USCA11 Case: 19-11080   Date Filed: 10/09/2020   Page: 1 of 13



                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11080
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 5:17-cv-00363-MTT-MSH


MARCO MCILWAIN,

                                                          Plaintiff-Appellant,

                                 versus

DR. EDWARD BURNSIDE,
GDCP,
L. ADAIR,
Nurse, GDCP,
LIEUTENANT A. UGLEE,
GDCP,
                                                        Defendants-Appellees.
                      ________________________

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

                            (October 9, 2020)

Before NEWSOM, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
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      Marco McIlwain, a Georgia prisoner serving a life sentence for felony

murder, filed a complaint under 42 U.S.C. § 1983 alleging that prison workers

were deliberately indifferent to his medical needs and retaliated against him when

he filed grievances over their treatment. The district court dismissed his claims,

finding that McIlwain failed to exhaust his administrative remedies. On appeal,

McIlwain argues that the district court erred by not properly applying the steps we

laid out in Turner v. Burnside, 

(11th Cir. 2008). After carefully

reviewing the record and arguments before us, we agree. The district court did not

sufficiently resolve the relevant factual disputes before dismissing his claims, as

the second step in Turner requires. Accordingly, we vacate the district court’s

order and remand the case to the district court for further proceedings.

                                          I.

      Marco McIlwain is an inmate in the Special Management Unit at the

Georgia Diagnostic and Classification Prison (GDCP) in Jackson, Georgia. He

arrived at GDCP on August 11, 2016 with serious injuries, including stab wounds

to his head and back and a collapsed lung. McIlwain alleges that workers at GDCP

failed to provide adequate medical treatment for these injuries.

      According to his complaint and his response to the defendants’ motion to

dismiss, McIlwain filed or attempted to file five different grievances related to the

workers’ conduct, but his efforts proved unsuccessful. McIlwain’s first grievance


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raised concerns over GDCP workers’ failure to treat his injuries and give him pain

medication. He submitted the grievance under his cell door to a prison counselor

(one part of the counselors’ duties at the prison was to accept such grievances).

The counselor tore off the receipt portion of the form and returned it to McIlwain,

keeping the other portions of the form for himself. The warden dismissed this first

grievance as untimely, stating that McIlwain did not file it within ten days of the

incident it described. McIlwain appealed, arguing that he had a receipt showing

that he submitted the grievance within ten days of the incident. But the appeal was

fruitless; the prison’s central office denied it as untimely without any other

explanation.

      McIlwain alleges that he filed a second grievance concerning unreturned

calls to medical staff and continued failure by GDCP workers to treat his medical

needs. He never received a response—other than a statement from the nurse who

gave him a receipt that medical officials were not going to help him because he

kept filing grievances.

      McIlwain next alleges that he was told by Dr. Edward Burnside, a prison

physician, that he was going to have to learn to live with his back pain. Following

that refusal of treatment, as well as harrowing experiences with incorrect

medication, he filed his third and fourth grievances. The warden denied both.

McIlwain alleges that he submitted appeals for these denials to his counselor—


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hand delivering one appeal and mailing the other because the counselor did not

come by his cell during the appeal window. McIlwain did not receive a response

to either appeal.

      Finally, McIlwain filed a fifth grievance detailing an incident in which an

officer insisted that McIlwain drop his third grievance; the officer took away

McIlwain’s breakfast when he refused to do so. McIlwain claims that he mailed

this grievance to his prison counselor but received a letter in reply stating that he

could not file a third grievance until he dropped one of his two grievances that

remained pending at that time.

      After the prison either rejected or did not respond to his five grievances,

McIlwain filed this complaint under § 1983, alleging that the defendants acted with

deliberate and reckless indifference to his medical needs and retaliated against him

in violation of the Eighth Amendment. He attached to his complaint, among other

things, a receipt for the first grievance that showed a submission date within ten

days of the incident it described.

      In response, the defendants asked the district court to stay discovery, which

it immediately did. They then moved to dismiss McIlwain’s claims for failure to

exhaust administrative remedies. As part of their motion, they submitted an

affidavit from Counselor Goody stating that McIlwain’s receipt for the first

grievance was forged. McIlwain asked the district court to obtain the original copy


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of the first grievance form and compare its tear lines to those on the receipt

McIlwain submitted to show that he did not forge his receipt, but the district court

never responded to this request.

