*1 260 (“Without regard
965 to whether SORNA implemented by Washington any DILLON, or oth Keith Mark Plaintiff- state, registration er under it is re Appellant, quired.”); Gould, United States v. (4th Cir.2009) (“SORNA’s requirement that a sex register offender ROGERS; Brad Thompson; T.W. Ser applies registration whether would be ac geant Edwards; Sergeant Walker; complished through pre-SORNA registra Deputy Hartzglou; Lieutenant Holli tion facilities under SORNA-compliant field; Pietsch, Thomas Defendants- programs.”), petition cert. (Sept. filed Appellees. 2009) (No. 09-6742); United States v. Dixon, Cir.2008), No. 08-30419. granted
cert. sub nom. Carr v. United — United States Appeals, Court of States, —, U.S. Fifth Circuit. (2009);4 L.Ed.2d 631 United States v. Hinckley, Cir.2008) Feb. 2010. (rejecting an impossibility challenge to SORNA because defendant “had notice
of his obligations regis [and] could have Oklahoma,
tered in which would have
made him compliant with both state and law”).
federal
III. CONCLUSION
We hold that Heth’s conviction did not
violate his process due rights because he
was required to register under SORNA
regardless of whether SORNA’s adminis- requirements
trative had implement- been
ed Colorado or Texas. Heth’s other
arguments are foreclosed prece- circuit
dent. We therefore AFFIRM judg-
ment of the district court.
AFFIRMED. questions presented The for review before 2. Whether the Ex Post pre- Facto Clause Supreme Court in prosecution 2250(a) Can v. § United cludes States under of a person are: underlying whose offense and travel in interstate predated commerce both SOR- person 1. Whether a criminally NA's enactment. prosecuted 2250(a) § under for failure to Certiorari, Petition for Writ of Can v. United register underlying when defendant’s States, 08-1301, No. (Apr. WL offense and travel in interstate commerce 22, 2009). We note that Helh traveled to El predated both SORNA’senactment. Paso, Texas, after SORNA’senactment. *5 Gisleson, Herman, Herman, E.
Soren Cottar, L.L.P., Orleans, LA, Katz & New July Dillon section Pub. Jus- In filed this (argued), Kimmel Phyllis Adele DC, alleging Dillon. suit violations of his civil tice, P.C., Washington, for during pro- his incarceration. He rights I, Atty. Wayne Landry, Asst. Michael pro se until late March after ceeded LA, Charles, De- Lake for (argued), Gen. represented by he was counsel. In which fendants-Appellees. 2007, Appellees filed a motion November Dillon’s suit for failure to ex- to dismiss remedies, shortly haust administrative magistrate judge hearing thereafter Appellees’ recommended that mo- this case BENAVIDES, DENNIS and granted. Before tion be the district ELROD, Judges. rejected magistrate’s Circuit court recommen- 12(d) Ap- and under Rule converted dation
BENAVIDES, Judge: Circuit summary motion into for pellees’ motion parties judgment, as had submitted appeals Keith Mark Dillon Appellant beyond their briefing going evidence with judgment summary dismissal on from the allegations pleadings. the factual in their § for under 42 of his suit U.S.C. Subsequently, granted the district court being while allegedly he suffered abuse summary judgment for in March Jena, For prisoner as a Louisiana. held ground on that Dillon had failed below, vacate the reasons described we to exhaust administrative remedies before and remand of the district court bringing appeal this suit. followed. This development further of the record *6 this case.
II.
I.
Litigation
Under the
Re
Prison
29,
(“PLRA”),
2005,
prisoners
Hurricane
August
prop
when
form Act
must
On
in
“such
erly
Katrina made landfall
southeastern
exhaust
administrative remedies
Louisiana,
a
being
pris-
prior
filing
Dillon was
held as
as are available”
to
a section
concerning prison
the Jefferson Parish Correctional
action
conditions.
oner at
1983
1997e(a)
(“Jefferson”),
(2006);
§
v.
the New Or- 42 U.S.C.
