Durell Sims v. Secretary, Florida Department of Corrections

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13745
____________________
DURELL SIMS,
Plaintiff-Appellee,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:16-cv-00049-RH-CAS
____________________
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2 Opinion of the Court 19-13745
Before B RANCH, GRANT, and TJOFLAT, Circuit Judges.
GRANT, Circuit Judge:
Durell Sims—a Florida prisoner—says that he deserves a
religious exemption from a Florida Department of Corrections
rule that beards can only be a half-inch long. The district court
agreed with him, and the Secretary of the Department does not
push back on that substantive ruling. Instead, the Secretary argues
that the decision was procedurally improper because an inmate
must file a “Petition to Initiate Rulemaking” to satisfy the Prison
Litigation Reform Act’s pre-suit exhaustion requirements. Sims
responds that the Secretary did not preserve that issue below. We
reject both parties’ arguments and affirm the district court.
Beginning with preservation, Sims contended that there was
a prohibition against appellate review of any matter raised at
summary judgment but not renewed during trial. We disagree;
more importantly, so does the Supreme Court. See Dupree v.
Younger, 143 S. Ct. 1382, 1389 (2023); see also Am. Builders Ins. Co. v.
Southern-Owners Ins. Co., 71 F.4th 847, 859–60 (11th Cir. 2023).
Though it was an open question when the parties argued this case,
the Supreme Court has since unanimously clarified that a “purely
legal issue resolved at summary judgment” is reviewable on appeal
even if the losing party failed to renew its arguments at or after
trial. Dupree, 143 S. Ct. at 1386–87.1 And that makes sense—
1 After the Supreme Court decided Dupree, both parties addressed the new case
in supplemental letter briefs. See Am. Builders Ins. Co., 71 F.4th at 860–61
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19-13745 Opinion of the Court 3
nothing in the Federal Rules of Civil Procedure or the Supreme
Court’s precedents requires a party to ask the district court to
reconsider a legal argument it already rejected. Because exhaustion
under the PLRA is treated as a matter in abatement—which
operates like a “purely legal issue” in Dupree—in this Circuit, we
can review the district court’s decision on that issue even though
the Secretary did not renew his argument after summary
judgment.
We therefore consider the Secretary’s exhaustion
argument—but we also disagree with it. When a state sets up a
grievance procedure for its prisoners, as Florida has done, a
prisoner must file a grievance and exhaust the remedies available
under that procedure before he can initiate a lawsuit. But a
prisoner need not do anything else. Florida’s three-step grievance
procedure for settling prisoner complaints does not include filing a
rulemaking petition, so a Florida prisoner need not seek
rulemaking before he can sue. We affirm.
I.
As a devout Muslim, Sims believes that growing a fist-length
beard is a necessary component of his religion. But that belief runs
headlong into regulations governing the Florida corrections
system. The Florida Department of Corrections “Grooming
Policy,” as the parties call it, does not leave much room for choice
on facial hair: prisoners can either be “clean shaven” or “grow and
(refusing to consider whether an argument raised a “purely legal issue” under
Dupree without briefing from the parties).
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4 Opinion of the Court 19-13745
maintain a half-inch beard.” Fla. Admin. Code r. 33-602.101(4).
The policy does not allow for exceptions. Id.
Sims sought relief through the Department’s grievance
process, starting with the prison chaplain. At the first step, his
informal grievance form explained that his religious beliefs
required him to grow a fist-length beard, but that the Department’s
grooming policy prevented him from doing so. The chaplain
denied the grievance, concluding that—despite Sims’s own views
on the subject—the prison’s rules were in line with his religious
beliefs. Step two was a formal grievance to the assistant warden.
That was also denied, which led to step three: an appeal to the
Secretary of the Florida Department of Corrections. That too was
rejected.
Once Sims had completed the internal grievance process
without success, he turned to the courts. He filed a pro se civil
action in federal court against the Secretary of Corrections,
claiming that he should be allowed to grow a fist-length beard
because the grooming rule (at least as applied to him) violated the
Religious Land Use and Institutionalized Persons Act. See 42 U.S.C.
§ 2000cc-1.2 RLUIPA prohibits imposing a “substantial burden” on
an incarcerated person’s religious exercise unless that burden
furthers a compelling government interest using the least
restrictive means. Id. § 2000cc-1(a).
2 Sims also contended that the grooming rule violated the First Amendment
and that an unrelated rule—the “strip search policy”—violated both RLUIPA
and the First Amendment. The district court granted summary judgment to
the Secretary on each of those claims, and Sims does not appeal those rulings.
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19-13745 Opinion of the Court 5
The Secretary moved to dismiss Sims’s complaint,
contending that he had failed to exhaust all of his administrative
remedies before filing suit—a requirement under the Prison
Litigation Reform Act, which governs how and when inmates can
file suit to challenge prison conditions. See 42 U.S.C. § 1997e(a).
