[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT OCTOBER 4, 2007 No. 06-15941 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________
D. C. Docket No. 05-00023-CV-4-MMP-AK
RICHARD ADAMSON,
Plaintiff-Appellant,
versus
DE POORTER, Lieutenant, JOHN DOES, Six Unknown Officers,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Northern District of Florida _________________________
(October 4, 2007)
Before TJOFLAT, BARKETT and HULL , Circuit Judges.
PER CURIAM:
Richard Adamson, a prisoner proceeding pro se, appeals the district court’s dismissal of his Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) action for failure to
exhaust administrative remedies as required by 42 U.S.C. § 1997e(a).
In Adamson’s third amended complaint, he alleged that Lieutenant De
Poorter and six unknown individuals (collectively, “the defendants”), all federal
prison officials, had violated his Fourth and Eighth Amendment rights in the
course of transferring him from federal to state custody. Adamson acknowledged
in this third amended complaint that the federal Bureau of Prisons (“BOP”) had a
grievance procedure and that he had not complied with that procedure. However,
he also alleged that, while in state custody, he attempted to contact by mail the
successive levels of the BOP hierarchy in order to obtain the required forms to file
a grievance regarding these violations of his rights, but was never supplied with the
grievance forms. Therefore, Adamson argued, the grievance procedure was not
‘available’ to him.
The defendants moved to dismiss Adamson’s complaint for failure to
exhaust, attaching three affidavits from BOP and prison officials, all to the effect
that Adamson had not attempted to contact the prison or BOP in order to obtain the
grievance forms. The district court considered these affidavits, determined that
Adamson had not made any effort to obtain the forms, and granted the defendants’
2 motion to dismiss.
Adamson argues that the district court erred by converting the defendants’
motion to dismiss into a motion for summary judgment without providing him with
notice. Adamson contends that the district court was required to disregard the
affidavits or convert the motion to dismiss into a motion for summary judgment,
and erred by doing neither. He argues that the district court’s conversion was not
harmless error because he would have taken further action had the district court
provided him with notice. In particular, Adamson asserts that, if given notice of
the conversion, he would have moved the district court to compel the Florida state
prison to produce its logs of his incoming and outgoing mail, which would have
demonstrated that he had repeatedly contacted federal officials.
We review de novo a district court’s dismissal of a prisoner’s action for
failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a).
Higginbottom v. Carter, 223 F.3d 1259, 1260 (11th Cir. 2000).
On review of a motion to dismiss, we accept all allegations in the complaint
as true and construe facts in a light most favorable to the plaintiff. Harper v.
Thomas, 988 F.2d 101, 103 (11th Cir. 1993).
The Prison Litigation Reform Act (“PLRA”) provides that “a prisoner
confined in any jail, prison, or other correctional facility” may not bring suit under
3 federal law to challenge prison conditions “until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion
requirement applies to Bivens actions. Porter v. Nussle, 534 U.S. 516, 524, 122
S.Ct. 983, 988, 152 L.Ed.2d 12 (11th Cir. 2002). However, a prisoner need not
plead exhaustion; rather, exhaustion is an affirmative defense that must usually be
pled and proved by the defendant. Jones v. Bock, ___ U.S. ___, 127 S.Ct. 910,
919-22, 166 L.Ed.2d 798 (2007).
Rule 12(b) provides that
If on a motion . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed.R.Civ.P. 12(b). “It is within the judge's discretion to decide whether to
consider matters outside of the pleadings that are presented to the court. However,
if the judge does consider these outside matters, i.e., if the judge does not exclude
them, Rule 12(b) requires the judge to comply with the requirements of
[Fed.R.Civ.P.] 56. Rule 56 states, in relevant part, that a ‘motion [for summary
judgment] shall be served at least 10 days before the time fixed for the hearing.’
Thus, the court must give the parties ten days notice that it is converting the
moving party's motion to dismiss into a motion for summary judgment.” Jones v.
4 Automobile Ins. Co., 917 F.2d 1528, 1531-32 (11th Cir. 1990).
“We have held repeatedly that this requirement of notice will be deemed
strictissimi juris and applies to all parties litigant.” Griffith v. Wainwright, 772
F.2d 822, 825 (11th Cir. 1985). Where a pro se litigant is involved, the non-
moving party “must be given express, ten-day notice of the summary judgment
rules, of his right to file affidavits or other material in opposition to the motion, and
of the consequences of default.” Id. “This circuit has consistently enforced the
strict notice requirements of Rules 12(b) and 56, creating a bright-line rule: If a
district court fails to comply with the ten-day notice requirement, the case will be
reversed and remanded so that the district court may provide the non-moving party
with adequate notice.” Jones, 917 F.2d at 1532.
