Jeremy John Wells v. Warden

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10550

____________________

JEREMY JOHN WELLS,

Plaintiff-Appellant,

versus

WARDEN,

CLIFFORD BROWN,

Unit Manager,

FNU FLUKER,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

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2 Opinion of the Court 21-10550

D.C. Docket No. 1:20-cv-00097-JRH-BKE

____________________

Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,

and BRASHER, Circuit Judges.

JILL PRYOR and LUCK, Circuit Judges, delivered the opinion of the

Court, in which WILLIAM PRYOR, Chief Judge, WILSON,

ROSENBAUM, NEWSOM, BRANCH, GRANT, LAGOA, and BRASHER,

Circuit Judges, joined.

JORDAN, Circuit Judge, filed an opinion concurring in the judg-

ment.

ROSENBAUM, Circuit Judge, filed a concurring opinion, in which

WILLIAM PRYOR, Chief Judge, and JILL PRYOR, Circuit Judge, joined.

JILL PRYOR and LUCK, Circuit Judges:

A federal litigant who is unable to pay court fees may pro-

ceed in forma pauperis. That means the litigant may file a case

without prepaying fees or paying certain expenses. See 28 U.S.C. §

1915. But Congress has placed a limit on this privilege for prison-

ers. The Prison Litigation Reform Act—with one exception not

applicable here—bars a prisoner from proceeding in forma pau-

peris if he “has, on [three] or more prior occasions, while incarcer-

ated or detained in any facility, brought an action or appeal in a

court of the United States that was dismissed on the grounds that

it [was] frivolous, malicious, or fail[ed] to state a claim upon which

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21-10550 Opinion of the Court 3

relief may be granted.” Id. § 1915(g). This is called the three-strikes

rule.

This appeal raises two issues about the three-strikes rule.

First, is a dismissal for failure to exhaust administrative remedies a

“strike” for purposes of the Act’s three-strikes rule? We hold that a

dismissal for failure to exhaust can amount to a dismissal for failure

to state a claim—an enumerated ground for a strike—but only if

the failure to exhaust appears on the face of the prisoner’s com-

plaint. That’s because the failure to exhaust is an affirmative de-

fense. And a complaint may be subject to dismissal for failure to

state a claim—based on an affirmative defense—only when the af-

firmative defense appears on the face of the complaint.

Second, does the prisoner in this case—Jeremy Wells—have

three strikes? He doesn’t. Wells had three possible strikes: one

dismissal for failure to state a claim, another dismissal for failure to

exhaust administrative remedies, and a summary judgment for fail-

ure to exhaust. Everyone agrees that the first dismissal is a strike

because the dismissing court expressly said it was dismissing the

action for failure to state a claim. We agree with the district court

that the second dismissal—for failure to exhaust—counted as a

strike because the dismissing court gave some signal in its order

that the action was dismissed as frivolous, malicious, or for failure

to state a claim. But we agree with Wells that the summary judg-

ment for failure to exhaust was not a strike because it was not a

dismissal for failure to state a claim. Because Wells hasn’t struck

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4 Opinion of the Court 21-10550

out, we reverse the dismissal of Wells’s complaint based on the

three-strikes rule and remand for further proceedings.

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

This case hinges on whether Wells has three strikes, so we

walk through Wells’s three prior actions before turning to this case.

Wells v. Cook, 1:11-CV-324-RJC (W.D.N.C.)

In October 2011, Wells was a detainee in the Avery County

Jail in North Carolina. In Cook, Wells alleged that, while he was

being held in the jail, he “was not provided a written copy of [the]

institution rules and regulations,” he “was denied contact with fam-

ily,” he was “denied legal research,” and he was “housed in [a

twelve] man cell with [eighteen] inmates.” Wells filed a 42 U.S.C.

section 1983 prisoner civil rights complaint against the head jailer

and the sheriff. In his complaint, Wells requested that the jail: “de-

velop[] and implement a booking procedure” that included “a writ-

ten copy of rules and regulations”; “provide[] legal resources in-

cluding a law library”; “train[] and educate[]” the corrections offic-

ers about the inmates’ “civil rights”; pay him five hundred dollars

“a day for all days [he] was detained”; and cover “all legal ex-

penses.”

Because Wells sought “to proceed in forma pauperis,” the

district court screened his complaint under 28 U.S.C. section

1915(e)(2) “to determine whether it [was] subject to dismissal on

the grounds that it [was] frivolous or malicious or fail[ed] to state a

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claim on which relief may be granted.” After reviewing the allega-

tions, the district court found that Wells had “failed to state a cog-

nizable legal claim in his [c]omplaint.” Even assuming that the al-

legations in the complaint were true, the district court concluded

that Wells had “simply not alleged a violation of his federal consti-

tutional rights.” So, the district court “sua sponte” dismissed

Wells’s complaint.

Wells v. Avery County Sheriff’s Office, 1:13-CV-55-RJC

(W.D.N.C.)

Wells filed another section 1983 prisoner civil rights com-

plaint stemming from the same October 2011 detention in the

Avery County Jail. This time, Wells alleged that the sheriff’s office

violated his right of access to the courts by: denying his request for

his attorney’s address; placing the mail he sent to his attorney “in

property for [nine] months with no notification of its exist[e]nce”;

and failing to forward him his legal mail “while [he was] still in” the

sheriff’s “custody but housed in another location.” Wells stated

that he had not exhausted administrative remedies because he “was

not made aware that [his] legal mail was being held until[] [he] was

being released” from the jail. Wells alleged that, because of all this,

he lost five thousand dollars “in bail forf[e]iture,” “incur[red] addi-

tional felony charges,” “incur[red] enhanced charges,” and “suf-

fered from [a] loss of freedom for an extended amount of time.”

Wells requested thirty thousand dollars in damages.

The district court did “an initial review of” Wells’s com-

plaint. “Pursuant to 28 U.S.C. [section] 1915(A)(a),” the district

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6 Opinion of the Court 21-10550

court explained, it had to review “a complaint in a civil action in

which a prisoner seeks redress from a governmental entity or of-

ficer or employee of a governmental entity.” That review required

the district court to “identify cognizable claims or dismiss the com-

plaint, or any portion of the complaint, if the complaint—[was]

frivolous, malicious, or fail[ed] to state a claim upon which relief

may be granted.”

