Jeremy John Wells v. Warden, et al

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10550
____________________
JEREMY JOHN WELLS,
Plaintiff-Appellant,
versus
WARDEN,
CLIFFORD BROWN,
Unit Manager,
FNU FLUKER,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
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2 Opinion of the Court 21-10550
D.C. Docket No. 1:20-cv-00097-JRH-BKE
____________________
Before WILLIAM PRYOR , Chief Judge, WILSON, JORDAN,
R OSENBAUM , J ILL PRYOR , NEWSOM , B RANCH, G RANT, L UCK , L AGOA ,
and B RASHER , Circuit Judges.
J ILL PRYOR and L UCK , Circuit Judges, delivered the opinion of the
Court, in which WILLIAM PRYOR , Chief Judge, WILSON,
R OSENBAUM , NEWSOM , B RANCH, GRANT, L AGOA , and B RASHER,
Circuit Judges, joined.
J ORDAN, Circuit Judge, filed an opinion concurring in the judg-
ment.
R OSENBAUM , Circuit Judge, filed a concurring opinion, in which
WILLIAM PRYOR , Chief Judge, and J ILL PRYOR , Circuit Judge, joined.
J ILL PRYOR and L UCK , Circuit Judges:
A federal litigant who is unable to pay court fees may pro-
ceed in forma pauperis. That means the litigant may file a case
without prepaying fees or paying certain expenses.
See 28 U.S.C. §
1915. But Congress has placed a limit on this privilege for prison-
ers. The Prison Litigation Reform Act—with one exception not
applicable here—bars a prisoner from proceeding in forma pau-
peris if he “has, on [three] or more prior occasions, while incarcer-
ated or detained in any facility, brought an action or appeal in a
court of the United States that was dismissed on the grounds that
it [was] frivolous, malicious, or fail[ed] to state a claim upon which
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21-10550 Opinion of the Court 3
relief may be granted.”
Id. § 1915(g). This is called the three-strikes
rule.
This appeal raises two issues about the three-strikes rule.
First, is a dismissal for failure to exhaust administrative remedies a
“strike” for purposes of the Act’s three-strikes rule? We hold that a
dismissal for failure to exhaust can amount to a dismissal for failure
to state a claim—an enumerated ground for a strike—but only if
the failure to exhaust appears on the face of the prisoner’s com-
plaint. That’s because the failure to exhaust is an affirmative de-
fense. And a complaint may be subject to dismissal for failure to
state a claim—based on an affirmative defense—only when the af-
firmative defense appears on the face of the complaint.
Second, does the prisoner in this case—Jeremy Wells—have
three strikes? He doesn’t. Wells had three possible strikes: one
dismissal for failure to state a claim, another dismissal for failure to
exhaust administrative remedies, and a summary judgment for fail-
ure to exhaust. Everyone agrees that the first dismissal is a strike
because the dismissing court expressly said it was dismissing the
action for failure to state a claim. We agree with the district court
that the second dismissal—for failure to exhaust—counted as a
strike because the dismissing court gave some signal in its order
that the action was dismissed as frivolous, malicious, or for failure
to state a claim. But we agree with Wells that the summary judg-
ment for failure to exhaust was not a strike because it was not a
dismissal for failure to state a claim. Because Wells hasn’t struck
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4 Opinion of the Court 21-10550
out, we reverse the dismissal of Wells’s complaint based on the
three-strikes rule and remand for further proceedings.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
This case hinges on whether Wells has three strikes, so we
walk through Wells’s three prior actions before turning to this case.
Wells v. Cook, 1:11-CV-324-RJC (W.D.N.C.)
In October 2011, Wells was a detainee in the Avery County
Jail in North Carolina. In
Cook, Wells alleged that, while he was
being held in the jail, he “was not provided a written copy of [the]
institution rules and regulations,” he “was denied contact with fam-
ily,” he was “denied legal research,” and he was “housed in [a
twelve] man cell with [eighteen] inmates.” Wells filed a 42 U.S.C.
section 1983 prisoner civil rights complaint against the head jailer
and the sheriff. In his complaint, Wells requested that the jail: “de-
velop[] and implement a booking procedure” that included “a writ-
ten copy of rules and regulations”; “provide[] legal resources in-
cluding a law library”; “train[] and educate[]” the corrections offic-
ers about the inmates’ “civil rights”; pay him five hundred dollars
“a day for all days [he] was detained”; and cover “all legal ex-
penses.”
Because Wells sought “to proceed in forma pauperis,” the
district court screened his complaint under 28 U.S.C. section
1915(e)(2) “to determine whether it [was] subject to dismissal on
the grounds that it [was] frivolous or malicious or fail[ed] to state a
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21-10550 Opinion of the Court 5
claim on which relief may be granted.” After reviewing the allega-
tions, the district court found that Wells had “failed to state a cog-
nizable legal claim in his [c]omplaint.” Even assuming that the al-
legations in the complaint were true, the district court concluded
that Wells had “simply not alleged a violation of his federal consti-
tutional rights.” So, the district court “sua sponte” dismissed
Wells’s complaint.
Wells v. Avery County Sheriff’s Office, 1:13-CV-55-RJC
(W.D.N.C.)
Wells filed another section 1983 prisoner civil rights com-
plaint stemming from the same October 2011 detention in the
Avery County Jail. This time, Wells alleged that the sheriff’s office
violated his right of access to the courts by: denying his request for
his attorney’s address; placing the mail he sent to his attorney “in
property for [nine] months with no notification of its exist[e]nce”;
and failing to forward him his legal mail “while [he was] still in” the
sheriff’s “custody but housed in another location.” Wells stated
that he had not exhausted administrative remedies because he “was
not made aware that [his] legal mail was being held until[] [he] was
being released” from the jail. Wells alleged that, because of all this,
he lost five thousand dollars “in bail forf[e]iture,” “incur[red] addi-
tional felony charges,” “incur[red] enhanced charges,” and “suf-
fered from [a] loss of freedom for an extended amount of time.”
Wells requested thirty thousand dollars in damages.
The district court did “an initial review of” Wells’s com-
plaint. “Pursuant to 28 U.S.C. [section] 1915(A)(a),” the district
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6 Opinion of the Court 21-10550
court explained, it had to review “a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or of-
ficer or employee of a governmental entity.” That review required
the district court to “identify cognizable claims or dismiss the com-
plaint, or any portion of the complaint, if the complaint—[was]
frivolous, malicious, or fail[ed] to state a claim upon which relief
may be granted.”
