[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-15117

________________________

D.C. Docket No. 5:12-cv-00142-LGW-JEG

SHAWN WAYNE WHATLEY,

Plaintiff-Appellant,

versus

WARDEN, WARE STATE PRISON,

RODNEY SMITH, 

Corrections Officer (C.E.R.T. Team) 

Telfair State Prison, 

EXAM NURSE, 

Ware State Prison, 

MICHAEL GRIFFIN, 

Supervisor of Lock Down Unit & 

Tactical Squad Commander, 

Ware State Prison, 

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

________________________

(September 23, 2015)

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Before WILSON and MARTIN, Circuit Judges, and VINSON,

* District Judge.

MARTIN, Circuit Judge:

Shawn Wayne Whatley appeals the dismissal of his 42 U.S.C. § 1983 

prison-conditions suit. His claims relate to a beating by prison staff, for which he 

was denied medical treatment. Although he submitted several prison grievances 

before suing, the District Court dismissed his suit for failure to exhaust the 

administrative remedies established by the prison. We reverse for two reasons: 

because the District Court failed to follow the two-step process we have created for 

deciding exhaustion challenges; and because in concluding that one of Mr. 

Whatley’s grievances did not exhaust, the District Court enforced a procedural bar 

that the prison may have waived.

I. Legal Background

Before a prisoner may bring a prison-conditions suit under § 1983, the 

Prison Litigation Reform Act of 1995 requires that he exhaust all available 

administrative remedies. 42 U.S.C. § 1997e(a); see also Booth v. Churner, 532 

U.S. 731, 736, 121 S. Ct. 1819, 1822 (2001). The purpose of the PLRA’s 

exhaustion requirement is to “afford corrections officials time and opportunity to 

address complaints internally before allowing the initiation of a federal case.” 

 * Honorable C. Roger Vinson, United States District Judge for the Northern District of

Florida, sitting by designation.

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Woodford v. Ngo, 548 U.S. 81, 93, 126 S. Ct. 2378, 2387 (2006) (quotation 

omitted). To properly exhaust, a prisoner must “[c]ompl[y] with prison grievance 

procedures.” Jones v. Bock, 549 U.S. 199, 218, 127 S. Ct. 910, 922–23 (2007).

Georgia’s prison grievance procedures are set out in a standard operating 

procedure. See Turner v. Burnside, 541 F.3d 1077, 1080–81 (11th Cir. 2008) 

(describing the relevant SOP). The grievance process has three steps. First, an 

informal grievance. A prisoner must file an informal grievance within ten days of 

becoming aware of the facts giving rise to his grievance. He will receive a receipt 

when he files an informal grievance. A prison official must respond in writing 

within ten days. Second, a formal grievance. If the prisoner is not satisfied with 

the response to his informal grievance, he may request a formal grievance form. 

The prisoner must file a formal grievance within five days of receiving the written 

response to his informal grievance. Importantly, the SOP provides that a prisoner 

must “complete the informal grievance procedure before being issued a formal 

grievance” form.

1

 

After receiving a formal grievance, a prison official must “thoroughly 

investigate” and “write a complete report,” and then make a recommendation to the 

grievance coordinator. The grievance coordinator reviews the report, indicates 

 1 After the facts relevant to Mr. Whatley’s case, the SOP was amended to eliminate the 

requirement that prisoners first file an informal grievance before they may file a formal 

grievance. 

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whether she agrees or disagrees, and submits her recommendation to the prison’s

warden or superintendent. The warden or superintendent reviews the grievance, 

then requests further investigation or responds in writing to the prisoner. The 

warden must respond within thirty days after a prisoner files a formal grievance. If 

the warden does not respond within forty days—thirty days plus a one-time, tenday extension—the prisoner may appeal, as described immediately below. 

Third, an appeal. A prisoner may appeal a formal grievance to the Office of 

the Commissioner within five days of receiving a response to his formal grievance. 

