“Of course, if the [defendant] decides to [rely on a defense in response to a court’s limited inquiry], the district court must provide the movant with an opportunity to respond and be heard on the issue.”
How later courts described this case
- “Of course, if the [defendant] decides to [rely on a defense in response to a court’s limited inquiry], the district court must provide the movant with an opportunity to respond and be heard on the issue.”
- stating that district courts generally must provide the plaintiff with an opportunity to respond before dismissing a complaint
- “An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”
Written by the judges who cited it.
The opinion
Case: 17-12319 Date Filed: 01/02/2019 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12319
Non-Argument Calendar
________________________
D.C. Docket No. 5:15-cv-00375-WTH-PRL
SAMUEL ROY ABRAM,
Plaintiff-Appellant,
versus
DAVID LEU,
Captain of Security,
A. CLUNTZ,
SIS Agent,
K. BARKER,
SIS Lieutenant,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 2, 2019)
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Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.
PER CURIAM:
Samuel Abram, a prisoner proceeding pro se, appeals the district court’s
dismissal of his federal civil-rights action for failure to exhaust available
administrative remedies as required by the Prison Litigation Reform Act (“PLRA”),
42 U.S.C. § 1997e(e). First, Abram argues that the district court improperly sua
sponte raised the affirmative defense of failure to exhaust. Second, he contends that
Federal Bureau of Prisons (“BOP”) staff interfered with his pursuit of administrative
remedies and made them unavailable. We disagree with his first argument, but we
do not reach the second one because we conclude that the district court did not afford
Abram a meaningful opportunity to address the issue of exhaustion and did not
analyze that issue under the correct legal standard. We therefore vacate and remand
for further proceedings.
I.
In July 2015, Abram filed this civil-rights action, pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),
against several BOP employees at United States Penitentiary, Coleman II
(“Coleman”). Abram alleged that BOP staff had tampered with his mail and
confiscated paperwork in violation of his rights under the First, Fifth, and Eighth
Amendments.
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The defendants filed a motion requesting either dismissal or summary
judgment. The defendants offered three specific grounds for dismissal or summary
judgment: (1) Abram failed to allege physical injury, as required by the PLRA; (2)
the defendants were entitled to qualified immunity from Abram’s claims; and (3)
Abram lacked standing to pursue some of his claims.
In the course of making these arguments, the defendants explained that Abram
had sought administrative review of the confiscation of his property, but his
grievance was denied as untimely and as not filed in accordance with proper
procedures. In support of that statement, they attached an affidavit from Caixa
Santos, a paralegal specialist at Coleman, who discussed Abram’s pursuit of
administrative remedies. Abram filed a response in opposition but did not directly
address the issue of exhaustion.
In an order entered on August 15, 2016, a magistrate judge reviewed the
defendants’ motion and Abram’s response and found that it was unclear whether the
defendants sought to dismiss the complaint for failure to exhaust administrative
remedies or if they had waived the defense and for what reason. Noting that
exhaustion was mandatory under the PLRA, the magistrate judge was “uncertain”
based on the materials in the record whether Abram had exhausted his administrative
remedies. Faced with these ambiguities, the magistrate judge ordered the defendants
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to file within fourteen days a response clarifying their position on Abram’s
exhaustion of administrative remedies.
On August 29, 2016, the defendants filed a response to the magistrate judge’s
order and specifically requested dismissal for lack of exhaustion. The defendants
asserted that Abram did not timely grieve the confiscation of his property within 20
days of the incident, as required by BOP procedures; that he did not properly appeal
the denial of that untimely grievance; and that his other, later attempts at exhaustion
were inadequate. The defendants relied on another affidavit from Santos and records
of Abram’s grievance history.
Just over a week later, on September 6, 2016, the district court dismissed
Abram’s complaint for failure to exhaust administrative remedies based on the
materials the defendants submitted. The court entered judgment two days later.
On September 21, 2016, Abram moved for reconsideration of the dismissal.
Abram did not dispute that the defendants’ evidence accurately reflected his
grievance history. But he maintained that his attempt to timely exhaust his
administrative remedies had been frustrated by the defendants’ misconduct.