In reviewing Wells’s complaint, the district court found that
Wells admitted that “he did not participate in any internal griev-
ance procedures while housed at the Avery County Jail or follow-
ing his transfer to a new custodian.” While Wells appeared to ar-
gue “that notifying” the sheriff’s office of his “claims would [have]
serve[d] no useful purpose” because he didn’t learn about the mail
“until he had been released from” the jail “and placed in the cus-
tody of another jurisdiction,” the district court found that “exhaus-
tion remains mandatory even where the inmate claims that exhaus-
tion would be futile.” The district court dismissed Wells’s com-
plaint without prejudice.
Wells v. Sterling, 6:15-CV-1344-MBS (D.S.C.)
By 2013, Wells was an inmate with the South Carolina De-
partment of Corrections after pleading guilty to burglary, grand lar-
ceny, financial identity fraud, and forgery. Wells alleged that,
while in the department’s custody, a nurse “was taking blood from
a large group of inmates.” The nurse saw seven other inmates, and
then it was Wells’s turn to see the nurse. But the nurse was using
the same gloves she used for the seven other inmates. Wells asked
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21-10550 Opinion of the Court 7
the nurse to change her gloves. She refused. The nurse grabbed
Wells’s arm and stuck him, but she “was unable to get a good blood
flow.” During the procedure, the nurse touched Wells’s puncture
site with the used gloves.
Wells also alleged that the department refused to credit him
with fourteen months for the time he served in North Carolina.
According to Wells, the credit-time-served error led him to serve
four months more than he was supposed to serve. The error also
shorted him “the opportunity to go up for parole.”
Wells sued the director of the state department of correc-
tions, the wardens, the nurse who took his blood, and the head
nurse, and brought two claims. First, Wells alleged that the nurses
were deliberately indifferent to his medical needs. Second, he
claimed that the director and the wardens violated his due process
rights by refusing to fix the credit-time-served error in his sentence.
Wells requested that the district court: enter judgment against the
defendants for violating his constitutional rights; order the depart-
ment to change its policy about gloves “to meet [the] standards set
forth by [the] Center [for] Disease Control”; require the depart-
ment to pay his medical bills; and award him one dollar in compen-
satory damages and two-hundred-fifty thousand dollars in punitive
damages.
The district court “reviewed [Wells’s] complaint pursuant to
the procedural provisions of 28 U.S.C. [section] 1915.” As to the
medical glove claim, the district court found that Wells “simply has
not been subjected to cruel and unusual punishment which could
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8 Opinion of the Court 21-10550
form the basis of a cognizable [section] 1983 claim.” So the “claim
relating to the medical gloves [was] dismissed without prejudice.”
As to the credit-time-served claim, the district court found that
Wells “appear[ed] to raise a claim of wrongful imprisonment.” A
section “1983 claim seeking damages for past confinement was per-
missible,” the district court said, “to allow a habeas ineligible for-
mer prisoner to seek redress for the alleged denial of his freedom.”
So, “the court decline[d] to summarily dismiss” this claim under
section 1915.
The remaining defendants—the director and the wardens—
later moved for summary judgment on Wells’s claim for wrongful
imprisonment, arguing in part that Wells “failed to exhaust his ad-
ministrative remedies” for that claim. While Wells had alleged in
his complaint that he followed the department’s “grievance proce-
dure,” the remaining defendants offered evidence that Wells
“failed [to] file a . . . [g]rievance concerning his claims before he
filed” the case. Specifically, the summary judgment motion at-
tached a declaration from the state prison’s inmate grievance ad-
ministrator. In that declaration, the grievance administrator stated
that, although Wells had filed a grievance about “the drawing of
blood,” there was no record of Wells filing a grievance “concerning
the calculation of his sentence.”
The district court granted summary judgment for the re-
maining defendants. The court found that Wells “failed to exhaust
his administrative remedies because he did not file a timely griev-
ance to start the grievance process.” The district court found that
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21-10550 Opinion of the Court 9
Wells was on notice that he had a miscalculation claim but “did not
begin the informal resolution process within eight days or file his
grievance within five days of being on notice that he had a griev-
ance,” as required by the department’s grievance policy. The clerk
of court entered a judgment reflecting the district court’s order.
This Case
Fast forward seven or so years to May 2020. By that point,
Wells was an inmate at the Augusta State Medical Prison in Geor-
gia. Wells filed a complaint about his time in the prison. Wells
alleged that, on May 29, 2020, he told the prison’s unit manager
that “two gang members” were “extorting, selling drugs,” and
“beating inmates.” Within the week, on June 5, 2020, Wells fol-
lowed this up with a letter to the warden, reporting the gang activ-
ity. Nine days later, on June 14, 2020, Wells was “beaten” by the
two gang members. As a result of the beating, Wells’s “left ear
drum was busted,” he “had burns to both [of his] eyes,” he had “a
contusion to [his] right eye,” he had an “abrasion to the inside back
of [his] throat,” and he had bumps and bruises on his “head, shoul-
ders, and hands.” After the beating, a corrections officer at the
prison “started laughing” at Wells and (according to Wells) caused
a sixteen-hour delay before he received medical treatment.
Wells sued the warden, the unit manager, and the correc-
tions officer for violating his Eighth Amendment rights. As to the
warden and the unit manager, Wells alleged that they were delib-
erately indifferent to a risk of serious harm because they were
aware of the threat the two gang members posed to him but failed
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10 Opinion of the Court 21-10550
to act. As to the corrections officer, Wells alleged that—by laugh-
ing at him and delaying medical attention—the corrections officer
was deliberately indifferent to his serious medical need. For relief,
Wells asked to be moved to a minimum-security prison, requested
twenty-eight thousand dollars in compensatory damages, and
sought five thousand dollars in punitive damages for his pain and
suffering.
