the district court misunderstood the law. But rather, Dr.
Marler urges this Court to find that the district court exercised its
discretion because it considered briefing and oral argument before
granting leave to file. Further, Dr. Marler maintains that there was
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20 Opinion of the Court 24-11060
good cause to modify the scheduling order under Rule 16(b)(4) be-
cause the exhaustion issue was raised in his original motion for
summary judgment but left unresolved. As a matter of abatement,
the exhaustion issue needed to be resolved before proceeding to a
jury trial. Sims v. Sec’y, Fla. Dep’t of Corr., 75 F. 4th 1224, 1227 (11th
Cir. 2023) (explaining that exhaustion under the Act is “a precondi-
tion to an adjudication on the merits”).
Federal Rule of Civil Procedure 12(c) says that “[a]fter the
pleadings are closed—but early enough not to delay trial—a party
may move for judgment on the pleadings.” But Federal Rule of
Civil Procedure 16(b)(4) says that a scheduling order can only be
modified for “good cause.” This Court’s reasoning in Sosa clarifies
that a party seeking to file an out-of-time motion must not only
show that the motion will not delay trial as is required by Rule
12(c), but also that there is good cause under Rule 16(b)(4). Sosa v.
Airprint Sys., Inc., 133 F.3d 1417 (11th Cir. 1998). We address each
requirement in turn.
In this case, permitting an out-of-time dispositive motion
amounted to a modification of the scheduling order subject to Rule
16(b)(4)’s good-cause requirement because the deadline for dispos-
itive motions had passed. Dr. Marler, the party seeking to file an
out-of-time motion, presented the district court with arguments es-
tablishing good cause. The district court granted Dr. Marler leave
to file. But it did so without finding good cause. That failure con-
stitutes a procedural error.
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24-11060 Opinion of the Court 21
However, we will not disrupt the district court’s ruling be-
cause while there was error, it was harmless. Goldsmith, 513 F.3d at
1276. Although the district court failed to acknowledge it, Dr.
Marler had established good cause. Good cause existed because the
exhaustion issue is a matter of abatement that must be resolved
before a prisoner’s case can proceed to trial. Sims v. Sec’y, Fla. Dep’t
of Corr., 75 F.4th 1224, 1227-30 (11th Cir. 2023); Bryant v. Rich, 530
F.3d 1368, 1374-77 (11th Cir. 2008) (holding the exhaustion inquiry
is reserved for the court, not the jury). Therefore, the district court
should have made a good cause finding, but its failure to do so did
not have a substantive effect on the case.
The dissent concludes that the district court found Dr.
Marler lacked diligence and therefore Sosa precludes a good cause
finding. We disagree. Acknowledging this Court’s holding in Sosa,
we find the district court here made no conclusive finding as to dil-
igence such that a good cause was foreclosed. 133 F.3d at 1418.
Here, the district court made several comments during the tele-
phonic hearing expressing his frustration with Dr. Marler’s actions
throughout the course of the litigation. The district court noted
that Dr. Marler had plenty of time to make a clear record on the
exhaustion issue but failed to do so in a timely manner. Indeed, the
district court remarked that Dr. Marler was “not as diligent as he
should have been.” Tel. Conf. Hr’g Tr., J.A. 293 at 32:1-12, Jan. 23,
2024.
Even so, in the absence of an order from the district court
addressing the matter, we decline to assume the court’s passing
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22 Opinion of the Court 24-11060
comments amount to a conclusive finding that Dr. Marler lacked
diligence. The dissent elevates a passing remark into a dispositive
finding. The district court never made a finding on diligence nor
held that Dr. Marler failed to establish good cause. Rather, it ex-
pressed dissatisfaction with Dr. Marler’s conduct before exercising
its discretion to allow him to file the motion. That distinction is
significant. Judicial observations or admonishments during a hear-
ing are a commonplace feature of a district court’s case manage-
ment and do not, without more, constitute a formal finding.
Further, the district court did not mention diligence in its
order permitting Dr. Marler to file an out-of-time motion. And, in
its order granting his motion for judgment on the pleadings the dis-
trict court noted that Dr. Marler’s tactics were “frustrating to say
the least,” but that is the only finding related to diligence. As such,
we do not consider it a conclusive finding that Dr. Marler lacked
diligence. Because the district court granted leave to file the motion
notwithstanding its criticism, we conclude that the better reading
of the record is that the court viewed Dr. Marler’s diligence as im-
perfect, but not so deficient as to foreclose a good cause finding.
