The Unenumerated Rule 12(b) Motion to Dismiss: and ... Unenumerated Rule 12(b) Motion to Dismiss: Bryant v. Rich and Judicial Fact-Finding on the Affirmative Defense of Failure to

- 1 -

The Unenumerated Rule 12(b) Motion to Dismiss: Bryant v. Rich and Judicial Fact-Finding

on the Affirmative Defense of Failure to Exhaust Administrative Remedies

$icholas J. Pavlov

I. Introduction

In 1996 Congress enacted the Prison Litigation Reform Act (PLRA),1 which requires

prisoners to exhaust administrative remedies prior to filing a federal claim related to prison

conditions in a federal court.2 Although the United States Supreme Court recently held that the

PLRA exhaustion requirement is an affirmative defense,3 courts have struggled with the proper

procedure for raising it.4 In Bryant v. Rich,

5 the United States Court of Appeals for the Eleventh

Circuit adopted the approach of the United States Court of Appeals for the Ninth Circuit for

raising this defense: an unenumerated Federal Rule of Civil Procedure 12(b)6 motion.

7 Because

a prisoner must properly exhaust prior to suing in federal court,8 the Eleventh Circuit will now

follow a procedure whereby a judge finds facts on an affirmative defense that might forever bar

1 Pub. L. 104-134, § 803, 110 Stat. 1321 (1996) (codified at 42 U.S.C. § 1997e (2000)).

2 42 U.S.C. § 1997e(a).

3 Jones v. Bock, 549 U.S. 199, 211-12 (2007).

4 Compare, e.g., Pavey v. Conley, 544 F.3d 739, 741-42 (7th Cir. 2008) (unenumerated Rule 12(b) motion to

dismiss) and Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003) (same) with, e.g., Ziemba v. Wezner,

366 F.3d 161, 163-64 (2d Cir. 2004) (summary judgment motion) and Greer v. Smith, 59 F. App’x 491, 492

(3d Cir. 2003) (same).

5 530 F.3d 1368 (11th Cir. 2008), cert. denied, 129 S. Ct. 733 (2008).

6 FED. R. CIV. P. 12(b).

7 Bryant, 530 F.3d at 1373-74; Wyatt, 315 F.3d at 1119-20.

8 Woodford v. Ngo, 548 U.S. 81, 93, 95 (2006); Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005).

See generally Giovanna Shay & Johanna Kalb, More Stories of Jurisdiction-Stripping and Executive Power:

Interpreting the Prison Litigation Reform Act (PLRA), 29 CARDOZO L. REV. 291 (2007); Kathleen J. McCabe,

Note, Woodford v. Ngo: Creating a Barrier to Justice Using the PLRA Exhaustion Provision, 17 TEMP. POL.

& CIV. RTS. L. REV. 277 (2007).

- 2 -

the claimant from adjudication on the merits.9 Bryant represents the significant conflict between

the PLRA’s goal of limiting prisoner suits and the Supreme Court’s repeated commands that the

Federal Rules of Civil Procedure must be strictly followed.

II. Factual Background

Bryant v. Rich10 consolidated two § 1983 actions brought by prison inmates Gregory

Bryant and Andrew Priester against prison officials at Rogers State Prison (Rogers) arising out of

alleged beatings at the prison. 11 This Note will only address Priester’s case.

After the beatings at Rogers, Priester was transferred to Georgia State Prison (GSP).

Officials at GSP allegedly refused to give Priester a grievance form to report his beatings at

Rogers. However, officials allowed Priester to file a grievance form at GSP for property

damage. The defendants—prison officials—moved to dismiss for Priester’s failure to exhaust

administrative remedies under the PLRA. Priester argued that no exhaustion procedure had been

available to him because he had been denied grievance forms.12

In ruling on the motion, the United States District Court for the Southern District of

Georgia considered matters outside the pleadings, including affidavits from both parties. The

magistrate judge acted as a fact-finder and resolved a genuine issue of material fact in favor of

the moving party, the defendants. Specifically, the magistrate made factual findings on the

9 See, e.g., McCullough v. Carmichael, No. 305-CV-1163-WKW, 2008 WL 5111128, at *6 (M.D. Ala. Dec. 2,

2008) (dismissing with prejudice the pro se prisoner’s § 1983 claim after finding facts on the exhaustion

defense on summary judgment motion) (citing Bryant, 530 F.3d at 1374, 1375 n.11, 1377); see also supra note

8.

10 530 F.3d 1368 (11th Cir. 2008), cert. denied, 129 S. Ct. 733 (2008).

11 Id. at 1371.

12 Id. at 1371-72.

- 3 -

question of whether an exhaustion procedure had been available to Priester.13 The magistrate

“disbelieve[d]” Priester’s factual evidence and made “credibility findings” to determine that

Priester had not been denied the opportunity to file a grievance form at GSP.14 The district court

entered summary judgment for the defendants but, nonetheless, dismissed without prejudice.15

The United States Court of Appeals for the Eleventh Circuit affirmed in a 2-1 decision,

characterizing the dismissal not as a grant of summary judgment, but as a dismissal under

Federal Rule of Civil Procedure 12(b).16 The court further held that judges, rather than juries,

must make factual findings related to the affirmative defense of failure to exhaust under the

PLRA.17

III. Legal Background

A. The Proper Exhaustion Requirement of the Prison Litigation Reform Act

In 1980 Congress passed the Civil Rights of Institutionalized Persons Act,18 which gave

district courts authority in § 1983 actions by prisoners to continue the action for up to ninety

days to exhaust administrative remedies.19 Exhaustion under the 1980 statute was

discretionary.20 But in 1996 Congress amended the statute by enacting the PLRA

21 as part of an

13 Id. at 1373, 1377 & n.16.

14 Priester v. Rich, 457 F. Supp. 2d 1369, 1372, 1377 (S.D. Ga. 2006).

15 Id. at 1371 & n.2.

16 Id.

17 Id. at 1374-75.

18 Pub. L. 96-247, 94 Stat. 349 (1980) (codified as amended at 42 U.S.C. § 1997 (2000)).

19 Id. § 7(a)(1), 83 Stat. at 352.

20 Porter v. Nussle, 534 U.S. 516, 523 (2002).

21 Pub. L. 104-134, § 803, 110 Stat. 1321-70, 1321-71 (1996) (codified at 42 U.S.C. § 1997e (2000)).

- 4 -

omnibus appropriations bill.22 The PLRA made the exhaustion requirement a mandatory

23

“precondition to filing an action in federal court.”24

Congress enacted the PLRA in an attempt to “reduce the quantity and improve the quality

of prisoner suits” in federal court.25 Exhaustion reduces litigation because some complaints are

resolved internally, and it improves litigation because the internal grievance procedures create a

useful record.26 Further, the PLRA “attempts to eliminate unwarranted federal-court interference

with the administration of prisons” by allowing prison officials to address a prisoner’s case

before being haled into court.27

Although the exhaustion requirement has spawned a myriad of litigation in its relatively

short tenure,28 two aspects are particularly important: first, exhaustion must be done

22 110 Stat. at 1321.

23 Porter, 534 U.S. at 524.

24 Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (quoting Freeman v. Francis, 196 F.3d 641,

645 (6th Cir. 1999)). The PLRA provides that “[n]o action shall be brought with respect to the prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison,

or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. §

1997e(a).

