[ PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 20

- 12605

____________________

HAMZA MALDONADO, JAMES HILL,
Plaintiffs

- Appellants,

versus BAKER COUNTY SHERIFF'S OFFICE, SCOTTY RHODEN, EVELYN BLUE, Captain, JAMES MESSER,

Defendants

- Appellees. USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 1 of 162 Opinion of the Court 20

- 12605

____________________ Appeal from the United States District Court for the Middle District of Florida
D.C. Docket No. 3:20

- cv

- 00193

- HLA

- PDB

____________________

Before N EWSOM , B RANCH , and L AGOA , Circuit Judges.

L AGOA , Circuit Judge: Hamza Maldonado and James Hill filed a complaint against the Defendants in Florida state court, asserting violations of their federal and state constitutional rights to the free exercise of their rel igion. After Maldonado and Hill applied for and were granted in forma pauperis status by the state court, the Defendants

— the Baker County Sheriff’s Office and Scotty Rhoden, Evelyn Blue, and James Messer, three employees of that office

— removed the case to federal court and paid the requisite federal filing fee required under 28 U.S.C. § 1914(a). After removal, Maldonado and Hill did not seek in forma pauperis status in federal court. The district court subsequently dismissed Maldonado’s claims under 28 U .S.C. § 1915(g)

— the three

- strikes provision of the Prison Litigation Reform Act (“PLRA”)

— and dismissed Hill’s claims for failure to exhaust administrative remedies. USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 2 of 1620

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As to Maldonado, this appeal requires us to determine whether a case commenced in state c ourt by a prisoner and removed by a defendant to federal court

— with the defendant paying the filing fee after removal

— is subject to dismissal under 28 U.S.C. § 1915(g). We hold that it is not.And as to Hill, we hold that the district court erred in dismissing his claims for failure to exhaust his administrative remedies. We therefore reverse the district court’s dismissal of Maldonado and Hill’s claims.

I. FACTUAL AND PROCEDURAL BACKGROUND Both Maldonado and Hill were prisoners detained in the Baker Cou nty Detention Center when they filed their pro se 1 prisoner civil rights action in Florida state court. Maldonado and Hill allege that the Defendants violated their federal and state constitutional rights to the free exercise of their Muslim faith by pre venting them from attending Jummah prayer services. 2 In state court, Maldonado and Hill both filed applications to proceed in forma pauperis , which the state court granted.

1 Although Maldonado and Hi ll sought appointment of counsel on multiple occasions, they proceeded pro se in the district court. They subsequently obtained pro bono counsel for this appeal. We thank Mr. Amir H. Ali for accepting this case and for his thoughtful presentation of the issues raised on appeal.

2 Jummah is “a weekly Muslim congregational service” that is “commanded by the Koran and must be held every Friday after the sun reaches its zenith.” O’Lone v. Estate of Shabazz , 482 U.S. 342, 345 (1987); see also Greenhill v. USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 3 of 164 Opinion of the Court 20

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Maldonado is a frequent pro se prisoner litigant. At the time this case was bei ng considered by the district court, Maldonado had nine different civil actions pending against various employees ofthe Baker County Sheriff’s Office. Prior to the filing of those actions, Maldonado had filed four other civil rights actions, each of whic h was filed in federal court in the first instance, and three of which were the cases relied on by the district court in determining that Maldonado was a three

- strike litigant under 28 U.S.C. § 1915(g). Indeed, it is undisputed that Maldonado has three st rikes against him under § 1915(g).
When the Defendants removed this case to the United States District Court for the Middle District of Florida, the Defendants, as required by 28 U.S.C. § 1914(a), paid the full federal filing fee. Following removal, Maldo nado and Hill did not apply for in forma pauperis status in federal court under 28 U.S.C. § 1915. The Defendants moved to dismiss the case, and the district court granted the motion on two grounds. As to Maldonado, the district court dismissed Maldonado ’s claims based on his three

strike litigant status under 28 U.S.C. § 1915(g). As to Hill, the district court dismissed Hill’s claims based on his failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a). This timely appeal ensued.

