Gregory B. BRYANT v. Glenn RICH, R.D. Collins, Lt. Randy Byrd, Sergeant Jason D. Burns, Officer FNU Byrd, et al.; Andrew Priester v. Warden Glenn Rich, Deputy Warden R.D. Collins, Lieutenant Reginald T. Langston, Sergeant Rodney McCloud, Sergeant Byrd, et al.
Nos. 06-11116, 06-12290
United States Court of Appeals, Eleventh Circuit
June 20, 2008
Before EDMONDSON, Chief Judge, and BIRCH and WILSON, Circuit Judges.
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.
We are applying a federal statute and are guided by congressional intent. We will not allow the tolling of AEDPA‘s limitations period when it is clear that the petitioner failed to seek timely review in state court. Cf. Carey, 122 S.Ct. at 2141 (observing that the “willingness to take [the words ‘on the merits‘] as an absolute bellwether [for timeliness] risks the tolling of the federal limitations period even when it is highly likely that the prisoner failed to seek timely review in the state appellate courts“). To do otherwise would “undermine the statutory purpose of encouraging prompt filings in federal court in order to protect the federal system from being forced to hear stale claims.” Id.
Given the decisions of both the Florida Supreme Court and the state trial court, we are satisfied that Petitioner‘s second successive motion was untimely under Florida law. Accordingly, his motion was not “properly filed” for purposes of AEDPA‘s tolling provision; and, as a result, his section 2254 petition is time-barred. See Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1812, 161 L.Ed.2d 669 (2005) (“When a postconviction petition is untimely under state law, ‘that [is] the end of the matter’ for purposes of
III. Conclusion
Here, the state trial court concluded that Petitioner‘s second successive motion for post-conviction relief was not timely filed under Florida law. Neither party disputes that Petitioner‘s motion actually was untimely; nor did the Florida Supreme Court question the state trial court‘s ruling that Petitioner‘s motion was untimely. We conclude, therefore, that Petitioner‘s motion was not properly filed under Florida law and that his section 2254 petition is time-barred under AEDPA.
AFFIRMED.
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
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
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“),
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.”
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 law-
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
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 R. Miller, Federal Practice and Procedure § 1360 at 78 n.15 (3d ed.2004); see also Wyatt, 315 F.3d at 1119 (“[W]e have held that the failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement....“); 18 James Wm. Moore, Moore‘s Federal Practice § 131.30[3][b] at 104 (3rd ed.2008) (noting that a determination “that [a court] has no subject matter jurisdiction, that personal jurisdiction of defendants or of indispensable parties is lacking, that venue is improper, or that plaintiff has failed to comply with some prerequisite to filing suit, such as exhaustion of administrative remedies ... is not a determination of the claim, but rather a refusal to hear it“). That exhaustion is nothing more than a precondition to an adjudication on the merits is confirmed by the language of the PLRA itself: “No action shall be brought with respect to prison conditions ... until such administrative remedies as are available are exhausted.”
Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense—as in Priester‘s
That motions to dismiss for failure to exhaust are not expressly mentioned in Rule 12(b) is not unusual or problematic. “Federal courts ... traditionally have entertained certain pre-answer motions that are not expressly provided for by the rules.” Ritza, 837 F.2d at 369 (quoting 5C Wright & Miller, supra, § 1360 at 77). For instance, courts may decide motions to dismiss that are “closely related to the management of the lawsuit and might generally be characterized as involving matters of judicial administration.” Id.; see, e.g., Int‘l Ass‘n of Entrepreneurs of Am. v. Angoff, 58 F.3d 1266, 1271 (8th Cir.1995) (“While pre-answer motions are ostensibly enumerated in
Beyond doubt, Congress enacted
§ 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate‘s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, the internal review might filter out some frivolous claims. And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy.
Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002) (internal quotation marks and citations omitted). Accordingly, exhaustion should be decided on a
When a court “treats [a] motion as having been brought under
Turning to this case, we note that Priester did not say in his affidavit to the district court that his failure to file a grievance at GSP was due to his fear of violent reprisal at GSP. To the extent that Priester suggests on appeal that he feared beatings at GSP, we will not consider that new argument. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.2004). The facts about whether Priester failed to exhaust his administrative remedies at GSP do not bear on the merits of his claim that he was subjected to violent abuse at Rogers. Also, because the district court treated Defendants’ motions to dismiss like motions for summary judgment, Priester was given an opportunity to develop a record by obtaining affidavits and attaching them to his filings; and Priester did so.16 We conclude, therefore, that the district judge did not err by acting as the factfinder on whether Priester had access to grievance forms at GSP to report his abuse at Rogers.
We review the district court‘s findings of fact for clear error. Cf. Lawrence, 919 F.2d at 1530 (stating that, where the jurisdictional facts are not intertwined with the merits, the “standard of reviewing a district court‘s findings of jurisdictional facts is the clearly erroneous standard“). “For a factual finding to be clearly erroneous, this court, after reviewing all of the evidence, must be left with the definite and firm conviction that a mistake has been committed.” Dresdner Bank AG v. M/V Olympia Voyager, 465 F.3d 1267, 1275 (11th Cir.2006) (internal quotation marks omitted). The district court found that Priester‘s allegation that he was denied access to grievance forms at GSP was not credible, especially given unrebutted evidence that Priester successfully filed a grievance at GSP, although it was one for property loss.17 That the district court drew this inference is not unreason-
B. Gregory Bryant18
Bryant raises two exhaustion issues on appeal. First, he argues that his appeal of the warden‘s denial of his first grievance—although untimely—satisfied the PLRA‘s exhaustion requirement. We disagree. To exhaust administrative remedies in accordance with the PLRA, prisoners must “properly take each step within the administrative process.” Johnson, 418 F.3d at 1158 (internal quotation marks
omitted). If their initial grievance is denied, prisoners must then file a timely appeal. See id. (stating in dicta that “[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison‘s administrative rules require” (internal quotation marks omitted) (alteration in original)); cf. Harper, 179 F.3d at 1312 (concluding that a prisoner who declined to appeal an untimely grievance failed to exhaust his administrative remedies).
Although Bryant properly filed a grievance reporting his first allegation of abuse, he nevertheless failed to file a timely appeal under the SOP in effect at the time. Bryant contends, however, that he was merely following his counselor‘s instructions in submitting his appeal within five business days instead of four. Bryant also contends that his appeal was delayed because he received no appeal form until the day before he filed his appeal. Even if we were to accept that Bryant‘s appeal was untimely because his counselor was mistaken about the time limits, we cannot say that Bryant successfully exhausted his administrative remedies. The prison‘s administrative appeals process permitted the
Second, Bryant argues that he failed to report the second incident of prison abuse, which occurred in retaliation for filing his first grievance, because he feared additional violent reprisals by Rogers officials. This argument is unavailing. Like Priester, Bryant was later transferred to another prison where the threat of violence was removed.19 There, he could have filed an out-of-time grievance and then shown good cause for its untimeliness. Because he did not, Bryant failed to exhaust an administrative remedy that was available to him. In sum, we conclude that Bryant—like Priester—did not exhaust all administrative remedies as required by the PLRA.
III. Conclusion
Because neither Priester nor Bryant exhausted all of their administrative remedies before filing their suits, we affirm the district court‘s decisions dismissing their claims without prejudice.
Affirmed.
WILSON, Circuit Judge, concurring in part, dissenting in part:
I concur in the majority‘s opinion with respect to Gregory Bryant. I do not think, however, that the majority‘s opinion in Part II-A can be reconciled with the recent Supreme Court decision in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
In Jones, the Chief Justice, writing for a unanimous Supreme Court, overturned several judicially-created procedural rules adopted by courts to implement the PLRA‘s exhaustion requirement. Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Several circuits had begun treating exhaustion under the PLRA as a special pleading requirement that the prisoner must sufficiently demonstrate in his complaint. See Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.1998); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998) (per curiam). Jones expressly overturned this practice, stressing that the courts should not have departed from their “usual practice under the Federal Rules on the basis of perceived policy concerns.” Jones, 549 U.S. at —, 127 S.Ct. at 919-20. It noted that “when Congress mean[s] to depart from the usual procedural requirements, it [does] so expressly,”
Failure to exhaust under the PLRA is an affirmative defense the defendant must plead and prove.