25 Porter, 534 U.S. at 524; accord Alexander v. Hawk, 159 F.3d 1321, 1327 n.11 (11th Cir. 1998). Absent a

confounding factor, the PLRA exhaustion requirement succeeded in reducing prisoner litigation. In 1996

prisoners filed 41,215 civil rights and prison condition suits in federal court, but in 1997 this number dropped

to 28,635. 1997 JUD. BUS. U.S. CTS. C-2A (available at

http://www.uscourts.gov/judicial_business/c2asep97.pdf). The state and federal prison population increased

from 1,242,153 in 1997 to 1,595,034 in 2007. BUREAU OF JUSTICE STATISTICS, BULLETIN NCJ 170014,

PRISONERS IN 1997, at 2 (August 1998) (available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p97.pdf); BUREAU

OF JUSTICE STATISTICS, BULLETIN NCJ 221944, PRISON INMATES AT MIDYEAR 2007, at 1 (June 2008)

(available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pim07.pdf). Nonetheless, the number of prisoner suits

decreased from 28,635 in 1997 to 24,025 in 2007. 1997 JUD. BUS. U.S. CTS. C-2A; 2007 JUD. BUS. U.S. CTS.

149 (available at http://www.uscourts.gov/judbus2007/JudicialBusinespdfversion.pdf).

26 Jones v. Bock, 549 U.S. 199, 219 (2007).

27 Woodford v. Ngo, 548 U.S. 81, 93 (2006).

28 As noted by the United States District Court for the Southern District of New York, “the PLRA’s enigmatic

exhaustion requirement, intended to reduce the perceived burdensome flow of prisoner litigation, has had the

perverse effect of generating extensive litigation. Indeed, the law on the narrow subject of the PLRA’s

exhaustion requirements continues to evolve month by month.” McCoy v. Goord, 255 F. Supp. 2d 233, 240

(S.D.N.Y. 2003) (citations and quotation marks omitted).

- 5 -

“properly”;29 and second, exhaustion must be “available.”

30 In Woodford v. *go,

31 the United

States Supreme Court borrowed from administrative law and habeas law to hold that the PLRA

requires proper exhaustion.32 Reversing a decision of the United States Court of Appeals for the

Ninth Circuit, the Supreme Court held that “[p]roper exhaustion demands compliance with an

agency’s deadlines and other critical procedural rules.”33 Like habeas law, where a prisoner is

said to have “procedurally defaulted” if he or she fails to adequately pursue state remedies, a

prisoner who fails to comply with a prison’s procedural rules will be forever “barred from

asserting those claims” in federal court.34 Under an exhaustion procedure that does not require

proper exhaustion, a litigant need not strictly comply with procedural rules.35 Additionally,

exhaustion under the PLRA must be available to the prisoner. 36 Therefore, a prisoner is excused

29 Woodford, 548 U.S. at 93.

30 Turner v. Burnside, 541 F.3d 1077, 1084-85 (11th Cir. 2008); Goebert v. Lee County, 510 F.3d 1312, 1324

(11th Cir. 2007); see Booth v. Churner, 532 U.S. 731, 738-39 (2001). However, the specific remedy sought

need not be available. Booth, 532 U.S. at 741 & n.6.

31 548 U.S. 81 (2006).

32 Id. at 93.

33 Id. at 90.

34 Id. at 93; accord Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005); see also MARGO SCHLANGER

& GIOVANNA SHAY, AM. CONSTITUTIONAL SOC’Y FOR LAW AND PUB. POLICY, PRESERVING THE RULE OF

LAW IN AMERICA'S PRISONS: THE CASE FOR AMENDING THE PRISON LITIGATION REFORM ACT 8 (2007)

(available at http://www.acslaw.org/node/4587) (“[T]he PLRA forever bars even meritorious claims from court

if an inmate has failed to comply with all of the many technical requirements of the prison or jail grievance

system”); Shay & Kalb, supra note 8, at 293 (“[I]f the prison rejects a grievance on procedural grounds—

because it is untimely or otherwise fails to comply with institutional grievance rules—a court may never be

able to consider the claim.”); McCabe, supra note 8, at 306 (“If a procedural default component is

incorporated into the PLRA exhaustion requirement, the prisoner has no further recourse for obtaining

justice.”) The Court in Woodford reasoned that the PLRA would be a “toothless scheme” if “noncompliance

carries no significant sanction.” 548 U.S. at 95.

35 See Ngo v. Woodford, 403 F.3d 620, 626, 631 (9th Cir. 2005), rev’d, 548 U.S. 81. The Ninth Circuit held

that a prisoner could have satisfied the exhaustion requirement so long as no administrative remedy was

available. See id. Therefore, a prisoner could have satisfied the exhaustion requirement if the prisoner filed an

untimely grievance, the grievance was denied as untimely, and no further administrative appeal could have

been taken. See id. at 626.

36 Turner, 541 U.S. at 1084-85; Goebert, 510 F.3d at 1324.

- 6 -

from exhausting a prison’s grievance procedures if the prisoner is prevented from filing a

grievance by threats of retaliation from prison officials.37

B. The Eleventh Circuit’s Treatment of Exhaustion Before Jones v. Bock

In 1998 the Eleventh Circuit reasoned in Rivera v. Allin38 that a prisoner’s “claim that

fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim

upon which relief may be granted.”39 The Eleventh Circuit was one of a minority of circuits that

required prisoners to affirmatively plead exhaustion.40 Therefore, defendants in the Eleventh

Circuit could move to dismiss for failure to state a claim under Rule 12(b)(6) if the prisoner did

not affirmatively plead exhaustion.41

However, the Eleventh Circuit never directly approved that procedure and explicitly

refused to identify the correct approach for adjudicating failure to exhaust.42 Because in some

contexts failure to exhaust will deprive a federal court of subject matter jurisdiction,43 some

courts had reasoned that failure to exhaust under the PLRA could be raised by a motion to

dismiss under Rule 12(b)(1).44 An attack on the court’s subject matter jurisdiction was

particularly attractive to defendants because the court could consider matters outside the

37 Turner, 541 U.S. at 1084-85; accord Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Hemphill v. New

York, 380 F.3d 680, 688 (2d Cir. 2004).

38 144 F.3d 719 (11th Cir. 1998).

39 Id. at 731.

40 See Jones, 549 U.S. at 205 n.2.

41 See, e.g., Arko v. Warden USP Atlanta, No. Civ. A. 1:03-CV-3287-RWS, 2006 WL 297224, at *2, *4 n.3

(S.D. Ga. Feb. 6, 2006).

42 See Fripp v. Laird, 179 F. App’x 563, 564 n.1 (11th Cir. 2006) (citing Chandler v. Crosby, 379 F.3d 1278,

1286 n.16 (11th Cir. 2004)) (noting the Eleventh Circuit had not determined whether exhaustion should be

raised by a Rule 12(b)(1) or Rule 12(b)(6) motion).

43 See generally 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE, §

1350, at 70-79 & nn. 5-6 (3d ed. 2004).

44 See, e.g., Dillard v. Jones, 89 F. Supp. 2d 1362, 1367-68 (N.D. Ga. 2000).

- 7 -

pleadings and make factual findings without converting the motion to dismiss into a motion for

summary judgment pursuant to Federal Rule of Civil Procedure 12(d).45

District courts in the Eleventh Circuit routinely entertained motions to dismiss for failure

to exhaust under the PLRA pursuant to Rule 12(b)(1) or Rule 12(b)(6).46 The Supreme Court

ended this confusion in 2006 by declaring in Woodford that the “PLRA exhaustion requirement

is not jurisdictional.”47 As a result, Rule 12(b)(6) seemed to be the appropriate method for

disposing of unexhausted prisoner claims in the Eleventh Circuit.48 However, the Supreme

Court threw another wrench into the gears six months after Woodford when it decided Jones v.

