           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         December 9, 2008

                                       No. 07-60256                   Charles R. Fulbruge III
                                                                              Clerk

CHARLES TORNS, JR

                                                  Plaintiff-Appellant
v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS; KATHRYN MCINTRYE,
Law Library Technician for Mississippi Department of Corrections and
Mississippi State Penitentiary ILAP; CHRISTOPHER B EPPS,
COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS;
RICHARD PAUL PENNIGTON, Director for Mississippi Department of
Corrections and Mississippi State Penitentiary ILAP; LAWRENCE KELLY,
Superintendent for Mississippi State Penitentiary; LARRY C HARDY,
Mississippi Department of Corrections and Mississippi State Penitentiary
ARP Claims Adjudicator

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                No. 4:06-CV-00075


Before KING, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                      No. 07-60256

      Plaintiff-appellant Charles Torns, Jr. appeals the district court’s sua
sponte dismissal of his complaint against the Mississippi Department of
Corrections and its officials for failure to exhaust administrative remedies as
required by 42 U.S.C. § 1997e(a). Because failure to exhaust is an affirmative
defense and it is not clear from the face of Torns’s complaint whether he
exhausted available administrative remedies, we vacate and remand.
                                             I.
      Torns is an inmate in the custody of the Mississippi Department of
Corrections (“MDOC”). Torns initiated this suit by completing a “Prisoner’s
Complaint Challenging Conditions of Confinement,” the district court’s form
complaint for inmate suits. Torns alleged a claim under 42 U.S.C. § 1983 that
defendants retaliated against him for requesting legal assistance from the
Inmate Legal Assistance Program and for exercising his right of access to the
courts. In response to Question 7 of the prisoner’s form complaint, which seeks
information regarding the inmate’s exhaustion of administrative remedies,1
Torns described his attempts to exhaust the prison grievance system.
Specifically, on June 27, 2005, Torns filed a request for review in MDOC’s
Administrative Remedy Program (“ARP”). Torns received no response from any
MDOC official after this initial request. Torns then filed his present complaint
after the expiration of a ninety-day period from his initial request.



      1
       Question 7.C prompts:
              The court must find that you exhausted the prison’s grievance system
      and administrative remedies before it can consider this Complaint. State
      everything you did to present your grievance(s). Be specific. Include the date(s)
      on which you filed or presented your grievances to prison officers; identify the
      officer(s). State your claim(s) exactly.

      Question 7.D continues:
             State specifically what official response your grievance received. If the
      prison provides an administrative review of the decision on your grievance, state
      whether you applied for that review and what the result was.

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                                       No. 07-60256

        On June 15, 2006, the district court dismissed Torns’s complaint because
he failed to exhaust the ARP. Citing § 1997e(a), the district court stated that it
“must ensure that the plaintiff has exhausted his administrative remedies with
the Mississippi Department of Corrections before examining the merits of the
plaintiff’s case.” Finding that Torns “acknowledges that he has not completed
the three-step administrative remedy program,” the district court rejected
Torns’s argument that he was prevented from completing the process as
“without merit” because “the grievance process requires the plaintiff to complete
all three steps, even without a response—and sets forth the method for doing
so.”2
        Torns appeals the dismissal. On appeal, Torns argues that under the
Supreme Court’s intervening decision Jones v. Bock, 549 U.S. 199 (2007), failure
to exhaust is an affirmative defense that he was not required to plead, that the
expiration of the ninety-day period sufficed to exhaust the ARP, and that
defendants’ failure to respond to his ARP request precluded his further pursuit
of administrative remedies. Thus, Torns claims that the district court erred in
dismissing his complaint. We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291.
                                             II.
        We review de novo the district court’s dismissal of a prisoner’s complaint
under 28 U.S.C. § 1915A for failure to exhaust administrative remedies. See
Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007). Congress passed the Prison
Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e et seq., to address the
large number of inmate complaints filed in federal courts. See Jones, 549 U.S.
at 202. Through the PLRA, Congress intended to “reduce the quantity and


        2
        Although the typical ARP review may involve three steps, see generally Gates v. Cook,
376 F.3d 323, 330 (5th Cir. 2004), there is no record evidence of the specific ARP available to
Torns at the time and place of his grievance.

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                                   No. 07-60256

improve the quality of prisoner suits.” See Porter v. Nussle, 534 U.S. 516, 524
(2002). “Among other reforms, the PLRA mandates early judicial screening of
prisoner complaints and requires prisoners to exhaust prison grievance
procedures before filing suit.” Jones, 549 U.S. at 202. Under the PLRA, the
district court “shall review, before docketing, if feasible or, in any event, as soon
as practicable after docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a
governmental entity” and “shall . . . dismiss the complaint, or any portion of the
complaint, if the complaint . . . fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A; see also 42 U.S.C. § 1997e(c)(1) (The court “shall
on its own motion . . . dismiss any action brought with respect to prison
conditions under section 1983 of this title . . . by a prisoner confined in any jail,
prison, or other correctional facility if the court is satisfied that the action . . .
fails to state a claim upon which relief can be granted . . . .”).
      The PLRA also requires the inmate to exhaust all available administrative
remedies, and unexhausted claims may not be brought in federal court. See
§ 1997e(a) (“No 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 administrative remedies as
are available are exhausted.”). “[T]he PLRA’s exhaustion requirement applies
to all inmate suits about prison life, whether they involve general circumstances
or particular episodes.” Porter, 534 U.S. at 532.
      After the district court dismissed Torns’s complaint, the Supreme Court
decided Jones. In Jones, the Court weighed whether § 1997e(a)’s mandate that
an inmate exhaust administrative remedies is a pleading requirement that the
inmate must satisfy in his complaint, thus allowing the district court to screen
a complaint that fails to plead exhaustion, or an affirmative defense that the
defendant must plead and prove. 549 U.S. at 204, 212. The Court held that