The prisoner must include in his appeal both the completed formal and informal 

grievance forms, and the commissioner must respond within 90 days. The SOP 

does not provide a mechanism for appealing from an informal grievance. 

After a prisoner has exhausted the grievance procedures, he may file suit 

under § 1983. In response to a prisoner suit, defendants may bring a motion to 

dismiss and raise as a defense the prisoner’s failure to exhaust these administrative 

remedies. See Turner, 541 F.3d at 1081. In Turner v. Burnside we established a 

two-step process for resolving motions to dismiss prisoner lawsuits for failure to 

exhaust. 541 F.3d at 1082. First, district courts look to the factual allegations in 

the motion to dismiss and those in the prisoner’s response and accept the prisoner’s 

view of the facts as true. The court should dismiss if the facts as stated by the 

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prisoner show a failure to exhaust. Id. Second, if dismissal is not warranted on the 

prisoner’s view of the facts, the court makes specific findings to resolve disputes of 

fact, and should dismiss if, based on those findings, defendants have shown a 

failure to exhaust. Id. at 1082–83; see also id. at 1082 (explaining that defendants 

bear the burden of showing a failure to exhaust).

We “review de novo a District Court’s interpretation and application of 42 

U.S.C. § 1997e(a)’s exhaustion requirement.” Johnson v. Meadows, 418 F.3d 

1152, 1155 (11th Cir. 2005). To the extent the District Court made specific factual 

findings, we review those for clear error, Bingham v. Thomas, 654 F.3d 1171, 

1174–75 (11th Cir. 2011) (per curiam), but otherwise we “accept as true the facts 

as set forth in the complaint and draw all reasonable inferences in [Mr. Whatley’s] 

favor,” Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010).

II. Factual and Procedural History

Mr. Whatley alleges that on January 12, 2011, he was beaten by guards at 

Telfair State Prison. Within hours of the beating, he was transferred to Ware State 

Prison. At Ware State Prison, despite his excruciating pain and difficulty 

breathing, a nurse simply told him to take Tylenol and, with a grin, told him he 

would “be real sore for a while.” Mr. Whatley filed several grievances in which he 

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at least arguably referred to the beating and the ensuing lack of medical treatment, 

three of which are relevant to our decision.

A. January 18 Grievance

On January 18, 2011, Mr. Whatley submitted an informal grievance—what 

we will refer to as his January 18 grievance. He received no response. In April, 

without filing a formal grievance, he filed an appeal to the Office of the 

Commissioner. In his appeal, he wrote that he was “severely and unjustly beaten” 

and transferred from Telfair to Ware. He explained that he was appealing his 

January 18 informal grievance only in April because he had not received an appeal 

form and had heard no response to his other grievances. The record is silent about 

what happened to this appeal.

B. “Imminent Danger” Grievance (Number 80327)

On February 10, 2011, just less than a month after the beating and a day 

after he was again transferred, this time from Ware to the Georgia Diagnostic and 

Classification Prison (GDCP), Mr. Whatley filed another informal grievance, 

numbered 80327. He wrote that he was in “imminent danger”—so we refer to this 

as the “imminent danger” grievance—and he requested transfer to a non-state 

facility or “protective custody from all Georgia] Department of Corrections] 

staff/employees, due to being severely beaten and transferred without treatment.” 

This grievance was rejected on February 17. A prison official explained that the 

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grievance addressed prisoner transfers, which according to the SOP are not 

grievable issues. 

C. Grievance Number 80940

On March 7, 2011, Mr. Whatley filed the last grievance relevant to this 

appeal, this one numbered 80940. In it, he explicitly referred back to his imminent 

danger grievance: “I filed an ‘imminent danger’ grievance,” he wrote, and he said 

that “no response has been rendered” and “the allotted response time has expired.” 

