                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                     FILED
                           ________________________         U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                  October 29, 2008
                                 No. 07-15513                  THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                    D. C. Docket No. 07-01915-CV-T-26-TGW

JOHNNIE FITZGERALD HOWARD,

                                                               Plaintiff-Appellant,

                                       versus


DAVID GEE,
Hillsborough County Sheriff,
DAVID M. PARRISH,
Colonel of Hillsborough County Jail, et al.,

                                                             Defendants-Appellees.


                           ________________________

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

                                (October 29, 2008)

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
      Johnnie Fitzgerald Howard, a prisoner proceeding pro se, appeals from the

dismissal of his 42 U.S.C. § 1983 civil complaint. The district court dismissed

Howard’s complaint, on res judicata grounds, because it found that Howard had

previously filed a similar action that was dismissed for failure to adequately plead

exhaustion.   On appeal, Howard argues that res judicata is inapplicable in the

instant case because: (1) the final order dismissing his previous case for lack of

exhaustion was based on a curable procedural defect; and (2) lack of exhaustion is

an affirmative defense, and, as plaintiff, he did not have the burden of pleading it.

After thorough review, we vacate and remand.

      The district court screened and dismissed Howard’s complaint under 28

U.S.C. § 1915A, which requires the court to screen complaints in all civil actions

that are filed by prisoners against government entities. See 28 U.S.C. § 1915A.

“A district court’s decision to dismiss for failure to state a claim under 28 U.S.C.

§ 1915A is reviewed de novo, taking the allegations in the complaint as true.”

Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). “Pro se pleadings are

held to a less stringent standard than pleadings drafted by attorneys and will,

therefore, be liberally construed.” Id. (quotations omitted).

      “The doctrine of res judicata, or claim preclusion, will bar a subsequent

action if: (1) the prior decision was rendered by a court of competent jurisdiction;



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(2) there was a final judgment on the merits; (3) the parties were identical in both

suits; and (4) the prior and present causes of action are the same.” Davila v. Delta

Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003) (quotations omitted). In

addition, res judicata is inapplicable when “between the first and second suits,

there has been an intervening change in the law or modification of significant facts

creating new legal conditions.” Jaffree v. Wallace, 837 F.2d 1461, 1469 (11th Cir.

1988) (quotations omitted).

      The district court dismissed Howard’s instant case on res judicata grounds;

however, Howard’s previous action was dismissed because he failed to plead

exhaustion. This Court has held that “exhaustion of administrative remedies is a

matter in abatement and not generally an adjudication on the merits.” Bryant v.

Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Since a finding of exhaustion is not

an adjudication on the merits, the dismissal of Howard’s 2005 action fails to satisfy

the “final judgment on the merits” element of res judicata.

      Res judicata is also inapplicable because there has been an intervening

substantial change in the law applicable to Howard’s previous case. In 2007, the

Supreme Court held “that failure to exhaust is an affirmative defense under [28

U.S.C. § 1915A], and that inmates are not required to specially plead or

demonstrate exhaustion in their complaints.” Jones v. Bock, 127 S. Ct. 910, 921



                                          3
(2007). As a result, the 2005 decision dismissing Howard’s complaint for failure

to plead exhaustion is at odds with current Supreme Court case law, and, is

therefore not entitled to res judicata deference.

      Accordingly, we vacate and remand this case to the district court.

      VACATED AND REMANDED.




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