United States District Court,
M.D. Georgia,
Macon Division.
Willie B. TURNER, Plaintiff,
v.
Hale Edward BURNSIDE et al., Defendants.

No. 5:06-cv-293 (CAR).
Sept. 29, 2009.

Mcneill Stokes, Atlanta, for Plaintiff.

Kevin T. Brown, Law Office of Kevin T. Brown, Esq, Macon, Michelle Jeanette Hirsch, State Law Department, Atlanta, for Defendant.

ORDER ON THE UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATION
C. ASHLEY ROYAL, District Judge.

*1 Before the Court is the United States Magistrate Judge's Recommendation [Doc. 45] that Defendants' Motion to Dismiss [Doc. 39] be granted in part and denied in part. Specifically, the Magistrate Judge recommends that Plaintiff's claims against Defendant Tighe and Meadows be dismissed for failure to state a claim and that the claims against Defendants Burnside, Ramsey, and Hinkle be allowed to go forward. Defendants filed an Objection to the Recommendation. [Doc. 46.] Upon consideration of the objections of Defendants and a de novo review of the record submitted by the parties, this Court agrees with the conclusions of the United States Magistrate Judge. Accordingly, the Magistrate Judge's Recommendation is hereby ADOPTED AND MADE THE ORDER OF THE COURT.

As more fully set forth by the Magistrate Judge, this case is before the Court on remand from the Eleventh Circuit Court of the Appeals. On appeal, the Eleventh Circuit adopted the position that ?a prison official's serious threats of substantial retaliation against an inmate for lodging or pursuing in good faith a grievance? can, under certain circumstances, ?make the administrative remedy ?unavailable,? and thus lift the exhaustion requirement....? Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir.2008). The Eleventh Circuit then set forth the standard lower courts must apply to determine whether, upon finding serious threats of retaliation, the remedies were in fact ?unavailable.? The Court must find that ?(1) the threat actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.? Id. After adopting this new standard, the Eleventh Circuit then directed that Judgment in this case be vacated and the matter remanded to this Court. On remand, the Court must first find facts regarding Plaintiff's allegations that Warden Meadows tore up his grievance and threatened to ?transfer [him] so far south that [he] would never be able to see [his] family against till [he] got out of the Georgia Prison System.? If the Court's findings of facts reveal serious threats of retaliation, the Court must then apply the newly adopted standard to those facts.

In the Recommendation, the Magistrate Judge found credible Plaintiff's allegations concerning his attempts at exhaustion, as well as his recitation of the threats made by Defendant Meadows, and therefore found them to be fact. The Magistrate Judge then applied the newly adopted standard to those findings of facts and concluded that the facts in this case satisfied the two conditions. Consequently, the Magistrate Judge found that Plaintiff exhausted his available administrative remedies, and thus the action should not be dismissed on a failure to exhaust basis. The Magistrate Judge also found that Plaintiff had stated a claim against Defendants Burnside, Ramsey, and Hinkle. The Court does not disagree with these conclusions.

*2 Defendants raise three objections to the Magistrate Judge's Recommendations. The Defendants contend the Magistrate Judge (1) failed to make the required findings of fact, (2) applied an incorrect legal standard, and (3) erroneously found Plaintiff's Amended Complaint stated a claim a Defendant Hinkle.

Defendants' assertion that the Recommendation is devoid of fact finding is mistaken. The Magistrate Judge recognizes at the outset that ?the determination of this issue relies almost entirely upon the court's findings of fact as to plaintiff's allegations of a torn up grievance and a threat of transfer. Realizing, however, that a statement of the court's findings only upon these contested issues would not sufficiently explain the undersigned's analysis, a more comprehensive review of the undersigned's decision is in order.? (Recommendation, p. 5.) After setting forth in detail the process of determining the issue of exhaustion, the Magistrate Judge plainly states that he ?is not convinced that the defendants have met their burden with regard to the issue of exhaustion,? and ?accepts the plaintiff's allegations regarding the filing of a grievance, the destruction of the grievance, and threat of retaliation.? (Recommendation, p. 7.) Thus, the Magistrate Judge found Plaintiff's version of events as fact for the limited purpose of determining the exhaustion issue. Thus, Defendant's objection that the Magistrate Judge did not properly fact-find is without merit.

Defendants also contend that the Magistrate Judge incorrectly applied the summary judgment standard to resolve the factual dispute regarding exhaustion. This case is before the Court at the second stage of the two-step process courts must use to evaluate motions to dismiss based on a failure to exhaust defense. See Turner, 541 F.3d at 1082. Thus, this Court must not merely accept the Plaintiff's version of the facts as true, but the Court must make specific findings of fact to resolve the disputed factual issues related to exhaustion. Id. At this stage it is Defendants' burden to prove that Plaintiff has failed to exhaust his available administrative remedies. Id. Unlike at summary judgment where the Court must accept the facts in the light most favorable to Plaintiff and cannot decide disputed issues of fact, weigh evidence, or determine credibility, at this stage of evaluating a motion to dismiss based on failure to exhaust, the Court must do exactly those things: The Court must become the fact-finder and resolve the disputed issues of fact, weigh the evidence, and determine credibility to determine whether Plaintiff has exhausted his available administrative remedies. Thus, in this case, the Court must determine whether Plaintiff's allegations that Warden Meadown destroyed his grievance and threatened him with transfer will be found as the facts.

