Palmore v. Tucker
| Decision Date | 26 June 2013 |
| Docket Number | D.C. Docket No. 5:10-cv-00040-LGW-JEG,No. 12-11338,12-11338 |
| Parties | EDWARD PALMORE, Plaintiff-Appellant, v. TINA TUCKER, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
Appeal from the United States District Court
for the Southern District of Georgia
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
Edward Palmore, a Georgia prisoner proceeding pro se, appeals the dismissal of his 42 U.S.C. § 1983 complaint against two correctional officers, TinaTucker and Steven Chambless, which alleged deliberate indifference. The district court did not reach the merits of Mr. Palmore's claims, and dismissed the complaint because it determined that Mr. Palmore had failed to exhaust his administrative remedies. We reverse because Mr. Palmore made a sufficient showing that the grievance process was not made available to him, and because the district court failed to make findings of fact on the exhaustion issue.
On August 19, 2009, Mr. Palmore, an inmate at the D. Ray James Prison, told Correctional Officer Tucker that his cellmate, Keith Wilson, possessed a cellular phone in violation of prison policy. According to Mr. Palmore, Officer Tucker promised to look into the matter. Later that day, Mr. Wilson allegedly confronted Mr. Palmore, mentioned Officer Tucker's name, and threatened to harm Mr. Palmore if his cell phone was confiscated. Correctional Officer Chambless and Deputy Warden Knowles conducted a search of the cell shared by Mr. Palmore and Mr. Wilson on August 21, 2009, for the suspected contraband but did not find a cellular phone.
That same day, Mr. Palmore filed an informal grievance (#25590) against Officer Tucker claiming that he told her that he felt threatened by Mr. Wilson and asked to be moved to another cell. His grievance also alleged that Officer Tucker betrayed his confidence by conveying the information to Mr. Wilson, which placed him in physical danger. Mr. Palmore requested that he be moved to another celland that Officer Tucker receive training on confidentiality requirements. This informal grievance was rejected by prison authorities.
Mr. Palmore alleged in his complaint that, sometime thereafter, he returned to his cell where Mr. Wilson yelled at him and hit him multiple times. Mr. Palmore was then taken to the prison's medical facility, given a band-aid for his head, and moved to segregation. By then, Mr. Palmore desired to file a formal grievance against Officer Tucker on the grounds previously asserted in his informal grievance. In the district court, Mr. Palmore submitted an affidavit stating that prison officials had refused to provide him with formal grievance forms while he was in segregation. See D.E. 74 at ¶ 3 ().1
On September 1, 2009, Mr. Palmore filed three new informal grievances against various prisons officials. One of those grievances (#27535) recounted the search conducted by Officer Chambless and Deputy Warden Knowles, the fact that Mr. Palmore requested cell changes from both Officers Tucker and Chambless, and the alleged beating at the hands of Mr. Wilson after his request went unaddressed.Grievance #27535 was also rejected. In his response to Officer Chambless' answer, Mr. Palmore stated that he wanted to file a formal grievance relating to his complaint in grievance #27535, but prison officials again refused to provide him with the proper forms. See D.E. 33 at 2 ()
Mr. Palmore eventually filed a federal suit under § 1983 reiterating these allegations. The district court screened his complaint and recognized cognizable claims of deliberate indifference against Deputy Warden Knowles and Officers Tucker and Chambless. See D.E. 16.2 Mr. Palmore's claims were ultimately dismissed for failure to exhaust administrative grievances. The district court, adopting the magistrate's report, concluded that Mr. Palmore failed to file a formal grievance after his informal grievances were denied. See D.E. 133 at 6, adopted by D.E. 138. This appeal followed.
We review de novo the dismissal of a § 1983 action for failure to properly exhaust administrative remedies. See Johnson v. Meadows, 418 F.3d 1152, 1155(11th Cir. 2005). "We review the district court's findings of fact for clear error." Bryant v. Rich, 530 F.3d 1368, 1377 (11th Cir. 2008).
The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust all available administrative remedies before filing suit in federal court. See 42 U.S.C. § 1997e. Administrative remedies, however, need only be exhausted when they are made available to inmates "and to be available a 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 omitted).
There is a two-step process for determining whether an inmate has exhausted his administrative remedies. Id. at 1082. If the complaint is not dismissed at the first stage, the court moves on to the second step, which requires it "to make specific findings in order to resolve the disputed factual issues related to exhaustion." Id.
In this case, the parties' versions of events are in conflict as to the availability of the grievance process. According to affidavits submitted by Officers Tucker and Chambless, Mr. Palmore never appealed the rejection of his informalgrievances by filing a formal grievance, and those forms were readily available to him. See, e.g., D.E. 76 at 1-3 (). According to Mr. Palmore, he was not able to file a formal grievance because prison officials refused to provide him with the necessary forms. Mr. Palmore...
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