Bock.49

C. The Supreme Court’s Treatment of Exhaustion in Jones v. Bock

The Supreme Court held in Jones that failure to exhaust under the PLRA is an affirmative

defense.50 Jones abrogated Rivera by holding that federal courts could not create a heightened

pleading standard not required by the PLRA or a Federal Rule of Civil Procedure.51 Although

the Court noted the PLRA’s purpose of creating “fewer and better prisoner suits,”52 it held that

45 FED. R. CIV. P. 12(d); see Dillard, 89 F. Supp. 2d at 1367-68. Rule 12(d) is discussed infra Part III.D.ii.

46 Compare, e.g., Dillard, 89 F. Supp. 2d at 1367-68 (dismissing under Rule 12(b)(1)) with, e.g., Arko, 2006

WL 297224, at *2, *4 n.3 (dismissing under Rule 12(b)(6)).

47 Woodford, 548 U.S. at 101.

48 See, e.g., Harper v. Byrd, No. CIVA CV605-076, 2006 WL 2724913, at *1, *3 (S.D. Ga. Sept. 22, 2006).

District courts are also authorized to dismiss prisoner suits sua sponte if the complaint fails to state a claim.

See 28 U.S.C. § 1915A(b)(1) (2000), 28 U.S.C. § 1915(e)(2)(B)(ii) (2000); 42 U.S.C. § 1997e(c)(1) (2000).

Because a prisoner failed to state a claim if he or she failed to exhaust, a court was therefore able to sua sponte

dismiss a prisoner’s claim when the court determined that the prisoner did not properly exhaust. See Howard

v. Henderson, No. 804CV312TEOTBM, 2006 WL 20511, at *1, *5 (M.D. Fla. Jan. 4, 2006) (citing Brown v.

Toombs, 139 F.3d 1102 (6th Cir. 1998), abrogated by Jones, 549 U.S. 199).

49 549 U.S. 199 (2007).

50 Id. at 211-12. Of course, it bears mentioning that failure to exhaust administrative remedies does not appear

in the text of Federal Rule of Civil Procedure 8(c)(1). See FED. R. CIV. P. 8(c)(1).

51 Jones, 549 U.S. at 212-13.

52 Id. at 203.

- 8 -

“perceived policy concerns” do not justify “depart[ing] from the usual practice under the Federal

Rules.”53 The Court reasoned “the usual practice should be followed,” and noted the usual

practice was to treat exhaustion as an affirmative defense.54 The Court relied on several of its

prior decisions in which it had held that judicially imposed heightened pleading standards were

void for conflicting with the notice pleading requirement of Federal Rule of Civil Procedure

8(a)(2).55 “Given that the PLRA does not itself require plaintiffs to plead exhaustion, such a

result ‘must be obtained by the process of amending the Federal Rules, and not by judicial

interpretation.’”56

D. The Eleventh Circuit’s Treatment of Exhaustion After Jones v. Bock

i. The Face of the Complaint

Consistent with the “usual practice” for affirmative defenses, Jones announced that Rule

12(b)(6) may still be used to dismiss a prisoner’s suit when failure to exhaust appears on the face

of the complaint.57 However, courts recognize that “only in rare cases will a district court be

able to conclude from the face of the complaint that a prisoner has not exhausted his

53 Id. at 212. The Court cautioned: “‘Whatever temptations the statesmanship of policy-making might wisely

suggest,’ the judge’s job is to construe the statute--not to make it better.” Id. at 216 (quoting Felix Frankfurter,

Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 533 (1947)).

54 Id. at 212.

55 FED. R. CIV. P. 8(a)(2); see Jones, 549 U.S. at 212-13 (citing Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507 U.S. 163 (1993) and Swierkiewicz v. Sorema N.A., 534 U.S. 506

(2002)).

56 Jones, 549 U.S. at 217 (quoting Leatherman, 507 U.S. at 168).

57 Id. at 215. This rule of law is well-established in the Eleventh Circuit. See, e.g., Fortner v. Thomas, 983

F.2d 1024, 1028 (11th Cir. 1993) (qualified immunity); White v. Padgett, 475 F.2d 79, 82 (5th 1973) (statute

of limitations). In Anderson v. Donald, 261 Fed. App'x 254 (2003), the United States District Court for the

Southern District of Georgia sua sponte dismissed a prisoner’s claim for failure to exhaust administrative

remedies, and thus failure to state a claim, pursuant to the screening provisions of 42 U.S.C. §§ 1915A,

1915(e)(2). Anderson, 261 Fed. App'x at 254-55. The district court made its ruling prior to the Supreme

Court’s decision in Jones and therefore relied on Rivera to dismiss for failure to state a claim, even though it

did not specifically rule that failure to exhaust appeared on the face of the complaint. Id. at 256. The Eleventh

Circuit rendered its opinion after Jones, and it affirmed because the affirmative defense of exhaustion appeared

on the face of the complaint, warranting dismissal for failure to state a claim. Id. at 255-56.

- 9 -

administrative remedies and that he is without a valid excuse.”58 Therefore, a court will usually

need to consider matters outside the pleadings to determine whether a prisoner exhausted

administrative remedies.59

ii. The Conundrum

When not apparent on the face of the complaint, courts have struggled with how to treat

the exhaustion defense under the Rules. Because exhaustion is a precondition to suit60 and its

purpose is to reduce the quantity and increase the quality of prisoner suits,61 the logical

conclusion is that exhaustion should be addressed before the merits.62 However, because courts

will usually need to consider matters outside the pleadings to determine if a prisoner has

exhausted available administrative remedies,63 some courts will convert a defendant’s motion to

dismiss into one for summary judgment under Rule 12(d).64 Rule 12(d) requires conversion of a

Rule 12(b)(6) motion or Rule 12(c) motion into a summary judgment motion if the court

considers matters outside the pleadings.65

Courts disagree on whether the procedure for a motion for summary judgment under

Federal Rule of Civil Procedure 56 or the procedure for a motion to dismiss under Rule 12(b)

58 Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) (“[F]acts ordinarily pled in allegations

concerning prison conditions frequently will not give a definitive answer as to whether a prisoner has

completed his internal grievance process or whether he was thwarted in his attempts to do so.”).

59 See id. at 1225-26; see also Ziemba v. Wezner, 366 F.3d 161, 163-64 (2d Cir. 2004).

60 Higginbottom, 223 F.3d at 1261.

61 Porter, 534 U.S. at 524.

62 See, e.g., Boxer X v. Harris, 437 F.3d 1107, 1110 n.2 (11th 2006); McCoy, 255 F. Supp. 2d at 248-49.

63 See Aquilar, 478 F.3d at 1225.

64 FED. R. CIV. P. 12(d); see Ziemba, 366 F.3d at 163-64; Greer v. Smith, 59 F. App’x 491, 491-92 (3d Cir.

2003).

65 FED. R. CIV. P. 12(d).

- 10 -

should govern.66 The key distinction between these methods turns on who will act as the fact-

finder when there is a genuine issue of material fact about exhaustion: a jury under Rule 56 or a

judge under Rule 12(b).67

1. Summary Judgment Motion

A court ruling on a summary judgment motion under Rule 56 may not “try or decide

factual issues.”68 A genuine issue of material fact must be submitted to a jury.