(Emphasis added.) He requested a formal grievance, and said that his grievances 

were being discarded. Grievance 80940 was also denied. A prison official 

recognized that this informal grievance referred back to his imminent danger

grievance, but the official indicated that the imminent danger grievance had been 

rejected because it raised a non-grievable issue. 

On March 22, the same day informal grievance 80940 was denied, Mr. 

Whatley filed a formal grievance. He again referred back to his imminent danger 

grievance, and also to the beating itself and the denial of medical care: 

Since my arrival on 2-9-11 [at GDCP] I have filed an informal 

grievance every week, the grievances are not being processed 

according to policy! Grievance #80327, “Imminent Danger” 

describe[d] the treatment that I have been under since 1-12-11, when I 

was unjustly and severely beat[en] at Telfair State Prison by [Officer] 

Smith and two other staff, and then transferred without medical 

attention! Then again transferred and place[d] in cruel and unusual 

punishment.

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The warden rejected Mr. Whatley’s formal grievance, explaining that his 

earlier, imminent danger grievance was rejected because it addressed a nongrievable issue, viz., institutional transfers. But importantly, the warden also 

appeared to address Mr. Whatley’s claims about the beating and lack of medical 

care on the merits. He wrote: “Per phone conversation with [a nurse], you were 

seen at medical upon arrival [at GDCP] on 2-9-11 and there was no evidence 

supporting your claim of being severely beaten.” (Emphasis added.) 

Mr. Whatley appealed the warden’s denial of his formal grievance. He 

responded to each of the warden’s reasons for rejecting his formal grievance, 

insisting that he had receipts for his weekly grievances, and that this grievance 

(80940) was the only one that had received a response. Again he referred to the 

beating, and he disagreed with the warden’s suggestion that medical staff at GDCP 

had found no evidence of the beating:

As far as being beaten, that [grievance] was against another facility 

and it had been almost 2 months [sic—it had actually been only one 

month, from January 12 to February 10] since I had been assaulted, all 

[the nurse] did was check[] vital signs and asked about medications. 

No physical examination! Therefore no way she would have known 

what happened on 1-12-11 [the day of the beating].

Mr. Whatley’s appeal was rejected. The appeal response noted only that his 

grievance had alleged that a prison staff member had violated the grievance 

procedure by not responding to a grievance. The response referred back to his 

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imminent danger grievance, and again explained that it had been rejected because 

it presented a non-grievable issue. Thus, the response concluded that Mr. 

Whatley’s allegation was unfounded. 

D. District Court Proceedings

Mr. Whatley filed a pro se § 1983 complaint in December 2012, alleging 

violations of the Eighth and Fourteenth Amendments. Before discovery, 

defendants moved to dismiss for failure to exhaust. In a 300-page filing including 

Mr. Whatley’s prison records and copies of his grievances and the prison’s

responses thereto, defendants argued (among other things) that Mr. Whatley had 

failed to exhaust the grievance procedure. In response, Mr. Whatley said he had 

tried to complete the grievance procedure but that prison officials had not followed 

the SOP. He attached grievance receipts and other documents that were not in 

defendants’ filing. A Magistrate Judge recommended dismissing Mr. Whatley’s 

complaint for failure to exhaust. The District Court adopted the Magistrate Judge’s 

R&R. 

III. Discussion

We remand for two reasons. First, in holding that Mr. Whatley’s January 18 

informal grievance did not exhaust administrative remedies, the District Court 

erred by not following the two-step process we described in Turner. And second, 

in holding that grievance 80940 did not exhaust, the District Court erred by 

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enforcing a procedural bar that the prison itself may have waived. We discuss each 

alternative ground for reversal in turn.

A. Two-Step Turner Process

In response to defendants’ motion to dismiss for lack of exhaustion, Mr. 

