Lead Opinion
Andrew Priester and Gregory Bryant have filed a petition for reconsideration en banc. Treating their petition for en banc reconsideration as a petition for panel rehearing, we withdraw our opinion dated 31 May 2007 and substitute the following opinion in its place:
Two inmates — Andrew Priester (“Priester”) and Gregory Bryant (“Bryant”)— brought individual suits against prison officials (“Defendants”) under 42 U.S.C. § 1983 to contest the conditions of their confinement at Rogers State Prison (“Rogers”). Defendants filed motions to dismiss, which the district court treated as motions for summary judgment. Because both Priester and Bryant failed to exhaust their administrative remedies, the district court dismissed Priester’s and Bryant’s complaints without prejudice.
I. Background
A. Andrew Priester
Assuming for the moment that Priester’s factual allegations are true, here are the facts. When Priester was incarcerated at Rogers, four prison officials assaulted him on four different occasions between August and December 2003. Despite knowledge of these beatings, both the warden and deputy warden remained deliberately indifferent and failed to prevent Priester’s abuse. Priester requested grievance forms from other Rogers officials to report the beatings; but he received none. Priester also contends that prison officials at Rogers generally used force or the threat of force to discourage inmates from filing grievances.
In January 2004, Priester received a transfer from Rogers to Georgia State Prison (“GSP”). During a visit to the GSP infirmary, Priester reported his abuse at Rogers to a psychiatrist and a counselor. He also requested a form to file a grievance about the abuse. The psychiatrist and the counselor responded that his mental health problems had caused him to be delusional; and, as a result, they refused to give him a grievance form to report the beatings. Nothing suggests that Priester made some further attempt to file a grievance about the abuse. He later obtained and submitted a grievance form at GSP for
Priester filed this suit against Defendants under section 1983; he alleges the use of excessive force in violation of federal and state law. Before filing an answer, Defendants moved to dismiss the suit because Priester failed to exhaust his administrative remedies in accordance with the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The district court dismissed Priester’s complaint without prejudice.
B. Gregory Bryant
As with Priester, we construe Bryant’s factual allegations as true. According to Bryant, he was twice subjected to excessive force by prison officials at Rogers. The warden and deputy warden were deliberately indifferent and failed to prevent his abuse. The first incident occurred on 17 March 2004, when Bryant was beaten and kicked by two officers at the instigation of another officer. Bryant filed a grievance for the beating; but it was denied on 7 April 2004.
Bryant’s counselor advised him that he had five business days to appeal the denial of his grievance, which he did on 14 April. But under the prison’s standard operating procedures (“SOP”) in effect at the time, Bryant actually had only four business days to file his appeal.
On 19 April 2004, Bryant was beaten again — this time in retaliation for filing his grievance. Fearing another violent reprisal, he did not file a second grievance. Bryant was eventually transferred to Wheeler Correctional Institution; but he filed no grievances there about his mistreatment at Rogers.
Bryant brought suit under section 1983. Defendants filed motions to dismiss, which the district court construed as motions for summary judgment. The district court granted the motions and dismissed Bryant’s complaint without prejudice for failure to exhaust administrative remedies under the PLRA.
II. Discussion
The PLRA requires inmates to exhaust available administrative remedies before filing a lawsuit: “No action shall be brought with respect to prison conditions under section 1983 ... by a prisoner ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This rule applies to all inmate suits alleging excessive force, whether the prisoner alleges an isolated episode of mistreatment or “a prolonged and sustained pattern of harassment and intimidation by corrections officers.” See Porter v. Nussle,
Therefore, “when a state provides a grievance procedure for its prisoners, ... an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 law
A Andrew Priester
That Priester filed no grievance at either Rogers or GSP about the beatings he allegedly suffered is undisputed. Priester contends that he attempted to file grievances at both facilities; but his requests for the pertinent forms were either unanswered or denied. He also argues that Rogers officials deterred him from filing grievances through the threat of violence. Thus, he argues that no grievance procedure was “available” for him to exhaust.
