            Case: 14-10162   Date Filed: 07/09/2015   Page: 1 of 8


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10162
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:13-cv-00528-RV-CJK


ANIBAL SAN ANTONIO,

                                                           Plaintiff - Appellant,

versus

MARK HENRY,
RICHARD SUBSAVAGE,
JASON CROCKETT,
MARK SHIPMAN

                                                        Defendants - Appellees.
                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                               (July 9, 2015)

Before JORDAN, JILL PRYOR, and COX, Circuit Judges.

PER CURIAM:
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      Anibal San Antonio (“San Antonio”) appeals the district court’s dismissal

without prejudice of federal-law claims arising from incidents that occurred while

San Antonio was an inmate at Blackwater River Correctional Facility in Florida

(“Blackwater”).    The Defendants—Warden Mark Henry, Programs Warden

Richard Subsavage, Head Classification Officer Jason Crockett, and Senior

Chaplain Mark Shipman—are sued in their official and individual capacities.

      The district court dismissed the claims now before us on the ground that San

Antonio had not properly exhausted his administrative remedies as required by the

Prisoner Litigation Reform Act, 42 U.S.C. § 1997e. (Docs. 12, 14). We affirm the

district court’s judgment dismissing without prejudice San Antonio’s “Law Clerk

Claim” for failure to properly exhaust his administrative remedies. We vacate the

district court’s judgment dismissing San Antonio’s “Dormitory Claims” and

remand them for further proceedings.

                                       I. Facts

      We presume the parties’ familiarity with the facts. This case was resolved

on the basis of a motion under Federal Rule of Civil Procedure 12(b)(6) directed

only at San Antonio’s complaint. He attached exhibits to his complaint that we

also have considered. We recite only the facts necessary to resolve the appeal.

      These are the facts underlying the Dormitory Claims. When San Antonio

was an inmate at Blackwater, he was removed on April 5 by the Defendant

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Shipman from the Faith and Character Based Dormitory. San Antonio alleges that

he was removed for administrative reasons, but that the Defendant Shipman did not

comply with regulations of the Florida Department of Corrections. (Doc. 3, Ex. B,

¶¶ 16-19, 34-35). San Antonio does not allege that any other defendant was

involved in the decision to remove him. He filed an informal grievance against the

Defendant Shipman on July 19. San Antonio alleges that he waited so long to file

the informal grievance because reprisal would occur that would preclude him from

completing his certified law clerk training. (Id., ¶ 21). Blackwater denied the

formal grievance on August 9. Neither the record nor any party explains why nor

what happened to the informal grievance. On August 17, San Antonio mailed an

appeal of Blackwater’s August 9 formal-grievance decision to the Office of the

Secretary of the Florida Department of Corrections (“Central Office”). Central

Office rejected the grievance as untimely.

      These are the facts underlying the Law Clerk Claim.          On July 23, the

Defendant Crockett removed San Antonio from his position as a law clerk. San

Antonio does not allege in his complaint that any other defendant was involved in

this decision. San Antonio does not allege in his complaint any facts describing

why the Defendant Crockett removed him, but he includes conclusory statements

that he did so in retaliation for San Antonio’s filing the informal grievance against

the Defendant Shipman. (Id., ¶¶ 33, 38, 43). On July 25, San Antonio grieved the

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Defendant Crockett’s action directly to Central Office. Central Office rejected the

direct grievance on August 2, reasoning that San Antonio had not alleged in his

direct grievance sufficient reasons why he could not pursue the grievance against

the Defendant Crockett through Blackwater grievance channels. San Antonio took

no further action with respect to this grievance, which underlies the Law Clerk

Claim.

                             II. Standard of Review

      We must conduct sua sponte, plenary review of subject matter jurisdiction

whenever it appears lacking. Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1468

(11th Cir. 1997). As a jurisdictional issue, mootness may be raised sua sponte by

this court at any time. National Advertising Co. v. City of Miami, 402 F.3d 1329,

1331-32 (11th Cir. 2005).      Factual findings underlying a Prisoner Litigation

Reform Act ruling are reviewed for clear error. Bryant v. Rich, 530 F.3d 1368,

1377 (11th Cir. 2008).