In reviewing Wells’s complaint, the district court found that

Wells admitted that “he did not participate in any internal griev-

ance procedures while housed at the Avery County Jail or follow-

ing his transfer to a new custodian.” While Wells appeared to ar-

gue “that notifying” the sheriff’s office of his “claims would [have]

serve[d] no useful purpose” because he didn’t learn about the mail

“until he had been released from” the jail “and placed in the cus-

tody of another jurisdiction,” the district court found that “exhaus-

tion remains mandatory even where the inmate claims that exhaus-

tion would be futile.” The district court dismissed Wells’s com-

plaint without prejudice.

Wells v. Sterling, 6:15-CV-1344-MBS (D.S.C.)

By 2013, Wells was an inmate with the South Carolina De-

partment of Corrections after pleading guilty to burglary, grand lar-

ceny, financial identity fraud, and forgery. Wells alleged that,

while in the department’s custody, a nurse “was taking blood from

a large group of inmates.” The nurse saw seven other inmates, and

then it was Wells’s turn to see the nurse. But the nurse was using

the same gloves she used for the seven other inmates. Wells asked

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the nurse to change her gloves. She refused. The nurse grabbed

Wells’s arm and stuck him, but she “was unable to get a good blood

flow.” During the procedure, the nurse touched Wells’s puncture

site with the used gloves.

Wells also alleged that the department refused to credit him

with fourteen months for the time he served in North Carolina.

According to Wells, the credit-time-served error led him to serve

four months more than he was supposed to serve. The error also

shorted him “the opportunity to go up for parole.”

Wells sued the director of the state department of correc-

tions, the wardens, the nurse who took his blood, and the head

nurse, and brought two claims. First, Wells alleged that the nurses

were deliberately indifferent to his medical needs. Second, he

claimed that the director and the wardens violated his due process

rights by refusing to fix the credit-time-served error in his sentence.

Wells requested that the district court: enter judgment against the

defendants for violating his constitutional rights; order the depart-

ment to change its policy about gloves “to meet [the] standards set

forth by [the] Center [for] Disease Control”; require the depart-

ment to pay his medical bills; and award him one dollar in compen-

satory damages and two-hundred-fifty thousand dollars in punitive

damages.

The district court “reviewed [Wells’s] complaint pursuant to

the procedural provisions of 28 U.S.C. [section] 1915.” As to the

medical glove claim, the district court found that Wells “simply has

not been subjected to cruel and unusual punishment which could

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8 Opinion of the Court 21-10550

form the basis of a cognizable [section] 1983 claim.” So the “claim

relating to the medical gloves [was] dismissed without prejudice.”

As to the credit-time-served claim, the district court found that

Wells “appear[ed] to raise a claim of wrongful imprisonment.” A

section “1983 claim seeking damages for past confinement was per-

missible,” the district court said, “to allow a habeas ineligible for-

mer prisoner to seek redress for the alleged denial of his freedom.”

So, “the court decline[d] to summarily dismiss” this claim under

section 1915.

The remaining defendants—the director and the wardens—

later moved for summary judgment on Wells’s claim for wrongful

imprisonment, arguing in part that Wells “failed to exhaust his ad-

ministrative remedies” for that claim. While Wells had alleged in

his complaint that he followed the department’s “grievance proce-

dure,” the remaining defendants offered evidence that Wells

“failed [to] file a . . . [g]rievance concerning his claims before he

filed” the case. Specifically, the summary judgment motion at-

tached a declaration from the state prison’s inmate grievance ad-

ministrator. In that declaration, the grievance administrator stated

that, although Wells had filed a grievance about “the drawing of

blood,” there was no record of Wells filing a grievance “concerning

the calculation of his sentence.”

The district court granted summary judgment for the re-

maining defendants. The court found that Wells “failed to exhaust

his administrative remedies because he did not file a timely griev-

ance to start the grievance process.” The district court found that

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Wells was on notice that he had a miscalculation claim but “did not

begin the informal resolution process within eight days or file his

grievance within five days of being on notice that he had a griev-

ance,” as required by the department’s grievance policy. The clerk

of court entered a judgment reflecting the district court’s order.

This Case

Fast forward seven or so years to May 2020. By that point,

Wells was an inmate at the Augusta State Medical Prison in Geor-

gia. Wells filed a complaint about his time in the prison. Wells

alleged that, on May 29, 2020, he told the prison’s unit manager

that “two gang members” were “extorting, selling drugs,” and

“beating inmates.” Within the week, on June 5, 2020, Wells fol-

lowed this up with a letter to the warden, reporting the gang activ-

ity. Nine days later, on June 14, 2020, Wells was “beaten” by the

two gang members. As a result of the beating, Wells’s “left ear

drum was busted,” he “had burns to both [of his] eyes,” he had “a

contusion to [his] right eye,” he had an “abrasion to the inside back

of [his] throat,” and he had bumps and bruises on his “head, shoul-

ders, and hands.” After the beating, a corrections officer at the

prison “started laughing” at Wells and (according to Wells) caused

a sixteen-hour delay before he received medical treatment.

Wells sued the warden, the unit manager, and the correc-

tions officer for violating his Eighth Amendment rights. As to the

warden and the unit manager, Wells alleged that they were delib-

erately indifferent to a risk of serious harm because they were

aware of the threat the two gang members posed to him but failed

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to act. As to the corrections officer, Wells alleged that—by laugh-

ing at him and delaying medical attention—the corrections officer

was deliberately indifferent to his serious medical need. For relief,

Wells asked to be moved to a minimum-security prison, requested

twenty-eight thousand dollars in compensatory damages, and

sought five thousand dollars in punitive damages for his pain and

suffering.

