           Case: 13-14028   Date Filed: 06/29/2015   Page: 1 of 14


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-14028
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:12-cv-00235-CDL-MSH

WILLIAM R. JACKSON, JR.,


                                                            Plaintiff-Appellant,


                                  versus


STATE OF GEORGIA, et al.,


                                                                     Defendants,


WARDEN, RUTLEDGE STATE PRISON,
DEXTER MOSES,
Lieutenant, Rutledge State Prison,
MELVIN NORWOOD,
Lieutenant, Rutledge State Prison,
RAMONA MOTT,
Counselor, Rutledge State Prison,
KING,
Counselor, et al.,


                                                         Defendants-Appellees.
                  Case: 13-14028       Date Filed: 06/29/2015     Page: 2 of 14


                                 ________________________

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

                                         (June 29, 2015)

Before MARTIN, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:

         William Jackson appeals the district court’s dismissal of his pro se1 42

U.S.C. § 1983 civil rights complaint against multiple prison officials at Rutledge

State Prison (Rutledge) for failure to exhaust administrative remedies.2 After a

thorough review, we vacate and remand for further proceedings.

                                                 I.

         The present appeal stems from a dispute between Jackson and his cellmate,

W. T. Strickland, starting in August 2012. In his complaint, Jackson described that

Strickland would frequently wake him up in the middle of the night to complain

that Jackson was breathing too loud. According to Jackson, correctional officers

failed to respond to his concerns about Strickland’s behavior and the situation

escalated. On August 21, 2012, Strickland pushed Jackson after an argument.

Jackson subsequently complained to Officers Alfred Parhal and Lenard Phillips, as


1
    This court appointed counsel for Jackson’s appeal.
2
 Although incarcerated at the time he filed his notice of appeal, court records show that Jackson
was paroled in September 2013.
                                                  2
                Case: 13-14028   Date Filed: 06/29/2015     Page: 3 of 14


well as Lieutenant Dexter Moses, but prison officials took no action. Jackson then

asked Officer Terry Young for a grievance form. When Jackson told Young why

he wanted the grievance form, Young stated that he would talk to Strickland. On

September 1, 2012, Strickland attacked Jackson and knocked him unconscious in

his prison cell. Jackson was transported to a hospital and required surgery on his

wrist.

         On September 9, 2012, Jackson filed a motion for appointment of counsel in

the district court, detailing that he “need[ed] help in bringing forward in filing a

serious case” because his rights and medical needs were being ignored. Attached

to his motion, Jackson included a memorandum that detailed his issues with

Strickland, but did not name any individual defendants or claims. He also attached

a copy of his prison account statement. The district court opened a new case

number and referred the matter to a magistrate judge for initial screening under 28

U.S.C. § 1915A. After receiving a consent form from the court related to the

exercise of jurisdiction by a magistrate judge, pursuant to 28 U.S.C. § 636(c),

Jackson filed a second motion for appointment of counsel on September 18,

expressing surprise that his first motion had resulted in the filing of his case: “I

didn’t know y’all was going to file for me[.]” That same day, he filed a signed

copy of the consent form.




                                           3
              Case: 13-14028    Date Filed: 06/29/2015    Page: 4 of 14


      On September 27, 2012, the magistrate judge directed Jackson to present his

claims on a standard 42 U.S.C. § 1983 complaint form. Jackson then moved to file

an “[a]mended 42 U.S.C. § 1983 complaint.” He also submitted a standard § 1983

questionnaire signed on October 14, 2012, detailing his claims against multiple

defendants, including Warden Anthony Washington, Officer Parhal, Officer

Phillips, Officer Young, Lieutenant Moses, Lieutenant Norwood, Counselor

Ramona Mott, Counselor King, and “Counselor Mr. P” (collectively “the

defendants”). Specifically, Jackson alleged that the defendants failed to protect

him from his cellmate, opened his legal mail, and did not get him adequate

treatment for his injured wrist. Jackson explained that he had filed an informal

grievance on September 5, 2012, but prison officials “would not answer

grievances, nor give formal grievances as of yet . . . .” He further noted that he had

filed an emergency grievance on September 8, 2012.

      The magistrate judge issued a report and recommendation (R&R),

recommending the dismissal of Jackson’s claims against most of the defendants

except the nine named defendants in this instant appeal. Over Jackson’s

objections, the district court adopted the R&R. The remaining defendants then

moved to dismiss Jackson’s amended complaint for failure to exhaust

administrative remedies and for failure to state a claim. The defendants noted that




                                          4
              Case: 13-14028    Date Filed: 06/29/2015    Page: 5 of 14


Jackson had not utilized the Georgia Department of Corrections’ (GDOC)

Standard Operating Procedures (SOP) regarding the grievance process in Rutledge.

