Samuel Roy Abram v. David Leu

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 25, 2021
• Docket: 20-11177
• Status: Unpublished

Opinion

USCA11 Case: 20-11177 Date Filed: 03/25/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11177 Non-Argument Calendar ________________________

D.C. Docket No. 5:15-cv-00375-TJC-PRL

SAMUEL ROY ABRAM,

Plaintiff-Appellant,

versus

DAVID LEU, Captain of Security, A. CLUNTZ, SIS Agent, K. BARKER, SIS Lieutenant,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(March 25, 2021)

Before ROSENBAUM, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 20-11177 Date Filed: 03/25/2021 Page: 2 of 9

Samuel Abram, proceeding pro se, appeals the dismissal without prejudice of

his action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), relating to the alleged confiscation of certified mail

and other materials from him in October 2013 and his subsequent transfer, for failure

to exhaust available administrative remedies. He argues that he was not required to

exhaust the Federal Bureau of Prisons’ (“BOP”) administrative remedies because

they were unavailable since prison officials refused to provide him with the forms

necessary to initiate the grievance process.

I.

We review a district court’s interpretation and application of the Prison

Litigation Reform Act’s (“PLRA”) exhaustion requirement de novo. Johnson v.

Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005). Additionally, we review a district

court’s factual findings for clear error. Whatley v. Smith, 802 F.3d 1205, 1209 (11th

Cir. 2015). We may affirm on any ground supported by the record. Big Top

Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).

The PLRA requires prisoners who wish to challenge some aspect of prison

life to exhaust all available administrative remedies before resorting to the courts.

Porter v. Nussle, 534 U.S. 516, 532 (2002); see 42 U.S.C. § 1997e(a); Alexander v.

Hawk, 159 F.3d 1321, 1324–25 (11th Cir. 1998) (holding that the PLRA’s

exhaustion requirement applies to federal prisoners bringing Bivens actions).

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Exhaustion is mandatory under the PLRA, and unexhausted claims cannot be

brought in court. Jones v. Bock, 549 U.S. 199, 211 (2007). The failure to exhaust

administrative remedies requires that the action be dismissed. Chandler v. Crosby,

379 F.3d 1278, 1286 (11th Cir. 2005).

To satisfy the exhaustion requirement, a prisoner must complete the

administrative process in accordance with the applicable grievance procedures set

by the prison. Jones, 549 U.S. at 218; Johnson, 418 F.3d at 1156. In other words,

“[t]he PLRA requires ‘proper exhaustion’ that complies with the ‘critical procedural

rules’ governing the grievance process.” Dimanche v. Brown, 783 F.3d 1204, 1210

(11th Cir. 2015). Procedurally defective grievances or appeals are not adequate to

exhaust. Woodford v. Ngo, 548 U.S. 81, 93-95 (2006). As a result, an untimely

grievance that is rejected as such by prison officials does not satisfy the PLRA’s

exhaustion requirement. Johnson, 418 F.3d at 1156–59.

Although proper exhaustion is generally required, a remedy must be

“available” before a prisoner is required to exhaust it. Turner v. Burnside, 541 F.3d

1077, 1082, 1084 (11th Cir. 2008). An administrative remedy may be unavailable

when prison officials interfere with a prisoner’s pursuit of relief. Ross v. Blake, 136

S. Ct. 1850, 1860 (2016).

Defendants in this Circuit may raise lack of exhaustion in a motion to dismiss.

Whatley, 802 F.3d at 1209. Deciding a motion to dismiss for failure to exhaust

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administrative remedies is a two-step inquiry. Id. (citing Turner, 541 F.3d at 1081–

82). District courts first should compare the factual allegations in the motion to

dismiss and those in the prisoner’s response and, where there is a conflict, accept the

prisoner’s view of the facts as true. Id. “The court should dismiss if the facts as

stated by the prisoner show a failure to exhaust.” Id. Second, if dismissal is not

warranted at the first stage, the court should make specific findings to resolve

disputes of fact, “and should dismiss if, based on those findings, defendants have

shown a failure to exhaust.” Id.

II.

In this case, the defendants filed a motion to dismiss the complaint for lack of

exhaustion. They asserted that, as a federal prisoner, Abram was subject to the

BOP’s administrative-remedy program, codified at 28 C.F.R. §§ 542.10, et seq.,

under which a prisoner is required to (1) submit an institutional-level request, usually

through both an “informal resolution” request (typically using form BP-8) and a

formal request (form BP-9), within 20 days following the incident ; (2) appeal to the

Regional Director (form BP-10); and (3) appeal to the General Counsel (form BP-

11). See 28 C.F.R. §§ 542.13–542.15.

The defendants submitted evidence showing that on February 10, 2014,

Abram first filed a grievance (number 767898-F1) relating to the basis for his Bivens

claim, that this grievance was denied for being untimely and for improperly raising

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more than one issue, and that Abram failed to appeal the denial of this request to the

regional or central-office level. Further, according to the defendants, Abram filed

another grievance (number 771756-R1) on March 17, 2014, but it was rejected as

improperly filed at the regional level rather than the institutional level, and Abram

failed to reinitiate the grievance at the institutional level.

Abram responded that the administrative-grievance procedure was not

available to him because prison officials refused to provide him with the forms (BP-

8 and BP-9) necessary to initiate the grievance process. He claimed that, after he

was transferred to the Special Housing Unit (“SHU”) following the confiscation of

his materials on October 28, 2013, the unit or case manager never visited him, so he

could not request the forms required to timely initiate the grievance process. In

addition, he submitted an affidavit from another prisoner who stated that, while

housed in the SHU, he witnessed Abram requesting BP-8 and BP-9 forms “to no

avail.” It appears that Abram obtained the required form by February 10, 2014,

when he initiated the grievance process.