Because Wells sought to proceed in forma pauperis, the

magistrate judge reviewed Wells’s complaint under the Prison Lit-

igation Reform Act’s three-strikes rule. The magistrate judge ex-

plained that, under the three-strikes rule, the court was required to

“evaluate whether the prisoner ha[d] [previously] brought three

cases that were dismissed for failure to state a claim, or as frivolous

or malicious.” Having reviewed Wells’s “history of filings,” the

magistrate judge found that Wells had “brought at least three cases

that were dismissed and count[ed] as strikes.” The magistrate

judge relied on Cook’s dismissal at the pleadings stage for failure to

state a claim, Avery County’s dismissal at the pleadings stage for

failure to exhaust, and Sterling’s summary judgment for failure to

exhaust. Based on its finding that Wells had “at least three strikes,”

the magistrate judge concluded that Wells could not proceed in

forma pauperis under the Prison Litigation Reform Act. The mag-

istrate judge recommended that Wells’s motion to proceed in

forma pauperis be denied.

Wells objected to the magistrate judge’s recommendation.

He argued that a prior case counts as a strike only when the action

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was “dismissed on the grounds that it [was] frivolous, malicious, or

fail[ed] to state a claim upon which relief may be granted.” See 28

U.S.C. § 1915(g). Wells contended that “the previous filings that

the magistrate” judge counted as “strikes” did “not meet the stand-

ard of a ‘strike’ according to the language of the” Prison Litigation

Reform Act. Although Wells agreed that “one of [his] past fil-

ings”(the failure to state a claim in Cook) was a strike, he argued

that other two (the failures to exhaust in Avery County and Ster-

ling) were not dismissed as frivolous, malicious, or for failure to

state a claim.

The district court overruled Wells’s objection and adopted

the magistrate judge’s recommendation. Like the magistrate

judge, the district court concluded that Wells had three strikes:

“one dismissal for failure to state a claim, another dismissal at the

pleadings stage for failure to exhaust administrative remedies, and

a third dismissal at summary judgment for failure to exhaust ad-

ministrative remedies.” The district court concluded that the sec-

ond and third dismissals counted as strikes because a dismissal for

failure to exhaust administrative remedies counts as a strike and

because a motion for summary judgment on the affirmative de-

fense of failure to exhaust is the equivalent of a motion to dismiss.

Because Wells had three strikes, the district court denied his re-

quest to proceed in forma pauperis and dismissed the complaint

without prejudice.

Wells appealed the district court’s dismissal. He argued that

he didn’t have three strikes under the Prison Litigation Reform Act

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12 Opinion of the Court 21-10550

because the district court improperly counted as strikes both the

Avery County dismissal for failure to exhaust administrative reme-

dies and the Sterling summary judgment for failure to exhaust.

“[A] dismissal for failure to exhaust administrative remedies, on its

own,” Wells contended, was “simply not an automatic strike,” as

the district court had found. Instead, Wells asserted, a dismissal for

failure to exhaust “can only be a strike when the claim also happens

to be frivolous, malicious, or a failure to state a claim.”

A panel of this court affirmed the district court’s three-

strikes finding. In White v. Lemma, 947 F.3d 1373 (11th Cir. 2020),

the panel explained, “we stated broadly that a prior case that was

dismissed for failure to exhaust administrative remedies . . . counts

as a [Prison Litigation Reform Act] strike under our precedent.”

“Despite [out-of-circuit] authority to the contrary, given White,”

the panel held, “we must conclude that dismissal for failure to ex-

haust qualifies as a strike under the” Act. Based on White, the panel

could “find no error in the district court’s conclusion that Wells had

three . . . strikes and that his instant case was due to be dismissed.”

But the court granted rehearing en banc and vacated the panel

opinion. See Wells v. Warden, 30 F.4th 1333 (11th Cir. 2022).

II. STANDARD OF REVIEW

We review de novo a district court’s dismissal of a case un-

der the Prison Litigation Reform Act’s three-strikes rule. Mitchell

v. Nobles, 873 F.3d 869, 873 (11th Cir. 2017).

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III. DISCUSSION

We asked the parties to focus on two issues in their briefing

and at oral argument: (1) “Is a dismissal for failure to exhaust ad-

ministrative remedies a ‘strike’ for purposes of the Prison Litigation

Reform Act?”; and (2) “If a dismissal for failure to exhaust adminis-

trative remedies can be a ‘strike’ for purposes of the [Act]’s ‘three

strikes’ provision, does Wells have three strikes?” We’ll focus our

opinion on the same two issues.

Is a Dismissal for Failure to Exhaust

Administrative Remedies a “Strike” for Purposes of the Act?

The federal in forma pauperis statute “is designed to ensure

that indigent litigants have meaningful access to the federal

courts.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). To that end,

a litigant may commence an action in federal court “by filing in

good faith an affidavit stating . . . that he is unable to pay the costs

of the lawsuit.” Id. But “Congress recognized that a litigant whose

filing fees and court costs are assumed by the public, unlike a pay-

ing litigant, lacks an economic incentive to refrain from filing friv-

olous, malicious, or repetitive lawsuits.” Coleman v. Tollefson,

575 U.S. 532, 535 (2015) (cleaned up). This concern played out in

practice: the courts were flooded with “prisoner complaints chal-

lenging prison conditions or claiming civil rights violations.” Jones

v. Bock, 549 U.S. 199, 203 (2007). “Most of these cases ha[d] no

merit; many [were] frivolous.” Id.

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Congress responded with the Prison Litigation Reform Act.

“To help staunch a ‘flood of nonmeritorious’ prisoner litigation,

the Prison Litigation Reform Act . . . established what has become

known as the three-strikes rule.” Lomax v. Ortiz-Marquez, 140 S.

Ct. 1721, 1723 (2020) (quoting Jones, 549 U.S. at 203). “That rule

generally prevents a prisoner from bringing suit in forma pau-

peris . . . —that is, without first paying the filing fee—if he has had

three or more prior suits ‘dismissed on the grounds that [they were]

frivolous, malicious, or fail[ed] to state a claim upon which relief

may be granted.’” Id. (alteration in original) (cleaned up) (quoting

28 U.S.C. § 1915(g)). Specifically, the Act provides:

In no event shall a prisoner bring a civil action or ap-

peal a judgment in a civil action or proceeding under

this section if the prisoner has, on [three] or more

prior occasions, while incarcerated or detained in any

facility, brought an action or appeal in a court of the

United States that was dismissed on the grounds that

it is frivolous, malicious, or fails to state a claim upon

which relief may be granted . . . .