There are three exceptions to the rule that considering material outside of the
pleadings converts a motion to dismiss into a motion for summary judgment,
thereby requiring compliance with the notice rules. First, conversion will not
occur if the court properly takes judicial notice of attached exhibits. Bryant v.
Avado Brands, Inc., 187 F.3d 1271, 1276-79 (11th Cir. 1999). Second, a
document attached to the pleadings as an exhibit may be considered if it is central
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IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT OCTOBER 4, 2007 No. 06-15941 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________
D. C. Docket No. 05-00023-CV-4-MMP-AK
RICHARD ADAMSON,
Plaintiff-Appellant,
versus
DE POORTER, Lieutenant, JOHN DOES, Six Unknown Officers,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Northern District of Florida _________________________
(October 4, 2007)
Before TJOFLAT, BARKETT and HULL , Circuit Judges.
PER CURIAM:
Richard Adamson, a prisoner proceeding pro se, appeals the district court’s dismissal of his Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) action for failure to
exhaust administrative remedies as required by 42 U.S.C. § 1997e(a).
In Adamson’s third amended complaint, he alleged that Lieutenant De
Poorter and six unknown individuals (collectively, “the defendants”), all federal
prison officials, had violated his Fourth and Eighth Amendment rights in the
course of transferring him from federal to state custody. Adamson acknowledged
in this third amended complaint that the federal Bureau of Prisons (“BOP”) had a
grievance procedure and that he had not complied with that procedure. However,
he also alleged that, while in state custody, he attempted to contact by mail the
successive levels of the BOP hierarchy in order to obtain the required forms to file
a grievance regarding these violations of his rights, but was never supplied with the
grievance forms. Therefore, Adamson argued, the grievance procedure was not
‘available’ to him.
The defendants moved to dismiss Adamson’s complaint for failure to
exhaust, attaching three affidavits from BOP and prison officials, all to the effect
that Adamson had not attempted to contact the prison or BOP in order to obtain the
grievance forms. The district court considered these affidavits, determined that
Adamson had not made any effort to obtain the forms, and granted the defendants’
2 motion to dismiss.
Adamson argues that the district court erred by converting the defendants’
motion to dismiss into a motion for summary judgment without providing him with
notice. Adamson contends that the district court was required to disregard the
affidavits or convert the motion to dismiss into a motion for summary judgment,
and erred by doing neither. He argues that the district court’s conversion was not
harmless error because he would have taken further action had the district court
provided him with notice. In particular, Adamson asserts that, if given notice of
the conversion, he would have moved the district court to compel the Florida state
prison to produce its logs of his incoming and outgoing mail, which would have
demonstrated that he had repeatedly contacted federal officials.
We review de novo a district court’s dismissal of a prisoner’s action for
failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a).
Higginbottom v. Carter, 223 F.3d 1259, 1260 (11th Cir. 2000).
On review of a motion to dismiss, we accept all allegations in the complaint
as true and construe facts in a light most favorable to the plaintiff. Harper v.
Thomas, 988 F.2d 101, 103 (11th Cir. 1993).
The Prison Litigation Reform Act (“PLRA”) provides that “a prisoner
confined in any jail, prison, or other correctional facility” may not bring suit under
3 federal law to challenge prison conditions “until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion
requirement applies to Bivens actions. Porter v. Nussle, 534 U.S. 516, 524, 122
S.Ct. 983, 988, 152 L.Ed.2d 12 (11th Cir. 2002). However, a prisoner need not
plead exhaustion; rather, exhaustion is an affirmative defense that must usually be
pled and proved by the defendant. Jones v. Bock, ___ U.S. ___, 127 S.Ct. 910,
919-22, 166 L.Ed.2d 798 (2007).
Rule 12(b) provides that
If on a motion . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed.R.Civ.P. 12(b). “It is within the judge's discretion to decide whether to
consider matters outside of the pleadings that are presented to the court. However,
if the judge does consider these outside matters, i.e., if the judge does not exclude
them, Rule 12(b) requires the judge to comply with the requirements of
[Fed.R.Civ.P.] 56. Rule 56 states, in relevant part, that a ‘motion [for summary
judgment] shall be served at least 10 days before the time fixed for the hearing.’
Thus, the court must give the parties ten days notice that it is converting the
moving party's motion to dismiss into a motion for summary judgment.” Jones v.
