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Whatley v. Ware SP Warden

United States Court of Appeals, Eleventh Circuit

July 30, 2018

SHAWN WAYNE WHATLEY, Plaintiff - Appellant,
WARE SP WARDEN, RODNEY SMITH, et al., Defendants - Appellees.

          Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 5:12-cv-00142-LGW-RSB

          Before ROSENBAUM, JILL PRYOR and RIPPLE, [*] Circuit Judges.


         On remand from this court, [1] the district court dismissed Shawn Whatley's 42 U.S.C. § 1983 complaint because he had failed to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Because we believe that, as a matter of law, the prison Commissioner's Office rendered a decision on the merits, we hold that Mr. Whatley has exhausted the available administrative remedies. Accordingly, we reverse the district court's judgment and remand the case for further proceedings consistent with this opinion.




         In January 2011, Mr. Whatley was an inmate at Telfair State Prison, where, according to the allegations in his complaint, he was brutally beaten by prison guards and suffered serious injuries. Within hours, he was transferred, without receiving medical attention, to Ware State Prison. Once he arrived at Ware, Mr. Whatley had difficulty breathing, lost consciousness, and was carried to the medical ward. He alleges that a nurse gave him Tylenol and told him he would "be real sore for a while."[2]

         Mr. Whatley brought this § 1983 action, raising Eighth and Fourteenth Amendment claims for the use of excessive force and deliberate indifference to his medical needs after the beating. The Prison Litigation Reform Act ("PLRA") requires a prisoner to exhaust all administrative remedies before filing his § 1983 suit. See 42 U.S.C. § 1997e(a). To exhaust administrative remedies under the Georgia Department of Corrections Standard Operating Procedures ("SOP"), inmates must follow the three-step prison grievance process outlined in SOP IIB05-0001.[3] First, the inmate must complete the informal grievance step by filing an informal grievance on a prison-provided form with a grievance counselor.[4] The informal grievance must be filed "within ten days of becoming aware of the facts giving rise to his grievance."[5] Id. The grievance counselor may accept or reject the informal grievance for resolution based on criteria set forth in the SOP.[6] For example, a grievance counselor may reject an informal grievance if it "attempts to grieve an item that is not grievable according to this policy, is out of time, includes threats, profanity, insults or racial slurs that are not a part of the inmate's complaint, or otherwise does not comply with the requirements" of the SOP.[7] If the grievance is rejected for resolution, the inmate must be notified of the "specific reason" for the rejection.[8] Rejecting a grievance for resolution in this way terminates the grievance process, and there is no procedure that inmates can use to appeal the rejection.

         If the informal grievance is accepted for resolution on the merits, however, the grievance counselor must give the inmate a grievance receipt form, meet with the inmate, and respond in writing within ten days.[9] If the grievance counselor's response to the inmate's informal grievance does not resolve his complaint, he can proceed to step two.

         At step two, an inmate can request a formal grievance form from his grievance counselor.[10] The inmate has five days after receiving the form to file the formal grievance with his grievance counselor.[11] The informal grievance must be attached to the formal grievance form, and "[a]ny grievance which attempts to address more than one issue or which addresses an issue not identified on the Informal Grievance will be rejected" for resolution.[12] Both a grievance counselor and a grievance coordinator review the formal grievance. The grievance coordinator then submits a recommended response to the warden or superintendent.[13] The warden has the authority to order additional investigation if necessary and, in any event, must provide a written response to the inmate.[14] The entire formal grievance step, including any investigation, must be completed within thirty days of the inmate's filing the formal grievance.

         If the inmate is not satisfied with the warden's response, the inmate can move to the third step of the SOP, an appeal of the formal grievance to the commissioner's office.[15] The inmate must complete the formal grievance appeal form within five days of receiving the warden's response.[16] The appeal form includes copies of both the informal and formal grievances. The commissioner's office must respond within ninety days of receiving the inmate's appeal.[17]


         Mr. Whatley filed, or attempted to file, multiple grievances "in which he at least arguably referred to the beating and the ensuing lack of medical treatment."[18]We focus our attention on three, which we will refer to as (1) the January 18 Grievance; (2) Informal Grievance 80327, or the "Imminent Danger" Grievance; and (3) Grievance 80940.

