Delroy T. Booth v. Lieutenant R. Allen

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13357
Non-Argument Calendar
____________________
DELROY T. BOOTH,
Plaintiff-Appellant,
versus
LIEUTENANT R. ALLEN,
Correctional Officer of Georgia Department of Corrections,
SERGEANT J. SMITH,
Correctional Officer of Georgia Department of Corrections,
COMMISSIONER, GEORGIA DEPARTMENT OF
CORRECTIONS,
WARDEN, HAYS STATE PRISON,
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2 Opinion of the Court 20-13357
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:18-cv-00069-HLM
____________________
Before WILSON, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
Delroy T. Booth, proceeding pro se, appeals the dismissal of
his complaint for failure to exhaust administrative remedies. On
appeal, he argues that he was not required to exhaust administra-
tive remedies because those remedies were unavailable to him.
The defendants moved to dismiss the appeal for lack of jurisdiction
because it was not timely filed. After careful review, we deny the
defendants’ motion to dismiss for lack of jurisdiction. However,
we affirm the district court’s dismissal of Booth’s complaint. The
district court did not err in finding that the prison’s grievance pro-
cess was available to Booth, but that he failed to exhaust his admin-
istrative remedies by filing a timely grievance.
I.
In March 2018, Booth initiated this action by filing a motion
to proceed in forma pauperis. He attached to the motion his
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20-13357 Opinion of the Court 3
complaint against Gregory Dozier, commissioner of the Depart-
ment of Corrections (DOC); Kevin Sprayberry, the warden of Hays
State Prison; a corrections officer identified as R. Allen; and an of-
ficer identified as J. Smith. Booth’s complaint alleged that Smith
and Allen used excessive force against him in violation of the
Eighth Amendment during an incident on May 16, 2017, in which
they pepper sprayed him and refused him medical care. He made
several additional allegations, including that the prison staff refused
him medical treatment after he was exposed to parasitic insects.
With his motion and complaint, Booth attached a grievance form
dated January 5, 2018. This document had a handwritten note at
the top reading “Emergency grievance.” He also attached a re-
sponse dated January 16, 2018, which indicated that the grievance
was rejected as untimely.
A magistrate judge submitted a report and recommendation
that the case be dismissed without prejudice because Booth failed
to exhaust administrative remedies as required by the Prison Liti-
gation Reform Act (PLRA). The magistrate judge concluded that
the allegations in the complaint and the attached documents
showed that Booth had failed to properly exhaust his administra-
tive remedies because his grievance was not filed within the
timeframe required by the DOC’s grievance procedures.
Booth submitted a document styled “Motion to Alter the
Judgment” in which he objected to the magistrate’s report and rec-
ommendation. He argued that prison staff thwarted his ability to
file grievances and thus the grievance process was unavailable to
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4 Opinion of the Court 20-13357
him. The district court found, however, that “nothing in [Booth’s]
Objections warrants rejecting the Final Report and Recommenda-
tion.” Booth filed a notice of appeal, motion for appointment of
counsel, and an application to proceed in forma pauperis. Finding
that Booth was indigent and that the appeal was taken in good
faith, the district court granted his motion to proceed in forma pau-
peris but denied appointment of counsel.
On appeal, we affirmed in part, vacated in part, and re-
manded in part. See Booth v. Allen, 758 F. App’x 899, 902 (11th
Cir. 2019) (per curiam). As to Booth’s claims regarding harm
caused by an infestation of parasites, we affirmed the conclusion
that he had not properly exhausted his available remedies because
he did not plead that issue in his grievance. Id. at 901. As to Booth’s
claims that were included on the grievance form, we vacated and
remanded, holding that the district court failed to consider Booth’s
claim that the grievance process was unavailable to him. Id. at 902.
We directed that, on remand, the district court should consider
Booth’s remaining claims. Id.
On remand, the defendants moved for dismissal based on
Booth’s failure to exhaust administrative remedies. They submit-
ted a declaration from Alisa Hammock Evans, the deputy warden
of care and treatment at Hays. She explained that the grievance
procedure begins when an inmate submits a grievance form. The
form must be submitted within ten days from the date the inmate
“knew, or should have known, of the facts giving rise to the griev-
ance,” although untimely filing can be excused for “good cause.”
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20-13357 Opinion of the Court 5
There is no requirement that any related disciplinary report be re-
solved before an inmate can file a grievance. After a grievance is
accepted, there is an investigation and a report made by staff, which
is reviewed by the grievance coordinator, who then makes a rec-
ommendation to the warden. The warden or their designee issues
a written decision which is given to the inmate. If the inmate disa-
grees with the decision or does not receive a decision within the
required time, the inmate may file an appeal.