Center
within
Woodford
83-84,
metropolitan
to the dev- Ngo,
leans
area. Due
548 U.S.
126 S.Ct.
(2006).
hurricane,
a
caused
the Loui-
respond remedies institution, to a the inmate question Carty transfer new mixed of law and fact. v. (5th Cir.2009). Thaler, grievance a an action taken regarding files 252 institution, or her former the former by his while it a of law Similarly, question is complete processing “will institution as qualify whether administrative remedies 325(G)(8). § through step.” the first being “available” under 42 U.S.C. Furthermore, 1997e(a), § the inmate believes the availability may “[i]f sometimes complaint sensitive and would ad- questions turn on of fact. v. See Snider versely (2d complaint Melindez, affected if became Cir. institution,” 1999). he or [his her] known may skip the file his or step she first exhaustion Since is an affirmative complaint directly her with Louisiana’s As- defense, the burden is on to Secretary sistant of Adult Services. that Dillon demonstrate failed to exhaust 325(G)(6)(a). § available administrative remedies. Jones may proceed The inmate the second to Bock, 199, 216, v. U.S. step of the ARP to the Secre- appealing (2007). Consequently, L.Ed.2d tary the DPSC if he or is dissatis- she Appellees must establish beyond perad response. with the first step fied venture all of the essential of the elements 325(G)(2)(a). § If never the inmate re- summary defense of to warrant response step grievance, to a ceives first in their favor. See Martin he or she proceed
then is entitled to to the Dish, Cmty. Coll. Alamo step process second of the upon expi- (5th Cir.2003). of the step response ration first time limit. 325(G)(4)(a). § If the is not inmate satis- A. fied with the step response, second he or seriously Dillon does not dispute that he she then file suit district court. 325(G)(2)(b). satisfy failed the steps of the ARP that § prerequisite filing
are
section
*7
Rather,
argues
III.
action.
he
suit
that his
should not
barred
no
because there was
grant
“We review the
of sum
remedy “available” to him
90-
during the
novo,
mary judgment
applying
de
the same
day period following the
abuse.
alleged
as
standards
the district court.”
In re
Alternatively,
argues
he also
to
his failure
Egleston, 448 F.3d
811-12
Cir.
exhaust should be excused on
the basis
2006) (internal
omitted).
quotations
Sum
estoppel
“special
the
circumstances”
mary judgment
appropriate
is
when “the
surrounding his detention at Jena.
pleadings,
the discovery and disclosure
file,
on
any
materials
and
opposition Appellees’
affidavits
In
to
mo-
show
various
genuine
that there is
any
seeking
case,
no
issue as to
to
tions
dismiss this
Dillon
material fact and that the movant is enti
affidavits alleging
submitted
that no ad-
judgment
tled to
grievance
as a matter of law.”
procedures
ministrative
were
56(c).
prisoners
Fed.R.Civ.P.
“We construe all facts
available to
at Jena
and
inferences in
light
prisoners
explicitly
and
the
most favorable
were
told not to sub-
nonmoving party
to the
reviewing
grievances.
when
mit
Dillon
when
asserts that
grants
judgment.”
of motions for summary
sought
he
to file an
com-
administrative
Earle,
Murray v.
plaint
after he
late
at Jena
was abused in
Cir.2005).
has
prisoner
September
Appellee
Rogers
Whether a
ex-
Brad
any
any
relief or
approxi- provide
him to kneel down for
to take
action
ordered
“forget”
response
complaint,”
him to
to a
an hour
told
whatsoever
mately
claims
not
grievance.
required
a
He also
under
filing
about
prisoners’ outgoing
checked
PLRA because
is no “available”
guards
there
destroyed writings detailing
Chumer,
mail and
remedy. Booth v.
