Varner v. Shepard

• Decision Date: 31 August 2021
• Docket Number: No. 19-12048,19-12048
• Citation: 11 F.4th 1252
• Parties: Christopher VARNER, Plaintiff–Appellant, v. Stan SHEPARD, Jerry Beard, Antonio Binns, Justin Washington, Lenon Butler, Rodgerick Nabors, Julian Greenaway, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

11 F.4th 1252

Christopher VARNER, Plaintiff–Appellant,

v.Stan SHEPARD, Jerry Beard, Antonio Binns, Justin Washington, Lenon Butler, Rodgerick Nabors, Julian Greenaway, Defendants–Appellees.

No. 19-12048

United States Court of Appeals, Eleventh Circuit.

August 31, 2021

Sarah Elisabeth Geraghty, Ryan Primerano, Southern Center for Human Rights, Atlanta, GA, for Plaintiff-Appellant.

Joshua Kyle Brooks, Buckley Beal, LLP, Roger A. Chalmers, Michelle J. Hirsch, Attorney General's Office, Atlanta, GA, for Defendants-Appellees.

Justin Washington, Augusta, GA, Pro Se.

David Michael Shapiro, Roderick & Solange MacArthur Justice Center, Northwestern University School of Law, Chicago, IL, for Amici Curiae ACLU Foundation of Georgia, The American Civil Liberties Union, the Roderick & Solange MacArthur Justice Center.

Before WILSON, JILL PRYOR, and LAGOA, Circuit Judges.

LAGOA, Circuit Judge:

Christopher Varner appeals the district court's order dismissing with prejudice his 42 U.S.C. § 1983 claims against the Georgia Department of Corrections ("GDC") and Augusta State Medical Prison ("ASMP") officials (collectively, "Defendants"). The district court found that Varner did not properly exhaust the available administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. On appeal, Varner argues that there were no available administrative remedies, or, alternatively, that the remedies were exhausted. For the reasons set forth below, we affirm.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

A. GDC Grievance Procedure

Relevant here is GDC's 2012 grievance policy. Upon entering GDC, inmates receive a copy of this policy in their Orientation Handbook and an oral explanation of the policy. The policy allows inmates to assist each other in filling out grievances, and notes that "[i]nstitutional staff will assist offenders who need special help filling out the grievance forms (i.e., due to language barriers, illiteracy, or physical or mental disability

) upon request." GDC "encourages," but does not require, "offenders to try to resolve complaints on an informal basis before filing a grievance." It is clear from the Handbook, however, that a formal grievance must be filed in order to initiate GDC's administrative process.

The GDC policy generally consists of a two-step procedure for submitting a grievance. For the first step, the inmate must file a grievance form within ten days of when he knew or should have known of the incident.² A grievance coordinator screens the form for procedural compliance, including timeliness. If the grievance coordinator finds that the grievance is procedurally flawed, and the warden agrees, the grievance is rejected. If the grievance coordinator finds that the grievance is procedurally compliant (or if the warden disagrees with the grievance coordinator's recommendation to reject the grievance for procedural flaws), then the grievance is processed, investigated, and decided on the merits. For the second step, the inmate can file a central office appeal after receiving a response to his grievance (either a procedural rejection or a decision on the merits).

Grievances reporting physical force that does not comply with GDC's use-of-force procedures—like all grievances—are subject to the ten-day filing deadline, as well as the good cause exception. These types of grievances, however, are not subject to the remainder of the two-step procedure. Instead, such grievances are "automatically forwarded" to the Internal Investigations Unit ("IIU"), and "such actions automatically end the grievance process." "Once a grievance is referred to the Internal Investigations Unit ... then this is the final action that will be taken on the grievance and terminates the grievance procedure." The inmate receives notice that his grievance was forwarded to the IIU and terminated, although Varner alleges that inmates did not receive notice of the outcome of the IIU investigation. Inmates may not appeal the decision to refer a grievance to the IIU. Notably, any subsequent investigation or action taken by the IIU is not part of the grievance procedure.

