                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-13009         ELEVENTH CIRCUIT
                                                        JUNE 17, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                    D. C. Docket No. 08-00155-CV-CDL-4

ARTHUR GOULD,

                                                            Plaintiff-Appellant,

                                     versus

BRIAN OWENS,
Commissioner,
L. GALE BUCKNER,
Parole Board Chair,
H. DWIGHT HAMRICK,
Warden, Rutledge State Prison,
DEBRA SLAUGHTER,
RON DEVALINGER,
Counselor, et al.,

                                                         Defendants-Appellees.

                         ________________________

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

                                 (June 17, 2010)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

       Arthur Gould, an inmate in Georgia’s state prison system, sued a number of

prison officials under 42 U.S.C. § 1983 for violating his rights under the U.S.

Constitution.1 On the defendants’ motion, the district court dismissed the

complaint on the grounds that Gould had failed to exhaust his administrative

remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a),

and that he had otherwise failed to state any viable claims for relief, see 28 U.S.C.

§ 1915A(b)(1); Fed. R. Civ. P. 12(b)(6). Gould now argues that his action was

improperly transferred to another venue, that the district judge failed to engage in

a plenary review of the magistrate judge’s report and recommendation, that the

court should have allowed him to amend his complaint, and that the court erred by

granting the defendants’ motion to dismiss.




       1
         The defendants named in Gould’s Amended and Supplemental Complaints were James
Donald, Commissioner of the Georgia Department of Corrections; Gale Buckner, Chair of the
State Board of Pardons and Paroles; Warden Dwight Hamrick; Superintendent Debra Slaughter;
Lieutenant Charles Fleming; Counselor Ron DeValinger; “Mental Health Director” Pat
Williams; and Deputy Wardens Brown Keys and Jeffery Jefferson. On appeal, Brian Owens was
automatically substituted for James Donald as Commissioner in his official capacity. See Fed. R.
App. P. 43(c)(2). Although Gould maintains that he sued all of the defendants in their individual
capacities, any substitution error was harmless because Gould did not object to the magistrate
judge’s recommendation that his claims against Donald be dismissed.

                                                2
                                                I

       The events giving rise to Gould’s complaint began when he was an inmate

at Rutledge State Prison.2 During the course of a work-release program at a

transitional facility, Gould saw another inmate “rob” a nearby business. But when

he reported the crime to defendants DeValinger, Fleming, and Slaughter, they

warned him to “leave it alone” because the business owner was not white and

because they did not want the transitional facility to “look bad.” DeValinger and

Fleming later repeated that warning, and DeValinger threatened to have his friends

on the Parole Board make life “hard” for Gould.

       Gould successfully completed the work-release program, but the Parole

Board—despite its previous tentative decision to parole him if he completed the

program—denied his request for parole. Gould learned of the Board’s decision

from Fleming and several other officials after being detained without explanation

in a holding cell for over four hours. Gould was then taken back to Rutledge State

Prison, where officials refused to return his shoes and other personal property.

When he asked defendants Hamrick, Keys, and Williams why he had been sent


       2
          For our purposes here, we assume that Gould’s allegations are true. Powell v. Lennon,
914 F.2d 1459, 1463 (11th Cir. 1990) (“The allegations in the complaint must be taken as true for
purposes of the motion to dismiss.”). Because Gould is a pro se litigant, we also construe his
filings before us and in the district court liberally. Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

                                               3
back to prison, they refused to tell him, and he was placed—again without

explanation—first in solitary confinement and then in the ward reserved for

mentally ill prisoners. His request for a hearing3 was denied.

       According to Gould, violence and sexual assault were commonplace on the

mental-health ward because prison officials refused to protect the mentally ill

inmates from each other. Moreover, officials on the ward would routinely threaten

to give the inmates incapacitating “shots” that would leave them vulnerable to

attack. In particular, the officials threatened Gould with these shots after he

refused to abandon the claims in this lawsuit.

       In his complaint,4 Gould alleged the defendants had sent him to the mental-

health ward in retaliation for reporting the crime at the transitional facility. He

also complained that the defendants had interfered with his ability to prosecute his

claims in federal court, refused to return his personal property, and discriminated

against him because he was black, a Roman Catholic, and mentally disabled.



       3
          See Vitek v. Jones, 445 U.S. 480, 494 (1980) (“[T]he stigmatizing consequences of a
transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of
the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the
kind of deprivations of liberty that requires procedural protections.”).
       4
          Gould’s original complaint came in the form of a letter addressed to the chief district
judge for the Northern District of Georgia. After the action was transferred to the Middle District
of Georgia, Gould filed a formal amended complaint and a “supplemental” complaint. We refer
to these two documents, collectively, as his “complaint.”

                                                 4
Finally, Gould identified a host of procedural errors in the course of his parole

determination and in the defendants’ refusal to conduct a hearing to justify his

assignment to the mental-health ward. In light of his injuries, Gould requested

injunctive relief and $4 million in damages.

