Menachem Pri-Har v. Corrections Corp. of America , 154 F. App'x 886 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 18, 2005
No. 05-11132 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00007-CV-3
MENACHEM PRI-HAR,
Plaintiff-Appellant,
versus
CORRECTIONS CORPORATION OF AMERICA, INC.,
JOE D. SNODDY, CURTIS A. RANUM,
GALEY GATES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 18, 2005)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
On appeal, Menachem Pri-Har, a prisoner proceeding pro se, appeals the
entry of summary judgment against him in his diversity action and the denial by
the district court of his motion for recusal. The district court entered summary
judgment based on Pri-Har’s failure to exhaust administrative remedies pursuant to
the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
Pri-Har is a federal prisoner confined in McRae Correctional Facility, a
prison operated by Corrections Corporation of America (“CCA”) pursuant to a
contract with the Bureau of Prisons (“BOP”). Pri-Har argues that he was not
subject to the exhaustion requirement of § 1997e(a), and that he nevertheless
complied with § 1997e(a) by exhausting his available administrative remedies.
Pri-Har further argues that the district court’s rulings demonstrated a lack of
impartiality sufficient to warrant recusal under 28 U.S.C. § 455(a).
We review a district court’s grant of summary judgment de novo. Skrtich v.
Thorton, 280 F.3d 1295, 1299 (11th Cir. 2002). The moving party is entitled to
summary judgment “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). If the non-moving party bears
the ultimate burden of proof regarding the claim at issue in the motion, that party,
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in response to the motion, must go beyond the pleadings and establish, through
competent evidence, that there truly is a genuine, material issue to be tried. Celotex
Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
“When deciding whether summary judgment is appropriate, all evidence and
reasonable factual inferences drawn therefrom are reviewed in a light most
favorable to the non-moving party.” Rojas v. Florida, 285 F.3d 1339, 1341-42
(11th Cir. 2002) (internal citation and quotations omitted). We also review the
district court’s interpretation of the PLRA de novo. Troville v. Venz, 303 F.3d
1256, 1259 (11 th Cir. 2002). We review the district court’s refusal to recuse itself
for abuse of discretion. Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Fla.,
Inc., 140 F.3d 898, 905 (11 th Cir. 1998).
Pri-Har first argues that as a federal prisoner in a privately run prison he is
not required to exhaust CCA’s administrative remedies because the BOP lacks the
legal authority to place him in a private facility. Thus, Pri-Har reasons, he satisfied
the requirements of § 1997e(a). Prior to 1996, the PLRA’s exhaustion requirement
only applied to state prisoners. Porter v. Nussle, 534 U.S. 516, 523, 122 S.Ct. 983,
987, 152 L.Ed.2d 12 (2002). As amended in 1996, the PLRA now states, “No
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
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correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). We have held that § 1997e(a) “now applies to
both federal and state prisoners.” Alexander v. Hawk, 159 F.3d 1321, 1325 (11 th
Cir. 1998). By its terms, § 1997e(a) applies to prisoners confined in “any” prison.
Accordingly, § 1997e(a) applies to federal criminal prisoners in any prison,
regardless of whether it is a federal prison or a privately operated facility.
Pri-Har next argues that he was not required to exhaust CCA’s grievance
procedure, but only to exhaust the BOP procedure, because CCA did not have the
legal or contractual authority to create a grievance procedure.
Section 1997e(a)’s mandate to exhaust “such administrative remedies as are
available” is mandatory. Johnson v. Meadows, 418 F.3d 1152, 1155 (11 th Cir.
2005), petition for cert. filed, (No. 05-6336) (Sept. 8, 2005). We have interpreted
the term “available” as used in this section as acknowledging that “not all prisons
actually have administrative remedy programs.” Alexander, 159 F.3d at 1326.
We have also held that when a state provides a grievance procedure, state inmates
must exhaust that procedure before filing suit in federal court. Johnson, 418 F.3d
at 1156 (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11 th Cir. 2000)). CCA
made a grievance procedure available to its inmates. Because Pri-Har was able to
utilize that grievance procedure, he was required to exhaust it before filing his
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lawsuit.
