David Zavala v. Timothy Ward, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10989
Non-Argument Calendar
____________________
DAVID ZAVALA,
Plaintiff-Appellant,
versus
COMMISSIONER TIMOTHY C. WARD,
In his individual and official capacity,
ASST COMMISSIONER RICKY MYRICK,
ROBERT TOOLE,
Director of Field Operations,
REGIONAL DIRECTOR TAYLOR,
GD&CP/SMU,
WARDEN BENJAMIN FORD,
GD&CP/SMU, et al.,
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2 Opinion of the Court 21-10989
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:19-cv-00383-TES-CHW
____________________
Before WILSON , J ORDAN , and BRANCH, Circuit Judges.
PER CURIAM:
David Zavala, a state prisoner proceeding pro se, appeals the
district court’s order dismissing his complaint for failure to exhaust
administrative remedies. Zavala brought suit against Georgia
Department of Corrections (“GDOC”) prison officials (hereinafter
“the GDOC Officials”) under 42 U.S.C. § 1983—alleging excessive
force, retaliation, conditions of confinement, due process
violations, inadequate medical treatment, denial of access to
GDOC’s grievance procedures, and loss of personal property. He
also appeals the district court’s denial of his post-judgment motions
under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure
and asserts that the district court improperly converted a motion
to dismiss into a motion for summary judgment. The heart of
Zavala’s appeal, however, is that the district court erred in
determining that he failed to exhaust administrative remedies for
his claims. Because we agree with the district court as to all but
one of Zavala’s claims, we affirm in part and reverse in part.
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I. Background
In 2019 Zavala filed eight grievances with GDOC related to
five categories of claims: (1) excessive force; (2) due process; (3)
conditions of confinement; (4) retaliation; and (5) inadequate
medical care. The warden rejected these grievances, finding in
some instances that there was no evidence to support Zavala’s
allegations and determining in others that Zavala had raised more
than one issue in a grievance, thus violating the single-issue rule
which requires prisoners to limit each grievance to one issue only.
Zavala subsequently filed a pro se complaint under 42 U.S.C. § 1983
against the GDOC Officials relating to these grievances in U.S.
District Court for the Middle District of Georgia.
The GDOC Officials moved to dismiss Zavala’s complaint,
arguing that Zavala failed to comply with GDOC’s procedures in
filing most of these grievances, resulting in Zavala failing to
exhaust his administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”). Although the GDOC Officials
moved to dismiss seven of the claims primarily on exhaustion
grounds, they conceded that Zavala “properly exhausted the
grievance procedure” for Grievance Number 281515 because this
grievance was forwarded to the GDOC Criminal Investigations
Division for further review. Thus, they asserted below that “the
only claims [Zavala] exhausted prior to the filing of this lawsuit”
were those found in Grievance Number 281515 which claimed (1)
that Zavala “was subjected to an excessive [use] of force during a
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4 Opinion of the Court 21-10989
cell extraction[;]” and (2) “that his constitutional [due process]
rights had been violated in various ways,” including being denied
meals, showers, and proper cell sanitation.1 Accordingly, instead
of moving to dismiss the claims related to Grievance Number
281515 on exhaustion grounds, the GDOC Officials argued only
that the due process claims in this grievance should be dismissed
for failing to state a claim. The GDOC Officials did not argue that
the excessive force claim raised in Grievance Number 281515
should be dismissed on any ground.
The magistrate judge issued a report and recommendation,
recommending that the district court dismiss Zavala’s complaint
because he failed to exhaust his administrative remedies for all
eight of his grievances. For three of the grievances, including
Grievance Number 281515, the magistrate judge determined that
Zavala had failed to properly exhaust administrative remedies
because he violated GDOC’s single-issue rule by submitting more
than one issue in each grievance. The magistrate judge’s report
1 As discussed later in this opinion, it is unclear if Grievance Number 281515
actually raised any due process claims or if it raised only an excessive force
claim. The face of Grievance Number 281515 that was attached to Zavala’s
complaint raises an excessive force claim only. In their motion to dismiss, the
GDOC Officials submitted what they assert was an attachment to Grievance
Number 281515, which raised the due process claims. The signature date on
this attachment is four days after the signature date on Grievance Number
281515, and Zavala argued below that this attachment was sent with a
different grievance and did not pertain to Grievance Number 281515. If
Zavala is correct, then Grievance Number 281515 would not violate the single-
issue rule.
