             Case: 18-11249     Date Filed: 02/07/2019    Page: 1 of 10


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-11249
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:17-cv-20619-CMA


ROBERTO ARIAS,

                                                           Plaintiff-Appellant,

                                       versus

MARIA PEREZ, et al.,

                                                           Defendants-Appellees.
                           ________________________

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

                                (February 7, 2019)

Before WILSON, GRANT, and HULL, Circuit Judges.

PER CURIAM:

      Roberto Arias, a state inmate in Florida, appeals the district court’s dismissal

of his § 1983 complaint for failure to exhaust administrative remedies. We affirm.
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                                            I.

      Roberto Arias is a Florida prisoner serving a 40-year sentence for aggravated

assault with a deadly weapon, aggravated battery, and witness tampering. On June

6, 2016, Arias submitted an informal grievance to the Dade Correctional Institution

“requesting to be Transfer to another institution” because his “LIFE was in

DANGER” of gang violence. Arias’s request was approved, and on June 21, he

was transferred to Desoto Correctional Center.

      Arias alleges that, a few days after arriving at Desoto, he verbally requested

protection from officer Catherine Hays—specifically, that he be placed in a “P.M.”

(protective management) facility—because he still feared gang violence. He says

that Hays told him “we don’t do that over here” and told him to speak to another

individual, officer Rios, who also did not help Arias. About a month and a half

later, on August 15, Arias suffered various injuries when he was attacked by

another inmate with a lock inside a sock.

      On August 26, Arias submitted a written request form to Hays in which he

indicated that he was “writing you to let know that I’m in the enfermery because

[an unknown inmate] hit me with a lock inside a sox in my head. . . . I [] told you

in my arrived here on my classif. interview that (please) I do request to you to be




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placed in dorm-M as some kind of protection for me there . . . .” 1 Arias wrote that

he “also wrote a request to Sgt: Quezada and she (denied)” his request. He

concluded: “Please I need you send me the name of the inmate who hit me in my

head in (B-Dorm) on: 08/15/2016; and also requesting to you to put him on my

records inmate’s file in especial review with me.” Hays wrote “It has been done”

or “This has already been done” on the request form.

       Also on August 26 (or possibly September 1), while in the infirmary, Arias

saw members of the Institutional Classification Team (including the assistant

warden) in person and asked them for “full Protection.” But “they only offer him

(A.I.P) Administrative Institutional Protection; and they told him that they will

Transfer him to another regular institution.” So on August 31, Arias submitted a

written grievance to the assistant warden “requesting to be transfer to (P.M.-unit)

under full protection to ‘PREVENT’ more violence against me by another inmate

in the future.” He stated that it was the Institutional Classification Team’s job to

“verify inmate records before making a wrongful decision especially when

inmate’s claim that my life is in danger” and that “[b]ased on my above stated facts

. . . I ask that my (P.M.-unit) status be correctly evaluated by (I.C.T.) DeSoto; in




1
 The request form contains a box for inmates to check if the request is an informal grievance,
but Arias did not check that box.


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accordance to the factors to be consider and my request to be placed on (P.M.-unit)

be approved and I can saved my life!”

      On September 5, Arias sent another written grievance, this time to the

Secretary of the Florida Department of Corrections. He labeled it as a “Request for

P.M-unit-facility” and the text indicated he was “requesting that my (P.M-unit)

status be (review) and to be replace in the (P.M.-unit facility).” Arias argued that

the Institutional Classification Team’s recommendation that he simply be

transferred to another institution was “an ‘Inappropriate’ solution for my case; and

I believe this recommendation is Cruel and Negligent Act where incompetent

staff’s wrong decisions make inmates get (hurt & killed) in prison where they’re

putting my life in danger in only (remove) and keeping me transfered from one

institution to another.” He concluded: “I am humbly ask that my request for (P.M.-

unit facility) status be correctly evaluated by Central Office and to be placed back

on a (P.M.-unit facility) where I can saved my life!”

