              Case: 10-14600    Date Filed: 09/28/2012   Page: 1 of 6

                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                      _____________________________

                               No. 10-14600
                           Non-Argument Calendar
                      _____________________________

                     D. C. Docket No. 5:10-cv-00024-MTT


LAWRENCE RUPERT SMITH,
                                                                Plaintiff-Appellant,

     versus

WILLIAM TERRY, Warden,
MIZELL DAVIS, Deputy Warden, et al.
                                                            Defendants-Appellees.

               _________________________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
               _________________________________________

                               (September 28, 2012)


Before HULL, EDMONDSON, and BLACK, Circuit Judges.


PER CURIAM:
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      Lawrence Rupert Smith, a Georgia prisoner proceeding pro se, appeals the

dismissal of his 42 U.S.C. § 1983 civil rights action for failure to exhaust his

administrative remedies, as required by the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. § 1997e(a). No reversible error has been shown; we affirm.

      On 14 January 2010, Smith filed his section 1983 complaint against various

prison officers and medical staff (“Defendants”), alleging that he had received

inadequate medical care for his knee injury in violation of the Eighth Amendment.

On 30 March 2010 -- before Defendants filed a responsive pleading and before the

district court ruled on his original complaint -- Smith filed a “Supplemental

Complaint” in which he asserted new claims and named additional defendants.

      Defendants moved to dismiss Smith’s original complaint for failure to

exhaust his administrative remedies under section 1997e(a). Under the Georgia

Department of Corrections grievance process, prisoners must attempt to resolve

grievances internally by following these three steps: (1) file an informal grievance,

to which the prisoner’s counselor must respond within 10 days; (2) file a formal

grievance, to which the warden must respond within 30 days; and (3) file an

appeal with the Central Office in Atlanta, to which the Commissioner must

respond within 90 days. Smith completed the first two steps of this grievance

process and filed an appeal with the Central Office. But he failed either to receive

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the Commissioner’s denial of his appeal or to wait the requisite 90 days before

filing his section 1983 complaint. The Commissioner then provided a timely

denial of Smith’s appeal on 1 March 2010, well after Smith filed this suit on 14

January.

      The magistrate judge concluded that Smith had failed to exhaust his

administrative remedies and recommended granting Defendants’ motion to

dismiss. In a footnote, the magistrate judge acknowledged Smith’s supplemental

complaint, but stated that “for reasons which will become apparent in this

recommendation, the addition of these [defendants] and [Smith’s] new claims is

unnecessary.” Smith objected to the magistrate judge’s recommendation,

contending that his supplemental complaint -- filed after he received the

Commissioner’s denial of his appeal -- cured the exhaustion defect. The district

court adopted the magistrate judge’s recommendation and dismissed Smith’s

complaint. This appeal followed.

      We review de novo dismissals for failure to exhaust administrative remedies

under section 1997e(a). See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir.

1998). In addition, we liberally construe pro se pleadings. See Tannenbaum v.

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




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      Section 1997e(a) provides that “[n]o action shall be brought with respect to

prison conditions under [section 1983], 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) (emphasis added).

“Congress enacted this mandatory exhaustion requirement . . . as part of the

PLRA’s effort to curtail frivolous and abusive prisoner litigation.” Alexander, 159

F.3d at 1324. Because “exhaustion is now a pre-condition to suit,” courts lack

discretion to waive the exhaustion requirement. Id. at 1325-26.

      We have interpreted the term “brought” -- as used in section 1997e(a) -- to

mean “the filing or commencement of a lawsuit, not . . . its continuation.” See

Harris v. Garner, 216 F.3d 970, 974 (11th Cir. 2000) (en banc) (interpreting

section 1997e(e) of the PLRA, but noting expressly that we interpret the term

“brought” identically under both sections 1997e(a) and 1997e(e)). Thus, “when a

state provides a grievance procedure for its prisoners, as Georgia does here, an

inmate alleging harm suffered from prison conditions must file a grievance and

exhaust the remedies available under that procedure before pursuing a § 1983

lawsuit.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis

added). That Smith failed to exhaust his administrative remedies before filing his




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original complaint is undisputed. But on appeal, Smith contends that his

supplemental complaint cured the exhaustion defect.*

       As an initial matter, whether Smith sought to amend his complaint under

Federal Rule of Civil Procedure 15(a), or to supplement his complaint under Rule

15(d), is unclear. The record also fails to establish whether the district court ever

permitted Smith to amend or supplement his complaint. That Smith’s

“Supplemental Complaint” was never served on Defendants and that the

magistrate judge’s report indicated that such a supplement was “unnecessary”

suggest that such permission was not granted. But, even if we assume -- without

deciding -- that Smith was permitted to amend or supplement his complaint, his

“Supplemental Complaint” fails to cure the exhaustion defect.

       The only facts pertinent to determining whether a prisoner has satisfied the

PLRA’s exhaustion requirement are those that existed when he filed his original

complaint. See Harris, 216 F.3d at 981. Because Smith’s attempt to amend or

supplement his original complaint did not change the important historical fact: his

administrative remedies were unexhausted when he filed his original complaint.

Therefore, he cannot cure the exhaustion defect. See id. (stating that an amended


       *
        Smith also argues that he was not required to identify each Defendant during the prison
grievance process. Because we conclude that Smith failed to exhaust his administrative remedies
on other grounds, we need not address this issue.

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or supplemental complaint could not cure the original defective complaint because

“[n]o amendment or supplement to a pleading can change a historical fact.”). And

although Rule 15(d) permits parties to supplement a pleading even when the

original pleading is defective, Rule 15 “does not and cannot override a substantive

requirement or restriction contained in a statute (especially a subsequently enacted

one).” Id. at 982-83.

      Because Smith failed to exhaust his administrative remedies before he

“brought” his section 1983 suit, dismissal was proper.

      AFFIRMED.




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