Even assuming — without deciding — that no grievance procedures were available to Priester at Rogers, the record supports that Priester did have grievance procedures available to him when he transferred to GSP.
We recognize that a grievance filed after Priester’s transfer to GSP would have been untimely. But the relevant grievance procedures provide inmates with the opportunity to request consideration of untimely grievances for good cause. Thus, Priester could have exhausted his administrative remedies by filing a grievance at GSP and then by showing good cause for its tardiness. But, he filed no grievance about the abuse. See Harper v. Jenkin,
Priester says that GSP officials denied him access to grievance forms. Defendants attempt to rebut this contention by showing, among other things, that Priester successfully obtained and submitted a grievance form at GSP but used it for another matter: one involving lost property. Evidence of the property loss grievance, however, does not necessarily refute Priester’s allegation that he was denied grievance forms to report physical abuse. It is possible that Priester was denied access to grievance forms at GSP for the purpose of reporting prison beatings, but not for the purpose of reporting property loss. We conclude that enough conflicting evidence exists to raise a genuine issue of material fact about whether administrative remedies were available to Priester at GSP.
We decide, however, that the district judge did not err by acting as a
Even though a failure-to-exhaust defense is non-jurisdictional,
Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense — as in Priester’s
That motions to dismiss for failure to exhaust are not expressly mentioned in Rule 12(b) is not unusual or problematic. “ ‘Federal courts ... traditionally have entertained certain pre-answer motions that are not expressly provided for by the rules.’ ” Ritza,
Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate’s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, the internal review might filter out some frivolous claims. And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy. 1
Porter v. Nussle,
When a court “treats [a] motion as having been brought under Rule 12(b), then it is subject to the rules and practices applicable to the most analogous Rule 12(b) motion.” 5C Wright & Miller, supra, § 1360 at 91. For judges to resolve factual disputes where the motion to dismiss is not an adjudication on the merits is not uncommon. For instance, it is well-established that a judge may make factual findings about subject matter jurisdiction on a Rule 12(b)(1) motion to dismiss. Williamson,
Turning to this case, we note that Priester did not say in his affidavit to the district court that his failure to file a grievance at GSP was due to his fear of violent reprisal at GSP. To the extent that Priester suggests on appeal that he feared beatings at GSP, we will not consider that new argument. See Access Now, Inc. v. Southwest Airlines Co.,
acting as the factfinder on whether Priester had access to grievance forms at GSP to report his abuse at Rogers.
We review the district court’s findings of fact for clear error. Cf. Lawrence,
B. Gregory Bryant
Bryant raises two exhaustion issues on appeal. First, he argues that his appeal of the warden’s denial of his first grievance — although untimely — satisfied the PLRA’s exhaustion requirement. We disagree. To exhaust administrative remedies in accordance with the PLRA, prisoners must “properly take each step within the administrative process.” Johnson,
Although Bryant properly filed a grievance reporting his first allegation of abuse, he nevertheless failed to file a timely appeal under the SOP in effect at the time. Bryant contends, however, that he was merely following his counselor’s instructions in submitting his appeal within five business days instead of four. Bryant also contends that his appeal was delayed because he received no appeal form until the day before he filed his appeal. Even if we were to accept that Bryant’s appeal was untimely because his counselor was mistaken about the time limits, we cannot say that Bryant successfully exhausted his administrative remedies. The prison’s administrative appeals process permitted the
Second, Bryant argues that he failed to report the second incident of prison abuse, which occurred in retaliation for filing his first grievance, because he feared additional violent reprisals by Rogers officials. This argument is unavailing. Like Priester, Bryant was later transferred to another prison where the threat of violence was removed.
III. Conclusion
Because neither Priester nor Bryant exhausted all of their administrative remedies before filing their suits, we affirm the district court’s decisions dismissing their claims without prejudice.