Whatley alleged that: he filed his first informal grievance about the beating and 

lack of medical care on January 18; he never received a response; and he filed an 

appeal about three months later. He also submitted exhibits in support of these

allegations, including a receipt from filing the January 18 informal grievance

(Exhibit X) and a copy of his appeal of that same grievance (Exhibit X1). The 

District Court discussed this grievance and Mr. Whatley’s exhibits in support:

[T]hese exhibits lend no support to [Mr. Whatley’s] contention 

that he properly exhausted his available administrative remedies. 

Exhibit X is a receipt for an informal grievance which was submitted 

on January 18, 2011, and concerned an incident occurring on January 

12, 2011 [i.e., the day of the beating]. However, the receipt contains 

no number or content, making it impossible to determine about what 

Plaintiff grieved.

Exhibit X1, which is presumably an appeal to the 

Commissioner’s Office of this unnumbered informal grievance at 

Exhibit X, also does not contain a number. While Plaintiff mentions 

that he submitted an informal grievance on January 18, 2011, and 

alleged in that informal grievance that he was assaulted by three (3) 

staff members at Telfair State Prison, he admits that his appeal is 

untimely. In addition, there is no indication that Plaintiff followed the 

proper grievance procedures by first filing a formal grievance before 

he filed an appeal.

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The undersigned notes Plaintiffs assertion in this appeal that he 

had not received a response to his informal grievance, which meant 

that he could file an appeal with the Commissioner’s Office. It 

appears that Plaintiff misreads the applicable Standard Operation 

Procedure, which allows for an appeal without a response to a formal 

grievance rather than an informal grievance.

The District Court did not properly undertake either of the two Turner steps. 

It did not, consistent with the first Turner step, accept Mr. Whatley’s facts as true

and ask whether, given those facts, the January 18 grievance exhausted his 

administrative remedies. Neither did the court proceed to the second Turner step: 

identifying particular factual disputes, then making “specific [fact] findings” to 

resolve those disputes and decide whether the January 18 grievance exhausted 

administrative remedies. See Turner, 541 F.3d at 1082 (mandating that, in the 

second step, district courts “proceed to make specific findings in order to resolve 

the disputed factual issues related to exhaustion” (emphasis added)).

As to the first step, it is clear that the District Court did not accept Mr. 

Whatley’s facts as true and make the exhaustion determination on his view of the 

facts. The court wrote that the January 18 informal grievance could not have 

exhausted Mr. Whatley’s administrative remedies because the grievance receipt

(Exhibit X) “contain[ed] no number or content,” so it was “impossible to determine 

about what Plaintiff grieved.” Yet Mr. Whatley explicitly alleged that the January 

18 grievance “was for being brutally and severely beaten at Telfair State Prison 

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and transferred without medical treatment.” Under Mr. Whatley’s version of the 

facts, the January 18 grievance was about the January 12 beating and the denial of 

medical care for his injuries. The District Court never credited this allegation.

The District Court also failed to accept Mr. Whatley’s facts as they related to 

his attempts to follow the SOP when filing this grievance. The court said Mr. 

Whatley skipped the second grievance step when he directly appealed the informal 

grievance without first filing a formal grievance. “[T]here is no indication,” the 

District Court wrote, “that Plaintiff followed the proper grievance procedures by 

first filing a formal grievance before he filed an appeal.” 

It is true that the SOP contemplates a three-step grievance procedure: 

informal grievance, formal grievance, and then appeal. And it is also true that Mr. 

Whatley alleged only that he completed the first and third steps of that procedure—

filing an informal grievance, then proceeding directly to an appeal, without 

completing a formal grievance (the second step). But Mr. Whatley said he 

proceeded directly to appeal because he heard no response to his informal 

grievance. And under the SOP, without receiving a response to his informal 

grievance he could not have made a formal grievance. The SOP provides that a 

prisoner “must complete the informal grievance procedure before being issued a 

formal grievance” form. Accepting Mr. Whatley’s allegations, the prison’s failure 

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to respond to his grievance prevented him from “complet[ing] the informal 

grievance procedure.”2

 The District Court faulted Mr. Whatley for failing to file a 

formal grievance—something that, according to his allegations and the SOP, the 

prison prevented him from doing.

