[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-15036

Non-Argument Calendar

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D.C. Docket No. 1:10-cv-00133-WLS-TQL

PAUL G. BETTENCOURT,

Plaintiff-Appellant,

versus

BRIAN OWENS, et al., 

Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Georgia

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(October 2, 2013)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM: 

Paul Bettencourt, an inmate at a state prison in Autry, Georgia, filed a pro se

42 U.S.C. § 1983 complaint against various officials of the Georgia Department of 

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Corrections who work at the prison. After the district court dismissed his complaint 

for not exhausting his administrative remedies and for failing to state a claim under 

§ 1983, Mr. Bettencourt filed this timely appeal. Upon review of the record and the 

parties’ briefs, we affirm the district court’s decision in part, and vacate and 

remand in part.

I.

Mr. Bettencourt alleged the following facts in his pro se complaint. 

On August 1, 2009, he wrote a letter to Chief Counselor Benjie Nobles 

explaining that he was being “sexually harassed” and needed to be placed in 

protective custody or moved to a different building. A few days later, he wrote to 

Deputy Warden of Security Marty Allen and sent a second letter to Mr. Nobles,

again explaining that he was being “sexually harassed” and that he needed to be 

placed in protective custody or transferred.

1 Mr. Bettencourt then wrote to mental 

health counselor Kim Cleveland asking her “to talk to the chief counselor Mr. 

Nobles” about his concerns. On August 18, 2009, Mr. Bettencourt sent another

round of letters to Mr. Allen and Mr. Nobles complaining of “sexual harassment.”

He also sent letters to Brian Owens, the Commissioner of the Georgia Department 

of Corrections, as well as to “internal affairs.”

 1 Mr. Bettencourt never elaborated on the nature of the harassment in his complaint, merely 

stating he informed prison officials he was being sexually harassed. 

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On that same day -August 18, 2009- Mr. Bettencourt filed an informal 

grievance about his sexual harassment and denial of protective custody, which was 

reviewed by Hank Autry. Though he was able to speak briefly with Mr. Autry, Mr. 

Bettencourt was never granted protective custody. Mr. Bettencourt also attempted 

to, unsuccessfully, obtain protective custody from Lieutenants Willether Brown,

Towanda Zachary, and Eric Alls.

Mr. Bettencourt claimed he then attempted to speak with Captain Nathaniel 

Williams about his concerns, but never had an opportunity to explain that he was 

being sexually harassed and needed protection. He was directed to air his 

grievances to a sergeant or a lieutenant, which prompted Mr. Bettencourt to speak 

with Sargent Michael Wade. But he again was unable to explain that he was being 

sexually harassed and needed protective custody. 

On September 7, 2009, Mr. Bettencourt alleged he was standing in his cell 

with his back to the door. He heard someone enter, but assuming it was his 

roommate, decided not to look. The individual quickly grabbed Mr. Bettencourt 

and began choking him from behind. The attacker then threw him off balance, and 

smashed his head into a hard object. Mr. Bettencourt was knocked unconscious. 

Upon regaining consciousness he realized someone “was performing anal sex” on 

him, and attempted to resist the sexual assault. He was again choked into 

unconsciousness, and awoke sometime later, alone, lying on the floor of his cell.

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Based on these allegations, Mr. Bettencourt alleged in his pro se complaint

that Defendants Alls, Brown, Wade, Williams, Zachary, Allen, Owens, Cleveland, 

Nobles, and Autry violated 42 U.S.C. § 1983. He asserted that their failure to grant

him protective custody or a transfer led to his violent rape, and that they should

therefore be held liable for his injuries. 

On September 30, 2011, the district court, adopting in part the magistrate 

judge’s report, granted the defendants’ motions to dismiss and dismissed Mr. 

Bettencourt’s complaint with prejudice.

2 The court concluded that Mr. Bettencourt

did not exhaust his administrative remedies for his claim against Ms. Cleveland, 

and that he failed to state a claim under § 1983 against the remaining named prison 

officials. Mr. Bettencourt filed this timely appeal. He argues that he exhausted his 

administrative remedies and that his pro se complaint properly stated claims under 

§ 1983, but that even if his complaint was deficient, he should have been afforded 

an opportunity to amend his complaint prior to the court dismissing it with 

prejudice.

II.

We review de novo the district court’s grant of a Federal Rule of Civil 

Procedure 12(b)(6) motion to dismiss for failure to state a claim. Butler v. Sheriff 

 2 Most of the defendants filed a joint motion to dismiss, with the exception of Ms. Cleveland, 

who filed her own motion.

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of Palm Beach Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012). “To survive a motion 

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 

state a claim to relief that is plausible on its face.” Ashcroft v. Igbal, 556 U.S. 662, 

678 (2009) (citation and quotation marks omitted). “A claim has facial plausibility 

when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Id. 

(citation omitted). In applying this standard, “our consideration is limited to those 

facts contained in the pleadings and attached exhibits.” Griffin Indus., Inc. v. Irvin, 

496 F.3d 1189, 1199 (11th Cir. 2007) (citation omitted).

III.