69 The language

now appearing in Rule 12(d) created a “definitive basis in the rules” for preventing judicial fact-

finding on a Rule 12(b)(6) motion when matters outside the pleadings are presented to the

court.70

In the PLRA exhaustion context, the United States Courts of Appeals for the Second and

Third Circuits have instructed district courts to follow the usual practice of converting a Rule

66 Compare Ziemba, 366 F.3d at 163-64 (summary judgment) with Wyatt v. Terhune, 315 F.3d 1108, 1119-20

(9th Cir. 2003) (Rule 12(b) dismissal). See generally McCoy, 255 F. Supp. 2d at 248-51. The court in McCoy

observed that courts in the past had utilized four different procedural mechanisms for dealing with exhaustion:

Rule 12(b)(1), Rule 12(b)(6), Rule 56, and unenumerated Rule 12(b) motions. Id.

67 See generally, e.g., 5C WRIGHT & MILLER, supra note 43, at §§ 1364, 1366, at 124- 27, 146-47; 10A

WRIGHT & MILLER, supra note 43, at §§ 2712, 2713, at 205-06, 240.

68 Gross v. S. Ry. Co., 414 F.2d 292, 297 (5th Cir. 1968). Federal Rule of Civil Procedure 56 provides that a

“judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(c). A movant is entitled to judgment as a matter of law when “the court

finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the [non-moving]

party on that issue.” FED. R. CIV. P. 50(a)(1). When a defendant asserting an affirmative defense moves for

summary judgment, the defendant “must establish that there is no genuine issue of material fact as to any

element of that defense” and no reasonable jury could find for the defendant. Int’l Stamp Art, Inc. v. U.S.

Postal Serv., 456 F.3d 1270, 1274 (11th Cir. 2006); see also FED. R. CIV. P. 50(a)(1); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is material if it “might affect the outcome of the suit

under the governing law,” and an issue is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

69 Anderson, 477 U.S. at 251-52. The purpose of summary judgment is “not to cut litigants off from their right

of trial by jury if they really have issues to try.” Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627 (1944).

Therefore, summary judgment is inappropriate when “an issue as to a material fact cannot be resolved without

observation of the demeanor of witnesses in order to evaluate their credibility.” FED. R. CIV. P. 56 advisory

committee’s note (1963).

70 FED. R. CIV. P. 12 advisory committee’s note (1946). Formerly appearing in Rule 12(b) and Rule 12(c), the

conversion language was moved to Rule 12(d) by the 2007 stylistic amendments to the Federal Rules of Civil

Procedure. See FED. R. CIV. P. 12 advisory committee’s note (2007).

- 11 -

12(b)(6) motion into a summary judgment motion when the court considers matters outside the

pleadings.71 In the Second Circuit case of Ziemba v. Wezner,

72 the defendants moved for

judgment on the pleadings because the prisoner failed to exhaust. The prisoner alleged the

defendants had prevented him from filing grievance forms.73 The Second Circuit treated this

assertion as an estoppel argument—that because of the defendants’ actions, they should be

barred from raising the exhaustion defense.74 The court remanded, instructing the district court

to “address the estoppel claim at the summary judgment stage” because the prisoner’s claim

would “require the court to look beyond the pleadings.”75 Similarly, the Third Circuit in Greer

71 Ziemba, 366 F.3d at 163-64; Greer, 59 F. App’x at 491.

72 366 F.3d 161 (2d Cir. 2004)

73 Id. at 162-63.

74 Id. at 163-64.

75 Id. This procedure appears firmly established among district courts in the Second Circuit. See, e.g., McCoy,

255 F. Supp. 2d at 255; Lewis ex rel. Lewis v. Gagne, 281 F. Supp. 2d 429, 432 (N.D.N.Y. 2003); Torrence v.

Pesanti, 239 F. Supp. 2d 230, 233 (D. Conn. 2003). In an opinion pre-dating Ziemba, Judge Chin of the United

States District Court for the Southern District of New York in McCoy considered the various procedural

mechanisms utilized by courts for dealing with the PLRA exhaustion requirement: motions to dismiss for lack

of subject matter jurisdiction under Rule 12(b)(1); motions to dismiss for failure to state a claim under Rule

12(b)(6); motions for summary judgment under Rule 56; and unenumerated Rule 12(b) motions for dismissal.

McCoy, 255 F. Supp. 2d at 248-51. Relying on Second Circuit precedent that indicated exhaustion under the

PLRA was probably an affirmative defense, the court determined that a Rule 12(b)(1) motion would be flatly

inappropriate. Id. at 247, 249. The court found the use of an unenumerated Rule 12(b) motion persuasive

because exhaustion is a preliminary matter and “ought to be decided the same way” as “defenses of lack of

subject matter jurisdiction, lack of personal jurisdiction, and insufficient service of process” whereby “courts

typically consider matters outside the pleadings.” Id. at 251. However, noting that the Second Circuit had not

yet adopted such an approach, the court felt constrained by the normal procedure under the Rules. Id.

Therefore, it noted that

“[i]f nonexhaustion is not clear from the face of the complaint, a defendant's motion to

dismiss should be converted, pursuant to [Rule 12(d)], to one for summary judgment limited

to the narrow issue of exhaustion and the relatively straightforward questions about the

plaintiff's efforts to exhaust, whether remedies were available, or whether exhaustion might

be, in very limited circumstances, excused.”

Id. Because the court in McCoy considered matters outside the pleadings, it converted the defendant’s Rule

12(b)(6) motion to one for summary judgment. Id. at 255. The defendant in McCoy brought forth evidence of

exhaustion, but the prisoner failed to meet his minimal evidentiary burden to avoid summary judgment. Id. at

257.

- 12 -

v. Smith76 held that a trial court ruling on a motion to dismiss for failure to exhaust should have

converted the motion to one for summary judgment when the court considered matters outside

the pleadings. 77

2. $inth Circuit Approach: Unenumerated Rule 12(b) Motion

The Ninth Circuit follows a different approach, announcing in Wyatt v. Terhune78 that

defendants may raise exhaustion by a pre-answer unenumerated Rule 12(b) motion.79 The Ninth

Circuit reasoned the question of exhaustion is a “matter in abatement” rather than an adjudication

on the merits.80 Because summary judgment goes to the merits of a claim or defense

81 rather

than “simply rais[ing] a matter in abatement,”82 the Ninth Circuit believed Rule 12(b) was a

better vehicle to raise exhaustion.83 Therefore, a judge resolves disputed facts about

exhaustion.84

Professors Charles Wright and Arthur Miller, on whom the Ninth Circuit relied for its

approach,85 suggest that courts, as a “matter of judicial discretion” and for the purpose of

“promoting ‘the just, speedy, and inexpensive determination’” of an action, may entertain pre-

answer motions not specifically enumerated in the Rules.86 Wright and Miller categorize these

76 59 Fed. App’x 491 (3d Cir. 2003) (per curium). Prior to Justice Samuel Alito’s appointment to the Supreme

Court, he sat as one of three judges that presided over the Greer case. Id. at 491.

77 Id. at 491-92.

78 315 F.3d 1108 (9th Cir. 2003).

79 Id. at 1119.

80 Id.

81 E.g., Tuley v. Heyd, 482 F.2d 590, 592 n.4 (5th Cir. 1973).

82 10A WRIGHT & MILLER, supra note 43, at § 2712, at 212.

83 Wyatt, 315 F.3d at 1119.

84 Id. at 1119-20.

85 See Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir. 1988), quoted in

Wyatt, 315 F.3d at 1119.

86 5C WRIGHT & MILLER, supra note 43, at § 1360, at 77-78 (quoting FED. R. CIV. P. 1).

