Turner v. Burnside
| Decision Date | 28 August 2008 |
| Docket Number | No. 07-14791.,07-14791. |
| Citation | 541 F.3d 1077 |
| Parties | Willie B. TURNER, Plaintiff-Appellant, v. Hale Edward BURNSIDE, Calvin Ramsey, Otis Right, Roger Hinkle, John Doe, I, et al., Defendants-Appellees, |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Michelle J. Hirsch, Stat of GA Dept. of Law, Atlanta, GA, Kevin T. Brown, Mary Beth Hand, Sell & Melton, LLP, Macon, GA, for Defendants-Appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before CARNES and MARCUS, Circuit Judges, and BUCKLEW,* District Judge.
Willie Turner, an inmate at the Men's State Prison in Hardwick, Georgia, filed a 42 U.S.C. § 1983 lawsuit against various officials and employees of the Georgia Department of Corrections who worked at the prison. His lawsuit claimed that he had been subjected to cruel and unusual punishment as a result of an incident in which he was deliberately exposed to electrical shock. After the district court dismissed Turner's complaint for failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a), he filed this appeal.
Turner's claims are based on allegations about what happened to him on August 24, 2004, while he was on a work detail in the prison kitchen. According to his complaint, a prison employee supervising inmates forced Turner to clean an oven even after Turner had protested that it was not safe to do so because the oven was sparking electricity and the floor was wet. When he touched the oven, Turner received an electrical shock that knocked him to the ground and permanently damaged his leg. Instead of turning off the power or sympathizing with Turner, the supervisor joked about what had happened, called Turner stupid, and filed a disciplinary report against him. Turner alleges that the supervisor later told him that exposing Turner to the risk of electrical shock was his way of getting back at him for being too fat. After he was shocked, a prison guard took Turner to the prison's infirmary where he contends that he received deliberately indifferent medical care.
The grievance procedures in effect at the Men's State Prison in Hardwick are those contained in the Georgia Department of Corrections' Standard Operating Procedure IIB05-0001. (Our description of that SOP is of the version that existed at the time these facts arose.) The first step requires the inmate to file a written informal grievance with his grievance counselor within ten days of the date that the inmate "discovered or reasonably should have discovered the incident giving rise to the complaint." Turner did that. On August 30, 2004, six days after being shocked, Turner gave his grievance counselor an informal grievance form complaining that he had been shocked and had received inadequate medical treatment afterwards.
When an inmate's informal grievance alleges physical abuse or excessive force, as Turner's did, the SOP requires the inmate's counselor to forward it to the grievance coordinator within two business days of receipt. The grievance coordinator must then "ensure that the inmate is promptly issued a [formal] grievance form" and must forward a copy of the informal grievance to the Internal Investigations Unit of the Office of Professional Standards. From the allegations in Turner's complaint, which we must accept as true at this stage, it appears that either the grievance counselor or the coordinator may have failed to act as required. On September 7, 2004 Turner's counselor told him that she did not know where his informal grievance was but that she would give him a formal grievance form before his time to file ran out. There is some ambiguity in the SOP about the deadline for filing a formal grievance under certain circumstances, but none of that ambiguity affects the outcome here. Under any interpretation of the SOP, Turner met the deadline by filing a formal grievance on the same day the grievance counselor gave him the form.
According to the SOP, after an inmate submits a formal grievance, the warden, superintendent, or someone else designated to resolve the inmate's complaint must review the grievance and "provide a written response stating the reason(s) for the decision reached." The grievance coordinator then gives to the inmate the response to the formal grievance along with the original grievance form that the inmate submitted. All of this must be done within thirty days of the date that the inmate submits his formal grievance, unless the grievance coordinator authorizes a one-time, ten-day extension to allow for a more complete investigation of the allegations in the grievance. If the warden, superintendent, or designee denies the grievance or fails to respond in writing to it within thirty (or forty, if extended) days after receipt, the SOP provides that the inmate may appeal to the Office of the Commissioner within five days of receiving a response or of the expiration of the allotted time for one. Upon notice that the inmate wishes to appeal the response or lack of one, the counselor or grievance coordinator must provide the inmate with an appeal form for this purpose.
It is from that stage of the procedures the issue before us arises. The allegations are that on September 9, 2004, two days after Turner submitted his formal grievance, Warden Tydus Meadows called him "to security." When Turner arrived, Meadows was holding the formal grievance form Turner had submitted, and said, "Oh — you're the one that got shocked!" The warden told him, according to Turner: "that if I didn't like the way they did things around here he would put my ass in the van with inmate Johnson and transfer me so far south that I would never be able to see my family again till I got out of the Georgia Prison System." Meadows then tore up Turner's complaint in front of him and said that he "had better not hear of another grievance or lawsuit pertaining to [Turner] getting shocked."
In the district court the defendants raised the exhaustion of administrative remedies defense in their motion to dismiss. Attached to the motion was an affidavit from the secretary of the Men's State Prison laying out the grievance process and stating that she could not find in Turner's file any formal grievance relating to the subject matter of this lawsuit. Turner responded that the reason she could not find his formal grievance is that Warden Meadows had ripped it up. He contended that he had properly exhausted his remedies to the extent that he could. Turner also contended, because the defendants' motion to dismiss relied on information outside the pleadings, it was really a motion for summary judgment. On that basis, he submitted three affidavits in which he swore to the exhaustion facts that we have recounted.
The magistrate judge recommended that Turner's complaint be dismissed without prejudice for failure to exhaust all of his administrative remedies, as required by the PLRA. Accepting as true Turner's allegation that the warden had torn up his formal grievance, the magistrate judge concluded that in order to exhaust his administrative remedies Turner should have: "(1) filed an additional grievance (formal or informal); (2) sought an appeal of the warden's destroying his grievance, which could be construed as a denial of the grievance; or (3) sought leave to file an additional and/or out-of-time grievance." Turner objected to the recommendation, contending that the warden's threat to ship him far away from his family had rendered his administrative remedies unavailable. Turner asserted his position that the defendants' motion should be considered as one for summary judgment.
The district court overruled Turner's objections and adopted the magistrate's recommendation. In doing so, the court expressed its belief that threats alone cannot make administrative remedies unavailable and, even if they could, Turner should have taken the three actions identified by the magistrate judge.
Turner first contends that the district court made improper findings of fact by looking beyond the complaint to consider facts alleged in the affidavits submitted by both parties. The defendants argue that the district court did not make any findings of fact in dismissing Turner's suit, and even if it did so, that is permitted.
This Court has recently decided this issue. We held that a defense of failure to properly exhaust available administrative remedies under the PLRA should be treated as a matter in abatement. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.2008). This means that procedurally the defense is treated "like a defense for lack of jurisdiction," although it is not a jurisdictional matter. Id. As a result, deciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process. Cf. Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) ().
First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the plaintiff's version of the facts as true. If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed. See Bryant, 530 F.3d at 1373-74 (); cf. Lawrence, 919 F.2d at 1529 . This process is...
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Part 1: complete case summaries in alphabetical order.
...Reform Act GRIEVANCE PROCEDURES, PRISONER: Exhaustion, PLRA-Prison Litigation Reform Act, Procedures, Retaliation Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008). A state prisoner brought a [section] 1983 action against various officials and employees of the Georgia Department of Correct......