     Case: 14-60515      Document: 00513545051         Page: 1     Date Filed: 06/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                      No. 14-60515                               FILED
                                                                             June 13, 2016
                                                                            Lyle W. Cayce
LAVAN YANKTON, SR.,                                                              Clerk

     Plaintiff - Appellant

v.

CHRISTOPHER EPPS; EMMITT SPARKMAN; EARNEST LEE; FAYE
NOEL; REGINALD STEWARD; CAPTAIN PORTER; CAPTAIN SIMON; MS.
STURDIVANT, Case Worker; LIEUTENANT THIGPEN; LIEUTENANT
ROACH; TOWNSON, Correctional Officer; ROY, Correctional Officer (FO);
BLACK, Correctional Officer (Little); YOUNG, Correctional Officer (CO);
JOHNSON, (CO); MARSHAL, (CO); WALKER, (CO); HENPHILL,
Correctional Officer (CO); JANE DOE, (CO); JOHN DOE, (CO); JANE DOE 2,
(CO); JAQWANNA ROBINSON, Case Worker,

     Defendants - Appellees




                  Appeals from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 4:14-CV-34


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 14-60515

                                FACTS & PROCEEDINGS
       Plaintiff-Appellant LaVan Yankton, Sr., a Native American inmate at
the Mississippi Department of Corrections (“MDOC”), brought this action
against Defendants-Appellees, various MDOC officials, challenging a policy
limiting the length of inmates’ hair as violative of his rights under the First
Amendment. Yankton, who is an Oglala Sioux, alleges that the restriction
interferes with his religious beliefs, which forbid him from cutting his hair.
Yankton further alleges that, in March of 2013, after he refused to cut his hair
himself, prison officials pinned him down and forcibly cut it for him.
       That December, Yankton filed a grievance under the MDOC’s
Administrative Remedy Program (“ARP”). (This was his second grievance
regarding the policy; he had filed his first several years earlier in 2011.) In
January of 2014, MDOC’s Legal Claims Adjudicator (“Adjudicator”) rejected
this second grievance as untimely because it had been submitted more than 30
days after prison officials had cut Yankton’s hair the previous March.
       Yankton attempted to “appeal” the rejection of the second grievance by
filing a third the following month. The Adjudicator determined that this third
grievance was repetitive of the second and informed Yankton that “since this
matter has already been rejected, this particular request is being returned to
you and will not be processed.”
       Yankton then filed a complaint, and later an amended complaint, in the
district court asserting claims under 42 U.S.C. § 1983. The magistrate judge
held a Spears hearing 1 to focus those claims. 2 Following that hearing, Yankton
moved to stay the action pending exhaustion of his administrative remedies.


       1Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), overruled on other grounds,
Neitzke v. Williams, 490 U.S. 319, 324 (1989).
       2The minute entry for the Spears hearing indicates that there was an audio
recording; however, that recording is not included in the record on appeal. Yankton


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       The district court determined that, in so moving, Yankton had conceded
that he had not yet exhausted his remedies and dismissed his claims. 3 Yankton
then moved for reconsideration, explaining that his grievance was timely
because it concerned the policy limiting the length of inmates’ hair, not the
incident that occurred as a result of the policy. He also explained that he had
previously exhausted his administrative remedies by filing his first grievance
regarding the policy in 2011. Unlike the second and third grievances, MDOC
had accepted that first grievance into the ARP and resolved it on the merits,
noting that “there are no exceptions to the three inch limit for hair” because
“[i]f offenders were allowed exceptions to this rule, the risk that head lice and
other things could be spread through the building would be greatly increased.”
Before the district court decided whether to reconsider dismissing Yankton’s
claims, he appealed.
       Several months later, the district court denied Yankton’s request that it
reconsider its dismissal of his claims. In so doing, it did not explicitly address
Yankton’s assertion that he had exhausted his administrative remedies
through his first grievance under the ARP. Yankton again appealed.
                                      LAW & ANALYSIS
       We review de novo the district court’s dismissal of Yankton’s claims for
failing to exhaust his administrative remedies. 4 The Prisoner Litigation



requested a transcript from the hearing, but the district court denied the request. Yankton
does not challenge this denial.
       3The district court dismissed Yankton’s complaint sua sponte because it was
apparent from the face of the pleadings that Yankton had failed to exhaust his
administrative remedies. The district court relied on Yankton’s motion to stay for its
conclusion on exhaustion, but Yankton also conceded that he had failed to satisfy the
exhaustion requirements in his amended complaint. The MDOC officials asserted failure to
exhaust as an affirmative defense in their answer.
       4   Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).


