* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60256

CHARLES TORNS, JR

Plaintiff-Appellant

v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS; KATHRYN MCINTRYE,

Law Library Technician for Mississippi Department of Corrections and

Mississippi State Penitentiary ILAP; CHRISTOPHER B EPPS,

COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS;

RICHARD PAUL PENNIGTON, Director for Mississippi Department of

Corrections and Mississippi State Penitentiary ILAP; LAWRENCE KELLY,

Superintendent for Mississippi State Penitentiary; LARRY C HARDY,

Mississippi Department of Corrections and Mississippi State Penitentiary

ARP Claims Adjudicator

Defendants-Appellees

Appeal from the United States District Court 

for the Northern District of Mississippi

No. 4:06-CV-00075

Before KING, DENNIS, and ELROD, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

December 9, 2008

Charles R. Fulbruge III

Clerk
No. 07-60256

1 Question 7.C prompts: 

The court must find that you exhausted the prison’s grievance system

and administrative remedies before it can consider this Complaint. State

everything you did to present your grievance(s). Be specific. Include the date(s)

on which you filed or presented your grievances to prison officers; identify the

officer(s). State your claim(s) exactly.

Question 7.D continues: 

State specifically what official response your grievance received. If the

prison provides an administrative review ofthe decision on your grievance, state

whether you applied for that review and what the result was.

2

Plaintiff-appellant Charles Torns, Jr. appeals the district court’s sua

sponte dismissal of his complaint against the Mississippi Department of

Corrections and its officials for failure to exhaust administrative remedies as

required by 42 U.S.C. § 1997e(a). Because failure to exhaust is an affirmative

defense and it is not clear from the face of Torns’s complaint whether he

exhausted available administrative remedies, we vacate and remand.

I.

Torns is an inmate in the custody of the Mississippi Department of

Corrections (“MDOC”). Torns initiated this suit by completing a “Prisoner’s

Complaint Challenging Conditions of Confinement,” the district court’s form

complaint for inmate suits. Torns alleged a claim under 42 U.S.C. § 1983 that

defendants retaliated against him for requesting legal assistance from the

Inmate Legal Assistance Program and for exercising his right of access to the

courts. In response to Question 7 of the prisoner’s form complaint, which seeks

information regarding the inmate’s exhaustion of administrative remedies,1

Torns described his attempts to exhaust the prison grievance system.

Specifically, on June 27, 2005, Torns filed a request for review in MDOC’s

Administrative Remedy Program (“ARP”). Torns received no response from any

MDOC official after this initial request. Torns then filed his present complaint

after the expiration of a ninety-day period from his initial request.
No. 07-60256

2 Although the typical ARP review may involve three steps, see generally Gates v. Cook,

376 F.3d 323, 330 (5th Cir. 2004), there is no record evidence of the specific ARP available to

Torns at the time and place of his grievance.

3

On June 15, 2006, the district court dismissed Torns’s complaint because

he failed to exhaust the ARP. Citing § 1997e(a), the district court stated that it

“must ensure that the plaintiff has exhausted his administrative remedies with

the Mississippi Department of Corrections before examining the merits of the

plaintiff’s case.” Finding that Torns “acknowledges that he has not completed

the three-step administrative remedy program,” the district court rejected

Torns’s argument that he was prevented from completing the process as

“without merit” because “the grievance process requires the plaintiffto complete

all three steps, even without a response—and sets forth the method for doing

so.”2

Torns appeals the dismissal. On appeal, Torns argues that under the

Supreme Court’s intervening decision Jones v. Bock, 549 U.S. 199 (2007), failure

to exhaust is an affirmative defense that he was not required to plead, that the

expiration of the ninety-day period sufficed to exhaust the ARP, and that

defendants’ failure to respond to his ARP request precluded his further pursuit

of administrative remedies. Thus, Torns claims that the district court erred in

dismissing his complaint. We have jurisdiction over this appeal pursuant to 28

U.S.C. § 1291.

II.

We review de novo the district court’s dismissal of a prisoner’s complaint

under 28 U.S.C. § 1915A for failure to exhaust administrative remedies. See

Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007). Congress passed the Prison

Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e et seq., to address the

large number of inmate complaints filed in federal courts. See Jones, 549 U.S.

at 202. Through the PLRA, Congress intended to “reduce the quantity and
No. 07-60256

4

improve the quality of prisoner suits.” See Porter v. Nussle, 534 U.S. 516, 524

(2002). “Among other reforms, the PLRA mandates early judicial screening of

prisoner complaints and requires prisoners to exhaust prison grievance

procedures before filing suit.” Jones, 549 U.S. at 202. Under the PLRA, the

district court “shall review, before docketing, if feasible or, in any event, as soon

as practicable after docketing, a complaint in a civil action in which a prisoner

seeks redress from a governmental entity or officer or employee of a

governmental entity” and “shall . . . dismiss the complaint, or any portion of the

complaint, if the complaint . . . fails to state a claim upon which relief may be

granted.” 28 U.S.C. § 1915A; see also 42 U.S.C. § 1997e(c)(1) (The court “shall

on its own motion . . . dismiss any action brought with respect to prison

conditions under section 1983 of this title . . . by a prisoner confined in any jail,

prison, or other correctional facility if the court is satisfied that the action . . .

fails to state a claim upon which relief can be granted . . . .”).