In resolving this factual dispute, the Court agrees with the conclusion of the Magistrate Judge that Defendants have failed to meet their burden of demonstrating that Plaintiff failed to exhaust his available administrative remedies. As Defendants admitted in a brief to this Court, ?[u]nfortunately, the Court is faced with a ?he said/she said? situation as to whether the administrative remedies were available to Plaintiff.? [Doc. 23, p. 3]. Like the Magistrate Judge, the Court finds that Defendants did not meet their burden and thus finds the facts in Plaintiff's favor. Aside from the affidavit of Warden Meadows denying Plaintiff's allegations that he tore up the grievance and threatened Plaintiff with transfer, Defendants provided the affidavits of Kay Newsome, Plaintiff's grievance counselor, and Margie Spear, secretary to the Warden. The affidavit of Margie Spear simply states that there is no record of a grievance having been filed by Plaintiff. The lack of a record is unsurprising given Plaintiff's contentions that Warden Meadows destroyed the grievance form. The affidavit of Kay Newsome states that she does not recall Plaintiff ever asking for or submitting any grievance form to her relating to an electric shock or related medical treatment. This lack of recollection does not overcome Plaintiff's consistent allegations from the beginning of this suit that he did, in fact, submit the grievance form to Ms. Newsome. In her affidavit, Ms. Newsome also states that she would have followed the statewide grievance procedure had Plaintiff submitted a grievance form to her. Part of that procedure would have been to give Plaintiff a receipt of his grievance. Defendants contend that because Plaintiff has never provided a copy of any such receipt, it is evidence that Plaintiff never filed a grievance. Again, such lack of evidence does not overcome Plaintiff's allegations from the beginning of this action that Ms. Newsome told Plaintiff she would make a copy of the grievance form, which she never gave to him. Thus, in weighing the evidence and making credibility determinations, the Court agrees with the Magistrate Judge and finds that Defendants did not meet their burden, and Plaintiff did exhaust his available administrative remedies.

*3 Finally, Defendants contend that Plaintiff's Amended Complaint fails to state a claim against Defendant Hinkle. Upon review of the Amended Complaint, the Court finds Defendants objections to be without merit. The reasonable inferences include that Defendant Hinkle (1) was present at the time of Plaintiff's electrocution, (2) was aware of the substantial risk of Plaintiff's contact with the oven, and (3) failed to take reasonable steps to prevent Plaintiff's contact with the oven or render aide during or after the incident. Thus, the Court agrees with the Magistrate Judge that further factual development is necessary and appropriate on Plaintiff's deliberate indifference claim against Defendant Hinkle, and it should not be dismissed for failure to state a claim.

SO ORDERED.

RECOMMENDATION
CLAUDE W. HICKS, JR., United States Magistrate Judge.

The above-captioned 42 U.S.C. § 1983 action is before the court on remand from the Eleventh Circuit Court of Appeals. Previously, the undersigned entered a Recommendation (Tab # 26) to grant the defendants' motion seeking dismissal (Tab # 19) on the basis that plaintiff Turner had failed to exhaust his administrative remedies prior to filing the instant action. The basis for this Recommendation was the undersigned's conclusion that, even accepting everything the plaintiff alleged with regard to exhaustion as true, it was clear that the plaintiff had not availed himself of all available administrative remedies as is required to fully exhaust claims using the administrative grievance procedure then in place at the prison. This Recommendation was subsequently adopted by the district judge (Tab # 28) and Judgment was entered (Tab # 29). Thereafter, plaintiff Turner filed a Notice of Appeal. Tab # 31.

On appeal, the Eleventh Circuit concluded that this court had used the appropriate procedure in evaluating the exhaustion issue and that, under that procedure, plaintiff Turner had not, in fact, taken all possible steps to exhaust his claims on the administrative level. That said, the appellate court next adopted the Second and Seventh Circuit's position that the possibility or actual threat of retaliation against inmates by prison officials for seeking administrative remedies can, under certain circumstances, make administrative remedies unavailable to an inmate. To wit, the Eleventh Circuit concluded that:

A prison official's serious threats of substantial retaliation against an inmate for lodging or pursuing in good faith a grievance make the administrative remedy ?unavailable,? and thus lift the exhaustion requirement as to the affected part of the process if both of these conditions are met: (1) the threat actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.

*4 Turner v. Burnside, 541 F.3d 1077 (11th Cir.2008).

Following their adoption of this standard, the Eleventh Circuit directed that the Judgment in this case be vacated and the matter remanded to this court for fact finding about, inter alia, plaintiff Turner's allegations that WARDEN Meadows tore up his grievance and threatened to ?transfer [him] so far south that [he] would never be able to see [his] family again till [he] got out of the Georgia Prison System.? The Eleventh Circuit further directed this court, upon completion of fact finding, to apply the newly adopted standard to the facts.

