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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12919
Non-Argument Calendar
____________________
EDWIN ESTANGLEY GARCIA,
Plaintiff-Appellant,
versus
DOCTOR OSEGBUE OBASI,
WSP Medical,
WARDEN WILCOX STATE PRISON,
UNIT MANAGER,
Wilcox State Prison Medical,
Defendants-Appellees,
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2 Opinion of the Court 21-12919
CRISP REGIONAL HOSPITAL, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:20-cv-00155-TES-CHW
____________________
Before BRANCH, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Edwin Estangley Garcia, a pro se Georgia prisoner, filed this
42 U.S.C. § 1983 action against the warden, the prison doctor, and
the prison medical unit manager, alleging that they violated the
Eighth Amendment by failing to provide timely and appropriate
medical care after he broke his arm while playing soccer in the
prison yard. 1 He appeals the district court’s dismissal of his com-
plaint based on his failure to exhaust his available administrative
remedies. We conclude that the district court correctly dismissed
Garcia’s complaint because he failed to exhaust the available prison
1 Garcia also sued the prison soccer coach, the local hospital, and an unnamed
doctor, but his claims against those defendants were dismissed for failure to
state a claim, and he has not appealed their dismissal.
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21-12919 Opinion of the Court 3
grievance procedures before filing his lawsuit. We modify the dis-
trict court’s judgment, however, to correct an error and to reflect
that the dismissal is without prejudice. We affirm the judgment as
modified.
I.
Garcia filed his § 1983 complaint on April 23, 2020, alleging
that prison officials showed deliberate indifference to his serious
medical need by failing to provide timely medical care after he
broke his arm and wrist and injured his hand. Specifically, he al-
leged that officials waited nearly three hours after he was injured
to transport him to the hospital, caused his initial surgical treat-
ment to be delayed twice, caused him to miss a second surgery al-
together, failed to provide physical therapy and appropriate pain
medication, and failed to schedule follow-up care to remedy the
obvious deformity and remaining nerve injury in his arm.
Garcia also alleged that he had presented his complaints to
the warden by filing a grievance, and that the warden had waived
the exhaustion of additional prison administrative remedies by fail-
ing to respond to his grievance. He attached to his complaint a
copy of a formal grievance dated January 30, 2020, complaining of
the alleged delayed and inadequate medical care for his arm, and
an inquiry dated March 25, 2020, in which he asked about the status
of his grievance and stated that it had been over 60 days since he
filed his grievance and the warden had not responded or given 10
days’ notice. A prison staff member responded to Garcia’s inquiry
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4 Opinion of the Court 21-12919
by stating that his grievance was sent to the warden’s office on
March 25, 2020, for review.
The defendants answered Garcia’s complaint, alleging
among other defenses that Garcia failed to exhaust his available ad-
ministrative remedies, in violation of the Prison Litigation Reform
Act, 42 U.S.C. 1997e(a) (PLRA). They later filed a motion for sum-
mary judgment on the grounds that Garcia had not exhausted his
administrative remedies before filing suit and had not established
that the defendants had been deliberately indifferent to a serious
medical need. In support of their motion, the defendants submit-
ted an affidavit by Amber Phillips, a prison analyst who was respon-
sible for ensuring compliance with grievance procedures at the fa-
cility where Garcia was housed, and a copy of the Georgia Depart-
ment of Corrections Statewide Grievance Procedure.
The Grievance Procedure outlined two steps for an inmate
seeking to resolve a complaint at the prison: first, the inmate could
submit a formal grievance within ten days of the date that he knew
or should have known of the facts giving rise to his complaint. The
procedure provided that the warden was to respond to the griev-
ance within 40 days, or within 50 days if the warden gave written
notice of the 10-day extension before the initial 40-day period ex-
pired. Second, the inmate could file an appeal with the central of-
fice after the time allowed for the warden’s response passed, or
within seven days after the warden responded to the grievance.
The central office was allotted 120 days to resolve the appeal.
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21-12919 Opinion of the Court 5
In her affidavit, Phillips testified that inmates are provided
with written grievance instructions and an oral explanation of the
grievance process upon entering the custody of the Georgia De-
partment of Corrections. She also testified that inmates have ac-
cess to a copy of the Grievance Procedure at the prison library.
Phillips attached records showing that Garcia submitted a griev-
ance in January 2020 about the medical treatment he received, and
that the warden denied the grievance on June 5, 2020.
Garcia responded that the warden waived exhaustion of his
administrative remedies by failing to respond to his formal griev-
ance for several months after he submitted it. He pointed out that
he had appealed to the central office in June 2020 (while his § 1983
lawsuit was pending) after the warden finally responded to his
grievance. He also contended that the grievance coordinator had
“erred when she failed to provide the inmate with information to
appeal” when the time expired for the warden to respond, because
she did not send him an appeal form at that time.
