Jerome W. Black, Jr. v. Nurse Kim Rayburn, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10826
Non-Argument Calendar
____________________
JEROME W. BLACK, JR.,
Plaintiff-Appellant,
versus
NURSE KIM RAYBURN,
NURSE TAMEKA CRAWFORD,
CORRECTIONAL OFFICER HEDDEN,
Defendants-Appellees,
WARDEN,
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2 Opinion of the Court 22-10826
Defendant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:20-cv-00249-CDL-MSH
____________________
Before J ORDAN, L AGOA, and DUBINA , Circuit Judges.
PER CURIAM:
Appellant Jerome Black appeals the district court’s order
granting summary judgment to Appellees/Defendants, Nurse Kim
Rayburn, Nurse Tameka Crawford, and Correctional Officer Hed-
den, on his Eighth Amendment deliberate indifference claim.
Black asserted that while he was confined at Rutledge State Prison
(“RSP”), the Appellees were deliberately indifferent to his serious
medical needs by failing to respond appropriately after he suffered
serious burns to his right foot. The Appellees moved for summary
judgment, arguing that Black failed to exhaust his administrative
remedies; they did not violate Black’s Eighth Amendment rights;
Black intentionally misrepresented a material fact; and Black’s
claim for money damages against them in their official capacities is
barred. The magistrate judge found that Black failed to exhaust his
administrative remedies because his grievance was untimely, and it
recommended that summary judgment be granted to Appellees
and the case be dismissed without prejudice. After a de novo review,
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22-10826 Opinion of the Court 3
the district court adopted the recommendation, granting summary
judgment to the Appellees and dismissing Black’s complaint with-
out prejudice. Having read the parties’ briefs and reviewed the rec-
ord, we affirm the district court’s order.
I.
We review de novo the district court’s application of the ex-
haustion requirement in the Prison Litigation Reform Act
(“PLRA”). Varner v. Shepard, 11 F.4th 1252, 1257 (11th Cir. 2021), cert.
denied, ___ U.S. ___, 142 S. Ct. 1172 (2022). We review for clear
error any factual findings related to the exhaustion of administra-
tive remedies. Id. Otherwise, we accept as true the facts as set forth
in the plaintiff’s complaint and draw all reasonable inferences in his
favor. Id.
II.
The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title . . . 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). “Thus, when a state provides a grievance pro-
cedure for its prisoners, as Georgia does here, an inmate . . . must
file a grievance and exhaust the remedies available under that pro-
cedure before pursing a § 1983 lawsuit.” Varner, 11 F.4th at 1257
(internal quotation marks omitted). “To exhaust administrative
remedies in accordance with the PLRA, prisoners must properly
take each step within the administrative process. If their initial
grievance is denied, prisoners must then file a timely appeal.”
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Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (internal quota-
tion marks and citation omitted).
Ordinarily, an exhaustion defense should be raised in a mo-
tion to dismiss or be treated as such if raised in a motion for sum-
mary judgment, as in this case. Bryant, 530 F.3d at 1374-75 (internal
quotation marks omitted). Because dismissal for failure to exhaust
is not an adjudication on the merits, the court can resolve factual
disputes using evidence outside the pleadings. Id. at 1376. Further,
in resolving a factual dispute, the court may make credibility deter-
minations. Id. at 1377-78 (finding that the district court did not
clearly err in determining that plaintiff’s allegation that he was de-
nied access to a grievance form was not credible).
When deciding a motion to dismiss for failure to exhaust ad-
ministrative remedies, the court conducts a two-step inquiry.
Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “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.” Id. Taking the
plaintiff’s version of the facts as true, if the court determines that
the plaintiff failed to exhaust administrative remedies properly, the
court should dismiss the complaint. Id. “If the complaint is not
subject to dismissal at the first step . . . the court then proceeds to
make specific findings in order to resolve the disputed factual issues
related to exhaustion.” Id. The defendant bears the burden of
proof during this second step. Id.
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22-10826 Opinion of the Court 5
A prisoner need only exhaust administrative remedies that
are available, or in other words, “capable of use for the accomplish-
ment of [its] purpose.” Turner, 541 F.3d at 1084 (quoting Goebert v.
