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                                                                      [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-15117
                        ________________________

                  D.C. Docket No. 5:12-cv-00142-LGW-JEG

SHAWN WAYNE WHATLEY,
                                                             Plaintiff-Appellant,

                                      versus

WARDEN, WARE STATE PRISON,
RODNEY SMITH,
Corrections Officer (C.E.R.T. Team)
Telfair State Prison,
EXAM NURSE,
Ware State Prison,
MICHAEL GRIFFIN,
Supervisor of Lock Down Unit &
Tactical Squad Commander,
Ware State Prison,

                                                          Defendants-Appellees.

                        ________________________

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

                             (September 23, 2015)
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Before WILSON and MARTIN, Circuit Judges, and VINSON, * District Judge.

MARTIN, Circuit Judge:

       Shawn Wayne Whatley appeals the dismissal of his 42 U.S.C. § 1983

prison-conditions suit. His claims relate to a beating by prison staff, for which he

was denied medical treatment. Although he submitted several prison grievances

before suing, the District Court dismissed his suit for failure to exhaust the

administrative remedies established by the prison. We reverse for two reasons:

because the District Court failed to follow the two-step process we have created for

deciding exhaustion challenges; and because in concluding that one of Mr.

Whatley’s grievances did not exhaust, the District Court enforced a procedural bar

that the prison may have waived.

                                 I.      Legal Background

       Before a prisoner may bring a prison-conditions suit under § 1983, the

Prison Litigation Reform Act of 1995 requires that he exhaust all available

administrative remedies. 42 U.S.C. § 1997e(a); see also Booth v. Churner, 

, 736, 

, 1822 (2001). The purpose of the PLRA’s

exhaustion requirement is to “afford corrections officials time and opportunity to

address complaints internally before allowing the initiation of a federal case.”

       *
          Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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Woodford v. Ngo, 

, 93, 

, 2387 (2006) (quotation

omitted). To properly exhaust, a prisoner must “[c]ompl[y] with prison grievance

procedures.” Jones v. Bock, 

, 218, 

, 922–23 (2007).

       Georgia’s prison grievance procedures are set out in a standard operating

procedure. See Turner v. Burnside, 

, 1080–81 (11th Cir. 2008)

(describing the relevant SOP). The grievance process has three steps. First, an

informal grievance. A prisoner must file an informal grievance within ten days of

becoming aware of the facts giving rise to his grievance. He will receive a receipt

when he files an informal grievance. A prison official must respond in writing

within ten days. Second, a formal grievance. If the prisoner is not satisfied with

the response to his informal grievance, he may request a formal grievance form.

The prisoner must file a formal grievance within five days of receiving the written

response to his informal grievance. Importantly, the SOP provides that a prisoner

must “complete the informal grievance procedure before being issued a formal

grievance” form. 1

       After receiving a formal grievance, a prison official must “thoroughly

investigate” and “write a complete report,” and then make a recommendation to the

grievance coordinator. The grievance coordinator reviews the report, indicates
       1
        After the facts relevant to Mr. Whatley’s case, the SOP was amended to eliminate the
requirement that prisoners first file an informal grievance before they may file a formal
grievance.
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whether she agrees or disagrees, and submits her recommendation to the prison’s

warden or superintendent. The warden or superintendent reviews the grievance,

then requests further investigation or responds in writing to the prisoner. The

warden must respond within thirty days after a prisoner files a formal grievance. If

the warden does not respond within forty days—thirty days plus a one-time, ten-

day extension—the prisoner may appeal, as described immediately below.

      Third, an appeal. A prisoner may appeal a formal grievance to the Office of

the Commissioner within five days of receiving a response to his formal grievance.

The prisoner must include in his appeal both the completed formal and informal

grievance forms, and the commissioner must respond within 90 days. The SOP

does not provide a mechanism for appealing from an informal grievance.

      After a prisoner has exhausted the grievance procedures, he may file suit

under § 1983. In response to a prisoner suit, defendants may bring a motion to

dismiss and raise as a defense the prisoner’s failure to exhaust these administrative

remedies. See 

. In Turner v. Burnside we established a

two-step process for resolving motions to dismiss prisoner lawsuits for failure to

. First, district courts look to the factual allegations in

the motion to dismiss and those in the prisoner’s response and accept the prisoner’s

view of the facts as true. The court should dismiss if the facts as stated by the


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prisoner show a failure to exhaust. 

dismissal is not warranted on the

prisoner’s view of the facts, the court makes specific findings to resolve disputes of

fact, and should dismiss if, based on those findings, defendants have shown a

failure to exhaust. 

see also 

(explaining that defendants

bear the burden of showing a failure to exhaust).