Affirmed.
Notes
. Pursuant to 11th Cir. R. 35-5, we may treat a petition for rehearing en banc as a petition for rehearing before the original panel.
. The district court recognized that Defendants’ motions were motions to dismiss; and in the light of those motions, the district court ordered dismissals without prejudice. But it is true that the district court also spoke of the motions as having been construed as or converted to summary judgment motions. Given what the district court did — dismiss without prejudice — we understand the “converted” language to mean, in context, that the court would (and did) use the procedures characteristic of dealing with motions for summary judgment in deciding whether or not to grant a dismissal. The district court mainly was telling the parties — to make certain that Priester and Bryant had a meaningful opportunity to oppose Defendants' motions — that matters beyond the pleadings could be submitted and would be considered. In reality, no summary judgment was granted in these cases: The merits of the disputes between the parties were not decided; no rights or liabilities were finally determined.
. We earlier consolidated Priester’s appeal, case number 06-12290, with Gregory Bryant's appeal, case number 06-11116.
. Priester filed this grievance on 13 October 2005.
. Bryant should have submitted his appeal no later than 13 April.
. We have said that an administrative remedy is not "available” if it is unknown and unknowable to the inmate. Goebert v. Lee County,
. Adopting the magistrate judge's finding that Priester’s claim about not having access to grievance forms was not credible, the district court declared "that, irrespective of whether the issue is reached under Rule 12(b)(1), 12(b)(6), or 56, exhaustion constitutes a preliminary issue for which no jury trial right exists, and therefore judges can and should make credibility determinations on exhaustion-excusal issues.”
. A district court judge may make factual findings when resolving purely jurisdictional issues. Williamson v. Tucker,
. Although the Supreme Court recently announced in Jones v. Bock,
. The Supreme Court has confirmed that exhaustion under the PLRA is not a jurisdictional prerequisite. Woodford v. Ngo,
. We decide the case before us: one where dismissal was without prejudice and where neither party has evidenced that administrative remedies at GSP are absolutely time barred or otherwise clearly infeasible. We do not mean to say today that a failure to exhaust can never correctly result in a dismissal with prejudice. See Johnson,
. It bears noting that where, as in this case, exhaustion is not adjudicated as part of the merits, it is unlike a defense under Rule 12(b)(6) for failure to state a claim, which is generally decided on the merits. See NAACP v. Hunt,
. Cf. Lawrence v. Dunbar,
. See Wyatt,
. What we decide today is no innovation. We are aware of no precedent in this Circuit allowing the question of exhaustion under the PLRA to go to a jury. Nor are we aware of a published precedent in this Circuit in which we decided that a judge had no authority to decide disputed facts about exhaustion, as a precondition to suit under the PLRA. Cases
. Priester introduced evidence outside of the pleadings in his response to Defendants’ motions to dismiss. Motions to dismiss not enumerated under Rule 12(b) are governed by Rule 43(c), which permits courts to hear evidence outside of the record on affidavits submitted by the parties. See Fed.R.Civ.P. 43(c); Ritza,
. The district judge wrote that he "agreed” with the magistrate judge’s credibility findings. The magistrate judge also had written these things:
Of course, [Priester] avers that unidentified staff at GSP continued to deny him access to grievance forms. This farfetched contention simply cannot be taken at face value. Not infrequently, this Court has considered cases involving] the alleged use of excessive force at GSP; even in these cases, GSP officials have not prevented prisoner plaintiffs from fully exhausting the administrative process. See, e.g., Palmer v. Smith, CV 604-075 (S.D. Ga. June 29, 2004). [Priester’s] suggestion that prison officials at GSPdenied him access to grievance forms for over two years in order to protect colleagues at Rogers is sorely lacking in credibility. The believability of the averment is further eroded by the fact that other inmates at Rogers who have recently brought excessive force claims against Defendants did file grievances regarding their claims. See, e.g., Hooks v. Rich, CV 605-065 (S.D.Ga. July 13, 2005).
