530 F.3d 1368 (11th Cir. 2008), 06-11116, Bryant v. Rich

Docket Nº:06-11116, 06-12290.
Citation:530 F.3d 1368
Party Name:Gregory B. BRYANT, Plaintiff-Appellant, v. Glenn RICH, R.D. Collins, Lt. Randy Byrd, Sergeant Jason D. Burns, Officer FNU Byrd, et al., Defendants-Appellees. Andrew Priester, Plaintiff-Appellant, v. Warden Glenn Rich, Deputy Warden R.D. Collins, Lieutenant Reginald T. Langston, Sergeant Rodney McCloud, Sergeant Byrd, et al., Defendants-Appellees.
Case Date:June 20, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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530 F.3d 1368 (11th Cir. 2008)

Gregory B. BRYANT, Plaintiff-Appellant,


Glenn RICH, R.D. Collins, Lt. Randy Byrd, Sergeant Jason D. Burns, Officer FNU Byrd, et al., Defendants-Appellees.

Andrew Priester, Plaintiff-Appellant,


Warden Glenn Rich, Deputy Warden R.D. Collins, Lieutenant Reginald T. Langston, Sergeant Rodney McCloud, Sergeant Byrd, et al., Defendants-Appellees.

Nos. 06-11116, 06-12290.

United States Court of Appeals, Eleventh Circuit.

June 20, 2008

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[Copyrighted Material Omitted]

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McNeill Stokes , Attorney at Law, Atlanta, GA, for Plaintiffs-Appellants.

Andrea S. Hirsch, Herman Gerel LLP, Devon Orland, Annarita McGovern Busbee and Gary L. Seacrest , Seacrest, Karesh, Tate & Bicknese, LLP, David C. Will and Michelle Katherine McDonald , Owen, Gleaton, Egan, Jones & Sweeney, LLP, Matthew Peter Stone , Freeman, Mathis & Gary, LLP, Atlanta, GA, William Clinton Rhodes , Atty. at Law, Snellville, GA, David R. Smith , Brannen, Searcy & Smith, Savannah, GA, Frank P. Harris , Harris & Bunch, LLC, Marietta, GA, for Defendants-Appellees.

Appeals from the United States District Court for the Southern District of Georgia.


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Before EDMONDSON , Chief Judge, and BIRCH and WILSON , Circuit Judges.

EDMONDSON , Chief Judge:

Andrew Priester and Gregory Bryant have filed a petition for reconsideration en banc. Treating their petition for en banc reconsideration as a petition for panel rehearing, we withdraw our opinion dated 31 May 2007 and substitute the following opinion in its place:1

Two inmates-Andrew Priester (“Priester" ) and Gregory Bryant (“Bryant" )-brought individual suits against prison officials (“Defendants" ) under 42 U.S.C. § 1983 to contest the conditions of their confinement at Rogers State Prison (“Rogers" ). Defendants filed motions to dismiss, which the district court treated as motions for summary judgment. Because both Priester and Bryant failed to exhaust their administrative remedies, the district court dismissed Priester's and Bryant's complaints without prejudice. 2 Priester and Bryant now appeal.3 Discovering no reversible error, we affirm.

I. Background

A. Andrew Priester

Assuming for the moment that Priester's factual allegations are true, here are the facts. When Priester was incarcerated at Rogers, four prison officials assaulted him on four different occasions between August and December 2003. Despite knowledge of these beatings, both the warden and deputy warden remained deliberately indifferent and failed to prevent Priester's abuse. Priester requested grievance forms from other Rogers officials to report the beatings; but he received none. Priester also contends that prison officials at Rogers generally used force or the threat of force to discourage inmates from filing grievances.

In January 2004, Priester received a transfer from Rogers to Georgia State Prison (“GSP" ). During a visit to the GSP infirmary, Priester reported his abuse at Rogers to a psychiatrist and a counselor. He also requested a form to file a grievance about the abuse. The psychiatrist and the counselor responded that his mental health problems had caused him to be delusional; and, as a result, they refused to give him a grievance form to report the beatings. Nothing suggests that Priester made some further attempt to file a grievance about the abuse. He later obtained and submitted a grievance form at GSP for

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an unrelated incident about lost property.4

Priester filed this suit against Defendants under section 1983 ; he alleges the use of excessive force in violation of federal and state law. Before filing an answer, Defendants moved to dismiss the suit because Priester failed to exhaust his administrative remedies in accordance with the Prison Litigation Reform Act (“PLRA" ), 42 U.S.C. § 1997e(a) . The district court dismissed Priester's complaint without prejudice.

