[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13357

Non-Argument Calendar

____________________

DELROY T. BOOTH,

Plaintiff-Appellant,

versus

LIEUTENANT R. ALLEN,

Correctional Officer of Georgia Department of Corrections,

SERGEANT J. SMITH,

Correctional Officer of Georgia Department of Corrections,

COMMISSIONER, GEORGIA DEPARTMENT OF

CORRECTIONS,

WARDEN, HAYS STATE PRISON,

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2 Opinion of the Court 20-13357

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 4:18-cv-00069-HLM

____________________

Before WILSON, JORDAN, and GRANT, Circuit Judges.

PER CURIAM: 

Delroy T. Booth, proceeding pro se, appeals the dismissal of 

his complaint for failure to exhaust administrative remedies. On 

appeal, he argues that he was not required to exhaust administrative remedies because those remedies were unavailable to him. 

The defendants moved to dismiss the appeal for lack of jurisdiction 

because it was not timely filed. After careful review, we deny the 

defendants’ motion to dismiss for lack of jurisdiction. However, 

we affirm the district court’s dismissal of Booth’s complaint. The

district court did not err in finding that the prison’s grievance process was available to Booth, but that he failed to exhaust his administrative remedies by filing a timely grievance. 

I.

In March 2018, Booth initiated this action by filing a motion 

to proceed in forma pauperis. He attached to the motion his 

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20-13357 Opinion of the Court 3

complaint against Gregory Dozier, commissioner of the Department of Corrections (DOC); Kevin Sprayberry, the warden of Hays 

State Prison; a corrections officer identified as R. Allen; and an officer identified as J. Smith. Booth’s complaint alleged that Smith 

and Allen used excessive force against him in violation of the 

Eighth Amendment during an incident on May 16, 2017, in which 

they pepper sprayed him and refused him medical care. He made 

several additional allegations, including that the prison staff refused 

him medical treatment after he was exposed to parasitic insects. 

With his motion and complaint, Booth attached a grievance form 

dated January 5, 2018. This document had a handwritten note at 

the top reading “Emergency grievance.” He also attached a response dated January 16, 2018, which indicated that the grievance 

was rejected as untimely. 

A magistrate judge submitted a report and recommendation 

that the case be dismissed without prejudice because Booth failed 

to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA). The magistrate judge concluded that 

the allegations in the complaint and the attached documents 

showed that Booth had failed to properly exhaust his administrative remedies because his grievance was not filed within the 

timeframe required by the DOC’s grievance procedures. 

Booth submitted a document styled “Motion to Alter the 

Judgment” in which he objected to the magistrate’s report and recommendation. He argued that prison staff thwarted his ability to 

file grievances and thus the grievance process was unavailable to 

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4 Opinion of the Court 20-13357

him. The district court found, however, that “nothing in [Booth’s] 

Objections warrants rejecting the Final Report and Recommendation.” Booth filed a notice of appeal, motion for appointment of 

counsel, and an application to proceed in forma pauperis. Finding 

that Booth was indigent and that the appeal was taken in good 

faith, the district court granted his motion to proceed in forma pauperis but denied appointment of counsel. 

On appeal, we affirmed in part, vacated in part, and remanded in part. See Booth v. Allen, 758 F. App’x 899, 902 (11th 

Cir. 2019) (per curiam). As to Booth’s claims regarding harm 

caused by an infestation of parasites, we affirmed the conclusion 

that he had not properly exhausted his available remedies because 

he did not plead that issue in his grievance. Id. at 901. As to Booth’s 

claims that were included on the grievance form, we vacated and 

remanded, holding that the district court failed to consider Booth’s 

claim that the grievance process was unavailable to him. Id. at 902. 

We directed that, on remand, the district court should consider 

Booth’s remaining claims. Id. 

On remand, the defendants moved for dismissal based on 

Booth’s failure to exhaust administrative remedies. They submitted a declaration from Alisa Hammock Evans, the deputy warden 

of care and treatment at Hays. She explained that the grievance 

procedure begins when an inmate submits a grievance form. The 

form must be submitted within ten days from the date the inmate

“knew, or should have known, of the facts giving rise to the grievance,” although untimely filing can be excused for “good cause.” 

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There is no requirement that any related disciplinary report be resolved before an inmate can file a grievance. After a grievance is 

accepted, there is an investigation and a report made by staff, which 

is reviewed by the grievance coordinator, who then makes a recommendation to the warden. The warden or their designee issues 

a written decision which is given to the inmate. If the inmate disagrees with the decision or does not receive a decision within the 

required time, the inmate may file an appeal. 

