             Case: 18-13248   Date Filed: 06/25/2020    Page: 1 of 11



                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-13248
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 5:16-cv-00450-TES-MSH



ROBERT WRIGHT,

                                                Plaintiff - Appellant,


                                    versus


GEORGIA DEPARTMENT OF CORRECTIONS,
CYNTHIA NELSON,
Regional Director, Georgia Department of Corrections,
DR. SACHDIVA,
Dooly State Prison,
DOOLY SP WARDEN,
WARE SP WARDEN, et al.,

                                                Defendants - Appellees.

                         ________________________

                               No. 19-10273
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 5:16-cv-00450-TES-MSH
              Case: 18-13248     Date Filed: 06/25/2020     Page: 2 of 11




ROBERT WRIGHT,

                                                     Plaintiff - Appellant,


                                       versus


GEORGIA DEPARTMENT OF CORRECTIONS, et al.,

                                                     Defendants,



DR. UTLEY,
Dentist, Dooly State Prison,

                                                     Defendant - Appellee.

                           ________________________

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

                                   (June 25, 2020)

Before JILL PRYOR, GRANT and LUCK, Circuit Judges.

PER CURIAM:

      Robert Wright, a Georgia state prisoner, appeals the district court’s dismissal

of his 42 U.S.C. § 1983 civil rights action for failure to exhaust administrative

remedies, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.

§ 1997e(a). Wright’s complaint alleged that while he was a prisoner at Dooly State


                                          2
                     Case: 18-13248          Date Filed: 06/25/2020     Page: 3 of 11



Prison (“DSP”), Georgia Department of Corrections (“GDC”) officials failed to

provide adequate medical treatment for injuries he suffered when he was attacked

in his cell by a fellow prisoner. The district court dismissed this claim for failure

to exhaust administrative remedies because Wright filed this action without

waiting for the GDC Commissioner to respond to Wright’s appeal of the denial of

his grievance about this incident, as required under GDC’s Standard Operating

Procedures regarding grievances. After careful review, we affirm the district

court’s dismissal.

                                        I.      BACKGROUND

          Wright alleged that in October 2014, a fellow prisoner at DSP attacked

him, “blindsid[ing him] with a blow to [his] face.” Doc. 1 at 10.1 Wright

informed prison officials, who confirmed the attack, photographed his injuries,

and then, without giving him any treatment, placed him in “‘the hole’ . . . where

prisoners are sent to be punished.” Id. at 10-11. The next day, defendants

Westley Harper and Cornelius Hollis, prison guards, transported him to a regional

trauma center. Wright’s x-rays showed that he had a fractured jaw, which,

according to doctors there, needed “immediate treatment.” Id. at 11. But Harper

and Hollis instead transported Wright back to DSP, refusing him treatment



          1
              Citations in the form “Doc. #” refer to the numbered entries on the district court’s
docket.
                                                      3
                Case: 18-13248      Date Filed: 06/25/2020    Page: 4 of 11



because “Atlanta would not pay for his care.” Id. He received no treatment until

nearly a month after his injury, when he was transferred to August State Medical

Prison (“ASMP”), where he had surgery to remove several teeth and implant a

metal plate in his jaw.

      Two months after his surgery, Wright was transported back to DSP, where

he received no additional treatment, despite having been referred to the dental

department at DSP by ASMP’s doctor. Wright then saw defendant Dr. Sachdeva,

who put him on some medication and referred him to the prison dentist,

defendant Robert Utley, for further treatment, including a custom mouthguard

and medication to relax the nerves in his jaw. A couple of months later, at his

annual physical, Dr. Sachdeva again referred Wright for dental treatment.

Despite the referrals, he received no additional treatment until more than three

years after the initial surgery, when he was returned to ASMP to undergo surgery

to remove two teeth.

      On August 24, 2016, Wright filed a grievance concerning his lack of

medical or dental treatment; the warden denied the grievance one month later.

Wright timely appealed the denial on September 27, 2016.2 Before the GDC

Commissioner resolved the appeal, Wright filed this § 1983 action in the Middle

District of Georgia on October 17, 2016, alleging that by withholding medical


      2
          The GDC Commissioner denied the appeal in April 2017.
                                             4
              Case: 18-13248     Date Filed: 06/25/2020   Page: 5 of 11



treatment, the defendants had violated his constitutional rights. The district court

reviewed his complaint—under 28 U.S.C § 1915A(a) and 28 U.S.C. § 1915(e)—

and allowed his claims for deliberate indifference to his serious medical needs

against Harper, Hollis, and Utley to proceed. Harper and Hollis moved to dismiss

the claims against them, arguing that Wright failed to exhaust his administrative

remedies. The district court agreed, adopting the magistrate judge’s

recommendation that the claims should be dismissed because Wright did not wait

the requisite time for the appeal of his grievance to be resolved before filing the

lawsuit. Utley then filed a motion for summary judgment on the same ground.

