                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 11-14775                ELEVENTH CIRCUIT
                                                             APRIL 19, 2012
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                   D.C. Docket No. 1:08-cv-20554-JLK

CHRISTOPHER TROY MYLES,

                                                     Plaintiff-Appellant,

                                  versus

MIAMI-DADE COUNTY CORRECTIONAL AND
REHABILITATION DEPARTMENT, et al.,

                                                     Defendants,

ANTHONY GREEN, ERIC MCKNIGHT,
ANGEL RIVERA, LUIS G. FIGUEROA,
ALEXANDER PINON, JEPTHA JACKSON

                                                     Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________
                              (April 19, 2012)

Before CARNES, WILSON and COX, Circuit Judges.
PER CURIAM:

       Christopher Troy Myles sued multiple Miami-Dade County corrections officers

under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments.

According to the amended complaint, these violations occurred during a routine purge

of inmate clothing at a Miami-Dade County correctional facility. Myles alleges that

Defendant Jeptha Jackson placed him in a choke hold and threw him to the floor

when he refused to hand over an article of clothing during the clothing purge. Other

officers kicked him, poked his eyes, and stomped on his elbow while he was on the

floor. The complaint says that Defendants Anthony Green and Alexander Pinon

witnessed the incident but did not intervene. Myles claims that this use of force and

failure to intervene violates the Eighth and Fourteenth Amendments.

       Officers Jackson, Pinon, and Green filed motions for summary judgment.1 In

their motions, all three officers argued that summary judgment should be entered

because they had qualified immunity from suit and Myles failed to exhaust his

administrative remedies as required by the Prison Litigation Reform Act (“PLRA”),

42 U.S.C. § 1997e(a). Officers Jackson and Pinon also asserted that the statute of

limitations barred Myles’s claims.

       1
          Three other Defendants named in the amended complaint, Eric McKnight, Angel Rivera,
and Luis Figueroa, were never served and never appeared. The district court’s judgment may
therefore be considered a final appealable order. Insinga v. LaBella, 817 F.2d 1469, 1470 (11th Cir.
1987).

                                                 2
       A magistrate judge considered these motions and recommended that the

motions for summary judgment be granted as to each of the Defendants. The

magistrate’s report stated that the statute of limitations had expired as to the claims

against Officers Jackson and Pinon. It also concluded that Myles failed to exhaust his

administrative remedies as required by the PLRA. In the alternative, the magistrate

decided that Myles had not shown that his constitutional rights were violated by any

of the Defendants. Myles filed objections to the magistrate’s report, but the district

court affirmed and adopted the report and granted the Defendants’ motions for

summary judgment.2 Myles appeals, challenging the entry of summary judgment on

his claims.

       He raises three issues: (1) whether he exhausted his administrative remedies;

(2) whether the statute of limitations bars his claims; and (3) whether a genuine issue

of material fact exists regarding his excessive force and failure-to-intervene claims.

       We have called the question of exhaustion under the PLRA a “threshold matter”

that we address before considering the merits of the case. Chandler v. Crosby, 379



       2
          We believe the district court made a clerical error in its order affirming and adopting the
magistrate’s report. The magistrate’s report recommended granting the motions for summary
judgment at Dkt. 114 and Dkt. 116. While the district court’s order affirmed and adopted this report
and recommendation, its order continued by only granting the motion for summary judgment at Dkt.
116. Because the district court affirmed and adopted the magistrate’s report, which recommended
granting both of the motions for summary judgment, we construe the court’s order as granting both
of the summary judgment motions pending before it.

                                                 3
F.3d 1278, 1286 (11th Cir. 2004). Because exhaustion is mandated by the statute, we

have no discretion to waive this requirement. Alexander v. Hawk, 159 F.3d 1321,

1325-26 (11th Cir. 1998). So, we resolve this issue first.

      The PLRA provides that “No action shall be brought with respect to prison

conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are exhausted.”

42 U.S.C. § 1997e(a). This exhaustion requirement applies to a prisoner’s excessive

force claim. Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992 (2002). And,

“[t]his court reviews de novo a district court’s interpretation and application of 42

U.S.C. § 1997e(a)’s exhaustion requirement.” Johnson v. Meadows, 418 F.3d 1152,

1155 (11th Cir. 2005) (citing Higginbottom v. Carter, 223 F.3d 1259, 1260 (11th Cir.

2000)).

      This court has said that the exhaustion defense “is not ordinarily the proper

subject for a summary judgment; instead it ‘should be raised in a motion to dismiss,

or be treated as such if raised in a motion for summary judgment.’” Bryant v. Rich,

530 F.3d 1368, 1375 (11th Cir. 2008) (quoting Ritza v. Int’l Longshoremen’s &

Warehousemen’s Union, 837 F.2d 365, 368-69 (9th Cir. 1988)). When deciding

whether a prisoner has exhausted his remedies, the court should first consider the

plaintiff’s and the defendants’ versions of the facts, and if they conflict, take the


                                           4
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.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (citing Bryant,

530 F.3d at 1373-74). If the complaint is not subject to dismissal at this step, then the

court should make “specific findings in order to resolve the disputed factual issues

related to exhaustion.” Id. (citing Bryant, 530 F.3d 1373-74, 1376).

       Here, the district court considered whether Myles properly exhausted his

administrative remedies using the summary judgment procedural framework.

Disregarding our precedent in Bryant and Turner, it neither treated Myles’s

allegations as true, nor did it make specific factual findings on disputed facts.

Therefore, we vacate the district court’s entry of summary judgment to the Defendants

and remand the case to allow the district court to engage in the analysis required by

Bryant and Turner in the first instance. Because the court’s resolution of the

exhaustion issue on remand may be dispositive of Myles’s case, we need not resolve

the other issues he presents on appeal.

       VACATED AND REMANDED.




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