The defendants also attached to their motion to dismiss a 

history of the grievances filed by Booth, showing that he filed grievances on June 14, 2017, November 30, 2019, and December 29, 

2017. Finally, the defendants attached the decision rejecting 

Booth’s appeal of his January 5, 2018 grievance. The decision was 

dated March 8, 2018, and included Booth’s signature acknowledging receipt on March 29, 2018. 

Booth opposed the defendants’ motion, arguing again that 

he did not have access to the grievance process. He argued that 

grievance forms were not available to him, and that the prison had 

a policy of withholding disciplinary reports for more than ten days 

in order to prevent prisoners from filing grievances related to those 

reports.

The magistrate judge recommended that the court dismiss 

the case for failure to exhaust administrative remedies. Based on 

Evans’s declaration—and based on the fact that Booth filed three 

grievances between the incident at issue here and the filing of his 

grievance related to it—the magistrate judge rejected the argument 

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that grievance forms were unavailable to Booth. Further, relying 

on Evans’s declaration, the magistrate judge found that disciplinary 

reports were not required to file a grievance, and thus prison officials could not have thwarted Booth’s access to the grievance process by withholding those reports. The district court adopted the 

magistrate’s report and recommendation and dismissed the case, 

entering judgment on May 6, 2020. 

On June 2, 2020, the district court received a letter from 

Booth dated May 26, 2020, and postmarked May 28, 2020, stating 

that he was “trying to find out if the ruling on [his] Notice of Appeal 

and in forma pauperis paperwork was granted so [he] can move on 

to the next phase in this civil action which would be the [C]ourt of 

Appeals for the Eleventh Circuit.” On August 31, 2020, this court 

received Booth’s notice of appeal, a motion to proceed on appeal 

in forma pauperis, and his brief. The notice of appeal, which was 

forwarded to the district court, was dated August 26, 2020, and 

postmarked August 28, 2020. The district court construed the letter as a motion for an extension of time to file a notice of appeal 

under Federal Rule of Appellate Procedure 4(a)(5) and granted the 

motion. It also granted his motion to appeal in forma pauperis. 

II.

On appeal, the defendants moved to dismiss the appeal for 

lack of jurisdiction, arguing that Booth’s notice of appeal is untimely. Timely filing of a notice of appeal in a civil case is jurisdictional. See Green v. Drug Enf’t Admin., 606 F.3d 1296, 1300 (11th 

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20-13357 Opinion of the Court 7

Cir. 2010). Therefore, we consider this argument before turning to 

the merits of Booth’s appeal. 

To be timely, notice of appeal must be filed within 30 days 

of the entry of the order or judgment appealed from. 28 U.S.C. 

§ 2107(a). The time for filing can be extended as provided in 

Rule 4(a) of the Federal Rules of Appellate Procedure. Green, 

606 F.3d at 1301–02. Rule 4(a)(5) allows the district court to extend 

the time for filing an additional 30 days beyond the time otherwise 

allowed if (1) a party so moves within 30 days after the expiration 

of the time allowed by Rule 4(a)(1), and (2) that party shows excusable neglect or good cause.

Rule 3 identifies the form and contents required of a notice 

of appeal. A document not strictly compliant with the requirements of Rule 3 may still be construed as a notice of appeal where 

it (1) serves as the functional equivalent of a notice of appeal and 

(2) makes it “objectively clear that a party intend[s] to appeal.” 

Rinaldo v. Corbett, 256 F.3d 1276, 1278–79 (11th Cir. 2001) (quoting Fed. R. App. P. 3(c), 1993 Advisory Committee Notes). 

A document is the functional equivalent of a notice of appeal 

where it satisfies the three-part requirement of Rule 3(c)(1). Id. 

Under that subsection, a notice of appeal must specify (1) the party 

taking the appeal, (2) the judgment or order appealed from, and 

(3) the court to which appeal is taken. Fed. R. App. P. 3(c)(1). The 

rule’s requirements are to be liberally construed. Rinaldo, 256 F.3d 

at 1278. “[I]mperfections in noticing an appeal should not be fatal 

where no genuine doubt exists about who is appealing, from what 

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judgment, to which appellate court.” Becker v. Montgomery, 

532 U.S. 757, 767 (2001). 

If the document is the functional equivalent of a notice of 

appeal, we next determine whether the document makes it “objectively clear that a party intended to appeal.” Rinaldo, 256 F.3d 

at 1279. This inquiry is objective in that it turns on the notice provided by the document, and not on the litigant’s motivation in filing it. Id. We look to the record, including the parties’ briefs, to 

determine the order that an appellant intended to appeal. Nichols 

v. Ala. State Bar, 815 F.3d 726, 731 (11th Cir. 2016) (per curiam).