      A magistrate judge reviewed the case and recommended granting the

defendants’ motion to dismiss, making three conclusions in a report and

recommendation. First, the magistrate judge concluded that the first grievance was

untimely because “Defendants’ submissions” were “more credible than

Plaintiff’s.” Second, the magistrate concluded that McIlwain “failed to appeal” the

denial of his third and fourth grievances. Third, the magistrate stated that the

administrative remedies were “actually available” to McIlwain because he had

“availed himself of the GDOC’s grievance procedures numerous times.” The

magistrate judge cited the government’s version of the facts when making these

conclusions, relying heavily on the affidavit of Chanel Footman, the grievance

coordinator at GDCP. McIlwain’s second and fifth grievances were left

unaddressed.

      The district court adopted the magistrate judge’s recommendation in full and

dismissed McIlwain’s claims. Neither the magistrate judge nor the district court




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explained why McIlwain had failed to exhaust administrative remedies for his

second or fifth grievance.

      McIlwain appeals.

                                          II.

      We review a district court’s dismissal for failure to exhaust administrative

remedies under the PLRA de novo. Bingham v. Thomas, 

, 1174

(11th Cir. 2011). We review the district court’s factual findings for clear error.

                                          A.

      The Prison Litigation Reform Act forbids suits by prisoners “with respect to

prison conditions” under any federal law, including § 1983, “until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

This exhaustion requirement is a mandatory pre-condition to suit. Alexander v.

Hawk, 

, 1325–26 (11th Cir. 1998). But if remedies are unavailable

to a prisoner, they (unsurprisingly) need not be exhausted. Turner v. Burnside, 

, 1084 (11th Cir. 2008).

      State law “determines what steps are required to exhaust.” Dimanche v.

Brown, 

, 1207 (11th Cir. 2015); see also Jones v. Bock, 

, 218 (2007). At the GDCP, standard operating procedures from the Georgia


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Department of Corrections (GDOC) set out the steps required for exhaustion.

First, a prisoner must submit an original grievance within ten days of an incident.

The warden has forty days to respond. Second, the prisoner must appeal within

seven days of receiving a denial or after the time allowed for the warden to decide

expires. The Commissioner or her designee must deliver a decision on the appeal

to the inmate within one hundred days of receipt.

      Failure to exhaust “is an affirmative defense under the PLRA” and “inmates

are not required to specially plead or demonstrate exhaustion in their complaints.”

. The burden is on the defendant to show a failure to

exhaust.

In Turner, we established a two-step process for resolving

motions to dismiss for failure to 

. First, looking to the

defendant’s motion and the plaintiff’s response, the district court assesses whether

dismissal is proper under the plaintiff’s version of the facts; and second, if

dismissal is inappropriate, the court makes “specific findings in order to resolve the

disputed factual issues related to exhaustion.”

may resolve

material questions of fact based on submitted papers only “in the absence of a

timely request for an evidentiary hearing.” Bryant v. Rich, 

, 1377

n.16 (11th Cir. 2008). And the district court’s findings must be specific enough to




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provide this Court with an opportunity to conduct meaningful appellate review.

Danley v. Allen, 

, 1092 (11th Cir. 2007).

      If a district court fails to properly apply the two-step Turner test, remand is

generally appropriate. Whatley v. Warden, Ware State Prison, 

,

1213 (11th Cir. 2015). But we need not remand if it would be futile, meaning if

the outcome of the case could not change. Hill v. Seaboard Coast Line R. Co., 

, 810 (11th Cir. 1989).

                                          B.

      Under Turner, a district court must make “specific findings” of fact to

resolve disputed issues related to exhaustion before dismissing a prisoner’s

complaint for failure to exhaust administrative 

. Here,

the district court did not identify and make specific findings to resolve all relevant

factual disputes regarding each of McIlwain’s five grievances before dismissing

his complaint for failure to exhaust. That means that the district court failed to

follow our instructions from Turner and we must remand for it to make these

findings in the first instance. 

. We address each of

McIlwain’s five grievances in turn to identify the disputed factual issues the

district court failed to make specific findings to resolve.

      First, the district court failed to make specific findings to resolve the

disputed issue of whether McIlwain’s first grievance was timely. The district court


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stated in a footnote that Defendants’ submissions were “more credible than

Plaintiff’s” but did not make any specific findings that would enable us to engage

in meaningful review of this conclusion. And the district court did not explain

why, even taking Defendants’ submissions as true, the first grievance was untimely

where McIlwain alleged an ongoing failure to treat his injuries as of the day he

signed the grievance.