      We “review de novo a District Court’s interpretation and application of 42

U.S.C. § 1997e(a)’s exhaustion requirement.” Johnson v. Meadows, 

, 1155 (11th Cir. 2005). To the extent the District Court made specific factual

findings, we review those for clear error, Bingham v. Thomas, 

,

1174–75 (11th Cir. 2011) (per curiam), but otherwise we “accept as true the facts

as set forth in the complaint and draw all reasonable inferences in [Mr. Whatley’s]

favor,” Randall v. Scott, 

, 705 (11th Cir. 2010).

                      II.   Factual and Procedural History

      Mr. Whatley alleges that on January 12, 2011, he was beaten by guards at

Telfair State Prison. Within hours of the beating, he was transferred to Ware State

Prison. At Ware State Prison, despite his excruciating pain and difficulty

breathing, a nurse simply told him to take Tylenol and, with a grin, told him he

would “be real sore for a while.” Mr. Whatley filed several grievances in which he




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at least arguably referred to the beating and the ensuing lack of medical treatment,

three of which are relevant to our decision.

A.    January 18 Grievance
      On January 18, 2011, Mr. Whatley submitted an informal grievance—what

we will refer to as his January 18 grievance. He received no response. In April,

without filing a formal grievance, he filed an appeal to the Office of the

Commissioner. In his appeal, he wrote that he was “severely and unjustly beaten”

and transferred from Telfair to Ware. He explained that he was appealing his

January 18 informal grievance only in April because he had not received an appeal

form and had heard no response to his other grievances. The record is silent about

what happened to this appeal.

B.    “Imminent Danger” Grievance (Number 80327)
      On February 10, 2011, just less than a month after the beating and a day

after he was again transferred, this time from Ware to the Georgia Diagnostic and

Classification Prison (GDCP), Mr. Whatley filed another informal grievance,

numbered 80327. He wrote that he was in “imminent danger”—so we refer to this

as the “imminent danger” grievance—and he requested transfer to a non-state

facility or “protective custody from all Georgia] Department of Corrections]

staff/employees, due to being severely beaten and transferred without treatment.”

This grievance was rejected on February 17. A prison official explained that the
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grievance addressed prisoner transfers, which according to the SOP are not

grievable issues.

C.    Grievance Number 80940
      On March 7, 2011, Mr. Whatley filed the last grievance relevant to this

appeal, this one numbered 80940. In it, he explicitly referred back to his imminent

danger grievance: “I filed an ‘imminent danger’ grievance,” he wrote, and he said

that “no response has been rendered” and “the allotted response time has expired.”

(Emphasis added.) He requested a formal grievance, and said that his grievances

were being discarded. Grievance 80940 was also denied. A prison official

recognized that this informal grievance referred back to his imminent danger

grievance, but the official indicated that the imminent danger grievance had been

rejected because it raised a non-grievable issue.

      On March 22, the same day informal grievance 80940 was denied, Mr.

Whatley filed a formal grievance. He again referred back to his imminent danger

grievance, and also to the beating itself and the denial of medical care:

      Since my arrival on 2-9-11 [at GDCP] I have filed an informal
      grievance every week, the grievances are not being processed
      according to policy!       Grievance #80327, “Imminent Danger”
      describe[d] the treatment that I have been under since 1-12-11, when I
      was unjustly and severely beat[en] at Telfair State Prison by [Officer]
      Smith and two other staff, and then transferred without medical
      attention! Then again transferred and place[d] in cruel and unusual
      punishment.

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      The warden rejected Mr. Whatley’s formal grievance, explaining that his

earlier, imminent danger grievance was rejected because it addressed a non-

grievable issue, viz., institutional transfers. But importantly, the warden also

appeared to address Mr. Whatley’s claims about the beating and lack of medical

care on the merits. He wrote: “Per phone conversation with [a nurse], you were

seen at medical upon arrival [at GDCP] on 2-9-11 and there was no evidence

supporting your claim of being severely beaten.” (Emphasis added.)