DEFENDANT'S MOTION TO DISMISS
Following the court's receipt of the Eleventh Circuit's order of remand (Tab # 37), the defendants filed another [second] motion seeking dismissal (Tab # 39). Therein, just as in their initial motion to dismiss, the defendants argue that plaintiff Turner failed to exhaust his available administrative remedies and, as such, is not properly before the court. In addition, and with regard to defendants Meadows, Hinkle, and Tighe, the defendants argue that the plaintiff has failed to sufficiently state a deliberate indifference claim against them and, as such, the court should dismiss them from this action.

In response, and with regard to the defendants' repeated assertion that administrative remedies have not been exhausted, plaintiff Turner, referring to relevant portions of the Eleventh Circuit opinion, asserts that he did exhaust all the administrative remedies which were available to him and, as such, is properly before the court. Tab # 41. With respect to the defendants' failure to state a claim argument, plaintiff avers that he has comported with the notice pleading requirement of Rule 12 of the Federal Rules of Civil Procedure in stating his claims against all of the defendants.

Discussion
Compliance with the explicit directions of the Eleventh Circuit requires further consideration of the defendants' initial motion seeking dismissal (Tab # 19). However, the arguments in support of both of the defendants' two motions seeking dismissal are substantially the same with regard to the exhaustion issue; consideration of the defendants' second motion seeking dismissal requires the application of the same test to facts found by the court from essentially the same allegations as in the first motion. An analysis of, and a recommendation on, the second motion seeking dismissal would appear to satisfy both the directions of the Eleventh Circuit as well as the undersigned's responsibility to provide the district judge with a recommendation on the second motion seeking dismissal. It is upon this conclusion that the undersigned will proceed.

Defendants Meadows, Hinkle, and Tighe
At the outset, and in the interest of judicial efficiency, the undersigned will first address the defendants' failure to state a claim argument. In their motion, the defendants aver that, as against defendants Meadows, Hinkle, and Tighe, plaintiff Turner has failed to allege any acts of wrongdoing. This statement is not entirely correct. In his pleadings, plaintiff Turner alleges that defendant Hinkle was physically present during the plaintiff's alleged electrocution and was deliberately indifferent by failing to prevent the electrocution or render aid during or after said electrocution. With regard to defendant Tighe, a prison maintenance supervisor, plaintiff alleges deliberate indifference on the basis that Tighe failed to repair or remove from service the malfunctioning oven prior to the plaintiff's electrocution. Finally, and with respect to defendant Meadows, plaintiff Turner contends that the assertion that Meadow's destroyed his grievance and threatened to transfer him are sufficient to state a claim.

*5 In the case of Tighe and Meadows, the defendants' contention that plaintiff Turner has failed to sufficiently state a claim appears to be correct. Taking into account all of the plaintiff's allegations, he has failed to sufficiently allege the level of personal involvement in the kitchen incident complained of which is needed to establish that defendant Tighe was subjectively aware of and failed to reasonably respond to a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). At best, plaintiff complaint against defendant Tighe sounds in negligence; negligence does not form the basis for recovery under Section 1983. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). As such, it appears that defendant Tighe should be dismissed from this action. IT IS SO RECOMMENDED.

As for defendant Meadows, the plaintiff's claims against him are, in essence, an access to the courts claim which, while tangentially related, occurred separately from and sometime after the kitchen incident. As such, the plaintiff's claims against defendant Meadows are not sufficiently related to the subject matter of the instant suit. Accordingly, defendant Meadows should also be dismissed from this action. IT IS SO RECOMMENDED.

As for defendant Hinkle, plaintiff Turner's claims, if proven, would appear to sufficiently inculpate Hinkle's participation in the plaintiff's electrocution claims. That is, if, as the plaintiff claims, Hinkle was present during, and was subjectively aware of the substantial risk involved in, plaintiff's contact with the malfunctioning oven and failed to take any reasonable steps to prevent plaintiff's contact with the oven or to render aid during or immediately after the alleged electrocution, he could properly be found liable therefor. As such, it appears to the undersigned that Hinkle is a proper party defendant and should remain in this case for further factual development.

Failure to Exhaust Claim
As noted above, the primary argument of the defendants in their motions seeking dismissal is their assertion that plaintiff Turner failed to properly exhaust his available administrative remedies prior to filing the instant action. Having carefully reviewed the arguments presented by the parties, and in light of the opinion of the Eleventh Circuit, it appears that the determination of this issue relies almost entirely upon the court's findings of fact as to plaintiff's allegations of a torn up grievance and a threat of transfer. Realizing, however, that a statement of the court's findings only upon these contested issues would not sufficiently explain the undersigned's analysis, a more comprehensive review of the undersigned's decision is in order.

As has been noted by the Eleventh Circuit, when the issue of failure to exhaust is raised by a defendant in the context of an inmate's 42 U.S.C. § 1983 action, it is to be treated as a matter in abatement. See Bryant v. Rich, 530 F.3d 1368 (11th Cir.2008). That is, the issue, while properly considered a foundation for a motion to dismiss, is to be resolved by the court using procedures and standards not unlike those employed in deciding motions for summary judgment. Id. Moreover, and in large part because a determination of exhaustion rarely, if ever, reaches the merits of the case, the court is empowered to make such findings of fact as are needed.

