Case: 18-15127   Date Filed: 07/13/2020   Page: 1 of 16



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-15127
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:17-cv-00443-MW-GRJ



SHONDOLYN BLEVINS,

                                                          Petitioner-Appellant,

                                 versus


FCI HAZELTON WARDEN,

                                                         Respondent-Appellee.

                       ________________________

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

                              (July 13, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and ED CARNES, Circuit
Judges.

PER CURIAM:
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        Shondolyn Blevins is a federal prisoner who was disciplined after sending an

obscene and profanity-laden letter to a correctional officer. She filed a 28 U.S.C.

§ 2241 petition in the district court raising a host of claims about her disciplinary

proceedings and the Bureau of Prisons’ disciplinary rules. The district court

dismissed her petition after concluding that she failed to exhaust her administrative

remedies and, alternatively, that she was not entitled to habeas relief. This is

Blevins’ pro se appeal.

        We reverse and remand because the district court did not follow the two-step

process that this Court set out in Turner v. Burnside, 

(11th Cir.

2008), for deciding whether to dismiss a petition based on administrative

exhaustion, and because the district court did not address the merits of the claims

that Blevins actually asserted in her petition.

                                           I.

        Blevins is serving a 152-month sentence in federal prison for various drug

and firearms crimes. While in custody she sent an “Inmate Request to Staff” to the

prison mailroom. The request, which was addressed to “Dumb bitch C. Robert,”

said:

        Dumb ass cracker bitch I am built to last. Old washed out hag. I am
        not concerned about that little game you played with my DHO hearing.
        Bitch you better worry about me using everything you do to show a
        Federal Court how unconstitutional the Disciplinary System is.



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      You see dumb bitch it has always been my argument that the DHO
      process is unconstitutionally vague and leaves too much room for
      bureau interpretation and this dumb shit is just what I am speaking of.

      So bitch come again with something better, because I have 7
      motherfucking years left dumb white ho and whether I’m in this cell or
      on the compound you dick suckers can’t hold me no longer.

      So kiss my big black ass. I am tired of you dumb ass Tallahassee
      employees.

      Yeah bitch write a shot ho I’m going to use it in support of my mental
      anguish claim.

      You bitches want to be lowdown and use your authority to hurt
      somebody. Okay Bitch you hurt me now I’m going to ask a federal
      judge to make you pay me for this hurt.

      With your ugly cheap looking dusty ass. I’m 45 how old are you??
      You look 75!!

She signed the form, “Shondolyn Motherfucking Blevins.”

      After receiving that message, Officer Roberts filed an incident report

charging Blevins with (1) threatening another with harm, (2) behaving in an

insolent manner toward a staff member, and (3) using abusive or obscene

language. The incident report was forwarded to a Disciplinary Hearing Officer

(DHO) who held a hearing and concluded that Blevins was guilty of being insolent

to staff and using abusive language. The DHO imposed the following sanctions:

disallowance of 14 days of good conduct time, forfeiture of 5 days of non-vested

good conduct time, 45 days of disciplinary segregation, and a six-month loss of

telephone, commissary, and visiting privileges.
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       Blevins appealed the DHO’s decision to the Regional Director. She argued

that the disciplinary rules and procedures were unconstitutional under the Second,

Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. The Regional Director

rejected her appeal, sending her a notice that stated: “All four pages of your BP-10

form must be legible and worded the same. Photocopies of the form will not be

accepted. You may resubmit your appeal in proper form within 10 days of the date

of this rejection notice.”

       Blevins resubmitted her appeal to the Regional Director. She raised the

same claims as she had in the first appeal and included a handful of others. Again,

the Regional Director rejected her appeal. The rejection notice said the same thing

as the first one, including the statement that Blevins could resubmit her appeal in

proper form within 10 days. The record shows that although Blevins prepared a

third appeal, she did not submit it or take any other action within the prison’s

administrative process.