Clarke, 944 F.3d 243, 248 (4th Cir. 2019) (observing that Jummah prayer “constitutes one of the central practices of Islam”). USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 4 of 1620

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II. STANDARD OF REVIEW

We review de novo a district court’s interpretation of 28 U.S.C. § 1915(g). Daker v. Comm’r, Ga. Dep’t of Corr. , 820 F.3d 1278, 1283 (11th Cir. 2016). We likewise review de novo whethera plaintiff has exhausted administrative remedies within the meaning of 42 U.S.C. § 1997e(a). Johnson v. Meadows , 418 F.3d 1152, 1155 (11th Cir. 2005). “We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss for failur e to state a claim, accepting the complaint’s allegations as true and construing them in the light most favorable to the plaintiff.” Chaparro v. Carnival Corp. , 693 F.3d 1333, 1335 (11th Cir. 2012) (quoting Cinotto v. Delta Air Lines, Inc. , 674 F.3d 1285, 1291 (11th Cir. 2012)).

III. ANALYSIS There are three issues at the heart of this appeal: (1) whether Maldonado’s claims are now moot; (2) whether the district court erred in dismissing Maldonado’s claims under the three

- strikes rule pursuant to 28 U.S.C. § 1915(g); and (3) whether the district courterred in dismissing Hill’s claims for failure to exhaust administrative remedies. We address each issue in turn.

A. Whether Maldonado’s Claims are Moot
The Defendants argue that Maldonado’s claims are m oot. Specifically, the Defendants argue that 42 U.S.C. § 1997e(e) precludes Maldonado from seeking compensatory and punitive damages because he failed to allege any physical injury arising from his USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 5 of 166 Opinion of the Court 20

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detention. 3 Because mootness is a threshold jurisdictio nal issue, we address this argument first. We conclude that Maldonado’s claims are not moot. First, § 1997e(e) states that: No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emo tional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act. Section 1997e(e), however, is not applicable in this case because, as discussed below in Part III.B

. , “[n]o Federal civil action [was] brou ght by” Maldonado. See Harris v. Garner , 216 F.3d 970, 973

– 76 (11th Cir. 2000) (en banc) (explaining that , in the context of § 1997e(e), the bringing of a suit is defined as the commencing of the suit, but not the maintaining of the suit) . Indeed, “§ 1997e(e) does not apply to prisoner lawsuits unrelated to prison conditions filed in state court based solely on state law and removed by defendants to federal court based on diversity jurisdiction.” Mitchell v. Brown & Williamson Tobacco Corp. , 294 F.3d 1 309, 1317 (11th Cir. 2002)

.

3 The Defendants also assert that, even though Maldonado did not request injunctive relief, the district court prope rly dismissed any potential claim for injunctive relief as moot because Maldonado was no longer confined at the Baker County Detention Center. Because Maldonado does not challenge that part of the district court’s ruling on appeal, however, we do not addr ess the merits of that argument in this opinion. USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 6 of 1620

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Second, even if § 1997e(e) applied to Maldonado, the Defendants’ argument is foreclosed by this Court’s en banc decision
in Hoever v. Marks , 993 F.3d 1353, 1357

– 58 (11th Cir. 2021). In
Hoever , a state prisoner filed a § 1983 ci vil rights action against various prison officials, alleging a First Amendment retaliation claimand a Fourteenth Amendment due process claim and seeking injunctive relief and compensatory, punitive, and nominal damages. Id. at 1356. The district court i n Hoever, based on our earlier interpretation of § 1997e(e), dismissed the First Amendment claim
in sofar as it sought compensatory and punitive damages because the plaintiff failed to show a physical injury. Id. This Court, sitting en banc , receded from that earlier interpretation and held that theplain text of “§ 1997e(e) permits punitive damages absent a showing of physical injury.” Thus, pursuant to Hoever , Maldonado can assert a claim for punitive damages absent an allegation of physical injury.