*6 In view of the above, and as was outlined in the Eleventh Circuit's opinion, there is a two part procedure for determining exhaustion issues. The first step is for the court to review the factual allegations contained in the defendants' motion to dismiss as well as those in the plaintiff's response. In doing so, the court is to accept the plaintiff's version of the facts as true. If, having followed this procedure, it appears that the defendants are entitled to have the matter dismissed for failure to exhaust, the court must do so.

If the action is not subject to dismissal at the first step, the court must make those findings of fact necessary to resolve the exhaustion issue. Once these findings have been made, the court must decide whether the plaintiff has exhausted his available administrative remedies. It should be noted that in the second step of this process, the defendants bear the burden of proving that the plaintiff failed to exhaust his available administrative remedies.

In this case, and in the undersigned's initial review of the issue of exhaustion, the analysis concluded at step one of the aforementioned process. That is, no fact finding was necessary as the undersigned determined that, accepting all of the plaintiff's allegations as true, he had not exhausted his administrative remedies. The rationale for this decision was the observation that the plaintiff could and should have taken additional steps including filing an additional grievance, seeking an appeal of the warden's denial via destruction of his grievance, or seeking permission to file an out of time grievance.

Upon plaintiff's appeal, the defendants raised these and other reasons, but their arguments were found to be without merit. Central to this determination about merit was the Eleventh Circuit's adoption of the position that threats of retaliation could, under certain circumstances, make administrative remedies unavailable to an inmate. These conditions include the requirement that the threat actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process and that the threat be one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing a part of the grievance process. Having adopted this position along with its accompanying test, the Eleventh Circuit concluded that further consideration of the exhaustion issue by the district court was needed in this case. Implicit in this decision is the Eleventh Circuit's opinion that the physical destruction of an inmate's grievance followed by a threat of transfer may indeed satisfy the aforementioned test. Accordingly, the undersigned must now proceed to the second part of the above-outlined procedure for determining issues of exhaustion.

In this second step, the court must first determine whether or not the defendants' arguments on the issue of exhaustion and evidence in support thereof are sufficient to overcome those offered by the plaintiff. In this case, plaintiff Turner alleges in a sworn affidavit that he filed a grievance with his counselor. Moreover, he avers that the next time he saw this grievance was when he was confronted by Warden Meadows who tore up the grievance and threatened to transfer him to a distant facility such that he would not be able to see his family until he was released, should he pursue the alleged electrocution incident any further.

*7 In response to these averments, the defendants also submitted and relied upon affidavits in making their arguments. These affidavits are intended to support the defendants' position that no grievance was filed and that no threat was ever issued. The former averment relies upon an affidavit certifying that no record of a relevant grievance filed by the plaintiff exists in the prison's computer database. As for the latter averment, the defendants rely upon the affidavit of Warden Meadows in which he denies tearing up the plaintiff's grievance and denies issuing any threats.

Having reviewed the legal and factual arguments and the affidavits of all the parties, and after applying the same test as would be used in deciding a motion for summary judgment as is required under these circumstances, the undersigned is not convinced that the defendants have met their burden with regard to the issue of exhaustion. As such, and for the limited purpose of recommending a decision on the defendants' pending motion seeking dismissal, the undersigned accepts the plaintiff's allegations regarding the filing of a grievance, the destruction of the grievance, and the threat of retaliation. Consequently, the next step is to apply the Eleventh Circuit's newly adopted test of availability.

In deciding whether or not a threat of retaliation has made administrative remedies unavailable, the court must determine whether the relevant facts satisfy two conditions. As outlined above, these conditions include a determination of whether or not the threat actually deterred the plaintiff inmate from lodging a grievance or pursuing a particular part of the process and whether or not the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust. At the outset, it should be noted that in the language immediately preceding these two conditions appears the requirement that the prison official's threat must be serious and must threaten substantial retaliation against an inmate for lodging or pursuing in good faith a grievance. In the instant case, there is nothing to indicate that Warden Meadows' threat was not serious. Moreover, if proven, the plaintiff's allegations of deliberate indifference would certainly form the basis for the plaintiff to lodge and pursue a grievance in good faith. As such, it would appear that the preliminary requirements have been met.

As to the requirement that the inmate actually be deterred, and despite the defendants' argument that the plaintiff's filing of a lawsuit somehow proves that he was not actually deterred, the undersigned is convinced that the plaintiff was, in fact, deterred from pursuing his administrative remedies any further within the Department of Corrections. Insofar as the second condition requires the threat of retaliation to be one which would deter a reasonable inmate of ordinary firmness and fortitude from lodging or pursuing a grievance, it is the opinion of the undersigned that a threat to be transferred to a south Georgia prison too far away to allow visitation with family would indeed deter such an inmate from lodging or pursuing a grievance. Consequently, the undersigned must conclude that the plaintiff has exhausted his available administrative remedies. For this reason, the defendants contention that this action should be dismissed on the basis that the plaintiff failed to exhaust his available administrative remedies must fail.

