           Case: 16-16853     Date Filed: 08/25/2017   Page: 1 of 12


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-16853
                         ________________________

                  D.C. Docket No. 5:12-cv-00281-CAR-CHW



FRED DALTON BROOKS,

                                                              Plaintiff-Appellant,

                                    versus

WARDEN, et al.,

                                                                       Defendants,

DEPUTY WARDEN WILLIAM POWELL,

                                                            Defendant-Appellee.

                         ________________________

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

                               (August 25, 2017)

Before WILLIAM PRYOR, MARTIN, and ROSENBAUM, Circuit Judges.
              Case: 16-16853     Date Filed: 08/25/2017    Page: 2 of 12


MARTIN, Circuit Judge:

      Fred Dalton Brooks is incarcerated at the Georgia Diagnostic and

Classification Prison. Five years ago, he filed a pro se civil rights suit under 42

U.S.C. § 1983 against one of the prison guards, Deputy Warden William Powell.

In 2015, this Court reversed the District Court’s dismissal of Mr. Brooks’s

complaint. See Brooks v. Warden, 800 F.3d 1295, 1298 (11th Cir. 2015). We

concluded, contrary to the District Court, that Mr. Brooks’s allegations against

Deputy Powell stated a violation of the Eighth Amendment. Id. On remand,

Deputy Powell asserted for the first time a new defense: that Mr. Brooks failed to

exhaust administrative remedies as required under the Prison Litigation Reform

Act (“PLRA”), 42 U.S.C. § 1997e(a). The District Court agreed and dismissed Mr.

Brooks’s case for failure to exhaust. Mr. Brooks now appeals that decision. He

argues that Deputy Powell is barred from asserting the exhaustion defense because

he failed to raise it in his first motion to dismiss. After careful consideration, and

with the benefit of oral argument, we conclude that Mr. Brooks is right. We

therefore reverse the dismissal of Mr. Brooks’s complaint and remand for further

proceedings consistent with this opinion.

                                I. BACKGROUND

A. MR. BROOKS’S ALLEGATIONS




                                            2
               Case: 16-16853       Date Filed: 08/25/2017      Page: 3 of 12


       Mr. Brooks’s claim is based on what he endured after he was brutally

attacked and sexually assaulted by another inmate during a prison riot. He had to

be treated at an outside hospital, where he was guarded by Deputy Powell. This

Court, in its prior opinion in this case, summarized Mr. Brooks’s allegations:

       Brooks alleges that Powell refused to allow Brooks to lower the waist-
       chains that bound him so that he could use the toilet while in the
       hospital. As a result, Brooks was forced to defecate into his jumpsuit
       and sit in his own feces for two days during his three-day hospital
       stay. Brooks also alleges that Powell refused to allow the nurses to
       clean Brooks or offer him an adult diaper, and that Powell and the
       other guards laughed at Brooks and mocked him throughout the
       ordeal.

Id. at 1303.

B. PROCEDURAL HISTORY

       In July 2012, Mr. Brooks filed this § 1983 suit against Deputy Powell. 1

Deputy Powell moved to dismiss Mr. Brooks’s complaint for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). Deputy Powell did not

mention the idea that Mr. Brooks failed to exhaust administrative remedies as

required by the PLRA. In response to Deputy Powell’s motion to dismiss, Mr.

Brooks amended his complaint. Deputy Powell then filed a second motion to

dismiss. He again moved to dismiss for failure to state a claim under Rule

12(b)(6). But again, he did not raise the defense that Mr. Brooks had failed to


       1
        Mr. Brooks also named other prison officials as defendants, but they have since been
dismissed from the action. See Brooks, 800 F.3d at 1298, 1301–03.