- 13 -

motions into three groupings: (1) motions necessarily implied by a specific provision appearing

elsewhere in the Rules;87 (2) “matters brought under one of the enumerated Rule 12(b) motions,

either by analogy or by expanding the scope of Rule 12(b) defenses;”88 and (3) motions “closely

related to the management of the lawsuit . . . involving matters of judicial administration.”89

According to Wright and Miller, unenumerated Rule 12(b) motions are “subject to the

rules and practices applicable to the most analogous Rule 12(b) motion,”90 and it is well-

established that judges may consider matters outside the pleadings and resolve factual disputes

when a party moves to dismiss under one of the enumerated Rules 12(b)(1)-(5) or (7).91 These

defenses “are in the nature of pleas in abatement . . . [and] are not proper subjects for motions for

summary judgment.”92

Building on these principles, the Ninth Circuit held in Wyatt that failure to exhaust under

the PLRA must be raised by an unenumerated Rule 12(b) motion.93 Even when a defendant

raises the issue in a motion for summary judgment, the trial court is required to convert it to an

87 Id. § 1360, at 77. This category includes a motion to make pleadings conform to Federal Rule of Civil

Procedure 10 or a motion to “strike for failure to sign . . . under Rule 11.” Id.

88 Id. This category includes a motion raising an affirmative defense, which is “the most obvious example of

expanding the scope of” Rule 12(b). Id. § 1360, at 77-78. Wright and Miller note that courts have allowed

affirmative defenses, such as failure to exhaust administrative remedies, to be raised by Rule 12(b)(6) motions.

Id. § 1360, at 78. Of course, Wright and Miller acknowledge that, “when a defendant’s [Rule 12(b)(6) motion]

raises an affirmative defense that is not apparent on the face of the pleading and outside matter is presented and

accepted, federal courts generally will treat the motion as if it were one for summary judgment.” Id. § 1366, at

204.

89 Id. § 1360, at 77. This category includes a motion to stay or dismiss because another action is pending. Id.

90 Id. § 1360, at 91.

91 See generally id. §§ 1364, 1366.

92 Id. § 1366, at 147.

93 Wyatt, 315 F.3d at 1119.

- 14 -

unenumerated Rule 12(b) motion. 94 The court must act as a fact-finder.

95 If the trial court finds

the prisoner failed to exhaust, dismissal is without prejudice.96

The court in Wyatt relied on several prior decisions that sanctioned the use of

unenumerated Rule 12(b) motions to dismiss for failure to exhaust non-judicial remedies.97

None of the court’s prior precedents dealt with a statutory exhaustion requirement; most of the

cases involved internal grievance provisions in contracts between unions and their members.98

One of the union cases, Ritza v. International Longshoremen’s & Warehousemen’s

Union99 involved a union contract that required members to exhaust an internal grievance

procedure. The trial court dismissed for failure to exhaust under the contract, but the court did

not specify if it was dismissing with prejudice.100

Even though the trial court considered matters

outside the pleadings, the Ninth Circuit classified the trial court’s ruling as one under Rule 12(b),

and so as a dismissal without prejudice.101

The Ninth Circuit in Ritza reasoned “failure to exhaust nonjudicial remedies is a matter in

abatement, not going to the merits of the claim.”102

The court acknowledged that a literal

94 E.g., Ritza, 837 F.2d at 368-69.

95 Wyatt, 315 F.3d at 1119-20.

96 Id. at 1120. The Ninth Circuit decided Wyatt in 2003, prior to the Supreme Court’s ruling in Woodford.

Before Woodford, the Ninth Circuit did not require prisoners to properly exhaust. See Woodford, 548 U.S. 81.

97 Wyatt, 315 F.3d at 1119.

98 See Inlandboatmens Union of the Pac. v. Dutra Group, 279 F.3d 1075, 1077 & n.1 (9th Cir. 2002) (dicta);

Ritza, 837 F.2d at 366-67; Studio Elec. Technicians Local 728 v. Int’l Photographers of Motion Picture Indus.,

Local 659, 598 F.2d 551, 552 & n.2 (9th Cir. 1979) (dicta). Furthermore, the exhaustion requirement in the

only non-union case was “judicially developed.” Stauffer Chem. Co. v. Food & Drug Admin., 670 F.2d 106,

107-108 (9th Cir. 1982).

99 837 F.2d 365 (9th Cir. 1988).

100 Id. at 366-68, 368 n.3.

101 Id. at 368.

102 Id. at 368-69.

- 15 -

reading of Rule 12(b) provides no authority for raising exhaustion by a pre-answer motion.103

However, relying on Wright and Miller, the court held it could entertain pre-answer motions

“‘not expressly provided for by the rules,’ particularly ones dealing with ‘judicial

administration.’”104

Analogizing exhaustion to subject matter jurisdiction, the court held that

when a “‘factual issue arises in connection with a jurisdictional or related type of motion, . . . the

court has a broad discretion as to the method to be used in resolving the factual dispute.’”105

Finally, the court announced it would review the trial court’s factual findings for clear error.106

3. Criticism of the $inth Circuit Approach

In light of the Supreme Court’s warning in Jones that judges should not abandon the

Federal Rules of Civil Procedure in favor of policy considerations,107

several district courts have

criticized the Ninth Circuit’s approach. For example, the United States District Court for the

Eastern District of California has suggested in several decisions that Jones undermined Wyatt.108

Therefore, the court ruled that an unenumerated Rule 12(b) motion is no longer appropriate for

raising the PLRA exhaustion defense, reasoning that Jones declared failure to exhaust to be an

“affirmative defense which [a] defendant has the burden of pleading and proving.”109

103 Id. at 369.

104 Id. (quoting 5C WRIGHT & MILLER, supra note 43, at § 1360, at 633-34 (1969)).

105 Ritza, 837 F.2d at 369 (quoting 6 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 56.03, at 56-

61 (2d ed. 1987)). The court also noted the motion was governed by Federal Rule of Civil Procedure 43,

“which permits the hearing of motions based on facts outside the record on affidavits submitted by the parties.”

Id. at 369; see FED. R. CIV. P. 43(c).

106 Ritza, 837 F.2d at 369.

107 See supra Part III.C.

108 Gregory v. Adams, No. CIV S-05-1393 FCD EFB P., 2007 WL 2481769, at *3 (E.D. Cal. Aug. 29, 2007);

Chatman v. Johnson , No. CIV S-06-0578 MCE EFB P., 2007 WL 2023544, at *3 (E.D. Cal. July 11, 2007).

109 Gregory, 2007 WL 2481769, at *3; Chatman, 2007 WL 2023544, at *3. This reasoning, however, is not

likely persuasive because Jones had no impact on Wyatt’s holding that the PLRA exhaustion requirement is a

defense that a defendant must plead and prove. See Villegas v. Buckley, No. 2:02-cv-01613 (JKS), 2007 WL

3034449, at *2 (E.D. Cal. Oct. 15, 2007) (dicta) (disagreeing with contention that Jones overruled Wyatt); see

- 16 -

Further, the United States District Court for the District of Massachusetts focused on the

express command in Jones that failure to exhaust under the PLRA be “treated like any other

affirmative defense, subject to the ‘usual procedural practice.’”110

The PLRA’s policy of

limiting prisoner suits did not justify departing from the Rules.111

Because the heart of the

dispute over exhaustion required “credibility determinations—‘archetypal jury issues fit for jury

resolution,’” the court declined to follow the Ninth Circuit’s approach.112

The United States District Court for the Northern District of Ohio rejected the Ninth

Circuit’s approach because the Rules simply do not provide for unenumerated Rule 12(b)

motions.113

The court reasoned that Rule 12(b)(7) was added by amending the Rules primarily to

“cure[] an omission in the rules which [were] silent as to the mode of raising” the defense of

failure to join an indispensible party.114

The court also noted that summary judgment may

properly be rendered on a procedural requirement of a claim, rather than the merits of the claim

itself.115

The United States Court of Appeals for the Seventh Circuit recently declared the Ninth

Circuit’s reasoning “not persuasive.”116

Nonetheless, the Seventh Circuit believed the Ninth

Circuit reached the correct result.117

The court reasoned that factual disputes over subject matter

jurisdiction, personal jurisdiction, venue, and similar issues relate primarily to the forum in

also Jones, 549 U.S. at 205 n.2 (citing Wyatt as an example of a court that treats exhaustion as an affirmative

defense).