Upon review, we affirm the district court’s decision in part, and vacate and 

remand in part. The district court correctly concluded Mr. Bettencourt’s claim 

against Ms. Cleveland was not exhausted, and that his pro se complaint failed to 

state a claim under § 1983 against the remaining named prison officials. The 

district court nevertheless erred by not giving Mr. Bettencourt an opportunity to 

amend his pro se complaint prior to dismissing it with prejudice.

A.

We turn first to Mr. Bettencourt’s argument that his § 1983 claim against 

Ms. Cleveland was exhausted. The Prison Litigation Reform Act (“PLRA”) 

provides in relevant part: “No action shall be brought with respect to prison 

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conditions under section 1983 . . . by a prisoner . . . until such administrative 

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme 

Court has explained that even “when the prisoner seeks relief not available in 

grievance proceedings, notably money damages, exhaustion is a prerequisite to 

suit;” the exhaustion requirement applies “to all inmate suits about prison life,

whether they involve general circumstances or particular episodes, and whether 

they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 

524-32 (2002) (citations omitted). This exhaustion requirement “seeks to eliminate 

unwarranted interference with the administration of prisons in order to ‘afford 

corrections officials time and opportunity to address complaints internally before 

allowing the initiation of a federal case.’” Parzyck v. Prison Health Serv., Inc., 627 

F.3d 1215, 1217 (11th Cir. 2010) (citation omitted). 

Mr. Bettencourt was therefore required to exhaust his claim against Ms. 

Cleveland through the administrative process outlined in the Georgia Department 

of Corrections’ Standard Operating Procedure IIB05-0001 (“SOP”). See Parzyck, 

627 F.3d at 1217 (“Compliance with prison grievance procedures . . . is all that is 

required by the PLRA to ‘properly exhaust’”) (citation omitted). The governing 

SOP at Mr. Bettencourt’s facility required him to (1) file an informal grievance, (2) 

file a formal grievance, and (3) appeal any denial of his formal grievance. Upon 

the filing of a formal grievance, the SOP gives the warden thirty days to provide a 

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written response stating whether the grievance is granted or denied. The warden’s 

denial of a formal grievance is appealable, as is the warden’s failure to grant or 

deny a formal grievance within that thirty-day time period. 

Mr. Bettencourt argues that because the warden never granted or denied his 

formal grievance he was not required to file an appeal to exhaust his claim. This 

argument is squarely foreclosed by our reasoning in Turner v. Burnside, 541 F.3d 

1077 (11th Cir. 2008). In Turner, we were tasked with the question of whether an 

inmate exhausted his administrative remedies under a Georgia state prison’s SOP 

that is in all relevant respects the same as the one at issue here. Id. at 1080-85. Like 

Mr. Bettencourt, the prisoner had argued that the warden’s failure to provide a 

written response to his formal grievance obviated his obligation to file an appeal. 

We concluded:

Turner never received a written response to his formal grievance. 

Once the thirty-day time limit for a response had passed, he was 

required to appeal within five calendar days. He admits that he failed 

to file an appeal. As a result, if the appeal remedy was available to 

Turner, he should have pursued it and his failure to do so would bar 

his lawsuit under the PLRA’s exhaustion requirement.

Id. at 1084. The reasoning of Turner shows Mr. Bettencourt failed to exhaust his 

administrative remedies. Despite Mr. Bettencourt’s protestations to the contrary,

when the warden failed to respond to the formal grievance within the allotted 

thirty-day period Mr. Bettencourt was required to pursue an appeal in order to 

exhaust his claim. Because Mr. Bettencourt concedes that he failed to pursue this

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avenue, the district court properly dismissed his unexhausted § 1983 claim against 

Ms. Cleveland.3

B.

We also affirm the district court’s ruling that allegations in Mr. 

Bettencourt’s pro se complaint failed to state a claim under § 1983. An inmate like 

Mr. Bettencourt may sue a prison official under § 1983 for being deliberately

indifferent to a known, substantial risk that the inmate would be seriously harmed.

See Goodman v. Kimbrough, 718 F.3d 1325, 1332 (11th Cir. 2013). To prevail on 

such a claim, the inmate must show “(1) subjective knowledge of a risk of serious 

harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” 

Id. (citation and quotation marks omitted). A prison official has the requisite 

subjective knowledge only when he is aware of facts from which he can draw the

inference that an inmate faces a substantial risk of serious harm, and actually draws 

the inference. See Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1234 (11th Cir. 

2010). Accordingly, though prison officials have a duty to protect inmates “from 

violence at the hands of other prisoners,” not every injury translates into liability 

for prison officials responsible for inmate safety. See Farmer v. Brennan, 511 U.S. 

825, 837 (1994) (citation omitted). 

 3 We note in passing that this Court has expressed a district court may dismiss an inmate’s claim 

with prejudice for failure to exhaust administrative remedies. See Bryant v. Rich, 530 F.3d 1368, 

1375 n.11 (11th Cir. 2008) 

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Applying this framework, the district court correctly concluded that Mr. 