       Instead Blevins filed a pro se 28 U.S.C. § 2241 petition in the Northern

District of Florida.1 She claimed that: (1) Officer Roberts made false charges

against her in the incident report, (2) the DHO failed to comply with the BOP’s




       1
          An inmate may file a 28 U.S.C. § 2241 petition to challenge the execution of her
sentence. See Antonelli v. Warden, 

, 1352 (11th Cir. 2008). That includes claims
relating to prison disciplinary proceedings. See, e.g., Santiago-Lugo v. Warden, 

,
471 (11th Cir. 2015).
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disciplinary policy, (3) the loss of good time credits was an excessive sentence

outside the disciplinary policy, (4) the DHO was biased and refused to allow her to

present a defense, was rude, and had a “closed mind,” and (5) the BOP disciplinary

rules and regulations were unconstitutionally vague.

      The Warden filed a motion to dismiss raising two arguments. First, he

asserted that Blevins did not exhaust her administrative remedies because she

“failed to refile” her appeal “in accordance with BOP policies.” Second, he argued

that even if Blevins had exhausted her administrative remedies, she was not

entitled to habeas relief because she received all of the process that she was due

and because the evidence was sufficient to prove that she committed the charged

conduct.

      The magistrate judge issued a report recommending that the district court

grant the Warden’s motion to dismiss for failure to exhaust, and alternatively, deny

the petition on the merits. He concluded that Blevins failed to exhaust her

administrative remedies because she “failed to resubmit her rejected remedy at the

Regional level and failed to pursue any remedies . . . at the Central Office level.”

And he concluded in the alternative that Blevins was not entitled to habeas relief

because she was “afforded due process and evidence supports [her] conviction.”

Over Blevins’ objection, the district court accepted and adopted the magistrate

judge’s report and recommendation as its own opinion, granted the Warden’s


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motion to dismiss for failure to exhaust and, alternatively, denied the § 2241

petition on the merits. This is Blevins’ pro se appeal.2

                                                 II.

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

administrative remedies. Alexander v. Hawk, 

, 1323 (11th Cir.

1998). We also review de novo a district court’s denial of a § 2241 petition on the

merits. 

.

       “Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United

States, 

, 1263 (11th Cir. 1998).

                                                III.

                                                 A.

       An inmate must exhaust available administrative remedies before seeking

relief in a § 2241 proceeding. See 

–75. To satisfy

the administrative exhaustion requirement, the inmate must use “all steps” that the

prison makes available to the inmate, and the inmate must do so “properly.”

Woodford v. Ngo, 

, 90 (2006). That means the inmate must comply

with the prison’s deadlines and other procedural rules, including the rules relating


       2
        Blevins did not need to obtain a certificate of appealability to appeal the district court’s
order. See Sawyer v. Holder, 

, 1364 n.3 (11th Cir. 2003) (“[A] federal prisoner
who proceeds under § 2241 does not need a COA to proceed.”).
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to the filing of appeals. See id.; Bryant v. Rich, 

, 1378 (11th Cir.

2008). If an inmate fails to exhaust her administrative remedies and the respondent

raises the issue in the district court, the district court may not grant relief on the

inmate’s petition. See 

.

       There is one important exception to the administrative exhaustion

requirement. Although an inmate “must exhaust available remedies,” she “need

not exhaust unavailable ones.” Ross v. Blake, 

, 1858 (2016). An

administrative remedy is unavailable if it cannot capably be used to obtain some

relief.

The Supreme Court has explained that at least three scenarios

meet that criteria: (1) where “despite what regulations or guidance materials may

promise,” the administrative process “operates as a simple dead end––with officers

unable or consistently unwilling to provide any relief to aggrieved inmates,”

(2) where the administrative process is “so opaque that it becomes, practically

speaking, incapable of use” because “no ordinary prisoner can discern or navigate

it,” and (3) where “prison administrators thwart inmates from taking advantage of a

grievance process through machination, misrepresentation, or intimidation.”
 Id. at

