 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 19, 2013                    Decided April 9, 2013

                         No. 11-7120

                      JOHN B. LESESNE,
                        APPELLANT

                               v.

                 JOHN DOE, OFFICER, ET AL.,
                        APPELLEES


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:10-cv-00602)


    Emily M. May, Student Counsel, argued the cause as amicus
curiae in support of appellant. With her on the briefs were Sean
E. Andrussier, appointed by the court, and John A. Cosgriff,
Jonathan P. Havens, and Matthew P. Mooney, Student Counsel.

    John B. Lesesne, pro se, was on the brief for appellant.

     Mary L. Wilson, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued the
cause for appellees. With her on the brief were Irvin B. Nathan,
Attorney General, Todd S. Kim, Solicitor General, and Donna
M. Murasky, Deputy Solicitor General.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.
                                2

    Opinion for the Court by Circuit Judge ROGERS.

     ROGERS, Circuit Judge: When John Lesesne filed a
complaint against the District of Columbia and others regarding
the pretrial conditions of his confinement he was no longer
confined. Under the plain terms of the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a), he therefore was no longer
required to exhaust administrative remedies before filing suit.
The District agrees that the PLRA exhaustion requirement did
not apply to Lesesne but urges the court nonetheless to affirm
the grant of summary judgment on his federal claims for failure
to exhaust because Lesesne failed to make this argument in the
district court. We decline to do so for the following reasons, and
we reverse as to his federal claims.

                                I.

     According to the complaint, see Chandler v. D.C. Dep’t of
Corr., 145 F.3d 1355, 1360 (D.C. Cir. 1998), as a result of the
actions and inactions of District of Columbia employees,
Lesesne suffered permanent, life threatening injuries from a
pulmonary embolism requiring expensive permanent
therapeutical medical care and prescription drugs, constant pain
management, and pain and suffering and emotional distress.
Briefly, Lesesne was shot in the lower abdomen during an
altercation on March 30, 2008 and sustained neurological
damage to his leg. He was arrested and taken to Prince
George’s Hospital Center, where he underwent surgery. While
at the hospital, he was placed in the custody of D.C.
Metropolitan Police Department officers, who kept his wrist and
ankle cuffed to the bed. Within 48 hours, the Department of
Corrections assumed custody of Lesesne; correctional officers
continued cuffing his wrist and ankle to the hospital bed.
Because of the neurological damage to his leg, doctors
prescribed physical and occupational therapies and directed
                                3

Lesesne to walk in the hospital hallway. Correctional officers
denied him this treatment and restrained movement of his
injured leg, despite knowledge of the injury and prescribed
treatment and even after hospital doctors faxed the
recommendations to Department administrators. Upon being
discharged from the hospital on April 8, 2008, Lesesne was
forced by correctional officers to walk in full restraints through
the parking lot to the transport vehicle. When the officers
attempted to lift him into the vehicle, he fell to the ground. He
was then placed in a police cruiser for transport to the D.C. Jail
infirmary. Showing signs of distress during transport and
afterwards, he was taken following an examination at the D.C.
Jail to the Greater Southeast Community Hospital, where he was
diagnosed with having suffered a pulmonary embolism.
Lesesne was placed in intensive care at the hospital and
correctional officers continued to cuff his injured leg. He was
discharged from the hospital on April 21, 2008 and transferred
to the D.C. Jail pending arraignment. Over the next four days,
Jail personnel failed to provide him with the medical treatment
prescribed by the hospital and his wounds became infected;
specifically, they did not give him prescribed medications,
change his bandages, or clean his gunshot wound and surgical
incision. On April 25, 2008, he was released from the Jail on
pre-trial release.

     Two years later, on April 19, 2010, Lesesne, proceeding pro
se, filed a complaint against the District of Columbia, the
Department of Corrections, and corrections officials John Doe,
David Holmes, and Henry Lesansky, who were sued in their
individual capacities (together, “the District”). He alleged that
the District was deliberately indifferent to his medical needs and
allowed the wanton infliction of pain in violation of his
constitutional rights. He also alleged the intentional infliction
of emotional distress (“IIED”) under District of Columbia law.
He sought a declaration that the District had violated his
                                4

constitutional rights and an award of compensatory and punitive
damages, as well as attorneys’ fees and costs. He also filed an
application to proceed in forma pauperis, averring that he was
not incarcerated, which the district court granted.

     The District moved to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) or, in the alternative,
for partial summary judgment pursuant to Rule 56 on the ground
that Lesesne had failed to exhaust administrative remedies as the
PLRA required. Lesesne, still pro se, responded that he had
adequately stated his claims and that “special circumstances”
and the “non-existen[ce]” of administrative remedies justified
his failure to exhaust. He also moved, on September 15, 2010,
to amend his complaint, and the proposed amended complaint,
lodged on November 29, added factual details to Lesesne’s
federal claims but did not include an IIED claim. The District
opposed Lesesne’s motion on the ground that his amended
complaint suffered from the same defects as the original.
Lesesne replied that administrative remedies were unavailable
to him.