ThePLRA also requires the inmate to exhaust all available administrative

remedies, and unexhausted claims may not be brought in federal court. See

§ 1997e(a) (“No action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as

are available are exhausted.”). “[T]he PLRA’s exhaustion requirement applies

to all inmate suits about prison life, whether they involve general circumstances

or particular episodes.” Porter, 534 U.S. at 532.

After the district court dismissed Torns’s complaint, the Supreme Court

decided Jones. In Jones, the Court weighed whether § 1997e(a)’s mandate that

an inmate exhaust administrative remedies is a pleading requirement that the

inmate must satisfy in his complaint, thus allowing the district court to screen

a complaint that fails to plead exhaustion, or an affirmative defense that the

defendant must plead and prove. 549 U.S. at 204, 212. The Court held that
No. 07-60256

5

“failure to exhaust is an affirmative defense under the PLRA, and that inmates

are not required to specially plead or demonstrate exhaustion in their

complaints.” Id. at 216. As such, failure to exhaust is not subject to screening

for sua sponte dismissal by the district court. See id. at 214 (“There is . . . no

reason to suppose that the normal pleading rules have to be altered to facilitate

judicial screening of complaints specifically for failure to exhaust.”).

Although the district court may not screen a prisoner’s complaint for

failure to plead exhaustion, “[a] complaint is subject to dismissal for failure to

state a claim if the allegations, taken as true, show the plaintiff is not entitled

to relief.” Id. at 215. One way in which a complaint may show the inmate is not

entitled to relief is if it alleges facts that clearly foreclose exhaustion. In such

a case, the district court may sua sponte dismiss the complaint for failure to

state a claim. See Carbe, 492 F.3d at 328 (holding that “[u]nder Jones, . . . a

court can dismiss a case prior to service on defendants for failure to state a

claim, predicated on failure to exhaust, if the complaint itself makes clear that

the prisoner failed to exhaust”); United States v. Del Toro-Alejandre, 489 F.3d

721, 723 (5th Cir. 2007) (holding that Jones “recognized that the usual PLRA

practice would permit a district court to dismiss sua sponte an inmate’s

complaint for failure to exhaust in the rare instance where the prisoner’s failure

to exhaust appeared on the face of his complaint”). Notably, however, “a district

court cannot by local rule sidestep Jones by requiring inmates to affirmatively

plead exhaustion.” Carbe, 492 F.3d at 328; see also id. (holding that Jones

“make[s] clear that a court cannot in a [Spears v. McCotter, 766 F.2d 179 (5th

Cir. 1985)] hearing before a responsive pleading is filed resolve the question of

exhaustion”). Typically, a defensive pleading asserting the affirmative defense

of failure to exhaust is required.

Here,the district courtfound that Torns failed to complete MDOC’s threestep ARP, mandating dismissal under this court’s precedent. See Wright v.
No. 07-60256

3

In addition, the record does not contain the version of the ARP applicable to Torns at

the time and place of his grievance or any documentation ofthe specific procedures that MDOC

required Torns to follow. For example, even assuming that the three-step process outlined in

Gates applied and that Torns’s only request was his first one, the court is in no position to

resolve whether MDOC allowed an inmate to proceed in the ARP if it refused to process his

grievance as a step one request or whether MDOC made available to Torns any envelopes,

forms, and instructions that he was required to use in pursuit of step two and step three

6

Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001) (holding that plaintiff’s

administrative remedies are not exhausted unless pursued through conclusion

of multi-step administrative procedure). The district court’s decision predated

both Jones and Carbe, and neither this court nor the district court was

clairvoyant. See Carbe, 492 F.3d at 327 & n.6 (noting earlier Fifth Circuit

precedent permitting sua sponte dismissal for failure to exhaust). So, the

district court erred. Jones undermines the district court’s assertion that its job

is to ensure exhaustion of administrative remedies through early-stage screening

under § 1915A. See 549 U.S. at 215. Moreover, under Carbe, the district court

cannot sidestep Jones by requiring plaintiff to affirmatively plead exhaustion.

492 F.3d at 328. Thus, the district court erred by using Question 7 of the

prisoner’s form complaint to prompt Torns for information about his exhaustion

of administrative remedies and by relying on the elicited information.

Whether the district court nonetheless properly dismissed the complaint

here thus depends on whether this case qualifies as one of those rare instances

where the prisoner’s failure to exhaust administrative remedies is clear on the

face of the remainder of the complaint. This is not such a case; the remainder

of Torns’s complaint does not clearly show a failure to exhaust the ARP. It does

not mention the ARP other than to allege that defendants failed to process his

request or provide a response. Although the district court concluded that the

ARP required Torns to complete all three steps, even without receiving a

response from anyone at MDOC, the remainder of the complaint does not

provide the factual basis for this conclusion.3
No. 07-60256

appeals. In absence of such information, the preferable course is to allow MDOC to produce

such evidence if it chooses to raise the affirmative defense.

7

Under Jones and Carbe, where the complaint does not clearly show that

the inmate failed to exhaust administrative remedies, it is defendants’ job to

raise and prove such an affirmative defense. This is particularly true here,

where defendants possess the necessary information to assure the district court

that additional administrative remedies were available to Torns or confirm that

they were not. Thus, the proper procedure in this case is to serve defendants

and allow them to raise the defense or waive it. The district court erred when

it sua sponte dismissed Torns’s complaint.

III.

Because failure to exhaust is an affirmative defense and it is not clear

from the face of Torns’s complaint whether he exhausted available

administrative procedures, we VACATE and REMAND for service of defendants

and subsequent proceedings.