532 U.S.
abuses, blocking
filing
him from
a “sensi- 736,
After not sufficiently developed the record was 90-day early October Allen in granted when the district court summary he have filed a period during which could Appellees. for 325(G)(1)(a) had grievance under section not not do so until yet elapsed would The district not court did address alleges Dillon
late December. any whether administrative remedies were and inmate Captain that Allen’s Wheaton Jena, to Dillon instead available at focus him that he counsel Dennis Coleman told analysis on ing its whether remedies were grievance an could not file administrative at Allen. agree available We with the at for abuse suffered at Jena. Nev- Allen court that focus should be district on ertheless, Dillon claims to have submitted availability at Allen—if remedies were Allen, grievances requesting at several Allen, Dillon available to at their unavaila injuries at treatment for sustained medical bility at Jena would not suffice to excuse actual- inquiring Jena and whether he was alleged his failure to exhaust. Dillon was ly filing grievance from at Allen barred September at Jena in ly beaten late griev- at if these abuse Jena. Even early transferred and was October 2005. qualify filed at Allen could as “first ances Allen, at he arrived he could have step” applicable to the claims When grievances suit, timely grievance filed a for mistreatment pursued advanced in this Dillon never anytime ARP them the “second of the before late December step” Jena 325(G)(4)(a). Admin. process under section See La. Code tit. *8 325(G)(1)(a) (establishing 90-day § dead B. incident). filing grievance following line for impediments filing grievances If render argues may pro Dillon this suit facility, unavailable remedies at one reme ceed because there were no administra may again become available once a tive to exhaust at dies remedies “available” transferred, prisoner ad has been unless Jena and Allen. When “the relevant procedure authority problems lacks there are other at the new facili- ministrative course, seeking remedy 1. an does from further administrative relief. Of administrative 83-84, simply Woodford, unavailable because not become 548 126 See U.S. at S.Ct. timely prisoner properly filed a has not 2378. grievance consequently barred and is later 268 Rich,
ty. Bryant v. approach See 530 F.3d circuit’s “strict” to the PLRA’s Cir.2008). (11th requirement. 1379 Days, See 322 (citing F.3d at 866 Spurlock, Richardson v. Consequently, we turn to assess (5th Cir.2001) 260 F.3d availability of at ing the remedies Allen. Wright Hollingsworth, 260 F.3d arguments concerning Dillon raises two (5th Cir.2001)). Under our ap strict First, availability at Allen. he contends proach, we have found that mere “substan that of the closure Jena resulted the tial compliance” with administrative reme unavailability of administrative remedies dy procedures exhaustion; satisfy does not 325(G)(8) provides at Allen. Section that instead, required prisoners we have to ex “if request inmate] files a after trans [an haust properly. available remedies See an by sending fer on action taken Wright, 358; Spurlock, 260 F.3d at institution, the sending institution will our approach strict complete processing through the first absolutely does not possibili foreclose step.” La. Admin. Code tit. ty prison that officials’statements concern 325(G)(8). § Since Jena closed after Dil ing administrative remedies can render transfer, lon’s he asserts Jena could not such remedies unavailable. long We have “complete processing” grievance, of his recognized importance of ensuring that and therefore there was no administrative inmates have avenues for discovering the remedy available to him at Allen for the procedural rules governing griev their abuse he suffered at Jena. ances, see Alexander v. Tippah County, Second, Dillon argues that his Cir.2003) 351 F.3d (per cu failure to exhaust should be excused be riam) (premising ruling that remedies Captain cause Wheaton and inmate coun prisoner’s were available on knowledge of sel Dennis allegedly Coleman him told grievance procedures); Ferrington v. La. he grievance could not file a at Allen for Corr., Dep’t 315 F.3d of abuse suffered at Jena. While Dillon Cir.2002) curiam) (per (premising ruling styles this an estoppel argument, as these that remedies were available on fact that by statements Wheaton and Coleman prisoner “was well general aware of the conceivably could impact any whether rem procedural requirements described in the edies were “available” to Dillon under 42 handbook”), inmate as Eighth has the Cir 1997e(a). § Croak, U.S.C. See Brown v. Weber, cuit. See Gibson v. (3d Cir.2002) (con (8th Cir.2005) (premising ruling that cluding that statements prison officials remedies were available on prisoners’ ad about remedy process administrative mission receipt prisoner of guidebook unavailable). render remedies The district guidebook’s explanation of appli “the rejected