110 Maraglia v. Maloney, 499 F.Supp.2d 93, 94 (D. Mass. 2007) (quoting Jones, 549 U.S. at 214).

111 Id. at 94.

112 Id. at 96 (quoting Meléndez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30, 38 (1st Cir.2001)).

113 Benavidez v. Stansberry, No. 4:07CV03334, 2008 WL 4279559, at *7 (N.D. Ohio Sept. 12, 2008).

114 FED. R. CIV. P. 12 advisory committee’s notes (1946).

115 Benavidez, 2008 WL 4279559, at *7.

116 Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008)

117 Id.

- 17 -

which a dispute is brought.118

“Juries decide cases, not issues of judicial traffic control,” and the

exhaustion requirement is essentially a “traffic” question: whether the court or prison authorities

should hear the case.119

iii. The Eleventh Circuit Wrinkles

The Eleventh Circuit in Singleton v. Department of Corrections120

expressly rejected the

Ninth Circuit’s unenumerated Rule 12(b) procedure.121

The district court in Singleton “indulged

in considering matters outside the pleadings” and made “credibility determinations” when it

dismissed a prisoner’s suit for failure to exhaust under the PLRA.122

Noting that the ordinary

practice is to rule on affirmative defenses at the summary judgment stage, the court remanded the

118 Id.

119 Id. The court explained the proper procedure to be followed by district courts in the Seventh Circuit:

(1) The district judge conducts a hearing on exhaustion and permits whatever discovery

relating to exhaustion he deems appropriate.

(2) If the judge determines that the prisoner did not exhaust his administrative remedies, the

judge will then determine whether

(a) the plaintiff has failed to exhaust his administrative remedies, and so he must go

back and exhaust;

(b) or, although he has no unexhausted administrative remedies, the failure to exhaust

was innocent (as where prison officials prevent a prisoner from exhausting his

remedies), and so he must be given another chance to exhaust (provided that there

exist remedies that he will be permitted by the prison authorities to exhaust, so that

he's not just being given a runaround); or

(c) the failure to exhaust was the prisoner's fault, in which event the case is over.

(3) If and when the judge determines that the prisoner has properly exhausted his

administrative remedies, the case will proceed to pretrial discovery, and if necessary a trial,

on the merits; and if there is a jury trial, the jury will make all necessary findings of fact

without being bound by (or even informed of) any of the findings made by the district judge

in determining that the prisoner had exhausted his administrative remedies.

Id. at 742 (paragraph breaks and indentation added).

120 277 Fed. App’x 921 (11th Cir. 2008) (per curium). The case was heard by Circuit Judges Stanley F. Birch,

Joel F. Dubina, and Charles R. Wilson. Id. Judge Birch, however, joined the majority in Bryant, favoring the

unenumerated Rule 12(b) motion. See Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008).

121 See Singleton, 277 Fed. App’x at 922-23.

122 Id. at 922. The court noted that Rule 12(b)(6) is an appropriate procedural vehicle for raising the

exhaustion issue only when “the existence of [the] affirmative defense [is] clear from the face of the

pleadings.” Id. at 923.

- 18 -

case so the district court could determine whether a genuine issue of material fact existed about

the exhaustion defense.123

In several prior decisions, the Eleventh Circuit also reviewed grants of summary

judgment on the issue of exhaustion under the PLRA without criticizing the procedure.124

However, in none of these decisions was there a genuine issue of material fact or judicial fact-

finding.125

In non-PLRA contexts, the Eleventh Circuit has reversed district courts that granted

summary judgment motions when genuine issues of material facts existed about preconditions to

suit, such as satisfying a statute of limitations or filing a charge with the Equal Employment

Opportunity Commission (EEOC) prior to initiating an action under Title VII of the Civil Rights

Act (Title VII).126

IV. Rationale

A. Majority Opinion

Writing for the majority, Chief Judge J. L. Edmonson declared that a genuine issue of

material fact existed as to “whether Priester had access to grievance forms at GSP to report his

abuse at Rogers.”127

However, the court determined the trial court did not err by engaging in

123 Id. at 923.

124 See Mason v. Bridger, 261 Fed. App’x 225 (11th Cir. 2008); Goebert, 510 F.3d 1312; Lyons v. Serrano,

205 Fed. App’x 719 (11th Cir. 2006); Pri-Harr v. Corrs. Corp. of Am., 154 Fed. App’x 866 (11th Cir. 2005);

Miller v. Tanner, 196 F.3d 1190 (11th Cir. 1999).

125 See Mason, 261 Fed. App’x at 229; Goebert, 510 F.3d at 1322-25; Lyons, 205 Fed. App’x at 724; Pri-Harr,

154 Fed. App’x at 887-89; Miller, 196 F.3d at 1192-94. In dicta in Lyons the court suggested that evidence

about exhaustion might, in another situation, raise a genuine issue of material fact, which would make

“resolution of this issue on summary judgment inappropriate.” Lyons, 205 Fed. App’x at 724.

126 § 706(e), 78 Stat. 241, 260 (1964) (codified as amended at 42 U.S.C. 2000e-5(e) (2000)); Stewart v. Booker

T. Washington Ins., 232 F.3d 844, 846 (11th Cir. 2000) (Title VII); Morton's Market, Inc. v. Gustafson's Dairy,

Inc., 198 F.3d 823, 828-29 (11th Cir. 1999) (statute of limitations).

127 Bryant v. Rich, 530 F.3d 1368, 1373, 1377 (11th Cir. 2008), cert. denied, 129 S. Ct. 733 (2008). The court

specifically did not rule on the issue of whether a prisoner who has been denied a grievance form or threatened

- 19 -

judicial fact-finding and making credibility determinations under the unenumerated Rule 12(b)

procedure.128

Acknowledging that the PLRA’s exhaustion requirement is not jurisdictional, the court

reasoned that the defense of failure to exhaust is “like a defense for lack of jurisdiction in one

important sense: Exhaustion of administrative remedies is a ‘matter[] in abatement, and

ordinarily [does] not deal with the merits.’”129

The court further analogized the exhaustion

defense to other matters in abatement, such as venue and service of process, and noted that

judicial fact-finding is proper in these types of defenses.130

Relying on the Ninth Circuit’s

decisions in Wyatt v. Terhune131

and Ritza v. International Longshoremen’s & Warehousemen’s

Union,132

the Eleventh Circuit determined that exhaustion does not go to the merits of a

prisoner’s claims133

and therefore “is not ordinarily the proper subject for a summary

judgment.”134

Thus, the exhaustion defense must always be raised by an unenumerated Rule

12(b) motion and never by a summary judgment motion.135

with violence for filing a future grievance would make exhaustion unavailable under the PLRA. Id. at 1373.

Nonetheless, the court assumed, arguendo, the prisoner’s argument that exhaustion would be unavailable in

such a situation. Id. The court noted that the exhaustion procedure at GSP allowed a prisoner to file a

grievance form at GSP for alleged beatings at Rogers “and then [show] good cause for its tardiness.” Id.

