                                                            [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                     FEBRUARY 7, 2008
                                                     THOMAS K. KAHN
                               No. 07-10866
                                                          CLERK
                           Non-Argument Calendar
                         ________________________

                 D. C. Docket No. 05-00358-CV-FTM-99-SPC

JOHN WEST DAVIS,
                                                    Plaintiff-Appellant,

                                    versus

FLORIDA DEPARTMENT OF CORRECTIONS,
WARDEN BARRY,
ASST. WARDEN LANGFORD,
ASST. WARDEN LOWE,
D. K. HENSON, Mayor, et al.,
                                              Defendants-Appellees.
                         ________________________

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

                              (February 7, 2008)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     John West Davis, a state prisoner proceeding pro se, appeals from the
district court’s order dismissing his 42 U.S.C. § 1983 civil rights complaint, for

failure to exhaust available administrative remedies pursuant to the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), Pub.L.No. 104-134, 110

Stat. 1321 (April 26, 1996). On appeal, Davis argues that the district court erred

in failing to properly evaluate his compliance with the administrative regulations

governing inmate grievances. He contends that the district court failed to consider

the grievance response procedures regarding the time frames in which Florida

Department of Corrections (“FDOC”), officials must respond to inmate grievances.

He argues that as FDOC officials failed to timely respond to his grievances, he

properly exhausted available administrative remedies, and dismissal was therefore

improper.

      We review de novo the district court’s dismissal of a suit for failure to

exhaust available administrative remedies under § 1997e(a). Alexander v. Hawk,

159 F.3d 1321, 1323 (11th Cir. 1998). In ruling on a motion to dismiss, the

district court treats all allegations in the complaint as true, and all reasonable

inferences are to be drawn in the plaintiff’s favor. Chesser v. Sparks, 248 F.3d

1117, 1121 (11th Cir. 2001) (reviewing a denial of the defense of qualified

immunity).

      The PLRA provides that “[n]o action shall be brought with respect to prison



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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.” 42 U.S.C. § 1997e(a). Section 1997e(a)

requires “proper exhaustion of administrative remedies,” and a prisoner cannot

satisfy the exhaustion requirement by filing an untimely or otherwise procedurally

defective administrative grievance or appeal. See Woodford v. Ngo, 548 U.S. ___,

126 S.Ct. 2378, 2387-93, ___ L.Ed.2d ___ (2006).

      The Florida Administrative Code (“FAC”), states, “informal grievances must

be received within a reasonable time of when the incident or action being grieved

occurred. Reasonableness shall be determined on a case-by-case basis.” Fla.

Admin.Code Ann. r. 33-103.011(1)(a). Direct grievances must be received within

15 calendar days from the date on which the incident or action being grieved

occurred. Id. at 33-103.011(1)(d). Furthermore, where an inmate’s grievance is

denied for failure to timely file, he is barred from bringing a federal action on his

claim, as he did not fully and properly exhaust his administrative remedies.

Johnson v. Meadows, 418 F.3d 1152 (11th Cir. 2005).

      The FAC further lays out the grievance procedures available to inmates

within the FDOC. See Fla. Admin. Code Ann. r. 33-103. It states, “inmates shall

utilize the informal grievance process prior to initiating a formal grievance except



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in the case of an emergency grievance. . . . [or] a medical grievance. . . .” Id. at 33-

103.005(1). Within 10 calendar days of receipt of an informal grievance by the

reviewing authority, a written response shall be provided to the filing inmate. See

id. at 33-103.011(3)(a). If the inmate’s informal grievance is denied, he may file a

formal grievance. Id. at 33-103.006(2)(h). If the issue is not resolved at the

institutional level, the inmate must file an appeal to the Office of the Secretary of

the FDOC. Id. at 33-103.007. Where the inmate does not agree to an extension of

the time in which he will be provided a response to his grievance, “expiration of a

time limit at any step in the process shall entitle the complainant to proceed to the

next step of the grievance process.” Id. at 33-103.011(4).

      Upon the filing of an emergency grievance, which bypasses the informal

grievance process, “[i]f an emergency is not found to exist, a response will be

provided to the inmate indicating that the complaint is not an emergency with

instructions to resubmit at the proper level, signed and dated by the responding

employee, and returned to the inmate within 72 hours of receipt.” See id. at 33-

103.006(3)(a)(4) (internal quotations omitted). Where the inmate has not agreed to

an extension of time at the central office level of review, and the office fails to

respond within the mandated time frame, “[the inmate] shall be entitled to proceed

with judicial remedies as he would have exhausted his administrative remedies.”



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Id. at 33-103.011(4).

      Upon review of the district court record and Davis’s appellate brief, we find

reversible error. Davis fully and properly exhausted his available administrative

remedies. However, the FDOC office failed to provide timely responses to Davis’

grievances as required by Fla. Admin. Code Ann. r. 33-103.006(3)(a)(4) (2007)

and 33.103.011(3) and (4). Accordingly, we vacate the district court’s order

dismissing the complaint, and remand for further consideration.

      VACATE AND REMAND.




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