                                               3
              Case: 16-16853     Date Filed: 08/25/2017    Page: 4 of 12


exhaust the prison’s administrative remedies. The District Court granted Deputy

Powell’s motion and dismissed Mr. Brooks’s suit. Mr. Brooks then appealed to

this Court and won. See Brooks, 800 F.3d at 1305 (“Brooks has [] sufficiently

alleged that Powell was deliberately indifferent to the substantial risk of serious

harm Brooks endured during his hospital stay.”); id. at 1307 (“Any reasonable

officer should have known that [Deputy Powell’s alleged] conduct was at war with

the command of the Eighth Amendment. Although qualified immunity is a

muscular doctrine, it cannot save Powell here.” (quotation omitted)).

      On remand, Deputy Powell filed an answer to Mr. Brooks’s amended

complaint. For the first time—and after more than three years of litigation—

Deputy Powell raised the affirmative defense that Mr. Brooks had failed to meet

the exhaustion requirement of the PLRA. See 42 U.S.C. § 1997e(a) (“No action

shall be brought with respect to prison conditions under section 1983 . . . by a

prisoner . . . until such administrative remedies as are available are exhausted.”).

Deputy Powell then filed a third Rule 12 motion—a motion for judgment on the

pleadings under Rule 12(c)—arguing that Mr. Brooks’s suit should be dismissed

“as [he] failed to exhaust his administrative remedies.”

      Mr. Brooks argued the Rule 12(c) motion should be denied on two separate

grounds. First, Mr. Brooks said Deputy Powell was barred “from raising

exhaustion at this stage” because he failed “to raise this defense in his earlier


                                           4
              Case: 16-16853     Date Filed: 08/25/2017    Page: 5 of 12


motions under Rule 12.” In the alternative, he said the defense failed on the merits

because Deputy Powell “cannot meet his burden of establishing that administrative

remedies were ‘available.’” See Ross v. Blake, 578 U.S. ___, 136 S. Ct. 1850,

1858 (2016) (“[T]he exhaustion requirement hinges on the ‘availability’ of

administrative remedies: An inmate, that is, must exhaust available remedies, but

need not exhaust unavailable ones.” (alteration adopted)).

      The District Court rejected both arguments. First, the court found that

administrative remedies were available to Mr. Brooks and he failed to exhaust

them. After finding Mr. Brooks failed to exhaust available administrative

remedies, the District Court then turned to the question of whether Deputy Powell

“waived the failure to exhaust defense” by failing to raise it in his first Rule 12

motion. Calling it “an extremely close question,” the District Court found

“exhaustion is most similar to subject matter jurisdiction,” which cannot be

waived. Relying on this analogy, the court held that “a defendant does not waive

the exhaustion defense by failing to raise it in the first responsive pleading.”

Having found (1) that Mr. Brooks failed to exhaust administrative remedies, and

(2) that the defense had not been waived, the District Court granted Deputy

Powell’s Rule 12(c) motion and dismissed Mr. Brooks’s case for failure to exhaust.

This is Mr. Brooks’s appeal.




                                           5
                Case: 16-16853       Date Filed: 08/25/2017       Page: 6 of 12


                                     II. DISCUSSION

       The PLRA requires prisoners to exhaust available administrative remedies

before filing a lawsuit. See 42 U.S.C. § 1997e(a). However, the exhaustion

requirement “is an affirmative defense,” not a pleading requirement. See Jones v.

Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 921 (2007). The issue presented in this

case is whether a prison official forfeits the exhaustion defense by failing to raise it

in his first motion to dismiss under Rule 12. Because this is a question of law, our

review is de novo. See United States v. Garrett, 3 F.3d 390, 390 (11th Cir. 1993)

(per curiam); see also Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005)

(“This court reviews de novo a district court’s interpretation and application of 42