     On December 17, 2010, the district court ordered the
District to submit additional briefing on the exhaustion issue and
specifically to address Lesesne’s arguments that he was
practically unable to file a grievance and that special
circumstances may have justified his failure to do so. In
response, the District filed exhibits including an affidavit by a
Department grievance coordinator stating that Lesesne’s D.C.
Jail medical records indicated that on April 24, 2008 he had
submitted a sick call slip requesting to be seen by a doctor. The
District argued, therefore, that the grievance system was
available to Lesesne. On September 30, 2011, the district court
granted summary judgment on Lesesne’s federal claims because
he had failed to exhaust administrative remedies as required by
the PLRA, dismissed Lesesne’s IIED claim pursuant to Rule
                                   5

12(b)(6) for failure to state a claim, and denied his motion to file
an amended complaint as futile given his failure to exhaust.
Lesesne appeals, and our review is de novo. See Douglas v.
Donovan, 559 F.3d 549, 551 (D.C. Cir. 2009); Chandler, 145
F.3d at 1360.

                                  II.

      On appeal, in his pro se brief Lesesne challenges the grant
of summary judgment on his federal claims on the grounds that
he was not required to exhaust administrative remedies under
the PLRA because those remedies were unavailable to him. In
his brief he also asserts, without elaboration, that the dismissal
of his IIED claim should be reversed. The District maintains in
its responsive brief that summary judgment on Lesesne’s federal
claims should be affirmed. It explains that although other circuit
courts of appeals have held the PLRA exhaustion requirement
does not apply where a plaintiff is no longer a prisoner when he
files his complaint, Lesesne forfeited the argument by failing to
argue in the district court that the PLRA was inapplicable by
reason of his release from the D.C. Jail. The District also offers
several reasons why the dismissal of Lesesne’s IIED claim
should be affirmed. By Order of July 12, 2012, this court
appointed amicus to present argument in support of Lesesne.1
Lesesne subsequently amended his brief to adopt the arguments
raised by amicus.

     The exhaustion provision of the PLRA provides:

            No action shall be brought with respect to prison
            conditions under section 1983 of this title, or any other


        1
              The court expresses its appreciation to amicus for its
assistance.
                                 6

         Federal law, by a prisoner confined in any jail, prison,
         or other correctional facility until such administrative
         remedies as are available are exhausted.

42 U.S.C. § 1997e(a). “Prisoner” is defined as a “person
incarcerated or detained.” Id. § 1997e(h). By its plain terms,
exhaustion is not required of a plaintiff who is not so confined.
The courts of appeals to address the issue have so held,
indicating that the relevant time of confinement is when the
complaint is filed. See Talamantes v. Leyva, 575 F.3d 1021,
1023–24 (9th Cir. 2009); Cofield v. Bowser, 247 F. App’x 413,
414 (4th Cir. 2007) (unpublished opinion); Norton v. City of
Marietta, 432 F.3d 1145, 1150–51 (10th Cir. 2005); Nerness v.
Johnson, 401 F.3d 874, 876 (8th Cir. 2005); Ahmed v.
Dragovich, 297 F.3d 201, 210 (3d Cir. 2002); Greig v. Goord,
169 F.3d 165, 167 (2d Cir. 1999); see also Harris v. Garner, 216
F.3d 970, 974–75 (11th Cir. 2000) (en banc) (interpreting
parallel language in 42 U.S.C. § 1997e(e)); Janes v. Hernandez,
215 F.3d 541, 543 (5th Cir. 2000) (interpreting § 1997e(d));
Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (interpreting
§ 1997e(e)). The statutory text supports this analysis by
referring to an “action . . . brought . . . by a prisoner confined in
any jail, prison, or other correctional facility.” 42 U.S.C.
§ 1997e(a). The District concedes that “both the language of the
exhaustion requirement . . . and the legislative history show that
the law applies only to prisoners confined when they file their
complaint.” Appellees’ Br. 15–16.

     “The matter of what questions may be taken up and
resolved for the first time on appeal is one left primarily to the
discretion of the courts of appeals, to be exercised on the facts
of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121
(1976). As a general rule, “issues and legal theories not asserted
in the district court ordinarily will not be heard on appeal.”
Prime Time Int’l. Co. v. Vilsack, 599 F.3d 678, 686 (D.C. Cir.
                                7