      Mr. Whatley appealed the warden’s denial of his formal grievance. He

responded to each of the warden’s reasons for rejecting his formal grievance,

insisting that he had receipts for his weekly grievances, and that this grievance

(80940) was the only one that had received a response. Again he referred to the

beating, and he disagreed with the warden’s suggestion that medical staff at GDCP

had found no evidence of the beating:

      As far as being beaten, that [grievance] was against another facility
      and it had been almost 2 months [sic—it had actually been only one
      month, from January 12 to February 10] since I had been assaulted, all
      [the nurse] did was check[] vital signs and asked about medications.
      No physical examination! Therefore no way she would have known
      what happened on 1-12-11 [the day of the beating].
      Mr. Whatley’s appeal was rejected. The appeal response noted only that his

grievance had alleged that a prison staff member had violated the grievance

procedure by not responding to a grievance. The response referred back to his

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imminent danger grievance, and again explained that it had been rejected because

it presented a non-grievable issue. Thus, the response concluded that Mr.

Whatley’s allegation was unfounded.

D.     District Court Proceedings
       Mr. Whatley filed a pro se § 1983 complaint in December 2012, alleging

violations of the Eighth and Fourteenth Amendments. Before discovery,

defendants moved to dismiss for failure to exhaust. In a 300-page filing including

Mr. Whatley’s prison records and copies of his grievances and the prison’s

responses thereto, defendants argued (among other things) that Mr. Whatley had

failed to exhaust the grievance procedure. In response, Mr. Whatley said he had

tried to complete the grievance procedure but that prison officials had not followed

the SOP. He attached grievance receipts and other documents that were not in

defendants’ filing. A Magistrate Judge recommended dismissing Mr. Whatley’s

complaint for failure to exhaust. The District Court adopted the Magistrate Judge’s

R&R.

                                 III.   Discussion

       We remand for two reasons. First, in holding that Mr. Whatley’s January 18

informal grievance did not exhaust administrative remedies, the District Court

erred by not following the two-step process we described in Turner. And second,

in holding that grievance 80940 did not exhaust, the District Court erred by
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enforcing a procedural bar that the prison itself may have waived. We discuss each

alternative ground for reversal in turn.

A.    Two-Step Turner Process
      In response to defendants’ motion to dismiss for lack of exhaustion, Mr.

Whatley alleged that: he filed his first informal grievance about the beating and

lack of medical care on January 18; he never received a response; and he filed an

appeal about three months later. He also submitted exhibits in support of these

allegations, including a receipt from filing the January 18 informal grievance

(Exhibit X) and a copy of his appeal of that same grievance (Exhibit X1). The

District Court discussed this grievance and Mr. Whatley’s exhibits in support:

             [T]hese exhibits lend no support to [Mr. Whatley’s] contention
      that he properly exhausted his available administrative remedies.
      Exhibit X is a receipt for an informal grievance which was submitted
      on January 18, 2011, and concerned an incident occurring on January
      12, 2011 [i.e., the day of the beating]. However, the receipt contains
      no number or content, making it impossible to determine about what
      Plaintiff grieved.

             Exhibit X1, which is presumably an appeal to the
      Commissioner’s Office of this unnumbered informal grievance at
      Exhibit X, also does not contain a number. While Plaintiff mentions
      that he submitted an informal grievance on January 18, 2011, and
      alleged in that informal grievance that he was assaulted by three (3)
      staff members at Telfair State Prison, he admits that his appeal is
      untimely. In addition, there is no indication that Plaintiff followed the
      proper grievance procedures by first filing a formal grievance before
      he filed an appeal.


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            The undersigned notes Plaintiffs assertion in this appeal that he
      had not received a response to his informal grievance, which meant
      that he could file an appeal with the Commissioner’s Office. It
      appears that Plaintiff misreads the applicable Standard Operation
      Procedure, which allows for an appeal without a response to a formal
      grievance rather than an informal grievance.

      The District Court did not properly undertake either of the two Turner steps.

It did not, consistent with the first Turner step, accept Mr. Whatley’s facts as true

and ask whether, given those facts, the January 18 grievance exhausted his

administrative remedies. Neither did the court proceed to the second Turner step:

identifying particular factual disputes, then making “specific [fact] findings” to

resolve those disputes and decide whether the January 18 grievance exhausted

administrative remedies. See 

(mandating that, in the

second step, district courts “proceed to make specific findings in order to resolve

the disputed factual issues related to exhaustion” (emphasis added)).