Our usual practice is to consider affirmative defenses, such as failure to exhaust
A district court should not grant summary judgment where genuine issues of material fact exist about an affirmative defense. See
The majority departs from our usual procedural practice by directing district courts to treat failure to exhaust not as an affirmative defense, but to consider it on a “motion to dismiss” not enumerated in
As support for its position, the majority cites Ninth Circuit precedent, including Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.
This Court, on the other hand, has consistently treated exhaustion in other contexts on summary judgment, determining whether “there is no genuine issue of material fact.” Counts v. Am. Gen. Life and Accident Ins. Co., 111 F.3d 105, 108 (11th Cir. 1997) (failure to exhaust administrative remedies under ERISA); Turner v. Am. Fed‘n of Teachers Local 1565, 138 F.3d 878, 881-82 (11th Cir.1998) (failure to exhaust contractual remedies under the LMRA); Stewart, 232 F.3d at 846 (failure to exhaust administrative remedies under Title VII). The majority would subject exhaustion under the PLRA to an entirely different procedural framework than the one this Court applies to exhaustion in other contexts.
In light of the PLRA and Title VII‘s purposes, I see no reason to treat exhaustion under each statute differently. Congress enacted the PLRA, in part, “to reduce the quantity and improve the quality of prisoner suits” and to “afford[] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002). Indeed, “in some instances, corrective action taken in response to an inmate‘s grievance might ... obviat[e] the need for litigation.” Id. at 525, 122 S.Ct. 983. Likewise, in order to promote cooperation and voluntary compliance with Title VII, as opposed to litigation, Congress created an administrative framework to encourage parties to “settle disputes through conference, conciliation, and persuasion” before allowing the aggrieved party to file a lawsuit. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974). This Court treats failure to exhaust under Title VII on summary judgment, whereby a court “must avoid weighing conflicting evidence or making credibility determina-
Furthermore, I am unaware of, and majority does not point out, any precedent wherein this Court has treated exhaustion, or any other affirmative defense, as a “matter in abatement,” directing a district court to decide genuine issues of material fact. Accordingly, by departing from our usual procedural practice with respect to exhaustion and other affirmative defenses, and treating exhaustion under the PLRA under this novel procedural framework, the majority adopts an approach that is in tension with Jones. See 549 U.S. at —, 127 S.Ct. at 919 (stressing that when the PLRA is silent on a procedural issue “the usual practice should be followed“).
Lastly, treating exhaustion on summary judgment does not undermine Congress‘s intent in enacting the PLRA. A prisoner cannot defeat summary judgment by relying on sham affidavits, bare and self-serving allegations, or other evidence that is incredible as a matter of law. He must raise more than a mere scintilla of evidence in support of his position: in order to defeat summary judgment, there must be evidence on which the jury could reasonably find for the prisoner. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)). In the vast majority of cases where the defendant raises exhaustion, a prisoner‘s failure to exhaust will be clear. In these cases, summary judgment should be granted. In some cases, however, where enough evidence exists such that a jury could reasonably find that the prisoner has exhausted his available remedies, the court should abstain from weighing the evidence and deny summary judgment.
Notes
Of course, [Priester] avers that unidentified staff at GSP continued to deny him access to grievance forms. This farfetched contention simply cannot be taken at face value. Not infrequently, this Court has considered cases involv[ing] the alleged use of excessive force at GSP; even in these cases, GSP officials have not prevented prisoner plaintiffs from fully exhausting the administrative process. See, e.g., Palmer v. Smith, CV 604-075 (S.D. Ga. June 29, 2004). [Priester‘s] suggestion that prison officials at GSP
By the way, Priester has not objected to the district court‘s consideration of the filings and its own records in other inmate cases.denied him access to grievance forms for over two years in order to protect colleagues at Rogers is sorely lacking in credibility. The believability of the averment is further eroded by the fact that other inmates at Rogers who have recently brought excessive force claims against Defendants did file grievances regarding their claims. See, e.g., Hooks v. Rich, CV 605-065 (S.D.Ga. July 13, 2005).