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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13621
Non-Argument Calendar
____________________
ROBERT RALPH DIPIETRO,
Plaintiff-Appellant,
versus
JAMES F. BARRON,
Dentist,
DR. SILVER,
Psychiatrist,
DR. THOMPSON,
Psychologist,
WARDEN,
DEPUTY WARDEN SHELTON, et al.,
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2 Opinion of the Court 21-13621
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:18-cv-00179-CDL-MSH
____________________
Before WILSON, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Robert DiPietro appeals the district court’s entry of sum-
mary judgment in favor of the defendants in his lawsuit alleging
that healthcare providers at two Georgia prisons were deliberately
indifferent to his serious medical needs. After careful considera-
tion, we affirm.
I.
DiPietro was convicted of child molestation in March 2016
and sentenced to seven years in state prison. After two months in
the county jail, DiPietro was transferred to Georgia Diagnostic and
Classification Prison (GDCP) on May 5, 2016, and then to Augusta
State Medical Prison on July 12, 2016. On August 16, 2016,
DiPietro was transferred to Rutledge State Prison, where he re-
mains.
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21-13621 Opinion of the Court 3
On August 19, 2018, 1 DiPietro filed a lawsuit against several
prison officials and healthcare providers at GDCP and Rutledge,
pursuant to
28 U.S.C. § 1983. As relevant to this appeal, DiPietro
alleged that an advanced practice psychiatric nurse at GDCP (Jer-
rye Foreman) and two mental health providers at Rutledge (psy-
chologist John Thompson and psychiatrist Donna Silver) deliber-
ately ignored his need for psychiatric medications and counseling,
leading to his attempted suicide. He also alleged that a dentist at
GDCP (James Barron) deliberately failed to provide treatment for
an infected tooth, resulting in months of pain and suffering and the
loss of the tooth.
The district court entered summary judgment in favor of the
defendants. It concluded that DiPietro had failed to exhaust his
prison administrative remedies for his claims against Foreman and
Barron, as required by the Prison Litigation Reform Act (PLRA);
that the statute of limitations barred his claim against Barron; and
that DiPietro failed to show that any of the four healthcare provid-
ers were deliberately indifferent to a serious medical need.
DiPietro now appeals, challenging the district court’s rulings in fa-
vor of the four healthcare providers.
1 Under the prison mailbox rule, a pro se prisoner’s court filing is deemed filed
on the date that he delivered it to prison authorities for mailing, which we
ordinarily presume to be the same day that he signed it. Daniels v. United
States,
809 F.3d 588, 589 (11th Cir. 2015).
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4 Opinion of the Court 21-13621
II.
We review the district court’s interpretation and application
of the PLRA’s exhaustion requirement de novo. Johnson v. Mead-
ows,
418 F.3d 1152, 1155 (11th Cir.2005). We review the court’s
factual findings related to the exhaustion of administrative reme-
dies for clear error. Varner v. Shepard,
11 F.4th 1252, 1257 (11th
Cir. 2021).
We review a district court’s summary judgment ruling de
novo, considering the evidence in the light most favorable to the
nonmovant and drawing all reasonable factual inferences in his fa-
vor. Ireland v. Prummell,
53 F.4th 1274, 1286–87 (11th Cir. 2022).
Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is en-
titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III.
We consider the district court’s rulings on DiPietro’s claims
against each defendant in turn. We affirm the district court’s dis-
missal of his claim against Foreman based on his failure to exhaust
his administrative remedies for that claim. And we affirm the
court’s summary judgment in favor of the remaining healthcare
providers because the claim against Barron was barred by the stat-
ute of limitations,2 and DiPietro failed to present evidence that
2The district court also concluded that DiPietro failed to exhaust available
administrative remedies with respect to his claim against Barron. DiPietro
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21-13621 Opinion of the Court 5
would support a jury verdict in his favor on his claims that Silver
and Thompson were deliberately indifferent to a serious medical
need.
A.
Under the PLRA, a prisoner is required to properly exhaust
all available administrative remedies before filing a federal lawsuit
regarding prison conditions. 42 U.S.C. § 1997e(a); see Jones v.