Here, we have jurisdiction because Booth’s letter to the district court, dated May 26, 2020, can be construed as a timely notice 

of appeal. On the first prong of the inquiry, the notice is the functional equivalent of a compliant notice of appeal. Booth’s letter, on 

its face, includes the party appealing and the court appealed to. It 

does not indicate the order or judgment appealed from. But given 

its timing and context, there is “no genuine doubt” as to what order 

Booth intended to appeal. See Becker, 532 U.S. at 767. He intended to appeal the judgment immediately preceding the letter in 

the docket, which disposed of Booth’s case, and which was entered 

fewer than 30 days before Booth sent the letter. See id.

Regarding the second prong, the defendants argue that because Booth’s letter references his notice of appeal, he cannot have 

intended the letter itself to constitute a notice of appeal. But the 

inquiry is not whether Booth subjectively intended the document 

to be a notice of appeal. Rather, the question is whether the 

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document makes it objectively clear that he intended to appeal. 

Rinaldo, 256 F.3d at 1279. Booth’s letter inquired whether the district court had ruled on his “notice of appeal and in forma pauperis

paperwork . . . so [he could] move on to the next phase . . . which 

would be the [C]ourt of Appeals for the Eleventh Circuit.” This 

language clearly indicates Booth’s intent to appeal to this court. 

Therefore, we have jurisdiction.

III.

We review de novo a district court’s application of the 

PLRA’s requirement that prisoners exhaust their available administrative remedies. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th 

Cir. 2005). However, when the district court, in order to determine 

whether a plaintiff exhausted administrative remedies, has to make 

findings of fact based on information outside the complaint, we review those findings for clear error. Bryant v. Rich, 

530 F.3d 1368, 1377 (11th Cir. 2008). A factual finding is clearly erroneous if it leaves us with the definite and firm conviction that a 

mistake has been made. Id. If the district court’s account of the 

evidence is plausible in light of the record in its entirety, it will not 

be reversed. Anderson v. City of Bessemer, 470 U.S. 564, 573–74 

(1985).

The PLRA prohibits prison inmates from bringing cases in 

the federal courts under 42 U.S.C. § 1983 “with respect to prison 

conditions . . . until such administrative remedies as are available 

are exhausted.” Id. § 1997e(a). Proper exhaustion of available remedies is a requirement of the statute which the district court has no 

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discretion to waive. Johnson, 418 F.3d at 1155. A grievance

properly rejected by prison officials as untimely does not satisfy the 

requirement. Id. at 1157. However, an administrative remedy 

must be available to the inmate for it to be exhausted, and to be 

available, the remedy “must be capable of use for the accomplishment of its purpose.” Turner v. Burnside, 541 F.3d 1077, 1084 

(11th Cir. 2008) (internal quotation mark omitted and alteration 

adopted). Remedies that rational inmates cannot be expected to 

use are not available. Id. If no administrative remedy is available 

to a prisoner, the exhaustion requirement is lifted. Id. at 1085. 

Applying these standards here, the district court did not err 

in accepting the magistrate judge’s conclusion that Booth failed to 

exhaust available administrative remedies before filing his complaint. As to the availability of grievance forms, the magistrate 

judge noted that Booth filed three grievances unrelated to this action between the time that the incident at issue occurred and the 

date he filed the grievance related to it. Based on this and other 

evidence, the magistrate judge found—and the district court 

agreed—that grievance forms were in fact available to him. Because Booth offered no evidence to rebut this finding, nor to distinguish the grievances he was able to file from the one at issue here, 

we cannot say the finding was clearly erroneous.

As to the purported policy of intentionally withholding disciplinary reports for more than the ten-day period in which a prisoner may file a grievance, Booth concedes in his brief that he received the relevant disciplinary report at the latest in August 2017. 

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Thus, even assuming receipt of that report was required before he 

could file a grievance, his grievance filed in January 2018 was still 

outside the ten days allowed by DOC policy.

Finally, Booth argues that prison officials’ failure to follow 

the DOC’s procedures relating to emergency grievances rendered 

the grievance process unavailable to him. Because Booth failed to 

raise this argument in the district court, we do not address it. Sterling Fin. Inv. Grp., Inc. v. Hammer, 393 F.3d 1223, 1226 (11th Cir. 

2004) (holding that “arguments not presented in the district court 

will not be considered for the first time on appeal”).

In conclusion, because Booth has failed to show error by the 

district court on any issue presented, we affirm.

AFFIRMED. 

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