U.S.C. § 1997e(a)’s exhaustion requirement.”). We conclude that under Federal

Rule of Civil Procedure 12(g)(2), a defendant must raise the exhaustion defense in

his first Rule 12 motion, otherwise the defense is forfeited and cannot be raised in

a later motion under Rule 12. 2 Because we hold that Rule 12(g)(2) bars Deputy

Powell’s untimely assertion of the exhaustion defense, we need not and do not



       2
          While the District Court used the term “waive” instead of “forfeit,” and the two are
often used interchangeably, they are not actually the same. See United States v. Olano, 507 U.S.
725, 733, 113 S. Ct. 1770, 1777 (1993) (“Waiver is different from forfeiture.”); Freytag v.
Comm’r, 501 U.S. 868, 894 n.2, 111 S. Ct. 2631, 2647 n.2 (1991) (Scalia, J., concurring). As the
Supreme Court has explained, waiver is the “intentional relinquishment or abandonment of a
known right,” whereas forfeiture is the “failure to make the timely assertion of a right.” Olano,
507 U.S. at 733, 113 S. Ct. at 1777 (quotation omitted). In this context the proper term is
forfeiture, as it does not matter for purposes of Rule 12(g)(2) whether the defendant’s failure to
timely raise the exhaustion defense was intentional or inadvertent.

                                                6
               Case: 16-16853       Date Filed: 08/25/2017       Page: 7 of 12


address whether the District Court erred in its determination on the merits of the

defense.

A. RULE 12(g)(2)

       In this circuit, the exhaustion defense should be raised in a motion to dismiss

under Rule 12(b). See Bryant v. Rich, 530 F.3d 1368, 1374–75 (11th Cir. 2008).3

The fact that “motions to dismiss for failure to exhaust are not expressly mentioned

in Rule 12(b) is not unusual or problematic.” Id. at 1375. The “normal pleading

rules” apply. Jones, 549 U.S. at 214, 127 S. Ct. at 920; see also Bryant, 530 F.3d

at 1376 (explaining that, as an unenumerated Rule 12(b) motion, the exhaustion

defense “is subject to the rules and practices applicable to the most analogous Rule

12(b) motion” (quotation omitted)).

       One of Rule 12’s many pleading rules is 12(g)(2). It limits the defenses that

can be raised for the first time in a second or successive motion to dismiss under

Rule 12. Specifically, the rule says: “Except as provided in Rule 12(h)(2) or (3), a

party that makes a motion under this rule must not make another motion under this

rule raising a defense or objection that was available to the party but omitted from

its earlier motion.” Fed. R. Civ. P. 12(g)(2). In other words, unless one of the

specified exceptions applies, a party cannot raise a defense in a second Rule 12

motion that it failed to raise in its first Rule 12 motion. See Am. Ass’n of
       3
         If raised in a motion for summary judgment, the defense must be treated as a motion to
dismiss under Rule 12. Bryant, 530 F.3d at 1374–75.

                                               7
              Case: 16-16853     Date Filed: 08/25/2017   Page: 8 of 12


Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1106 (9th Cir. 2000) (“A

fundamental tenet of the Federal Rules of Civil Procedure is that certain defenses

under Fed. R. Civ. P. 12 must be raised at the first available opportunity or, if they

are not, they are forever waived.”). “The policy behind Rule 12(g) is to prevent

piecemeal litigation in which a defendant moves to dismiss on one ground, loses,

then files a second motion on another ground.” Ennenga v. Starns, 677 F.3d 766,

773 (7th Cir. 2012).

B. APPLICATION OF RULE 12(g)(2)

      Under Rule 12(g)(2), Deputy Powell was barred from raising the exhaustion

defense in his Rule 12(c) motion. Deputy Powell filed two earlier motions to

dismiss under Rule 12 and could have raised the exhaustion requirement as a

defense in either of those motions, but he didn’t. Instead, he waited until the third

time he filed a Rule 12 motion to assert the defense. No one disputes this.

Because Deputy Powell did not raise the exhaustion defense in his first motion to

dismiss under Rule 12, he “must not make another motion under this rule raising

[that] defense.” Fed. R. Civ. P. 12(g)(2).