1859–60. 
3


       3
          Although the unavailability exception stems from Prison Litigation Reform Act cases,
this circuit has applied that exception to cases involving § 2241 petitions — as have other
circuits. See Boz v. United States, 
248 F.3d 1299
, 1300 (11th Cir. 2001) (explaining in an
immigrant’s § 2241 case that “a petitioner need not exhaust his administrative remedies where
the administrative remedy will not provide relief commensurate with the claim”); see also,
Gallegos-Hernandez v. United States, 
688 F.3d 190
, 194 (5th Cir. 2012) (per curiam) (noting in a
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       When a respondent files a motion to dismiss based on an inmate’s failure to

exhaust administrative remedies, and the inmate claims that her failure should be

excused because the administrative remedy process was unavailable to her, the

district court must follow a two-step process when ruling on the motion. Turner v.

Burnside, 
541 F.3d 1077
, 1082 (11th Cir. 2008). First the district court must look

to the inmate’s and respondent’s factual allegations, and if they conflict, take the

inmate’s version of the facts as true.
 Id. If, in 
that light, the district court

concludes that the inmate failed to exhaust, the petition “must be dismissed.”
 Id.

But if 
the district court, after assuming that the inmate’s allegations are true,

concludes that the petition is not subject to dismissal, it must proceed to the second

step and “make specific findings in order to resolve the disputed factual issues

related to exhaustion.”
 Id. And at 
that second step, the respondent bears the

burden of proving that the inmate has failed to exhaust all available administrative

remedies.
 Id. “Once the 
court makes findings on the disputed issues of fact, it

then decides whether under those findings the prisoner has exhausted his available

administrative remedies.”
 Id. at 1083.

§ 2241 case that “[e]xceptions to the exhaustion requirement are appropriate where the available
administrative remedies either are unavailable or wholly inappropriate to the relief sought”);
Garza v. Davis, 
596 F.3d 1198
, 1203 (10th Cir. 2010) (“The exhaustion of available
administrative remedies is a prerequisite for § 2241 habeas relief, although we recognize that the
statute itself does not expressly contain such a requirement.”) (emphasis added); Fazzini v.
Northeast Ohio Corr. Ctr., 
473 F.3d 229
, 233 (6th Cir. 2006) (noting that it is “well-settled that a
federal prisoner must exhaust all available administrative remedies before filing a federal habeas
petition) (emphasis added).
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                                          B.

       Because Blevins is a federal prisoner, the BOP’s Administrative Remedy

Program procedural rules apply to her. 28 C.F.R. § 542.10(b); see also United

States v. Lucas, 
898 F.2d 1554
, 1556 (11th Cir. 1990) (explaining that the BOP

regulations “set out the procedures that prisoners must pursue prior to seeking

relief in a district court”).

       Those rules state that if an inmate is not satisfied with the result of her DHO

hearing, she may submit an appeal to the Regional Director within 20 calendar

days. 28 C.F.R. §§ 542.14(d)(2), 542.15(a). If the inmate’s appeal meets the

requirements set out in the rules, the Regional Director will accept the appeal and

review the merits. See
 id. § 542.17(a). 
If the appeal does not meet the

requirements, the Regional Director may reject and return it to the inmate.
 

Regional Director rejects the inmate’s appeal, he must provide a

written notice explaining why.
 Id. § 542.17(b). 
And if the defect the Regional

Director identified can be corrected, that notice must set out a timeframe during

which the inmate may correct the deficiency and resubmit her appeal.
 

Regional Director does not give the inmate an opportunity to correct the defect and

resubmit, the inmate may appeal the Regional Director’s rejection to the General

Counsel.
 Id. § 542.17(c). 
The General Counsel may affirm the rejection, direct the

Regional Director to accept the appeal, or accept the appeal for filing himself.
 Id.


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      Once the appeal is properly filed with the Regional Director (either upon the

inmate’s initial submission, the inmate’s resubmission, or at the direction of the

General Counsel), the Regional Director has 30 calendar days to respond in

writing.
 Id. § 542.18. 
If the inmate is not satisfied with the Regional Director’s

response, she may submit an appeal to the General Counsel within 30 days.
 Id.

