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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-10447 ____________________ RICKY J. JOHNSON, Plaintiff-Appellant, versus FORSYTH COUNTY BOARD OF COMMISSIONERS, et al., Defendants, TED PAXTON, in his individual capacity, DUANE PIPER, in his individual capacity, SHERRIFF RON FREEMAN, in his official capacity as Sheriff of Forsyth County, Georgia, ANDREW FEE, LARRY HUGHES, WILLIAM GAY, CHRISTOPHER HOBBS, JAMES COLE, CHARLES SMITH, USCA11 Case: 21-10447 Document: 72-1 Date Filed: 09/18/2024 Page: 2 of 4

____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 2:14-cv-00173-RWS ____________________ Before WILSON, ROSENBAUM, and ABUDU, Circuit Judges.

PER CURIAM: Plaintiff-Appellant Ricky Johnson, a Georgia prisoner, brought a pro se suit pursuant to 42 U.S.C. § 1983, asserting claims against various employees, administrators, and contractors based on alleged violations of Johnson’s civil rights while he was incar- cerated at the Forsyth County Detention Center (“FCDC”) and the Georgia Department of Corrections. 1 The Prison Litigation Reform Act (“PLRA”) requires any in- carcerated person bringing an action “with respect to prison condi- tions under section 1983” to first exhaust any “such administrative

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21-10447 Opinion of the Court 3 remedies as are available.” 42 U.S.C. § 1997e(a). 2 This requirement “applies to all inmate suits about prison life,” including both claims about ongoing violations and specific instances such as use of ex- cessive force. Porter v. Nussle, 534 U.S. 516, 532 (2002). Although the failure to exhaust administrative remedies is an affirmative de- fense, it is regarded as “a precondition to an adjudication on the merits” and “[w]e have no discretion to waive this exhaustion re- quirement.” Bryant v. Rich, 530 F.3d 1368, 1373–74 (11th Cir. 2008).

Accordingly, “[w]here exhaustion . . . is treated as a matter in abatement and not an adjudication on the merits, it is proper for a judge to consider facts outside of the pleadings and to resolve fac- tual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record.” Id. at 1376 (footnotes omitted).

Here, Piper, Paxton, Fee, Hughes, Smith, Gay, Hobbs, and Cole (the “FCDC Defendants”) argued in their joint motion for summary judgment that Johnson’s claims should be dismissed

2 Pursuant to the PLRA, the district court initially screened Johnson’s com- plaint for frivolity and failure to state a claim and, based on that screening, dismissed Johnson’s claims against Tom Wilson and CorrectHealth. See U.S.C. § 1915A. On appeal, Johnson has forfeited any challenge to the dis- trict court’s dismissal of CorrectHealth by asserting on appeal only that it em- ployed Simmons and by otherwise failing to present any specific arguments about its dismissal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). As to the court’s dismissal of Wilson, Johnson fails to identify any factual allegations in his complaint sufficient to establish Wilson’s liability.

Thus, we AFFIRM the district court’s dismissal of CorrectHealth and Wilson in accordance with its frivolity review under Section 1915A.

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Because exhaustion is a threshold matter, the district court erred by not addressing and resolving any dispute regarding ex- haustion prior to reaching the merits of Johnson’s claims. See id. at 1374–75. Accordingly, we VACATE and REMAND the district court’s order. In determining whether Johnson has properly satis- fied the exhaustion requirement, the district court should consider: (1) whether the FCDC Defendants forfeited the affirmative defense of failure to exhaust by not asserting it in their Rule 12 motion to dismiss, and, as to Simmons, by failing to raise it at all during the lower court and appellate court proceedings; and (2) whether John- son’s failure to argue that the exhaustion defense was forfeited re- sulted in Johnson’s forfeiture argument itself being forfeited. We express no opinion on the proper resolution of these issues or any other issues presented in the briefs.

VACATED AND REMANDED FOR FURTHER PROCEEDINGS.