Bettencourt failed to allege that the defendant prison officials had the requisite 

subjective knowledge required to impose liability under § 1983. The court 

reasoned that the complaints of sexual harassment did not convey to the prison 

officials that Mr. Bettencourt faced a substantial risk of serious harm:

With no further description or detail as to whether the sexual 

harassment, for example, involved physical touching or physical 

threats, a strong, specific likelihood of an attack could not have arisen 

in Defendants’ subjective conscience where Plaintiff only reported the 

occurrence of sexual harassment . . . [B]ased on the inexplicit nature 

of Plaintiff’s allegations, the sexual harassment from which Plaintiff 

allegedly suffered could have merely constituted inappropriate verbal 

advances, verbal taunts, or uncomfortable sexual compliments, with 

no insinuation of violence. Sexual harassment in this form does not 

rise to the level of a substantial risk of harm . . . 

D.E. 77 at 9. We agree.

Mr. Bettencourt, a layman unfamiliar with the law, only alleged in his pro se 

complaint that he informed prison officials that he needed protections from “sexual 

harassment.” Without more, his complaints could have merely been about 

“obscene remarks”4 or “uninvited and unwelcome verbal . . . behavior of a sexual 

nature,”5 neither of which indicate that Mr. Bettencourt faced a substantial risk of 

serious harm. Mr. Bettencourt’s allegations therefore undoubtedly failed to state a 

claim under § 1983. Indeed, we have rejected deliberate indifference claims where 

 4 See “sexual harassment.” Merriam-Webster Collegiate Dictionary (11th ed. 2012).

5 See “sexual harassment.” Oxford English Dictionary, Volume 2 (4th ed. 1993).

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the allegations were much more severe than those presented in his pro se 

complaint. See, e.g., Carter v. Galloway, 352 F.3d 1346, 1349-50 (11th Cir. 2003) 

(concluding inmate’s allegations that he informed prison officials that his

roommate was acting crazy, wanted to fake a hanging, and made a statement that 

plaintiff would help in the fake hanging “one way or another” were insufficient to 

show prison officials were subjectively aware of risk of harm from the 

roommate).

6

C.

The district court nevertheless erred by dismissing Mr. Bettencourt’s pro se 

complaint with prejudice without affording him an opportunity to amend. It is a 

well-established rule in the Eleventh Circuit that where a more carefully drafted 

pro se complaint might state a claim the “plaintiff must be given at least one 

chance to amend the complaint before the district court dismisses the action with 

prejudice.” Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991).7 A court must 

therefore afford a plaintiff an opportunity to amend his pro se complaint before 

dismissing with prejudice unless an amendment would be futile or the plaintiff 

expresses a desire not to amend. Id. at 1112.

 6 To that end, Mr. Bettencourt’s claim of supervisory liability against Mr. Owens also failed

because it was based on the same insufficient allegations.

7 This rule does not apply to litigants who have counsel. See Wagner v. Daewoo Heavy Indus. 

Am. Corp., 314 F.3d 541, 542 n.1 (11th Cir. 2002).

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In deciding whether a more carefully drafted pro se complaint might state a 

claim, i.e., whether an amendment would be futile, we have placed a heavy thumb 

on the scale in favor of answering that question in the affirmative. See, e.g., Silva v. 

Bieluch, 351 F.3d 1045, 1049 (11th Cir. 2003) (“We cannot say it is scarcely 

possible that a more carefully drafted complaint might state a free speech claim.”); 

O’Halloran v. First Union Nat. Bank of Fla., 350 F.3d 1197, 1206 (11th Cir. 2003) 

(“Because a more carefully drafted complaint could conceivably state a valid 

claim, we VACATE the dismissal and REMAND, with instructions to allow the 

trustee leave to amend his complaint.”). As we explained in Bank, “the purpose of 

pleading is to facilitate a proper decision on the merits. Dismissing an action 

without granting even one chance to amend is contrary to this goal.” 928 F.2d at 

1112 n.6. 

Upon review of Mr. Bettencourt’s pro se complaint, we conclude that the 

district court erred by not providing an opportunity to amend.8 Although Mr. 

Bettencourt is unable to state a claim against Captain Williams and Sargent Wade

in light of his concession on appeal that he never informed them that he was being 

sexually harassed and needed protective custody, see Appellant’s Br. at 8, we have 

 8 Indeed, Mr. Bettencourt filed a motion to amend his complaint with the district court, which the 

court, having adopted in part the magistrate judge’s report and recommendation, improperly 

interpreted as an attempt to add new claims unrelated to his § 1983 action. 

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no trouble concluding that it is conceivable Mr. Bettencourt may be able to state a 

§ 1983 claim against the remaining defendant prison officials.9

IV.

We affirm the district court’s dismissal of Mr. Bettencourt’s § 1983 claim 

against Ms. Cleveland for failing to exhaust his administrative remedies, but vacate 

and remand the dismissal with prejudice so that Mr. Bettencourt may be allowed to 

amend his § 1983 complaint.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

 9 The defendant prison officials argue on appeal that they are entitled to qualified immunity, but 

it would be premature to address qualified immunity prior to Mr. Bettencourt amending his 

complaint. 

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