Following that procedure would have allowed Priester to exhaust his administrative remedies. See id.

128 Id. at 1373-74.

129 Id. at 1374 (quoting 5C WRIGHT & MILLER, supra note 43, at § 1360, at 78 n.15 (annotation to Studio Elec.

Tech. Local 728 v. Int’l Photographers of Motion Picture Indus., Local 659, 598 F.2d 551 (9th Cir. 1979)))

(alteration in original).

130 Id. at 1376. The court noted Wright and Miller’s suggestion that the motion should be “‘subject to the rules

and practices applicable to the most analogous Rule 12(b) motion.’” Id. at 1376 (quoting 5C WRIGHT &

MILLER, supra note 43, at § 1360, at 91).

131 315 F.3d 1108 (9th Cir. 2003).

132 837 F.2d 365 (9th Cir. 1988).

133 Bryant, 530 F.3d at 1374.

134 Id. at 1375. The court distinguished exhaustion from “a defense under Rule 12(b)(6) for failure to state a

claim, which is generally decided on the merits.” Id. at 1377 n.12.

135 Id. at 1375 (quoting Ritza, 837 F.2d at 368-69).

- 20 -

Because the purpose of the PLRA’s exhaustion requirement is to manage the flow of

prisoner litigation,136

the court determined that exhaustion is a matter of judicial

administration.137

Thus, exhaustion falls into one of the categories of unenumerated Rule 12(b)

motions that Wright and Miller suggest courts have traditionally entertained.138

Prohibiting a

judge from finding facts on the issue of exhaustion “would unnecessarily undermine Congress’s

intent in enacting the PLRA’s exhaustion requirement: that is, to ‘reduce the quantity and

improve the quality of prisoner suits.’”139

Because judicial fact-finding is proper, the court reviewed the lower court’s decision for

clear error.140

The court held that the district court’s credibility determinations were not clearly

erroneous given that Priester had previously filed a successful grievance at GSP for property

loss.141

The court also noted the magistrate judge was not aware of GSP denying prisoners

grievance forms in any other cases and that the magistrate was indeed aware of other cases in

which prisoners at GSP were given forms to file grievances based on excessive force.142

The prison grievance procedures established that an out-of-time grievance would be

considered if Priester could show good cause.143

Thus, the majority dismissed without prejudice

because “neither party has evidenced that administrative remedies at GSP are absolutely time

barred or otherwise clearly infeasible.”144

However, the court warned: “We decide the case

136 Id. (citing Porter v. Nussle, 534 U.S. 516, 524-25 (2002)).

137 Id.

138 Id. (quoting Ritza, 837 F.2d at 369 and 5C WRIGHT & MILLER, supra note 43, at § 1360, at 77).

139 Id. at 1376-77 (quoting Porter, 534 U.S. at 524).

140 Id. at 1377.

141 See id. at 1377, 1378 n.17.

142 Id. at 1378 n.17.

143 Id. at 1377.

144 Id. at 1375 n.11.

- 21 -

before us . . . . We do not mean to say today that a failure to exhaust can never correctly result in

a dismissal with prejudice.”145

B. Dissenting Opinion

Circuit Judge Charles Wilson dissented to the majority’s decision regarding Priester.146

He asserted the majority’s opinion about Priester could not be “reconciled with the recent

Supreme Court decision in Jones,” where the Court demanded the usual practice should be

followed under the Rules unless Congress explicitly commands otherwise.147

He noted the usual

procedural practice was to treat affirmative defenses on summary judgment rather than allow

judicial fact-finding by an unenumerated Rule 12(b) motion.148

Judge Wilson concluded the

majority departed from the court’s usual practice, and treating the exhaustion defense under Rule

12(b) would require amending the Rules.149

Next, Judge Wilson noted that Wyatt was decided “in light of long-standing Ninth Circuit

precedent” that requires the use of an unenumerated Rule 12(b) motion for exhaustion in other

contexts, but no such similar procedure had been utilized in the Eleventh Circuit.150

To the

contrary, Judge Wilson noted the Eleventh Circuit “has consistently treated exhaustion in other

contexts on summary judgment,”151

for example with Title VII, Employee Retirement Income

Security Act (ERISA),152

and Labor-Management Relations Act (LMRA)153

cases.154

Because

145 Id.

146 Id. at 1379 (Wilson, J., concurring in part and dissenting in part)

147 Id.

148 Id. at 1380.

149 Id. at 1380 & n.3 (quoting Jones, 549 U.S. at 213).

150 Id. at 1381

151 Id.

152 88 Stat. 829 (1974) (codified as amended at 29 U.S.C. §§ 1001-1461 (2000 & Supp. 2005)).

153 ch. 120, 61 Stat. 136 (1947) (codified as amended at 29 U.S.C. §§ 141-197 (2000)).

- 22 -

exhaustion under both the PLRA and Title VII encourages parties to resolve conflicts prior to

bringing suit in federal court, there is “no reason to treat exhaustion under each statute

differently” under the Rules.155

Finally, Judge Wilson determined that the policy of the PLRA would not be undermined

by treating exhaustion on summary judgment because

[a] prisoner cannot defeat summary judgment by relying on sham affidavits, bare

and self-serving allegations, or other evidence that is incredible as a matter of law.

He must raise more than a mere scintilla of evidence in support of his position: in

order to defeat summary judgment, there must be evidence on which the jury

could reasonably find for the prisoner. In the vast majority of cases where the

defendant raises exhaustion, a prisoner's failure to exhaust will be clear.156

V. Implications

A. The Exhaustion Defense as a Matter in Abatement

The United States Supreme Court in Woodford v. *go157

and the United States Court of

Appeals for the Eleventh Circuit in Johnson v. Meadows158

held that failure to properly exhaust

by following the prison’s administrative procedures may bar a prisoner’s claim in federal

court.159

As the majority in Bryant v. Rich160

noted, a successful exhaustion defense will

sometimes authorize a court to dismiss a prisoner’s suit with prejudice.161

Therefore, the

154 Stewart v. Booker T. Washington Ins., 232 F.3d 844, 846 (11th Cir. 2000) (Title VII); Counts v. Am. Gen.

Life & Accident Ins. Co., 111 F.3d 105, 108 (11th Cir.1997) (ERISA); Turner v. Am. Fed'n of Teachers Local

1565, 138 F.3d 878, 881-82 (11th Cir.1998) (LMRA).

155 Bryant, 530 F.3d at 1381.

156 Id. at 1382 (citations omitted).

157 Woodford v. Ngo, 548 U.S. 81 (2006).

158 Johnson v. Meadows, 418 F.3d 1152 (11th Cir. 2005).

159 Woodford, 548 U.S. at 93, 95; Johnson, 418 F.3d at 1159; see also supra note 34.

160 530 F.3d 1368 (11th Cir. 2008), cert. denied, 129 S. Ct. 733 (2008).