28 U.S.C. § 1915(g). By taking away the privilege of proceeding in

forma pauperis from prisoners who have struck out, the rule is “de-

signed to filter out the bad claims and facilitate consideration of the

good.” Jones, 549 U.S. at 204.

The first question we address is whether a dismissal for fail-

ure to exhaust administrative remedies counts as a strike. The Su-

preme Court, in Jones, answered this question for the Prison

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Litigation Reform Act’s similar “screening requirement[s].” Id. at

214–15. There are three of them: federal law provides for screen-

ing where the plaintiff proceeds “in forma pauperis,” 28 U.S.C. §

1915(e)(2); where a prisoner “seeks redress from a governmental

entity” or “employee,” 28 U.S.C. § 1915A(a); and where a prisoner

challenges “prison conditions” under federal law, 42 U.S.C. §

1997e(c)(1). Each of these screening provisions requires courts to

dismiss a case where, upon screening the complaint, the court finds

that (1) the case is frivolous, (2) the case is malicious, (3) the com-

plaint fails to state a claim, or (4) the plaintiff seeks monetary relief

from a defendant who is immune from such relief. See 28 U.S.C.

§§ 1915(e)(2)(B), 1915A(a)–(b); 42 U.S.C. § 1997e(c)(1).

In Jones, the Supreme Court considered whether a com-

plaint must be dismissed for failure to exhaust under the screening

provisions. Jones, 549 U.S. at 214–15. The Court pointed out that

“failure to exhaust was notably not” one of the “four grounds” that

would lead to the dismissal of a complaint. Id. at 214. But “[s]ome

courts ha[d] found that exhaustion [was] subsumed under the

[Act’s] enumerated ground authorizing early dismissal for fail[ure]

to state a claim upon which relief may be granted.” Id. at 214–15

(quotation omitted). The Court rejected this approach, explaining

that there was “no reason to suppose that the normal pleading

rules” had been “altered to facilitate judicial screening of com-

plaints specifically for failure to exhaust.” Id. at 214.

Under normal pleading rules, the Court explained, “[a] com-

plaint is subject to dismissal for failure to state a claim if the

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allegations, taken as true, show the plaintiff is not entitled to relief.”

Id. at 215. For affirmative defenses, “failure to state a claim de-

pends on whether the allegations in the complaint suffice to estab-

lish that ground.” Id. And “failure to exhaust is an affirmative de-

fense.” Id. at 216. An exhaustion dismissal, the Court explained,

was no different from a statute of limitations dismissal. “If the al-

legations, for example, show that relief is barred by the applicable

statute of limitations, the complaint is subject to dismissal for fail-

ure to state a claim; that does not make the statute of limitations

any less an affirmative defense.” Id. at 215 (citing Fed. R. Civ. P.

8(c)).

In support, the Court cited the Third Circuit’s decision in

Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001), for the proposition

that “a complaint may be subject to dismissal under [r]ule 12(b)(6)

when an affirmative defense appears on its face.” Id. at 161 (cleaned

up). And the Supreme Court cited pages 708 to 710 and pages 721

to 729 of section 1357 of Federal Practice and Procedure. Jones,

549 U.S. at 215. There, the treatise explained that a complaint “is

subject to dismissal under [r]ule 12(b)(6)” for failure to state a claim

“when its allegations indicate the existence of an affirmative de-

fense that will bar the award of any remedy.” 5B Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1357,

at 708 (3d ed. 2004). “[B]ut,” they continued, “for this to occur, the

applicability of the defense has to be clearly indicated and must ap-

pear on the face of the pleading to be used as the basis for the mo-

tion.” Id. at 708–10.

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The treatise then lists a litany of affirmative defenses that

have been considered on a motion to dismiss for failure to state a

claim. “Other affirmative defenses that have been considered on a

motion to dismiss under [r]ule 12(b)(6) include the plaintiff’s as-

sumption of the risk, the presence of contributory negligence, var-

ious types of estoppel, an assertion of illegality, a wide range of

forms of legal immunity from suit, the equitable doctrine of laches,

a claim of privilege, the plaintiff’s execution of a release, the barring

effect of res judicata and related preclusion principles, . . . and the

applicability of the statute of frauds.” Id. at 721–29 (footnotes omit-

ted).

The Court treated exhaustion the same as those other af-

firmative defenses. Just as those affirmative defenses have been

considered on a motion to dismiss for failure to state a claim, the

Court rejected the notion “that failure to exhaust cannot be a basis

for dismissal for failure to state a claim.” Jones, 549 U.S. at 216. It

can.1 But, like any other affirmative defense, that doesn’t mean

1

The special concurrence says that we shouldn’t put too much stock in Jones’s

suggestion “that a dismissal for failure to exhaust administrative remedies can

sometimes constitute a dismissal for failure to state a claim.” But, where the

Supreme Court addresses the same issue we address, as it did in Jones, we

cannot so “lightly cast aside” the Court’s discussion. See Peterson v. BMI Re-

fractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997). And, even if we could,

there’s no tension between Jones and Bryant v. Rich, 530 F.3d 1368 (11th Cir.

2008). Bryant simply suggested that, in the normal course, “exhaustion of ad-

ministrative remedies is a matter in abatement and not generally an adjudica-

tion on the merits.” 530 F.3d at 1374 (emphasis added). But it didn’t say any-

thing about whether a failure to exhaust can amount to a failure to state a

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18 Opinion of the Court 21-10550

that plaintiffs are “required to specially plead or demonstrate ex-

haustion in their complaints.” Id. They aren’t. Instead, the ques-

tion is whether the plaintiff’s failure to exhaust appears on the face

of the complaint. If it does, the plaintiff has failed to state a claim.2

In determining whether failure to exhaust can be a basis for

dismissal for failure to state a claim, we see no reason to treat the

Act’s three-strikes rule any differently than the Supreme Court

treated the Act’s screening requirements in Jones. The three-

strikes rule uses the same “fails to state a claim on which relief may

be granted” language as the screening requirements, and we

claim under the three-strikes rule. To the contrary, Bryant was careful to ex-

plain that “[c]ases decided on the basis of no disputed facts about exhaustion

are materially different . . . , presenting different questions for decision.” Id. at

