John Robert McDowell v. FNU Bowman, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10840
Non-Argument Calendar
____________________
JOHN ROBERT MCDOWELL,
Plaintiff-Appellant,
versus
FNU BOWMAN,
in their individual as well as official capacities,
C. BERENTINE,
Corporal, in their individual as well as official capacities,
C. BOWENS, Major,
in their individual as well as official capacities,
BILLY WOODS,
Marion County Sheriff,
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2 Opinion of the Court 21-10840
Defendants-Appellees,
MARION COUNTY JAIL,
in their official capacity,
MARION COUNTY, FLORIDA,
in their official capacity,
DEPARTMENT OF LAW ENFORCEMENT,
State of Florida, in their official capacity,
STATE OF FLORIDA,
in their official capacity,
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:18-cv-00337-RBD-PRL
____________________
Before L UCK , LAGOA , and MARCUS, Circuit Judges.
PER CURIAM:
John McDowell, a Florida state prisoner proceeding
pro se,
appeals following the dismissal of his
pro se civil rights suit for fail-
ure to exhaust his administrative institutional remedies. On ap-
peal, McDowell argues that he is not subject to the Prison
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21-10840 Opinion of the Court 3
Litigation Reform Act (“PLRA”) or its exhaustion requirement, but
even if he was, he properly exhausted his administrative remedies
before filing suit. After thorough review, we affirm.
The relevant background is this. In July 2018, McDowell, a
state pretrial detainee at the time, filed the present
pro se suit
against several defendants, including three officials in Marion
County, Florida -- Officer Bowman, Corporal C. Berentine, Major
C. Bowens -- in their individual capacities. In an amended com-
plaint, he added, as a defendant, Marion County Sheriff Billy
Woods in his individual and official capacities.1
Three of those defendants -- Berentine, Bowens, and Woods
-- responded by moving to dismiss McDowell’s amended com-
plaint under Fed. R. Civ. P 12(b)(1) and 12(b)(6) for failure to ex-
haust his remedies under the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e.2 McDowell opposed the motion to
1 McDowell also named, in his initial complaint, the Marion County Jail, the
State of Florida Department of Law Enforcement (“FDLE”), and the State of
Florida as defendants, and he also raised claims against individual defendants
in their official capacities. The district court later dismissed those claims on
various grounds. In his amended complaint, he omitted another defendant,
Marion County, he originally sued. Because he does not raise these issues on
appeal, he has abandoned them.
See United States v. Cannon, 987 F.3d 924,
939 (11th Cir. 2021) (explaining that an appellant abandons a claim when he
fails to plainly and prominently raise it on appeal).
2 Berentine, Bowens, and Woods, and later Bowman, styled their motions as
ones to dismiss a “second amended complaint,” but according to the district
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4 Opinion of the Court 21-10840
dismiss, arguing that he had substantially exhausted available ad-
ministrative remedies because the grievance procedure “was effec-
tively thwarted by uncooperative jail personnel.” He added that
he was not in jail at the time he filed the motion, so he was not
subject to the PLRA, even though he was in jail when he filed the
initial suit. The fourth defendant, Bowman, then moved to dismiss
McDowell’s amended complaint, adopting the motion to dismiss
by Berentine, Bowens, and Woods and making the same exhaus-
tion arguments. The district court granted the motions to dismiss,
finding that McDowell was confined at the Marion County Jail
when he filed the suit, so he was subject to the PLRA, and he had
not exhausted his administrative remedies.
We review the grant of a motion to dismiss
de novo.
Boyd
v. Warden, 856 F.3d 853, 863–64 (11th Cir. 2017). We also review
the district court’s interpretation and application of the PLRA’s ex-
haustion requirements
de novo.
Higginbottom v. Carter, 223 F.3d
1259, 1260 (11th Cir. 2000). However, we review any findings of
fact the district court makes concerning PLRA exhaustion for clear
error.
Bryant v. Rich, 530 F.3d 1368, 1377 (11th Cir. 2008). Under
our prior panel precedent rule, a prior panel’s holding is binding
unless it has been overruled or abrogated by the Supreme Court or
us sitting
en banc.
See United States v. Steele, 147 F.3d 1316, 1317–
court docket, this is the only amended complaint and the parties all cite to the
same amended complaint.
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21-10840 Opinion of the Court 5
18 (11th Cir. 1998). Unpublished opinions are not considered bind-
ing precedent. 11th Cir. R. 36-2.
First, we are unpersuaded by McDowell’s argument that the
PLRA does not apply to him. When the PLRA applies, “[n]o action
shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such adminis-
trative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a).
Our
en banc decision in
Harris v. Garner, 216 F.3d 970 (11th
Cir. 2000) (
en banc), has addressed when and whether the PLRA
applies to a plaintiff. In
Harris, inmates brought a civil rights suit
against state correctional employees, alleging violations of their
constitutional rights during a prison “shakedown.” 216 F.3d at 972.