161 Id. at 1375 n.11.

- 23 -

Eleventh Circuit has announced a procedure whereby a judge could act as a fact-finder on an

affirmative defense that does not simply decide a matter in abatement.162

For example, in McCollough v. Carmichael, 163

the United States District Court for the

Middle District of Alabama dismissed with prejudice a prisoner’s § 1983 claim after noting the

court could find facts related to exhaustion.164

In McKinney v. Smallwood Prison Dental

Services,165

the same court interpreted Bryant to require an inquiry about whether the prisoner

will be able to properly exhaust after the suit is dismissed.166

The court reasoned that if a

prisoner could still properly exhaust after dismissal, then Bryant requires use of the

unenumerated Rule 12(b) motion.167

But if a prisoner will not be able to properly exhaust, then

summary judgment is appropriate because a decision on the exhaustion defense will go to the

merits.168

The court in McKinney granted summary judgment to the defendant on the exhaustion

defense because the prisoner did not dispute the fact that he failed to exhaust.169

Because the

court followed the procedures for summary judgment, rather than for an unenumerated Rule

12(b) motion, the exhaustion defense was not a matter in abatement.170

The interpretation of Bryant in the McKinney decision suggests that the issue of

exhaustion might go to a jury when (1) the prisoner will be unable to properly exhaust after

dismissal, like in McKinney, and (2) there is a genuine issue of material fact related to

162 See, e.g., McCullough v. Carmichael, No. 305-CV-1163-WKW, 2008 WL 5111128, at *6 (M.D. Ala. Dec.

2, 2008).

163 No. 305-CV-1163-WKW, 2008 WL 5111128 (M.D. Ala. Dec. 2, 2008).

164 Id. at *6

165 No. 2:08-CV-90-MEF, 2008 WL 4847071 (M.D. Ala. Nov. 7, 2008)

166 See id. at *1.

167 See id.

168 See id.

169 Id. at *4-5.

170 See id. at *1, *5.

- 24 -

exhaustion, like in Bryant.171

Regardless, the Eleventh Circuit is unlikely to allow exhaustion to

go to a jury, even when the prisoner will be unable to properly exhaust after dismissal. The

majority in Bryant relied on the policy concern of limiting prisoner suits and the inherent power

of judges to decide factual issues on matters of judicial administration.172

These arguments are

similar to the United States Court of Appeals for the Seventh Circuit’s “traffic control” reasoning

in Pavey v. Conley.173

In Pavey the Seventh Circuit adopted a procedure that allows for judicial

fact-finding and dismissal of a prisoner’s suit with prejudice when “the failure to exhaust was the

prisoner’s fault.”174

It should also be noted that at the time the United States Court of Appeals for the Ninth

Circuit decided Wyatt v. Terhune,175

the Ninth Circuit did not require proper exhaustion.176

Thus, the exhaustion defense was always a matter in abatement and could never result in a

dismissal with prejudice. However, Woodford changed the nature of the exhaustion defense, and

it is no longer simply a matter in abatement.177

As shown in McCollough and McKinney, a

prisoner’s failure to exhaust may have very real consequences.

B. The Exhaustion Defense as an Affirmative, $on-Jurisdictional Defense

As Judge Wilson’s dissenting opinion in Bryant elucidates, and as several district courts

have reasoned, disposing of a prisoner’s suit for failure to exhaust through an unenumerated Rule

171 See id. at *1-3.

172 Bryant, 538 F.3d at 1375-77; see also supra text accompanying notes 136-39.

173 544 F.3d 739, 741 (7th Cir. 2008)

174 Id.; see also supra note 119.

175 315 F.3d 1108 (9th Cir. 2003).

176 See, e.g., Woodford, 548 U.S. 81; see also supra note 35.

177 See supra note 34.

- 25 -

12(b) motion contradicts the Supreme Court’s holding in Jones v. Bock178

that exhaustion is an

affirmative defense.179

The Supreme Court commanded the usual practice should be followed,

and the Court’s decisions in Jones and other recent cases show substantial deference to the

Federal Rules of Civil Procedure.180

The majority in Bryant, noting the command in Woodford that the exhaustion

requirement is not jurisdictional, nonetheless compared exhaustion to subject matter

jurisdiction.181

Adoption of the unenumerated Rule 12(b) motion signifies the Eleventh Circuit’s

willingness to strip itself of jurisdiction in prisoner suits. As commentators have noted, courts

are generally eager to dispose of prisoner cases and have recently engaged in “consensual

jurisdiction-stripping,” also described as “jurisdiction-abdication.”182

For practical purposes, the unenumerated Rule 12(b) motion to dismiss for failure to

exhaust equates the exhaustion defense to a jurisdictional issue. Judicial fact-finding on an

unenumerated Rule 12(b) motion is identical to the procedure used under a Rule 12(b)(1) motion

to dismiss for lack of subject matter jurisdiction.183

Therefore, Bryant completely abandons the

notion that failure to exhaust under the PLRA is an affirmative defense. When a pre-answer

motion raises an affirmative defense, and when the judge considers matters outside the

pleadings, then the court should convert the motion into one for summary judgment and reserve

fact-finding for the jury.184

178 549 U.S. 199 (2007).

179 See supra Part III.D.ii.3 and Part IV.B.

180 See Jones, 549 U.S. at 212-13 (citing Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit, 507 U.S. 163 (1993) and Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).

181 Bryant, 538 F.3d at 1374.

182 Shay & Kalb, supra note 8, at 323.

183 See Bryant, 538 F.3d at 1376 (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

184 See FED. R. CIV. P. 12(d); see also supra Part III.D.ii.1.

- 26 -

C. The Exhaustion Defense in Other Settings

If Bryant remains good law in the Eleventh Circuit, the unenumerated Rule 12(b)

procedure should be used by litigants in non-PLRA cases when a litigant must comply with some

precondition to suit. In the prisoner suit of Alexander v. Hawk,185

the Eleventh Circuit identified

seven policy considerations favoring exhaustion.186

The Eleventh Circuit also identified these

seven policies in the following contexts: exhaustion under the Federal Employees Health

Benefits Act (FEHBA);187

exhaustion of Equal Employment Opportunity procedures;188

and

exhaustion of § 1983 claims.189

According to Judge Wilson, there is “no reason to treat

exhaustion under each statute differently.”190

Proponents of the unenumerated Rule 12(b) motion have a stronger argument for using it

in the non-PLRA context when compared to the PLRA context. Although the PLRA requires

proper exhaustion, other statutes, such as Title VII and the Age Discrimination and Employment

Act,191

do not have the same stringent requirement.192

Whereas a prisoner’s failure to fully

comply with a prison’s administrative rules may bar the prisoner’s suit in federal court, a Title

VII litigant’s failure to fully comply with EEOC administrative rules results in no such

penalty.193

Thus, exhaustion requirements in non-PLRA contexts are more accurately described

185 159 F.3d 1321 (11th Cir. 1998).

186 Id. at 1327.

187 73 Stat. 708 (1959) (codified as amended at 5 U.S.C. §§ 8901-14 (2000 & Supp. 2005)); Kobleur v. Group

Hospitalization and Med. Servs., Inc., 954 F.2d 705 (11th Cir. 1992).

188 Porter v. Schweiker, 692 F.2d 740, 742 (11th Cir. 1982).

189 Patsy v. Fla. Int’l U., 634 F.2d 900, 903 (5th Cir. 1981), rev’d by Patsy v. Bd. of Regents of the State of

Fla., 457 U.S. 496 (1982).

190 Bryant, 530 F.3d at 1381 (Wilson, J., concurring in part and dissenting in part) (referring to Title VII).

191 81 Stat. 602 (1967) (codified as amended at 29 U.S.C. §§ 621-34 (2000 & Supp. 2005).

192 See Woodford, 548 U.S. at 98.

193 See id. (citing EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 123-25 (1988)).

- 27 -

as matters in abatement, and courts should be more apt to apply the unenumerated Rule 12(b)

procedure in those contexts. Refusing to adopt the unenumerated Rule 12(b) procedure in non-

PLRA cases would create two different exhaustion procedures—one for prisoners, and one for

everybody else. Absent express congressional action to the contrary, the Rules should be applied

with blind conviction.194

194 See Jones, 549 U.S. at 212-13, 216.