*8 Accordingly, IT IS RECOMMENDED that the defendants' motion to dismiss be GRANTED in part and DENIED in part in accordance with the foregoing, to-wit: this action shall go forward against defendants Burnside, Ramsey and Hinkle; defendants Tighe and Meadows should be dismissed; defendant Wright has been previously dismissed.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to the RECOMMENDATIONS herein with the district judge to whom this case is assigned WITHIN TEN (10) DAYS after being served with a copy thereof.

SO RECOMMENDED this 1st day of SEPTEMBER, 2009.

United States Court of Appeals,
Eleventh Circuit.
Willie B. TURNER, Plaintiff-Appellant,
v.
Hale Edward BURNSIDE, Calvin Ramsey, Otis Right, Roger Hinkle, John Doe, I, et al., Defendants-Appellees,

No. 07-14791.
Aug. 28, 2008.

*1079 McNeill Stokes, Atlanta, GA, for Turner.

Michelle J. Hirsch, Stat of GA Dept. of Law, Atlanta, GA, Kevin T. Brown, Mary Beth Hand, Sell & Melton, LLP, Macon, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Georgia.
Before CARNES and MARCUS, Circuit Judges, and BUCKLEW,FN* District Judge.


FN* Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida, sitting by designation.

*1080 CARNES, Circuit Judge:

Willie Turner, an inmate at the Men's State Prison in Hardwick, Georgia, filed a 42 U.S.C. § 1983 lawsuit against various officials and employees of the Georgia Department of Corrections who worked at the prison. His lawsuit claimed that he had been subjected to cruel and unusual punishment as a result of an incident in which he was deliberately exposed to electrical shock. After the district court dismissed Turner's complaint for failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a), he filed this appeal.

I.
Turner's claims are based on allegations about what happened to him on August 24, 2004, while he was on a work detail in the prison kitchen. According to his complaint, a prison employee supervising inmates forced Turner to clean an oven even after Turner had protested that it was not safe to do so because the oven was sparking electricity and the floor was wet. When he touched the oven, Turner received an electrical shock that knocked him to the ground and permanently damaged his leg. Instead of turning off the power or sympathizing with Turner, the supervisor joked about what had happened, called Turner stupid, and filed a disciplinary report against him. Turner alleges that the supervisor later told him that exposing Turner to the risk of electrical shock was his way of getting back at him for being too fat. After he was shocked, a prison guard took Turner to the prison's infirmary where he contends that he received deliberately indifferent medical care.

The grievance procedures in effect at the Men's State Prison in Hardwick are those contained in the Georgia Department of Corrections' Standard Operating Procedure IIB05-0001. (Our description of that SOP is of the version that existed at the time these facts arose.) The first step requires the inmate to file a written informal grievance with his grievance counselor within ten days of the date that the inmate ?discovered or reasonably should have discovered the incident giving rise to the complaint.? Turner did that. On August 30, 2004, six days after being shocked, Turner gave his grievance counselor an informal grievance form complaining that he had been shocked and had received inadequate medical treatment afterwards.

When an inmate's informal grievance alleges physical abuse or excessive force, as Turner's did, the SOP requires the inmate's counselor to forward it to the grievance coordinator within two business days of receipt. The grievance coordinator must then ?ensure that the inmate is promptly issued a [formal] grievance form? and must forward a copy of the informal grievance to the Internal Investigations Unit of the Office of Professional Standards. From the allegations in Turner's complaint, which we must accept as true at this stage, it appears that either the grievance counselor or the coordinator may have failed to act as required. On September 7, 2004 Turner's counselor told him that she did not know where his informal grievance was but that she would give him a formal grievance form before his time to file ran out. There is some ambiguity in the SOP about the deadline for filing a formal grievance under certain circumstances, but none of that ambiguity affects the outcome here. Under any interpretation of the SOP, Turner met the deadline *1081 by filing a formal grievance on the same day the grievance counselor gave him the form.

According to the SOP, after an inmate submits a formal grievance, the warden, superintendent, or someone else designated to resolve the inmate's complaint must review the grievance and ?provide a written response stating the reason(s) for the decision reached.? The grievance coordinator then gives to the inmate the response to the formal grievance along with the original grievance form that the inmate submitted. All of this must be done within thirty days of the date that the inmate submits his formal grievance, unless the grievance coordinator authorizes a one-time, ten-day extension to allow for a more complete investigation of the allegations in the grievance. If the warden, superintendent, or designee denies the grievance or fails to respond in writing to it within thirty (or forty, if extended) days after receipt, the SOP provides that the inmate may appeal to the Office of the Commissioner within five days of receiving a response or of the expiration of the allotted time for one. Upon notice that the inmate wishes to appeal the response or lack of one, the counselor or grievance coordinator must provide the inmate with an appeal form for this purpose.

