                                                                         [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT
                                                                      FILED
                                                             U.S. COURT OF APPEALS
                           ________________________
                                                               ELEVENTH CIRCUIT
                                                                   JUNE 25, 2001
                                 No. 00-14688                   THOMAS K. KAHN
                             Non-Argument Calendar                   CLERK
                           ________________________

                      D. C. Docket No. 00-00393-CV-JOF-1

ARSENIO LEAL,

                                                                 Plaintiff-Appellant,

                                       versus

GEORGIA DEPARTMENT OF CORRECTIONS,

                                                                Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________
                                (June 25, 2001)

Before ANDERSON, Chief Judge, EDMONDSON and WILSON, Circuit Judges.

PER CURIAM:

      Arsenio Leal, proceeding pro se, appeals the district court's sua sponte

dismissal of his 28 U.S.C. § 1983 civil rights action pursuant to the Prison

Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A(b)(1), for failure to state a
claim upon which relief may be granted. Leal argues that the district court erred in

concluding that his failure to satisfy the statute of limitations precluded him from

stating a claim. For the reasons stated below, we vacate and remand.

                                  I. BACKGROUND

      Leal, a Georgia prisoner, filed a pro se § 1983 complaint against the Georgia

Department of Corrections ("DOC") in February 2000 alleging that: (1) the DOC

did not adequately perform its duty to protect him from an attack by another inmate

in March 1997; (2) the DOC was negligent in responding to the attack, which

resulted in additional injuries; and (3) after a disciplinary hearing, he was placed in

isolation, while the inmate who attacked him was not disciplined. Leal sought

monetary damages and an order from the district court expunging the disciplinary

report from his institutional record.

      On July 20, 2000, the district court entered a two and one-half page order

dismissing Leal's suit, sua sponte, under the PLRA's screening provisions, 27

U.S.C. § 1915A(b)(1), for failure to state a claim upon which relief could be

granted.1 The court reasoned that Leal's suit was barred by Georgia's two-year

      1
       Section 1915A states in pertinent part:
      (a) Screening.-- The court shall review, before docketing, if feasible or, in any
      event as soon as practicable after docketing, a complaint in a civil action in which
      a prisoner seeks redress from a governmental entity or officer or employee of a
      governmental entity.
      (b) Grounds for Dismissal. -- On review, the court shall identify cognizable

                                               2
statute of limitations applicable to § 1983 suits because the complained-of-actions

occurred in March 1997, and Leal did not file suit until February 2000.

       On August 23, 2000, Leal filed his notice of appeal from the dismissal. To

be timely, a pro se prisoner's notice of appeal in a civil case must either be filed in

the district court, or alternatively, placed in the institutional mail system or legal

mail system, not later than 30 days after the judgment appealed from is entered on

the docket. See Fed. R. App. P. 4(a)(1)(A) & (c)(1); Houston v. Lack, 487 U.S.

266, 276, 108 S. Ct. 2379, 2385 (1988). However, the 30-day appeal period does

not begin to run until a final judgment is entered on a separate document pursuant

to Federal Rules of Civil Procedure 58 and 79(a).2 See Fed. R. App. P. 4(a)(7) ("A

judgment or order is entered for purposes of Rule 4(a) when it is entered in

compliance with Rule 58 and 79(a) of the Federal Rules of Civil Procedure").

Here, the district court entered an order dismissing Leal's suit on July 20, but the

court failed to enter a final judgment on a separate document pursuant to Rule 58.


       claims or dismiss the complaint, or any portion of the complaint, if the complaint
       --
              (1) is frivolous, malicious, or fails to state a claim upon which relief may
              be granted; or
              (2) seeks monetary relief from a defendant who is immune from such
              relief.
       2
        Rule 58 provides, in relevant part, that "[e]very judgment shall be set forth on a separate
document. A judgment is effective only when so set forth and when entered as provided in Rule
79(a)." Fed. R. Civ. P. 58. Rule 79(a) requires that a judgment or order be entered on the civil
docket and that the docket "show the date the entry is made." Fed. R. Civ. P. 78(a).

                                                 3
Because "the time to file a notice of appeal does not begin to run until a separate

judgment is entered pursuant to Rule 58 . . . there is no lack of appellate

jurisdiction on the basis of untimeliness" even though Leal did not file his notice of

appeal until August 23. See Reynolds v. Golden Corral Corp., 213 F.3d 1344,

1346 (11th Cir. 2000) (per curiam).

