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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10716
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-03234-AT
JONATHAN-MICHAEL TREVARI,
Plaintiff-Appellant,
versus
ROBERT A. DEYTON DETENTION CENTER,
Defendant,
WARDEN,
PRICE,
Staff Psychiatrist,
BOWEN,
Chaplain,
RALPH CHERRY,
former Warden,
ASSISTANT WARDEN, et al.,
Defendants-Appellees.
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________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 3, 2018)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Jonathan-Michael Trevari, a prisoner proceeding pro se, appeals the district
court’s dismissal of his claims against certain prison officials. On appeal, Trevari
argues the district court improperly determined that he had failed to exhaust the
available administrative remedies for his claims under the First Amendment and
Equal Protection Clause, which alleged that he had been denied access to religious
services, a kosher diet, and homosexual adult publications.
I.
At all times relevant to this case, Trevari was incarcerated at the Robert A.
Deyton Detention Facility (the “Deyton Facility”), a privately owned prison in
Lovejoy, Georgia. The Deyton Facility is operated by The GEO Group, Inc.
Trevari brought suit against twelve current and former GEO employees who
worked at the Deyton Facility: warden Randy Tillman, former warden Ralph
Cherry, assistant warden Danny Horton, security chief Herbert Walker, chaplain
Donald Bowen, medical administrator Dr. Tracy Kinders, former medical
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administrator Dr. McCardel, case manager Ralph Holmes, grievance coordinator
Erick Hardy, classification manager C.E. Johnson, Prison Rape Elimination Act
compliance manager Teressa Mims, and Wayne Woods, compliance assistant for
that Act. He also brought claims against Dr. Bryan Price, an independent
contractor who worked as a staff psychiatrist at the Deyton Facility.
Between his initial complaint and his later amendments, Trevari brought a
total of twenty-three claims. After a frivolity review, the district court allowed
Trevari to proceed on seven of those claims. 1
His first two claims alleged that on April 10, 2015, Trevari informed Price
that he was suffering abuse and sexual harassment from other prisoners. When
Price failed to report the complaint to the proper channels, Trevari wrote to Cherry,
Hardy, Horton, and Tillman, all of whom failed to adequately respond. Trevari
similarly alleges that Mims and Woods failed to adequately respond to his claims
of abuse and sexual harassment. Trevari generally alleged the defendants who
didn’t respond to his complaints failed to protect him from abuse.
Trevari’s third claim alleged that Mims and Woods lied about his
confinement status. Mims and Woods told Trevari in August 2015 that his solitary
confinement was voluntary and he could leave whenever he felt comfortable doing
1
None of those seven claims were brought against McCardel or Johnson as defendants,
and therefore they have no part in this appeal.
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so. However, Holmes—and later Horton—told Trevari his classification was not
voluntary, and he remained in solitary confinement until at least November 2015.
Trevari brought an administrative-confinement claim against Woods, Horton, and
Mims.
Trevari’s fourth claim was that he was denied access to a homosexual adult
magazine. Holmes told Trevari the request was denied because the magazine
contained nudity, but Tillman had told Trevari that other inmates were allowed to
access Playboy and Hustler, which contain nudity. Trevari brought a claim under
the First Amendment and the Equal Protection Clause against Holmes and Tillman.
Trevari’s fifth claim alleged that he changed his religious beliefs in
September 2015 and requested a kosher diet. Bowen, Tillman, and Kinder denied
this request, allegedly for safety and health reasons. Trevari brought a First
Amendment claim against Bowen, Tillman, and Kinder.
Trevari’s sixth claim alleged that he was denied the right to attend church.
Trevari wrote several complaints to a non-defendant official at the Deyton Facility,
who told Trevari that Tillman and Walker would consider the issue. Trevari never
got a response from Tillman or Walker, and brought a First Amendment claim
against each of them.
Trevari’s final claim alleged he was denied requested healthcare. Trevari
asserted that he requested a prostate exam and spoke with Kinder about the issue,
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but that his request has been ignored. Trevari brought a claim against Kinder for
failure to provide adequate medical care.
Defendants moved to dismiss all seven claims, and the magistrate judge
issued a report and recommendation (“R&R”) recommending that all be dismissed.