§ 542.15(a). 
An appeal to the General Counsel is the “final administrative appeal.”


Id.

      The district 
court concluded that Blevins failed to comply with those rules.

According to the court, Blevins had two options after the Regional Director

rejected her appeal as illegible for the second time: (1) she could have corrected

the deficiency and resubmitted it to the Regional Director, or (2) she could have

appealed the Regional Director’s rejection to the General Counsel. And because

she did neither, the court held that she failed to exhaust her administrative

remedies.

      The district court is incorrect about what it characterized as the second

option. The BOP regulations state that an inmate may appeal the Regional

Director’s rejection of her appeal (as opposed to another type of response to it) if

“the inmate is not given an opportunity to correct the defect and resubmit.” 28

C.F.R. § 542.17(c) (“When a Request or Appeal is rejected and the inmate is not

given an opportunity to correct the defect and resubmit, the inmate may appeal the


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rejection . . . to the next appeal level.”) (emphasis added). But here the Regional

Director did give Blevins the opportunity to correct the defect and resubmit the

appeal. So contrary to the district court’s conclusion, Blevins could not have

appealed the Regional Director’s rejection of her appeal to the General Counsel.

That leaves as her only option submitting her appeal, for a third time, to the

Regional Director.

                                         C.

      Blevins concedes that she did not submit her appeal for a third time to the

Regional Director, but she maintains that the appeal process had become

unavailable to her after the second rejection of her appeal. More specifically,

Blevins argues that in light of her allegations about how the appeal process had

become unavailable, the district court was required to follow the two-step process

we set out in Turner before dismissing her petition. We agree.

      Blevins asserted in the district court that the appeal process became

unavailable to her for five reasons. First, she claimed that the Regional Director

repeatedly and intentionally rejected her appeals for a “frivolous reason.” She

pointed out that although the Regional Director stated that the appeal was illegible,

she used the form and pen that prison staff provided to her, and when she requested

a typewriter, the BOP denied her request. She also included in the record a copy of

both of her appeals, which show that her handwriting was legible and her


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arguments were at least coherent. Second, Blevins claimed that the DHO officer

refused to provide her with the required material to appeal her disciplinary

sanctions.

       Third, Blevins claimed that when an inmate tries to appeal, his or her mail

“is stopped.” Fourth, Blevins claimed that when she tried to resubmit her appeal

after the Regional Director’s second rejection, the prison mailroom staff and

assistant warden prevented her from doing so. According to Blevins, they

“changed [the] policy and procedure” without notifying her, refused to allow her to

certify the appeal, refused to date stamp the appeal, and refused to accept her mail.

She asserted that she “personally spoke” with the assistant warden about mailing

her appeal, “as [she] only had 10 days to resubmit,” but the assistant warden “used

her position of authority over the mailroom” to cause Blevins to “default in [her]

attempt” to appeal. And fifth, Blevins claimed that the BOP’s disciplinary rules

failed to provide adequate guidance to inmates whose appeals have been repeatedly

rejected for illegibility.

       The Warden did not address, much less deny, any of those allegations. In

his motion to dismiss, the entirety of the discussion about Blevins’ failure to

exhaust consisted of these three brief sentences: “In this instance, Petitioner has

not exhausted her administrative remedies regarding her claims. As stated above,

Petitioner filed two (2) remedy submissions regarding the discipline hearing


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process and sanctions for Incident Report No. 2897384. Both were rejected, and

the Petitioner failed to refile them in accordance with BOP Policies.” (Citations

omitted.) Nor did the Warden offer anything more on the subject in his brief to

this Court. Instead, he copied the same three sentences (nearly verbatim) and left it

at that.

       The district court did not mention Blevins’ second, third, fourth, or fifth

asserted reasons why the appeals process was unavailable to her. And it rejected

the first asserted reason, without any citations to the record or explanation other

than describing it as a “conclusional assertion” that was insufficient to trigger the

unavailability exception.

