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[DO NOT PUBLISH]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).
2
USCA11 Case: 20-11177 Date Filed: 03/25/2021 Page: 3 of 9
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
3
USCA11 Case: 20-11177 Date Filed: 03/25/2021 Page: 4 of 9
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
4
USCA11 Case: 20-11177 Date Filed: 03/25/2021 Page: 5 of 9
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
5
USCA11 Case: 20-11177 Date Filed: 03/25/2021 Page: 6 of 9
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
6
USCA11 Case: 20-11177 Date Filed: 03/25/2021 Page: 7 of 9
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
7
USCA11 Case: 20-11177 Date Filed: 03/25/2021 Page: 8 of 9
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,
8
USCA11 Case: 20-11177 Date Filed: 03/25/2021 Page: 9 of 9
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.
9