That reading is reinforced by the nature of the motion itself.
As discussed above, the motion concerned a prerequisite matter
that needed to be resolved ahead of trial. Thus, the court’s decision
is entirely consistent with a determination that the issue warranted
resolution despite the court’s frustration with Dr. Marler. The dis-
trict court’s authorization for Dr. Marler to file the motion on a
threshold inquiry demonstrates that its comment was admonitory
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24-11060 Opinion of the Court 23
rather than dispositive. Accordingly, we find that a good cause find-
ing was not foreclosed and that any error in failing to make a good
cause finding was harmless.
Next, the district court explicitly indicated that permitting
the Rule 12(c) motion would not delay trial and ordered it to be
filed the very next day to ensure as much. The district court con-
sidered the parties’ briefs and held a telephonic hearing to deter-
mine whether to permit the out-of-time motion. There is nothing
in the court’s order granting Dr. Marler’s motion for leave to file
or the court’s order granting Dr. Marler’s motion for judgment on
the pleadings that suggests the court failed to exercise its discretion
or relied on an erroneous interpretation of law. Further, the ex-
haustion issue had not been addressed and could not be resolved
by the jury. By granting leave to file, the district court was able to
address the matter expeditiously without delaying trial. A decision
that is squarely within the discretion of the district court.
Accordingly, we hold that the district court did not abuse its
discretion in granting Dr. Marler’s motion for leave to file a Rule
12(c) motion.
Even if the district court had abused its discretion, we will
not disrupt its ruling because the error was harmless. Goldsmith,
513 F.3d at 1276. With the court’s permission, Dr. Marler could
have filed a motion for summary judgment under Federal Rule of
Civil Procedure 56(b). Fernandez v. Bankers Nat’l Life Ins. Co., 906
F.2d 559, 569 (11th Cir. 1990) (explaining that “[t]wo motions for
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24 Opinion of the Court 24-11060
summary judgment may be ruled upon in the same case” if the dis-
trict judge finds “good reason” to do so). It is clear, based on the
nature of the issue raised and the district court’s decision to grant
the Rule 12(c) motion, that the district court also would have per-
mitted the motion for summary judgment to resolve the exhaus-
tion issue. 3 Therefore, even if it was error for the district court to
grant leave to file a Rule 12(c) motion, the error was harmless be-
cause it had no substantive effect on the case.
Lastly, Johnson argues that this Court should not interpret
Rule 12(c) to abolish the district court’s innate ability to control its
own docket with scheduling orders. To do so, he posits, would con-
flict with Rule 16—which allows modification of scheduling orders
“only for good cause and with the judge’s consent”—and Rule 6—
which requires “excusable neglect” to modify an expired deadline.
For support, Johnson relies on the harmonious-reading canon of
construction that says, “[t]he provisions of a text should be inter-
preted in a way that renders them compatible, not contradictory.”
See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal
Texts 180 (2012). He further asserts that this erroneous reading of
Rule 12(c) would undermine Rule 1 which requires the courts and
the parties to “secure the just, speedy, and inexpensive determina-
tion of every action and proceeding.
3 The district court acknowledged this possibility in footnote 3 of its order
granting Dr. Marler’s motion for judgment on the pleadings. Johnson v. Lewis,
No. 16-00453, Slip Op. at 7, n.3 (M.D. Ga. Feb. 23, 2024).
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24-11060 Opinion of the Court 25
Although the Court considers Johnson’s statutory interpre-
tation arguments, there is no concern that our reading of Rule 12(c)
creates a conflict with any other Federal Rules. Here, both Rule
16(b)(4) and Rule 12(c) are implicated. Rule 16(b)(4) requires good
cause. However, Rule 12(c) is permissive. It does not impose a
mandatory obligation on district courts. Rather, it permits them to
exercise discretion in ruling on motions for judgment on the plead-
ings and evaluating whether such motions would delay trial. And
this decision does not disrupt the district court’s discretion to man-
age its docket.
For the foregoing reasons, we
AFFIRM.
