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                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 18-11697
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 5:16-cv-00405-WTH-PRL

JOSE MONTALBAN,

                                                             Plaintiff-Appellant,

                                     versus



JOHN DOE, S.I.S. Officers,
FNU BOLLEY, Unit manager for B-Unit, et al.,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                             (February 12, 2020)

Before GRANT, LUCK, and ANDERSON, Circuit Judges.
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PER CURIAM:

       Jose Montalban, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his complaint for failure to exhaust administrative remedies in

his action alleging civil rights violations under 42 U.S.C. § 1983. On appeal, he

argues that the district court erred by not applying the steps we laid out in Turner v.

Burnside, 541 F.3d 1077 (11th Cir. 2008), and that he was not required to exhaust

his claims because the administrative remedies ostensibly provided by federal

regulations were practically unavailable to him due to a serious threat of retaliation

by prison officials, as well as a failure on the Bureau of Prisons’ part to comply

with the regulatory requirements. After carefully reviewing the record and

arguments before us, we agree. The district court failed to take Montalban’s

allegations as true, as the first Turner step requires, and did not sufficiently resolve

the relevant factual disputes, as the second Turner step requires. Accordingly, we

vacate the district court’s order dismissing his claim and remand the case to the

district court for further proceedings.1



                                   I. BACKGROUND



1
        Montalban also argues that the district court erred by denying his motion for
reconsideration. Because we have vacated the district court’s order, we need not address
Montalban’s argument regarding reconsideration. He also filed motions for miscellaneous relief
and to supplement the record. We DENY AS MOOT all pending motions. Because we vacate,
Montalban will have the opportunity to supplement the record on remand.
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        Taking the allegations in his third amended complaint as true, Montalban

was a federal inmate initially incarcerated at the Federal Correctional Complex in

Cannan, Florida. However, after he was charged with forcibly assaulting and

resisting a correctional officer and inflicting bodily harm with a dangerous object

while at Cannan, he was transferred to the Federal Correctional Complex in

Coleman, Florida.

        Montalban appealed the charges and was placed in the Special Housing Unit

at Coleman after refusing to give two officers information about his appeal. After

being released from the SHU, Montalban submitted BP-9 forms to the Coleman

warden on August 28, 2014, alleging inadequate medical treatment for a collarbone

injury, to which he never received a response. He asked his unit team about

property and legal materials that had been missing since he was transferred to

Coleman, and his counselor informed him that he would not be getting anything

back.

        His subsequent efforts to file grievances largely proved unsuccessful. He

filed BP-8 and BP-9 forms raising grievances about the release of his medical

records but did not receive a response within two years. When he asked his

counselor for another BP-8 form to file a grievance about receiving his mail, his

counselor allegedly slammed the desk, in an attempt to scare Montalban, and




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ordered him to leave. He evidently forwarded the BP-8 and BP-9 forms to the

associate warden after not receiving a reply from his unit team.

      Montalban continued filing grievances throughout 2015 and 2016—most of

which apparently resulted in responses. He filed a BP-8 form on October 14, 2015,

requesting a copy of his detention order, to which a Coleman staff member

responded by informing him that a copy could not be located. He similarly

received responses to BP-8 forms filed on October 22 and November 4, concerning

his lost property. BP-9 forms filed on October 23 and November 2, also

concerning his lost property, were rejected shortly after being filed. The October

23 BP-9 had apparently improperly raised more than one issue and needed to be

resubmitted. The November 2 BP-9 forms were apparently untimely because they

concerned an incident that occurred more than a year prior.

      Montalban filed BP-10 forms on January 4, 2016, directed to the Bureau’s

Northeast and Southeast Regional Offices, that requested remedies for his property

loss, medical injuries, and mistreatment by the staff. The Northeast Regional

Office acknowledged receipt of his BP-10 form on January 26, and rejected two of

his forms on January 22 because they did not raise sensitive issues and were filed

in the incorrect region. Another form was rejected on July 12, 2016, denying him

relief. He filed BP-11 forms on April 15 with the Central Office, requesting the




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same relief that he had previously sought from the Northeast and Southeast

Regional Offices.

        He filed a BP-8 form on May 5 with Coleman, requesting a different

prescription for his collarbone injury, which was denied by the staff, who informed

him that he needed to try his current prescription before receiving a different one.

He filed subsequent BP-8 and BP-9 forms on June 10 requesting the status of BP-

10 forms he had previously filed in the Northeast and Southeast Regional Offices

and to the BP-11 form he filed with the Central Office. These forms alleged that

Montalban’s counselor showed him letters from the Bureau’s Offices responsive to

his forms, but refused to give the letters to him. The associate warden at Coleman

responded to the BP-9 form, alleging that the BP-10 and BP-11 forms were not

“legal mail” and that Montalban had refused to accept them when delivery was

attempted.

