Case: 16-11780    Date Filed: 02/15/2017   Page: 1 of 5


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-11780
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 4:13-cv-02067-LSC-TMP

GEORGE WALTER PRESLEY,

                                                                Plaintiff-Appellant,
                                       versus

LT. LATONYA SCOTT,
CARL SANDERS, Captain,
KIM TOBIAS THOMAS, Commissioner,
WARDEN,
JOSEPH HEADLEY, Warden II, et al.,

                                                             Defendants-Appellees.
                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                (February 15, 2017)

Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      George Walter Presley, a pro se prisoner proceeding in forma pauperis,

appeals the dismissal of his 42 U.S.C. § 1983 complaint for failing to exhaust his
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administrative remedies pursuant to 42 U.S.C. § 1997e(a).

      Presley alleges that prison employees confiscated and destroyed his Native

American religious items. After the items were confiscated, Presley met with

prison officers Scott McDowell and J. Hamilton and claimed the confiscated items

were religious in nature. Presley then met with Captain Carl Sanders, who

informed him that Warden Davenport instructed him to destroy the items. Presley

requested to ship the materials home; his request was denied. Presley then spoke

to Chaplain Brown, who told him that he was unable to help.

      In response to Presley’s legal complaint, defendants asserted that Presley’s

claims should be dismissed because he failed to exhaust his administrative

remedies. Under Administrative Regulation 313 (AR 313), Presley was required to

submit a request first to the chaplain and then, if the chaplain was not able to

resolve the request, to file a grievance with the warden or warden’s designee. The

magistrate judge recommended that his complaint be dismissed because he did not

follow the specific procedures of AR 313. Presley argued that he diligently

pursued his grievances through the channels available to him. Besides the

meetings described above, Presley sent letters to Commissioner Kim Thomas, the

Alabama Department of Corrections Legal Division, and to Chaplain Woodfin.

Also, Presley argued that inmates had no way of knowing about the requirements

of AR 313 and that nobody ever made him aware of the specific requirements of


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AR 313. The district court adopted the magistrates judge’s report and

recommendation and dismissed Presley’s claims without prejudice.

      On appeal, Presley argues that the district court erred in dismissing his

complaint because AR 313 was not available to him.

      We review de novo the district court’s dismissal of a lawsuit for failure to

exhaust available administrative remedies under 42 U.S.C. § 1997e(a). See

Alexander v. Hawk, 

, 1323 (11th Cir. 1998).

      Section 1997e(a), as amended by the Prison Litigation Reform Act (PLRA),

provides that “[n]o action shall be brought . . . by a prisoner confined in any jail . . .

until such administrative remedies as are available are exhausted.” By the “plain

language” of § 1997e(a), exhaustion is a “precondition to filing an action in federal

court.” Higginbottom v. Carter, 

, 1261 (11th Cir. 2000) (per curiam)

(internal quotation marks omitted). However, an administrative procedure that is

“unknown and unknowable is unavailable.” Goebert v. Lee Cty., 

,

1323 (11th Cir. 2007). For an administrative remedy to be “available” under the

PLRA it must be able to be used to achieve its intended purpose. See id.; Turner v.

Burnside, 

, 1084 (11th Cir. 2008). If an administrative remedy is

unavailable to a prisoner, we do not require a prisoner to exhaust it. See 

.




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      Upon a careful review of the record, we find that Presley exhausted his

administrative remedies because AR 313 was unavailable to him. It is the

defendant’s burden to prove a plaintiff has failed to exhaust his administrative

remedies, which requires evidence that the administrative remedies are available to

the plaintiff. 

. According to Presley’s complaint, the only

access prisoners have to the regulations are through the law library computer.

Attached to his complaint is an index from that computer (Attachment 1A) which

lists the Administrative Regulations but omits AR 313. Beyond Presley’s lack of

access to any information about AR 313, defendants provide no evidence that any

one of the numerous people Presley contacted about this issue informed him of AR

313. This is even more concerning because two of the people involved in Presley’s

efforts—Chaplain Brown and the warden—are the people with whom AR 313

requires Presley to file a grievance. We cannot condone defendants limiting access

to a procedure and then protecting themselves from a suit by alleging the prisoner

failed to use that specific procedure. See 

(“If we

allowed jails and prisons to play hide-and-seek with administrative remedies, they

could keep all remedies under wraps until after a lawsuit is filed and then uncover

them and proclaim that the remedies were available all along.”).

      We hold that the administrative procedures for filing and appealing religious

grievances were unavailable to Presley and that he therefore has satisfied the


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exhaustion requirement of 42 U.S.C. § 1997e(a). See 

is unknown

and unknowable is unavailable.”). We reverse the district court’s decision and

remand for further proceedings.

      REVERSED AND REMANDED.




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