                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             FEB 25, 2009
                              No. 08-14997                 THOMAS K. KAHN
                        ________________________               CLERK


                   D. C. Docket No. 07-02369-CV-TCB-1

BRYAN GRAHAM,


                                                            Plaintiff-Appellant,

                                   versus

WARDEN TONY HENDERSON,
DEPUTY WARDEN MICHAEL NERVO,
LT. JAMES BYRD,
LT. BOWMAN,
OFFICER DARIAN WILLIAMS, et al.,


                                                         Defendants-Appellees.


                        ________________________

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

                            (February 25, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:

      After review and oral argument, we conclude that the district court erred in

granting Defendants’ motion to dismiss and in dismissing this 42 U.S.C. § 1983

action without prejudice. Here, Plaintiff filed an informal grievance on May 16,

2008, but Defendants never responded and never gave Plaintiff a formal grievance

form, despite the fact that the SOP IIB05-0001, Attachment 9, III(A)(1), states as

follows:

      Any informal grievance that alleges physical abuse or excessive force by
      staff is to be forwarded to the Grievance Coordinator by the Counselor
      within 2 business days of receipt. The Grievance Coordinator will
      ensure that the inmate is promptly issued a grievance form to formally
      address the allegation in this format if the inmate wishes to do so.

      When an informal grievance alleges “physical abuse,” as Plaintiff’s informal

grievance did, it should be forwarded to the Grievance Coordinator by the

Counselor within two business days of receipt, and the Grievance Coordinator

should ensure that the inmate is promptly issued a formal grievance form to

address the allegation of physical abuse if the inmate wishes to do so. We reject

Defendants’ argument that after an inmate has filed an informal grievance, the

Grievance Coordinator has to do nothing until the inmate comes forward and says

he wants to file a formal grievance form. The SOP places the burden on the

Counselor to forward the informal grievance to the Grievance Coordinator.



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Thereafter, the Grievance Coordinator is obligated to ensure that the inmate is

promptly issued a “formal grievance form” in order that the investigation can move

forward. Here, the Defendants made no response whatsoever to Plaintiff’s

informal grievance, the informal grievance was not transmitted to the Grievance

Coordinator within two business days, and neither the Counselor nor the Grievance

Coordinator met with the inmate or provided any forms as required.

      For this and various other reasons asserted by Plaintiff, we conclude that

Plaintiff has adequately exhausted his administrative remedies in this case and that

Plaintiff’s § 1983 claim shall proceed in the district court on the merits. We

conclude that Defendants’ failure-to-exhaust defense lacks merit.

      Accordingly, we reverse the district court’s order dated August 13, 2008,

vacate the dismissal without prejudice, and remand this case for proceedings on the

merits of Plaintiff’s claims.

      REVERSED, VACATED, and REMANDED.




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