All eleven of the inmates were confined in prison when the lawsuit
was filed, but by the time the district court dismissed their claims -
- fifteen-and-a-half months later -- six of them had been released
from confinement.
Id. On appeal, our
en banc Court affirmed,
holding, in part, that the applicability of the personal injury require-
ment of the PLRA depended on an inmate’s confinement status
at
the time the action was filed.
Id. at 974 (establishing that “brought”
as used in the PLRA refers to the filing or commencement of a law-
suit). In other words, the confinement status of a prisoner after the
suit is brought is irrelevant for PLRA purposes.
Id. at 981, 982. The
status that matters is whether a plaintiff was a prisoner confined in
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6 Opinion of the Court 21-10840
a jail, prison or other correctional facility at the time the federal
civil action was brought.
Id.
We again explored the applicability of the PLRA in a recent
unpublished decision.
See Q.F. v. Daniel, 768 F. App’x 935 (11th
Cir. 2019) (unpublished). There, a plaintiff had filed a complaint
while imprisoned, then voluntarily withdrew the complaint, and
later filed an almost identical complaint after he was released from
custody pursuant to a Georgia renewal statute.
Id. at 938. We
noted that the Georgia Court of Appeals had held that the renewed
suit constituted a
de novo action under Georgia law, meaning that
a plaintiff who filed a renewed suit like the one at issue was not
subject to the PLRA because he was not confined at the time of the
renewed suit.
Id. at 939. We noted that the Georgia Court of Ap-
peals had agreed with that conclusion.
Id. Regardless, our Court
in
Q.F. ultimately held that we did not need to resolve whether an
inmate’s confinement status on the filing date of a renewed action
controlled, since the
Q.F. plaintiff had also exhausted his available
administrative remedies before filing his original action
. Id.
Here, McDowell was subject to the PLRA. As we’ve noted,
he was confined at the Marion County Jail in Florida at the time he
filed his initial suit. Whether a plaintiff is confined or not is deter-
mined
at the time that the plaintiff files the suit.
Harris, 216 F.3d at
981–82. Because he was confined when he filed his suit, the PLRA
applied to him.
As for McDowell’s argument that
Harris is no longer valid
caselaw, we disagree.
Harris constitutes binding prior precedent,
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21-10840 Opinion of the Court 7
decided by our Court sitting
en banc, and neither the Supreme
Court nor our
en banc Court has overturned or abrogated it, so we
are bound to apply it.
Steele, 147 F.3d at 1317–18.
Q.F., the case
on which McDowell relies, is an unpublished case and not binding
precedent. 11th Cir. R. 36-2. Further, it is distinguishable -- the
plaintiff in
Q.F., unlike McDowell, filed a totally new, though
nearly identical, lawsuit under a Georgia renewal statute that the
state court had previously ruled constituted a new suit for PLRA
purposes.
Q.F., 768 F. App’x at 938–39. McDowell, by contrast,
filed an amended complaint, in the same case, with no apparent
state statutory regime causing his amended complaint to be con-
sidered a new suit for PLRA purposes.
Therefore, the district court properly concluded that the
PLRA applied to McDowell’s case, and, as a result, he was required
to satisfy its exhaustion requirement.
Moreover, we are unconvinced by McDowell’s argument
that he satisfied the PLRA’s exhaustion requirement. The exhaus-
tion requirement in the PLRA requires a prisoner to exhaust all pre-
scribed remedies available to him before filing a lawsuit to seek ju-
dicial redress.
Woodford v. Ngo, 548 U.S. 81, 93–94 (2006);
see
Jones v. Bock, 549 U.S. 199, 211 (2007). Exhaustion is mandatory,
and courts cannot excuse a failure to exhaust available administra-
tive remedies because “special circumstances” exist or because the
available procedures are “futile.”
Ross v. Blake, 578 U.S. 632, 638–
39 (2016);
see Higginbottom, 223 F.3d at 1261.
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The defense that an inmate has failed to exhaust his admin-
istrative remedies, which is separate from the merits of a suit, is
generally raised in a motion to dismiss.
Bryant, 530 F.3d at 1374–
75. Nevertheless, a district court can consider facts outside of the
pleadings and resolve factual disputes, so long as the factual dis-
putes do not decide the merits of a litigant’s underlying claims, and
parties have had sufficient opportunity to develop a record.
Id. at
1376. Because the failure to exhaust is an affirmative defense, the
defendant bears the burden to prove that the plaintiff failed to ex-
haust his administrative remedies.
Turner v. Burnside, 541 F.3d
1077, 1082 (11th Cir. 2008).
Deciding whether a plaintiff failed to exhaust his administra-
tive remedies is a two-step process.
Id. First, the district court
looks to the factual allegations in the defendant’s motion to dismiss
and those in the plaintiff’s response.
Id. If they conflict, the district
court takes the plaintiff’s version of the facts as true.
Id. If, in that
light, the defendant is entitled to have the complaint dismissed for
failure to exhaust administrative remedies, it must be dismissed.