         1. January 18 Grievance

         Mr. Whatley contends that on January 18, 2011, while he was at Ware, he submitted an informal grievance relating to the beating at Telfair and subsequent transfer without medical attention to Ware. The defendants have no record of this grievance. Mr. Whatley submitted several exhibits in support of his claim that it was filed. First, he submitted "Exhibit X," what he called "a true exact copy of a[n] informal grievance rec[ei]pt filed at Ware State Prison on 1-18-11."[19] The receipt, consistent with Mr. Whatley's allegations about the beating at Telfair, indicates that the "incident" occurred on January 12, 2011, but otherwise contains no information about the substance of the allegedly filed informal grievance.[20] It also has signatures in the spaces provided for "Deputy Warden of Care & Treatment" and "Counselor[]."[21] In response, the defendants submitted an affidavit from Edwina Johnson, the Deputy Warden of Care and Treatment, who averred that the signature was not hers.

         Second, Mr. Whatley submitted "Exhibit X-1," a "direct appeal" form for the January 18 grievance.[22] He alleges that when the time allotted for a prison response to the January 18 grievance expired, he had not received such a response and attempted to "direct appeal" the informal January 18 grievance to the Warden.[23] The direct appeal form repeats the allegations about the beating and transfer and complains that Mr. Whatley did not receive a response to the January 18 informal grievance.[24] The SOP, as it existed at the time of Mr. Whatley's grievances, required inmates to comply fully with the informal grievance step before filing a formal grievance (although the SOP has been amended to eliminate this requirement). Because it had no record of Mr. Whatley's alleged informal grievance, the prison considered his "direct appeal" ineffective.

         Finally, Mr. Whatley submitted "Exhibit X-2," a letter he allegedly submitted to his grievance counselor at Ware.[25] The letter, dated January 14, 2011, repeats Mr. Whatley's allegations about the beating at Telfair and subsequent transfer to Ware without medical attention. In the letter, Mr. Whatley appears to be following up on a conversation he had with his grievance counselor about the beating, during which Mr. Whatley informed Counselor Petrie that he "desired to file a grievance," and Counselor Petrie told Mr. Whatley "to write [him] and [he] would check into it."[26] There appears to be a response from Counselor Petrie at the bottom of the page: "Whatley, Filing a grievance is not gonna do you much good unless you made a … complaint prior to be[ing] transferred. If not, the grievance is gonna be rejected, but you can still submit a grievance. I've enclosed a[n] informal grievance form."[27] In response, the defendants submitted an affidavit from Counselor Petrie, who averred that he did not write or sign the letter.

         2. Informal Grievance 80327

         About a month after Mr. Whatley arrived at Ware, he was transferred to the Georgia Diagnostic and Classification Prison ("GDCP"). Once there, Mr. Whatley filed Informal Grievance 80327 on February 10, 2011. Mr. Whatley refers to Informal Grievance 80327 as the "Imminent Danger" grievance. In the space marked "Date of Incident," Mr. Whatley wrote: "2-9-11 'Imminent Danger' Violation 8th & 14th Amendment of U.S. Constitution. I requested extreme protective custody from all G.D.C. staff/employees, due to being sever[e]ly beaten and transferred without treatment."[28] In the space marked "Resolution Requested," Mr. Whatley wrote: "I request to be transferred to a non-state facility, where my life is not in jeopardy by the Department of Corrections and where I am not placed in hardship of cruel and unusual punishment conditions."[29]

         The grievance counselor rejected Informal Grievance 80327 for resolution because it attempted to grieve a "[n]on-grievable" issue, specifically, "Transfer to Different Institution."[30] According to the defendants, Mr. Whatley's description of the beating and subsequent transfer without medical attention, coupled with his request for a transfer, was a complaint about a transfer. Therefore, pursuant to the SOP, Mr. Whatley's grievance counselor rejected Informal Grievance 80327 for resolution and never considered it on the merits. Mr. Whatley alleges that he was not notified of the grievance counselor's rejection of Informal Grievance 80327, an allegation not disputed by the defendants.