B. Varner's Claims ³

In his amended complaint, Varner alleges that he was housed at ASMP between 2012 and February 2014 due to his schizophrenia

, organic brain damage, severe diabetes, and bipolar disorder. On February 13, 2014, while Varner was standing in the medication line in a hallway, several officers entered the hallway and shouted epithets at the inmates. When Varner verbally responded to the officers, Sergeant John Williams⁴ grabbed Varner and attempted to handcuff him. Varner struck Sergeant Williams in the head, and the officers responded by bringing Varner into a small vestibule and placing him in a chokehold until he lost consciousness. When Varner regained consciousness, he was handcuffed and bleeding in the vestibule while the officers stood around him. Officers punched, kicked, and stomped on Varner while he was handcuffed and lying on the floor. The officers next brought Varner to the medical unit building and entered an elevator. They rode up and down the elevator four times, with the officers continuing to use force against Varner, including the use of pepper spray and a metal baton, despite Varner being handcuffed and compliant. Finally, the officers took Varner to ASMP's medical unit, where they continued their attacks, even though a nurse pleaded with them to stop. Varner was transferred to a civilian hospital for treatment of a broken eye socket, jaw, and nose, and extensive bruising on his face and torso. Varner continues to suffer from pain in his jaw and feet, frequent headaches, and exacerbation of his preexisting mental illnesses.

On the same day of the incident, the warden referred it to the IIU. Also on the same day as the incident, Varner's father lodged a complaint with ASMP, and Varner's mother did the same shortly thereafter. After reviewing a partial video recording of the incident and interviewing the three officers, the IIU determined that the officers had used excessive force. As a result of the IIU investigation, two of the Defendants in this case, Officer Antonio Binns and Officer Justin Washington, as well as Sergeant Williams, resigned in lieu of termination. Several years later, all three officers pleaded guilty to federal criminal charges related to the assault and were sentenced to five years’ probation, a $2000 fine, and a $100 special assessment. United States v. Williams , No. 1:16-CR-00024 (S.D. Ga. Apr. 12, 2017).

About one month after the incident, on March 12, 2014, Varner filed two grievances. Both of these grievances were related to Varner's diabetes and not the excessive force incident, and both were rejected on procedural grounds.

Varner later filed three grievances related to the excessive force incident—on July 24, 2015, June 24, 2016, and June 21, 2017. These grievances were all rejected as untimely. Varner appealed the rejection of his 2016 grievance, but the appeals investigator rejected the grievance as untimely. Varner did not appeal the rejection of the other two grievances. None of these grievances were categorized as reporting excessive use of force, the type of grievance that would be automatically forwarded to the IIU. In support of their motion to dismiss for failure to exhaust, however, Defendants submitted an affidavit from a prison official, who explains that all grievances, regardless of their categorization, are screened for procedural compliance. Additionally, the same filing deadline under the GDC policy applies to grievances asserting a compliant use of force and grievances asserting an excessive use of force.

On August 30, 2017, Varner and two other ASMP inmates filed an amended complaint in federal district court. The Defendants moved to dismiss. Relevant here, the defendants argued that Varner's claims were barred by the PLRA because he did not exhaust his administrative remedies. In connection with this exhaustion argument, the Defendants and Varner submitted documents, including affidavits, relating to the incident and Varner's grievances.

The district court granted the motion to dismiss as to Varner. Applying this Court's two-step procedure for analyzing exhaustion, see Turner v. Burnside , 541 F.3d 1077, 1082 (11th Cir. 2008), the district court first considered whether, taking Varner's allegations as true, Varner's claims should be dismissed. Because Varner alleged that administrative remedies were not available, and thus the exhaustion requirement would not apply, the district court did not dismiss at the first step of its analysis. At the second step, the district court made factual findings in order to resolve the parties’ factual disputes regarding exhaustion of administrative remedies. The court determined that: (1) administrative remedies were available to Varner; (2) the IIU investigation did not excuse Varner's exhaustion obligation; and (3) Varner's untimely grievances did not satisfy the exhaustion requirement. The district court therefore dismissed Varner's claims with prejudice. Because Varner's co-plaintiffs’ claims were not affected by the dismissal of Varner's claims, the district court certified a final judgment against Varner pursuant to Federal Rule of Civil Procedure 54(b). This appeal ensued.

II. STANDARD OF REVIEW

"We review de novo the interpretation and application of 42 U.S.C. § 1997e(a) ’s exhaustion requirement." Whatley v. Warden ("Whatley I") , 802 F.3d 1205, 1209 (11th Cir. 2015) (quoting Johnson v. Meadows , 418 F.3d 1152, 1155 (11th Cir. 2005) ). The district court's factual findings relating to the exhaustion requirement are reviewed for clear error. Id. Otherwise, "we accept as true the facts as set forth in the complaint and draw all reasonable inferences in [the plaintiff's] favor." Id. (quoting Randall v. Scott , 610 F.3d 701, 705 (11th Cir. 2010) ).

III. ANALYSIS

Under the PLRA, "[n]o action shall be brought with respect to prison conditions under...