It is from that stage of the procedures the issue arises. The allegations are that on September 9, 2004, two days after Turner submitted his formal grievance, Warden Tydus Meadows called him ?to security.? When Turner arrived, Meadows was holding the formal grievance form Turner had submitted, and said, ?Oh-you're the one that got shocked!? The warden told him, according to Turner: ?that if I didn't like the way they did things around here he would put my ass in the van with inmate Johnson and transfer me so far south that I would never be able to see my family again till I got out of the Georgia Prison System.? Meadows then tore up Turner's complaint in front of him and said that he ?had better not hear of another grievance or lawsuit pertaining to [Turner] getting shocked.?

II.
In the district court the defendants raised the exhaustion of administrative remedies defense in their motion to dismiss. Attached to the motion was an affidavit from the secretary of the Men's State Prison laying out the grievance process and stating that she could not find in Turner's file any formal grievance relating to the subject matter of this lawsuit. Turner responded that the reason she could not find his formal grievance is that Warden Meadows had ripped it up. He contended that he had properly exhausted his remedies to the extent that he could. Turner also contended, because the defendants' motion to dismiss relied on information outside the pleadings, it was really a motion for summary judgment. On that basis he submitted three affidavits in which he swore to the exhaustion facts that we have recounted.

The magistrate judge recommended that Turner's complaint be dismissed without prejudice for failure to exhaust all of his administrative remedies, as required by the PLRA. Accepting as true Turner's allegation that the warden had torn up his formal grievance, the magistrate judge concluded that in order to exhaust his administrative remedies Turner should have: ?(1) filed an additional grievance (formal or informal); (2) sought an appeal of the warden's destroying his grievance, which could be construed as a denial of the grievance; or (3) sought leave to file an additional and/or out-of-time grievance.? Turner objected to the recommendation, contending that the warden's threat to *1082 ship him far away from his family had rendered his administrative remedies unavailable. Turner asserted his position that the defendants' motion should be considered as one for summary judgment.

The district court overruled Turner's objections and adopted the magistrate's recommendation. In doing so, the court expressed its belief that threats alone cannot make administrative remedies unavailable and, even if they could, Turner should have taken the three actions identified by the magistrate judge.

III.
Turner first contends that the district court made improper findings of fact by looking beyond the complaint to consider facts alleged in the affidavits submitted by both parties. The defendants argue that the district court did not make any findings of fact in dismissing Turner's suit, and even if it did so, that is permitted.

[1] Headnote Citing References This Court has recently decided this issue. We held that a defense of failure to properly exhaust available administrative remedies under the PLRA should be treated as a matter in abatement. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.2008). This means that procedurally the defense is treated ?like a defense for lack of jurisdiction,? although it is not a jurisdictional matter. Id. As a result, deciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process. Cf. Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990) (describing the ?two forms? of attacks-facial and factual-on subject matter jurisdiction).

[2] Headnote Citing References[3] Headnote Citing References First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the plaintiff's version of the facts as true. If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed. See Bryant, 530 F.3d at 1373-74 (concluding that there was a genuine issue of material fact about the availability of administrative remedies before addressing the propriety of the district court acting as a factfinder to resolve the issue); cf. Lawrence, 919 F.2d at 1529 (?Facial attacks on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.? (citation, alterations, and quotation marks omitted)). This process is analogous to judgment on the pleadings under Federal Rule of Civil Procedure 12(c).

[4] Headnote Citing References[5] Headnote Citing References If the complaint is not subject to dismissal at the first step, where the plaintiff's allegations are assumed to be true, the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion. Bryant, 530 F.3d at 1373-74, 1376; cf. Lawrence, 919 F.2d at 1529. The defendants bear the burden of proving that the plaintiff has failed to exhaust his available administrative remedies. See Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007) (?We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints.?); Dixon v. United States, 548 U.S. 1, 8, 126 S.Ct. 2437, 2443, 165 L.Ed.2d 299 (2006) (stating that, as a ?general evidentiary rule,? the burdens of production and persuasion are given to the same party); Roberts v. Barreras, 484 F.3d 1236, 1240 (10th Cir.2007) ( ? Jones does not spell out the proper burden of proof to use in evaluating exhaustion claims, but circuits that treated exhaustion*1083 as an affirmative defense prior to Jones have all put the burden of proof on defendants, to the extent that they addressed the issue.?); id. (citing cases). Once the court makes findings on the disputed issues of fact, it then decides whether under those findings the prisoner has exhausted his available administrative remedies.

In this case the district court did not make any findings of fact, improper or otherwise. Instead, it assumed that every factual allegation about exhaustion that was contained in Turner's three affidavits was true. That is what we later held in Bryant that a court is to do at the first step. Bryant, 530 F.3d at 1371, 1372; cf. Fed.R.Civ.P. 12(d) (?If, on a motion under Rule ... 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.?). Because the district court concluded at the first step that even taking Turner's version of the facts as true he had not exhausted his administrative remedies, the court never reached the second step of resolving the factual disputes between the parties about exhaustion. There was no violation of the Bryant procedures here.