         3. Grievance 80940

         Finally, while Mr. Whatley still was at GDCP, he filed Informal Grievance 80940 with a grievance counselor on March 7, 2011. In it, he complained that the time for responding to Informal Grievance 80327 had passed, and that he wished to file a formal grievance.[31] Specifically, in the space marked "Date of Incident," Mr. Whatley wrote that a prison employee was "in violation of grievance procedure" because he had not received a response to Informal Grievance 80327 and "the allotted response time ha[d] expired."[32] In the space marked "Resolution Requested," Mr. Whatley requested to file a formal grievance.[33] Notably, Informal Grievance 80940 did not contain any specific allegations about the beating at Telfair or transfer to Ware without medical treatment, other than referring to Informal Grievance 80327 as the "Imminent Danger" grievance.[34]

         Informal Grievance 80940 was accepted for resolution and then denied on the merits by the grievance counselor. The counselor indicated that Informal Grievance 80327 was rejected for resolution because it had attempted to grieve a "nongrievable issue" that "must be handled through [the] classification appeal process."[35] Therefore, contrary to Mr. Whatley's allegations in Informal Grievance 80940, prison officials had followed proper policy in their resolution of Informal Grievance 80327.

         Mr. Whatley then moved on to the second step of the SOP by filing a formal grievance on March 22, 2011. Formal Grievance 80940 again referred to Informal Grievance 80327 as the "Imminent Danger" Grievance.[36] However, in Formal Grievance 80940, Mr. Whatley explicitly referred to the beating at Telfair and subsequent transfer without medical attention.[37] He also alleged that he had filed grievances every week since the beating and that they were not "being processed according to policy."[38] After investigating, the Warden denied Formal Grievance 80940 on the merits, responding in full:

Informal grievances that you wish to file must be given to your counselor. You have no supporting evidence that you have filed grievances on a weekly basis and them not being processed. Grievance #80327 was rejected on 2-17-11 due to the fact that it was non-grievable, transfer to a different institution. This issue must be handled through the certification appeal process. Per phone conversation with Nurse Gore, you were seen at medical upon arrival on 2-9-11 and there was no evidence supporting your claim of being severely beaten. This grievance is denied at the institutional level.[39]

         Notably, the Warden never invoked the internal prison grievance rule that the defendants now invoke to support their exhaustion argument here: that Grievance 80940 must be dismissed because it raised more than one complaint (i.e., a complaint about the processing of Grievance 80327 and a complaint about the beating and subsequent care) and that a formal grievance cannot include a complaint that was not included in the informal grievance.[40]

         Mr. Whatley proceeded to the third and final step of the SOP grievance resolution process by appealing the Warden's denial to the Commissioner's Office. In this appeal, he clarified that the intake nurse to whom the Warden referred would not have seen evidence of the beating on February 9 because too much time had passed, and all she "did was check[] vital signs and ask[] about medications"; she did not perform a physical examination.[41] He also disputed the Warden's rejection of his claim that he had filed grievances every week with no response.

         The Commissioner's Office denied Mr. Whatley's appeal on the merits, responding in full:

A member of my staff reviewed your grievance. In your written statements you alleged that Ms. Victoria Malone violated GDC's grievance procedure by not responding to a grievance you filed on February 15, 2011.[42]
The grievance in question, informal grievance # 80327, was rejected because the issue you presented (transfer to another facility) is non-grievable, as stipulated in Standard Operating Procedure IIB05-0001. You were advised that the issue could be addressed via GDC's classification appeals process.
We found no evidence to indicate that Ms. Malone violated GDC's grievance procedure, as you alleged. This grievance is denied.[43]

         The Commissioner's Office therefore addressed on the merits that part of Grievance 80940 complaining about the prison's handling of Grievance 80327. It said nothing about the care and beating allegations and gave no reason for not addressing that matter-although it could have refused to consider the grievance at all on procedural grounds, because prison rules permit only one complaint per grievance and forbid including in a formal grievance a complaint not included in the earlier informal grievance. The response of the Commissioner's Office to Mr. Whatley's appeal of Grievance 80940 fully exhausted the grievance resolution process for Grievance 80940.