        Montalban filed subsequent forms concerning his financial plan—he filed a

BP-8 form on June 13, requesting a copy of his financial plan contract and the

address of the deferral district court in Scranton, Pennsylvania, which was

provided to him by a Coleman staff member. He filed a BP-9 form on June 20

further outlining his financial plan concerns and referencing the previous BP-8

form.




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      In June 2016, he filed at least three BP-8 forms concerning other matters and

received a response to only one of them from the associate warden on June 16,

2016. He received a response from the warden concerning only one of his BP-9

forms, which dealt with his lost property. Montalban filed his first complaint in

the underlying litigation on June 20, 2016. His complaint alleged that the named

defendants acted with deliberate and reckless indifference to his medical needs,

violated his access to the courts, and deprived him of his liberty and property in

violation of the First, Fifth, Sixth, Eighth, and Fourteenth Amendments.

      That same day, Montalban was called into his counselor’s office. There, he

learned that his counselor had confiscated and held his legal documents and mail

from two of the Bureau of Prisons’ regional offices in an attempt to cause

Montalban’s case to be dismissed. He requested an additional BP-8 form from his

counselor on July 20, and his counselor refused to provide him with the form and

told him to stop filing grievances because he would never get them back. He filed

his final BP-8 form on November 4, 2016, requesting a copy of one of his medical

reports from April 28, 2011, which was responded to by a Coleman staff member

with the reports attached.

      The government moved to dismiss Montalban’s complaint on August 7,

2017, and alternatively sought summary judgment on Montalban’s allegations.

The district court granted the government’s motion to dismiss on January 9, 2018.


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In its order, the district court exclusively cited the government’s version of facts,

relying heavily on the affidavit of Caixa Santos, a paralegal specialist at Coleman.

It ultimately concluded that “the record shows that Plaintiff failed to exhaust his

administrative remedies.” With regard to availability, it similarly rejected

Montalban’s argument that the administrative procedures were functionally

unavailable to him. It apparently assumed, arguendo, that Montalban was

“threatened,” but concluded that “there is nothing to show that he was actually

prohibited from pursuing his administrative remedies.” It rejected Montalban’s

argument that the Bureau “failed to somehow follow its own procedures,”

determining that the Bureau responded to each of his grievances and appeals,

which were all deficient. “The record is clear,” it concluded, “that it was Plaintiff

and not the prison officials who failed to follow procedure.”

                               II. LEGAL ANALYSIS

                               A. Standard of Review

      We review de novo a district court’s interpretation and application of the

exhaustion requirement under 42 U.S.C. § 1997e(a). Johnson v. Meadows, 418

F.3d 1152, 1155 (11th Cir. 2005). To the extent that the district court makes

specific factual findings, we review those findings for clear error, but otherwise

accept as true the facts set forth in the complaint and draw all reasonable

inferences in the plaintiff’s favor. Whatley v. Warden, Ware State Prison, 802


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F.3d 1205, 1209 (11th Cir. 2015) (quotation omitted). The burden is on the

defendants to prove that the plaintiff failed to exhaust his available administrative

remedies. Turner, 541 F.3d at 1082.

                           B. Administrative Procedures

      Section 1997e(a) provides that “[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

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

The exhaustion requirement “applies to all inmate suits about prison life, whether

they involve general circumstances or particular episodes, and whether they allege

excessive force or some other wrong.” Johnson, 418 F.3d at 1155 (quotation

omitted). Further, the exhaustion requirement is mandatory, foreclosing judicial

discretion and preventing courts from excusing a failure to exhaust. Ross v. Blake,

136 S. Ct. 1850, 1856–57 (2016).

      As we have recognized previously, the applicable administrative procedures

for an inmate seeking to “redress the deprivation of any right to which he is

entitled or to which he believes he is entitled” involves a “three-tiered process.”

Irwin v. Hawk, 40 F.3d 347, 349 n.2 (11th Cir. 1994). First, the inmate must

“present an issue of concern informally to staff, and staff shall attempt to

informally resolve the issue.” 28 C.F.R. § 542.13(a). Should this prove


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unsuccessful, he may proceed to the second step and submit a formal, written

administrative remedy request on a BP-9 form within 20 days after the basis for the

request occurred. 2 Id. §§ 542.13(a), 542.14(a). Third, and finally, if the inmate is

dissatisfied with the warden’s response to his request, he can file an appeal on a

BP-10 form to the appropriate Regional Director within 20 days. Id. § 542.15(a).

If dissatisfied with the Regional Director’s response, he can file an appeal on a BP-

11 form to the General Counsel within 30 days.