Because Wells sought to proceed in forma pauperis, the
magistrate judge reviewed Wells’s complaint under the Prison Lit-
igation Reform Act’s three-strikes rule. The magistrate judge ex-
plained that, under the three-strikes rule, the court was required to
“evaluate whether the prisoner ha[d] [previously] brought three
cases that were dismissed for failure to state a claim, or as frivolous
or malicious.” Having reviewed Wells’s “history of filings,” the
magistrate judge found that Wells had “brought at least three cases
that were dismissed and count[ed] as strikes.” The magistrate
judge relied on
Cook’s dismissal at the pleadings stage for failure to
state a claim,
Avery County’s dismissal at the pleadings stage for
failure to exhaust, and
Sterling’s summary judgment for failure to
exhaust. Based on its finding that Wells had “at least three strikes,”
the magistrate judge concluded that Wells could not proceed in
forma pauperis under the Prison Litigation Reform Act. The mag-
istrate judge recommended that Wells’s motion to proceed in
forma pauperis be denied.
Wells objected to the magistrate judge’s recommendation.
He argued that a prior case counts as a strike
only when the action
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was “dismissed on the grounds that it [was] frivolous, malicious, or
fail[ed] to state a claim upon which relief may be granted.”
See 28
U.S.C. § 1915(g). Wells contended that “the previous filings that
the magistrate” judge counted as “strikes” did “not meet the stand-
ard of a ‘strike’ according to the language of the” Prison Litigation
Reform Act. Although Wells agreed that “one of [his] past fil-
ings”(the failure to state a claim in
Cook) was a strike, he argued
that other two (the failures to exhaust in
Avery County and
Ster-
ling) were not dismissed as frivolous, malicious, or for failure to
state a claim.
The district court overruled Wells’s objection and adopted
the magistrate judge’s recommendation. Like the magistrate
judge, the district court concluded that Wells had three strikes:
“one dismissal for failure to state a claim, another dismissal at the
pleadings stage for failure to exhaust administrative remedies, and
a third dismissal at summary judgment for failure to exhaust ad-
ministrative remedies.” The district court concluded that the sec-
ond and third dismissals counted as strikes because a dismissal for
failure to exhaust administrative remedies counts as a strike and
because a motion for summary judgment on the affirmative de-
fense of failure to exhaust is the equivalent of a motion to dismiss.
Because Wells had three strikes, the district court denied his re-
quest to proceed in forma pauperis and dismissed the complaint
without prejudice.
Wells appealed the district court’s dismissal. He argued that
he didn’t have three strikes under the Prison Litigation Reform Act
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12 Opinion of the Court 21-10550
because the district court improperly counted as strikes both the
Avery County dismissal for failure to exhaust administrative reme-
dies and the
Sterling summary judgment for failure to exhaust.
“[A] dismissal for failure to exhaust administrative remedies, on its
own,” Wells contended, was “simply not an automatic strike,” as
the district court had found. Instead, Wells asserted, a dismissal for
failure to exhaust “can only be a strike when the claim also happens
to be frivolous, malicious, or a failure to state a claim.”
A panel of this court affirmed the district court’s three-
strikes finding. In
White v. Lemma, 947 F.3d 1373 (11th Cir. 2020),
the panel explained, “we stated broadly that a prior case that was
dismissed for failure to exhaust administrative remedies . . . counts
as a [Prison Litigation Reform Act] strike under our precedent.”
“Despite [out-of-circuit] authority to the contrary, given
White,”
the panel held, “we must conclude that dismissal for failure to ex-
haust qualifies as a strike under the” Act. Based on
White, the panel
could “find no error in the district court’s conclusion that Wells had
three . . . strikes and that his instant case was due to be dismissed.”
But the court granted rehearing en banc and vacated the panel
opinion.
See Wells v. Warden, 30 F.4th 1333 (11th Cir. 2022).
II. STANDARD OF REVIEW
We review de novo a district court’s dismissal of a case un-
der the Prison Litigation Reform Act’s three-strikes rule.
Mitchell
v. Nobles, 873 F.3d 869, 873 (11th Cir. 2017).
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III. DISCUSSION
We asked the parties to focus on two issues in their briefing
and at oral argument: (1) “Is a dismissal for failure to exhaust ad-
ministrative remedies a ‘strike’ for purposes of the Prison Litigation
Reform Act?”; and (2) “If a dismissal for failure to exhaust adminis-
trative remedies can be a ‘strike’ for purposes of the [Act]’s ‘three
strikes’ provision, does Wells have three strikes?” We’ll focus our
opinion on the same two issues.
Is a Dismissal for Failure to Exhaust
Administrative Remedies a “Strike” for Purposes of the Act?
The federal in forma pauperis statute “is designed to ensure
that indigent litigants have meaningful access to the federal
courts.”
Neitzke v. Williams, 490 U.S. 319, 324 (1989). To that end,
a litigant may commence an action in federal court “by filing in
good faith an affidavit stating . . . that he is unable to pay the costs
of the lawsuit.”
Id. But “Congress recognized that a litigant whose
filing fees and court costs are assumed by the public, unlike a pay-
ing litigant, lacks an economic incentive to refrain from filing friv-
olous, malicious, or repetitive lawsuits.”
Coleman v. Tollefson,
575 U.S. 532, 535 (2015) (cleaned up). This concern played out in
practice: the courts were flooded with “prisoner complaints chal-
lenging prison conditions or claiming civil rights violations.”
Jones
v. Bock, 549 U.S. 199, 203 (2007). “Most of these cases ha[d] no
merit; many [were] frivolous.”
Id.
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Congress responded with the Prison Litigation Reform Act.
“To help staunch a ‘flood of nonmeritorious’ prisoner litigation,
the Prison Litigation Reform Act . . . established what has become
known as the three-strikes rule.”
Lomax v. Ortiz-Marquez, 140 S.
Ct. 1721, 1723 (2020) (quoting
Jones, 549 U.S. at 203). “That rule
generally prevents a prisoner from bringing suit in forma pau-
peris . . . —that is, without first paying the filing fee—if he has had
three or more prior suits ‘dismissed on the grounds that [they were]
frivolous, malicious, or fail[ed] to state a claim upon which relief
may be granted.’”
Id. (alteration in original) (cleaned up) (quoting
28 U.S.C. § 1915(g)). Specifically, the Act provides:
In no event shall a prisoner bring a civil action or ap-
peal a judgment in a civil action or proceeding under
this section if the prisoner has, on [three] or more
prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that
it is frivolous, malicious, or fails to state a claim upon
which relief may be granted . . . .