The defendants also attached to their motion to dismiss a
history of the grievances filed by Booth, showing that he filed griev-
ances on June 14, 2017, November 30, 2019, and December 29,
2017. Finally, the defendants attached the decision rejecting
Booth’s appeal of his January 5, 2018 grievance. The decision was
dated March 8, 2018, and included Booth’s signature acknowledg-
ing receipt on March 29, 2018.
Booth opposed the defendants’ motion, arguing again that
he did not have access to the grievance process. He argued that
grievance forms were not available to him, and that the prison had
a policy of withholding disciplinary reports for more than ten days
in order to prevent prisoners from filing grievances related to those
reports.
The magistrate judge recommended that the court dismiss
the case for failure to exhaust administrative remedies. Based on
Evans’s declaration—and based on the fact that Booth filed three
grievances between the incident at issue here and the filing of his
grievance related to it—the magistrate judge rejected the argument
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6 Opinion of the Court 20-13357
that grievance forms were unavailable to Booth. Further, relying
on Evans’s declaration, the magistrate judge found that disciplinary
reports were not required to file a grievance, and thus prison offi-
cials could not have thwarted Booth’s access to the grievance pro-
cess by withholding those reports. The district court adopted the
magistrate’s report and recommendation and dismissed the case,
entering judgment on May 6, 2020.
On June 2, 2020, the district court received a letter from
Booth dated May 26, 2020, and postmarked May 28, 2020, stating
that he was “trying to find out if the ruling on [his] Notice of Appeal
and in forma pauperis paperwork was granted so [he] can move on
to the next phase in this civil action which would be the [C]ourt of
Appeals for the Eleventh Circuit.” On August 31, 2020, this court
received Booth’s notice of appeal, a motion to proceed on appeal
in forma pauperis, and his brief. The notice of appeal, which was
forwarded to the district court, was dated August 26, 2020, and
postmarked August 28, 2020. The district court construed the let-
ter as a motion for an extension of time to file a notice of appeal
under Federal Rule of Appellate Procedure 4(a)(5) and granted the
motion. It also granted his motion to appeal in forma pauperis.
II.
On appeal, the defendants moved to dismiss the appeal for
lack of jurisdiction, arguing that Booth’s notice of appeal is un-
timely. Timely filing of a notice of appeal in a civil case is jurisdic-
tional. See Green v. Drug Enf’t Admin., 606 F.3d 1296, 1300 (11th
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20-13357 Opinion of the Court 7
Cir. 2010). Therefore, we consider this argument before turning to
the merits of Booth’s appeal.
To be timely, notice of appeal must be filed within 30 days
of the entry of the order or judgment appealed from. 28 U.S.C.
§ 2107(a). The time for filing can be extended as provided in
Rule 4(a) of the Federal Rules of Appellate Procedure. Green,
606 F.3d at 1301–02. Rule 4(a)(5) allows the district court to extend
the time for filing an additional 30 days beyond the time otherwise
allowed if (1) a party so moves within 30 days after the expiration
of the time allowed by Rule 4(a)(1), and (2) that party shows excus-
able neglect or good cause.
Rule 3 identifies the form and contents required of a notice
of appeal. A document not strictly compliant with the require-
ments of Rule 3 may still be construed as a notice of appeal where
it (1) serves as the functional equivalent of a notice of appeal and
(2) makes it “objectively clear that a party intend[s] to appeal.”
Rinaldo v. Corbett, 256 F.3d 1276, 1278–79 (11th Cir. 2001) (quot-
ing Fed. R. App. P. 3(c), 1993 Advisory Committee Notes).
A document is the functional equivalent of a notice of appeal
where it satisfies the three-part requirement of Rule 3(c)(1). Id.Under that subsection, a notice of appeal must specify (1) the party
taking the appeal, (2) the judgment or order appealed from, and
(3) the court to which appeal is taken. Fed. R. App. P. 3(c)(1). The
rule’s requirements are to be liberally construed. Rinaldo, 256 F.3d
at 1278. “[I]mperfections in noticing an appeal should not be fatal
where no genuine doubt exists about who is appealing, from what
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8 Opinion of the Court 20-13357
judgment, to which appellate court.” Becker v. Montgomery,
532 U.S. 757, 767 (2001).
If the document is the functional equivalent of a notice of
appeal, we next determine whether the document makes it “objec-
tively clear that a party intended to appeal.” Rinaldo, 256 F.3d
at 1279. This inquiry is objective in that it turns on the notice pro-
vided by the document, and not on the litigant’s motivation in fil-
ing it. Id. We look to the record, including the parties’ briefs, to
determine the order that an appellant intended to appeal. Nichols
v. Ala. State Bar, 815 F.3d 726, 731 (11th Cir. 2016) (per curiam).