       The district court’s treatment of Blevins’ asserted reasons did not comply

with Turner. Under that decision the district court was first required to accept each

of Blevins’ allegations as true and decide whether the Warden was nevertheless

entitled to dismissal based on administrative 
exhaustion. 541 F.3d at 1082
. We

cannot say that, if the district court had done that, the only reasonable conclusion

would have been that the claims should have been dismissed on exhaustion

grounds.

       Blevins’ allegations fall into all three categories the Supreme Court

identified as triggering the unavailability exception. If, as Blevins alleges, the

Regional Director rejected her appeal as illegible even though it was legible, and


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Blevins’ only option was to file the same appeal over and over again with that

same Regional Director, the BOP’s administrative process was “operat[ing] as a

simple dead end.” 
Ross, 136 S. Ct. at 1859
. Or if, as Blevins alleges, the DHO

officer refused to provide her with the required material to appeal her disciplinary

sanctions, the prison staff stops inmates’ mail when they try to appeal, and the

assistant warden suddenly changed the mail rules and otherwise used her power

over the mailroom to prevent Blevins from sending her appeal to the Regional

Director, prison administrators “thwart[ed]” Blevins from taking advantage of the

appeal process “through machination, misrepresentation, or intimidation.”
 Id. at

1860. 
Or if, as Blevins alleges, the BOP rules do not inform inmates about what to

do if their appeal is repeatedly rejected for being illegible, the administrative

process was “so opaque that it be[came], practically speaking, incapable of use,”

then even though “some mechanism” existed to provide relief, “no ordinary

prisoner” could “discern or navigate it.”
 

      Given that the Warden was not entitled to dismissal at step one, the district

court should have proceeded to make “specific findings in order to resolve the

disputed factual issues related to exhaustion.” 
Turner, 541 F.3d at 1082
. Then the

district court could have used those findings to resolve the legal question about

whether the BOP rules adequately informed Blevins about what to do after the

Regional Director rejected her appeal as illegible for a second time. The court did


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not hold an evidentiary hearing, call for additional discovery, or cite to anything in

the Warden’s motion or the record to explain why Blevins’ allegations were

untrue. Nor did it say that even if Blevins’ allegations were true, they would not

deter a reasonable inmate from resubmitting an appeal to the Regional Director.

      Given these circumstances, the proper course is to reverse and remand so the

district court can make the necessary findings related to exhaustion of

administrative remedies. See Whatley v. Warden, 
802 F.3d 1205
, 1213 (11th Cir.

2015) (reversing and remanding under similar circumstances so the district court

could “properly undertake the two-step Turner process”); 
Turner, 541 F.3d at 1086
(remanding where there remained “disputed factual issues that may affect

determination of whether the remedy of appealing the unfavorable response, or

lack of any response, to [the inmate]’s formal grievance was available to him”);

see also 
Ross, 136 S. Ct. at 1862 
(remanding for further consideration of whether

the inmate had “available remedies to exhaust” because the materials the Court had

seen were “not conclusive,” may not have represented “the complete universe of

relevant documents,” and had not been fully “analyzed in the courts below”)

(quotation marks omitted).

                                         IV.

      We note that in § 2241 cases, administrative exhaustion is not a

jurisdictional requirement. See 
Santiago, 785 F.3d at 474
–75. “Of course, that


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does not mean that courts may disregard a failure to exhaust and grant relief on the

merits if the respondent properly asserts the defense.”
 Id. at 475. 
But it does mean

that a court “may skip over the exhaustion issue if it is easier to deny (not grant, of

course, but deny) the petition on the merits without reaching the exhaustion

question.”
 Id. As a 
result, if the district court had addressed Blevins’ claims on

the merits and concluded that they should be denied, that conclusion would provide

a basis for affirming the district court’s order in this case despite the court’s failure

to properly apply the Turner test.

      The district court did not reach and decide any of Blevins’ five claims on the

merits, and neither will we.

      REVERSED AND REMANDED.




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