court Dillon’s assertion that these grievance procedure cable and its applica exhaustion, statements excuse relying on life”). tion aspects to all of inmate When a Krol, Lyon v. Vande Eighth where the prisoner has no means of verifying prison Circuit prisoner’s held mistaken officials’ claims about the administrative “subjective” understanding grievance of a grievance process, incorrect statements procedure is irrelevant determining *9 officials indeed make un remedies whether actually remedies are available. available. (8th Cir.2002). The district court also found that Dil allowing Unfortunately, we are unable to deter- rely lon to on Wheaton’s and Coleman’s mine whether the district grant court’s of statements would be inconsistent with summary this judgment was appropriate, as no in not clearly has conducted this case Since record does establish discovery been aas result. fragmentary provision the record is whether this was in force while First, in the enough Allen, there is not evidence we find inappropri- Dillon was at it what Dillon knew or concerning record ate at this to rule on its meaning. time Cf. sys- the ARP have discovered about could Carpenters Local Union No. us to determine whether tem for Whea- PratC-Famsworth, Inc., 527- alleged ton’s and Coleman’s statements (5th Cir.1982) (concluding that sum- Since Dillon made remedies unavailable. mary “inappropriate” was be- grievances at Allen and asked the filed complete copy cause record did not contain grievance a lawyer visiting to mail Jena bargaining agreement being of collective DPSC, that directly to the it is clear Dillon interpreted). understanding sys- of the ARP had some problems These notwithstanding, Appel- is what Dillon tem. What less clear lees assert that there is sufficient evidence or could have discovered about the knew in the record to demonstrate that adminis- grievance a proceed manner to with proper trative remedies were at Allen. available at after its closure regarding events Jena they point to Specifically, DPSC records not and his transfer. The record does showing that from date of Dillon’s copy a the Allen inmate hand- contain of early transfer to Allen in October guides the ARP system book or other July until the this suit was in date filed on that Dillon could have relied instead of 2006, 53 at filed evacuee-inmates Allen and Coleman. The record does Wheaton grievances. During the period, same incarceration, upon prison that of- indicate directly DPSC headquarters received five usually system the ARP ficials describe grievances from evacuee-inmates. While at new inmates orientation. be- this evidence demonstrates that Katrina Katrina, Dillon was incarcerated at fore grievances and Rita file evacuees did while Jefferson, parish facility, and the record Allen, they at and that also sent grievances that like suggests DPSC facilities Allen directly headquarters, grievance procedures have to DPSC there is no could different any grievances indication of these parish than facilities do. Without firmer that con- and, have grip place on what Dillon could discovered cerned that took events at Jena truth did, about the of Wheaton’s and Cole- they any remedy even if that was in claims materials like an inmate man’s light facility’s available in of the closure. handbook, we cannot determine if sum- Due to fragmentary nature of the rec- mary judgment warranted. was ord, permit we direct the district court to discovery concerning Dillon to conduct ex-
Second, argument, ques- during oral we availability haustion and the of administra- Appellees’ counsel about the appli- tioned tive remedies. cability this situation section 325(G)(8)’s step” directive that a “first
grievance concerning pro- Jena should be C. response, cessed at Jena. In counsel stat- In arguing addition to that administra- operating ed DPSC was under unavailable, tive were Dillon con- remedies “emergency procedures” while Dillon was should Allen, estopped tends that at incarcerated Jena and raising from the defense of exhaustion. “could consequently suspend the DPSC to his Specifically, points this he treatment any necessary” during period, rules as Jena, Rogers alleg- Brad process Appellee the rule all “first where such as that Jena edly Rogers’ Dillon to step” grievances from transferred inmates. ordered kneel *10 270 “forgot” filing
office until he griev- may estopped, about a may be while others not be” ance, York, and where alleg- (quoting Hemphill corrections officials v. New 380 F.3d (2d edly destroyed all outgoing containing Cir.2004))); mail 689 Sur v. Glidderir- Also, grievances. Durkee, (7th Cir.1982) as another basis for es- 681 F.2d toppel, alleged Dillon relies on the (explaining advice “may each defendant be from indicating Wheaton and Coleman ... estopped only by reason of its own ac- tions”). filing grievance problems at Allen for Consequently, Appellees are not Jena was possible. not estopped from raising exhaustion as an affirmative defense.