      Further, the district court did not give McIlwain an opportunity to develop

the record on this issue before deciding it based on submitted papers. Bryant

instructs us that a district court may resolve disputed questions of fact on submitted

papers only “in the absence of a timely request for an evidentiary 

n.16. In his response to the defendants’ motion to dismiss, McIlwain

requested an evidentiary hearing to compare the tear marks on his receipt with

those on the original grievance form so that he could rebut the defendants’

allegation of forgery. Again in his objections to the magistrate judge’s report and

recommendation, he requested “that the original documents of the grievances be

submitted and put together because the counselor tears the receipt off and give[s] it

to the inmate as Counselor Footman stated in her affidavit.” This was an explicit

request for the district court to gather a key document from the defendants and

perform a specific evidentiary hearing—the kind of request Bryant contemplates.




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But the district court never held such a hearing, and also decided the issue without

making specific findings, violating the requirements of Turner and Bryant.

      Second, the district court did not address McIlwain’s second grievance,

despite factual disputes between the parties over whether he had exhausted the

claims related to this grievance. McIlwain proffered a receipt showing he

submitted the second grievance, but the district court failed to address this

grievance at all when dismissing his claims. The defendants acknowledge that the

district court did not make specific findings with regard to this issue as required by

Turner—and recognize that “remand would typically be appropriate”—but ask us

to affirm because any remand would be futile. 

.

      The problem with this argument is that its futility conclusion is based on

new arguments not raised in the district court. And the defendants, not McIlwain,

bore the burden of proving exhaustion. 

. For the first time,

the defendants argue that even if McIlwain filed his second grievance, he failed to

appeal it, rendering remand futile. But the district court was the proper forum in

which to raise this argument. And, unlike the situation in Hill, the district court did

not make factual findings regarding the second grievance that would inevitably

doom McIlwain’s claim should we 

. Thus, remand is

appropriate for the district court to undertake the second step of Turner and address




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all disputed issues of material fact concerning whether McIlwain exhausted

available remedies for his second grievance before dismissing that claim.

      Third, the district court failed to make specific findings of fact when

determining that McIlwain did not appeal his third and fourth grievances. The

district court did not address McIlwain’s appeal receipt for his third grievance.

Nor did it address his argument that his counselor was unavailable during the

appeal window for his fourth grievance, requiring him to mail the appeal. The

defendants again admit that the district court did not make specific findings of fact

as required by Turner for these two grievances, but claim that remand is

unnecessary because even if McIlwain appealed these grievances, he did not wait

for the Commissioner’s one hundred-day response time to expire before filing this

lawsuit. But we will not consider arguments raised for the first time on appeal.

And remand is not futile because the district court made no factual findings

relating to whether the Commissioner’s time for responding to these appeals had

expired. The district court on remand should allow McIlwain to develop the

factual record on these issues and then identify and resolve relevant disputed

issues, making specific factual findings along the way.

      Finally, the district court failed to address McIlwain’s fifth grievance,

despite factual disputes between the parties over whether this claim was exhausted.

For example, the parties dispute whether the two-grievance limitation rendered


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administrative remedies unavailable for McIlwain to file his fifth grievance.

Although the district court stated in a footnote that the grievance process was

“actually available” to McIlwain because he “availed himself of the GDOC’s

grievance procedures numerous times,” it did not address the impact of the

standing operating procedures’ two-grievance limitation or even mention the fifth

grievance specifically.

      The defendants again acknowledge that the district court did not make

specific findings with regard to these issues as required by Turner—and again

recognize that “remand would typically be appropriate”—but ask us to affirm

because remand would be futile. 

. The defendants argue that

the two-grievance limitation did not render the administrative process unavailable

to McIlwain and that McIlwain’s fifth grievance did not concern an emergency that

could exempt it from the two-grievance limitation. But these arguments should be

raised to the district court. And it is possible for the district court to disagree,

meaning that remand is not futile. Thus, the district court must undertake the

second step of Turner and address all disputed issues of material fact concerning

whether McIlwain exhausted available remedies for his fifth grievance before

dismissing this claim.

      In light of the district court’s failure to consider McIlwain’s request for an

evidentiary hearing concerning his first grievance and its failure to identify and


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resolve relevant factual disputes between the parties before dismissing McIlwain’s

claims, we are unable to adequately review its decision. Accordingly, we vacate

the district court’s order and remand the case to allow the district court to engage

in the second Turner fact-finding step with respect to each of the disputed issues

mentioned above.

      VACATED AND REMANDED.




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