      The defendants filed a motion to dismiss, which the parties briefed

extensively. The defendants argued that Gould had failed to exhaust his

administrative remedies and failed to state a claim for relief. Gould responded that

§ 1983 had no exhaustion requirement and argued that prison officials had

hindered his efforts to pursue any meaningful administrative remedies.

      Before the magistrate judge to whom the case had been referred ruled on the

motion to dismiss, Gould filed two “Emergency Letters” with the court. In his

letters, Gould alleged that several Rutledge State Prison officials—none of whom

was then a defendant—had beaten him, sexually assaulted him with a police baton,

and goaded him into cutting his arm with a razor. After letting him bleed “for a

while,” the officials took him to have his arm treated, but they refused to allow

medical personnel to inspect the wounds caused by the sexual assault. Gould was

then transferred to Valdosta State Prison, where he received more complete

medical attention ten days later. Gould also accused the officials of hurling racial

epithets while forcing him to stand outside in the cold. After filing the emergency

                                          5
letters, Gould moved for leave to amend his complaint so that he could bring new

claims for torture and retaliation against the officials involved in this incident.

       The magistrate judge issued a report and recommendation granting the

defendants’ motion to dismiss and denying Gould’s “futile” motion to amend.5

After finding that Gould had failed to exhaust his administrative remedies, the

magistrate concluded that he had also failed to state a valid claim for relief. The

district court adopted the magistrate’s recommendation over Gould’s objection

and dismissed the complaint. Gould appeals.

                                                II

       Gould’s first argument on appeal is that the district court committed a series

of procedural errors before dismissing his complaint. For instance, he argues that

his action should not have been transferred to the Middle District of Georgia

because the crime he witnessed at the transitional facility occurred in the Northern

District of Georgia. But Gould waived this argument by failing to bring it to the

district court’s attention, and we will not consider it for the first time here. See

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (“[I]ssues not

raised below are normally deemed waived.”).



       5
           Gould had a series of other motions pending that the magistrate recommended denying
as moot.

                                                6
      Gould also argues that the district court could not have adequately reviewed

his objections to the magistrate judge’s report and recommendation because

neither the magistrate nor the district judge conducted a hearing. But this action

was dismissed on the pleadings, and Gould was not entitled to an evidentiary (or

any other) hearing before the court ruled on the defendants’ motion. We will not

presume the district judge failed to engage in the plenary review expected of him6

simply because Gould did not receive an opportunity to present factual evidence

in opposition to a motion testing the legal sufficiency of his claims.

      Finally, Gould argues that the court erred by denying him leave to amend

his complaint. “We review the district court’s refusal to grant leave to amend for

abuse of discretion, although we exercise de novo review as to the underlying

legal conclusion that an amendment to the complaint would be futile.” SFM

Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1336 (11th Cir. 2010).

      Gould argues that the new allegations in his “Emergency Letters” were a

natural extension of his original claims because the abuse he described represented

prison officials’ attempts to carry out their earlier threats against him for pursuing

this lawsuit. Although Gould could no longer amend his complaint as of right, the

district court had an obligation to give him leave to amend if justice so required.


      6
          See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

                                                 7
Fed. R. Civ. P. 15(a)(2). In other circumstances, justice might well have required

the court to give him such leave. See Foman v. Davis, 371 U.S. 178, 182 (1962)

(“If the underlying facts or circumstances relied upon by a plaintiff may be a

proper subject of relief, he ought to be afforded an opportunity to test his claim on

the merits.”). But a district court may deny leave to amend on the ground of

futility if the complaint as amended would still be subject to dismissal. Hall v.

United Ins. Co. of Am., 367 F.3d 1255, 1262–63 (11th Cir. 2004).

      Here, Gould’s new allegations of abuse related to “prison conditions,” and

the Prison Litigation Reform Act (PLRA) required him to exhaust his

administrative remedies before filing suit. 42 U.S.C. § 1997e(a); Porter v. Nussle,

534 U.S. 516, 532 (2002) (“[T]he PLRA’s exhaustion requirement 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.”). Because Gould never made any attempt to pursue the remedies for this

incident available to him in the prison system, the district court correctly

concluded that amending his complaint to include these new allegations would

have been futile. On these facts, denying Gould’s motion for leave to amend was

not an abuse of discretion.




                                          8
                                             III

       Gould devotes most of his energy on appeal to challenging the dismissal of

his complaint. Construed liberally, Gould’s complaint purported to state

constitutional claims under the First Amendment, the Eighth Amendment, and the

Fourteenth Amendment’s Due Process and Equal Protection Clauses. We review

the dismissal of these claims de novo. Powell v. Lennon, 914 F.2d 1459, 1463

(11th Cir. 1990). The question is whether the complaint “contain[ed] sufficient

factual matter, accepted as true, to ‘state a claim to relief that [was] plausible on its

face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

       It is undisputed that Gould did not exhaust the administrative remedies

available through the prison system’s grievance procedures.7 Ordinarily, this

failure would require the dismissal of his claims; under the PLRA, prisoners

cannot challenge “prison conditions” in court “until such administrative remedies

as are available are exhausted.” 42 U.S.C. § 1997e(a). But Gould argues that he

did not have to resort to the prison system’s grievance procedures and that, in any

event, no meaningful administrative remedies were available.