      As to the first step, it is clear that the District Court did not accept Mr.

Whatley’s facts as true and make the exhaustion determination on his view of the

facts. The court wrote that the January 18 informal grievance could not have

exhausted Mr. Whatley’s administrative remedies because the grievance receipt

(Exhibit X) “contain[ed] no number or content,” so it was “impossible to determine

about what Plaintiff grieved.” Yet Mr. Whatley explicitly alleged that the January

18 grievance “was for being brutally and severely beaten at Telfair State Prison

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and transferred without medical treatment.” Under Mr. Whatley’s version of the

facts, the January 18 grievance was about the January 12 beating and the denial of

medical care for his injuries. The District Court never credited this allegation.

      The District Court also failed to accept Mr. Whatley’s facts as they related to

his attempts to follow the SOP when filing this grievance. The court said Mr.

Whatley skipped the second grievance step when he directly appealed the informal

grievance without first filing a formal grievance. “[T]here is no indication,” the

District Court wrote, “that Plaintiff followed the proper grievance procedures by

first filing a formal grievance before he filed an appeal.”

      It is true that the SOP contemplates a three-step grievance procedure:

informal grievance, formal grievance, and then appeal. And it is also true that Mr.

Whatley alleged only that he completed the first and third steps of that procedure—

filing an informal grievance, then proceeding directly to an appeal, without

completing a formal grievance (the second step). But Mr. Whatley said he

proceeded directly to appeal because he heard no response to his informal

grievance. And under the SOP, without receiving a response to his informal

grievance he could not have made a formal grievance. The SOP provides that a

prisoner “must complete the informal grievance procedure before being issued a

formal grievance” form. Accepting Mr. Whatley’s allegations, the prison’s failure


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to respond to his grievance prevented him from “complet[ing] the informal

grievance procedure.” 2 The District Court faulted Mr. Whatley for failing to file a

formal grievance—something that, according to his allegations and the SOP, the

prison prevented him from doing.3

       Neither did the District Court undertake the second Turner step, in which

courts must “make specific findings in order to resolve disputed factual issues

related to exhaustion.” 

. In response to Mr. Whatley’s

allegations about the January 18 informal grievance and his exhibits in support of

those allegations, defendants suggested that Mr. Whatley’s exhibits—including the

       2
          Compare these facts to Turner. There, we rejected an argument by a prisoner that the
warden’s failure to respond to a formal grievance necessarily relieved him of his obligation to
appeal. We explained that the SOP (identical to the one here) gave instructions about what to do
in that circumstance: when a prisoner receives no response to a formal grievance, he should
appeal no later than five days after “the thirty-day time limit for a response had passed.” 

. Because the prisoner did not do so, we held he had failed to follow the SOP.
That was because the SOP provided instructions for a prisoner, like Mr. Turner, whose formal
grievance received no response. (In Turner we ended up remanding for the district court to
determine whether, based on the prisoner’s allegations that he had been threatened by the
warden, the grievance process was “available” to such that the prisoner was required to follow it.

.)
         By contrast, the SOP provides no guidance to a prisoner, like Mr. Whatley, who receives
no response to an informal grievance. He was in uncharted waters, without instruction from the
SOP, so the District Court should not have faulted him for taking the route that he did.
       3
          These facts also undermine the District Court’s conclusion that Mr. Whatley
“admit[ted] that his appeal [wa]s untimely.” Under Mr. Whatley’s view of the facts, he filed an
informal grievance to which the prison never responded. He then filed an appeal about three
months later. It is true that the SOP requires a prisoner to take an appeal from the rejection of a
formal grievance within five days. But Mr. Whatley was prevented from filing a formal
grievance because the prison never responded to his informal grievance. And the SOP gives no
instruction to prisoners about how they should proceed if the prison does not respond to an
informal grievance. Given the SOP’s silence on this point, at the first Turner step the District
Court should not have concluded that Mr. Whatley violated the SOP.
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signed informal grievance receipt— were “a fraud on th[e] court.” They argued

that the signatures on the exhibits were forgeries, and supported that allegation

with an affidavit from the prison officer whose signature appeared at the bottom of

the grievance receipt. The officer stated that she did not write or sign the

documents, so they were “not authentic.” The thrust of defendants’ response is

that Mr. Whatley fabricated the January 18 informal grievance out of whole

cloth—it never happened.