Id. However, if a complaint is not subject to dismissal at the first
step, then the district court proceeds to the second step, where it
makes specific findings in order to resolve the disputed factual is-
sues concerning exhaustion.
Id. Once the district court makes find-
ings on the disputed issues of fact, it decides whether, based on
those findings, the prisoner has exhausted his remedies.
Id. at 1083.
An inmate must exhaust his administrative remedies, but he
need not exhaust unavailable ones.
Ross, 578 U.S. at 642. The
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21-10840 Opinion of the Court 9
modifier “available” means that an administrative remedy must
provide the possibility of some relief.
Id. at 643. There are three
kinds of circumstances that make an administrative remedy una-
vailable.
Id. First, an administrative remedy is unavailable when
the administrative procedure operates as a simple “dead end,” with
officers unable or consistently unwilling to provide any relief to ag-
grieved inmates.
Id. For example, if a handbook required inmates
to submit grievances to a particular office and the office disclaims
the capacity to consider petitions or if officials have authority but
decline to exercise it, then it is unavailable.
Id. Second, a remedy
is unavailable when an administrative scheme is so opaque that it
is incapable of use.
Id. The mechanism may exist to provide relief,
but no ordinary prisoner can discern or navigate it.
Id. at 643–44.
Third, a remedy is unavailable when prison administrators thwart
inmates from taking advantage of a grievance process through
machination, misrepresentation, and intimidation.
Id. at 644.
Here, the district court did not err when it found that
McDowell had not exhausted his administrative remedies. For
starters, because the claims in McDowell’s amended complaint
contradicted the defendants’ version of events, the district court
properly went to the second step of the analysis.
Turner, 541 F.3d
at 1082. For that step, McDowell only offered conclusory state-
ments broadly asserting that prison officials did not allow him to
engage in the formal process, that he had filed a formal grievance,
and that prison officials thwarted him and gave him misinfor-
mation. For their part, the defendants filed various documents --
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affidavits, directives, and the inmate handbook, among other
things -- to detail the procedural requirements for filing a formal
grievance in prison. Relevant here, the first few steps in the process
are: (1) the inmate completes an “Inmate Request Form,” which a
“Sergeant” must review; (2) if the Sergeant cannot resolve the
grievance, he or she must provide the inmate with access to an
electronic grievance system; and (3) the Sergeant must complete
documentation within that electronic system that will enable the
grievance to be tracked. The parties agree that McDowell did not
complete steps (2) or (3) of the process; instead, McDowell argues
that those steps were “unavailable” because the Sergeant never re-
viewed an Inmate Request Form that McDowell submitted, and
never provided him with access to the electronic grievance system.
But while McDowell claims that he never received a re-
sponse to the Inmate Request Form underlying his present lawsuit,
he did not provide the district court with evidence that he submit-
ted that form. The district court noted that, pursuant to the
prison’s procedure, McDowell should have retained a copy of the
Inmate Request Form, yet McDowell apparently did not do so. On
appeal, McDowell “concede[s] that he was not in possession of the
form at the time the defendants [sic] motion to dismiss was filed,
calling into question its existence.” McDowell says that he at-
tempted to obtain the form from the prison and did not receive it
in time to respond to the motion to dismiss, but, again, there is no
indication of this in the district court. As the record reflects,
McDowell did not seek an extension to file his response to the
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21-10840 Opinion of the Court 11
motion to dismiss due to the prison’s alleged delay, nor did he ask
to supplement the record once he received a copy of that form.
On this record, we cannot say that the district court clearly
erred in finding that McDowell had not filed a formal grievance and
had offered no support for his bare claim that his administrative
remedies were unavailable. This is especially true since the three
other Inmate Request Forms the defendants provided in conjunc-
tion with the motion to dismiss -- which are all accompanied by
responses from prison officials -- cast doubt on McDowell’s allega-
tions that he (1) actually filed the Inmate Request Form at issue and
(2) never received a response to it.3
Accordingly, the district court did not err in dismissing
McDowell’s amended complaint on the ground that he did not
3 While McDowell appears to have attached a copy of an Inmate Request
Form on appeal, we are limited to “consider[ing] only evidence that was part
of the record before the district court.”
Selman v. Cobb Cty. Sch. Dist., 449
F.3d 1320, 1332 (11th Cir. 2006);
see also Fed. R. App. P. 10(a) (explaining that
the record on appeal consists of the filings and transcripts from the district
court and a certified copy of the docket entries). As we’ve noted, McDowell
never attempted to put this document in the record in the district court. Nor
did he move to reopen his case in the district court to supplement the record
with it, or even move our Court to supplement the record with it on appeal.
As for his construed motion to amend his appellant brief with a supplemental
exhibit -- an exhibit that purportedly includes Inmate Request Forms filed by
another inmate -- that motion is DENIED, since these items were not before
the district court and since these items do not alter our analysis in the case.
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exhaust his administrative remedies, and we affirm.
See Turner,
541 F.3d at 1082.
AFFIRMED.
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