Clinton Burns, III v. Warden, USP Beaumont , 482 F. App'x 414 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14149 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 28, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-03667-RLV
CLINTON BURNS, III,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,
versus
WARDEN, USP BEAUMONT,
WARDEN, USP ATLANTA,
CHRIS K. COLVIN,
Unit Manager,
KENDALL TALLEY,
Case Manager,
JAMES E. AUSTIN,
Case Manager, et al.,
llllllllllllllllllllllllllllllllllllllllDefendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 28, 2012)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Clinton Burns, III, a federal prisoner proceeding pro se, filed the present
civil rights suit alleging violations of his right to privacy and his First Amendment
rights, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
Burns alleged that having a prisoner deliver his confidential Presentence
Investigation Report to him, allegedly for the purpose of allowing the prisoner to
read it, violated his right to privacy. After complaining about the privacy
violation, and beginning the grievance process, prison officials interfered with
Burns’s attempts to exhaust his administrative remedies, culminating in a transfer
that Burns alleges was in retaliation for the grievance. The district court,
reviewing the amended complaint sua sponte, prior to service of process or the
filing of responsive pleadings, dismissed it for a failure to exhaust administrative
remedies and, alternatively, for a failure to state a claim.
Burns now appeals the dismissal by the district court. He argues, in part,
that he either exhausted his administrative remedies, or was prevented from doing
so, and that he stated actionable claims under the Constitution.
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I.
We review “de novo a district court’s interpretation and application of 42
U.S.C. § 1997e(a)’s exhaustion requirement.” Johnson v. Meadows, 418 F.3d
1152, 1155 (11th Cir. 2005). The Prison Litigation Reform Act provides that
“[n]o action shall be brought with respect to prison conditions . . . by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
To “properly exhaust” administrative remedies, a prisoner must complete
the administrative review process, as set forth in the applicable prison grievance
process. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 922-923, 166 L.Ed.2d
798 (2007). A prisoner cannot satisfy the exhaustion requirement by filing an
untimely or otherwise procedurally defective administrative grievance or appeal.
Woodford v. Ngo, 548 U.S. 81, 92-103, 126 S.Ct. 2378, 2387-93, 165 L.Ed.2d 368(2006). Although inmates must exhaust their available administrative remedies,
they are not required to “craft new procedures when prison officials demonstrate
. . . that they will refuse to abide by the established ones.” Turner v. Burnside, 541
F.3d 1077, 1083 (11th Cir. 2008) (internal citations omitted).
The “failure to exhaust is an affirmative defense under the PLRA,”
however, and “inmates are not required to specially plead or demonstrate
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exhaustion in their complaints.” Jones, 549 U.S. at 216, 127 S.Ct. at 922. A
complaint may be dismissed for failure to exhaust if the lack of exhaustion appears
on the face of the complaint. Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.
2011). “Otherwise, exhaustion and other affirmative defenses must be raised in a
responsive pleading.” Id.Lack of exhaustion does not appear on the face of Burns’s complaint, as
amended. He alleged that he filed an informal grievance, and a grievance with the
warden, the Southeast Regional Director, and the central office. Burns also
alleged that prison staff made it difficult, if not impossible, to meet the
requirements of exhaustion, which may have made some administrative remedies
unavailable. Accordingly, taking the allegations as true, it is not entirely clear
from the face of the complaint that Burns did not exhaust his administrative
remedies, and the district court should not have dismissed his complaint sua
sponte for failure to exhaust.
II.
A district court’s sua sponte dismissal for failure to state a claim is reviewed
de novo. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). We view the
complaint in the light most favorable to the plaintiff and accept the well-pleaded
facts presented therein as true. Timson v. Sampson, 518 F.3d 870, 872 (11th Cir.
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2008). Although the complaint need not set forth detailed factual allegations, the
plaintiff must allege sufficient facts to render the claim “plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d
929 (2007). Pro se pleadings are held to a less stringent standard than those
drafted by attorneys and are “liberally construed.” Boxer X v. Harris, 437 F.3d
1107, 1110 (11th Cir. 2006).
A federal violation of a person’s constitutional rights by a federal official
may give rise to a damage action in federal court. Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971). We will generally apply 42 U.S.C. § 1983 law to Bivens cases.
Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).
“The First Amendment forbids prison officials from retaliating against
prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,
1248 (11th Cir. 2003). Retaliation against an inmate for filing administrative
grievances and lawsuits may violate First Amendment rights. Wright v. Newsome,
795 F.2d 964, 968 (11th Cir. 1986); Bridges v. Russell, 757 F.2d 1155, 1156-57
(11th Cir. 1985). An inmate must establish three elements to prevail on a
retaliation claim. Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).
Specifically, the inmate must establish that: (1) his speech was constitutionally
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protected; (2) the defendant’s retaliatory conduct adversely affected the protected
speech; and (3) there was a causal relationship between the retaliatory action and
the adverse effect on speech. Id. To establish causation, the plaintiff must show
that the defendant was “subjectively motivated to discipline” the plaintiff for
exercising his First Amendment rights. Smith v. Mosley, 532 F.3d 1270, 1278
(11th Cir. 2008).
Statutorily, the federal Privacy Act regulates the “collection, maintenance,
use, and dissemination of information by certain agencies, subject to certain
exceptions, including for activities “pertaining to the enforcement of criminal
laws.” See generally 5 U.S.C. § 552a. Constitutionally, prison inmates also have
due process and informational privacy rights, although the latter, in particular, are
among those most curtailed by confinement. Harris v. Thigpen, 941 F.2d 1495,
1513-15 (11th Cir. 1991).
In Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), the
Supreme Court recognized a constitutional interest “in avoiding disclosure of
personal matters.” Id. at 599, 97 S.Ct. at 876. In 1978, the former Fifth Circuit
agreed that a ?constitutional right to privacy” was ?incorporated in the due process
protected” by the Fourteenth Amendment. Plante v. Gonzalez, 575 F.2d 1119,
1127 (5th Cir. 1978) (citing Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678,
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14 L.Ed.2d 510 (1965)).
In his complaint, Burns alleged that he was transferred in retaliation for
filing a grievance. He stated that there was no legitimate basis for transferring
him, and that prison staff had been hostile and unprofessional towards him since
his grievance until his transfer. Accordingly, there was a sufficient factual basis
such that the district court was not justified in dismissing this claim sua sponte.
Because it is appropriate to remand based on the First Amendment violation, we
will not consider whether the right to privacy claim, as alleged, was also
cognizable.
VACATED AND REMANDED.
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