         Proceeding pro se, Mr. Whatley first filed this § 1983 action in 2012. His complaint alleges that on January 12, 2011, he "was brutally and savagely beaten without provocation and for no legitimate law enforcement or correctional reason."[44] He claims that the beating violated his Eighth and Fourteenth Amendment rights. Further, he alleges that the defendants failed to render "proper and adequate medical attention" after the beating in violation of the Eighth Amendment.[45] The defendants moved to dismiss on the ground that Mr. Whatley had not exhausted his administrative remedies, as required by the PLRA. A magistrate judge filed a report and recommendation agreeing with the defendants; the district court adopted that opinion.

         Mr. Whatley appealed. In our prior opinion, we first held that in analyzing Mr. Whatley's claims about the January 18 grievance, the district court had failed to follow the two-step process mandated by Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008). Under the first step of Turner, the district court was required to accept as true Mr. Whatley's alleged facts as they related to his exhaustion of administrative remedies. See id. at 1082. It would have been proper for the district court to dismiss the complaint at step one if Mr. Whatley's version of the facts entitled the defendants to dismissal. See id. If Mr. Whatley's version of the facts did not entitle the defendants to dismissal, the district court would proceed to the second Turner step and make specific factual findings on the question of exhaustion, resolving any factual disputes between the parties' accounts. See id. at 1082-83. We remanded for the district court to "undertake the two-step Turner process" in determining whether the alleged January 18 grievance had exhausted Mr. Whatley's administrative remedies.[46]

         Second, we held that in analyzing Grievance 80940, the district court "enforced a procedural bar that the prison itself may have waived."[47] The district court had held that Grievance 80940 did not exhaust administrative remedies regarding the assault because the informal grievance did not explicitly mention the assault, and prison officials could have declined to review the assault allegations for that reason. We announced for the first time that "a prisoner has exhausted his administrative remedies when prison officials decide a procedurally flawed grievance on the merits. … [D]istrict courts may not enforce a prison's procedural rule to find a lack of exhaustion after the prison itself declined to enforce the rule."[48]

         We noted, however, that we were not in a position to address "whether the prison declined to enforce its rule and waived the procedural flaw" in its response to Grievance 80940.[49] Informal Grievance 80940 had complained only of the prison's lack of response to Informal Grievance 80327, but when Mr. Whatley filed Formal Grievance 80940 with the Warden, he added a complaint about the original beating and subsequent lack of medical care. We remanded for fact-finding about whether prison officials had waived the prison's procedural rules in their responses to Grievance 80940. Specifically, we stated:

[A]s an appeals court, we are not in a position to find, in the first instance and as a factual matter, whether the prison declined to enforce its rule and waived the procedural flaw in this case. On appeal the parties argued at length over whether the warden's response to Mr. Whatley's formal grievance in fact addressed the merits of his claims about being beaten, or whether the warden was instead responding to Mr. Whatley's complaints about his earlier grievances being ignored. … [W]e must reverse for the District Court to make the necessary findings of fact.[50]

         As Judge Vinson noted in his special concurrence, we did not define with any specificity the contours of the "waiver rule" we announced.[51] Notably, we did not speculate about what sort of prison response is required before the waiver rule applies. Judge Vinson suggested that if, on remand, the district court concluded that the Warden had waived the procedural rule at the intermediate review step, the district court "must then consider the more legally significant question of whether the grievance was considered and resolved on the merits by the Commissioner's Office at the third and final step."[52] Only then would the State be considered to have "waived its exhaustion defense."[53] Otherwise, "regardless of whether the warden's earlier decision was on the merits," the defendants were entitled to dismissal.[54]


         On remand, the district court, adopting a magistrate judge's report and recommendation, again dismissed Mr. Whatley's complaint for failure to exhaust administrative remedies. First, the district court applied the two-step Turner analysis to Mr. Whatley's claims about the January 18 grievance. The defendants conceded that Mr. Whatley's claims were not subject to dismissal at the first step of the Turner analysis, and the district court agreed, noting that under Mr. Whatley's version of the facts, he had "exhausted all the remedies ...

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