1376 n.15. Jones was discussing the materially different case where there were

no disputed facts about exhaustion—the failure to exhaust was alleged on the

face of the complaint. Finally, a three-strike rule dismissal for failure to state

a claim does not need to be an adjudication on the merits, as the special con-

currence suggests. The three-strikes rule, the Supreme Court held in Lomax,

“covers all [failure-to-state-a-claim] dismissals: It applies to those issued both

with and without prejudice to a plaintiff’s ability to reassert his claim in a later

action. A strike-call under [the three-strikes rule] thus hinges exclusively on

the basis for the dismissal, regardless of the decision’s prejudicial effect.” 140

S. Ct. at 1724–25 (cleaned up).

2

Of course, when we refer to the “face” of the complaint and the “allegations

in the complaint,” we mean “the complaint in its entirety, as well as other

sources courts ordinarily examine when ruling on [r]ule 12(b)(6) motions to

dismiss, in particular, documents incorporated into the complaint by refer-

ence, and matters of which a court may take judicial notice.” Tellabs, Inc. v.

Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007).

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21-10550 Opinion of the Court 19

“generally presume that ‘identical words used in different parts of

the same act are intended to have the same meaning.’” Fort

Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11 F.4th

1266, 1278 (11th Cir. 2021) (quoting United States v. Cleveland In-

dians Baseball Co., 532 U.S. 200, 213 (2001)).

Having carefully reviewed the three-strikes rule and the

screening requirements, we see no contextual reason why the gen-

eral presumption shouldn’t apply here. We agree with our sister

circuits that have read Jones’s discussion of the screening require-

ments to apply to the three-strikes rule. See, e.g., Ball v. Famiglio,

726 F.3d 448, 459–60 (3d Cir. 2013), abrogated on other grounds

by Coleman, 575 U.S. 532; Thompson v. DEA, 492 F.3d 428, 437–

39 (D.C. Cir. 2007).

We recede from Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998)

and White, 947 F.3d 1373 to the extent we implied that a dismissal

for failure to exhaust administrative remedies is always a dismissal

for failure to state a claim. A dismissal for failure to exhaust admin-

istrative remedies is not always a dismissal for failure to state a

claim.

If a Dismissal for Failure to Exhaust Can Be a “Strike” Under the

Three-Strikes Rule, Does Wells Have Three Strikes?

The district court concluded that Wells had “brought at least

three cases that were dismissed and count[ed] as strikes”—“one dis-

missal for failure to state a claim” (Cook), “another dismissal at the

pleadings stage for failure to exhaust administrative remedies”

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20 Opinion of the Court 21-10550

(Avery County), and “a third dismissal at summary judgment for

failure to exhaust administrative remedies” (Sterling). The second

question we must address is whether these three cases were dis-

missed because they were frivolous, malicious, or failed to state a

claim upon which relief may be granted.

We explained how we can tell that a dismissal was frivolous

for purposes of the three-strikes rule in Daker v. Commissioner,

Georgia Department of Corrections, 820 F.3d 1278 (11th Cir. 2016).

Looking to section 1915’s plain text, we observed that, under the

three-strikes rule, we must look to whether an action or appeal

“was dismissed on the grounds that it is frivolous.” Id. at 1284

(quoting 28 U.S.C. § 1915(g)). “By using the phrase ‘was dismissed’

in the past tense and the phrase ‘on the grounds that,’ the Act in-

structs us to consult the prior order that dismissed the action or

appeal and to identify the reasons that the court gave for dismissing

it.” Id. Because the Act instructs us to look at what the dismissing

court did, we cannot find that an action was dismissed on the

grounds that it was frivolous “unless the dismissing court made

some express statement to that effect.” Id.

“We cannot conclude,” the court explained, “that an action

or appeal ‘was dismissed on the grounds that it is frivolous’ based

on our present-day determination that the action or appeal was

frivolous or based on our conclusion that the dismissing court

could have dismissed it as frivolous.” Id. Instead, “[w]e must in-

terpret the order of dismissal and figure out what the dismissing

court actually did.” Id. And “we cannot know whether the

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21-10550 Opinion of the Court 21

dismissing court concluded that the higher standard for frivolous-

ness was satisfied unless the court expressly says so.” Id.

“Of course,” the Daker court cautioned, “the dismissing

court does not need to invoke any magic words or even use the

word ‘frivolous,’ although such language certainly aids our re-

view.” Id. (citations omitted). “But the dismissing court must give

some signal in its order that the action or appeal was frivolous.” Id.

So, in Daker, for example, the state argued that the three-strikes

rule applied to the prisoner in that case because “six previous fil-

ings” by the prisoner “were frivolous.” Id. at 1282, 1284. We disa-

greed. Because the six “prior orders gave no such signal” that the

actions or appeals were dismissed on the grounds that they were

frivolous, we found that the three-strikes rule did not apply. Id. at

1284. The prisoner could proceed in forma pauperis.

We apply the same rule for actions that were dismissed on

the grounds that they were malicious or failed to state a claim. The

same two phrases—“was dismissed” in the past tense and “on the

grounds that”—modify the other potential grounds for a “strike”

(maliciousness or failure to state a claim). See 28 U.S.C. § 1915(g).

Thus, to count as a strike under the Act, we look to the prior order

that dismissed the action (or appeal) and the reasons the court gave

for dismissing it. In other words, we must interpret the prior order

of dismissal and figure out what the dismissing court actually did.

The dismissing court must give some signal that the action was dis-

missed because it was malicious or failed to state a claim.

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22 Opinion of the Court 21-10550

No magic words are needed. But the dismissing court must

give some express statement to the effect that it dismissed the case

because it was malicious or because it failed to state a claim. The

signal could include, for example, some statement that the dismis-

sal was based on rule 12(b)(6), that the allegations did not plausibly

state a claim, that the complaint failed to give a short and plain

statement showing that the plaintiff is entitled to relief as required

by rule 8, or that the complaint fell short under Bell Atlantic Corp.

v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662

(2009). 3 There must be some signal that the action was dismissed

for maliciousness or failure to state a claim.

