             Case: 12-14730   Date Filed: 04/02/2014   Page: 1 of 4


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-14730
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 5:12-cv-00122-WTH-PRL



MICHAEL DONAWA,

                                                             Plaintiff-Appellant,

                                       versus

FNU GILMORE, etc., et al.,

                                                                      Defendants,

WARDEN, FCC COLEMAN II,
RAYMOND HOLT,
Regional Director - FBOP,
THOMAS R. KANE,
BOP Director,
ROY C. CHEATHAM,
Associate Warden,
LOUIS WILLIAMS,
Coleman II Captain, et al.,

                                                          Defendants-Appellees.
                Case: 12-14730       Date Filed: 04/02/2014      Page: 2 of 4


                              ________________________

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

                                       (April 2, 2014)

Before PRYOR, MARTIN and COX, Circuit Judges.

PER CURIAM:

       Michael Donawa, a federal prisoner proceeding pro se, appeals the district

court’s sua sponte dismissal of his amended civil rights complaint for failure to

state a claim, pursuant to 28 U.S.C. § 1915A, based on a failure to exhaust

administrative remedies. In its dismissal order, the court stated that Donawa

conceded his failure to exhaust, although it did not identify where the concession

occurred. Because Donawa’s complaint did not concede a failure to exhaust, and

in fact suggested that he exhausted his administrative remedies, we reverse the

district court’s order and remand for further proceedings.

       On appeal, Donawa contends that the district court erred in dismissing his

complaint because he did not fail to exhaust his administrative remedies. 1 The

Defendants did not file a response brief.

       We review a district court’s sua sponte dismissal for failure to state a claim

under 28 U.S.C. § 1915A de novo, taking the allegations in the complaint as true.
1
 Donawa also contends that the district court failed to provide him with adequate notice and
dismissed his complaint in order to control its docket and discourage prisoner litigation. After
careful review, we find no merit in these contentions.
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Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). Moreover, we hold pro

se pleadings to a less stringent standard than pleadings drafted by attorneys and

liberally construe them. Id. at 1110.

      The Prison Litigation Reform Act (“PLRA”) requires federal and state

prisoners to exhaust available administrative remedies before bringing an action

before a court. 42 U.S.C. § 1997e(a); Alexander v. Hawk, 159 F.3d 1321, 1324

(11th Cir. 1998). But, a plaintiff is not required to plead or demonstrate exhaustion

in the complaint because the PLRA’s exhaustion requirement is an affirmative

defense. Jones v. Bock, 549 U.S. 199, 216–17, 127 S.Ct. 910, 921–22 (2007)

(discussing dismissal for failure to state a claim under § 1915A and explaining that

the PLRA does not impose heightened pleading standards). A district court may

sua sponte dismiss a complaint under § 1915A for failure to exhaust only when

lack of exhaustion “appears on the face of the complaint.” Bingham v. Thomas,

654 F.3d 1171, 1175 (11th Cir. 2011).

      Here, the district court erred for two reasons. First, the record simply does

not support the court’s conclusion that Donawa conceded that he failed to exhaust

administrative remedies. Rather, the complaint repeatedly asserted that Donawa

pursued the BOP’s administrative remedies, even though Donawa was not required

to affirmatively plead exhaustion. Second, Donawa also alleged in the complaint

that he was threatened and retaliated against for the administrative complaints he


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did pursue. We have previously held that in some situations “a prison official’s

serious threats of substantial retaliation against an inmate for lodging or pursuing

in good faith a grievance make the administrative remedy ‘unavailable,’ and thus

lift the exhaustion requirement.” Turner v. Burnside, 541 F.3d 1077, 1085 (11th

Cir. 2008). So, Donawa’s complaint—while not a model of clarity—suggests that

the exhaustion requirement was met and any event does not concede that

administrative remedies were not exhausted.

      The district court erred by dismissing the complaint when failure to exhaust

administrative remedies was not apparent on the face of the complaint.

Accordingly, the district court’s order is reversed, and we remand for further

proceedings.

      REVERSED AND REMANDED.




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