                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 08-14971                   APRIL 17, 2009
                            Non-Argument Calendar            THOMAS K. KAHN
                                                                  CLERK
                          ________________________

                        D. C. Docket No. 06-00075-CV-4

BENJAMIN R. SINGLETON,

                                                              Plaintiff-Appellant,

                                     versus

DEPARTMENT OF CORRECTIONS, ET AL.,

                                                                     Defendants,

JEFFREY JOHNSON,
Sergeant, Transport Officer,
Georgia State Prison,
DOUGLAS FRANKS,
JANE DOE,
Nurses, Georgia State Prison,
DARLENE PARKER,


                                                           Defendants-Appellees.
                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________
                               (April 17, 2009)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Benjamin R. Singleton, a Georgia prisoner proceeding pro se, appeals the

district court’s dismissal of his civil rights complaint, brought pursuant to 42

U.S.C. § 1983, for failure to exhaust his administrative remedies as required by the

Prisoner Litigation Reform Act, 28 U.S.C. § 1915A, 42 U.S.C. § 1997e(a)

(“PLRA”). On appeal, Singleton asserts that the district court erred in dismissing

his complaint because the district court: (1) failed to comply with a previous

opinion we issued in his case by not applying summary judgment standards when

resolving a factual dispute concerning whether he exhausted his administrative

remedies; (2) erroneously found that he did not properly exhaust his administrative

remedies because his administrative appeal was untimely; and (3) improperly

determined that his administrative appeal was untimely without reference to his

administrative appeal form, which was not included in the record. In addition,

Singleton contends that the district court erred in denying his motion for

reconsideration of its order dismissing his complaint.

                                           I.

      We review “de novo a district court’s interpretation and application of 42

U.S.C. § 1997e(a)’s exhaustion requirement.” Johnson v. Meadows, 418 F.3d



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1152, 1155 (11th Cir. 2005). We review the district court’s factual findings for

clear error. Chandler v. Crosby, 379 F.3d 1278, 1288 (11th Cir. 2004). Under 42

U.S.C. § 1997e(a), “[n]o 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.” “This provision entirely eliminates judicial discretion

and instead mandates strict exhaustion, irrespective of the forms of relief sought

and offered through administrative avenues.” Johnson, 418 F.3d at 1155 (internal

quotation marks omitted). In order to satisfy the PLRA’s exhaustion requirement,

“[p]risoners must timely meet the deadlines or the good cause standard of

Georgia’s administrative grievance procedures before filing a federal claim.” Id. at

1159. “The defendants bear the burden of proving that the plaintiff has failed to

exhaust his administrative remedies.” Turner v. Burnside, 541 F.3d 1077, 1082

(11th Cir. 2008).

      We have held that “[b]ecause exhaustion of administrative remedies is a

matter in abatement and not generally an adjudication on the merits, an exhaustion

defense . . . is not ordinarily the proper subject for summary judgment; instead, it

should be raised in a motion to dismiss...” Bryant v. Rich, 530 F.3d 1368, 1374-75

(11th Cir. 2008) cert denied, 129 S. Ct. 733 (2008) (internal quotation marks



                                           3
omitted). A district court may properly consider facts outside of the pleadings to

resolve a factual dispute regarding exhaustion where the factual dispute does not

decide the merits and the parties have a sufficient opportunity to develop the

record. Id. at 1376.

      “Under the law of the case doctrine, both district courts and appellate courts

are generally bound by a prior appellate decision in the same case.” Alphamed,

Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1285-86 (11th Cir. 2004). This

doctrine preserves judicial efficiency by ensuring that litigation comes to an end.

Id. at 1286. However, we have held:

        The law of the case doctrine will bar us from reconsideration of an
        issue we have previously decided unless (1) our prior decision
        resulted from a trial where the parties presented substantially
        different evidence from the case at bar; (2) subsequently released
        controlling authority dictates a contrary result; or (3) the prior
        decision was clearly erroneous and would work manifest injustice.

Id. at 1286 n.3.

      Here, the second exception to the law of the case doctrine applies. In this

Court’s previous unpublished opinion in Singleton’s case, we held that where lack

of exhaustion is in dispute and is not apparent from the face of the pleadings, the

issue should be considered on summary judgment. Singleton v. Dep’t of Corr., No.