Construing the motion as a motion to dismiss, the district court again concluded

that Wright failed to exhaust his administrative remedies and dismissed the

claims. This appeal followed.

                        II.    STANDARDS OF REVIEW

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

PLRA’s exhaustion requirement. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th

Cir. 2005). We review the factual findings underlying an exhaustion determination

for clear error. Bryant v. Rich, 530 F.3d 1368, 1377 (11th Cir. 2008).

                                III.   DISCUSSION

      The PLRA requires prisoners who wish to challenge an aspect of prison life

to exhaust all available administrative remedies before resorting to the courts.


                                          5
              Case: 18-13248    Date Filed: 06/25/2020   Page: 6 of 11



Porter v. Nussle, 534 U.S. 516, 532 (2002); see 42 U.S.C. § 1997e(a). Exhaustion

is mandatory under the PLRA, and unexhausted claims cannot be brought in court.

Jones v. Bock, 549 U.S. 199, 211 (2007). The failure to exhaust administrative

remedies requires dismissal of the action. Chandler v. Crosby, 379 F.3d 1278,

1286 (11th Cir. 2004).

      To satisfy the exhaustion requirement, a prisoner must complete the

administrative process under the applicable grievance procedures established by

the prison. Jones, 549 U.S. at 218; Johnson, 418 F.3d at 1156. In other words,

“[t]he PLRA requires proper exhaustion that complies with the critical procedural

rules governing the grievance process.” Dimanche v. Brown, 783 F.3d 1204, 1210

(11th Cir. 2015) (internal quotation marks omitted).

      An exception to the general rule requiring exhaustion is that a remedy must

be “available” before a prisoner is required to exhaust it. Turner v. Burnside, 541

F.3d 1077, 1082, 1084 (11th Cir. 2008). The Supreme Court has identified three

kinds of circumstances in which an administrative remedy is not available. Ross v.

Blake, 136 S. Ct. 1850, 1859 (2016). First, “an administrative procedure is

unavailable when (despite what regulations or guidance materials may promise) it

operates as a simple dead end—with officers unable or consistently unwilling to

provide any relief to aggrieved inmates.” Id. Next, “an administrative scheme

might be so opaque that it becomes, practically speaking, incapable of use.” Id.


                                         6
                Case: 18-13248        Date Filed: 06/25/2020       Page: 7 of 11



And finally, a remedy may be unavailable “when prison administrators thwart

prisoners from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” Id. at 1860.

       In response to a prisoner lawsuit, defendants may file a motion to dismiss

raising as a defense the prisoner’s failure to exhaust administrative remedies.

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015). We

have established a two-step process for deciding motions to dismiss for failure to

exhaust under the PLRA. Id. District courts first should compare the factual

allegations in the motion to dismiss and those in the prisoner’s response and, where

there is a conflict, accept the prisoner’s view of the facts as true. Id. “The court

should dismiss if the facts as stated by the prisoner show a failure to exhaust.” Id.

Second, if dismissal is not warranted at the first stage, the court should make

specific findings to resolve disputes of fact, “and should dismiss if, based on those

findings, defendants have shown a failure to exhaust.” Id.

       DSP follows the GDC’s Standard Operating Procedures (“SOPs”) regarding

grievances. The SOPs mandate that a prisoner follow a two-step process to

exhaust his remedies: (1) file an original grievance, and (2) file an appeal to the

Central Office.3 Generally, a prisoner “may file a grievance about any condition,


       3
          Wright contends that the district court erred because it did not resolve whether the 2012
grievance policy or the 2015 grievance policy applied in this case. But he failed to demonstrate
that there was a material difference between the grievance policies such that the application of
                                                 7
                Case: 18-13248       Date Filed: 06/25/2020       Page: 8 of 11



policy, procedure, or action or lack thereof that affects the offender personally.”