      Instead, we are faced with a violation of the separate judgment rule. In such

a case, we have reasoned that it would be "futile and a waste of judicial resources

to remand to the district court for entry of a conforming judgment." Id. Instead,

we will assume appellate jurisdiction and construe Leal's notice of appeal as timely

since there is no separate judgment from which the appeal period ran. Id. at 1347.

                                 II. DISCUSSION

      Having concluded that we have appellate jurisdiction, we turn to the merits.

Leal argues that the statute of limitations is inapplicable to him because: (1) DOC

staff members informed him that his only recourse was through the prison's

internal grievance procedures, which he exhausted, and which delayed his filing of

the suit against the DOC; (2) since the statute of limitations began to run, the DOC

has moved him to two different prisons, placed him in isolation, and put him into a

mental health facility, which significantly delayed his ability to research the issues

herein; (3) the DOC lacks staff to help the Spanish-speaking inmates with English


                                           4
legal requirements, which delayed his appeal; and (4) even under the adverse

conditions caused by the state, he acted reasonably and diligently in effecting

timely and proper service.

        The DOC responds that Leal's suit is barred by the statute of limitations and

that, even if true, none of his justifications for failing to file a timely claim is

sufficient to invoke Georgia's tolling doctrines. Further, the DOC also argues that

this suit is barred by the Eleventh Amendment, and that the Department is not

subject to suit under § 1983 because it is not a "person" within the meaning of the

statute.

A. Standard of Review

        We have not yet decided what standard of review applies to a district court's

sua sponte dismissal under 28 U.S.C. § 1915A(b)(1). However, we have

concluded that we review de novo a district court's dismissal under 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.3

See Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). We found de novo

review appropriate because the language of § 1915(e)(2)(B)(ii) "tracks the

language of Federal Rule of Civil Procedure 12(b)(6)," and thus, the well-settled de

        3
         Section 1915(e)(2)(B)(ii) pertains to in forma pauperis proceedings, and states in
pertinent part that "the court shall dismiss the case at any time if the court determines that . . . the
action or appeal . . . fails to state a claim upon which relief may be granted. . . ." 28 U.S.C. §
1915(e)(2)(B)(ii) (2000 West. Supp.).

                                                   5
novo standard for 12(b)(6) dismissals should apply with equal force to a dismissal

for failure to state a claim under § 1915(e)(2)(B)(ii).4 Id.; see also Grossman v.

Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (noting that this Circuit

reviews de novo a district court's dismissal for failure to state a claim under Rule

12(b)(6)). The same reasoning applies with respect to a dismissal under §

1915A(b)(1) for failure to state a claim because this section mirrors §

1915(e)(2)(B)(ii). At least six other circuits that have considered the appropriate

scope of review have also concluded that review should be de novo. See, e.g.,

Sanders v. Sheahan, 198 F.3d 626, 626 (7th Cir. 1999); Liner v. Goord, 196 F.3d

132, 134 (2nd Cir. 1999); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998)

(per curiam); Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998);

McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), rev'd on other

grounds, Starks v. Reno, 210 F.3d 373 (table), 2000 WL 353526 (6th Cir. 2000)

(per curiam) (unpublished); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996)

(per curiam). We agree and hold that de novo review should be employed on

appeal from a § 1915A(b)(1) sua sponte dismissal for failure to state a claim.

B. The Statute of Limitations



       4
        Federal Rule of Civil Procedure 12(b)(6) permits a civil party to interpose a motion to
dismiss for "failure to state a claim upon which relief may be granted."

                                                6
      The PLRA amended 42 U.S.C. § 1997e to provide that:

      No actions 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.

42 U.S.C. 1997e(a) (West. Supp. 2000). We have recognized that "[t]he plain

language of th[is] statute makes exhaustion a precondition to filing an action in

federal court." Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (per

curiam) (quoting Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir. 1999)). This

means that "until such administrative remedies as are available are exhausted," a

prisoner is precluded from filing suit in federal court. See id. (affirming dismissal

of prisoner's civil rights suit for failure to satisfy the mandatory exhaustion

requirements of the PLRA); Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir.

1999) ("reaffirm[ing] that section 1997e(a) imposes a mandatory requirement on

prisoners seeking judicial relief to exhaust their administrative remedies" before

filing suit in federal court), modified on other grounds, 216 F.3d 970 (11th Cir.

2000) (en banc); Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir.1999) (holding

that under the PLRA's amendments to § 1997e(a), "[a]n inmate incarcerated in a

state prison . . . must first comply with the grievance procedures established by the

state department of corrections before filing a federal lawsuit under section 1983");

Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999) (per curiam) (affirming

                                           7
dismissal of prisoner's civil suit for failure to satisfy the mandatory exhaustion

requirements of § 1997e(a)); Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir.