Specifically, Abram alleged that BOP staff had refused to provide him with the
forms necessary to exhaust his administrative remedies. Abram also submitted an
affidavit from another prisoner, who stated that he witnessed Abram requesting
grievance forms from BOP staff “to no avail.”
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The district court denied Abram’s motion. The court stated that Abram’s
“attempt at exhaustion did not comply with the administrative procedures and was
deemed untimely,” and that he had not demonstrated that he was entitled to relief
from the exhaustion requirement or to reconsideration of the dismissal. The court
noted that another district court had rejected Abram’s claim that he had been
prevented from starting the exhaustion process. Abram now appeals.
II.
We review de novo a district court’s interpretation and application of the
PLRA’s exhaustion requirement. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th
Cir. 2005). We review the factual findings underlying an exhaustion determination
for clear error. Bryant v. Rich, 530 F.3d 1368, 1377 (11th Cir. 2008).
III.
The PLRA requires prisoners who wish to challenge some aspect of prison
life to exhaust all available administrative remedies before resorting to the courts.
Porter v. Nussle, 534 U.S. 516, 532 (2002); see 42 U.S.C. § 1997e(a). Exhaustion
is mandatory under the PLRA, and unexhausted claims cannot be brought in court.
Jones v. Bock, 549 U.S. 199, 211 (2007). The failure to exhaust administrative
remedies requires that the action be dismissed. Chandler v. Crosby, 379 F.3d 1278,
1286 (11th Cir. 2005).
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To satisfy the exhaustion requirement, a prisoner must complete the
administrative process in accordance with the applicable grievance procedures set
by the prison. Jones, 549 U.S. at 218; Johnson, 418 F.3d at 1156. In other words,
“[t]he PLRA requires ‘proper exhaustion’ that complies with the ‘critical procedural
rules’ governing the grievance process.” Dimanche v. Brown, 783 F.3d 1204, 1210
(11th Cir. 2015). Procedurally defective grievances or appeals are not adequate to
exhaust. Woodford v. Ngo, 548 U.S. 81, 93-95 (2006). As a result, an untimely
grievance that is rejected as such by prison officials does not satisfy the PLRA’s
exhaustion requirement. Johnson, 418 F.3d at 1156–59.
Although proper exhaustion is generally required, a remedy must be
“available” before a prisoner is required to exhaust it. Turner v. Burnside, 541 F.3d
1077, 1082, 1084 (11th Cir. 2008). An administrative remedy may be unavailable
when prison officials interfere with a prisoner’s pursuit of relief. Ross v. Blake, 136
S. Ct. 1850, 1860 (2016).
According to the Supreme Court, lack of exhaustion is an affirmative defense.
Jones, 549 U.S. at 216. In this Circuit, defendants may raise that defense in a motion
to dismiss. Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir.
2015). Deciding a motion to dismiss for failure to exhaust administrative remedies
is a two-step inquiry. Id. (citing Turner, 541 F.3d at 1081–82). District courts first
should compare the factual allegations in the motion to dismiss and those in the
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prisoner’s response and, where there is a conflict, accept the prisoner’s view of the
facts as true. “The court should dismiss if the facts as stated by the prisoner show a
failure to exhaust.” Id. Second, if dismissal is not warranted at the first stage, the
court should make specific findings to resolve disputes of fact, “and should dismiss
if, based on those findings, defendants have shown a failure to exhaust.” Id.
We first consider Abram’s contention that the district court erred by sua
sponte raising the issue of exhaustion when the government did not initially move
to dismiss the complaint on that basis. The Supreme Court has explained that while
“exhaustion is mandatory under the PLRA,” failure to exhaust is an affirmative
defense. See Jones, 549 U.S. at 211–12. And we have recognized that courts
generally lack the ability to raise affirmative defenses sua sponte. Latimer v.
Roaring Toyz, Inc., 601 F.3d 1224, 1239–40 (11th Cir. 2010). “That’s because the
principle of party presentation is basic to our adversary system, and the court’s
invocation of a party’s affirmative defense generally conflicts with that ideal.”