28 U.S.C. § 1915(g). By taking away the privilege of proceeding in
forma pauperis from prisoners who have struck out, the rule is “de-
signed to filter out the bad claims and facilitate consideration of the
good.”
Jones, 549 U.S. at 204.
The first question we address is whether a dismissal for fail-
ure to exhaust administrative remedies counts as a strike. The Su-
preme Court, in
Jones, answered this question for the Prison
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21-10550 Opinion of the Court 15
Litigation Reform Act’s similar “screening requirement[s].”
Id. at
214–15. There are three of them: federal law provides for screen-
ing where the plaintiff proceeds “in forma pauperis,” 28 U.S.C. §
1915(e)(2); where a prisoner “seeks redress from a governmental
entity” or “employee,” 28 U.S.C. § 1915A(a); and where a prisoner
challenges “prison conditions” under federal law, 42 U.S.C. §
1997e(c)(1). Each of these screening provisions requires courts to
dismiss a case where, upon screening the complaint, the court finds
that (1) the case is frivolous, (2) the case is malicious, (3) the com-
plaint fails to state a claim, or (4) the plaintiff seeks monetary relief
from a defendant who is immune from such relief.
See 28 U.S.C.
§§ 1915(e)(2)(B), 1915A(a)–(b); 42 U.S.C. § 1997e(c)(1).
In
Jones, the Supreme Court considered whether a com-
plaint must be dismissed for failure to exhaust under the screening
provisions.
Jones, 549 U.S. at 214–15. The Court pointed out that
“failure to exhaust was notably not” one of the “four grounds” that
would lead to the dismissal of a complaint.
Id. at 214. But “[s]ome
courts ha[d] found that exhaustion [was] subsumed under the
[Act’s] enumerated ground authorizing early dismissal for fail[ure]
to state a claim upon which relief may be granted.”
Id. at 214–15
(quotation omitted). The Court rejected this approach, explaining
that there was “no reason to suppose that the normal pleading
rules” had been “altered to facilitate judicial screening of com-
plaints specifically for failure to exhaust.”
Id. at 214.
Under normal pleading rules, the Court explained, “[a] com-
plaint is subject to dismissal for failure to state a claim if the
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16 Opinion of the Court 21-10550
allegations, taken as true, show the plaintiff is not entitled to relief.”
Id. at 215. For affirmative defenses, “failure to state a claim de-
pends on whether the allegations in the complaint suffice to estab-
lish that ground.”
Id. And “failure to exhaust is an affirmative de-
fense.”
Id. at 216. An exhaustion dismissal, the Court explained,
was no different from a statute of limitations dismissal. “If the al-
legations, for example, show that relief is barred by the applicable
statute of limitations, the complaint is subject to dismissal for fail-
ure to state a claim; that does not make the statute of limitations
any less an affirmative defense.”
Id. at 215 (citing Fed. R. Civ. P.
8(c)).
In support, the Court cited the Third Circuit’s decision in
Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001), for the proposition
that “a complaint may be subject to dismissal under [r]ule 12(b)(6)
when an affirmative defense appears on its face.”
Id. at 161 (cleaned
up). And the Supreme Court cited pages 708 to 710 and pages 721
to 729 of section 1357 of
Federal Practice and Procedure.
Jones,
549 U.S. at 215. There, the treatise explained that a complaint “is
subject to dismissal under [r]ule 12(b)(6)” for failure to state a claim
“when its allegations indicate the existence of an affirmative de-
fense that will bar the award of any remedy.” 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1357,
at 708 (3d ed. 2004). “[B]ut,” they continued, “for this to occur, the
applicability of the defense has to be clearly indicated and must ap-
pear on the face of the pleading to be used as the basis for the mo-
tion.”
Id. at 708–10.
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21-10550 Opinion of the Court 17
The treatise then lists a litany of affirmative defenses that
have been considered on a motion to dismiss for failure to state a
claim. “Other affirmative defenses that have been considered on a
motion to dismiss under [r]ule 12(b)(6) include the plaintiff’s as-
sumption of the risk, the presence of contributory negligence, var-
ious types of estoppel, an assertion of illegality, a wide range of
forms of legal immunity from suit, the equitable doctrine of laches,
a claim of privilege, the plaintiff’s execution of a release, the barring
effect of res judicata and related preclusion principles, . . . and the
applicability of the statute of frauds.”
Id. at 721–29 (footnotes omit-
ted).
The Court treated exhaustion the same as those other af-
firmative defenses. Just as those affirmative defenses have been
considered on a motion to dismiss for failure to state a claim, the
Court rejected the notion “that failure to exhaust cannot be a basis
for dismissal for failure to state a claim.”
Jones, 549 U.S. at 216. It
can.1 But, like any other affirmative defense, that doesn’t mean
1 The special concurrence says that we shouldn’t put too much stock in
Jones’s
suggestion “that a dismissal for failure to exhaust administrative remedies can
sometimes constitute a dismissal for failure to state a claim.” But, where the
Supreme Court addresses the same issue we address, as it did in
Jones, we
cannot so “lightly cast aside” the Court’s discussion.
See Peterson v. BMI Re-
fractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997). And, even if we could,
there’s no tension between
Jones and
Bryant v. Rich, 530 F.3d 1368 (11th Cir.
2008).
Bryant simply suggested that, in the normal course, “exhaustion of ad-
ministrative remedies is a matter in abatement and not
generally an adjudica-
tion on the merits.” 530 F.3d at 1374 (emphasis added). But it didn’t say any-
thing about whether a failure to exhaust can amount to a failure to state a
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18 Opinion of the Court 21-10550
that plaintiffs are “required to specially plead or demonstrate ex-
haustion in their complaints.”
Id. They aren’t. Instead, the ques-
tion is whether the plaintiff’s failure to exhaust appears on the face
of the complaint. If it does, the plaintiff has failed to state a claim.2
In determining whether failure to exhaust can be a basis for
dismissal for failure to state a claim, we see no reason to treat the
Act’s three-strikes rule any differently than the Supreme Court
treated the Act’s screening requirements in
Jones. The three-
strikes rule uses the same “fails to state a claim on which relief may
be granted” language as the screening requirements, and we
claim under the three-strikes rule. To the contrary,
Bryant was careful to ex-
plain that “[c]ases decided on the basis of no disputed facts about exhaustion
are materially different . . . , presenting different questions for decision.”