Bock,
549 U.S. 199, 202 (2007). The Georgia Department of Cor-
rections provides a two-step grievance procedure: first, the pris-
oner must submit a written grievance within ten days of any griev-
able occurrence. Second, if the prisoner receives a negative re-
sponse or if the responsible prison staff member does not respond
within the time provided (40 days, with a 10-day extension availa-
ble upon written notice), the prisoner must file an appeal to the
“central office” within 7 days. “To exhaust administrative reme-
dies in accordance with the PLRA, prisoners must properly take
each step within the administrative process. If their initial
filed at least one grievance seeking compensation for Barron’s alleged lack of
care, and Barron concedes that the district court erred in determining that that
grievance was untimely. But the parties dispute whether DiPietro filed an ap-
peal from the denial of that grievance, a question of fact that the district court
did not directly address. We decline to resolve this factual issue ourselves be-
cause we conclude that DiPietro’s claim against Barron was barred by the stat-
ute of limitations. See, e.g., Johnson v. Miami-Dade Cnty.,
948 F.3d 1318, 1325
(11th Cir. 2020) (“We may affirm on any ground supported by the record.”)
(quotation omitted)).
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6 Opinion of the Court 21-13621
grievance is denied, prisoners must then file a timely appeal.” Bry-
ant v. Rich,
530 F.3d 1368, 1378 (11th Cir. 2008) (quotation omit-
ted).
When considering a motion to dismiss for failure to exhaust
administrative remedies under the PLRA, the district court must
first evaluate whether the prisoner has exhausted his administra-
tive remedies under his own version of the facts. Turner v. Burn-
side,
541 F.3d 1077, 1082 (11th Cir. 2008). If the facts as stated by
the prisoner show a failure to exhaust, then the district court must
dismiss the complaint.
Id. “If the complaint is not subject to dis-
missal at the first step, where the plaintiff’s allegations are assumed
to be true, the court then proceeds to make specific findings in or-
der to resolve the disputed factual issues related to exhaustion.”
Id.
DiPietro’s claims against Jerrye Foreman arise from treat-
ment she provided at GDCP. At the time of his conviction,
DiPietro reportedly had been taking Lexapro for depression and
Xanax for anxiety (both prescribed by a psychiatrist) for several
years. Providers at the county jail where DiPietro was incarcerated
immediately after his conviction did not prescribe those medica-
tions for him, however, and by the time he reached GDCP on May
5, 2016, he had not taken any psychiatric medication for two
months.
DiPietro requested mental health services, including antide-
pressant medications, during his mental health intake examination
at GDCP. A psychologist referred him to Foreman, whose license
as an advanced practice nurse authorizes her to prescribe
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21-13621 Opinion of the Court 7
psychiatric medications, and she evaluated DiPietro on May 24,
2016. Foreman determined that there was no indication for medi-
cation, though she noted that DiPietro was very depressed and
needed counseling. According to DiPietro, he reluctantly agreed
to continue without medication upon Foreman’s assurance that
she would see him again if he changed his mind. But when he did
change his mind, Foreman ignored his sick call requests and did not
prescribe medication for him.
The parties dispute whether DiPietro exhausted his admin-
istrative remedies for his claim against Foreman. DiPietro testified
that he submitted a grievance against her at GDCP, but he was not
given a receipt and his grievance was ignored. The grievance co-
ordinator at GDCP testified that every inmate receives a receipt for
each grievance he submits, and that each grievance submitted is
logged into a central database at or near the time the inmate sub-
mits it and then investigated by prison staff and responded to in
writing by the warden or his designated representative. The griev-
ance coordinator further testified that the central database showed
that DiPietro did not file any grievances at GDCP, and that she was
not aware of, and had no record of, any grievance submitted by
DiPietro that was not entered into the database and processed ac-
cording to the usual procedure.
The district court found that DiPietro’s testimony was not
credible and accepted the defendants’ evidence that he did not file
a grievance about Foreman at GDCP. This finding was not clear
error. As the magistrate judge pointed out, DiPietro’s testimony
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8 Opinion of the Court 21-13621
on several different topics was inconsistent, undermining his cred-
ibility. With respect to the grievance process at GDCP, DiPietro’s
testimony that prison staff failed to follow the standard operating
procedure at every stage—by failing to orally explain the process
to him at intake, failing to provide a grievance handbook, failing to
give him a receipt for either of the grievances he says he submitted
at GDCP, and failing to log in, process, or respond to either of those
grievances—seems unlikely. “Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Anderson v. City of Bessemer City,
470 U.S.
564, 574 (1985).
In any event, although DiPietro claimed that he submitted a
grievance about Foreman’s care at GDCP, he never claimed to
have exhausted the grievance process by filing an appeal when the
warden failed to respond, and he does not argue in this Court that
the grievance appeal process was unavailable to him. The district
court did not err in dismissing DiPietro’s claim against Foreman on
the ground that he did not exhaust his administrative remedies be-
fore filing the claim. See Bryant,
530 F.3d at 1378.
B.