Applied to the three prior orders in this case—Cook, Avery

County, and Sterling—there’s no dispute about Cook. Looking at

the prior order in Cook, the parties agree that the district court’s

reason for the dismissal was that Wells failed to state a claim. We

agree. After reviewing Wells’s complaint under the Act’s screening

requirements, the dismissing court in Cook found that Wells “ha[d]

failed to state a cognizable legal claim in his [c]omplaint.” And so

the Cook order had an express statement to the effect that the

3

These aren’t meant to be the only examples. There are surely others. Nor

will statements like the ones we’ve given always signal (in context) that the

dismissal qualifies as a strike. We give examples only to explain the kinds of

signals or express statements in a prior order that would tend to qualify under

the three-strikes rule.

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21-10550 Opinion of the Court 23

action was dismissed for failure to state a claim upon which relief

may be granted. That’s strike one.

Although a closer call, we also agree with the district court

that Avery County was a strike. There, the dismissing court con-

ducted an “initial review” of Wells’s complaint under the Act’s

screening requirements. “In conducting this review,” the dismiss-

ing court said, it must “identify cognizable claims or dismiss the

complaint, or any portion of the complaint, if the complaint—is

frivolous, malicious, or fails to state a claim upon which relief may

be granted.” In its initial review, the Avery County court focused

on Wells’s admission in his complaint that “he did not participate

in any internal grievance procedures while housed at the Avery

County Jail or following his transfer to a new custodian.” While

Wells argued that he shouldn’t be required to exhaust because “no-

tifying” the sheriff of his “claims would [have] serve[d] no useful

purpose,” the Avery County court dismissed the complaint, rea-

soning that “exhaustion remains mandatory even where the in-

mate claims that exhaustion would be futile.”

Although the Avery County court did not use any magic

words in dismissing the action, it sent some signal in its order that

the dismissal was on one of the grounds in the three-strikes rule.

The only reason the Avery County court gave for the dismissal was

its initial review of Wells’s complaint. And the dismissing court

told us exactly what it was looking for in conducting this review.

The dismissing court said that in conducting its review it would

either “identify cognizable claims or dismiss the complaint, or any

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24 Opinion of the Court 21-10550

portion of the complaint,” if it was “frivolous, malicious, or fail[ed]

to state a claim.” Those are the three-strikes grounds. By making

an express statement that it was reviewing the complaint to see if

it was frivolous, malicious, or failed to state a claim—and then dis-

missing the complaint upon completing that review—the dismiss-

ing court gave some signal in its order that it dismissed the action

under one of the three grounds set out in the three-strikes rule.

And so Avery County counts as strike two.

Wells raises two arguments for why Avery County wasn’t a

strike, but neither is persuasive. First, Wells contends that the dis-

missing court erred by focusing on his admission that he had not

exhausted his administrative remedies. Wells argues that the

Avery County court should not have considered the admission be-

cause it was outside the face of the complaint. Wells, in essence, is

asking us to make a present-day determination about whether the

Avery County court was right that the action failed to state a claim.

But we can’t do that.

As we’ve explained, “[b]y using the phrase ‘was dismissed’

in the past tense and the phrase ‘on the grounds that,’” the three-

strikes rule “instructs us to consult the prior order that dismissed

the action or appeal and to identify the reasons that the court gave

for dismissing it.” Daker, 820 F.3d at 1284. In doing so, “[w]e must

interpret the order of dismissal and figure out what the dismissing

court actually did” rather than make a “present-day determination”

about what the district court could or should have done. Id. If the

Avery County court erred in considering Wells’s admission

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21-10550 Opinion of the Court 25

because it was outside the face of his complaint—something we do

not decide today—the remedy was to directly appeal the dismissal

and correct the error. But he cannot collaterally attack the prior

order by having us—nine years later—look behind the order and

the reasons the district court gave for dismissing the complaint.

Second, Wells argues that Avery County isn’t a strike be-

cause not every dismissal under the Act’s screening requirements

is a three-strikes rule dismissal. See Thompson, 492 F.3d at 439

(declining to treat all dismissals under the Act’s screening require-

ments as “presumptive strikes . . . because, for a variety of reasons,

a complaint that is neither frivolous, malicious, nor fails to state a

claim could nonetheless be dismissed” on other grounds, including

“for lack of jurisdiction”). We agree. Just because a court dismisses

an action under the Act’s screening requirements doesn’t mean

that it’s a strike. That’s because it may have been dismissed for a

reason other than that the action was frivolous, malicious, or failed

to state a claim. For example, a district court may screen a com-

plaint but then dismiss it for lack of jurisdiction.

But here we know the reason for the dismissal under the

screening requirements was for one of the three-strikes grounds.

That’s because the Avery County court told us that in conducting

its review it would dismiss the action if the complaint was frivo-

lous, malicious, or failed to state a claim. Those, of course, are the

three-strikes grounds. So, here, we have some signal in the prior

order that the Avery County dismissal was on one of the grounds

in the three-strikes rule.

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26 Opinion of the Court 21-10550

But that signal is missing for the prior order in Sterling—

Wells’s final case. There’s no indication that the Sterling court dis-

missed Wells’s action as frivolous or malicious. Nor does the war-

den ever suggest that either of those three-strikes grounds apply to

Sterling. So the question is whether Sterling’s summary judgment

for lack of exhaustion counts as a “dismiss[al] on the grounds

that . . . [Wells] fail[ed] to state a claim upon which relief may be

granted.” 28 U.S.C. § 1915(g). It doesn’t.

Summary judgment based on evidence outside the face of

the complaint or on something other than the allegations in the

complaint is not a dismissal for failure to state a claim. Cf. Speaker

v. U.S. Dep’t of Health & Hum. Servs. Ctrs. for Disease Control &

Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (“If matters out-

side the pleadings are presented by the parties and considered by

the district court, the [r]ule 12(b)(6) motion must be converted into

a [r]ule 56 summary judgment motion.”); see also Fed. R. Civ. P.

12(d) (same). “A complaint is subject to dismissal for failure to state

a claim if the allegations, taken as true, show the plaintiff is not en-

titled to relief.” Jones, 549 U.S. at 215. Summary judgment, on the

other hand, asks “whether the evidence presents a sufficient disa-

greement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986) (emphasis added).