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Reform Act (“PLRA”) requires that a prisoner exhaust all such remedies before
brining claims under § 1983. 5 We ordinarily take “a strict approach” to this
requirement. 6 Under this strict approach, proper exhaustion of those remedies
requires more than “mere ‘substantial compliance’” with them. 7 “Proper
exhaustion demands compliance with . . . deadlines and other critical
procedural rules.” 8
       Yankton must, therefore, comply with the ARP, through which MDOC
conducts its formal two-step process for handling inmate grievances. 9 “[T]o
ensure their right to use the formal [ARP],” inmates “must make their request
to the Adjudicator in writing within a 30 day period after an incident has
occurred.” 10 They are, however, discouraged from making repetitive requests
and “are encouraged to continue to seek solutions to their concerns through
informal means.” 11
       Prior to the “first step” of this procedure, the Adjudicator screens the
request to determine whether it meets specified criteria. 12 If a request fails to



       5 See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.”); see also Gonzalez v. Seal, 702 F.3d 785, 787-88 (5th Cir. 2012).
       6 Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003), overruled by implication on
other grounds by Jones v. Bock, 549 U.S. 199, 216 (2007).
       7   Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010).
       8   Woodford v. Ngo, 548 U.S. 81, 90 (2006).
       9 See Wilson v. Epps, 776 F.3d 296, 300 n.2 (5th Cir. 2015); see also MISS. CODE § 47-
5-801, et seq.
       10See Inmate Handbook, MDOC, ch. VIII, sec. IV, available at http://www.mdoc.
ms.gov/Inmate-Info/Documents/CHAPTER_VIII.pdf (last modified Aug. 6, 2015
1:59:49 PM).
       11   See id.
       12   See id. at ch. VIII, sec. V.


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meet that criteria, the Adjudicator will reject it and notify the inmate via Form
ARP-1. 13 If the request meets the criteria, however, the Adjudicator will accept
it into the ARP, and the request will then proceed to the first step. At the first
step, the appropriate MDOC official receives the request via Form ARP-1 14 and
provides a “first-step response” to the request via Form ARP-2. If the inmate
is satisfied with this first-step response, he does not need to do anything
further. If unsatisfied, however, the inmate may then proceed to the “second
step” by indicating as much on the same Form ARP-2. At the second step,
another appropriate MDOC official, such as a warden, provides the “second-
step response” via Form ARP-3. If unsatisfied with the second-step response,
the inmate may then bring a claim in court. 15 As discussed above, Yankton’s
first grievance in 2011 made it through both the first and second steps, but his
second and third grievances did not make it beyond the initial screening.
       Yankton asserts that the district court erroneously dismissed his claims
for failure to exhaust administrative remedies. He contends, in particular, that
he exhausted those remedies by submitting the first grievance in 2011 and by
submitting the second and third grievances in 2013 and 2014, respectively. In
so doing, he relies on our opinion in Johnson v. Johnson. 16
       In Johnson, we considered whether an inmate had sufficiently exhausted
his administrative remedies to allow his claims under § 1983 against prison
officials who had failed to protect him from near-constant assaults by other



       13   See id. at ch. VIII, sec. VI.
       14Form ARP-1 states: “This request comes to you from the Adjudicator. See the
attached request from the offender. Please return your response to [the Adjudicator] within
30 days of this date.”
       15   See Inmate Handbook, MDOC, ch. VIII, sec. IV.
       16   385 F.3d 503 (5th Cir. 2004).