B. Gregory Bryant

As with Priester, we construe Bryant's factual allegations as true. According to Bryant, he was twice subjected to excessive force by prison officials at Rogers. The warden and deputy warden were deliberately indifferent and failed to prevent his abuse. The first incident occurred on 17 March 2004, when Bryant was beaten and kicked by two officers at the instigation of another officer. Bryant filed a grievance for the beating; but it was denied on 7 April 2004.

Bryant's counselor advised him that he had five business days to appeal the denial of his grievance, which he did on 14 April. But under the prison's standard operating procedures (“SOP" ) in effect at the time, Bryant actually had only four business days to file his appeal.5 In addition, the form on which Bryant submitted his appeal stated that the appeal was due within four business days. The form also indicated that an untimely appeal might be considered if the reason why it was untimely was clearly stated. Bryant's appeal was late and gave no explanation for its tardiness; it was dismissed as untimely.

On 19 April 2004, Bryant was beaten again-this time in retaliation for filing his grievance. Fearing another violent reprisal, he did not file a second grievance. Bryant was eventually transferred to Wheeler Correctional Institution; but he filed no grievances there about his mistreatment at Rogers.

Bryant brought suit under section 1983 . Defendants filed motions to dismiss, which the district court construed as motions for summary judgment. The district court granted the motions and dismissed Bryant's complaint without prejudice for failure to exhaust administrative remedies under the PLRA.

II. Discussion

The PLRA requires inmates to exhaust available administrative remedies before filing a lawsuit: “No action shall be brought with respect to prison conditions under section 1983 ... by a prisoner ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) . This rule applies to all inmate suits alleging excessive force, whether the prisoner alleges an isolated episode of mistreatment or “a prolonged and sustained pattern of harassment and intimidation by corrections officers." See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 991-92, 152 L.Ed.2d 12 (2002) (internal quotation marks omitted).

Therefore, “when a state provides a grievance procedure for its prisoners, ... an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit."

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Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir.2005) (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir.2000) ). We have no discretion to waive this exhaustion requirement. Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir.1998) .

A. Andrew Priester

That Priester filed no grievance at either Rogers or GSP about the beatings he allegedly suffered is undisputed. Priester contends that he attempted to file grievances at both facilities; but his requests for the pertinent forms were either unanswered or denied. He also argues that Rogers officials deterred him from filing grievances through the threat of violence. Thus, he argues that no grievance procedure was “available" for him to exhaust.

Even assuming-without deciding-that no grievance procedures were available to Priester at Rogers, the record supports that Priester did have grievance procedures available to him when he transferred to GSP.6 Yet, he failed to exhaust them.

We recognize that a grievance filed after Priester's transfer to GSP would have been untimely. But the relevant grievance procedures provide inmates with the opportunity to request consideration of untimely grievances for good cause. Thus, Priester could have exhausted his administrative remedies by filing a grievance at GSP and then by showing good cause for its tardiness. But, he filed no grievance about the abuse. See Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir.1999) (“Since appellant has not sought leave to file an out-of-time grievance, he cannot be considered to have exhausted his administrative remedies." ); cf. Johnson, 418 F.3d at 1159 (“Prisoners must timely meet the deadlines or the good cause standard of Georgia's administrative grievance procedures before filing a federal claim." ).

Priester says that GSP officials denied him access to grievance forms. Defendants attempt to rebut this contention by showing, among other things, that Priester successfully obtained and submitted a grievance form at GSP but used it for another matter: one involving lost property. Evidence of the property loss grievance, however, does not necessarily refute Priester's allegation that he was denied grievance forms to report physical abuse. It is possible that Priester was denied access to grievance forms at GSP for the purpose of reporting prison beatings, but not for the purpose of reporting property loss. We conclude that enough conflicting evidence exists to raise a genuine issue of material fact about whether administrative remedies were available to Priester at GSP.

We decide, however, that the district judge did not err by acting as a

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factfinder in resolving this factual dispute.7 Instances exist-such as those involving jurisdictional issues8 -when judges may resolve factual questions.9 One such instance is when a judge must decide a motion to dismiss for failure to exhaust nonjudicial remedies. See Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.2003) (“In deciding a motion to dismiss for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." ).

Even though a failure-to-exhaust defense is non-jurisdictional,10 it is like a defense for lack of jurisdiction in one important sense: Exhaustion of administrative remedies is a “matter[ ] in abatement, and ordinarily [does] not deal with the merits." 5C Charles Alan Wright & Arthur...

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