“Estoppel
equitable
is an
doc
injustice
trine invoked to avoid
in particu
D.
cases,”
lar
“a
hallmark of the doctrine
Finally, Dillon asserts
that his
application.”
is its flexible
Heckler v.
failure to exhaust should be excused be
Cmty. Health Servs.
County,
of Crawford
cause of
this case’s “special circum
Inc.,
51, 59,
467 U.S.
stances,” namely
Katrina,
Hurricane
his
(1984).
L.Ed.2d 42
In a number of PLRA
Jena,
evacuation to
arrange
the ad-hoc
cases, we have held that estoppel provides
ments surrounding his detention at the
a basis for excusing prisoner’s
failure to
temporary facility, and
alleged
abuse
See,
exhaust administrative
remedies.
prisoners
of
there. While
allega
Dillon’s
e.g., Days,
866;
322 F.3d at
Wendell v.
tions,
true,
if
indicate that conditions at
Asher,
(5th
Cir.1998),
162 F.3d
Jena
reprehensible,
were
we do not be
by implication
overruled
grounds
on other
lieve
grants
this
us license to carve out
Jones,
not excluded
the
A.
summary judgment
be treated as one for
above, on sum-
under Rule 56.” As noted
right
jury
There is a
to a
trial
judgment, all facts and inferences
mary
under the Seventh Amendment for actions
light
must be construed in the
most favor- brought
seeking
under section 1983
legal
Murray,
nonmoving party.
able to the
City Monterey
relief. See
v. Del Monte
of
at 284.
405 F.3d
Ltd.,
687,
Monterey,
Dunes at
526 U.S.
709,
1624,
119 S.Ct.
however,
L.Ed.2d 882
argue,
that the dis
Appellees
(1999).
however,
right,
This
does not
trict court should not have converted their
Instead,
guarantee jury resolution of all
they
that
factual dis
motion.
assert
that
putes
litigation.
have
on their motion to
arise
the course of
court should
ruled
and, necessary,
any
Judges
if
resolved
fac
power
dismiss
have the
to resolve certain
concerning
tual
exhaustion on the
disputes
threshold issues without the participation
In support
the evidence before it.
basis of
jury
adjudication
of a
before the
of a case
position,
point
of
to the
this
example,
subject
on its merits. For
when
decisions of three of our sister circuits
jurisdiction
matter
over a case turns on
Pavey Conley,
v.
544 F.3d
741-12
facts,
disputed
judges
power
have the
Rich,
Cir.2008), Bryant v.
530 F.3d at
disputes
resolve
in assuring
these
them
Terhune,
1373-77, Wyatt
v.
315 F.3d
See,
jurisdiction.
selves of their courts’
(9th Cir.2003).
1108, 1119-20
In these
e.g.,
Rymer,
v.
Wetmore
169 U.S.
120-
cases,
Seventh, Ninth,
and Eleventh
(1898);
18 S.Ct.
L.Ed. 682
agreed
judges may
all
that
resolve
Circuits
Vill.,
Century
Chatham Condo. Ass’ns v.
concerning
of
disputes
factual
(5th Cir.1979).
Inc.,
participation of a
remedies without
said,
prisoner’s
That
failure to exhaust
jury.
they diverged as to the
deprive
administrative remedies does not
proper procedure
deciding
ques
these
subject
jurisdiction in
courts of
matter
Wyatt
Bryant,
In both
tions.
suits covered
the PLRA. See Wood
Eleventh
Ninth and
Circuits held
ex
ford, 548 U.S. at
But
haustion should be resolved via an “unenu
factfinding power
judges
is not lim
12(b)
merated” Rule
motion rather than on
addressing subject
jurisdic
ited to
matter
summary judgment.
a motion for
deciding
tion.