Id. at
1376 n.15.
Jones was discussing the materially different case where there were
no disputed facts about exhaustion—the failure to exhaust was alleged on the
face of the complaint. Finally, a three-strike rule dismissal for failure to state
a claim does not need to be an adjudication on the merits, as the special con-
currence suggests. The three-strikes rule, the Supreme Court held in
Lomax,
“covers all [failure-to-state-a-claim] dismissals: It applies to those issued both
with and without prejudice to a plaintiff’s ability to reassert his claim in a later
action. A strike-call under [the three-strikes rule] thus hinges exclusively on
the basis for the dismissal, regardless of the decision’s prejudicial effect.” 140
S. Ct. at 1724–25 (cleaned up).
2 Of course, when we refer to the “face” of the complaint and the “allegations
in the complaint,” we mean “the complaint in its entirety, as well as other
sources courts ordinarily examine when ruling on [r]ule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the complaint by refer-
ence, and matters of which a court may take judicial notice.”
Tellabs, Inc. v.
Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007).
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21-10550 Opinion of the Court 19
“generally presume that ‘identical words used in different parts of
the same act are intended to have the same meaning.’”
Fort
Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11 F.4th
1266, 1278 (11th Cir. 2021) (quoting
United States v. Cleveland In-
dians Baseball Co., 532 U.S. 200, 213 (2001)).
Having carefully reviewed the three-strikes rule and the
screening requirements, we see no contextual reason why the gen-
eral presumption shouldn’t apply here. We agree with our sister
circuits that have read
Jones’s discussion of the screening require-
ments to apply to the three-strikes rule.
See, e.g.,
Ball v. Famiglio,
726 F.3d 448, 459–60 (3d Cir. 2013),
abrogated on other grounds
by Coleman, 575 U.S. 532;
Thompson v. DEA, 492 F.3d 428, 437–
39 (D.C. Cir. 2007).
We recede from
Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998)
and
White, 947 F.3d 1373 to the extent we implied that a dismissal
for failure to exhaust administrative remedies is always a dismissal
for failure to state a claim. A dismissal for failure to exhaust admin-
istrative remedies is
not always a dismissal for failure to state a
claim.
If a Dismissal for Failure to Exhaust Can Be a “Strike” Under the
Three-Strikes Rule, Does Wells Have Three Strikes?
The district court concluded that Wells had “brought at least
three cases that were dismissed and count[ed] as strikes”—“one dis-
missal for failure to state a claim” (
Cook), “another dismissal at the
pleadings stage for failure to exhaust administrative remedies”
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20 Opinion of the Court 21-10550
(
Avery County), and “a third dismissal at summary judgment for
failure to exhaust administrative remedies” (
Sterling). The second
question we must address is whether these three cases were dis-
missed because they were frivolous, malicious, or failed to state a
claim upon which relief may be granted.
We explained how we can tell that a dismissal was
frivolous
for purposes of the three-strikes rule in
Daker v. Commissioner,
Georgia Department of Corrections, 820 F.3d 1278 (11th Cir. 2016).
Looking to section 1915’s plain text, we observed that, under the
three-strikes rule, we must look to whether an action or appeal
“was dismissed on the grounds that it is frivolous.”
Id. at 1284
(quoting 28 U.S.C. § 1915(g)). “By using the phrase ‘was dismissed’
in the past tense and the phrase ‘on the grounds that,’ the Act in-
structs us to consult the
prior order that dismissed the action or
appeal and to identify the
reasons that the court gave for dismissing
it.”
Id. Because the Act instructs us to look at what the dismissing
court
did, we cannot find that an action was dismissed on the
grounds that it was frivolous “unless the dismissing court made
some express statement to that effect.”
Id.
“We cannot conclude,” the court explained, “that an action
or appeal ‘was dismissed on the grounds that it is frivolous’ based
on our
present-day determination that the action or appeal was
frivolous or based on our conclusion that the dismissing court
could have dismissed it as frivolous.”
Id. Instead, “[w]e must in-
terpret the order of dismissal and figure out what the dismissing
court actually did.”
Id. And “we cannot know whether the
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21-10550 Opinion of the Court 21
dismissing court concluded that the higher standard for frivolous-
ness was satisfied unless the court expressly says so.”
Id.
“Of course,” the
Daker court cautioned, “the dismissing
court does not need to invoke any magic words or even use the
word ‘frivolous,’ although such language certainly aids our re-
view.”
Id. (citations omitted). “But the dismissing court must give
some signal in its order that the action or appeal was frivolous.”
Id.
So, in
Daker, for example, the state argued that the three-strikes
rule applied to the prisoner in that case because “six previous fil-
ings” by the prisoner “were frivolous.”
Id. at 1282, 1284. We disa-
greed. Because the six “prior orders gave no such signal” that the
actions or appeals were dismissed on the grounds that they were
frivolous, we found that the three-strikes rule did not apply.
Id. at
1284. The prisoner could proceed in forma pauperis.
We apply the same rule for actions that were dismissed on
the grounds that they were malicious or failed to state a claim. The
same two phrases—“was dismissed” in the past tense and “on the
grounds that”—modify the other potential grounds for a “strike”
(maliciousness or failure to state a claim).
See 28 U.S.C. § 1915(g).
Thus, to count as a strike under the Act, we look to the prior order
that dismissed the action (or appeal) and the reasons the court gave
for dismissing it. In other words, we must interpret the prior order
of dismissal and figure out what the dismissing court actually did.
The dismissing court must give some signal that the action was dis-
missed because it was malicious or failed to state a claim.
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22 Opinion of the Court 21-10550
No magic words are needed. But the dismissing court must
give some express statement to the effect that it dismissed the case
because it was malicious or because it failed to state a claim. The
signal could include, for example, some statement that the dismis-
sal was based on rule 12(b)(6), that the allegations did not plausibly
state a claim, that the complaint failed to give a short and plain
statement showing that the plaintiff is entitled to relief as required
by rule 8, or that the complaint fell short under
Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662
(2009).3 There must be some signal that the action was dismissed
for maliciousness or failure to state a claim.