      In July 2013, the magistrate judge issued a second R&R, recommending the

dismissal of Jackson’s “amended” complaint for failure to exhaust administrative

remedies. Crediting Jackson’s version of the facts as true, the magistrate judge

noted that Jackson had “created a question of fact regarding the availability of the

administrative remedies.” But the record evidence showed that Jackson had failed

to follow the grievance procedures in effect at Rutledge to fully exhaust his

administrative remedies. Notably, the magistrate judge highlighted that there was

no indication that Jackson ever filed a grievance concerning the attack by his

cellmate or the failure of officers to protect him from the attack. Moreover,

Jackson commenced the instant action by filing a motion for appointment of

counsel on September 9, 2012, a mere four days after he allegedly filed his first

informal grievance regarding the September 1 attack. Overruling Jackson’s

objections, the district court adopted the second R&R and dismissed his suit

without prejudice. This is Jackson’s appeal.

                                         II.

      We review de novo the dismissal of a § 1983 action for failure to properly

exhaust administrative remedies. See Johnson v. Meadows, 418 F.3d 1152, 1155




                                          5
              Case: 13-14028      Date Filed: 06/29/2015     Page: 6 of 14


(11th Cir. 2005). “We review the district court’s findings of fact for clear error.”

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

      The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust

all available administrative remedies before filing suit in federal court. See 42

U.S.C. § 1997e(a). Administrative remedies, however, need only be exhausted

when they are made available to inmates “and to be available a remedy must be

capable of use for the accomplishment of [its] purpose.” Turner v. Burnside, 541

F.3d 1077, 1084 (11th Cir. 2008) (internal quotation omitted).

      There is a two-step process for determining whether an inmate has exhausted

his administrative remedies:

      First, the court looks to the factual allegations in the defendant’s
      motion to dismiss and those in the plaintiff’s response, and if they
      conflict, takes the plaintiff’s version of the facts as true. If, in that
      light, the defendant is entitled to have the complaint dismissed for
      failure to exhaust administrative remedies, it must be dismissed.

Id. at 1082. If the complaint is not dismissed at the first stage, the court moves on

to the second step, which requires it “to make specific findings in order to resolve

the disputed factual issues related to exhaustion.” Id. “The defendants bear the

burden of proving that the plaintiff has failed to exhaust his available

administrative remedies.” Id.

      Within the Georgia Department of Corrections, the administrative grievance

procedure is governed by a three-step process. See Standard Operating Procedure


                                            6
              Case: 13-14028    Date Filed: 06/29/2015    Page: 7 of 14


(SOP) IIB05-0001 § VI(B). As relevant to this appeal, once an inmate has

unsuccessfully attempted to resolve a complaint through discussion with the staff

involved, the administrative remedies procedure commences with the filing of an

informal grievance. Id. § VI(B)(1). The inmate has ten calendar days from “the

date the offender knew, or should have known, of the facts giving rise to the

grievance” to file the informal grievance. Id. § VI(B)(5). The timeliness

requirements of the administrative process may be waived upon a showing of good

cause. See id. § VI(C)(2) & (D). The SOP requires that an inmate be given a

response to his informal grievance within ten calendar days of its receipt by the

inmate’s counselor; the informal grievance procedure must be completed before

the inmate will be issued a formal grievance. Id. § VI(B)(12)-(13).

                                         III.

      As a starting point, we must decide the date the instant action commenced.

See Goebert v. Lee Cnty., 510 F.3d 1312, 1324 (11th Cir. 2007) (“The time the

[PLRA] sets for determining whether exhaustion of administrative remedies has

occurred is when the legal action is brought, because it is then that the exhaustion

bar is to be applied”). The magistrate judge concluded, without citation to legal

authority, that Jackson commenced the instant action on September 9 when he filed

his motion for appointment of counsel. As such, the magistrate judge noted that it

was “an impossibility, then, that [Jackson] would have had time to exhaust the


                                          7
              Case: 13-14028     Date Filed: 06/29/2015    Page: 8 of 14


grievance procedure prior to filing his complaint as he is required to by the

PLRA.” Jackson counters that he did not commence the instant action until he

signed his complaint on October 14. See Jeffries v. United States, 748 F.3d 1310,

1314 (11th Cir.), cert. denied, 135 S.Ct. 241 (Oct. 6, 2014) (“Under the prison

mailbox rule, a pro se prisoner’s court filing is deemed filed on the date it is

delivered to prison authorities for mailing”) (citation omitted).