B

. The Three

- Strikes Rule Turning to the merits, Maldonado argues that the district court erred in dismissing his claims under 28 U.S.C. § 1915(g) based on his classification as a three

- strikes litigant because he did not bring his action in federal court b ut instead filed it in state court.
In order to determine whether the district court’s dismissal was proper under § 1915(g)’s three

- strikes rule, we begin “‘with the language of the statute itself,’ giving ‘effect to the plain terms of the statute.’” Unit ed States v. Henco Holding Corp. , 985 F.3d 1290, 1297 (11th Cir. 2021) (quoting In re Valone , 784 F.3d 1398, 1402 USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 7 of 168 Opinion of the Court 20

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(11th Cir. 2015)). Section 1915(g)

— the three strikes provision of the PLRA

— states as follows: In no event shall a prisoner bring a civil acti on or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon whichrelief may be granted, unless the prisoner is under imminent danger of serious physical injury.(emphasis added). The two operative terms in the statute for purposes of this case are “bring a civil action” and “under this section.”To “bring” an action has long meant to initiate or commence it, not to prosecute or to continue it. See Black’s Law Dictionary 192 (6th ed. 1990) (“To ‘bring’ an action or suit has a settled

c ustomary meaning at law, and refers to the initiation of legal proceedings in a suit.”). Indeed, the Supreme Court has repeatedly held that to “bring” an action means to commence it. See, e.g.
, Hoffman v. Blaski , 363 U.S. 335, 344 (1960) (holding that th e language of 28 U.S.C. § 1404(a)

— which permits the transfer of “any civil action to any other district or division where it might have been brought ”

— unambiguously means at the time the lawsuit was filed); Goldenberg v. Murphy , 108 U.S. 162, 163 (1883) (de termining that a legislative requirement that an action be “brought within USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 8 of 1620

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90 days” means it must be commenced in that time period and finding the terms “brought” and “commenced” as meaning the same thing and are used interchangeably).
And this Court lik ewise has held the same, including where “bring” or “brought” are used in other sections of the PLRA. See,
e.g. , Harris , 216 F.3d at 974 (finding that the text “[n]o federal civil action may be brought by a prisoner confined” in § 1997e(e) means that the statute’s bar on monetary relief absent a showing of physical injury applies only to actions that were commenced at the time that the plaintiff was confined in prison); Miller v. Tanner , 196 F.3d 1190, 1193 (11th Cir.1999) (determining that “brought” in § 1997e(a) means the filing of the action and holding that “[a]n inmate incarcerated in a state prison, thus, must first comply with thegrievance procedures established by the state department of corrections before filing a federal lawsuit under section 198 3.”); EEOC v. E. Airlines, Inc. , 736 F.2d 635, 639

– 40 (11th Cir. 1984) (determining that the plain meaning of “to bring” a private action under § 7(c)(1) of ADEA means “only ‘to commence,’ rather than to ‘commence or maintain’”). “This long history of est ablished meaning is important, because we readily presume that Congress knows the settled legal definition of the words it uses, and uses them in the settled sense.”
Harris , 216 F.3d at 974; see also Comm’r v. Keystone Consol. Industries, Inc. , 508 U.S. 1 52, 159 (1993) (explaining that Congress ispresumed to be aware of settled judicial and administrative interpretations of words when it writes them into a statute). As such, USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 9 of 1610 Opinion of the Court 20

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to “bring” or to have “brought” an action in the context of the PLRA unambiguous ly means to file or commence the action. Indeed, “brought” and “commenced” mean the same thing and are used interchangeably. With this definition of to “bring” an action in mind, we turn to the second operative phrase in the statute

— “under this section.” That phrase unambiguously refers to § 1915 itself. To bring an action under § 1915, the prisoner must seek and be granted the ability to proceed in forma pauperis in a “court of the United States” by submitting “an affidavit that includes a statement of all assets such [person] possesses” to prove indigency. See 28 U.S.C. § 1915(a). As defined for purposes of Title 28, “[t]he term ‘court of the United States’ includes the Supreme Court of the United States, courts of appeals, [and] district courts.” 28 U.S.C. § 451. Significantly, the statutory definition does not include state courts. Thus, the plain meaning of § 1915(g) is clear

— it applies only to actions commenced by a prisoner in federal court who seeks and is granted in forma pauperis status in t hat court. Maldonado commenced his action in state court; the fact that the case proceeded in federal court was a result of the Defendants’ removal, not any affirmative act on Maldonado’s part. Moreover, Maldonado never sought in forma pauperis status i n federalcourt after removal. As a result, Maldonado did not “bring” an action “under this section.”
The Defendants advance a number of policy

- based arguments in support of the district court’s dismissal of Maldonado’s USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 10 of 1620