The Secretary conceded that Sims had complied with the three
steps of the prison’s grievance process, but argued that more was
required. The Florida Administrative Procedure Act provides that
any “person regulated by an agency or having substantial interest
in an agency rule may petition an agency to adopt, amend, or
repeal a rule.” Fla. Stat. § 120.54(7)(a). Pointing to this provision,
the Secretary contended that Sims could have—and should have—
asked the Department to “amend” its grooming rule before he
turned to the judicial system.
The district court denied the Secretary’s motion to dismiss,
concluding that the PLRA only requires that prisoners exhaust
internal prison grievance procedures. Filing a petition for
rulemaking, it reasoned, is not part of that process. And in any
event, the court went on, a rulemaking petition is not classified as
an available remedy under the PLRA because the Department does
not inform prisoners that filing one is a required step.
Undeterred, the Secretary raised the exhaustion defense
again at summary judgment. The district court rejected the
argument for the second time—relying principally on its earlier
decision—and Sims’s case went to trial.
After a full bench trial on the merits, the district court ruled
for Sims. The court explained that the “whole point of RLUIPA is
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6 Opinion of the Court 19-13745
to require accommodation of religion—to allow an inmate an
exception to an otherwise-uniform policy that substantially
burdens the inmate’s religious exercise.” The Department’s
grooming policy, the court said, substantially burdened Sims’s
sincere religious exercise, but the Secretary did not show that its
half-inch beard policy was the least restrictive means of furthering
a compelling government interest. To remedy the harm, the court
ordered the Secretary to grant Sims an exception to the grooming
rule, allowing him to grow a fist-length beard in accordance with
his religious beliefs.
Rather than filing any post-trial motions challenging the
verdict, the Secretary appealed. He does not challenge the district
court’s decision that Sims has a right under RLUIPA to grow a fist-
length beard; instead, the only question he raises is whether Sims
exhausted the available administrative remedies as required by the
PLRA. Sims, for his part, says the Secretary cannot bring his
exhaustion argument here because it was not properly preserved at
or after trial.
II.
“We review a district court’s interpretation of the PLRA’s
exhaustion requirement de novo.” Whatley v. Smith, 898 F.3d 1072,
1082 (11th Cir. 2018).
III.
Before we can consider the Secretary’s exhaustion
argument, we need to decide whether it was preserved for appeal.
Sims argued for a blanket rule against appellate review of any
matter raised at summary judgment and not renewed in the district
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19-13745 Opinion of the Court 7
court before appeal. The primary authority that he cited for this
preservation requirement, Ortiz v. Jordan, stated broadly that a
party could not “appeal an order denying summary judgment after
a full trial on the merits.” 562 U.S. 180, 183–84 (2011). But the Ortiz
court specifically declined to address whether this rule applied to
“purely legal” questions. See id. at 190.
The Supreme Court recently clarified in Dupree v. Younger
that Ortiz was more limited than Sims suggests: it held that “a party
must raise a sufficiency-of-the-evidence claim in a post-trial motion
to preserve it for appeal.” Dupree, 143 S. Ct. at 1389 (citing Ortiz,
562 U.S. at 191–92). And the Dupree Court went on to explain that
“pure questions of law” are exempt from the preservation rule
announced in Ortiz. Id. The reason? Pure questions of law are
“unaffected by future developments in the case.” Id. Because
changes in the evidentiary landscape of a case do not affect the
resolution of a purely legal question, there is no good reason to
require a party to renew a rejected legal argument during or after
trial. “From the reviewing court’s perspective, there is no benefit
to having a district court reexamine a purely legal issue after trial,
because nothing at trial will have given the district court any reason
to question its prior analysis.” Id.
The same is true of PLRA exhaustion. As we have
explained, PLRA exhaustion “is nothing more than a precondition
to an adjudication on the merits,” one that the district court
generally can (and should) resolve at the motion-to-dismiss stage.
Bryant v. Rich, 530 F.3d 1368, 1374–75 (11th Cir. 2008) (describing
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8 Opinion of the Court 19-13745
exhaustion as a “matter in abatement”).3 When ruling on
exhaustion, a judge can properly “resolve factual disputes so long
as the factual disputes do not decide the merits and the parties have
sufficient opportunity to develop a record.” Id. at 1376 (footnote
omitted). So by the time of a trial on the merits, no disputed facts
related to exhaustion remain—a district court will have already
decided the issue.4 See id. at 1374–76, 1376 n.15.