2010) (internal quotation marks omitted). But the Supreme
Court has recognized that “[t]here may always be exceptional
cases or particular circumstances which will prompt a reviewing
or appellate court, where injustice might otherwise result, to
consider questions of law which were neither pressed nor passed
upon by the court or administrative agency below.” Hormel v.
Helvering, 312 U.S. 552, 557 (1941). So, for example, “a
federal appellate court is justified in resolving an issue not
passed on below. . . where the proper resolution is beyond any
doubt.” Singleton, 428 U.S. at 121. And “a court may consider
an issue antecedent to and ultimately dispositive of the dispute
before it, even an issue the parties fail to identify and brief.”
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508
U.S. 439, 447 (1993) (internal quotation marks and alteration
omitted). In light of the Supreme Court’s instruction, this court
has identified other examples of extraordinary circumstances
overcoming the general rule of forfeiture, such as when “a
novel, important, and recurring question of federal law” is
presented on appeal. Roosevelt v. E.I. Du Pont de Nemours &
Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992). The court has
expressed “no qualms” about reaching a new argument that a
particular “statute is clearly inapplicable.” Ranger Cellular v.
FCC, 333 F.3d 255, 261–62 (D.C. Cir. 2003). And the court has
resolved an issue not raised in the district court where it
“involve[d] a straightforward legal question, and both parties
have fully addressed the issue on appeal.” Prime Time Int’l, 599
F.3d at 686. Lesesne’s case fits this paradigm.

     First, the proper interpretation of the PLRA’s exhaustion
requirement is a dispositive legal issue antecedent to its
application. See U.S. Nat’l Bank of Or., 508 U.S. at 447. It
involves an important question of first impression in this court
that is likely to recur. See Roosevelt, 958 F.2d at 419 n.5.
Second, it is an obvious, straightforward legal question that does
not require further factual development. See Prime Time Int’l,
                                8

599 F.3d at 686. To the extent Lesesne’s forfeiture also
involved a factual issue – i.e., whether he was confined at the
time he filed his complaint – that fact is established by the
record and undisputed on appeal. Lesesne averred under penalty
of perjury in his March 2010 application to proceed in forma
pauperis that he was not incarcerated, and the first and last
pages of his pro se complaint listed a private street address,
rather than a correctional or detention facility. The District’s
motion to dismiss included a certificate of service that it had
mailed the motion to Lesesne at the private address listed in his
complaint. Third, both parties have had “ample opportunity to
address the issue” on appeal. See U.S. Nat’l Bank of Or., 508
U.S. at 448; Prime Time Int’l, 599 F.3d at 686. This court’s
order appointing amicus expressly directed briefing on the issue.
Notably, the District has not suggested that it would be
prejudiced if the court resolved the statutory issue; nor would it
be, considering the case is still at the pleading stage and the
District has not yet filed an answer.

     For these reasons we exercise our discretion to decide the
antecedent statutory question. As in Prime Time International,
“[t]he proper resolution of the [PLRA] issue is beyond any
doubt . . . . The issue involves a straightforward legal question,
and both parties have fully addressed the issue on appeal.
Consequently, no injustice will be done if [the court] decide[s]
the issue.” 599 F.3d at 686. To the contrary, it would seem
unjust to allow a defendant to defeat a complaint based on an
affirmative defense, see Jones v. Bock, 549 U.S. 199, 216
(2007), that it concedes is inapplicable. Indeed, the District
could offer no explanation during oral argument how invoking
forfeiture would promote the ends of justice here.

    We hold, joining our sister circuits, that the PLRA
exhaustion requirement does not apply because Lesesne was not
a “prisoner” at the time he filed his complaint. Summary
                                   9

judgment, based on Lesesne’s failure to exhaust administrative
remedies as the PLRA requires, was therefore inappropriately
granted on his federal claims.2 As to his IIED claim, we hold
that it has been abandoned because neither Lesesne’s proposed
amended complaint nor amicus’ brief, which he adopted,
reference the IIED claim, and his pro se appellate brief provides
no argument why the dismissal of it should be reversed. See
Woodruff v. Peters, 482 F.3d 521, 525 (D.C. Cir. 2007); Terry
v. Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996); Carducci v.
Regan, 714 F.3d 171, 177 (D.C. Cir. 1983). Accordingly, we
reverse in part and remand Lesesne’s federal claims to the
district court; otherwise we affirm.




        2
            In a footnote to its brief, the District suggests Lesesne has
abandoned his Fourth Amendment claim on appeal and that, in any
event, he failed to state a claim upon which relief can be granted. See
Appellee’s Br. 21 n.6. But neither Lesesne nor amicus had any reason
to discuss the specifics of his federal claims on appeal because the
district court granted summary judgment on exhaustion grounds; we
express no view on the merits of his claims. We also reject the
District’s suggestion, without supporting authority, that dismissal of
the complaint as to defendant Lesansky should be affirmed because he
was not referenced as an appellee in Lesesne’s notice of appeal. To
the extent there was error, but see FED. R. APP. P. 3(c)(1)(A); Appeal
of D.C. Nurses’ Ass’n v. Dist. of Columbia, 854 F.2d 1448, 1450 (D.C.
Cir. 1988), it was harmless as the dispositive order appealed applied
to all defendants and Lesansky is a public employee represented by the
same counsel as the named appellees, see Chathas v. Smith, 848 F.2d
93, 94 (7th Cir. 1988).