Applied to the three prior orders in this case—
Cook,
Avery
County, and
Sterling—there’s no dispute about
Cook. Looking at
the prior order in
Cook, the parties agree that the district court’s
reason for the dismissal was that Wells failed to state a claim. We
agree. After reviewing Wells’s complaint under the Act’s screening
requirements, the dismissing court in
Cook found that Wells “ha[d]
failed to state a cognizable legal claim in his [c]omplaint.” And so
the
Cook order had an express statement to the effect that the
3 These aren’t meant to be the only examples. There are surely others. Nor
will statements like the ones we’ve given always signal (in context) that the
dismissal qualifies as a strike. We give examples only to explain the kinds of
signals or express statements in a prior order that would tend to qualify under
the three-strikes rule.
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21-10550 Opinion of the Court 23
action was dismissed for failure to state a claim upon which relief
may be granted. That’s strike one.
Although a closer call, we also agree with the district court
that
Avery County was a strike. There, the dismissing court con-
ducted an “initial review” of Wells’s complaint under the Act’s
screening requirements. “In conducting this review,” the dismiss-
ing court said, it must “identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint—is
frivolous, malicious, or fails to state a claim upon which relief may
be granted.” In its initial review, the
Avery County court focused
on Wells’s admission in his complaint that “he did not participate
in any internal grievance procedures while housed at the Avery
County Jail or following his transfer to a new custodian.” While
Wells argued that he shouldn’t be required to exhaust because “no-
tifying” the sheriff of his “claims would [have] serve[d] no useful
purpose,” the
Avery County court dismissed the complaint, rea-
soning that “exhaustion remains mandatory even where the in-
mate claims that exhaustion would be futile.”
Although the
Avery County court did not use any magic
words in dismissing the action, it sent some signal in its order that
the dismissal was on one of the grounds in the three-strikes rule.
The only reason the
Avery County court gave for the dismissal was
its initial review of Wells’s complaint. And the dismissing court
told us exactly what it was looking for in conducting this review.
The dismissing court said that in conducting its review it would
either “identify cognizable claims or dismiss the complaint, or any
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24 Opinion of the Court 21-10550
portion of the complaint,” if it was “frivolous, malicious, or fail[ed]
to state a claim.” Those are the three-strikes grounds. By making
an express statement that it was reviewing the complaint to see if
it was frivolous, malicious, or failed to state a claim—and then dis-
missing the complaint upon completing that review—the dismiss-
ing court gave some signal in its order that it dismissed the action
under one of the three grounds set out in the three-strikes rule.
And so
Avery County counts as strike two.
Wells raises two arguments for why
Avery County wasn’t a
strike, but neither is persuasive. First, Wells contends that the dis-
missing court erred by focusing on his admission that he had not
exhausted his administrative remedies. Wells argues that the
Avery County court should not have considered the admission be-
cause it was outside the face of the complaint. Wells, in essence, is
asking us to make a present-day determination about whether the
Avery County court was right that the action failed to state a claim.
But we can’t do that.
As we’ve explained, “[b]y using the phrase ‘was dismissed’
in the past tense and the phrase ‘on the grounds that,’” the three-
strikes rule “instructs us to consult the
prior order that dismissed
the action or appeal and to identify the
reasons that the court gave
for dismissing it.”
Daker, 820 F.3d at 1284. In doing so, “[w]e must
interpret the order of dismissal and figure out what the dismissing
court actually did” rather than make a “
present-day determination”
about what the district court could or should have done.
Id. If the
Avery County court erred in considering Wells’s admission
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21-10550 Opinion of the Court 25
because it was outside the face of his complaint—something we do
not decide today—the remedy was to directly appeal the dismissal
and correct the error. But he cannot collaterally attack the prior
order by having us—nine years later—look behind the order and
the reasons the district court gave for dismissing the complaint.
Second, Wells argues that
Avery County isn’t a strike be-
cause not every dismissal under the Act’s screening requirements
is a three-strikes rule dismissal.
See Thompson, 492 F.3d at 439
(declining to treat all dismissals under the Act’s screening require-
ments as “presumptive strikes . . . because, for a variety of reasons,
a complaint that is neither frivolous, malicious, nor fails to state a
claim could nonetheless be dismissed” on other grounds, including
“for lack of jurisdiction”). We agree. Just because a court dismisses
an action under the Act’s screening requirements doesn’t mean
that it’s a strike. That’s because it may have been dismissed for a
reason other than that the action was frivolous, malicious, or failed
to state a claim. For example, a district court may screen a com-
plaint but then dismiss it for lack of jurisdiction.
But here we know the reason for the dismissal under the
screening requirements was for one of the three-strikes grounds.
That’s because the
Avery County court told us that in conducting
its review it would dismiss the action if the complaint was frivo-
lous, malicious, or failed to state a claim. Those, of course, are the
three-strikes grounds. So, here, we have some signal in the prior
order that the
Avery County dismissal was on one of the grounds
in the three-strikes rule.
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26 Opinion of the Court 21-10550
But that signal is missing for the prior order in
Sterling—
Wells’s final case. There’s no indication that the
Sterling court dis-
missed Wells’s action as frivolous or malicious. Nor does the war-
den ever suggest that either of those three-strikes grounds apply to
Sterling. So the question is whether
Sterling’s summary judgment
for lack of exhaustion counts as a “dismiss[al] on the grounds
that . . . [Wells] fail[ed] to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915(g). It doesn’t.
Summary judgment based on evidence outside the face of
the complaint or on something other than the allegations in the
complaint is not a dismissal for failure to state a claim.
Cf. Speaker
v. U.S. Dep’t of Health & Hum. Servs. Ctrs. for Disease Control &
Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (“If matters out-
side the pleadings are presented by the parties and considered by
the district court, the [r]ule 12(b)(6) motion must be converted into
a [r]ule 56 summary judgment motion.”);
see also Fed. R. Civ. P.
12(d) (same). “A complaint is subject to dismissal for failure to state
a claim if the allegations, taken as true, show the plaintiff is not en-
titled to relief.”
Jones, 549 U.S. at 215. Summary judgment, on the
other hand, asks “whether the
evidence presents a sufficient disa-
greement to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986) (emphasis added).