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                                     No. 07-60256

“failure to exhaust is an affirmative defense under the PLRA, and that inmates
are not required to specially plead or demonstrate exhaustion in their
complaints.” Id. at 216. As such, failure to exhaust is not subject to screening
for sua sponte dismissal by the district court. See id. at 214 (“There is . . . no
reason to suppose that the normal pleading rules have to be altered to facilitate
judicial screening of complaints specifically for failure to exhaust.”).
      Although the district court may not screen a prisoner’s complaint for
failure to plead exhaustion, “[a] complaint is subject to dismissal for failure to
state a claim if the allegations, taken as true, show the plaintiff is not entitled
to relief.” Id. at 215. One way in which a complaint may show the inmate is not
entitled to relief is if it alleges facts that clearly foreclose exhaustion. In such
a case, the district court may sua sponte dismiss the complaint for failure to
state a claim. See Carbe, 492 F.3d at 328 (holding that “[u]nder Jones, . . . a
court can dismiss a case prior to service on defendants for failure to state a
claim, predicated on failure to exhaust, if the complaint itself makes clear that
the prisoner failed to exhaust”); United States v. Del Toro-Alejandre, 489 F.3d
721, 723 (5th Cir. 2007) (holding that Jones “recognized that the usual PLRA
practice would permit a district court to dismiss sua sponte an inmate’s
complaint for failure to exhaust in the rare instance where the prisoner’s failure
to exhaust appeared on the face of his complaint”). Notably, however, “a district
court cannot by local rule sidestep Jones by requiring inmates to affirmatively
plead exhaustion.” Carbe, 492 F.3d at 328; see also id. (holding that Jones
“make[s] clear that a court cannot in a [Spears v. McCotter, 766 F.2d 179 (5th
Cir. 1985)] hearing before a responsive pleading is filed resolve the question of
exhaustion”). Typically, a defensive pleading asserting the affirmative defense
of failure to exhaust is required.
      Here, the district court found that Torns failed to complete MDOC’s three-
step ARP, mandating dismissal under this court’s precedent. See Wright v.

                                          5
                                       No. 07-60256

Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001) (holding that plaintiff’s
administrative remedies are not exhausted unless pursued through conclusion
of multi-step administrative procedure). The district court’s decision predated
both Jones and Carbe, and neither this court nor the district court was
clairvoyant. See Carbe, 492 F.3d at 327 & n.6 (noting earlier Fifth Circuit
precedent permitting sua sponte dismissal for failure to exhaust). So, the
district court erred. Jones undermines the district court’s assertion that its job
is to ensure exhaustion of administrative remedies through early-stage screening
under § 1915A. See 549 U.S. at 215. Moreover, under Carbe, the district court
cannot sidestep Jones by requiring plaintiff to affirmatively plead exhaustion.
492 F.3d at 328. Thus, the district court erred by using Question 7 of the
prisoner’s form complaint to prompt Torns for information about his exhaustion
of administrative remedies and by relying on the elicited information.
       Whether the district court nonetheless properly dismissed the complaint
here thus depends on whether this case qualifies as one of those rare instances
where the prisoner’s failure to exhaust administrative remedies is clear on the
face of the remainder of the complaint. This is not such a case; the remainder
of Torns’s complaint does not clearly show a failure to exhaust the ARP. It does
not mention the ARP other than to allege that defendants failed to process his
request or provide a response. Although the district court concluded that the
ARP required Torns to complete all three steps, even without receiving a
response from anyone at MDOC, the remainder of the complaint does not
provide the factual basis for this conclusion.3


       3
        In addition, the record does not contain the version of the ARP applicable to Torns at
the time and place of his grievance or any documentation of the specific procedures that MDOC
required Torns to follow. For example, even assuming that the three-step process outlined in
Gates applied and that Torns’s only request was his first one, the court is in no position to
resolve whether MDOC allowed an inmate to proceed in the ARP if it refused to process his
grievance as a step one request or whether MDOC made available to Torns any envelopes,
forms, and instructions that he was required to use in pursuit of step two and step three

                                              6
                                     No. 07-60256

      Under Jones and Carbe, where the complaint does not clearly show that
the inmate failed to exhaust administrative remedies, it is defendants’ job to
raise and prove such an affirmative defense. This is particularly true here,
where defendants possess the necessary information to assure the district court
that additional administrative remedies were available to Torns or confirm that
they were not. Thus, the proper procedure in this case is to serve defendants
and allow them to raise the defense or waive it. The district court erred when
it sua sponte dismissed Torns’s complaint.
                                           III.
      Because failure to exhaust is an affirmative defense and it is not clear
from the face of Torns’s complaint whether he exhausted available
administrative procedures, we VACATE and REMAND for service of defendants
and subsequent proceedings.




appeals. In absence of such information, the preferable course is to allow MDOC to produce
such evidence if it chooses to raise the affirmative defense.

                                            7