       7
        Although Gould filed several informal grievances, he never followed up with the formal
grievance forms required by prison rules.

                                              9
      With respect to the first argument, Gould is mistaken. Although “[p]risoner

suits alleging constitutional deprivations while incarcerated once fell within [the]

general rule” that “plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983

need not exhaust administrative remedies,” Porter, 534 U.S. at 523, Congress

changed that rule in 1980 and further “invigorated the exhaustion prescription”

with the PLRA in 1995, id. 523–24. Today it is clear that Eighth Amendment

claims regarding abusive treatment fall squarely within the ambit of the PLRA’s

exhaustion requirement. Id. at 532. Likewise, the manner in which prison

officials withheld Gould’s property, developed the record for his parole hearing,

and hindered his efforts to participate in this litigation—the crux of his claims

under the Due Process Clause—undeniably relates to prison conditions. And to

the extent Gould’s claims for retaliation might be cognizable under the First

Amendment, he still had the obligation to pursue administrative remedies before

filing this action. See Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998)

(applying the exhaustion requirement to a First Amendment claim). The same

must be said of his discrimination claims under the Equal Protection Clause. See

Jones v. Bock, 549 U.S. 199, 210–11 (2007) (applying the exhaustion requirement

to a race-discrimination claim).




                                          10
      Gould’s only argument against his obligation to exhaust administrative

remedies is the contention that he could not have filed grievances to challenge

events related to the crime he witnessed or the decision to deny his parole. But

Gould did not sue because he had witnessed a crime or was denied parole. On the

contrary, he has alleged that the defendants retaliated against him for reporting a

crime and that they failed to prepare certain documents for the Parole Board’s

consideration. These constitutional claims relate to conditions within the control

of prison officials, and Gould had to pursue “such administrative remedies as

[were] available.” 42 U.S.C. § 1997e(a).

      In apparent recognition of the fact that he had some duty to exhaust

administrative remedies, Gould also argues that no administrative remedies were

made meaningfully “available” to him through the prison grievance system. We

disagree. The Georgia Department of Corrections allows inmates to file

grievances challenging nearly “[a]ny condition, policy, procedure, action or lack

thereof that affects inmates and is in the [Department’s] control.” (Def.’s Pre-

Answer Mot. to Dismiss Ex. A Ex. 1, at 3.) And notwithstanding the limited

exceptions to the general grievance policy, inmates may grieve any acts of

“retaliation, misconduct or harassment . . . regardless of the form.” (Id.)




                                          11
       To the extent Gould argues that the prison system’s grievance procedures

were inadequate or that their pursuit would have proven futile, the Supreme Court

and this court have already rejected his argument. See Porter, 534 U.S. at 524

(“All ‘available’ remedies must now be exhausted; those remedies need not meet

federal standards, nor must they be ‘plain, speedy, and effective.’” (citation

omitted)); Booth v. Churner, 532 U.S. 731, 741 (2001) (“Congress has mandated

exhaustion clearly enough, regardless of the relief offered through administrative

procedures.”); Alexander, 159 F.3d at 1326 (“Since exhaustion is now a pre-

condition to suit, the courts cannot simply waive those requirements where they

determine they are futile or inadequate.”). And Gould waived any argument that

the prison system’s grievance procedures were unconstitutional by raising the

issue for the first time on appeal.

       Before the district court, Gould also argued that prison officials had

prevented him from exhausting his administrative remedies by denying him formal

grievance forms. Assuming that Gould has not abandoned this contention on

appeal,8 we note the obvious: a prisoner denied access to administrative remedies

has no available remedies to exhaust. But we are not inclined to disturb the


       8
          Although Gould has not explicitly referred to this allegation on appeal, we construe his
briefs liberally in light of his insistence that the prison system’s administrative remedies were
inadequate.

                                                12
district court’s factual findings on exhaustion here. Cf. Turner v. Burnside, 541

F.3d 1077, 1082 (11th Cir. 2008) (“If the complaint is not subject to dismissal . . .

where the plaintiff’s allegations are assumed to be true, the court then proceeds to

make specific findings in order to resolve the disputed factual issues related to

exhaustion.”). The record shows Gould’s use of the grievance procedures in other

contexts, and we cannot say that the court’s findings on this point were clearly

erroneous. Cf. Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (“[W]e

cannot say that the district court committed clear error in finding that Priester had

access to grievance forms at GSP by which he could have reported the prison

abuse at Rogers.”).

                                           IV

      Regardless of the seriousness of his allegations, Gould had an obligation to

exhaust the remedies that were available in the prison system before seeking

redress in court. Because he failed to fulfill that obligation, the district court did

not err by dismissing his complaint. Nor did it err by denying his motion to

introduce new unexhausted claims to this litigation. In light of these conclusions,

Gould’s objections to the district court’s disposal of the other motions before it are

moot. The judgment below is

      AFFIRMED.

                                           13