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claims. But applying § 1915(g)’s prohibition to the facts in this case would require us to override the statutory language. “ Language sets limits. ” See Hill v. Madison C ounty , 983 F.3d 904, 907 (7th Cir. 2020). The statutory language Congress chose when it enacted § 1915(g) establishe s a specific rule, not a generalized standard to be elaborated on later by judges. Id. And courts are not free to turn such statutory rules into standards. See Rodriguez v. United
States , 480 U.S. 522, 525

– 26 (1987) (“[N]o legislation pursues its
purpos es at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice

— and it frustrates rather than effectuates legislative intent simplistically to assume tha t whatever furthers the statute’s primary objective must be the law.”). Instead, it is the job of the courts “to apply faithfully the law Congress has written,” see Henson v. Santander Consumer USA Inc. , 137 S. Ct. 1718, 1725 (2017), and policy arguments that § 1915(g) should apply to a removed case like the one here must be directed to Congress, not to the judicial branch. Moreover, even if we were to take into consideration the policy goals underlying § 1915(g), those goals are not subverted by our conclusion that Maldonado’s claims are not barred by the three

- strikes provision. Section 1915(g) limits the number of frivolo us suits that prisoners can bring in federal court, without at least paying something for the exercise. See Skinner v. Switzer , 562 U.S. 521, 535 (2011); Hill , 983 F.3d at 907. As an initial point, the federal filing fee was paid in full here by the Defe ndants who removed the USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 11 of 1612 Opinion of the Court 20

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case, so the federal courts are not burdened by an action without payment. Moreover, the three

- strikes rule was intended to deter prisoners from filing meritless lawsuits in federal court, see Skinner , 562 U.S. at 535, and that goal is not offended by Maldonado pursuing his claims in Florida state court. Indeed, it was the Defendants, not Maldonado, who chose the federal forum. Finally, the fact that § 1915(g) does not prohibit Maldonado from proceeding here does not leave the Defendants without recourse against frivolous claims. Instead, “[c]ourts have ampleother means to penalize the pursuit of frivolous suits that are removed to federal court.” Hill , 983 F.3d at 907. For example, Rule 11 of the Federal Rules of Civil Procedu re applies to all papers filed in federal court, including those filed pro se. Admittedly, disposition of a prisoner’s frivolous claim brought may be more efficient when § 1915(g) applies. But that is no reason to apply the three strikes provisions beyon d the boundaries of its statutory language. The plain and ordinary meaning of § 1915(g) is clear

— it only applies to cases commenced in federal court by a prisoner who sought and was granted in forma pauperis status in that court. 4 As

4 With this holding, we join every other circuit to address the applicability of § 1915(g)’s three

- strikes rule to cases initiated by a prisoner in state court but later removed to federal court by the def endants. Each of these courts has concluded that § 1915(g) does not apply to such cases. See Woodson v. McCollum , 875 F.3d 1304 (10th Cir. 2017) (reversing dismissal under § 1915(g) of a case virtually identical to the one here and finding that, based on the plain meaning of the text, § 1915(g) did not apply); Dooley v. Wetzel , 957 F.3d 366, 377 n.9 (3d Cir. 2020) (holding that an action brought or submitted to the state USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 12 of 1620

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such, § 1915(g) does not apply to actions, like the one here, brought by a three

- strikes litigant in state court that was removed to federal court by another party. We therefore reverse the district court’s dismissal of Maldonado’s claims.

C. Exhaustion Turning to Hill’s claims, Hill argues that the district court erred by dismissing his claims for failure to exhaust administrative remedies. In dismissing Hill’s claim, the district court determined that it was clear from the face of the complaint that an administrative grievance procedure was available to Hill

—based on Maldonado’s separate allegation that Maldonado pursued that procedure

— and that Hill had not exhausted those remedies

— based on Hill’s allegation in the complaint that “[t]here is no grievanc e remedy for Mr. Hill because the denial at issue in this case is absolute.” The district court failed, however, to follow the two

- step inquiry related to exhaustion established by our precedent.

court, not to “a court of the United States,” does not fall within the scope of § 191 5(g)); Hill v. Madison County. , 983 F.3d 904, 906 (7th Cir. 2020) (findingthat “§ 1915(g) does not apply to complaints brought to federal courts by defendants” and holding that a case filed in state court, removed to federal court, and dismissed on a list ed ground does not count as a “strike” because the plaintiff did not “bring” his suit in a court of the United States); Harris v. Magnum
,863 F.3d 1133 (9th Cir. 2017) (finding that § 1915(g) “does not prevent an indigent prisoner