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21-10989 Opinion of the Court 5
never referenced the GDOC Officials’ concession that Zavala
properly exhausted Grievance Number 281515. As to the five
remaining grievances, the magistrate judge determined that Zavala
failed to properly exhaust his administrative remedies because he
did not timely file a central office appeal for these grievances. The
district court adopted the magistrate’s report and recommendation
and dismissed Zavala’s complaint. Accordingly, it determined that
Zavala failed to exhaust his claims.2 Notably, the district court, like
the magistrate judge, never referenced the GDOC Officials’
concession that Zavala exhausted Grievance Number 281515.
After the district court dismissed Zavala’s complaint
without prejudice and entered judgment in favor of the GDOC
Officials, Zavala moved to alter the judgment under Rule 59(e),
which the district court denied. Zavala moved again for post-
judgment relief under Rule 60(b), which the district court also
denied. This appeal followed.
II. Standard of Review
We review the granting of a motion to dismiss de novo.
Georgia Elec. Life Safety & Sys. Ass’n, Inc. v. City of Sandy Springs, 965
F.3d 1270, 1274 (11th Cir. 2020). The district court’s interpretation
and application of the PLRA’s exhaustion requirements are also
reviewed de novo. Whatley v. Smith, 898 F.3d 1072, 1082 (11th Cir.
2 The district court determined that Zavala failed to exhaust Grievance
Numbers 281515, 293815, and 285957 for violating the single-issue rule. It
determined that Zavala failed to exhaust Grievance Numbers 283697, 282680,
285962, 288104, and 290298 for failing to file a central office appeal.
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6 Opinion of the Court 21-10989
2018). “However, we review the district court’s factual findings on
the issue of exhaustion for clear error.” Id. We review the denial
of post-judgment relief for abuse of discretion. Jackson v. Crosby,
437 F.3d 1290, 1295 (11th Cir. 2006).
III. Discussion
On appeal, Zavala raises several arguments. He argues that
the district court improperly converted the GDOC Officials’
motion to dismiss to a motion for summary judgment and that the
magistrate judge improperly granted the GDOC Officials’ motions
to stay discovery. He also argues that the district court erred in
determining that he failed to exhaust his administrative remedies.
We disagree with Zavala on all points except one. We agree that
the district court erred in determining that Zavala failed to exhaust
administrative remedies for the excessive force claim contained in
Grievance Number 281515. The district court did not err,
however, in determining that Zavala failed to exhaust his
administrative remedies for the remainder of his claims.
Accordingly, we reverse in part and affirm in part for the reasons
below.
We begin by addressing Zavala’s argument that the district
court improperly converted the GDOC Officials’ motion to dismiss
to a motion for summary judgment without providing notice to
Zavala by considering facts outside of his pleading. This argument
is without merit. Neither the magistrate judge’s report nor the
district court’s order adopting the report made any indication that
the district court converted the motion to dismiss to a motion for
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21-10989 Opinion of the Court 7
summary judgment. And the district court’s order did not grant
judgment in favor of the GDOC Officials. Instead, it dismissed
Zavala’s claims without prejudice for failure to exhaust
administrative remedies. Furthermore, because PLRA exhaustion
is treated as a matter in abatement rather than a judgment on the
merits, a district court may consider documents outside the
pleadings in resolving factual disputes at the motion to dismiss
stage. Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008). Thus, to
the extent Zavala takes issue with the fact that the district court
considered documents outside of the pleadings in ruling on the
motion to dismiss, the district court properly considered these
documents.
Turning to Zavala’s argument that the magistrate judge
erred in granting the GDOC Officials’ motion to stay discovery, we
conclude that Zavala failed to preserve this argument because he
did not object to the magistrate judge’s orders staying discovery.
We have held that “where a party fails to timely challenge a
magistrate’s nondispositive order before the district court, the
party waived his right to appeal those orders in this Court.” Smith
v. Sch. Bd. of Orange Cnty., 487 F.3d 1361 (11th Cir. 2007). Because
Zavala never challenged the magistrate judge’s discovery rulings
with the district court, he waived his right to challenge these
rulings in this Court.
We now turn to the heart of Zavala’s appeal; his argument
that the district court improperly determined that he failed to
exhaust his administrative remedies under the PLRA.
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We begin, as we must, with the statute. The PLRA provides
that “[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). In explaining the PLRA, we have said that
“when a state provides a grievance procedure for its prisoners, as
Georgia does here, 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.” Varner v.
Shepard, 11 F.4th 1252, 1257 (11th Cir. 2021) (quotations omitted),
cert. denied, 142 S. Ct. 1172 (2022).