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inmates. 17 There, the prison’s two-step grievance process required inmates to
submit a request within 15 days of each incident. 18 We rejected the notion that,
under those circumstances, the inmate was required to submit a new request
after each incident or even every 15 days. 19
       In so doing, we held that “prisoners need not continue to file grievances
about the same issue.” 20 A single request was “sufficient to exhaust claims that
arose from the same continuing [condition or policy],” and therefore additional
requests were not necessary to remind prison officials that the underlying
condition or policy remained in existence. 21 We did not, however, hold “that a
grievance [about] one particular incident automatically exhausts claims that
arise from future incidents of the same general type.” 22 In considering this
distinction, we summarized another court’s observation that, “when inmates
have filed a grievance regarding a prison policy, they need not file grievances
regarding subsequent incidents in which the policy is applied.” 23
       Unlike in Johnson, the MDOC did not reject Yankton’s second and third
grievances because they were repetitive of the first grievance. Rather, it
rejected the second request because Yankton failed to file it within 30 days of




       17Id. at 512. We noted that, according to the plaintiff’s allegations, the assaults
there occurred “virtually every day.” Id. at 521.
       18   Id. at 515.
       19   Id. at 519-21.
       20   Id. at 521 (emphasis added).
       21  Id. (emphasis added). In Johnson, the continuing condition was the prison
officials’ “failure to protect [the inmate].” Id.
       22   Id. at 521 n.13 (emphasis added).
        Id. at 521 (emphasis added) (citing Aiello v. Litscher, 104 F. Supp. 2d 1068, 1074
       23

(W.D. Wis. 2000)).


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the incident during which his hair was cut, and it rejected his third request
“appealing” that rejection as repetitive of the second.
       Each of Yankton’s grievances, however, appears to concern the
continuing policy itself, not the incidents that occurred as a result of that
policy. 24 For instance, Yankton’s requests stated that he sought “a religious
exception to the hair grooming policy” and that “[t]he policy must be change[d]
in the SOP to show a religious exception on a case by case basis.” They also
explained that a prison official “told [him] once again that if he did not cut his
hair that [the officials] would cut it by force” and that he “ha[d] been told this
for years.”
       Notably, MDOC expressly permits inmates to file a grievance under the
ARP with regard to any “policy within an institution/facility” and/or “incident
occurring within an institution/facility.” 25 To require an inmate’s grievance
regarding a policy to allege an incident occurring as a result of that policy
would render these multiple bases meaningless.
       Yankton timely filed each of his requests challenging the policy limiting
the length of inmates’ hair while that policy was in effect. Although the
Adjudicator properly accepted his first request in 2011, the Adjudicator
improperly rejected Yankton’s second request in 2013 as untimely, and the




       24 The district court stated: “Yankton’s claims arise out of allegations that
Mississippi Department of Corrections (“MDOC”) officials will not permit him to grow his
hair longer than three inches, the maximum length permitted under MDOC policy. On one
occasion, MDOC officials pinned Yankton down and forcibly cut his hair when he refused
because it violates the tenets of his religion. Yankton’s religious beliefs forbid him to cut his
hair, and he believes that the policy in question infringes upon his religious freedom under
the First Amendment to the United States Constitution.”
       25   See Inmate Handbook, MDOC, ch. VIII, sec. II.


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Adjudicator rejected his third request in 2014 “appealing” the rejection of the
second request as repetitive. 26
       Because Yankton adhered to the requirements of the ARP, he has
properly exhausted his remedies under it. 27 MDOC’s failure, not Yankton’s,
prevented him from proceeding through the first and second steps of the ARP.
He had no further recourse after his grievances were rejected. “The PLRA
[only] requires exhaustion of ‘such administrative remedies as are available,’” 28
and     therefore         an     inmate’s    “[c]ompliance    with     prison     grievance
procedures . . . is all that is required by the PLRA to ‘properly exhaust’” a
claim. 29 By filing the third grievance “appealing” the rejection of the second,
Yankton did the only thing he could to object under the ARP. We may “topple
over administrative decisions” because the Adjudicator “not only has erred, but
has erred against objection made at the time appropriate under its practice.” 30
Accordingly, the district court erred in determining that Yankton had failed to
exhaust his claims regarding the policy under the ARP.
       The district court also erred in dismissing those claims in the manner in
which it did. The court explained that, although the failure to exhaust


       26 We do not decide whether his second and third requests might have been rejected
as repetitive of the first.
       27Because Yankton’s requests relate to the policies, not the particular incidents that
occurred as a result of those policies, we do not consider whether any claims concerning
those incidents were properly exhausted. Even if such claims existed and were not properly
exhausted, they do not preclude the properly exhausted claims from proceeding. Jones v.
Bock, 549 U.S. 199, 222 (2007) (“A typical PLRA suit with multiple claims, on the other
hand, may combine a wide variety of discrete complaints, about interactions with guards,
prison conditions, generally applicable rules, and so on, seeking different relief on each
claim. There is no reason failure to exhaust on one necessarily affects any other.”).
       28   Id. at 217 (quoting 42 U.S.C. § 1997e(a)).
       29   Id. at 218.
        Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting United States v. L.A. Tucker
       30

Truck Lines, Inc., 344 U.S. 33, 37 (1952)).