      Mr. Whatley’s allegations and exhibits, and defendants’ contentions in

response, created a factual dispute. Did Mr. Whatley file an informal grievance on

January 18 (as he alleged), or did he make false allegations and create forged

documents in an effort to show that he had filed that grievance when in fact he had

not (as defendants alleged)? The District Court neither identified this “disputed

issue of fact,” nor made “specific findings” to resolve it one way or the other.

      Defendants ask us not to remand for the District Court to follow the two-step

Turner process. They say we should simply affirm, finding on our own that the

January 18 grievance is a fiction and that Mr. Whatley fabricated the entire

episode. But we are a court of appeals. We do not make fact findings. We review

them for clear error. Without any explicit findings of fact (at best only implicit

ones, even under defendants’ view), we cannot undertake that review.


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      Our precedent requires district courts to first accept the prisoner’s version of

the facts as true and ask whether the suit is subject to dismissal for failure to

exhaust. If the answer is “no,” the court should proceed to make specific fact

findings. We will review de novo the results of the first step, and we will review

for clear error the fact findings made as part of the second step. In this case the

record does not reflect whether the District Court dismissed Mr. Whatley’s suit on

the first step or on the second step; whether the District Court accepted Mr.

Whatley’s version of the facts as true, such that we should review the court’s

conclusions de novo; or whether the District Court (implicitly) identified factual

disputes and (implicitly) resolved them in favor of defendants, such that we should

review the court’s fact findings for clear error. Because we cannot evaluate the

District Court’s conclusions on this record, we must reverse for the court to

properly undertake the two-step Turner process.

B.    Procedural Bar
      We also reverse because in concluding that grievance 80940 did not exhaust

administrative remedies, the District Court enforced a procedural bar that the

prison itself may have waived. We join our sister Circuits in holding that district

courts may not find a lack of exhaustion by enforcing procedural bars that the

prison declined to enforce.


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       In filing grievance 80940, Mr. Whatley undisputedly went through each step

of the grievance procedure. He filed an informal grievance on March 7, 2011,

received a rejection on March 17, filed a formal grievance on March 22, received a

rejection of his formal grievance on April 27, filed an appeal on April 28, and

received a rejection of the appeal on June 14. Indeed, the Magistrate Judge

recognized that Mr. Whatley “completed the grievance process for Grievance

Number 80940.”4

       Still, the Magistrate Judge found that grievance 80940 did not exhaust

administrative remedies. He explained that the grievance “suffer[ed] from a flaw”:

the informal grievance did not discuss the beating or the denial of medical care—

the issues raised in Mr. Whatley’s § 1983 complaint. And under the SOP, the

prison may refuse to consider issues not raised in an informal grievance. The

Magistrate Judge wrote that this procedural flaw meant grievance 80940 could not

properly exhaust administrative remedies: “Plaintiff’s failure to include a ground in

his informal grievance would result in the rejection of that formal grievance

containing that ground.” (Emphasis added.)

       We cannot agree. The Magistrate Judge’s conclusion that the procedural

flaw “would result in the rejection” of grievance 80940 is belied by the record: it

       4
        The District Court did not discuss this grievance at all, but it “adopted” the Magistrate
Judge’s R&R “as the opinion of the Court.”
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does not appear that the prison rejected the grievance on that ground. While it is

true that the prison could have rejected grievance 80940 by enforcing this

procedural rule, it instead seemed to ignore the procedural flaw and consider the

merits of Mr. Whatley’s claims. The District Court should not have enforced a

procedural bar that may have been waived by the prison.

      When Mr. Whatley filed formal grievance 80940, he explicitly referred to

the beating. He wrote that his earlier grievance, “Grievance #80327, ‘Imminent

Danger,’ describe[d] the treatment that [he] ha[d] been under since 1-12-11 when

[he] was unjustly and severely beat[en] at Telfair State Prison . . . and then

transferred without medical attention.” And in response to Mr. Whatley’s formal

grievance, the warden seemingly considered and rejected on the merits his claim

about being beaten: “Per phone conversation with Nurse Gore, you were seen at

medical upon arrival [at GDCP] on 2-9-11 and there was no evidence supporting

your claim of being severely beaten.” (Emphasis added.) That is, while the

warden could have rejected Mr. Whatley’s grievance on the procedural ground

identified by the Magistrate Judge, he apparently did not.