3

Neither did the District Court undertake the second Turner step, in which 

courts must “make specific findings in order to resolve disputed factual issues 

related to exhaustion.” See 541 F.3d at 1082. In response to Mr. Whatley’s 

allegations about the January 18 informal grievance and his exhibits in support of 

those allegations, defendants suggested that Mr. Whatley’s exhibits—including the 

 2 Compare these facts to Turner. There, we rejected an argument by a prisoner that the 

warden’s failure to respond to a formal grievance necessarily relieved him of his obligation to 

appeal. We explained that the SOP (identical to the one here) gave instructions about what to do 

in that circumstance: when a prisoner receives no response to a formal grievance, he should 

appeal no later than five days after “the thirty-day time limit for a response had passed.” Turner, 

541 F.3d at 1084. Because the prisoner did not do so, we held he had failed to follow the SOP. 

That was because the SOP provided instructions for a prisoner, like Mr. Turner, whose formal

grievance received no response. (In Turner we ended up remanding for the district court to 

determine whether, based on the prisoner’s allegations that he had been threatened by the 

warden, the grievance process was “available” to such that the prisoner was required to follow it. 

See 541 F.3d at 1086.)

By contrast, the SOP provides no guidance to a prisoner, like Mr. Whatley, who receives 

no response to an informal grievance. He was in uncharted waters, without instruction from the 

SOP, so the District Court should not have faulted him for taking the route that he did.

3 These facts also undermine the District Court’s conclusion that Mr. Whatley 

“admit[ted] that his appeal [wa]s untimely.” Under Mr. Whatley’s view of the facts, he filed an 

informal grievance to which the prison never responded. He then filed an appeal about three 

months later. It is true that the SOP requires a prisoner to take an appeal from the rejection of a 

formal grievance within five days. But Mr. Whatley was prevented from filing a formal 

grievance because the prison never responded to his informal grievance. And the SOP gives no 

instruction to prisoners about how they should proceed if the prison does not respond to an 

informal grievance. Given the SOP’s silence on this point, at the first Turner step the District 

Court should not have concluded that Mr. Whatley violated the SOP.

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signed informal grievance receipt— were “a fraud on th[e] court.” They argued

that the signatures on the exhibits were forgeries, and supported that allegation 

with an affidavit from the prison officer whose signature appeared at the bottom of 

the grievance receipt. The officer stated that she did not write or sign the 

documents, so they were “not authentic.” The thrust of defendants’ response is

that Mr. Whatley fabricated the January 18 informal grievance out of whole 

cloth—it never happened.

Mr. Whatley’s allegations and exhibits, and defendants’ contentions in 

response, created a factual dispute. Did Mr. Whatley file an informal grievance on 

January 18 (as he alleged), or did he make false allegations and create forged 

documents in an effort to show that he had filed that grievance when in fact he had 

not (as defendants alleged)? The District Court neither identified this “disputed 

issue of fact,” nor made “specific findings” to resolve it one way or the other.

Defendants ask us not to remand for the District Court to follow the two-step

Turner process. They say we should simply affirm, finding on our own that the 

January 18 grievance is a fiction and that Mr. Whatley fabricated the entire 

episode. But we are a court of appeals. We do not make fact findings. We review 

them for clear error. Without any explicit findings of fact (at best only implicit 

ones, even under defendants’ view), we cannot undertake that review.

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Our precedent requires district courts to first accept the prisoner’s version of 

the facts as true and ask whether the suit is subject to dismissal for failure to 

exhaust. If the answer is “no,” the court should proceed to make specific fact

findings. We will review de novo the results of the first step, and we will review 

for clear error the fact findings made as part of the second step. In this case the 

record does not reflect whether the District Court dismissed Mr. Whatley’s suit on 

the first step or on the second step; whether the District Court accepted Mr. 