- plaintiff with three stri kes from proceeding in a case that someone else has filed in federal court”). USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 13 of 1614 Opinion of the Court 20

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The PLRA forbids suits by prisoners “with respect to pris onconditions” under any federal law, including the United States Constitution, “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This statutory exhaustion requirement is a mandatory pre

- condition to suit. Alexan der v. Hawk , 159 F.3d 1321, 1325

– 26 (11th Cir. 1998). As used in § 1997e(a), the word “remedies” “refers to the administrative process, not the particular forms of relief occurring at the end of that process.” Varner v. Shepard , 11 F.4th 1252, 1262 (11th Cir. 2021) (citing Booth v. Churner , 532 U.S. 731, 738

– 39 (2001)). But if remedies are unavailable to a prisoner, they need not be exhausted. Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008). Exhaustion of administrative remedies is an affirma tive defense that must be proved by the defendants; a plaintiff need not “specially plead or demonstrate exhaustion in [his] complaint.” Jones v. Bock , 549 U.S. 199, 217 (2007).

In Turner , this Court established a two

- step process for resolving motions to dismiss for failure to exhaust: (1) looking to the defendant’s motion and the plaintiff’s response, the district court assesses whether dismissal is proper under the plaintiff’s version of the facts; and (2) if dismissal is inappropriate after step one, thecourt makes “specific findings in order to resolve the disputed factual issues related to exhaustion.” 541 F.3d at 1082. Under step one, when determining exhaustion on the face of the complaint, the court must “accept allegations in a complaint as t rue and construe them in the light most favorable to the plaintiff.” Bingham v. USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 14 of 1620

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Thomas , 654 F.3d 1171, 1175 (11th Cir. 2011). If step two is reached, the district court’s findings must be specific enough to provide this Court with an opportunity to condu ct meaningful appellate review. Danley v. Allen , 480 F.3d 1090, 1092 (11th Cir. 2007). If a district court fails to properly apply the two

- step Turner test, remand is generally appropriate. See Whatley v. Warden,
Ware State Prison , 802 F.3d 1205, 1213 ( 11th Cir. 2015). Here, Hill’s statement in the complaint that “[t]here is no grievance remedy for [him] because the denial at issue in this case is absolute” is ambiguous and lends itself to various interpretations. It certainly could, as the Defendants assert, refer to the administrative process, i.e. , the legal meaning of “remedies” for purposes of the statutory exhaustion requirement. But taking that pro se allegation in the light most favorable to Hill, as this Court must, it could plausibly refer t o the relief available to Hill a t the end of the administrative process, i.e. , that Hill was met with an “absolute”denial of his ability to attend Jummah prayer services after attempting to exhaust the administrative processes. And in his pro se response to the motion to dismiss, Hill stated that the Defendants “misconstrued the meaning” of that statement and specifically asserted that he had in fact “exhausted all remedies just like Mr. Maldonado.” At step one, then, dismissal was not appropriate under Hill’s version of the facts. The district court should then have proceeded to step two and made “specific findings in order to resolve the disputed factual issues related to exhaustion.” Instead, the district court’s order on USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 15 of 1616 Opinion of the Court 20

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this issue fails to address Hill’s response, in which he states that he did in fact exhaust administrati ve remedies, and fails to provide any “specific findings” for this Court to meaningfully review how the district court resolved the disputed facts. Thus, the district court’s order appears to adopt the Defendants’ version of the facts and their interpreta tion of Hill’s statements without mention or reference to Hill’s version

— even though Hill’s version must, at this procedural stage, be taken as true. Because the district court failed to follow Turner ’s two

- step process, remand is appropriate to allow the district court to make these specific findings in the first instance. See Whatley , 802 F.3d at 1213. We therefore reverse the district court’s dismissal of Hill’s claims.

IV. CONCLUSIONFor the foregoing reasons, we reverse the district court’s dismissal of both Maldonado’s and Hill’s claims and remand for further proceedings.

REVERSED AND REMANDED. USCA11 Case: 20-12605 Date Filed: 01/25/2022 Page: 16 of 16