      An October 4 response stated that the September 5 grievance had been

“received, reviewed, and evaluated,” but that Arias had “filed this appeal

prematurely” because he was “approved for placement in a Protection

Management unit on 09/02/16” and was “now housed in the Protection

Management unit at Martin Correctional Institution.” Arias had been transferred

on September 9. Because of that, the grievance was “returned without action.” On


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appeal, Arias concedes that the new placement was correct, but argues that it “was

to late” because he was already hurt.

                                          II.

      We review a district court’s dismissal for failure to exhaust administrative

remedies under the PLRA de novo. Bingham v. Thomas, 654 F.3d 1171, 1174

(11th Cir. 2011). We review the district court’s factual findings for clear error. Id.

at 1174–75.

                                         III.

   A. PLRA Exhaustion

      The PLRA forbids suits by prisoners “with respect to prison conditions”

under any federal law, including § 1983, “until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). This requirement grants prison

authorities “time and opportunity to address complaints internally before allowing

the initiation of a federal case.” Porter v. Nussle, 534 U.S. 516, 525 (2002). It

“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.” Id. at 532. And it serves as a mandatory pre-condition to suit,

even when seeking the remedies available under the administrative scheme may be

futile or the remedies inadequate. Alexander v. Hawk, 159 F.3d 1321, 1325–26

(11th Cir. 1998).


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      Failure to exhaust “is an affirmative defense under the PLRA,” and “inmates

are not required to specially plead or demonstrate exhaustion in their complaints.”

Jones v. Bock, 549 U.S. 199, 216 (2007). Deciding a motion to dismiss for failure

to exhaust proceeds in two steps: first, looking to the defendant’s motion and the

plaintiff’s response, the court assesses whether dismissal is proper even under the

plaintiff’s version of the facts; and second, if dismissal is inappropriate under the

plaintiff’s version of the facts, the court makes “specific findings in order to

resolve the disputed factual issues related to exhaustion.” Turner v. Burnside, 541

F.3d 1077, 1082 (11th Cir. 2008). The burden is on the defendant to show a failure

to exhaust. Id. A prisoner must exhaust each claim that he seeks to present in

court. See Jones, 549 U.S. at 219–20 (“All agree that no unexhausted claim may

be considered.”).

   B. Florida’s Administrative Scheme

      State law “determines what steps are required to exhaust.” Dimanche v.

Brown, 783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218

(noting that “it is the prison’s requirements, and not the PLRA, that define the

boundaries of proper exhaustion”). The Florida Administrative Code sets forth the

steps prisoners must take to exhaust their claims. First, a prisoner must submit an

informal grievance within 20 days of the incident. Fla. Admin. Code §§ 33-




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103.002(12), 33-103.005(1), 33-103.011(1)(a). 2 The Florida Department of

Corrections has 15 days to respond. Id. § 33-103.011(3)(a). Second, if the

informal grievance is denied, the prisoner must appeal within 15 days of the denial

by filing a formal grievance at the institutional level and attaching the contested

informal grievance. Id. §§ 33-103.006(1)(a) and (2)(g), 33-103.011(1)(b)(1).

Third, if the formal grievance is also denied, the prisoner must appeal within 15

days of the denial by filing a grievance appeal with the Secretary of the Florida

Department of Corrections and attaching the contested grievances. Id. §§ 33-

103.007(1) and (4), 33-103.011(c). If an appeal is filed late or is otherwise out of

compliance, it is returned to the prisoner without further processing, and the

prisoner must refile a corrected version. Id. §§ 33-103.014(1), 33-103.011, 33-

103.014(2).