1998) (affirming dismissal of prisoner's Bivens action under § 1997e(a) for failure

to exhaust administrative remedies prior to filing suit in federal court)).

         Before filing the instant § 1983 suit, Leal indicates that he pursued the

administrative remedies available to him in the Georgia prison system. However,

before he filed the instant suit, two years expired, and thus, unless tolled, the

statute of limitations expired. See Williams v. City of Atlanta, 794 F.2d 624, 626

(11th Cir. 1986) (concluding that "the proper limitations period for all section 1983

claims in Georgia is the two year period set forth in O.C.G.A. § 9-3-33 for personal

injuries"). Specifically, the alleged constitutional violations occurred on March

23, 1997, and Leal did not file suit until February 14, 2000, almost three years

later.

         On appeal, Leal argues that the statute of limitations should not apply to

him, given the facts of his case. "Pro se pleadings are held to a less stringent

standard than pleadings drafted by attorneys and will, therefore, be liberally

construed." Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)

(per curiam). In so doing, we interpret Leal's argument to be that the statute of

limitations should have tolled while he was exhausting his administrative remedies.


                                             8
Because the statute of limitations may have been tolled on account of Leal's

exhaustion of administrative remedies, it does not appear beyond a doubt from the

complaint itself that Leal can prove no set of facts which would avoid a statute of

limitations bar. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1832

(1989) (employing the Rule 12(b)(6) standard with respect to a predecessor

statute). Accordingly, we must vacate the district court's sua sponte dismissal

under § 1915A.

      However, we decline to decide in the first instance the legal issue of whether

the mandatory exhaustion requirement of 42 U.S.C. § 1997e(a) and the actual

exhaustion of remedies by a prisoner will operate to toll the statute of limitations.

Because Leal's complaint was dismissed pursuant to the PLRA's screening

procedures, he had no opportunity to present his statute of limitations arguments to

the district court. Indeed, Leal's complaint was dismissed before any responsive

pleadings were filed by the DOC. Thus, none of the arguments interposed on

appeal were addressed below.

      "Issues raised for the first time in this Court are generally not considered

because the district court did not have the opportunity to consider them." Etienne

v. Inter-County Sec. Corp., 173 F.3d 1372, 1375 (11th Cir. 1999) (per curiam).

While there are five exceptions to this general rule, see Dean Witter Reynolds, Inc.


                                           9
v. Fernandez, 741 F.2d 355, 360-61 (11th Cir.1984), we will not exercise our

discretion to entertain the parties' arguments for the first time on appeal in this

case, see United States v. Southern Fabricating Co., 764 F.2d 780, 781 (11th

Cir.1985) (per curiam) (observing that "[t]he decision whether to consider" an

argument raised for the first time on appeal "is left to the appellate court's

discretion"). Instead, we vacate the district court's sua sponte dismissal of Leal's §

1983 suit and remand for the district court to consider, in the first instance, whether

the statute of limitations is tolled by a prisoner's satisfaction of the mandatory

exhaustion requirements of § 1997e(a). See Brown v. Morgan, 209 F.3d 595, 596

(6th Cir. 2000) ("the statute of limitations which applied to [the prisoner's] civil

rights action was tolled for the period during which his available state remedies

were being exhausted"); Harris v. Hegmann, 198 F.3d 153, 156-59 (5th Cir. 1999)

(looking to state tolling doctrines to determine whether a prisoner's mandatory

exhaustion of administrative remedies under § 1997e(a) should toll the statute of

limitations for purposes of a § 1983 suit). If the district court resolves this legal

issue in favor of tolling, then the court should address the factual issue of whether

Leal pursued administrative remedies such that sufficient tolling occurred to enable




                                           10
Leal to avoid a statute of limitations bar.5

       Should the court find the limitations period satisfied, it should address the

DOC's arguments that it is not amenable to suit under § 1983, and the court may, in

its discretion, permit Leal to amend his complaint to add the proper parties.

Because none of these issues were decided initially, we decline to address them for

the first time on appeal. Instead, we vacate the district court's sua sponte dismissal

for failure to state a claim and remand for further proceedings consistent with this

opinion.

                                      III. CONCLUSION

       Accordingly, we VACATE and REMAND.6




       5
      Of course, the district court, in its discretion, may address the factual issue first, which
may moot the legal issue.
       6
           Leal's request for oral argument is denied.

                                                  11