      The defendants fail to cite to any case law that holds that the filing for a

request for counsel triggers the commencement of a civil action under the PLRA.

We have repeatedly explained that plaintiffs do not have a right to appointed

counsel in civil cases. See, e.g., Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993)

(“Appointment of counsel in civil cases is . . . a privilege ‘justified only by

exceptional circumstances,’ such as the presence of ‘facts and legal issues [which]

are so novel or complex as to require the assistance of a trained practitioner’”)

(citation omitted). But cf. McFarland v. Scott, 512 U.S. 849, 856-57 (1994)

(explaining that a “post-conviction proceeding” under 21 U.S.C. § 848(q)(4) is

commenced by the filing of a death-row prisoner’s motion requesting appointment

of counsel as there is a statutory right to counsel for indigent capital defendants in

federal habeas corpus proceedings).

      We agree with the defendants’ contention that district courts have an

obligation to look behind the label of a pro se motion and, if possible, interpret it


                                           8
              Case: 13-14028     Date Filed: 06/29/2015    Page: 9 of 14


as any request for relief over which the court may have jurisdiction. United States

v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). But we are not convinced that

Jackson intended for his September 9 motion for counsel to initiate his § 1983 suit.

Jackson articulated that he was seeking the assistance of counsel to help him with a

“serious case,” and he was clearly surprised that the district court had started the

action on his behalf. Jackson also did not name any defendants or identify any

specific claims in his initial request for counsel. He subsequently consented to

have a magistrate judge conduct the proceedings on September 18. Moreover, it

was not until the court advised him that he needed to utilize the proper forms to file

his suit that Jackson filed the standard § 1983 questionnaire listing out his specific

claims against named defendants. As such, we conclude that the earliest date that

Jackson can be said to have initiated his suit was on September 18, the date he

submitted his signed consent form, which was more than ten days after he filed his

informal grievance on September 5.

                                         IV.

      Next, we must determine whether, if his factual allegations are taken as true,

Jackson failed to exhaust his administrative remedies at the time he initiated this

action. Accepting Jackson’s contention as true, he filed an informal grievance on

September 5, 2012, and an emergency grievance on September 8, 2012. But




                                           9
             Case: 13-14028     Date Filed: 06/29/2015   Page: 10 of 14


Rutledge prison officials failed to respond to his grievances and further refused to

provide him with a formal grievance form.

      In Turner, we discussed the responsibilities of an inmate to appeal a

response from prison officials where that response did not accord with inmate

grievance procedures. 541 F.3d at 1083. We found that an inmate’s failure to

appeal after the warden ripped up his grievance, instead of responding in writing as

Georgia’s inmate grievance procedure required, did not mean that the inmate failed

to exhaust his administrative remedies. Id.

      The inmate grievance procedure at issue here requires that prison officials

provide a detailed response within ten days of receiving a prisoner’s informal

grievance. Accepting Jackson’s version of events, he never received a response to

his informal grievance filing. Thus, as in Turner, Jackson should be excused for

his failure to pursue further administrative remedies because the lack of response

to his informal grievance did not comply with the inmate grievance procedure.

      Because, under the first step, we agree with the district court’s assessment

that Turner excuses Jackson’s failure to exhaust his administrative remedies, we

must move to the second step of the Turner framework. In this step, the district

court found a factual conflict. Specifically, Jackson contends that he complied

with the grievance procedure in effect at Rutledge by submitting an informal

grievance on September 5 and an emergency grievance on September 8. The


                                         10
             Case: 13-14028     Date Filed: 06/29/2015    Page: 11 of 14


defendants maintain that GDOC records show that Jackson did not file any

grievances on those dates. The district court resolved this factual dispute in the

defendants’ favor.

      In their attempt to show that Jackson failed to properly exhaust his available

administrative remedies, the defendants relied exclusively on a copy of the

Rutledge prison log to argue that Jackson never filed an informal grievance within

the requisite ten-day period concerning the attack by his cellmate on September 1,

2012. GDOC records, which the defendants attached to their motion to dismiss,

listed the grievances Jackson filed at Rutledge between March 18, 2010, and

November 13, 2012. During that time frame, Jackson filed approximately 24

informal grievances on various issues. Between August 15, 2012, when Jackson

alleged that his issues with his cellmate started, and September 1, 2012, the date of

the physical altercation, the log notes that Jackson filed a single informal grievance

on August 21, in which he complained that prison officials were opening his mail.

