Jeffrey A. Cole v. Secretary Department of Corrections ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10691 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 14, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:10-cv-00316-RS-GRJ
JEFFREY A. COLE,
lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellant,
versus
SECRETARY DEPARTMENT OF CORRECTIONS,
GULF CI ANNEX WARDEN,
lllllllllllllllllllllllllllllllllllllll lRespondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(December 14, 2011)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Jeffrey A. Cole, incarcerated and proceeding pro se, appeals the district
court’s dismissal of his amended complaint for failure to exhaust administrative
remedies under 42 U.S.C. § 1997e(a). Specifically, Cole argues that fear of
retaliation from the prison staff rendered any administrative remedies unavailable.
Section § 1997e, as amended by the Prison Litigation Reform Act
(“PLRA”), provides that the court shall not address a prisoner’s complaint
regarding prison conditions unless “such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). Such exhaustion is mandatory and
“unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199,
211, 127 S.Ct. 910, 918-19, 166 L.Ed.2d 798 (2007). An administrative remedy is
not available for purposes of the PLRA, though, if prison officials render pursuit
of the remedy irrational through serious threats of substantial retaliation. Turner
v. Burnside, 541 F.3d 1077, 1084-85 (11th Cir. 2008). To demonstrate such
unavailability under Turner, a prisoner must establish that: (1) the threat actually
deterred him from lodging a grievance or pursuing a particular part of the
administrative process; and (2) the threat is one that would so deter a reasonable
inmate of ordinary firmness and fortitude. Id. at 1085.
The exhaustion requirement is an affirmative defense, and a prisoner is not
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required to plead or demonstrate exhaustion in his complaint. Jones, 549 U.S. at
216. However, a complaint may be dismissed under § 1915A(b) if lack of
exhaustion appears on the face of the complaint. Id. at 214-15 (noting that the
Federal Rules of Civil Procedure generally apply to section 1997(e) and Rule
12(b)(6) allows for dismissal when an affirmative defense appears on the face of
the complaint).
The district court did not err in dismissing Cole’s complaint for failure to
exhaust administrative remedies as required by § 1997e(a). Cole conceded in his
amended complaint that he had not pursued any administrative remedies. He did
not allege that a serious threat of substantial retaliation was made or, moreover,
that any threat was made in the present context. Rather, he simply stated that a
prison officer had filed an allegedly false disciplinary report against him the
previous year in retaliation for his lodging a grievance regarding exposure to cold.
Even if this is somehow taken as a continuing threat, such a threat would not deter
a reasonable inmate from pursuing his grievance.
AFFIRMED.
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