Lee Cnty., 510 F.3d 1312, 1323 (11th Cir. 2007)). The burden is on
the defendant to show that an administrative remedy is available,
but “once that burden has been met, the burden of going forward
shifts to the plaintiff, who . . . must demonstrate that the grievance
procedure was ‘subjectively’ and ‘objectively’ unavailable to him.”
Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020) (in-
ternal quotation marks omitted). The Georgia Department of
Corrections Standard Operating Procedures (“SOP”), specifically
SOP 227.02, provides a grievance procedure for inmates to exhaust
their administrative remedies. Relevant here, the SOP states that
an inmate must file an original grievance no later than ten days
from the date of the grievance, but grievances filed later than ten
days may be considered upon “Good Cause.” SOP 227.02. The
SOP defines “good cause” as a “legitimate reason involving unusual
circumstances that prevented the Offender from timely filing a
grievance,” for example, a serious illness, or being housed away
from a facility covered by this procedure.
III.
Black asserts on appeal that the district court erred in dis-
missing his claims for failure to exhaust administrative remedies be-
cause those remedies were not available to him. Black contends
that, pursuant to the SOP, there was good cause for his late filing
and the prison officials’ rejection of his complaint was arbitrary and
capricious. The district court erred, Black argues, because it
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deferred to the prison officials’ determination. Black also claims
that the grievance procedure was “unavailable” to him during the
ten days allowed by the SOP because he suffered a serious injury
that caused him significant pain; he was hospitalized for five days
out of the ten-day period; there was no kiosk for him to file a griev-
ance; and a counselor instructed that he could not file a grievance
until he returned to his assigned facility.
The Appellees respond that although this court has not de-
cided whether courts can review a prison official’s discretionary de-
cision not to consider a grievance for “good cause” and what stand-
ard of review to apply, it does not matter here because the decision
was correct under any standard of review. The Appellees assert
that Black failed to carry his burden to show that the administrative
remedies were unavailable due to his physical injury and pain, and
that Black did not support his assertion that a counselor at the Au-
gusta State Medical Prison instructed him that he could not file a
grievance until he returned to his assigned prison. The Appellees
claim that, even considering that these reasons may establish good
cause, Black does not support them with any evidence. Thus, the
district court properly dismissed his complaint.
Based on the record, we conclude that the district court did
not err in dismissing Black’s complaint for failure to exhaust his ad-
ministrative remedies. Black has the burden to demonstrate that
the administrative remedies were unavailable, and he has failed to
meet his burden. In Ross v. Blake, 578 U.S. 632, 643-44, 136 S. Ct.
1850, 1859-60 (2016), the Supreme Court recognized three
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22-10826 Opinion of the Court 7
situations in which administrative remedies are “unavailable:” (1)
the administrative procedure operates as a “dead end” with officers
“unable or consistently unwilling to provide any relief;” (2) the ad-
ministrative scheme is “so opaque that it is incapable of use;” and
(3) “prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation,
and intimidation.” Id.
Although Black claims that he was too sick and in too much
pain to file a grievance form, the district court noted that, in his
deposition, Black admitted to walking to the medical unit on three
different occasions, only one during which he obtained a sick call
form. The district court concluded that Black’s physical condition
did not render him incapable of timely filing a grievance, and Black
presents nothing to indicate that this finding is clearly erroneous.
Further, the district court found that a grievance procedure was
available to Black at the State Medical Prison as well. Even though
Black says that a counselor instructed him he could not file a griev-
ance there, Black does not specify which counselor provided him
this information, or when he requested a grievance form while he
was in the hospital. Black stated in his deposition that he was se-
dated while he was in the hospital, but he did not provide medical
records in support to show that he lacked the mental faculties to
pursue a grievance. As the district court found, Black cannot meet
his burden to show that the prison officials’ rejection of his griev-
ance was arbitrary or capricious or intended to prevent him from
exercising his right of access to the courts. Moreover, Black cannot
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meet his burden to show good cause for his failure to timely file his
grievance.
Accordingly, based on the aforementioned reasons, we af-
firm the district court’s order granting summary judgment to the
Appellees and dismissing Black’s complaint without prejudice for
failure to exhaust his administrative remedies.
AFFIRMED.
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