Applying the two-step process for resolving exhaustion issues, see Whatley,

802 F.3d at 1209, the district court first found that dismissal of Abram’s claims for

lack of exhaustion was not warranted, accepting his view of the facts as true.

Turning to the second step of the analysis, the court concluded that, even assuming

prison officials refused to timely provide Abram with the required forms, Abram

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was still required to comply with the grievance procedure by either resubmitting the

grievance or appealing its denial. The court reasoned that to “properly exhaust his

administrative remedies,” Abram had “to appeal the Warden’s unsatisfactory

response that his institutional-level grievance was untimely.” Finally, the court

found that the evidence refuted any claim that Abram did not have access to the

forms for appealing the denial of his February 10, 2014, grievance. The court then

denied Abram’s motion for reconsideration.

III.

BOP regulations require prisoners to initiate the administrative-grievance

procedure using the “appropriate form,” which must be obtained from prison staff.

28 C.F.R. § 542.14(a). So if prison staff refuses to provide the form necessary to

initiate the grievance procedure, as Abram alleges occurred here, it is difficult to say

that the procedure is “available” to the prisoner. Other circuits agree. See Hill v.

Snyder, 817 F.3d 1037, 1041 (7th Cir. 2016) (“[E]xhaustion is not required when the

prison officials responsible for providing grievance forms refuse to give a prisoner

the forms necessary to file an administrative grievance.”); Dale v. Lappin, 376 F.3d

652, 656 (7th Cir. 2004) (“If prison employees refuse to provide inmates with those

forms when requested, it is difficult to understand how the inmate has any available

remedies.”); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (suggesting that

remedies were not available where “prison officials denied [the prisoner] the

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necessary grievance forms”); Miller v. Norris, 247 F.3d 736, 738–40 (8th Cir. 2001)

(holding that allegations of prison officials’ failure “to respond to the requests for

grievance forms” were sufficient to raise a genuine issue of fact as to the availability

of administrative remedies).

In Bryant v. Rich, however, we indicated that temporary obstacles that prevent

the submission of a timely grievance—such as a lockdown, a transfer, or a refusal

by prison officials to provide the necessary forms—do not make administrative

remedies unavailable where prisoners may “request consideration of untimely

grievances for good cause.” 530 F.3d 1368, 1373 (11th Cir. 2008). One of the

plaintiffs in Bryant, a Georgia state prisoner, alleged that the prison’s grievance

procedure was unavailable to him because prison officials denied him the necessary

forms and then transferred him to another institution. Id. Although we recognized

that a grievance filed after the prisoner’s transfer “would have been untimely,” we

noted that “the relevant grievance procedures provide inmates with the opportunity

to request consideration of untimely grievances for good cause.” Id.

Given that opportunity, we concluded that the prisoner “could have exhausted

his administrative remedies by filing a grievance at [the new institution] and then by

showing good cause for its tardiness.” Id. And while there was some evidence that

the prisoner had been denied the required forms at the new institution, which

presented a genuine issue of fact as to the availability of the remedies, we found that

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the district court’s contrary finding was adequately supported by the record. Id. at

1373, 1377–78. We therefore affirmed the dismissal of the prisoner’s complaint for

lack of exhaustion. Id. at 1378.

Bryant controls our resolution of this case. While Abram’s case concerns the

BOP’s administrative remedies, not the Georgia administrative remedies at issue in

Bryant, the BOP regulations similarly give prisoners the opportunity to request

consideration of an untimely grievance for a “valid reason” (instead of “good

cause”). See id. at 1373. Specifically, 28 C.F.R. § 542.14(b), titled “Extension,”

states that “[w]here the inmate demonstrates a valid reason for delay, an extension

in filing time may be allowed. In general, valid reason for delay means a situation

which prevented the inmate from submitting the request within the established time

frame.” A refusal to provide the forms necessary to initiate the grievance process

appears to qualify as such “a situation which prevented the inmate from submitting

the request within the established time frame.”

So, although Abram, like the prisoner in Bryant, may have been prevented

from filing a timely grievance due to prison officials’ refusal to provide him the

necessary forms, the record reflects that he “could have exhausted his administrative

remedies by filing a grievance . . . and then by showing good cause for its tardiness.”

Bryant, 530 F.3d at 1373. We know this because Abram filed an untimely grievance

related to the grounds for his Bivens claim, stemming from events in October 2013,

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on February 10, 2014. But there is no indication that he presented a “valid reason”

for its tardiness or otherwise sought an extension of time as permitted under the

grievance procedure. 1 See id. Thus, Abram failed to exhaust his available

administrative remedies and dismissal was proper.2

IV.

For these reasons, we affirm the dismissal of Abram’s complaint for failure

to exhaust administrative remedies as required by the PLRA.

AFFIRMED.

1 In addition, throughout the proceedings in this case, Abram has given no indication that he was unaware of or misinformed about the BOP’s prison-grievance procedure. 2 The record reflects that in 2015 Abram filed other grievances related to the ground for his current Bivens claim, but the district court correctly concluded that these grievances were not timely or otherwise adequate to exhaust his administrative remedies. See Dimanche, 783 F.3d at 1210; Johnson, 418 F.3d at 1156–59.