                                 III. Discussion

            A. Exhaustion of Administrative Remedies Requirements

      The Prisoner Litigation Reform Act provides that “[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.” 42

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U.S.C. § 1997e(a).     The Supreme Court has held that “proper exhaustion of

administrative remedies is necessary” as a prerequisite for prisoners to bring any

claim in federal court. Woodford v. Ngo, 541 U.S. 81, 84, 126 S. Ct. 2378, 2382

(2006) (emphasis added). Exhaustion is “proper” when the prisoner “[complies]

with an agency’s deadlines and other critical procedural rules . . . .” Id., 541 U.S.

at 90, 126 S. Ct. at 2386.

      The grievance procedure promulgated by the Florida Department of

Corrections requires: (1) an informal grievance submitted to a designated staff

member within twenty days of a challenged occurrence; (2) a formal grievance

submitted to the warden’s office within the earlier of fifteen days (a) from the

response to the informal grievance, or (b) from the challenged occurrence; and (3)

a direct grievance to the Central Office within fifteen calendar days of the

challenged occurrence. FLA. ADMIN. CODE r. 33-103.005–103.007; 33-103-011(1).

A “direct grievance” (e.g., a grievance alleging that reprisal from prison staff will

result from filing an informal or a formal grievance) may be filed directly with the

Central Office. Id., 33-103.007(6)(a). The inmate must “resubmit his . . . grievance

at the appropriate level” if Central Office decides that it does not qualify as a direct

grievance. Id., 33-103.007(6)(d).




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                                B. Law Clerk Claim

      San Antonio contends that the Central Office wrongfully rejected his direct

grievance underlying the Law Clerk Claim on the basis that it did not explain

adequately why he could not pursue the grievance at Blackwater. The Defendants

contend that there was a substantive defect in San Antonio’s grievance. And, the

Defendants contend that San Antonio could have timely amended and re-filed the

law clerk grievance and simply chose not to do so.

      The Law Clerk Claim was not properly exhausted under the Prison

Litigation Reform Act as the Act is interpreted by the Woodford Court. The

district court was correct to dismiss it for failure to properly exhaust. San Antonio

had ample time to re-file either with Blackwater or with Central Office. His choice

not to do so was a failure to properly exhaust.

                               C. Dormitory Claims

      San Antonio contends, and the Defendants concede, that the district court

erred in determining that San Antonio untimely filed the Dormitory Claims appeal

to Central Office. The Defendants contend, nevertheless, that San Antonio has not

stated a claim in his complaint for deprivation of his religious-freedom or

religious-expression rights under either the First Amendment or the Religious Land

Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et. seq. (“RLUIPA”).

The Defendants never raised a failure-to-state-a-claim challenge to either the

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RLUIPA or the First Amendment claim. They may not do so for the first time on

appeal. Blue Cross & Blue Shield of Alabama v. Sanders, 138 F.3d 1347, 1353–54

(11th Cir. 1998).

      We question whether we have subject-matter jurisdiction to resolve the

RLUIPA claim. The Government states in its brief that San Antonio is no longer

housed at Blackwater. (Red Brief 2, n.3). Because the only relief San Antonio may

obtain for a RLUIPA violation is declaratory and injunctive relief, see Smith v.

Allen, 502 F.3d 1255, 1271–75 (11th Cir. 2007), abrogated on other grounds by

Sossamon v. Texas, 131 S. Ct. 1651, 1655–1657 (2011) (abrogating the Smith

court’s holding that RLUIPA waived state sovereign immunity), San Antonio’s

RLUIPA claim might be moot. The district court should determine in the first

instance whether the RLUIPA claim is moot. And, because the district court

disposed of both of the Dormitory Claims solely on a failure-to-exhaust basis, it

has not considered the merits of either the RLUIPA or the First Amendment claim.

We, therefore, remand the Dormitory Claims for further proceedings.

                                 IV. Conclusion

      For the reasons stated in this opinion, we affirm the district court’s judgment

dismissing the Law Clerk claim.        We vacate the district court’s judgment

dismissing the Dormitory Claims and remand them to the district court for further

proceedings.

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AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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