Doc. 25-2 at 14. The prisoner must file the grievance within 10 days of the event

giving rise to it; the warden then has 40 days to respond to the grievance. After the

warden issues a decision or the time to issue a decision expires, the prisoner may

file an appeal. The GDC Commissioner then has 100 days to respond to the

appeal.

       The district court did not err in dismissing Wright’s complaint for failure to

exhaust administrative remedies. The facts Wright alleged, viewed alongside

uncontradicted evidence offered by the defendants, established that he did not

exhaust his administrative remedies because he failed to complete the grievance

process before he filed this action. 4 The GDC Commissioner had 100 days from

Wright’s appeal of his grievance, filed September 27, 2016—until December 30,




the 2012 grievance policy would have meant that he exhausted his remedies. Accordingly, the
district court did not need to resolve this dispute.
       4
          Wright argues that he had no meaningful opportunity to prove his claim because the
magistrate judge’s order did not specifically inform him of his right to pursue discovery on the
exhaustion issue and the magistrate judge and district court thwarted his efforts to obtain
discovery related to other issues, suggesting that seeking discovery as to the exhaustion issue
would have been pointless. This argument is meritless because in a notification of a pre-answer
motion dismiss, the magistrate judge specifically informed Wright that he had a chance to
develop the record by providing the court with affidavits or other documents showing that he had
exhausted available administrative remedies. Further, although Wright sought discovery from
the trauma center and his medical and records to respond to the motion to dismiss, he never
requested that the district court allow him discovery related to exhaustion. See United Techs.
Corp. v. Mazer, 556 F.3d 1260, 1281 (11th Cir. 2009). Having never brought his need for
discovery on this issue to the attention of the district court, Wright has waived it. Access Now,
Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
                                                8
                Case: 18-13248    Date Filed: 06/25/2020    Page: 9 of 11



2016—to issue a decision. Wright filed this action on October 17, 2016.

Because he did not wait until the GDC Commissioner responded to his appeal or

the 100 days elapsed, he failed to fully exhaust his administrative remedies before

filing his complaint. See Harris v. Garner, 216 F.3d 970, 981 (11th Cir. 2000)

(concluding that facts as they exist when a complaint is filed should be considered

when determining whether a prisoner has satisfied the PLRA’s exhaustion

requirement).

      Citing Turner, 541 F.3d at 1082, Wright argues that the district court

impermissibly shifted to him the burden of proof as to the availability of

administrative remedies. Although he raised the availability issue before the

district court, he makes the burden of proof argument for the first time on appeal

and thus arguably waived it. “This Court has repeatedly held that an issue not

raised in the district court and raised for the first time in an appeal will not be

considered.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th

Cir. 2004). But we need not decide whether the argument has been waived

because it fails nonetheless.

      Wright is correct that the defendants must first prove that a remedy was

available to him before they can prove failure to exhaust the remedy. But he

confuses the issue of whether a remedy is generally available (i.e., a grievance

procedure exists) with whether a remedy was available to him practically


                                           9
             Case: 18-13248       Date Filed: 06/25/2020   Page: 10 of 11



speaking. Nothing in Turner dictates that defendants initially establish this latter

meaning of availability in establishing a lack of exhaustion. Instead, Turner

mandates that “defendants bear the burden of proving that the plaintiff has failed

to exhaust his available administrative remedies,” which includes showing that a

remedy is generally available. 541 F.3d at 1082 (emphasis added). Indeed, it is

difficult to conceive of how a defendant could show that a plaintiff failed to

exhaust his remedies without showing that there was a remedy to be exhausted.

In response, the plaintiff may defeat the failure-to-exhaust argument by showing

that the general remedy was effectively unavailable to him. See, e.g., Albino v.

Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (“Once the defendant has carried [the]

burden [of proving a generally available administrative remedy], . . . the burden

shifts to the prisoner to come forward with evidence showing that there is

something in his particular case that made the existing and generally available

administrative remedies effectively unavailable to him.”). Wright argued that the

grievance process was an unavailable dead end because the wardens had never

approved an inmate grievance involving medical treatment; however, he provided

no factual support for this assertion. Accordingly, the district court did not err in

concluding that the defendants satisfied their burden to show the failure to

exhaust an available remedy and Wright failed to show that the remedy was

effectively unavailable to him.


                                           10
            Case: 18-13248     Date Filed: 06/25/2020   Page: 11 of 11



                                CONCLUSION

     For the above reasons, we affirm the district court’s dismissal for failure to

exhaust administrative remedies.

     AFFIRM.




                                        11