The Sterling court entered summary judgment for the

prison officials based on evidence that Wells did not submit a

timely grievance under the prison’s grievance policy. The prison’s

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21-10550 Opinion of the Court 27

grievance policy required Wells to either informally resolve his

grievance within eight days of the incident or begin the formal

grievance process within five days of the alleged incident. The dis-

missing court found that Wells was on notice that the prison had

interpreted his sentence erroneously, but he did not begin the in-

formal or formal grievance process within the required time pe-

riod.

In granting summary judgment for the prison officials, the

dismissing court considered more than the allegations in Wells’s

complaint. The prior order considered the prison’s grievance pol-

icy, Wells’s letter to the prison, and a prison grievance administra-

tor’s declaration. The Sterling court, in short, granted summary

judgment for the prison officials because, based on the evidence,

there was no genuine dispute that Wells did not timely exhaust his

administrative remedies. Because the Sterling court considered ev-

idence outside the complaint, this was not a dismissal for failure to

state a claim.

The warden offers two reasons for why Sterling should

count as a strike, but we are unconvinced. First, the warden argues

that “mixed” dismissals count as strikes. In other words, the war-

den claims that “Sterling is a strike because the entire complaint

was dismissed” and one of Wells’s claims was dismissed earlier in

the case “on the grounds that the allegations failed to make out a

claim.” But the Prison Litigation Reform Act imposes a strike only

where the “action . . . was dismissed on the grounds that it [was]

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28 Opinion of the Court 21-10550

frivolous, malicious, or fail[ed] to state a claim upon which relief

may be granted.” 28 U.S.C. § 1915(g) (emphasis added).

And “the entire complaint”—the action—was not dismissed

in Sterling. Wells’s “medical glove claim” was “summarily dis-

misse[d] . . . without prejudice.” But the Sterling court “decline[d]

to summarily dismiss” Wells’s “claim for wrongful imprisonment.”

The Sterling court later granted summary judgment on the wrong-

ful imprisonment claim. But entering summary judgment on a

claim is not a dismissal. 4 Although one of Wells’s claims might’ve

been dismissed, the action was not dismissed in Sterling.

Second, the warden also contends that the summary judg-

ment order in Sterling was really a dismissal for failure to state a

claim because it relied only on Wells’s “own admissions,” “attach-

ments” to the complaint, and “judicially noticeable facts.” But the

Sterling court relied on more than admissions, attachments, and

judicially noticed facts. It also relied on a declaration from the

prison’s grievance administrator. In his declaration, the

4

That’s not to say a district court can never dismiss an action on the grounds

that it is frivolous, malicious, or failed to state a claim after the pleadings stage.

Section 1915, after all, requires courts to dismiss a case “at any time” if it is

“frivolous,” “malicious,” or “fails to state a claim on which relief may be

granted.” 28 U.S.C. § 1915(e)(2). But although a district court can dismiss a

case on a three-strikes ground at summary judgment (for example), that’s not

what happened here. The district court entered summary judgment based on

evidence outside the complaint. It did not dismiss the case on the grounds

that it was frivolous, malicious, or failed to state a claim.

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21-10550 Opinion of the Court 29

administrator described the grievance process, stated that Wells

used the prison’s “electronic kiosk to send a message” to the prison

“that he was being held beyond his max-out date” but that this mes-

sage “was not processed,” and explained that there were “no rec-

ord[s]” of Wells “filing a grievance or appeal regarding the calcula-

tion of his sentence.” Because the prior order relied on evidence

outside the face of the complaint, it could not have been a dismissal

for failure to state a claim.

IV. CONCLUSION

In the Act, as in baseball, two strikes are not enough. Wells

had two strikes: Cook and Avery County. But because the Sterling

summary judgment fell outside the strike zone, he didn’t have a

third. Without three strikes, the district court erred in dismissing

Wells’s complaint under the three-strikes rule. We thus reverse

the dismissal and remand for further proceedings. 5

REVERSED AND REMANDED.

5

The Roderick & Solange MacArthur Justice Center (Easha Anand, Perry Cao,

Rosalind Dillon, and Devi Rao) has commendably represented Wells through-

out his appeal. The Georgia Attorney General’s Office (Stephen Petrany) gra-

ciously accepted our invitation to represent the warden after we voted to re-

hear the appeal en banc. We appreciate counsel’s service to the court.

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21-10550 JORDAN, J., Concurring in the Judgment 1

JORDAN, Circuit Judge, Concurring in the Judgment:

I agree with the court that Mr. Wells does not have three

strikes under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g),

but would only address the dismissal in the Sterling case because it

is dispositive. I understand that the court’s discussion of the dis-

missals in the Cook and Avery County cases may provide guidance

to the bench and bar, but that discussion is unnecessary and could

well be dicta. Once the dismissal in Sterling is not deemed to be a

strike, it matters not how we characterize the dismissals in Cook

and Avery County.

In my view, we should resolve this case based on a relatively

simple proposition—that a dismissal for failure to exhaust is not a

strike under the PLRA because such a disposition is not listed in §

1915(g) as one of the grounds that constitutes a strike. See Daker

v. Commissioner, Ga. Dep’t of Corr., 820 F.3d 1278, 1283 (11th Cir.

2016) (“Three specific grounds render a dismissal a strike: ‘frivo-

lous,’ ‘malicious,’ and ‘fails to state a claim upon which relief can

be granted.’ Under the negative-implication cannon, these three

grounds are the only grounds that can render a dismissal a strike.”);

Green v. Young, 454 F.3d 405, 409 (4th Cir. 2006) (“Because a dis-

missal for failure to exhaust is not listed in § 1915(g), it would be

improper for us to read it into the statute. . . . [W]e we must honor

Congress'[ ] deliberate omission from § 1915(g) of dismissals for

failure to exhaust and conclude that a routine dismissal for failure

to exhaust administrative remedies does not count as a strike un-

der § 1915(g).”). See also Owens v. Isaac, 487 F.3d 561, 563 (8th Cir.

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2 JORDAN, J., Concurring in the Judgment 21-10550

2007) (“The first case was dismissed without prejudice for failure

to exhaust administrative remedies; such a dismissal is not a strike

under [§] 1915(g).”); 16AA Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 3970.1 (5th ed.) (“A dismissal that

does not fit within any of the three categories does not count as a

strike.”). Sterling, which was dismissed for failure to exhaust ad-

ministrative remedies, therefore does not count as a strike.