      Nevertheless, the Magistrate Judge enforced this procedural bar. On appeal

Mr. Whatley points to out-of-circuit cases holding that district courts should not

find a lack of exhaustion by enforcing procedural rules that were not enforced by


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the prison. He says that because the prison overlooked his grievance’s procedural

flaw and addressed his claims about the beating on the merits, the District Court

should not have enforced the procedural rule to find a lack of exhaustion.

Although our Circuit has never had occasion to consider this principle, we agree

and join our sister Circuits in so holding.

      The purpose of the PLRA’s exhaustion requirement is to “afford corrections

officials time and opportunity to address complaints internally before allowing the

initiation of a federal case.” 

, 126 S. Ct. at 2387. As one

of our sister Circuits has explained, the benefits of the exhaustion requirement “are

fully realized when an inmate pursues the prison grievance process to its final stage

and receives an adverse decision on the merits, even if the decision-maker could

have declined to reach the merits because of one or more procedural deficiencies.”

Hammett v. Cofield, 

, 947 (8th Cir. 2012) (per curiam) (emphasis

added). As the Magistrate Judge recognized, Mr. Whatley “pursue[d] the prison

grievance process to its final stage,” 

denying his formal grievance the

warden appeared to give Mr. Whatley “an adverse decision on the merits,” 

the warden “could have declined to reach the merits,” 

a

procedural flaw.




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      Every one of our sister Circuits that has faced this question has held the

same way: a procedural flaw ignored by a prison cannot later be resurrected by the

District Court to defeat exhaustion. See id.; Hill v. Curcione, 

, 125

(2d Cir. 2011) (“Today, we . . . hold that the exhaustion requirement of the PLRA

is satisfied by an untimely filing of a grievance if it is accepted and decided on the

merits by the appropriate prison authority.”); Reed-Bey v. Pramstaller, 

, 325 (6th Cir. 2010) (“When prison officials decline to enforce their own

procedural requirements and opt to consider otherwise-defaulted claims on the

merits, so as a general rule will we.”); Conyers v. Abitz, 

, 584 (7th

Cir. 2005) (“Failure to comply with administrative deadlines dooms the claim

except where the institution treats the filing as timely and resolves it on the

merits.”); Ross v. Cty. of Bernalillo, 

, 1186 (10th Cir. 2004) (“If a

prison accepts a belated filing, and considers it on the merits, that step makes the

filing proper for purposes of state law and avoids exhaustion, default, and

timeliness hurdles in federal court.”); Camp v. Brennan, 

, 281 (3d Cir.

2000). We find particularly persuasive the Sixth Circuit’s lucid explanation:

      When prison officials decline to enforce their own procedural
      requirements and opt to consider otherwise-defaulted claims on their
      merits, so as a general rule will we. In that setting, the State, as the
      promulgator of the [grievance] rules, has had a chance to provide a
      remedy for the inmate and to decide whether the objectives of the
      review process have been served. When the State nevertheless
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      decides to reject the claim on the merits, who are we to second guess
      its decision to overlook or forgive its own procedural bar? The rules
      serve the State’s interests: its interest in creating a prison grievance
      system, its interest in reviewing a complaint before another sovereign
      gets involved and its interest in deciding when to waive or enforce its
      own rules. And the State’s decision to review a claim on the merits
      gives us a warrant to do so as well, even when a procedural default
      might otherwise have resolved the claim.

(citation omitted).

      This principle is a sound one, and we adopt it as the law of our Circuit. We

hold that a prisoner has exhausted his administrative remedies when prison

officials decide a procedurally flawed grievance on the merits. In other words, we

hold that district courts may not enforce a prison’s procedural rule to find a lack of

exhaustion after the prison itself declined to enforce the rule.