Pri-Har next argues that a disposition at the initial stage of the grievance
procedure by the Warden or his associates both rendered CCA’s grievance
procedures futile and exhausted his available administrative remedies. We do not
review the effectiveness of available administrative remedies. Miller v. Tanner,
196 F.3d 1190, 1193 (11 th Cir. 1999). Furthermore, an assertion that available
administrative procedures are futile does not excuse the requirement of exhaustion.
Higginbottom v. Carter, 223 F.3d 1259, 1261 (11 th Cir. 2000). Pri-Har’s
arguments take issue with the manner in which CCA’s administrative procedures
are structured, challenging their adequacy and effectiveness. Although CCA’s
grievance procedures were available within the meaning of § 1997e(a), and Pri-Har
was required to exhaust them before filing suit, there is no evidence that Pri-Har
completed all the remaining steps of CCA’s grievance procedure. Therefore, Pri-
Har failed to exhaust his available administrative remedies.
Pri-Har’s final contention regarding the grant of summary judgment is that
CCA’s grievance procedure lacked time limits for responses by prison officials,
that the failure to implement time limits, in and of itself, exhausted his
administrative remedies, and that by not having a timely response to his grievances
he satisfied the exhaustion requirement. As a result of the 1996 amendment of the
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PLRA, administrative remedies are no longer required to be plain, speedy, and
effective. Porter, 534 U.S. at 524, 122 S.Ct. at 988. We recognized that “[t]he
removal of the qualifiers ‘plain, speedy, and effective’ from the PLRA’s
mandatory exhaustion requirement indicates that Congress no longer wanted courts
to examine the effectiveness of administrative remedies but rather to focus solely
on whether an administrative remedy is ‘available’ in the prison involved.”
Alexander, 159 F.3d at 1326. Because an administrative remedy does not have to
be speedy, the absence of a time frame in which prison officials must respond to
grievances does not per se satisfy the exhaustion requirement of § 1997e(a). In
this case, there is no evidence of a failure to respond that prevented Pri-Har from
utilizing CCA’s grievance system. Pri-Har’s four grievance forms, which appear
to be at step three in CCA’s five step process, were submitted by Pri-Har between
December 15, 2003, and January 8, 2004. Pri Har’s complaint was dated January
13, 2004, and filed January 23, 2004, approximately one month later. At the time
the complaint was filed, the CCA Managing Director for Division IV, who
responded at step five, had not responded to his grievances. Pri-Har, therefore,
failed to exhaust his available administrative remedies as required by the PLRA
before filing this lawsuit.
Finally, Pri-Har argues that the district court erred in refusing to recuse itself
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under 28 U.S.C. § 455(a) based on the lack of an extrajudicial source for bias
because the court’s rulings themselves reflected a lack of impartiality sufficient to
warrant recusal. The standard for recusal under § 455 is “whether an objective,
fully informed lay observer would entertain significant doubt about the judge’s
impartiality.” Christo v. Padgett, 223 F.3d 1324, 1333 (11 th Cir. 2000). The
extrajudicial source doctrine applies to § 455(a), but it is not the exclusive basis for
recusal. Liteky v. United States, 510 U.S. 540, 551,554-55, 114 S.Ct. 1147,
1155,1157, 127 L.Ed.2d 474 (1994). Although judicial rulings alone “almost
never constitute a valid basis for a bias or partiality motion,” they are a valid basis
“if they reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Id. 510 U.S. at 555, 114 S.Ct. at 1157. The
recommendation of the magistrate and orders of the district court do not reflect the
antagonism on the part of either judge that would make fair judgment impossible.
Accordingly, the district court did not abuse its discretion in denying Pri-Har’s
motion for recusal.
Upon review of the district court record and the parties’ briefs, we find no
reversible error.
AFFIRMED.
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