As the court notes in its opinion, there is language in Jones

v. Bock, 549 U.S. 199 (2007), suggesting that a dismissal for failure

to exhaust administrative remedies can sometimes constitute a dis-

missal for failure to state a claim. See id. at 216 (“that is not to say

that failure to exhaust cannot be a basis for dismissal for failure to

state a claim”). But I would not put too much stock in this snippet.

Our post-Jones cases explain that “exhaustion of administrative

remedies is a matter in abatement and not generally an adjudica-

tion on the merits.” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.

2008). See also Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir.

2015) (same). If a dismissal for failure to exhaust administrative

remedies is not merits-based, see Bryant, 530 F.3d at 1374 (explain-

ing that exhaustion “is nothing more than a precondition to adju-

dication on the merits”), I do not see how it can be fairly character-

ized as a dismissal for failure to state a claim, which is an adjudica-

tion on merits. Whether or not failure to exhaust administrative

remedies can be determined from the face of the complaint says

nothing about the nature of a dismissal on that ground.

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21-10550 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, joined by WILLIAM PRYOR, Chief Judge,

and JILL PRYOR, Circuit Judge, concurring:

I join the Court’s well-written and well-reasoned opinion in

full. I write separately only to register my concern about dismiss-

ing actions for failure to exhaust based on a pro se prisoner’s re-

sponse to a yes/no check-box on form complaints that ask about

exhaustion.

Today we hold that when a pro se prisoner admits on the

face of her complaint that she hasn’t exhausted her administrative

remedies, a dismissal for failure to exhaust counts as a strike. Opin-

ion at 17–18. I generally agree. But not all dismissals for failure to

exhaust are created equal.

Take Jeremy Wells’s suit against Avery County. There, the

Western District of North Carolina’s “Prison Civil Rights Act Com-

plaint Form” asked him to answer—yes or no—whether he had

“present[ed] the facts of each claim relating to [his] complaint to

the Inmate Grievance Commission or any other available adminis-

trative remedy procedure?” And that question isn’t unusual. In

our Circuit, six of the nine districts’ standard “pro se prisoner civil

rights complaint” forms demand that the filer opine on whether

she exhausted her prison remedies. 1

1 These courts include the Northern and Southern Districts of Alabama, all

three district courts in Georgia, and the Middle District of Florida.

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2 ROSENBAUM, J., Concurring 21-10550

In my view, district courts should not require a pro se pris-

oner to answer such a question as a condition of filing a complaint.

That is so for three reasons.

First, a plaintiff is “the master of the complaint.” See

Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S.

826, 831 (2002) (citing Caterpillar Inc. v. Williams, 482 U.S. 386,

398–99 (1987)). That should end the matter. After all, the Prisoner

Litigation Reform Act (the “Act”) does not justify a departure from

the general rule. Jones v. Bock, 549 U.S. 199, 200 (2007) (“But the

screening requirement does not—explicitly or implicitly—justify

deviating from the usual procedural practice beyond the depar-

tures specified by the [Act] itself.”).

Second, the Act requires exhaustion of available remedies,

42 U.S.C. § 1997e(a). And asking pro se prisoners whether they

have exhausted available remedies demands too much. The Su-

preme Court has explained that a remedy is “unavailable” when (1)

it is “a simple dead end—with officers unable or consistently un-

willing to provide any relief to aggrieved inmates”; (2) the admin-

istrative process is so opaque that it is “practically speaking, incapa-

ble of use”; or (3) prison administrators “thwart inmates from tak-

ing advantage of a grievance process through machination, misrep-

resentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 643–44

(2016).

A simple “check yes or no” box does not allow a pro se pris-

oner to explain that, while she might not have exhausted her rem-

edies, a prison administrator “thwart[ed]” her from doing so, or the

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21-10550 ROSENBAUM, J., Concurring 3

process was necessarily futile, or it was “practically speaking, inca-

pable of use.” And even if the district-court form uses the word

“available,” it demands too much from pro se prisoners to expect

them, based on that adjective, to understand that they are being

asked whether any of the three exceptions to the exhaustion re-

quirement that the Supreme Court has distilled applies. Indeed,

without saying so, forms like these effectively ask these pro se pris-

oners to act as the judge and render a legal conclusion about

whether they should be excepted from the exhaustion require-

ment. That’s too much.

Third, as the Supreme Court has explained, failure to ex-

haust is an affirmative defense, and “inmates are not required to

plead or demonstrate exhaustion in their complaints.” Jones, 539

U.S. at 216. “District courts may not circumvent this rule by . . .

requiring prisoners to affirmatively plead exhaustion through local

rules.” Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014). So

they should not be able to circumvent it by requiring pro se prison-

ers to fill out a form that directs them to plead exhaustion.

The Warden responds that “[i]nmates are always free to

leave portions of a form complaint blank.” But litigants aren’t free

to ignore district-court orders, and again, it asks too much of a pro

se prisoner to separate a district-court form complaint (which con-

tains instructions from the court) and a district-court order. The

Middle District of Georgia’s form complaint, for instance, includes

multiple warnings (accompanied by a healthy helping of underlin-

ing, bolding, and exclamation points) that failure to follow a given

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4 ROSENBAUM, J., Concurring 21-10550

instruction will result in dismissal. Plus, we should not encourage

pro se prisoners to ignore district-court instructions—even on

forms.

One last point: the district courts should make pro se pris-

oners aware of the mandatory administrative exhaustion require-

ment—but not by requiring them to plead exhaustion. The North-

ern District of Florida, for instance, simply notifies filers—in bold

italics—that “[i]f [the plaintiff] did not exhaust available remedies

prior to filing this case, this case may be dismissed. . . . Therefore,

please consider whether you have fully exhausted your remedies

before proceeding with this action.”

In short, I respectfully urge district courts to cease use of and

reliance on the yes/no check-box form question asking about ex-

haustion of remedies. After all, if the grievance system in the pris-

oner’s facility isn’t available, then exhaustion isn’t required. And a

pro se prisoner who doesn’t have an available grievance system is

exactly the person the federal courts should be open to hearing.