      But as an appeals court, we are not in a position to find, in the first instance

and as a factual matter, whether the prison declined to enforce its rule and waived

the procedural flaw in this case. On appeal the parties argued at length over

whether the warden’s response to Mr. Whatley’s formal grievance in fact

addressed the merits of his claims about being beaten, or whether the warden was

instead responding to Mr. Whatley’s complaints about his earlier grievances being

ignored. As before, we must reverse for the District Court to make the necessary

findings of fact.

      REVERSED.

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VINSON, District Judge, concurring specially:

       I agree with the majority that the District Court did not follow the two-step

procedure set forth in Turner v. Burnside, 

(11th Cir. 2008). I also

agree with the majority (and with every circuit that has considered the issue) that

the state waives an exhaustion defense when it addresses and decides a prisoner’s

grievance on the merits even though the grievance could have been --- but was not

--- denied on a valid procedural ground. See, e.g., Hill v. Curcione, 

(2d Cir. 2011); Reed–Bey v. Pramstaller, 

(6th Cir. 2010); Conyers v.

Abitz, 

(7th Cir. 2005); Ross v. County of Bernalillo, 

(10th Cir. 2004), abrogated on other grounds by Jones v. Bock, 

, 

(2007); Camp v. Brennan, 

(3d Cir. 2000). However, this

case presents a slightly different factual situation than existed in those cases, which

raises some subtle additional issues.

       In each of the cases cited above and by the majority, the “waiver rule” was

applied where the state had decided the grievance on the merits at every stage of

review, or at least at the final administrative stage.1 Here, by contrast, it appears

that while the warden may have addressed the beating claim “on the merits” at the

1
 A district court in our circuit has noted this distinction in a well-analyzed decision. See Hall v.
Dunlap, 

, at *2-4 (M.D. Ga. Mar. 31, 2014) (“most courts in circuits that have
adopted a waiver rule would apparently require a decision on the merits at every stage of review
or at least at the last stage before finding a waiver of exhaustion”) (citing multiple cases).

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second stage of administrative review, it is unclear whether the Commissioner’s

Office did so at the third and final stage. 2

       If a state’s last administrative body denies a grievance for valid procedural

reasons, the court is required to find that grievance unexhausted under the PLRA.

This conclusion serves the purposes of exhaustion in that it promotes efficiency, it

“gives an agency ‘an opportunity to correct its own mistakes . . . before it is haled

into federal court,’ and it discourages ‘disregard of [the agency’s] procedures.’”

See Woodford v. Ngo, 

, 89, 

, 2385 (2006). It is also

supported by the fact that courts have repeatedly drawn “parallels” between the

PLRA and the law governing habeas corpus. 

(citing

Pozo v. McCaughtry, 

, 1025 (7th Cir. 2002), and concluding that

“[i]t makes considerable sense to adopt similar approaches in addressing similar

concerns under the two regimes”). Under the habeas regime, “‘a procedural

default does not bar consideration of a federal claim . . . unless the last state court

rendering a judgment in the case clearly and expressly states that its judgment rests

2
  It is unclear due to the nature of the grievance itself. The underlying grievance (80940) dealt
largely with an alleged procedural violation, i.e., the prison’s failure to follow proper grievance
procedure for Whatley’s previous “imminent danger” grievance, which, in turn, was tied to the
alleged beating. In denying grievance 80940, the Commissioner’s Office stated that the earlier
grievance had been denied as “non-grievable” under the SOP, and, also, because “we found no
evidence to indicate [a violation] of GDC’s grievance procedure”. It is thus debatable whether
the Office of the Commissioner rejected the grievance on procedural grounds or “on the merits”
(and whether the grievance was sufficiently connected to the beating at issue), and I believe this
is a critically important question that must be resolved.



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on a state procedural bar,’ or it is otherwise clear they did not evaluate the claim on

the merits.” 

v. Reed, 

, 263, 

, 1043

(1989) (emphasis added)).

      Thus, I would remand this case for the reasons that the majority has noted,

including a factual confirmation that the warden resolved grievance 80940 on the

merits at the second step of review. If that is confirmed, the District Court must

then consider the more legally significant question of whether the grievance was

considered and resolved on the merits by the Commissioner’s Office at the third

and final step. If it was, the state waived its exhaustion defense, as every circuit

has held. On the other hand, if the commissioner’s final decision denying the

grievance was based on a valid procedural reason, then Whatley’s grievance must

be treated as unexhausted, regardless of whether the warden’s earlier decision was

on the merits.




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