Whatley’s version of the facts as true, such that we should review the court’s

conclusions de novo; or whether the District Court (implicitly) identified factual 

disputes and (implicitly) resolved them in favor of defendants, such that we should 

review the court’s fact findings for clear error. Because we cannot evaluate the 

District Court’s conclusions on this record, we must reverse for the court to 

properly undertake the two-step Turner process.

B. Procedural Bar

We also reverse because in concluding that grievance 80940 did not exhaust 

administrative remedies, the District Court enforced a procedural bar that the 

prison itself may have waived. We join our sister Circuits in holding that district 

courts may not find a lack of exhaustion by enforcing procedural bars that the 

prison declined to enforce.

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In filing grievance 80940, Mr. Whatley undisputedly went through each step 

of the grievance procedure. He filed an informal grievance on March 7, 2011, 

received a rejection on March 17, filed a formal grievance on March 22, received a 

rejection of his formal grievance on April 27, filed an appeal on April 28, and 

received a rejection of the appeal on June 14. Indeed, the Magistrate Judge 

recognized that Mr. Whatley “completed the grievance process for Grievance 

Number 80940.”4

 

Still, the Magistrate Judge found that grievance 80940 did not exhaust 

administrative remedies. He explained that the grievance “suffer[ed] from a flaw”:

the informal grievance did not discuss the beating or the denial of medical care—

the issues raised in Mr. Whatley’s § 1983 complaint. And under the SOP, the

prison may refuse to consider issues not raised in an informal grievance. The 

Magistrate Judge wrote that this procedural flaw meant grievance 80940 could not 

properly exhaust administrative remedies: “Plaintiff’s failure to include a ground in 

his informal grievance would result in the rejection of that formal grievance 

containing that ground.” (Emphasis added.) 

We cannot agree. The Magistrate Judge’s conclusion that the procedural 

flaw “would result in the rejection” of grievance 80940 is belied by the record: it 

 4 The District Court did not discuss this grievance at all, but it “adopted” the Magistrate 

Judge’s R&R “as the opinion of the Court.” 

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does not appear that the prison rejected the grievance on that ground. While it is 

true that the prison could have rejected grievance 80940 by enforcing this 

procedural rule, it instead seemed to ignore the procedural flaw and consider the 

merits of Mr. Whatley’s claims. The District Court should not have enforced a 

procedural bar that may have been waived by the prison.

When Mr. Whatley filed formal grievance 80940, he explicitly referred to 

the beating. He wrote that his earlier grievance, “Grievance #80327, ‘Imminent 

Danger,’ describe[d] the treatment that [he] ha[d] been under since 1-12-11 when 

[he] was unjustly and severely beat[en] at Telfair State Prison . . . and then 

transferred without medical attention.” And in response to Mr. Whatley’s formal 

grievance, the warden seemingly considered and rejected on the merits his claim 

about being beaten: “Per phone conversation with Nurse Gore, you were seen at 

medical upon arrival [at GDCP] on 2-9-11 and there was no evidence supporting 

your claim of being severely beaten.” (Emphasis added.) That is, while the 

warden could have rejected Mr. Whatley’s grievance on the procedural ground 

identified by the Magistrate Judge, he apparently did not.

Nevertheless, the Magistrate Judge enforced this procedural bar. On appeal 

Mr. Whatley points to out-of-circuit cases holding that district courts should not 

find a lack of exhaustion by enforcing procedural rules that were not enforced by 

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the prison. He says that because the prison overlooked his grievance’s procedural 

flaw and addressed his claims about the beating on the merits, the District Court 

should not have enforced the procedural rule to find a lack of exhaustion. 

Although our Circuit has never had occasion to consider this principle, we agree 

and join our sister Circuits in so holding.