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24-11060 LUCK, J., Dissenting 1
LUCK, Circuit Judge, dissenting:
There’s a lot to like about the majority opinion. It’s right
that, before allowing a late motion for judgment on the pleadings
to be filed after the pretrial order’s dispositive-motion deadline, the
district court must find both good cause under Federal Rule of Civil
Procedure 16(b)(4) and that the motion is filed early enough so as
not to delay the trial under rule 12(c).
The majority opinion is right that the district court erred be-
cause it allowed Dr. Marler to file his judgment-on-the-pleadings
motion without finding good cause under rule 16(b)(4). And the
majority opinion is right that, under Sosa v. Airprint Systems, Inc.,
133 F.3d 1417 (11th Cir. 1998) (per curiam), the good-cause stand-
ard cannot be satisfied where the moving party did not act dili-
gently in filing the dispositive motion. Id. at 1419; see also Southern
Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1242 (11th Cir. 2009)
(“Southern Grouts lacked diligence, at the very least, because it
waited until August 5, 2008 to file a motion to amend its complaint
with information that it had known over a month before when it
filed a motion for summary judgment.”); 6A Wright & Miller’s Fed-
eral Practice & Procedure § 1522.2, at 312 (3d ed. 2010) (“[T]he good-
cause standard will not be satisfied if the court concludes that the
party seeking relief . . . has not acted diligently in compliance with
the schedule.” (footnote omitted)).
Our disagreement is narrow. The majority opinion believes
the district court did not find that Dr. Marler did not act diligently
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2 Opinion of the Court 24-11060
in filing his dispositive motion. Because I believe it did, I respect-
fully dissent.
Here’s what the district court said at the hearing on
Dr. Marler’s motion for leave to file his dispositive motion after the
pretrial-order deadline:
• “[T]ell me why he gets to file a motion? He had a chance;
why didn’t he take it?”
• “[T]ell me why it is Dr. Marler gets another bite at the apple
when it seems to me he had everything at his disposal, all he
had to do was turn the documents in?”
• “But those cases, I bet you, did not have a situation where
here where we had a guy who had the documents at his dis-
posal, he could have made a clear record, he just didn’t. He
just didn’t.”
• The magistrate judge “asked him to submit stuff, he didn’t
do it. We ruled on it. He never complained about it until
now.”
• “Dr. Marler should have made this clear about four years
ago.”
• “I don’t think that Dr. Marler was as diligent as he should
have been in responding, et cetera, but I think [r]ule 12(c)
does not preclude another motion.”
And here’s what the district court wrote in its order granting
Dr. Marler’s judgment-on-the-pleadings motion:
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24-11060 LUCK, J., Dissenting 3
• “Even though ‘the [c]ourt ha[d] already afforded [him ample]
opportunity to provide supporting evidence [as to an] exhaus-
tion defense,’ [Dr.] Marler—taking advantage of the gra-
cious drafting of the rule—moved for leave to file a [r]ule
12(c) based dispositive motion to take another stab at that
defense.”
• “After making [Dr.] Marler aware that his tactics were frus-
trating to say the least, the [c]ourt was adamant that what-
ever he filed was not going to delay trial. Nevertheless, the
[c]ourt determined that the text of [r]ule 12(c) undoubtedly
permitted his strategic maneuver.”
• “Is it late in the game? Yes. Is it frustrating? No doubt. Is
[r]ule 12(c) a permissible avenue for [Dr.] Marler to revive
his defense? By its plain text, it has to be.”
Read together, the district court found that Dr. Marler was
not diligent in filing his exhaustion-based judgment-on-the-plead-
ings motion. Dr. Marler was not “as diligent as he should have
been”; he “had everything at his disposal” and “could have made a
clear record” before the deadline, but “he just didn’t”; he “should
have made” the exhaustion argument “clear about four years ago”;
he “had already [been] afforded . . . ample opportunity to provide
supporting evidence as to an exhaustion defense”; his “strategic
maneuver” and “tactics” in filing the motion four years after the
deadline were “frustrating to say the least”; and his motion was
filed “late in the game.” There’s no good cause where the moving
party lacks diligence and waits to spring a dispositive motion as a
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4 Opinion of the Court 24-11060
tactical strategic maneuver. See Sosa, 133 F.3d at 1419; Southern
Grouts, 575 F.3d at 1242; Butts v. County of Volusia, 222 F.3d 891, 892
n.2 (11th Cir. 2000) (good cause cannot be shown where the delay
is a result of a “strategic decision” by the moving party); 3 Moore’s
Federal Practice § 16.14[1][b], at 16-79 (3d ed. 2022) (“‘Good cause’
also typically does not include a change in litigation strategy.”).