Garcia also filed a motion for summary judgment, arguing
again that the warden had waived exhaustion of administrative
remedies by failing to respond or give notice of an extension within
the time provided, and arguing the merits of his Eighth Amend-
ment deliberate-indifference claim.
The district court referred the case to a magistrate judge,
pursuant to
28 U.S.C. § 636(b)(1). The magistrate judge issued a
report and recommendation stating that the district court should
grant the defendants’ motion for summary judgment and deny
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6 Opinion of the Court 21-12919
Garcia’s motion because (1) Garcia failed to exhaust available ad-
ministrative remedies by filing a central office appeal before he filed
his lawsuit, and (2) Garcia failed to present evidence from which a
reasonable jury could find in his favor on the merits of his deliber-
ate indifference claim.
Garcia objected to the magistrate judge’s report and recom-
mendation. He reiterated his argument that the warden had
waived exhaustion of administrative remedies by failing to timely
respond to his grievance. He also asserted for the first time that
(1) the grievance procedures had never been made available to him
in Spanish or through a Spanish interpreter, though he did not
speak or read English; and (2) the prison library manager had mis-
informed him on April 15, 2020, that because of the COVID-19 pan-
demic, prisoners were no longer required to exhaust administrative
remedies before filing suit.
The district court adopted the magistrate judge’s report and
recommendation to the extent that it found that Garcia had failed
to exhaust his administrative remedies before filing suit. Without
addressing the arguments raised for the first time in Garcia’s objec-
tions to the magistrate’s report and recommendation, the court
concluded that because Garcia filed his lawsuit before he appealed
his grievance to the central office, the lawsuit was barred by the
PLRA. It therefore granted the defendants’ motion for summary
judgment without reaching the merits of Garcia’s § 1983 claim and
denied Garcia’s motion for summary judgment. Garcia now ap-
peals.
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21-12919 Opinion of the Court 7
II.
We review the district court’s interpretation and application
of the PLRA’s exhaustion requirements de novo. Higginbottom v.
Carter,
223 F.3d 1259, 1260 (11th Cir. 2000). We review the district
court’s treatment of a magistrate judge’s report and recommenda-
tion for abuse of discretion. Stephens v. Tolbert,
471 F.3d 1173,
1175 (11th Cir. 2006).
III.
Under the PLRA, a prisoner cannot bring a § 1983 action
“until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). “The plain language of the statute makes ex-
haustion a precondition to filing an action in federal court.” Hig-
ginbottom, 223 F.3d at 1261 (citation omitted). This means that
when a state provides a grievance procedure for its prisoners, “an
inmate alleging harm suffered from prison conditions must file a
grievance and exhaust the remedies available under that procedure
before pursuing a § 1983 lawsuit.” Bryant v. Rich,
530 F.3d 1368,
1372 (11th Cir. 2008) (citation omitted). Exhaustion is mandatory,
and courts cannot excuse a failure to exhaust available administra-
tive remedies because “special circumstances” exist or because the
available procedures are futile or inadequate. Ross v. Blake,
578
U.S. 632, 638–39 (2016); see Higginbottom, 223 F.3d at 1261. Thus,
where a defendant raises the issue of exhaustion as a defense, courts
must conduct a limited analysis focusing on whether administra-
tive remedies were available and whether the prisoner properly ex-
hausted those remedies. See Ross, 578 U.S. at 639–42.
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8 Opinion of the Court 21-12919
A district court’s analysis of exhaustion proceeds in two
steps. See Turner v. Burnside,
541 F.3d 1077, 1082–83 (11th Cir.
2008). First, the court looks to the facts alleged in the defendants’
motion and the plaintiff’s response, and where they conflict, ac-
cepts the plaintiff’s version as true.
Id. at 1082. If under that ver-
sion of the facts the prisoner has failed to exhaust available admin-
istrative remedies, the district court must dismiss the prisoner’s
complaint.
Id. Second, if dismissal is not warranted at the first step,
the district court should make specific findings to resolve relevant
factual disputes and should dismiss if the facts found by the court
show a failure to exhaust.
Id. at 1082–83.
The district court conducted this analysis and concluded that
the undisputed facts showed at step one that Garcia had not ex-
hausted his available administrative remedies. We agree.
It is undisputed that the prison grievance procedures were
explained to Garcia orally and in writing when he first entered the
Georgia prison system, and that the complete Grievance Procedure
was available at the prison library. Garcia showed some familiarity
with the grievance procedures by filing his grievance and by com-
plaining to the grievance counselor two months later that the war-
den had not given him either a timely response to his grievance or
notice of an extension of the response time. The fact that the griev-
ance coordinator did not send Garcia an appeal form and remind
him of his option to appeal without waiting for a response did not
make that option unavailable—Garcia has not alleged that he asked
for an appeal form, or that one would not have been given to him
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21-12919 Opinion of the Court 9
if he had asked. See Geter v. Baldwin State Prison,
974 F.3d 1348,
1356 (11th Cir. 2020) (once the defendant has shown an available
administrative remedy that was not exhausted, the burden shifts to
the plaintiff to demonstrate that the procedure was “subjectively”
and “objectively” unavailable to him).