07-14231, 2008 U.S. App. Lexis 10776. At 5. (Per curiam). We further held that

because the district court considered facts beyond the pleadings in granting the

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defendant’s motion to dismiss for lack of exhaustion, the district court should have

applied summary judgment standards. Id. at 6. Accordingly, we directed the

district court to determine, on remand, whether Singleton raised a genuine issue of

material fact regarding the timeliness of his administrative appeal. Id. This holding

is at odds with this Court’s subsequent published opinion in Bryant. In those cases

we held that a district court should resolve factual disputes related to a motion to

dismiss for lack of exhaustion without converting the motion to one for summary

judgment. Bryant, 530 F.3d at 1374-76. Moreover, Singleton filed numerous

pleadings, affidavits, and exhibits regarding the exhaustion issue throughout this

litigation. Thus, the record demonstrates that Singleton had ample time to develop

the record. See Bryant, 530 F.3d at 1376. Because Bryant is subsequent controlling

authority, it dictates a result contrary to that in Singleton. Alphamed, 367 F.3d at

1286 n.3. Based on this Court’s Bryant decision and the fact that Singleton had

ample time to develop the record, the district court properly looked beyond the

pleadings to resolve the exhaustion issue. Alphamed, 367 F.3d at 1286 n.3; Bryant,

530 F.3d at 1376.

      Moreover, the district court did not clearly err in making the factual finding

that Singleton failed to satisfy the PLRA’s exhaustion requirement. Chandler, 379

F.3d at 1288; 42 U.S.C. § 1997e(a). Sgt. Johnson submitted the affidavit of James



                                           5
Allen and the SOP in effect during April 2004, both of which confirmed that

Singleton had four business days to file an administrative appeal. Attached to

Singleton’s complaint was a grievance form indicating that Singleton confirmed

receipt of the warden’s denial on March 30, 2004, and that a prison official

confirmed receipt of Singleton’s appeal on April 6, 2004, which was five business

days later, and, therefore, one day late.

      There is nothing in the record, other than Singleton’s own affidavit, to verify

his assertion that he handed his appeal to his grievance counselor on March 31,

2004. While Singleton asserts that the district court erred by failing to compel the

defendants to produce a copy of his appeal form, the absence of this form does not

demonstrate that the district court clearly erred in finding that the defendants met

their burden of demonstrating lack of exhaustion. Chandler, 379 F.3d at 1288. In

his pleadings below and briefs on appeal, Singleton does not explain why he was

unable to include a copy of the appeal form or why the record indicates that prison

officials did not receive an appeal form. Moreover, Singleton stated in his

pleadings that inmates were required to attach an appeal form to the grievance form,

and that the forms “become[] one in the appeal process.” Thus, Singleton’s

pleadings and the record indicate that prison officials would have received

Singleton’s appeal form on the same date it received his grievance form–April 6,



                                            6
2004. In addition, while Singleton points out that the appeal form is the only

document that the inmate signs and dates, this date is not determinative of when

prison officials received the appeal. As a result, the district court did not clearly err

in finding that the date the prison officials placed on Singleton’s grievance form on

appeal was the “best evidence” of when he filed his appeal, and, accordingly, did

not clearly err in finding that Singleton did not file his appeal until April 6, 2004.

Chandler, 379 F.3d at 1288. Based on these factual findings, district court did not

err in concluding that Singleton failed to exhaust his administrative remedies

because he did not timely file his administrative appeal. Id.; Johnson, 418 F.3d at

1159. Accordingly, his complaint was properly dismissed for lack of exhaustion

under the PLRA. Johnson, 418 F.3d at 1155, 1159.



                                           II.

      We review the district court’s denial of a motion for reconsideration for

abuse of discretion. Corwin v. Walt Disney World Co., 475 F.3d 1239, 1254 (11th

Cir. 2007). “Motions for reconsideration should not be used to raise legal

arguments which could and should have been made before the judgment was

issued.” Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir. 1998).

      In his motion for reconsideration, Singleton merely repeated the arguments



                                            7
that he raised before the district court dismissed his complaint. Accordingly, the

district court did not abuse its discretion in denying Singleton’s motion for

reconsideration.

      Upon review of the record and the parties’ briefs on appeal, we discern no

reversible error. Accordingly, we affirm.

      AFFIRMED.




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