The majority opinion brushes off these findings as passing
comments and remarks made during a hearing. “Judicial observa-
tions or admonishments during a hearing,” it explains, “are a com-
monplace feature of a district court’s case management and do not,
without more, constitute a formal ruling.” But the majority opin-
ion’s brush off misses the mark for four reasons.
First, I know of no constitutional provision, statute, rule, or
case that says findings are entitled to less weight because they are
made orally. The majority opinion cites none. And we regularly
affirm oral findings made at a hearing. Cf., e.g., United States v.
Copeland, 20 F.3d 412, 415 (11th Cir. 1994) (district court’s recorded
or transcribed oral findings were sufficient to satisfy due-process
requirements); Prof’l Golfers Ass’n of Am. v. Bankers Life & Cas. Co.,
514 F.2d 665, 672 (5th Cir. 1975) (affirming oral findings that pre-
vailing party reduced to a written order). We should not adopt a
principle of law that calls for us to disregard what trial judges find
unless they put it in writing. That is asking too much of our col-
leagues in our busy circuit.
Second, the district court was not in case-management
mode when it found that Dr. Marler was not as diligent as he
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24-11060 LUCK, J., Dissenting 5
should have been. The hearing was on Dr. Marler’s request for
leave to file his late dispositive motion; it was not a case manage-
ment conference and it was not an effort to move the case along.
At the hearing, the district court heard arguments and ruled on
Dr. Marler’s substantive motion.
Third, the district court incorporated the hearing into its or-
der granting leave to file the late dispositive motion. It considered
the parties’ arguments “presented during the [c]ourt’s telephone
hearing” in allowing Dr. Marler to file his judgment-on-the-plead-
ings motion. And the district court referenced the hearing again in
its order granting Dr. Marler’s motion. Even if the majority opin-
ion is right that, without more, we should ignore judicial observa-
tions at a hearing as simply case management, we have more here.
At the very least, if the district court tells us it considered the hear-
ing in granting a substantive motion, we should too when we re-
view the ruling.
Fourth, not surprisingly, the district court’s oral findings
made their way into the written order. The district court wrote
that it had already afforded Dr. Marler ample opportunity to press
his exhaustion defense. And it wrote that Dr. Marler’s late judg-
ment-on-the-pleadings motion was a tactical strategic maneuver
that came late in the game. The majority opinion does not address
these written findings. But together with the hearing, they estab-
lish that Dr. Marler was not diligent in bringing his dispositive mo-
tion. That lack of diligence precludes a good-cause finding.
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6 Opinion of the Court 24-11060
The majority opinion offers one other path to affirm.
“Dr. Marler,” it explains, “could have filed a motion for summary
judgment under Federal Rule of Civil Procedure 56(b).” “[T]he dis-
trict court also would have permitted the motion for summary
judgment to resolve the exhaustion issues,” so any error in allow-
ing the motion for judgment on the pleadings “was harmless be-
cause it had no substantive effect on the case.”
But the majority opinion’s harmless-error analysis runs into
two problems. First, a summary-judgment motion by Dr. Marler
would also be subject to the same dispositive-motion deadline as
the motion for judgment on the pleadings. Dr. Marler would still
have to meet the good-cause standard in rule 16(b)(4) before the
district court could modify the scheduling order to allow for the
late and successive summary-judgment motion. Switching the pro-
cedural vehicle doesn’t change the analysis. It gets us to the same
starting line—the good-cause standard under rule 16(b)(4).
Second, Dr. Marler’s lack of diligence and strategic decision
to wait to file his dispositive motion show there was no good cause
to modify the schedule. And without a good-cause finding, he
could not have filed a summary-judgment motion past the dispos-
itive-motion deadline. So, the district court’s abuse of discretion in
allowing Dr. Marler to file his motion for judgment on the plead-
ings after the deadline without a good cause finding was not harm-
less. Unfortunately, there is no alternative basis to affirm. We
must reverse the judgment for Dr. Marler on the late-filed exhaus-
tion issue.