The GDOC employs a two-step grievance procedure as set
out in their Standard Operating Procedure No. 227.02. First,
within ten days of the date the prisoner knew or should have
known of the facts giving rise to his claims, a prisoner must
complete a signed grievance form that legibly states the complaint
and requested relief. The grievance must relate to a single issue or
incident. If the grievance has more than one issue or incident, then
the prison’s Grievance Coordinator should reject the grievance for
being procedurally barred. If the grievance is accepted, then it is
investigated and reviewed by the Warden, who has forty days to
render a decision. Second, if the Warden rejects the grievance, or
does not render a decision within forty days, the prisoner may
appeal that decision with the central office within seven days. The
Commissioner of the Georgia Department of Corrections must
render a decision on that appeal within 120 calendar days.
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21-10989 Opinion of the Court 9
The above procedure is slightly different for grievances that
allege physical force. Even when a grievance violates the single-
issue rule and is therefore rejected by the Grievance Coordinator,
the grievance is still forwarded to the Criminal Investigation
Division (CID) for further investigation. When grievances are
rejected but forwarded to the CID, the prisoner will receive the
following form: “Attachment 12, Rejected: Notification of Referral
to the Office of Professional Standards.” When a grievance alleging
physical force is accepted, however, instead of receiving
Attachment 12, the prisoner will receive: “Attachment 6, Accepted:
Notification of Referral to the Office of Professional Standards.”
Any accepted grievance forwarded to the CID is essentially
exhausted.3
We have established a two-step process for district courts to
analyze a motion to dismiss for failure to exhaust administrative
remedies under § 1997e(a). Turner v. Burnside, 541 F.3d 1077, 1082
(11th Cir. 2008). At step one, a complaint is subject to dismissal if
the plaintiff’s factual allegations, taken as true, demonstrate a
failure to properly exhaust administrative remedies. Id. If dismissal
is not warranted at step one, the district court moves to step two
and makes specific findings to resolve factual disputes and
determines based on these findings whether the prisoner exhausted
administrative remedies. Id.
3 Pursuant to Standard Operating Procedure 227.02, prisoners “may not appeal
accepted grievances forwarded to [CID].”
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With these principles established, we turn to Zavala’s
argument and determine that the district court did not err in
holding that Zavala failed to exhaust his administrative remedies
for seven of his grievances: Grievance Numbers 293815, 285957,
283697, 282680, 285962, 288104, and 290298. With respect to two
of his grievances—Grievance Numbers 293815 and 285957—the
district court adopted the magistrate judge’s finding at step one of
the Turner analysis that these grievances were properly rejected by
the prison for violating the single-issue rule. Indeed, the face of
these grievances firmly establishes that they violate the single-issue
rule because they both raise more than one issue. Grievance
Number 293815 raises multiple grievances, including Zavala’s
assertion that he is improperly housed in an isolation cell, has had
inmates throw feces on him, and the air temperature is too cold.
Similarly, Grievance Number 285957 raised an excessive force
claim as well as claims relating to Zavala being denied out-of-cell
time, proper sanitation, and having his property taken from him at
a facility where he was previously housed. Accordingly, the district
court correctly determined at step one of the Turner analysis that
Zavala failed to exhaust his administrative remedies for Grievance
Numbers 293815 and 285957. We thus affirm the district court’s
order with respect to these grievances.
With respect to the other five grievances—Grievance
Numbers 283697, 282680, 285962, 288104, and 290298—the district
court adopted the magistrate’s report and determined at step-two
of the Turner analysis that Zavala failed to exhaust his
administrative remedies because he never filed a central office
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21-10989 Opinion of the Court 11
appeal for these grievances. In doing so, the district court found
that the affidavit of Officer Johannes Goody was credible. The
district court relied on Goody’s declaration that he never received
the appeals forms for these grievances. Based on this declaration
and Zavala’s history of filing grievances, the district court
determined that Zavala forged the receipts of central office appeals
for these grievances and “did not appeal any of these five
grievances to the central office.” Accordingly, the district
determined that Zavala failed to exhaust his administrative
remedies as to these grievances.