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administrative remedies “is an affirmative defense, normally to be pled by a
defendant,” it was nonetheless permitted to dismiss a pro se prisoner’s claims
sua sponte if that failure was “apparent on the face of the pleadings.” It thus
decided to dismiss Yankton’s claims because such a failure was apparent on
the face of his motion to stay.
       But, as a preliminary matter, a motion is not a pleading, 31 and a district
court may only “dismiss a case prior to service on defendants for failure to state
a claim, predicated on failure to exhaust [administrative remedies], if the
complaint itself makes clear that the prisoner failed to exhaust.” 32 “Of course,
before acting on its own initiative, a court must accord the parties fair notice
and an opportunity to present their positions.” 33
       Yankton’s complaint and amended complaint do not make it apparent
that he failed to exhaust his administrative remedies. Neither did they need to
make it apparent that he had exhausted those remedies. 34 Although the MDOC
officials’ answer alleged that the affirmative defense precluded Yankton’s
claims “if [he] fail[ed] to comply,” Yankton has denied that perfunctory
allegation. 35


        FED. R. CIV. P. 7 (distinguishing between pleadings, including “a complaint” and
       31

“an answer to a complaint,” and motions).
       32 Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (emphasis added); c.f. Gonzalez
v. Seal, 702 F.3d 785, 788 n.1 (5th Cir. 2012) (“We note that our decision only applies in the
case where the defendant moves to dismiss for failure to exhaust administrative remedies.
The issue of whether the court can raise the exhaustion issue sua sponte is not before us.”).
       33   Day v. McDonough, 547 U.S. 198, 210 (2006).
       34Bock, 549 U.S. at 216 (“[F]ailure to exhaust is an affirmative defense under the
PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in
their complaints.”).
       35“[A]n allegation is considered denied or avoided” when “a responsive pleading is
not required.” FED. R. CIV. P. 8(b)(6). Because “a reply to an answer” is not required unless
the court orders it, FED. R. CIV. P. 7(a), an affirmative defense contained in an answer is
automatically denied or avoided.


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      Yankton’s motion to stay, which the district court relied on as
“conceding” that Yankton had failed to exhaust his administrative remedies,
does nothing of the kind. Instead, it reiterates: “The request from Yankton is
not REGARDING the [Rule Violation Reports], but [for] a religious exception
to the hair grooming policy. A[n] on-going event without a religious exception.
A[n] on-going religious threat without an exception.” Rather than conceding
that he failed to exhaust his administrative remedies, Yankton’s motion
reiterates that he did all that the ARP allowed him to do. In fact, it appears
that Yankton filed the motion to stay to allow MDOC to fix its own mistake by
accepting his requests into the ARP and allowing them to proceed to the first
and second steps. In suggesting that this outcome is appropriate, Yankton
relied on another district court’s indication that a stay might allow the prison
to remedy its mistake and consider the prisoner’s grievance anew. That court
had explained: “[I]f the defendants wish to file a motion to stay this action to
allow the parties to funnel [the plaintiff’s] grievance through the second and
third stages of the grievance procedure, such a request would deserve
consideration.” 36 Yankton’s motion may not have been clear in what it sought,
but it was clear in indicating that he had not failed to exhaust his
administrative remedies. It was improper for the district court to dismiss
Yankton’s claims sua sponte on the basis of a motion, not the complaints, and
without informing Yankton that it intended to do so.
                                     CONCLUSION
      For the forgoing reasons, we REMAND for further proceedings
consistent with this opinion.




      36 Ouellette v. Me. State Prison, No. Civ. 05–139–B–W, 2006 WL 173639, at *4 (D.
Me. Jan. 23, 2006) (emphasis added).


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