The
Sterling court entered summary judgment for the
prison officials based on
evidence that Wells did not submit a
timely grievance under the prison’s grievance policy. The prison’s
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21-10550 Opinion of the Court 27
grievance policy required Wells to either informally resolve his
grievance within eight days of the incident or begin the formal
grievance process within five days of the alleged incident. The dis-
missing court found that Wells was on notice that the prison had
interpreted his sentence erroneously, but he did not begin the in-
formal or formal grievance process within the required time pe-
riod.
In granting summary judgment for the prison officials, the
dismissing court considered more than the allegations in Wells’s
complaint. The prior order considered the prison’s grievance pol-
icy, Wells’s letter to the prison, and a prison grievance administra-
tor’s declaration. The
Sterling court, in short, granted summary
judgment for the prison officials because, based on the evidence,
there was no genuine dispute that Wells did not timely exhaust his
administrative remedies. Because the
Sterling court considered ev-
idence outside the complaint, this was not a dismissal for failure to
state a claim.
The warden offers two reasons for why
Sterling should
count as a strike, but we are unconvinced. First, the warden argues
that “mixed” dismissals count as strikes. In other words, the war-
den claims that “
Sterling is a strike because the entire complaint
was dismissed” and
one of Wells’s claims was dismissed earlier in
the case “on the grounds that the allegations failed to make out a
claim.” But the Prison Litigation Reform Act imposes a strike only
where the “
action . . . was dismissed on the grounds that it [was]
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28 Opinion of the Court 21-10550
frivolous, malicious, or fail[ed] to state a claim upon which relief
may be granted.” 28 U.S.C. § 1915(g) (emphasis added).
And “the entire complaint”—the action—was not dismissed
in
Sterling. Wells’s “medical glove claim” was “summarily dis-
misse[d] . . . without prejudice.” But the
Sterling court “decline[d]
to summarily dismiss” Wells’s “claim for wrongful imprisonment.”
The
Sterling court later granted summary judgment on the wrong-
ful imprisonment claim. But entering summary judgment on a
claim is not a dismissal.4 Although one of Wells’s
claims might’ve
been dismissed, the
action was not dismissed in
Sterling.
Second, the warden also contends that the summary judg-
ment order in
Sterling was really a dismissal for failure to state a
claim because it relied only on Wells’s “own admissions,” “attach-
ments” to the complaint, and “judicially noticeable facts.” But the
Sterling court relied on more than admissions, attachments, and
judicially noticed facts. It also relied on a declaration from the
prison’s grievance administrator. In his declaration, the
4 That’s not to say a district court can never dismiss an action on the grounds
that it is frivolous, malicious, or failed to state a claim after the pleadings stage.
Section 1915, after all,
requires courts to dismiss a case “at any time” if it is
“frivolous,” “malicious,” or “fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). But although a district court can dismiss a
case on a three-strikes ground at summary judgment (for example), that’s not
what happened here. The district court entered summary judgment based on
evidence outside the complaint. It did not dismiss the case on the grounds
that it was frivolous, malicious, or failed to state a claim.
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21-10550 Opinion of the Court 29
administrator described the grievance process, stated that Wells
used the prison’s “electronic kiosk to send a message” to the prison
“that he was being held beyond his max-out date” but that this mes-
sage “was not processed,” and explained that there were “no rec-
ord[s]” of Wells “filing a grievance or appeal regarding the calcula-
tion of his sentence.” Because the prior order relied on evidence
outside the face of the complaint, it could not have been a dismissal
for failure to state a claim.
IV. CONCLUSION
In the Act, as in baseball, two strikes are not enough. Wells
had two strikes:
Cook and
Avery County. But because the
Sterling
summary judgment fell outside the strike zone, he didn’t have a
third. Without three strikes, the district court erred in dismissing
Wells’s complaint under the three-strikes rule. We thus reverse
the dismissal and remand for further proceedings.5
REVERSED AND REMANDED.
5 The Roderick & Solange MacArthur Justice Center (Easha Anand, Perry Cao,
Rosalind Dillon, and Devi Rao) has commendably represented Wells through-
out his appeal. The Georgia Attorney General’s Office (Stephen Petrany) gra-
ciously accepted our invitation to represent the warden after we voted to re-
hear the appeal en banc. We appreciate counsel’s service to the court.
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21-10550 J ORDAN, J., Concurring in the Judgment 1
J ORDAN, Circuit Judge, Concurring in the Judgment:
I agree with the court that Mr. Wells does not have three
strikes under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g),
but would only address the dismissal in the
Sterling case because it
is dispositive. I understand that the court’s discussion of the dis-
missals in the
Cook and
Avery County cases may provide guidance
to the bench and bar, but that discussion is unnecessary and could
well be dicta. Once the dismissal in
Sterling is not deemed to be a
strike, it matters not how we characterize the dismissals in
Cook
and
Avery County.
In my view, we should resolve this case based on a relatively
simple proposition—that a dismissal for failure to exhaust is not a
strike under the PLRA because such a disposition is not listed in §
1915(g) as one of the grounds that constitutes a strike.
See Daker
v. Commissioner, Ga. Dep’t of Corr., 820 F.3d 1278, 1283 (11th Cir.
2016) (“Three specific grounds render a dismissal a strike: ‘frivo-
lous,’ ‘malicious,’ and ‘fails to state a claim upon which relief can
be granted.’ Under the negative-implication cannon, these three
grounds are the
only grounds that can render a dismissal a strike.”);
Green v. Young, 454 F.3d 405, 409 (4th Cir. 2006) (“Because a dis-
missal for failure to exhaust is not listed in § 1915(g), it would be
improper for us to read it into the statute. . . . [W]e we must honor
Congress'[ ] deliberate omission from § 1915(g) of dismissals for
failure to exhaust and conclude that a routine dismissal for failure
to exhaust administrative remedies does not count as a strike un-
der § 1915(g).”).
See also Owens v. Isaac, 487 F.3d 561, 563 (8th Cir.
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2 J ORDAN, J., Concurring in the Judgment 21-10550
2007) (“The first case was dismissed without prejudice for failure
to exhaust administrative remedies; such a dismissal is not a strike
under [§] 1915(g).”); 16AA Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3970.1 (5th ed.) (“A dismissal that
does not fit within any of the three categories does not count as a
strike.”).
Sterling, which was dismissed for failure to exhaust ad-
ministrative remedies, therefore does not count as a strike.