Here, we have jurisdiction because Booth’s letter to the dis-
trict court, dated May 26, 2020, can be construed as a timely notice
of appeal. On the first prong of the inquiry, the notice is the func-
tional equivalent of a compliant notice of appeal. Booth’s letter, on
its face, includes the party appealing and the court appealed to. It
does not indicate the order or judgment appealed from. But given
its timing and context, there is “no genuine doubt” as to what order
Booth intended to appeal. See Becker, 532 U.S. at 767. He in-
tended to appeal the judgment immediately preceding the letter in
the docket, which disposed of Booth’s case, and which was entered
fewer than 30 days before Booth sent the letter. See id.Regarding the second prong, the defendants argue that be-
cause Booth’s letter references his notice of appeal, he cannot have
intended the letter itself to constitute a notice of appeal. But the
inquiry is not whether Booth subjectively intended the document
to be a notice of appeal. Rather, the question is whether the
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20-13357 Opinion of the Court 9
document makes it objectively clear that he intended to appeal.
Rinaldo, 256 F.3d at 1279. Booth’s letter inquired whether the dis-
trict court had ruled on his “notice of appeal and in forma pauperis
paperwork . . . so [he could] move on to the next phase . . . which
would be the [C]ourt of Appeals for the Eleventh Circuit.” This
language clearly indicates Booth’s intent to appeal to this court.
Therefore, we have jurisdiction.
III.
We review de novo a district court’s application of the
PLRA’s requirement that prisoners exhaust their available admin-
istrative remedies. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th
Cir. 2005). However, when the district court, in order to determine
whether a plaintiff exhausted administrative remedies, has to make
findings of fact based on information outside the complaint, we re-
view those findings for clear error. Bryant v. Rich,
530 F.3d 1368, 1377 (11th Cir. 2008). A factual finding is clearly er-
roneous if it leaves us with the definite and firm conviction that a
mistake has been made. Id. If the district court’s account of the
evidence is plausible in light of the record in its entirety, it will not
be reversed. Anderson v. City of Bessemer, 470 U.S. 564, 573–74
(1985).
The PLRA prohibits prison inmates from bringing cases in
the federal courts under 42 U.S.C. § 1983 “with respect to prison
conditions . . . until such administrative remedies as are available
are exhausted.” Id. § 1997e(a). Proper exhaustion of available rem-
edies is a requirement of the statute which the district court has no
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10 Opinion of the Court 20-13357
discretion to waive. Johnson, 418 F.3d at 1155. A grievance
properly rejected by prison officials as untimely does not satisfy the
requirement. Id. at 1157. However, an administrative remedy
must be available to the inmate for it to be exhausted, and to be
available, the remedy “must be capable of use for the accomplish-
ment of its purpose.” Turner v. Burnside, 541 F.3d 1077, 1084
(11th Cir. 2008) (internal quotation mark omitted and alteration
adopted). Remedies that rational inmates cannot be expected to
use are not available. Id. If no administrative remedy is available
to a prisoner, the exhaustion requirement is lifted. Id. at 1085.
Applying these standards here, the district court did not err
in accepting the magistrate judge’s conclusion that Booth failed to
exhaust available administrative remedies before filing his com-
plaint. As to the availability of grievance forms, the magistrate
judge noted that Booth filed three grievances unrelated to this ac-
tion between the time that the incident at issue occurred and the
date he filed the grievance related to it. Based on this and other
evidence, the magistrate judge found—and the district court
agreed—that grievance forms were in fact available to him. Be-
cause Booth offered no evidence to rebut this finding, nor to distin-
guish the grievances he was able to file from the one at issue here,
we cannot say the finding was clearly erroneous.
As to the purported policy of intentionally withholding dis-
ciplinary reports for more than the ten-day period in which a pris-
oner may file a grievance, Booth concedes in his brief that he re-
ceived the relevant disciplinary report at the latest in August 2017.
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20-13357 Opinion of the Court 11
Thus, even assuming receipt of that report was required before he
could file a grievance, his grievance filed in January 2018 was still
outside the ten days allowed by DOC policy.
Finally, Booth argues that prison officials’ failure to follow
the DOC’s procedures relating to emergency grievances rendered
the grievance process unavailable to him. Because Booth failed to
raise this argument in the district court, we do not address it. Ster-
ling Fin. Inv. Grp., Inc. v. Hammer, 393 F.3d 1223, 1226 (11th Cir.
2004) (holding that “arguments not presented in the district court
will not be considered for the first time on appeal”).
In conclusion, because Booth has failed to show error by the
district court on any issue presented, we affirm.
AFFIRMED.