On appeal, Garcia argues that the prison grievance proce-
dures were unavailable to him because they were not provided or
explained to him in Spanish, and because the prison library man-
ager misinformed him that he was not required to exhaust his ad-
ministrative remedies due to COVID-19. Garcia forfeited those ar-
guments, however, by not raising them until after the magistrate
judge issued its report and recommendation, and the district court
acted within its discretion in refusing to consider them. See Wil-
liams v. McNeil,
557 F.3d 1287, 1291–92 (11th Cir. 2009).
Garcia also argues that prison officials waived his failure to
completely exhaust the grievance process by failing to comply with
the Grievance Procedure themselves. He points out that the war-
den did not respond to his grievance within 40 days or give him
notice of an extension as required in the Grievance Procedure, and
he says that when he eventually did file an appeal, the grievance
coordinator denied receiving it and presumably did not forward it
to the central office, and the central office never responded to it.
This argument is misplaced—the PLRA requires prisoners to
properly complete each step of an available grievance process, even
if the process is ultimately futile. Higginbottom, 223 F.3d at 1261;
see Miller v. Tanner,
196 F.3d 1190, 1193 (11th Cir. 1999) (when
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10 Opinion of the Court 21-12919
reviewing whether a prisoner exhausted his administrative reme-
dies, “we do not review the effectiveness of those remedies, but
rather whether remedies were available and exhausted”). The war-
den’s failure to provide a timely response to Garcia’s grievance did
not make a central office appeal unavailable to Garcia because he
had the option to appeal after the time for the warden’s response
expired. And the fact that the central office never addressed his
appeal does not excuse his failure to exhaust that option before fil-
ing suit in federal court. 42 U.S.C. § 1997e(a); Bryant,
530 F.3d at
1372.
The district court correctly dismissed Garcia’s complaint for
failure to exhaust available administrative remedies as required by
the PLRA. We note, however, that although the district court
adopted the magistrate judge’s report and recommendation only
insofar as it concluded that Garcia had not exhausted available ad-
ministrative remedies, the judgment entered by the clerk stated in-
correctly that the magistrate’s recommendation was accepted “in
its entirety.” This error is significant because the magistrate judge
recommended granting the defendants’ motion for summary judg-
ment on the merits, which would result in a dismissal with preju-
dice. Exhaustion, on the other hand, “is nothing more than a pre-
condition to an adjudication on the merits,” and a dismissal for fail-
ure to exhaust administrative remedies generally is without preju-
dice. See Bryant,
530 F.3d at 1374–75 & n.12. 2 Moreover, the
2As we acknowledged in Bryant, a dismissal with prejudice for failure to ex-
haust administrative remedies may be appropriate where it is no longer
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21-12919 Opinion of the Court 11
district court here expressly declined to reach the merits of Garcia’s
§ 1983 claim. We therefore modify the judgment to indicate that
the magistrate judge’s report and recommendation was adopted
only in part, and to clarify that the dismissal of Garcia’s complaint
was without prejudice.
IV.
To meet the “precondition” of exhaustion of available ad-
ministrative remedies under the PLRA, Garcia was required to
complete both steps in the prison grievance procedure—submit-
ting a formal grievance and appealing to the central office—before
filing his § 1983 complaint. See Woodford v. Ngo,
548 U.S. 81, 90
(2006); Bryant,
530 F.3d at 1378. He did not do so. We therefore
affirm the district court’s dismissal of Garcia’s § 1983 complaint.
We modify the district court’s judgment, however, to indicate that
the dismissal is without prejudice to his ability to renew his suit if
he has now exhausted his available administrative remedies. 3
feasible for the plaintiff to comply with administrative deadlines or otherwise
properly exhaust the available administrative remedies. Bryant,
530 F.3d at
1375 n.11; see Varner v. Shepard,
11 F.4th 1252, 1264 (11th Cir. 2021) (affirm-
ing a dismissal with prejudice for failure to exhaust administrative remedies
where the prisoner’s grievances were rejected as untimely). We are not faced
with those circumstances here.
3 We do not express or imply an opinion as to whether Garcia has now
properly exhausted the available prison grievance procedures, whether he
would be entitled to equitable tolling of the applicable statute of limitations if
he refiled his lawsuit, or on the merits of any claim that Garcia may have re-
lated to past or continuing needs for medical treatment of his injured arm.
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12 Opinion of the Court 21-12919
AFFIRMED AS MODIFIED.