The purpose of the PLRA’s exhaustion requirement is to “afford corrections 

officials time and opportunity to address complaints internally before allowing the 

initiation of a federal case.” Woodford, 548 U.S. at 93, 126 S. Ct. at 2387. As one 

of our sister Circuits has explained, the benefits of the exhaustion requirement “are 

fully realized when an inmate pursues the prison grievance process to its final stage 

and receives an adverse decision on the merits, even if the decision-maker could 

have declined to reach the merits because of one or more procedural deficiencies.” 

Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012) (per curiam) (emphasis

added). As the Magistrate Judge recognized, Mr. Whatley “pursue[d] the prison 

grievance process to its final stage,” id., and in denying his formal grievance the 

warden appeared to give Mr. Whatley “an adverse decision on the merits,” id., 

even though the warden “could have declined to reach the merits,” id., based on a 

procedural flaw.

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Every one of our sister Circuits that has faced this question has held the 

same way: a procedural flaw ignored by a prison cannot later be resurrected by the 

District Court to defeat exhaustion. See id.; Hill v. Curcione, 657 F.3d 116, 125 

(2d Cir. 2011) (“Today, we . . . hold that the exhaustion requirement of the PLRA 

is satisfied by an untimely filing of a grievance if it is accepted and decided on the 

merits by the appropriate prison authority.”); Reed-Bey v. Pramstaller, 603 F.3d 

322, 325 (6th Cir. 2010) (“When prison officials decline to enforce their own 

procedural requirements and opt to consider otherwise-defaulted claims on the 

merits, so as a general rule will we.”); Conyers v. Abitz, 416 F.3d 580, 584 (7th 

Cir. 2005) (“Failure to comply with administrative deadlines dooms the claim 

except where the institution treats the filing as timely and resolves it on the 

merits.”); Ross v. Cty. of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004) (“If a 

prison accepts a belated filing, and considers it on the merits, that step makes the 

filing proper for purposes of state law and avoids exhaustion, default, and 

timeliness hurdles in federal court.”); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 

2000). We find particularly persuasive the Sixth Circuit’s lucid explanation:

When prison officials decline to enforce their own procedural 

requirements and opt to consider otherwise-defaulted claims on their 

merits, so as a general rule will we. In that setting, the State, as the 

promulgator of the [grievance] rules, has had a chance to provide a 

remedy for the inmate and to decide whether the objectives of the 

review process have been served. When the State nevertheless 

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decides to reject the claim on the merits, who are we to second guess 

its decision to overlook or forgive its own procedural bar? The rules 

serve the State’s interests: its interest in creating a prison grievance 

system, its interest in reviewing a complaint before another sovereign 

gets involved and its interest in deciding when to waive or enforce its 

own rules. And the State’s decision to review a claim on the merits 

gives us a warrant to do so as well, even when a procedural default 

might otherwise have resolved the claim.

Reed-Bey, 603 F.3d at 325 (citation omitted).

This principle is a sound one, and we adopt it as the law of our Circuit. We 

hold that a prisoner has exhausted his administrative remedies when prison 

officials decide a procedurally flawed grievance on the merits. In other words, we 

hold that district courts may not enforce a prison’s procedural rule to find a lack of 

exhaustion after the prison itself declined to enforce the rule.

But as an appeals court, we are not in a position to find, in the first instance 

and as a factual matter, whether the prison declined to enforce its rule and waived 

the procedural flaw in this case. On appeal the parties argued at length over 

whether the warden’s response to Mr. Whatley’s formal grievance in fact 

addressed the merits of his claims about being beaten, or whether the warden was 

instead responding to Mr. Whatley’s complaints about his earlier grievances being 

ignored. As before, we must reverse for the District Court to make the necessary 

findings of fact.

REVERSED.