It
extends to
factual
also
F.3d at
We
with our sister circuits that
Nat'l, Inc.,
phy
v. Schneider
disputes concerning
factual
exhaustion Mur
*12
Cir.2004) (ven
circuit, however,
frequently
we have
1133,
this
1139-40
362 F.3d
summary
to
ue).
approved
using
judgment
of
and other affirmative
address exhaustion
personal
Exhaustion resembles
12(b).
enumerated in Rule
defenses not
it is an affir
and venue
that
jurisdiction
See,
Corp. Long
v. Hearst
e.g., Swanson
to
that allows defendants
mative defense
Plan,
1016, 1019
Disability
Term
586 F.3d
have not invoked the
plaintiffs
that
assert
curiam)
(5th Cir.2009)
(affirming sum
(per
dispute.
a
Pa
resolving
forum for
proper
to ex
mary judgment dismissal
failure
vey,
Supreme
F.3d at 741. The
Court
544
remedies); Mitchell
haust administrative
terms,
in similar
has described exhaustion
Airlines, Inc.,
225, 227,
v.
481 F.3d
Cont’l
judicial administration” control
as “rule of
(5th Cir.2007) (approving dismissal of
232
courts, Myers v. Bethle
ling access to the
summary judg
prejudice on
suit without
Shipbuilding Corp., 303 U.S.
50-
hem
exhaust); Hager v.
ment for failure to
459,
499-500,
(genuine issue of material
B.
summary judg
fact prevents dismissal on
exhaust); Ecology
ment for failure to
Ctr.
Having
disputed
that
determined
La.,
Coleman,
Inc. v.
515 F.2d
865-
by
facts
decided
about exhaustion
of
(5th Cir.1975) (same).
see no need
We
judges, we now address whether the dis
practice,
to
from our
diverge
common
Appellees’
trict court’s conversion of
mo
that
consequently conclude
the district
summary
tion to dismiss into a motion for
court
in addressing Appellees’
did not err
appropriate.
was
The Ninth
exhaustion affirmative defense on sum
and Eleventh Circuits have both concluded
mary judgment.3
questions
concerning
exhaustion
should be resolved on an unenumerated
C.
12(b)
dismiss,
via sum
motion
and not
matter,
pro
As
final
we now
mary judgment. Bryant,
evidentiary hearing necessary. if if judge plaintiff determines that the
the has
exhausted administrative remedies or that
his or her failure to exhaust should be
excused, may proceed the case to the mer- appeal, judge
its. On when the below has factfinder, will rulings
served as we review novo, Ennis, v.
on exhaustion de Powe Cir.1999), F.3d but will ac- America, UNITED STATES of cept judge’s factual conclusions unless Plaintiff-Appellee, they clearly Carty, are erroneous. 252-53. Stacey JONES, Pokey, also known as
V. Defendant-Appellant. reasons, foregoing For the we VACATE No. 08-30725. grant summary judg- the district court’s ment for and REMAND this Appeals, United States Court of discovery develop- case for and further Fifth Circuit.
ment of the record.
Feb. 2010.
DENNIS, Judge, concurring Circuit
part concurring judgment: and in the
I CONCUR in the in this case opinion in the except CONCUR for 910; exhaust, Days, sponte 127 S.Ct. see also 322 F.3d at prac- case sua for failure to sug- 866. These cases should not be read to longer appropriate tice that is no unless fail- gest may beyond that courts never look apparent ure to exhaust on the face of a pleadings resolving questions, plaintiff’s complaint. Lappin, See Carbe v. as the district court did in this case when it (5th Cir.2007). Appellees’ converted motion to dismiss into a summary judgment. motion Underwood cases, many judge In will be able to rule Days were decided before it became clear allowing any on exhaustion without discov- that exhaustion under the PLRA is not a cases, ery. unique in some circum- pleading requirement plaintiffs must sat- allowing stances arise that necessitate Jones, isfy litigation. at the outset of See discovery prior ruling, some such as where 211-12, 910; U.S. at Johnson v. availability of administrative remedies is Johnson, 516 n. 7 Cir. contested. 2004). Consequently, they addressed proper dismissing prisoner’s standards for