4 Automobile Ins. Co., 917 F.2d 1528, 1531-32 (11th Cir. 1990).
“We have held repeatedly that this requirement of notice will be deemed
strictissimi juris and applies to all parties litigant.” Griffith v. Wainwright, 772
F.2d 822, 825 (11th Cir. 1985). Where a pro se litigant is involved, the non-
moving party “must be given express, ten-day notice of the summary judgment
rules, of his right to file affidavits or other material in opposition to the motion, and
of the consequences of default.” Id. “This circuit has consistently enforced the
strict notice requirements of Rules 12(b) and 56, creating a bright-line rule: If a
district court fails to comply with the ten-day notice requirement, the case will be
reversed and remanded so that the district court may provide the non-moving party
with adequate notice.” Jones, 917 F.2d at 1532.
There are three exceptions to the rule that considering material outside of the
pleadings converts a motion to dismiss into a motion for summary judgment,
thereby requiring compliance with the notice rules. First, conversion will not
occur if the court properly takes judicial notice of attached exhibits. Bryant v.
Avado Brands, Inc., 187 F.3d 1271, 1276-79 (11th Cir. 1999). Second, a
document attached to the pleadings as an exhibit may be considered if it is central
to the plaintiff's claim and the authenticity of the document is not challenged. See
Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002); Brooks v. Blue Cross &
5 Blue Shield, 116 F.3d 1364, 1369 (11th Cir. 1997) (“where the plaintiff refers to
certain documents in the complaint and those documents are central to the
plaintiff’s claim, then the Court may consider the documents part of the pleadings
for purposes of Rule 12(b)(6) dismissal”). Third, the conversion is harmless and
does not require notice if the parties, inter alia, made all arguments and submitted
all the documents they would have even with sufficient notice. Property
Management & Investments, Inc. v. Lewis, 752 F.2d 599, 605 (11th Cir. 1985).
After careful consideration of the briefs of the parties, and thorough review
of the record, we find reversible error.
Here, the defendants argue that the district court did not consider documents
outside the record or, alternatively, that the latter two exceptions apply. The first
argument is misplaced. The district court did not exclude the evidence submitted
with the defendants’ motion to dismiss. Therefore, the motion was treated as one
for summary judgment and the district court was required to comply with Rule 56.
See Jones, 917 F.2d at 1532 (“if the judge does consider these outside matters, i.e.,
if the judge does not exclude them, Rule 12(b) requires the judge to comply with
the requirements of Rule 56”). Further, the district court, in rejecting Adamson’s
contention that he repeatedly contacted the BOP for grievance forms, explicitly
relied on the declarations to the contrary attached by the defendants. Therefore,
6 reversal and remand is appropriate unless one of the exceptions applies.
The declarations submitted by the defendants did not fall within the
exception for documents central to the plaintiffs’ claim because the documents
were not ‘central’ to Adamson’s complaint. A document is not ‘central’ merely
because it is directly responsive to a factual allegation. We explained in Bryant v.
Avado Brands, Inc., 187 F.3d 1271 (11th Cir. 1999) that the foundation for a
defendant’s ability to introduce ‘central’ documents at the motion to dismiss stage
“is that when a plaintiff files a complaint based on a document but fails to attach
that document to the complaint, the defendant may so attach the document, and
therefore, the document, as one that could have or rather in fairness should have
been attached to the complaint, is considered part of the pleadings and thus may be
reviewed at the pleading stage without converting the motion into one for summary
judgment.” Bryant, 187 F.3d at 1280 n.16. They underlying premise is that “if the
document was indeed so central to the claim that it served as a basis for the
complaint, then plaintiffs must have already been aware of it, and thus do not need
the protection of the 10-day notice period.” Id. The ‘centrality’ exception does not
apply here.
The harmlessness exception applies where “all of the parties were well
aware that the judge was converting the [motion to dismiss] and [] the parties made
7 all the arguments and submitted all the document that they would have presented
had they received the notice to which they were entitled.” Property Management,
752 F.2d at 605. “The harmless error exception detailed in Property Management
is a limited exception which we will not often recognize.” Trustmark v. ESLU,
Inc., 299 F.3d 1265, 1268 (11th Cir. 2002). However, “[w]hen a party proves
through its actions that it has notice of the conversion, any failure to notify the
party is rightly deemed harmless.” Id. at 1268.
The district court’s conversion error was not harmless. Especially in light of
Adamson’s pro se status, his conduct does not demonstrate that he was “well aware
that the judge was converting the [motion to dismiss] and . . . made all the
arguments and submitted all the document that [he] would have presented had [he]
received the notice to which [he] w[as] entitled.” Property Management, 752 F.2d
at 605.
In sum, the district court erred by converting the defendants’ motion to
dismiss into a motion for summary judgment without giving Adamson the required
notice, and that error was not harmless. Accordingly, we vacate the district court’s
judgment against Adamson and remand for further proceedings.
VACATED AND REMANDED.