First, the R&R acknowledged that while Trevari brought his claims under
42
U.S.C. § 1983, that statute covers only state actors, and relief against federal actors
is instead available under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics,
403 U.S. 388,
91 S. Ct. 1999 (1971). Construing Trevari’s
pro se petition broadly, the magistrate allowed him to proceed under Bivens, but
found Trevari’s claims for failure to protect, administrative confinement, and
denial of medical care all failed because alternative remedies exist under state law
to address those claims. As for the remaining claims arising under the First
Amendment and Equal Protection Clause, the R&R recommended dismissal for
lack of exhaustion because Trevari had not filed any internal appeals as part of the
prison’s grievance process.
Over Trevari’s objections, the district court adopted the R&R and dismissed
his claims. On appeal, Trevari contends the district court erred in dismissing his
claims for lack of exhaustion. He argues he complied with the grievance
procedures at the Deyton Facility, or deviated from those procedures only when
they proved futile.
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II.
As an initial matter, we affirm the district court’s ruling with regard to the
sixteen claims that were dismissed during the frivolity review for failure to state a
claim. Trevari made no mention of those claims in his appeal, and this Court
generally will not consider any issues not raised in an appellant’s initial brief.
United States v. Durham,
795 F.3d 1329, 1330–31 (11th Cir. 2015) (en banc) (per
curiam).
Similarly, we must affirm the district court’s dismissal of Trevari’s claims
for failure to protect, administrative confinement, and denial of medical care.
Trevari’s initial brief focused entirely on the grievance procedure and whether the
complaints he has filed demonstrate an exhaustion of available remedies. He made
no mention of the district court’s finding that these four claims should be dismissed
because an alternative remedy exists, meaning relief under Bivens is unavailable. 2
See Minneci v. Pollard,
565 U.S. 118, 131,
132 S. Ct. 617, 626 (2012) (“[W]here
. . . a federal prisoner seeks damages from privately employed personnel working
at a privately operated federal prison, where the conduct allegedly amounts to a
violation of the Eighth Amendment, and where that conduct is of a kind that
2
Trevari’s reply brief makes mention of the Bivens issue, saying defendants erred by
asserting that any of his claims had been dismissed pursuant to Bivens. However, issues
addressed for the first time in a reply brief are not properly raised to the Court. Lovett v. Ray,
327 F.3d 1181, 1183 (11th Cir. 2003) (per curiam). Even if the Court were to consider this
argument, Trevari is incorrect: the district court’s order adopted the R&R’s conclusion that
Bivens relief was unavailable for these four claims.
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typically falls within the scope of traditional state tort law . . . the prisoner must
seek a remedy under state tort law. We cannot imply a Bivens remedy in such a
case.”). While we construe pro se filings with leniency, see Lorisme v. I.N.S.,
129
F.3d 1441, 1444 n.3 (11th Cir. 1997), pro se litigants must still advise the Court in
their filings of the issues they seek to raise on appeal, see Timson v. Sampson,
518
F.3d 870, 874 (11th Cir. 2008) (per curiam) (applying the waiver rule to a pro se
litigant’s initial brief). For this reason we affirm the district court’s dismissal of
Trevari’s claims for failure to protect, administrative confinement, and denial of
medical care.
III.
Trevari’s remaining claims, alleging violations of the First Amendment and
Equal Protection Clause, were dismissed by the district court for lack of
exhaustion. Before a prisoner may bring a suit complaining of prison conditions,
the Prison Litigation Reform Act (“PLRA”) requires the prisoner to exhaust all
available administrative remedies. 42 U.S.C. § 1997e(a); Alexander v. Hawk,
159
F.3d 1321, 1322, 1324–25 (11th Cir. 1998) (holding that § 1997e(a) applies to
Bivens claims). We review de novo the dismissal of a lawsuit for failure to
exhaust administrative remedies under the PLRA, but the district court’s factual
findings are reviewed for clear error. Whatley v. Warden,
802 F.3d 1205, 1209
(11th Cir. 2015).
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If a prison publishes a grievance procedure, an inmate “must file a grievance
and exhaust the remedies available under that procedure.” Johnson v. Meadows,
418 F.3d 1152, 1156 (11th Cir. 2005) (quotation omitted). A remedy must be
available before a prisoner is required to exhaust it. Turner v. Burnside,
541 F.3d
1077, 1084 (11th Cir. 2008). A remedy may be unavailable when the grievance
process “operates as a simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates.” Ross v. Blake, 578 U.S.