Burgess v. United States, 874 F.3d 1292, 1296 (11th Cir. 2017) (alteration adopted)
(citation and internal quotation marks omitted).
At the same time, district courts are not absolutely barred from making
“limited inquiry” into possible defenses. Id. at 1301. In particular, “[i]n an effort to
streamline the proceedings and manage their dockets, district courts may make
limited inquiry into litigants’ possible claims and defenses, without violating the
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party-presentation principle that animates our judicial system.” Id. So, while a court
may not invoke an affirmative defense, it may ask whether the defendant intends to
rely on an available affirmative defense. See id.
Here, although the defendants did not clearly raise lack of exhaustion as a
defense in their initial response to Abram’s complaint, the district court did not err
by seeking further clarification from the defendants as to that defense. Given that
the motion to dismiss and attached materials addressed Abram’s grievance history
and indicated that he had not exhausted his administrative remedies, the court
reasonably and permissibly made a “limited inquiry” into whether the defendants
intended to rely on that defense. See id. The defendants then clearly requested
dismissal for lack of exhaustion. Accordingly, the district court did not improperly
invoke a defense on behalf of a defendant who did not raise it.
But the district court erred when, after the defendants decided to rely on lack
of exhaustion as a defense, it did not provide Abram with an opportunity to respond
and be heard on the issue before entering judgment against him. See id. (“Of course,
if the [defendant] decides to [rely on a defense in response to a court’s limited
inquiry], the district court must provide the movant with an opportunity to respond
and be heard on the issue.”); Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir.
2011) (stating that district courts generally must provide the plaintiff with an
opportunity to respond before dismissing a complaint). And we are hesitant to
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conclude that the court’s consideration of Abram’s motion for reconsideration,
which addressed the exhaustion issue, provided a meaningful opportunity to be heard
given the narrow grounds for granting reconsideration. See Arthur v. King, 500 F.3d
1335, 1343 (11th Cir. 2007).
Although the failure to provide a meaningful opportunity to be heard could be
considered harmless if the complaint were “patently frivolous or if reversal . . . would
be futile,” Tazoe, 631 F.3d at 1336 (quotation marks omitted), on this record, we
cannot find that this exception applies here. In concluding that Abram had failed to
exhaust, the district court did not analyze the exhaustion issue pursuant to this
Court’s two-step inquiry for deciding motions to dismiss for failure to exhaust under
the PLRA. See Whatley, 802 F.3d at 1209. As outlined above, that inquiry requires
the court to first accept the prisoner’s allegations as true and dismiss only if “the
facts as stated by the prisoner show a failure to exhaust.” Id. If not, the court must
make factual findings to resolve the issue of exhaustion. Id.
Here, Abram’s allegations and evidence bear on the critical question of
whether the administrative remedies allegedly unexhausted were “available.” See
Ross, 136 S. Ct. at 1858 (“An inmate, that is, must exhaust available remedies, but
need not exhaust unavailable ones.”); see 42 U.S.C. § 1997e(a) (“No action shall be
brought with respect to prison conditions under section 1983 . . . until such
administrative remedies as are available are exhausted.”). Abram contends that
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prison staff interfered with his pursuit of administrative remedies by refusing to
provide him with the forms required to utilize the grievance process and interfering
with his mail. While the district court concluded that Abram had not demonstrated
that he should be excused from the exhaustion requirement, that is not the correct
inquiry. As the Supreme Court has made clear, “a court may not excuse a failure to
exhaust,” even to take special circumstances into account. Ross, 136 S. Ct. at 1856.
But remedies must be “available” before exhaustion is required. Because Abram’s
allegations pertain to the availability of his administrative remedies, we cannot say
that it would be futile to remand this matter to the district court to conduct the proper
two-step inquiry as outlined in Whatley and Turner. Cf. Tazoe, 631 F.3d at 1336.
IV.
Because the district court failed to provide Abram a meaningful opportunity
to respond and be heard on the exhaustion issue and then analyzed the exhaustion
issue under an incorrect standard, we vacate the dismissal of Abram’s complaint and
remand this case for further proceedings consistent with this opinion.
VACATED AND REMANDED.
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