IV.
[6] Headnote Citing References Turner next contends that taking his allegations as true the district court erred in deciding that he had not exhausted his administrative remedies. The defendants take the position that Turner failed to exhaust his administrative remedies because he failed to: (1) file an additional grievance; (2) seek leave to file an out-of-time grievance; (3) file an emergency grievance; or (4) appeal the implicit denial of his formal grievance.

[7] Headnote Citing References We reject the defendants' arguments that Turner was required to file an additional grievance or to seek leave to file an out-of-time grievance. Turner alleges that he properly filed his formal grievance but Warden Meadows tore it up. Nothing in SOP IIB05-0001, the applicable prison regulation, requires an inmate to grieve a breakdown in the grievance process. Nor does anything in the SOP require an inmate to seek leave to resubmit the same grievance to the same official who destroyed the grievance when it was properly filed as a matter of right. The PLRA requires that inmates exhaust their available administrative remedies. 42 U.S.C. § 1997e(a). It does not require inmates to craft new procedures when prison officials demonstrate-and here we could use that word literally-that they will refuse to abide by the established ones. Cf. Dole v. Chandler, 438 F.3d 804, 811 (7th Cir.2006) (?[P]rison authorities may not employ their own mistake to shield them from possible liability, relying upon the likelihood that a prisoner will not know what to do when a timely appeal is never received.?).

[8] Headnote Citing References The defendants' third argument, that Turner should have filed an emergency grievance, is also without merit. The SOP does contain an emergency grievance procedure that can be used for ?unexpected situation[s] that require [ ] prompt action to avoid irreparable harm to the inmate,? but it also specifically contemplates that allegations of physical abuse or excessive force may be made through the non-emergency grievance procedures. In any event, Turner's allegations would not justify filing an emergency grievance. At the time he filed his informal grievance Turner had already allegedly been shocked and denied adequate medical care, and there is nothing in his allegations to indicate that at that time his grievance ?require[d] prompt action to avoid irreparable harm.? More fundamentally, nothing in the SOP requires inmates to use the emergency grievance procedure when grieving an *1084 emergency. Turner's failure to comply with an optional administrative procedure does not amount to a failure to properly exhaust his remedies. Cf. Darby v. Cisneros, 509 U.S. 137, 147, 113 S.Ct. 2539, 2545, 125 L.Ed.2d 113 (1993) (interpreting the exhaustion requirement of the Administrative Procedure Act to allow judicial review when litigants have exhausted all mandatory administrative appeals but have not exhausted optional ones).

[9] Headnote Citing References Finally, the defendants argue that Turner failed to properly exhaust his administrative remedies because he did not appeal Warden Meadows' implicit-albeit emphatic-denial of his formal grievance. In arguing that filing an informal grievance is enough, Turner cites the portion of the SOP that exempts inmates alleging excessive force or physical abuse from waiting for a response to their informal grievances before filing formal ones. However, an exemption from one specific requirement is not a license to disregard others. We are not considering whether a formal grievance was filed too soon, but instead a situation in which the denial of a formal grievance was never appealed. The SOP does require inmates to appeal within five days after they have received either an unfavorable written response to their formal grievance or no written response at all within the time provided for one.

Turner never received a written response to his formal grievance. Once the thirty-day time limit for a response had passed, he was required to appeal within five calendar days. He admits that he failed to file an appeal. As a result, if the appeal remedy was available to Turner, he should have pursued it and his failure to do so would bar his lawsuit under the PLRA's exhaustion requirement.

Turner contends that the appeal remedy was not ?available? to him because of Warden Meadows' threat to ?put [Turner's] ass in a van ... and transfer [him] so far south that [he] would never be able to see [his] family again till [he] got out of the Georgia [p]rison [s]ystem.? Holding otherwise, Turner argues, would deprive him of his constitutional right of access to the courts.

The defendants respond by contending that, even if Warden Meadows did threaten Turner, the appeal procedure was still available to him. They argue that threats of retaliation, especially those that do not raise the specter of physical abuse, cannot make a remedy unavailable. We have not found a published court of appeals decision supporting that proposition. The circuits that have considered this issue have held that it is possible for retaliation or the threat of retaliation to make administrative remedies unavailable to an inmate. See Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir.2006); Hemphill v. New York, 380 F.3d 680, 688 (2d Cir.2004). Today we join them.

[10] Headnote Citing References[11] Headnote Citing References A remedy has to be available before it must be exhausted, and to be ?available? a remedy must be ?capable of use for the accomplishment of [its] purpose.? Goebert v. Lee County, 510 F.3d 1312, 1322-23 (11th Cir.2007) (internal quotation marks and citation omitted). Remedies that rational inmates cannot be expected to use are not capable of accomplishing their purposes and so are not available.