      Rule 12(g)(2) carves out two exceptions to its consolidation requirement—

those established in Rules 12(h)(2) and (3). Neither exception applies here. Rule

12(h)(2) exempts motions to dismiss for “[f]ailure to state a claim upon which




                                             8
                Case: 16-16853        Date Filed: 08/25/2017         Page: 9 of 12


relief can be granted.” 4 Fed. R. Civ. P. 12(h)(2). This Court has made clear,

however, that the PLRA exhaustion defense is not a failure-to-state-a-claim

defense because it is independent from the merits of the plaintiff’s claim. See

Bryant, 530 F.3d at 1376 n.12 (“[W]here, as in this case, exhaustion is not

adjudicated as part of the merits, it is unlike a defense under Rule 12(b)(6) for

failure to state a claim.”). For this reason, the exhaustion defense does not fall

within the Rule 12(h)(2) exception to Rule 12(g)(2).

       Neither does the defense fall within the exception set out in Rule 12(h)(3).

That rule exempts from waiver or forfeiture motions to dismiss for lack of subject-

matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). But the Supreme Court has held

that “the PLRA exhaustion requirement is not jurisdictional.” Woodford v. Ngo,

548 U.S. 81, 101, 126 S. Ct. 2378, 2392 (2006); see also Bryant, 530 F.3d at 1374

n.10 (“The Supreme Court has confirmed that exhaustion under the PLRA is not a

jurisdictional prerequisite.”). In sum, then, because Deputy Powell failed to raise

the exhaustion defense in his first motion to dismiss—and because neither

exception to Rule 12(g)(2) applies—he has forfeited the ability to raise the defense

now, and the District Court should not have considered it.




       4
         Rule 12(h)(2) also exempts (1) the defense of failure to join a party required under Rule
19(b), and (2) objections to a party’s failure to state a legal defense. See Fed. R. Civ. P. 12(h)(2).
Those exceptions clearly do not apply.

                                                  9
              Case: 16-16853     Date Filed: 08/25/2017     Page: 10 of 12


      The District Court reasoned that “a defendant does not waive the exhaustion

defense by failing to raise it in the first responsive pleading” because “exhaustion

is most similar to subject matter jurisdiction.” This is wrong. Again, “the PLRA

exhaustion requirement is not jurisdictional.” Woodford, 548 U.S. at 101, 126 S.

Ct. at 2392 (emphasis added). It is instead a non-jurisdictional “claim-processing

rule.” See Santiago-Lugo v. Warden, 785 F.3d 467, 472 (11th Cir. 2015)

(“Examples of non-jurisdictional rules . . . include ‘claim-processing rules,’ such as

exhaustion requirements, which seek to promote the orderly progress of litigation

by requiring that the parties take certain procedural steps at certain specified

times.” (quotation omitted)). And as a non-jurisdictional claim-processing rule, the

exhaustion defense is subject to forfeiture under Rule 12(g)(2). See Union Pac. R.

Co. v. Bhd. of Locomotive Engineers & Trainmen Gen. Comm. of Adjustment,

Cent. Region, 558 U.S. 67, 81–82, 130 S. Ct. 584, 596 (2009) (“Subject-matter

jurisdiction . . . refers to a tribunal’s power to hear a case, a matter that can never

be forfeited or waived. In contrast, a claim-processing rule, even if unalterable on

a party’s [timely] application, does not reduce the adjudicatory domain of a

tribunal and is ordinarily forfeited if the party asserting the rule waits too long to

raise the point.” (quotations and citation omitted and alteration adopted) (emphasis

added)).




                                           10
             Case: 16-16853     Date Filed: 08/25/2017   Page: 11 of 12


                                III. CONCLUSION

      Because Deputy Powell’s untimely assertion of the exhaustion defense was

procedurally barred under Rule 12(g)(2), the District Court erred in dismissing Mr.

Brooks’s complaint on that ground. We reverse and remand for proceedings

consistent with this opinion.

      REVERSED AND REMANDED.




                                         11
           Case: 16-16853    Date Filed: 08/25/2017   Page: 12 of 12


WILLIAM PRYOR, Circuit Judge, dissenting:

     I respectfully dissent and would affirm the dismissal of Brooks’s complaint.




                                       12