___,
136 S. Ct. 1850, 1859 (2016). Proper exhaustion generally does not require
that a prisoner resort to optional administrative procedures to address prison
conditions. See Dimanche v. Brown,
783 F.3d 1204, 1210 (11th Cir. 2015) (“The
PLRA requires proper exhaustion that complies with the critical procedural rules
governing the grievance process.” (quotations omitted)). It is defendant’s burden
to prove that the plaintiff failed to exhaust his administrative remedies. Turner,
541 F.3d at 1082–83.
The Deyton Facility has an established grievance procedure set forth in the
prison handbook. Detainees are encouraged to first seek informal resolution of any
complaints. Regardless of whether they elect to seek informal resolution, all
formal complaints are submitted on a grievance form to the Grievance
Coordinator. The detainee should then receive a written response. The handbook
then states “[i]f you are dissatisfied with the reviewing authority’s response you
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may request an appeal.” The grievance response form has two appellate
checkboxes: one indicates that there is newly discovered evidence relevant to the
decision, and the other covers “[p]robable error committed by the reviewing
authority.” The handbook is silent on the steps a detainee should take if he never
receives a response to a grievance.
On the record now before our Court, we are unable to determine whether
Trevari exhausted the available administrative remedies on his First Amendment
and Equal Protection claims. The R&R and the district court’s order both assumed
that a failure to file an internal appeal would mean Trevari’s claims were
unexhausted. However, the prison handbook states that when a detainee is
dissatisfied with a grievance response, he “may request an appeal.” This
permissive language is ambiguous about whether an internal appeal is a necessary
step to exhaust available remedies, or whether it is merely an optional requirement
like the informal grievance process. 3 See Turner,
541 F.3d at 1083–84
(“[Appellant’s] failure to comply with an optional administrative procedure does
not amount to a failure to properly exhaust his remedies.”); see also Dimanche, 783
F.3d at 1210 (requiring compliance with “critical procedural rules” (quotation
omitted)). We have also held that where a prisoner files a second grievance after
3
The affidavit submitted by a current grievance counselor at the Deyton Facility does not
resolve this ambiguity. That affidavit merely states that “[i]nmates have the option to appeal any
grievance,” but it does not say whether internal appeals are mandatory and not permissive.
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receiving an unsatisfactory grievance response and he receives a second response
on the merits, prison officials cannot then fault him for failing to file an internal
appeal. Whatley, 802 F.3d at 1215–16. Trevari has produced a number of
grievances he says he filed and claims to have filed dozens more. However the
district court never made factual findings that would allow us to understand
whether the facts of this case are analogous to Whatley. Therefore, on the record
now before us, it is not clear whether a failure to file an internal appeal would
doom Trevari’s claims.
It is also true that the district court never made a factual finding about
whether Trevari filed a formal grievance regarding his church-access claim, nor
whether he received a response. 4 Instead, the R&R noted that there was “no
evidence that Plaintiff sought an appeal in regard to any grievance,” and the district
court accepted this finding. The district court found this was fatal to Trevari’s
claim because “[a]lthough it may indeed require more effort to appeal a grievance
to which there has been no Level-1 Response (with a section for requesting an
appeal), that does not mean that the ability to appeal was unavailable or that
Plaintiff could not have requested an appeal when an official rejected or failed to
4
None of the grievances produced by defendants pertain to the church-access claim.
However, Trevari submitted copies of additional grievances, including one that contained a
request for church attendance. The district court acknowledged this grievance but noted it was
“unsigned/unstamped.” The district court ultimately dismissed this claim because there was no
evidence of an internal appeal, without ever making a finding about whether the grievance had
been filed or a response had been issued.
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respond to a regular grievance.” This incorrectly states the law. Where the
grievance procedures provide no instruction on how to handle unreturned
grievances, a prisoner should not be faulted for failing to use the prison’s preferred
method to appeal a claim. Id. at 1212 & n.2. Therefore, if Trevari did file a
grievance regarding church attendance and received no response, he may have
exhausted all available remedies on this issue.
Because the district court did not make explicit findings of fact regarding the
required grievance procedures or the full remedies available to Trevari, we are not
able to determine on the current record whether Trevari has additional remedies
available to him. See id. at 1213 (“[W]e are a court of appeals. We do not make
fact findings. We review them for clear error. Without any explicit findings of
fact . . . we cannot undertake that review.”) Therefore we vacate the dismissal of
Trevari’s First Amendment and Equal Protection claims and remand for the district
court to make the necessary factual findings.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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