    C. Arias’s Grievances

       On appeal, Arias identifies four complaints regarding his placement in the

Florida prison system that could plausibly count as grievances: 1) his verbal

request to Hays a few days after arriving at Desoto on June 21, 2016; 2) his written

request to Hays from the infirmary (after he had been attacked) on August 26; 3) a

written grievance submitted to the assistant warden on August 31; and 4) a written
2
  For certain emergency and other grievances, a prisoner may skip step one and instead file a
formal grievance with the warden’s office or a direct grievance with the Florida Secretary of the
Department of Corrections. See Fla. Admin. Code §§ 33-103.005(1), 33-103.002(5), 33-
103.006(3). Different time limits apply in those circumstances. See id. § 33-103.011(1)(b).


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grievance submitted to the Secretary of the Florida Department of Corrections on

September 5. The district court rejected the first complaint because, contrary to the

Florida Administrative Code requirement that informal grievances be written, it

was verbal, and because “the alleged failure to respond to Plaintiff’s request for

protection is the source of later grievances and so cannot also be considered a

grievance in and of itself.” It rejected the second complaint because it was merely

“a request for protection” and “not an informal grievance directed at a third-party

complaining of [Hays’s] failure to respond to a request for protection,” and

because Arias “did not check the box indicating the request was an informal

grievance” as the Florida Administrative Code requires. See Woodford v. Ngo, 548

U.S. 81, 83–84 (2006).

       The district court construed Arias’s third complaint as a formal grievance—

that is, step two in the process.3 Arias claims that the Institutional Classification

Team verbally informed him on September 1—the day after his third complaint—

that they could transfer him to another facility “without placing him in a Protective

Management Unit.” So he filed his fourth complaint with the Florida Secretary of

the Department of Corrections on September 5, and the district court accepted


3
  Arias’s grievance arguably qualified as an emergency one—which would allow him to skip the
first step, filing an informal grievance—because emergency grievances include “those matters
which, if disposed of according to the regular time frames, would subject the inmate to
substantial risk of personal injury or cause other serious and irreparable harm to the inmate.”
Fla. Admin. Code § 33-103.002(4).

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Arias’s characterization of that fourth filing as an appeal from the third one. But

the district court found that the appeal did not satisfy the PLRA’s exhaustion

requirement because it was “returned without action” and the response indicated

that Arias “did not comply with the procedures of [the Florida Administrative

Code] because he did not wait the time allotted to the [Florida Department of

Corrections] to provide him with a response to the formal grievance before filing

an appeal.” In fact, Arias had been approved for placement in a protective

management unit on September 2, and he was actually transferred on September 9.

The district court thus concluded that Arias “did not exhaust his administrative

remedies because his grievance was never denied.”

      We agree that Arias failed to exhaust his failure-to-protect claim against

Hays. A prisoner must exhaust each claim that he seeks to present in court. See

Jones, 549 U.S. at 219–20 (“All agree that no unexhausted claim may be

considered.”) The claim that Arias suffered an Eighth Amendment violation when

Hays failed to protect him is distinct from the claim that he should be transferred to

a protective management unit. Arias’s filings addressed the latter—indeed, he

ultimately received precisely the relief that he requested—but not the former. It

would subvert the PLRA’s purpose of granting prison authorities “time and

opportunity to address complaints internally before allowing the initiation of a




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federal case,” Porter, 534 U.S. at 525, if a prison could grant all the relief a

prisoner asked for and yet still find itself subject to suit.

       Our decision in Parzyck v. Prison Health Services, Inc., 627 F.3d 1215 (11th

Cir. 2010), is not to the contrary. There, we explained that “[n]othing in the

FDOC’s grievance procedures requires inmates to file new grievances addressing

every subsequent act by a prison official that contributes to the continuation of a

problem already raised in an earlier grievance.” Id. at 1219. Here, Arias’s injuries

were not simply “the continuation of a problem already raised”; they were a

separate, even if related, problem. None of Arias’s grievances pursued a claim

against Hays for failing to protect him, as distinct from requesting protection itself.

                                     *       *      *

       Because Arias failed to exhaust his Eighth Amendment claim against Hays

under the procedures established for Florida prisoners, the district court’s decision

is AFFIRMED.




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