Like Foreman, James Barron provided care to DiPietro at
GDCP. Barron, who is a dentist, saw DiPietro for a toothache on
May 16 and June 8, 2016. He examined DiPietro, took dental x-
rays, and prescribed ibuprofen and an antibiotic. According to
DiPietro, Barron said that he would clean DiPietro’s teeth and
make a mouth guard for him, but he never followed through and
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21-13621 Opinion of the Court 9
did not see him again. He alleged that if Barron had provided ad-
ditional treatment, he could have avoided months of pain and the
eventual removal of the affected tooth.
The district court determined that DiPietro’s claim against
Barron was barred by the statute of limitations, which in Georgia
is two years. See Crowe v. Donald,
528 F.3d 1290, 1292 (11th Cir.
2008). The statute of limitations begins to run when the plaintiff
knows or should know that he has suffered the injury that is the
basis of the complaint and knows or should know who inflicted it.
Chappell v. Rich,
340 F.3d 1279, 1283 (11th Cir. 2003). At that
point, the “cause of action accrues even though the full extent of
the injury is not then known or predictable.” Wallace v. Kato,
549
U.S. 384, 391 (2007).
On appeal, DiPietro argues that Barron’s alleged deliberate
indifference was a “continuing violation,” so that the statute of lim-
itations did not begin to run until his tooth was pulled on August
31, 2016. “The continuing violation doctrine permits a plaintiff to
sue on an otherwise time-barred claim when additional violations
of the law occur within the statutory period.” Ctr. for Biological
Diversity v. Hamilton,
453 F.3d 1331, 1334 (11th Cir. 2006). Here,
DiPietro argues that Barron’s refusal to provide treatment after
June 8, 2016, constituted a continuing or recurring violation of his
Eighth Amendment rights. But even if we assume for purposes of
this analysis that the failure to provide additional treatment at
GDCP constituted deliberate indifference, Barron could not have
deliberately withheld treatment for DiPietro after he was
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10 Opinion of the Court 21-13621
transferred to Augusta on July 16, 2016. After that date, Barron
could not have provided dental treatment to DiPietro in any event.
Moreover, “we have limited the application of the continu-
ing violation doctrine to situations in which a reasonably prudent
plaintiff would have been unable to determine that a violation had
occurred.”
Id. at 1335. DiPietro testified that the medication pre-
scribed by Barron stopped working within a few weeks, that he ex-
perienced severe pain and swollen gums beginning in June 2016,
and that he repeatedly complained to Barron that he needed addi-
tional treatment between his last visit on June 8, 2016, and his trans-
fer to Augusta on July 16. On these facts, the district court did not
err in determining that the two-year statute of limitations began to
run no later than July 16, 2016. DiPietro’s claim against Barron,
which was filed on August 19, 2018, was untimely.
C.
We turn next to DiPietro’s claim against Donna Silver, the
psychiatrist who treated him after his transfer to Rutledge Prison
on August 16, 2016. DiPietro contends that Silver’s failure to eval-
uate him and prescribe medication to treat his depression and anx-
iety before September 13, 2016, constituted deliberate indifference
to his risk for suicide. 3 A “delay of treatment for obviously serious
3 In the district court, DiPietro also alleged that Silver and Thompson failed to
appropriately treat his anxiety after his suicide attempt. But he does not press
those arguments on appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739
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21-13621 Opinion of the Court 11
conditions” may constitute deliberate indifference “where it is ap-
parent that delay would detrimentally exacerbate the medical
problem, the delay does seriously exacerbate the medical problem,
and the delay is medically unjustified.” Taylor v. Adams,
221 F.3d
1254, 1259–60 (11th Cir. 2000) (quotation omitted). The deliberate-
indifference standard requires that the plaintiff prove that the de-
fendant “had subjective knowledge of a risk of serious harm and
disregarded that risk by conduct that constituted more than mere
negligence.” Gish v. Thomas,
516 F.3d 952, 954 (11th Cir. 2008).
To establish deliberate indifference to the risk of suicide, the plain-
tiff must show the defendant deliberately disregarded “a strong
likelihood rather than a mere possibility” that the prisoner would
harm himself.
Id. (quotation omitted).
DiPietro cannot meet that standard here because the infor-
mation available to Silver before September 13, 2016, did not indi-
cate a “strong likelihood” that DiPietro would harm himself unless
he received immediate psychiatric treatment. At the time of his
transfer to Rutledge, DiPietro’s chart showed that he had consist-
ently complained of depression and anxiety, and on May 11, 2016,
he reported to a psychologist at GDCP that he had occasional
thoughts of suicide lasting a few minutes but without a plan. That
same day, however, and in other evaluations in May and June 2016,
DiPietro reportedly denied any suicidal ideation or any history of
F.3d 678, 681 (11th Cir. 2014) (arguments not effectively raised on appeal are
deemed abandoned).