As the court notes in its opinion, there is language in
Jones
v. Bock, 549 U.S. 199 (2007), suggesting that a dismissal for failure
to exhaust administrative remedies can sometimes constitute a dis-
missal for failure to state a claim.
See id. at 216 (“that is not to say
that failure to exhaust cannot be a basis for dismissal for failure to
state a claim”). But I would not put too much stock in this snippet.
Our post-
Jones cases explain that “exhaustion of administrative
remedies is a matter in abatement and not generally an adjudica-
tion on the merits.”
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.
2008).
See also Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir.
2015) (same). If a dismissal for failure to exhaust administrative
remedies is not merits-based,
see Bryant, 530 F.3d at 1374 (explain-
ing that exhaustion “is nothing more than a precondition to adju-
dication on the merits”), I do not see how it can be fairly character-
ized as a dismissal for failure to state a claim, which is an adjudica-
tion on merits. Whether or not failure to exhaust administrative
remedies can be determined from the face of the complaint says
nothing about the nature of a dismissal on that ground.
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21-10550 R OSENBAUM , J., Concurring 1
R OSENBAUM , Circuit Judge, joined by WILLIAM PRYOR , Chief Judge,
and J ILL PRYOR , Circuit Judge, concurring:
I join the Court’s well-written and well-reasoned opinion in
full. I write separately only to register my concern about dismiss-
ing actions for failure to exhaust based on a pro se prisoner’s re-
sponse to a yes/no check-box on form complaints that ask about
exhaustion.
Today we hold that when a pro se prisoner admits on the
face of her complaint that she hasn’t exhausted her administrative
remedies, a dismissal for failure to exhaust counts as a strike. Opin-
ion at 17–18. I generally agree. But not all dismissals for failure to
exhaust are created equal.
Take Jeremy Wells’s suit against Avery County. There, the
Western District of North Carolina’s “Prison Civil Rights Act Com-
plaint Form” asked him to answer—yes or no—whether he had
“present[ed] the facts of each claim relating to [his] complaint to
the Inmate Grievance Commission or any other available adminis-
trative remedy procedure?” And that question isn’t unusual. In
our Circuit, six of the nine districts’ standard “pro se prisoner civil
rights complaint” forms demand that the filer opine on whether
she exhausted her prison remedies.1
1 These courts include the Northern and Southern Districts of Alabama, all
three district courts in Georgia, and the Middle District of Florida.
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2 R OSENBAUM , J., Concurring 21-10550
In my view, district courts should not require a pro se pris-
oner to answer such a question as a condition of filing a complaint.
That is so for three reasons.
First, a plaintiff is “the master of the complaint.”
See
Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S.
826, 831 (2002) (citing
Caterpillar Inc. v. Williams, 482 U.S. 386,
398–99 (1987)). That should end the matter. After all, the Prisoner
Litigation Reform Act (the “Act”) does not justify a departure from
the general rule.
Jones v. Bock, 549 U.S. 199, 200 (2007) (“But the
screening requirement does not—explicitly or implicitly—justify
deviating from the usual procedural practice beyond the depar-
tures specified by the [Act] itself.”).
Second, the Act requires exhaustion of
available remedies,
42 U.S.C. § 1997e(a). And asking pro se prisoners whether they
have exhausted
available remedies demands too much. The Su-
preme Court has explained that a remedy is “unavailable” when (1)
it is “a simple dead end—with officers unable or consistently un-
willing to provide any relief to aggrieved inmates”; (2) the admin-
istrative process is so opaque that it is “practically speaking, incapa-
ble of use”; or (3) prison administrators “thwart inmates from tak-
ing advantage of a grievance process through machination, misrep-
resentation, or intimidation.”
Ross v. Blake, 578 U.S. 632, 643–44
(2016).
A simple “check yes or no” box does not allow a pro se pris-
oner to explain that, while she might not have exhausted her rem-
edies, a prison administrator “thwart[ed]” her from doing so, or the
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21-10550 R OSENBAUM , J., Concurring 3
process was necessarily futile, or it was “practically speaking, inca-
pable of use.” And even if the district-court form uses the word
“available,” it demands too much from pro se prisoners to expect
them, based on that adjective, to understand that they are being
asked whether any of the three exceptions to the exhaustion re-
quirement that the Supreme Court has distilled applies. Indeed,
without saying so, forms like these effectively ask these pro se pris-
oners to act as the judge and render a legal conclusion about
whether they should be excepted from the exhaustion require-
ment. That’s too much.
Third, as the Supreme Court has explained, failure to ex-
haust is an affirmative defense, and “inmates are not required to
plead or demonstrate exhaustion in their complaints.”
Jones, 539
U.S. at 216. “District courts may not circumvent this rule by . . .
requiring prisoners to affirmatively plead exhaustion through local
rules.”
Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014). So
they should not be able to circumvent it by requiring pro se prison-
ers to fill out a form that directs them to plead exhaustion.
The Warden responds that “[i]nmates are always free to
leave portions of a form complaint blank.” But litigants aren’t free
to ignore district-court orders, and again, it asks too much of a pro
se prisoner to separate a district-court form complaint (which con-
tains instructions from the court) and a district-court order. The
Middle District of Georgia’s form complaint, for instance, includes
multiple warnings (accompanied by a healthy helping of underlin-
ing, bolding, and exclamation points) that failure to follow a given
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4 R OSENBAUM , J., Concurring 21-10550
instruction will result in dismissal. Plus, we should not encourage
pro se prisoners to ignore district-court instructions—even on
forms.
One last point: the district courts should make pro se pris-
oners aware of the mandatory administrative exhaustion require-
ment—but not by requiring them to plead exhaustion. The North-
ern District of Florida, for instance, simply notifies filers—in bold
italics—that “[i]f [the plaintiff] did not exhaust available remedies
prior to filing this case, this case may be dismissed. . . . Therefore,
please consider whether you have fully exhausted your remedies
before proceeding with this action.”
In short, I respectfully urge district courts to cease use of and
reliance on the yes/no check-box form question asking about ex-
haustion of remedies. After all, if the grievance system in the pris-
oner’s facility isn’t available, then exhaustion isn’t required. And a
pro se prisoner who doesn’t have an available grievance system is
exactly the person the federal courts should be open to hearing.
USCA11 Case: 21-10550 Document: 80-1 Date Filed: 02/01/2023 Page: 35 of 35

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