The only grievance registered on the prison log regarding his cellmate is from

September 27, 2012, in which Jackson complained that Strickland had laughed at

him, harassed him, and cursed at other inmates. None of the documented

grievances allege that prison officials failed to protect Jackson prior to the

September 1 attack, or that prison officials were derelict in their duty to provide

him medical care.


                                          11
             Case: 13-14028     Date Filed: 06/29/2015   Page: 12 of 14


      Jackson counters that the district court failed to consider “grievance

receipts” that corroborate his assertion that he submitted an informal grievance on

September 5 and an emergency grievance on September 8, and that the Rutledge

grievance log was both incomplete and inaccurate. He further noted that he had

been unable to submit the receipts to the court because he was could not make

copies and he did not want to send originals in the mail. See Garvey v. Vaughn,

993 F.2d 776, 780 (11th Cir. 1993) (recognizing the unique filing disadvantages of

pro se inmates, including the inability to directly file documents with the clerk’s

office). The defendants made copies of the receipts and prepared a document

titled, “Verification of Copying and Forwarding of Material Evidence Relating to

the Exhaustion of Administrative Remedies.” The document was signed by both

Jackson and his grievance counselor, Ruthie Shelton, and provided that Jackson

      was allowed to make copies of all material evidence to be presented
      regarding grievances filed relating to his claim that he exhausted all
      administrative remedies prior to filing this action. The evidence is
      contained in a total of 37 pages. The aforementioned pages will be
      given to the undersigned prison official and forwarded to the
      Defendants’ attorney on this date.

      Jackson complained to the district court that it was improper to require him

to turn over evidence to the defendants and that this procedure placed him at a

“great disadvantage.” He also “want[ed] to make sure the Judge or [the Clerk] got

the 37 pages[.]” See Garvey, 993 F.2d at 780 (describing that a pro se inmate

cannot “ascertain whether a document mailed for filing arrived,” and “has no
                                          12
             Case: 13-14028     Date Filed: 06/29/2015    Page: 13 of 14


recourse other than to entrust his court filings to prison authorities over whom he

has no control” and who “may have every incentive to delay”) (citation omitted).

There is no record that the district court ever responded to Jackson’s inquiry.

      The defendants later filed the “Verification” document with the court,

confirming that they had copied Jackson’s grievance receipts. But they only

submitted five of the receipts to the court. A receipt from September 6 has a brief

notation for “injury.” A receipt dated October 12 states “my injury, staff won[’]t

follow up 9-5-12.” An additional receipt from October 18 notes “to get Formal

Grievance Form.” The magistrate judge made no mention of the grievance receipts

in his second R&R. Rather, the magistrate judge highlighted that Jackson had

provided inconsistent statements because Jackson “contends that he has receipts

for the grievances made, but is not able to get copies. [] In the next breath,

[Jackson] admits that inmates have to request a formal grievance but that he did

not receive one.” But there is no acknowledgement about Jackson’s attempts to

have his grievance receipts copied and then sent to the defendants’ counsel for

submission to the court. In his objections to the second R&R, Jackson reiterated

that several of his grievances were not listed on the prison log and that he had

submitted 37 pages of evidence to show that Rutledge’s grievance log was

incomplete. Notably, he specifically queried the court “what of the 37” pages?”




                                          13
               Case: 13-14028         Date Filed: 06/29/2015       Page: 14 of 14


The district court, however, overruled Jackson’s objections and summarily

dismissed his suit.

       The defendants argue on appeal that Jackson’s receipts fail to identify the

subject matter of the grievances or whether any of the defendants were implicated.

But there is nothing in the record to suggest that the district court made any factual

findings with respect to the grievance receipts and whether they contradict the

defendants’ assertion that Jackson failed to exhaust his administrative remedies at

the time he commenced his suit. We, therefore, vacate the district court’s entry of

dismissal and remand the case to allow the court to engage in the second Turner

fact-finding step with respect to the contested grievance receipts. 3

       VACATED AND REMANDED.




3
  In light of our decision to remand the case to allow the district court to engage in necessary fact
finding with respect to the contested grievance receipts, we do not address Jackson’s assertion
that the court failed to properly notify him of the nature of the proceedings and afford him a
meaningful opportunity to develop a factual record.
                                                 14