Dupree’s logic applies here whether or not PLRA exhaustion
is termed a pure question of law. A judge usually resolves any
factual disputes related to exhaustion before a party moves for
summary judgment—and always before a prisoner’s case can move
on to trial on the merits. See id.; see also Turner v. Burnside, 541 F.3d
1077, 1082–83 (11th Cir. 2008). Dupree makes clear that no action
3 Some dismissals for PLRA exhaustion are possible even before a party moves
to dismiss. See, e.g., Wells v. Brown, 58 F.4th 1347, 1351–52 (11th Cir. 2023) (en
banc). And while exhaustion is “not ordinarily the proper subject for a
summary judgment” owing to its separation from the merits, it can be decided
there. Bryant, 530 F.3d at 1374–75. But if it is, it should be treated as if the
argument was “raised in a motion to dismiss.” Id. at 1375 (quotation omitted);
see also Turner v. Burnside, 541 F.3d 1077, 1082–83 (11th Cir. 2008) (explaining
the process for deciding a motion to dismiss for lack of exhaustion).
4 We could imagine a scenario where the inadvertent disclosure of new
information at trial could change a district court’s pretrial exhaustion analysis.
But exhaustion is “an affirmative defense the defendant must plead and
prove.” Jones v. Bock, 549 U.S. 199, 204, 216 (2007). In that scenario, the
defendant bears the burden of alerting the district court to the changed facts
and the need for reconsideration. Because the defendant necessarily would
have made this argument at trial, the issue would have been raised there—and
thus preserved for appeal in any event.
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19-13745 Opinion of the Court 9
at or after trial is required to preserve a purely legal issue last
addressed at summary judgment for appellate review. So too here.
We can review a district court’s PLRA exhaustion decision even if
a party fails to raise it after the summary judgment phase of a case.
IV.
Though the Secretary’s exhaustion argument is preserved, it
will not win the day. Under the PLRA, prisoners must exhaust
“such administrative remedies as are available” before filing suit in
federal court. 42 U.S.C. § 1997e(a). To do that, a prisoner must
“complete the administrative review process in accordance with
the applicable procedural rules.” Jones v. Bock, 549 U.S. 199, 218
(2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). And what
are the “applicable procedural rules”? Those requirements are
defined by the prison grievance process itself, not by the PLRA. Id.
So we look to the requirements of the applicable prison grievance
system to determine the boundaries of proper exhaustion. See
Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015); see also
Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).
Florida’s “Inmate Grievance Procedure” (contained in
Chapter 33-103 of the Florida Administrative Code) sets out steps
for “the administrative settlement” of prisoner complaints. Fla.
Admin. Code r. 33-103.001(1). Prisoners can file complaints
regarding, among other matters, the “substance, interpretation,
and application of rules and procedures” that affect them
personally. Fla. Admin. Code r. 33-103.001(4)(a). To complete the
process outlined in that regulation, a prisoner must first file an
informal grievance with a designated prison staff member. See Fla.
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10 Opinion of the Court 19-13745
Admin. Code r. 33-103.005. If that fails, the prisoner files a formal
grievance with the institution’s warden or assistant warden. Fla.
Admin. Code r. 33-103.006(1)(a). An unsuccessful formal grievance
is followed by an appeal to the Secretary. Fla. Admin. Code r. 33-
103.007(1); see also Dimanche, 783 F.3d at 1211.
What the procedures do not mention is a Petition to Initiate
Rulemaking. Nor do they reference the Florida Administrative
Procedure Act, where the Petition to Initiate Rulemaking process
is found. Indeed, nothing in Chapter 33-103 suggests that an
inmate must take any steps other than the ones outlined above.
Quite the opposite: Chapter 33-103 states that if a prison fails to
timely respond to a prisoner’s informal grievance, formal
grievance, and appeal, the prisoner is “entitled to proceed with
judicial remedies as he would have exhausted his administrative
remedies.” Fla. Admin. Code r. 33-103.011(4).
The Department’s “Inmate Orientation Handbook” tells the
same story. When inmates enter the custody of the Department,
they are given this handbook to help them understand the general
rules, procedures, and requirements of prison life. See Fla. Dep’t
of Corr., Inmate Orientation Handbook 2 (2018). It states that
Chapter 33-103 contains the procedures for filing a grievance and
resolving a complaint. Id. at 18. Nothing in the handbook suggests
that a prisoner must do anything beyond the three steps in Chapter
33-103 to exhaust administrative remedies. We take the Florida
regulations and inmate handbook at their word—prisoners need
not file a rulemaking petition to be entitled to proceed with judicial
remedies.
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19-13745 Opinion of the Court 11
In short, Florida’s grievance procedures do not require that
a prisoner file a Petition to Initiate Rulemaking. Florida’s process
instead requires just three things: an informal grievance, a formal
grievance, and an appeal to the Secretary. The Secretary does not
dispute that Sims adequately completed each of those three steps.
Sims, then, was free to file this lawsuit.
AFFIRMED.
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