One of the purposes of administrative remedies is to give prisoners a way of attempting to improve prison conditions without having to file a lawsuit. See Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 2387, 165 L.Ed.2d 368 (2006). That purpose is thwarted if the prisoner is told that lodging a grievance will result in his overall condition becoming worse instead of better. Where cost outweighs benefit a *1085 rational decision maker will forego the benefit. When an inmate foregoes administrative remedies because prison officials have made it irrational for him to pursue them, the inmate loses a benefit that Congress intended to bestow on him. The corrections and judicial systems also lose the substantial benefits that administrative remedies were intended to provide them. See id. (recognizing that the PLRA's exhaustion requirement is designed ?to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case? (internal quotation marks, alterations, footnote, and citations omitted)); id. at 93-94, 126 S.Ct. at 2387 (?The PLRA also was intended to reduce the quantity and improve the quality of prisoner suits.? (internal quotation marks and citation omitted)).

Stated differently, at least some threats disrupt the operation and frustrate the purposes of the administrative remedies process enough that the PLRA's exhaustion requirement does not allow them. The construction of ?availability? that we adopt is beneficial because it reduces any incentive that prison officials otherwise might have to use threats to prevent inmates from exhausting their administrative remedies, and it thereby safeguards the benefits of the administrative review process for everyone.

[12] Headnote Citing References We conclude that a prison official's serious threats of substantial retaliation against an inmate for lodging or pursuing in good faith a grievance make the administrative remedy ?unavailable,? and thus lift the exhaustion requirement as to the affected parts of the process if both of these conditions are met: (1) the threat actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust. See Hemphill, 380 F.3d at 688 (?The test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would ?a similarly situated individual of ordinary firmness' have deemed them available.? (citation omitted)); cf. Smith v. Mosley, 532 F.3d 1270, 1277 (11th Cir.2008) (noting that an inmate claiming a First Amendment violation based on retaliation for a complaint about prison conditions must show that the discipline ?would likely deter a prisoner of ordinary firmness from complaining? (quotation marks and alteration omitted)). The particulars of this standard for determining the availability of administrative remedies where a threat is alleged can be honed against the facts of future cases, with particular attention paid to the special circumstances and security needs of prisons.

V.
[13] Headnote Citing References The defendants contend that, even applying a test similar to the one we are adopting, they are still entitled to have Turner's suit dismissed for two reasons. First, they assert that Warden Meadows' alleged threat-that he would transfer Turner if he filed another grievance or a lawsuit-was not sufficient to deter Turner from acting because he did act to file this lawsuit. However, as the Second Circuit noted in Hemphill:

[T]hreats or other intimidation by prison officials may well deter a prisoner ... from filing an internal grievance, but not from appealing directly to individuals in positions of greater authority within the prison system, or to external structures of authority such as state or federal *1086 courts .... because seeking a criminal investigation or filing a civil rights complaint may enable an inmate to draw outside attention to his complaints, thereby neutralizing threatened retaliatory conduct from prison employees.

Hemphill, 380 F.3d at 688. That makes sense to us, but we do not adopt a rule categorically precluding the factfinder from considering the fact that the inmate did file a lawsuit in spite of the alleged threat. We do not have that issue before us today. Instead, we simply decide that the fact the inmate has filed the lawsuit does not necessarily mean that the alleged threat did not deter him, or would not have deterred a reasonable inmate of ordinary firmness and fortitude, from pursuing the administrative remedy.

[14] Headnote Citing References[15] Headnote Citing References Second, the defendants argue that Warden Meadows' threat could not have made an appeal unavailable to Turner because Meadows retired before Turner filed this lawsuit. If Meadows' threats made administrative remedies unavailable, they reason, then his retirement would make them available again. Under this view Turner was required to file an out-of-time grievance once Meadows retired. This argument is unconvincing for two reasons. One is that Warden Meadows' retirement is not in the record; it is stated only in the defendants' brief. We do not consider facts outside the record. See Alexander v. Hawk, 159 F.3d 1321, 1323 n. 2 (11th Cir.1998). The other reason this argument is unconvincing is that, if the defendants' brief is to be believed, Meadows retired in September 2006, which was a month after Turner filed his lawsuit. ?[A]n administrative remedy that is unavailable until after the lawsuit is filed is not an available remedy within the meaning of § 1997e(a)'s exhaustion requirement ....? Goebert, 510 F.3d at 1324. If Meadows retired when the defendants say that he did, that does not affect the availability of Turner's administrative remedies before this lawsuit was filed.

VI.
There are disputed factual issues that may affect determination of whether the remedy of appealing the unfavorable response, or lack of any response, to Turner's formal grievance was available to him. For example, the parties dispute whether Warden Meadows actually tore up Turner's formal grievance and threatened him. Until the district court decides that and any other relevant factual issues, it would be premature to apply to this case the standard we announce today. See Bryant, 530 F.3d at 1374; see also Tarlton v. United States, 429 F.2d 1297, 1298 (5th Cir.1970)FN1 (remanding a pre-PLRA prisoner case to the district court for factfinding on the exhaustion of administrative remedies issues); Hess v. Blackwell, 409 F.2d 362, 363 (5th Cir.1969) (same). In any event, we would prefer for the district court in the first instance to apply the standard to the facts it finds in this case.

FN1. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent in the Eleventh Circuit all decisions of the former Fifth Circuit announced prior to October 1, 1981).


The judgment is VACATED and the case is REMANDED for further proceedings consistent with this opinion.