       The exhaustion requirement is waived, however, for those grievance

procedures that are “unavailable” such that they are not “capable of use to obtain

some relief for the action complained of.” Blake, 136 S. Ct. at 1858–59 (quotation

omitted). The Supreme Court has identified at least three scenarios “in which an

administrative remedy, though officially on the books, is not capable of use to

obtain relief”: (1) where officers are “unable or consistently unwilling to provide

any relief to aggrieved inmates,” such that the remedy operates as “a simple dead

end”; (2) where the remedy is essentially “unknowable” such that no ordinary



2
  An inmate is entitled to an extension of time if he can demonstrate a valid reason for delay,
including:
        an extended period in-transit during which the inmate was separated from
        documents needed to prepare the Request or Appeal; an extended period of time
        during which the inmate was physically incapable of preparing a Request or
        Appeal; an unusually long period taken for informal resolution attempts; indication
        by an inmate, verified by staff, that a response to the inmate's request for copies of
        dispositions requested under § 542.19 of this part was delayed.
Id. § 542.14(b).
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prisoner can understand what it requires; and (3) where “prison administrators

thwart inmates from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” Id. at 1859–60 (quotation omitted).

Additionally, we have determined that a prison official’s “serious threats of

substantial retaliation” against an inmate for making or pursuing an administrative

remedy makes that remedy “unavailable” and lifts the exhaustion requirement if:

       (1) the threat actually did deter the plaintiff inmate from lodging a
       grievance or pursuing a particular part of the process; and (2) the threat
       is one that would deter a reasonable inmate of ordinary firmness and
       fortitude from lodging a grievance or pursuing the part of the grievance
       process that the inmate failed to exhaust.

Turner, 541 F.3d at 1085.

       Exhaustion is properly decided on a Rule 12(b) motion to dismiss. Bryant v.

Rich, 530 F.3d 1368, 1375 (11th Cir. 2008). On a motion to dismiss for failure to

exhaust, the district court may consider facts outside of the pleadings and “resolve

factual disputes so long as the factual disputes do not decide the merits and the

parties have sufficient opportunity to develop a record.” Id. at 1376. Further, we

have established a two-step process to employ in analyzing a motion to dismiss for

failure to exhaust administrative remedies. Turner, 541 F.3d at 1082. First, the

court analyzes the factual allegations in the defendant’s motion to dismiss and the

plaintiff’s response, taking the plaintiff’s version of the facts as true if there is a

conflict between them, and determines whether the plaintiff’s complaint should be


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dismissed in light of those facts. Id. Second, if the complaint is not subject to

dismissal at that stage, the court must “make specific findings in order to resolve

the disputed factual issues related to exhaustion.” Id. After resolving the disputed

facts, the district court may then decide whether the prisoner has exhausted his

available administrative remedies under its findings. Id. at 1083.

      In Whatley, the plaintiff appealed the dismissal of his Section 1983 claim for

failure to exhaust his administrative remedies. 802 F.3d at 1208. We determined

that the district court did not undertake the first Turner step because it did not

accept the plaintiff’s facts as true and ask whether, given those facts, he had

exhausted his administrative remedies. Id. at 1211. We further determined that the

district court did not proceed to the second Turner step and identify particular

factual disputes, make specific factual findings to resolve those disputes, and

decide whether the plaintiff exhausted the administrative remedies. Id. We

explained that we would review the results of the first step de novo, while we

would review the fact findings of the second step for clear error, but that it was

unclear whether the district court dismissed the case on the first step or the second

step. Id. at 1213. With, at best, only implicit findings of fact, we determined that

we could not review the district court’s conclusions. Id. Accordingly, we vacated

and remanded so that the district court could “properly undertake the two-step

Turner process.” Id.


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                                 C. Turner Analysis

      Here, we conclude that the district court did not comply with our holding in

Turner. At the first Turner step, it failed to accept Montalban’s facts as true—and

then decide whether, under those facts, he exhausted his administrative remedies.

And at the second step, it did not identify and resolve all relevant factual disputes

between the parties. We address each in turn.

      First, the district court failed to comply with the first step of the Turner

analysis because it did not accept Montalban’s allegations as true and decide

whether, under those facts, he exhausted his administrative remedies. Rather,

without identifying Montalban’s relevant conflicting allegations, the district court

seems to have simply accepted the government’s version of the facts as true.

      Second, the district court did not fully comply with Turner’s second step. It

did not identify and make explicit findings of fact resolving crucial factual issues.

For example, the district court did not address Montalban’s allegation that he was

threatened to stop pursuing all administrative remedies, that he was told that he

would not be receiving responses to his grievances, and that Coleman staff often

refused to provide him with the required forms. And, the district court did not

address the extent to which such allegations, if true, would deter him from

effectively presenting his relevant grievance claims to the responsible officials.




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      In light of these circumstances, and our decisions in Turner and Whatley, we

are unable to adequately review the decision of the district court. Whatley, 802

F.3d at 1213.

                                III. CONCLUSION

      We determine that the district court failed to undertake the first step of the

Turner process because it did not accept Montalban’s facts as true and decide

whether, under those facts, he exhausted his administrative remedies. The district

court also failed to complete the second step of the Turner process because it did

not identify and resolve the relevant factual disputes between the parties.

Accordingly, we vacate the district court’s order and remand the case to the district

court so that it can properly undertake the two-step Turner process.

      VACATED and REMANDED.




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