The opinion
Case: 18-10534 Document: 00515575388 Page: 1 Date Filed: 09/23/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 23, 2020
No. 18-10534 Lyle W. Cayce
Clerk
Terrence M. Brown,
Plaintiff—Appellant,
versus
Eric D. Wilson; Ms. NFN Blakely, Administrative
Remedy Coordinator,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-182
Before Owen, Chief Judge, and Dennis and Haynes, Circuit Judges.
Per Curiam:*
Terrence M. Brown appeals the district court’s dismissal of his First
Amendment claim. For the following reasons, we VACATE and
REMAND for further consideration consistent with this opinion.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 18-10534 Document: 00515575388 Page: 2 Date Filed: 09/23/2020
No. 18-10534
I. Background
Brown, a federal prisoner, filed this civil action alleging a claim under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). Brown argued that officials at the Federal Medical Center in Fort
Worth, Texas, denied him access to inspect the Administrative Remedy
indexes and responses in violation of 28 C.F.R. § 542.19. He asserted that
this amounted to a denial of his First Amendment right to petition for redress
of grievances, as well as a denial of the opportunity to research his claims
under Bounds v. Smith, 430 U.S. 817, 828 (1977), abrogated in part by Lewis v.
Casey, 518 U.S. 343, 354 (1996). He also alleged that he had exhausted his
administrative remedies by requesting the appropriate forms to begin the
administrative remedy process (“ARP”) but that he had been denied the
forms and thus meaningful access to the ARP.
After granting Brown leave to proceed in forma pauperis, the district
court sua sponte considered the exhaustion issue. It concluded that Brown
had “failed to allege facts that would support a finding that the administrative
procedure was unavailable to him by reason of it being a simple dead end.”
The district court further stated that Brown had made only “token efforts to
pursue his administrative remedies.” It thus dismissed Brown’s complaint.
Brown timely appealed.
II. Standard of Review
We review dismissals for failure to exhaust de novo. Carbe v. Lappin,
492 F.3d 325, 327 (5th Cir. 2007). Prisoners are required to exhaust all
available grievance procedures before filing suit. See 42 U.S.C. § 1997e(a).
The “exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes.” Porter
v. Nussle, 534 U.S. 516, 532 (2002). This includes Bivens actions. Butts v.
Martin, 877 F.3d 571, 582 (5th Cir. 2017).
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III. Discussion
The Supreme Court has held that exhaustion is an affirmative defense,
not a pleading requirement. Jones v. Bock, 549 U.S. 199, 216 (2007). “As
such, it is error to dismiss a prisoner’s complaint for want of exhaustion
before a responsive pleading is filed unless the failure to exhaust is clear from
the face of the complaint.” Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir.
2014) (per curiam). 1
We take “a strict approach” to the exhaustion requirement. Butts,
877 F.3d at 582 (quotation omitted). Therefore, “mere ʻsubstantial
compliance’ with administrative remedy procedures does not satisfy
exhaustion.” Id. (citation omitted). Although we require strict compliance,
“[i]nmates need not exhaust all administrative remedies, . . . only those that
are ʻavailable’ to them.” Davis v. Fernandez, 798 F.3d 290, 294 (5th Cir.
2015) (citing cases).
It is not clear from the face of Brown’s complaint that Brown failed to
exhaust his administrative remedies because the record suggests that all
administrative remedies were not available to him. Brown contends that the
warden told him that “he would never be allowed access” to the indexes he
sought because “these tools were intended only for [Bureau of Prisons]
staff.” Indeed, in his motion to alter the judgment, Brown provided support
for his contention with an affidavit from Jeffery Walker, a fellow former
inmate of Brown’s, who was allegedly told, in response to his own request to
see the indexes, “that will never happen, that is just one inmate’s fantasy.”
We thus VACATE the district court’s sua sponte dismissal of Brown’s case
for failure to exhaust and REMAND for further proceedings consistent with
1
A district court “may not circumvent this rule by . . . requiring prisoners to
affirmatively plead exhaustion.” Coleman, 745 F.3d at 763.
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No. 18-10534
this opinion; we do not reach the merits of any of the underlying assertions
in the case.
4