By the way, Priester has not objected to the district court's consideration of the filings and its own records in other inmate cases.
. Although Bryant filed his notice of appeal before the district court entered final judgment for all Defendants, his notice of appeal was not premature. "[Wjhere final judgment has been entered as to all defendants who have been served with process and only unserved defendants remain, the district court’s order may be considered final under 28 U.S.C. § 1291 for purposes of perfecting an appeal.” Insinga v. LaBella,
. Bryant points to no evidence in the record that he was threatened with retaliation for filing a grievance at the new prison.
Concurrence Opinion
concurring in part, dissenting in part:
I concur in the majority’s opinion with respect to Gregory Bryant. I do not think, however, that the majority’s opinion in Part II-A can be reconciled with the recent Supreme Court decision in Jones v. Bock,
In Jones, the Chief Justice, writing for a unanimous Supreme Court, overturned several judicially-created procedural rules adopted by courts to implement the PLRA’s exhaustion requirement. Jones v. Bock,
Failure to exhaust under the PLRA is an affirmative defense the defendant must plead and prove. Id. at 915. It is subject to the usual procedural practice. Id. at 919.
Our usual practice is to consider affirmative defenses, such as failure to exhaust
A district court should not grant summary judgment where genuine issues of material fact exist about an affirmative defense. See Fed.R.Civ.P. 56(c); see also Mason v. Bridger,
The majority departs from our usual procedural practice by directing district courts to treat failure to exhaust not as an affirmative defense, but to consider it on a “motion to dismiss” not enumerated in Rule 12(b).
As support for its position, the majority cites Ninth Circuit precedent, including Wyatt v. Terhune,
This Court, on the other hand, has consistently treated exhaustion in other contexts on summary judgment, determining whether “there is no genuine issue of material fact.” Counts v. Am. Gen. Life and Accident Ins. Co.,
In light of the PLRA and Title VII’s purposes, I see no reason to treat exhaustion under each statute differently. Congress enacted the PLRA, in part, “to reduce the quantity and improve the quality of prisoner suits” and to “afford[ ] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Porter v. Nussle,
Furthermore, I am unaware of, and majority does not point out, any precedent wherein this Court has treated exhaustion, or any other affirmative defense, as a “matter in abatement,” directing a district court to decide genuine issues of material fact. Accordingly, by departing from our usual procedural practice with respect to exhaustion and other affirmative defenses, and treating exhaustion under the PLRA under this novel procedural framework, the majority adopts an approach that is in tension with Jones. See 549 U.S. at-,
Lastly, treating exhaustion on summary judgment does not undermine Congress’s intent in enacting the PLRA. A prisoner cannot defeat summary judgment by relying on sham affidavits, bare and self-serving allegations, or other evidence that is incredible as a matter of law. He must raise more than a mere scintilla of evidence in support of his position: in order to defeat summary judgment, there must be evidence on which the jury could reasonably find for the prisoner. Walker v. Darby,
. In Jones, the Court analogized failure to exhaust to the affirmative defense of statute of limitations.
. If, however, a plaintiff fails to make sufficient allegations in his complaint such that an affirmative defense appears on its face, his complaint may be subject to dismissal under Rule 12(b)(6). Jones,
. Although exhaustion under the PLRA is an affirmative defense, the majority regards it as "a matter of judicial administration,” likening it to lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, or ineffective service of process. Each of the latter defenses, however, are enumerated in Rule 12(b), Fed. R. Civ. Pro. 12(b)(l)-(4), while failure to exhaust is not. In the context of failure to exhaust under the PLRA, the Supreme Court has indicated that deviations from the usual procedural practice “must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.” Jones,
. It is also worth noting that several district courts have expressed concern that Wyattis irreconcilable with Jones. See Chatman v. Johnson, No. CIV S-06-0578 MCE EFB P,