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12 Opinion of the Court 21-13621
attempting to harm himself. And of course, DiPietro’s chart con-
tained Foreman’s May 24, 2016, report expressing her opinion that
treatment with psychiatric medication was not indicated at that
time.
DiPietro’s chart also showed that he had been evaluated by
a psychologist less than a week before his transfer to Rutledge. The
psychologist described DiPietro as “markedly tearful” and noted
his report of feeling helpless, hopeless, and sad, but also stated that
DiPietro denied any suicidal ideation. The psychologist recom-
mended that DiPietro be evaluated by a psychiatrist within 60 to
90 days to determine whether he would benefit from psychiatric
medication.
A week after his arrival at Rutledge, on August 23, 2016,
DiPietro met with a mental health counselor. DiPietro testified
that he was a “basket case” during the interview. He testified that
he could not stop crying, that he told the counselor he had been
“denied” psychiatric medications since March, that he was having
a “mental health emergency,” and that he was having suicidal
thoughts. He also testified that he was careful to reassure the nurse
that he had no current plan to commit suicide, because he did not
want to be put in a suicide-watch cell. According to DiPietro, the
counselor told him that he would be seen “in a day or so since it
was urgent.”
But regardless of what the counselor told DiPietro, there is
no evidence that any urgent need for treatment was conveyed to
Silver. To the contrary, the counselor’s contemporaneous note
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indicated that DiPietro’s chief concern was the heat in his dormi-
tory. The counselor’s only comment about his mental state was
that his “[d]isposition of attitude” was “positive.” Silver testified
that she did not recall receiving any information indicating that
DiPietro needed to be seen urgently until after his suicide attempt
on September 13, 2016. In the meantime, DiPietro was placed on
Silver’s case list for routine assessment, which typically would be
done “as soon as practical,” unless “an emergent or urgent change
in circumstances” occurred.
DiPietro alleged that he waited about a week after his Au-
gust 23 intake interview with the mental health counselor and then
“started writing sick calls” requesting to be seen by the psychiatrist.
Two weeks later, he tried to hang himself in his cell. After his at-
tempt failed, he informed the mental health counselor that he had
tried to commit suicide. The counselor called the mental health
director (Thompson), who referred DiPietro to Silver on an emer-
gency basis, and Silver evaluated DiPietro the same day.
This evidence would not support a jury verdict of deliberate
indifference by Silver. Although it may have been apparent that
DiPietro needed mental health services and might benefit from
psychiatric medications, the evidence does not indicate that Silver
was subjectively aware of an urgent need for treatment or that a
delay in treatment would detrimentally exacerbate DiPietro’s men-
tal condition. The district court did not err in granting summary
judgment in Silver’s favor.
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14 Opinion of the Court 21-13621
D.
Last, we consider DiPietro’s deliberate-indifference claim
against psychologist John Thompson. DiPietro acknowledges
Thompson’s testimony that he was designated for evaluation by
the psychiatrist (Silver), not Thompson, and that he was never part
of Thompson’s caseload. DiPietro argues that as the Mental
Health Clinical Director at Rutledge, Thompson should nonethe-
less have been aware of his mental health history and his need for
psychiatric services. But DiPietro has presented no evidence that
Thompson actually was aware of his need for treatment before his
suicide attempt. 4 This lack of evidence of subjective awareness is
fatal to DiPietro’s Eighth Amendment claim; to be held liable for
deliberate indifference, a prison official “must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”
Farmer v. Brennan,
511 U.S. 825, 837 (1994); see also
id. at 838 (“an
official’s failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation, cannot
under our cases be condemned as the infliction of punishment”).
4 DiPietro points to the allegation in his amended complaint that Thompson
told him after his September 13 suicide attempt that he was “aware of
[DiPietro’s] chart.” But to survive a properly supported motion for summary
judgment, a plaintiff cannot rely on the allegations in his pleading; he “must
present affirmative evidence” from which a jury could return a verdict in his
favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256–57 (1986).
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21-13621 Opinion of the Court 15
The district court did not err in granting Thompson’s motion for
summary judgment on DiPietro’s deliberate-indifference claim.
IV.
For the foregoing reasons, we affirm the district court’s judg-
ment in favor of the defendants.
AFFIRMED.