Upon an examination of the evidence, we determine that
the district court did not commit clear error in its factual finding
that Zavala did not appeal Grievance Numbers 283697, 282680,
285962, 288104, and 290298 to the central office. The district court
found that Goody’s affidavit was facially credible, and that Zavala
had forged Goody’s signature on the appeal receipts. While Zavala
takes issue with these determinations and argues that the district
court should have afforded him an evidentiary hearing where he
could have called a handwriting expert, he never moved for an
evidentiary hearing below and instead merely asserted that “[a]
careful[] analysis of [his] hand writ[]ing compared to Mr. Goody’s
should at least [give] [him] the benefit of [the] doubt weather [sic]
[Goody’s] signature was forged or not” and that he was “more than
willing to submit[] to a lie detector test.” “[I]n the absence of a
timely request for an evidentiary hearing and where the resulting
order is to be a dismissal without prejudice, a district court may
resolve material questions of fact on submitted papers for the
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12 Opinion of the Court 21-10989
PLRA’s exhaustion of remedies requirement.” Bryant v. Rich, 530
F.3d 1368, 1377 n.16 (11th Cir. 2008). Because Zavala never moved
for an evidentiary hearing, the district court was free to make its
factual determinations based on the papers submitted, and it did
not clearly err in reaching its conclusion that Zavala never filed
appeals for Grievances 283697, 282680, 285962, 288104, and
290298. We affirm the district court’s order with respect to these
grievances.
The district court did err, however, with respect to
Grievance Number 281515. Despite the GDOC Officials
conceding below that Zavala “properly exhausted the grievance
procedure” for Grievance Number 281515, the magistrate judge
found that this grievance violated the single-issue rule because it
contained claims for excessive force and due process violations.
Grievance Number 281515, however, facially raises an excessive
force claim only and was signed by Zavala on January 3, 2019. The
due process claim comes from an alleged attachment to Grievance
Number 281515 that Goody submitted with his affidavit. This
alleged attachment to Grievance Number 281515 was signed by
Zavala on January 7, 2019, four days after Zavala submitted his
initial grievance. Zavala argued in his objections to the magistrate
judge’s report that this attachment was not part of Grievance
Number 281515, but the district court failed to address this
objection. And, like the magistrate judge, the district court failed
to acknowledge the GDOC Officials’ concession that Zavala
properly exhausted this grievance.
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21-10989 Opinion of the Court 13
Upon review of the record as relates to Grievance Number
281515, we determine that Zavala properly exhausted his
administrative remedies with respect to his excessive force claim in
this grievance. As an initial matter, the GDOC officials conceded
that Zavala had properly exhausted his administrative remedies
with respect to this grievance. Furthermore, the “Notification of
Referral to the Criminal Investigation Division” that GDOC
submitted to Zavala was Attachment 6, as opposed to Attachment
12, which indicates that GDOC accepted his grievance and did not
reject it for violating the single-issue rule. And because GDOC
accepted and submitted Grievance Number 281515 to the CID, it
was exhausted. Thus, the district court erred in dismissing Zavala’s
excessive force claim in Grievance Number 281515 on exhaustion
grounds. Accordingly, we reverse with respect to this claim.
Finally, Zavala appeals the denial of his Motion to Alter or
Amend Judgment under Rule 59(e) and Motion for Relief from a
Final Judgment under Rule 60(b). Except for Grievance Number
281515, for which we have already granted relief to Zavala, we find
no abuse of discretion in the district court’s orders denying these
motions as relates to every other grievance. Litigants cannot use
Rule 59(e) motions “to relitigate old matters, [or to] raise argument
or present evidence that could have been raised prior to the entry
of judgment.” Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1313
(11th Cir. 2023) (brackets in original) (quotations omitted).
Because Zavala’s Rule 59(e) motion was merely a rehashing of the
exhaustion arguments that he raised in opposing the motion to
dismiss, the district court properly denied it. With respect to
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Zavala’s Rule 60(b) motion, the decision of whether to grant such
a motion is “a matter for the district court’s sound discretion.”
Aldana v. Del Monte Fresh Produce N.A., Inc., 741 F.3d 1349, 1355
(11th Cir. 2014) (quotations omitted). The district court construed
Zavala’s Rule 60(b) motion as a motion for relief from its order
denying Zavala’s Rule 59(e) motion. It determined that Zavala’s
motion “contain[ed] the same recycled argument that he[] made
several times during the process of [the] litigation: that his failure
to exhaust administrative remedies should be excused.” Our
review of Zavala’s Rule 60(b) motion confirms the district court’s
conclusion. Accordingly, for the same reasons discussed above, we
conclude that the district court did not abuse its discretion in
denying Zavala’s Rule 59(e) and 60(b) motions.
AFFIRMED IN PART, REVERSED AND REMANDED IN
PART.
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