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VINSON, District Judge, concurring specially:

I agree with the majority that the District Court did not follow the two-step 

procedure set forth in Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008). I also 

agree with the majority (and with every circuit that has considered the issue) that 

the state waives an exhaustion defense when it addresses and decides a prisoner’s 

grievance on the merits even though the grievance could have been --- but was not 

--- denied on a valid procedural ground. See, e.g., Hill v. Curcione, 657 F.3d 116 

(2d Cir. 2011); Reed–Bey v. Pramstaller, 603 F.3d 322 (6th Cir. 2010); Conyers v. 

Abitz, 416 F.3d 580 (7th Cir. 2005); Ross v. County of Bernalillo, 365 F.3d 1181 

(10th Cir. 2004), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 127 

S. Ct. 910 (2007); Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000). However, this 

case presents a slightly different factual situation than existed in those cases, which 

raises some subtle additional issues.

In each of the cases cited above and by the majority, the “waiver rule” was 

applied where the state had decided the grievance on the merits at every stage of 

review, or at least at the final administrative stage.1 Here, by contrast, it appears 

that while the warden may have addressed the beating claim “on the merits” at the

 1 A district court in our circuit has noted this distinction in a well-analyzed decision. See Hall v. 

Dunlap, 2014 WL 1315398, at *2-4 (M.D. Ga. Mar. 31, 2014) (“most courts in circuits that have 

adopted a waiver rule would apparently require a decision on the merits at every stage of review 

or at least at the last stage before finding a waiver of exhaustion”) (citing multiple cases). 

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second stage of administrative review, it is unclear whether the Commissioner’s 

Office did so at the third and final stage.2

If a state’s last administrative body denies a grievance for valid procedural 

reasons, the court is required to find that grievance unexhausted under the PLRA. 

This conclusion serves the purposes of exhaustion in that it promotes efficiency, it 

“gives an agency ‘an opportunity to correct its own mistakes . . . before it is haled 

into federal court,’ and it discourages ‘disregard of [the agency’s] procedures.’” 

See Woodford v. Ngo, 548 U.S. 81, 89, 126 S. Ct. 2378, 2385 (2006). It is also 

supported by the fact that courts have repeatedly drawn “parallels” between the 

PLRA and the law governing habeas corpus. Reed-Bey, 603 F.3d at 325 (citing 

Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), and concluding that 

“[i]t makes considerable sense to adopt similar approaches in addressing similar 

concerns under the two regimes”). Under the habeas regime, “‘a procedural 

default does not bar consideration of a federal claim . . . unless the last state court 

rendering a judgment in the case clearly and expressly states that its judgment rests

 2 It is unclear due to the nature of the grievance itself. The underlying grievance (80940) dealt 

largely with an alleged procedural violation, i.e., the prison’s failure to follow proper grievance 

procedure for Whatley’s previous “imminent danger” grievance, which, in turn, was tied to the 

alleged beating. In denying grievance 80940, the Commissioner’s Office stated that the earlier 

grievance had been denied as “non-grievable” under the SOP, and, also, because “we found no 

evidence to indicate [a violation] of GDC’s grievance procedure”. It is thus debatable whether 

the Office of the Commissioner rejected the grievance on procedural grounds or “on the merits” 

(and whether the grievance was sufficiently connected to the beating at issue), and I believe this 

is a critically important question that must be resolved.

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on a state procedural bar,’ or it is otherwise clear they did not evaluate the claim on 

the merits.” Id. (quoting Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043 

(1989) (emphasis added)). 

Thus, I would remand this case for the reasons that the majority has noted, 

including a factual confirmation that the warden resolved grievance 80940 on the 

merits at the second step of review. If that is confirmed, the District Court must 

then consider the more legally significant question of whether the grievance was 

considered and resolved on the merits by the Commissioner’s Office at the third 

and final step. If it was, the state waived its exhaustion defense, as every circuit 

has held. On the other hand, if the commissioner’s final decision denying the 

grievance was based on a valid procedural reason, then Whatley’s grievance must 

be treated as unexhausted, regardless of whether the warden’s earlier decision was 

on the merits.

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