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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11080
Non-Argument Calendar
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D.C. Docket No. 5:17-cv-00363-MTT-MSH
MARCO MCILWAIN,
Plaintiff-Appellant,
versus
DR. EDWARD BURNSIDE,
GDCP,
L. ADAIR,
Nurse, GDCP,
LIEUTENANT A. UGLEE,
GDCP,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Georgia
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(October 9, 2020)
Before NEWSOM, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
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Marco McIlwain, a Georgia prisoner serving a life sentence for felony
murder, filed a complaint under
42 U.S.C. § 1983 alleging that prison workers
were deliberately indifferent to his medical needs and retaliated against him when
he filed grievances over their treatment. The district court dismissed his claims,
finding that McIlwain failed to exhaust his administrative remedies. On appeal,
McIlwain argues that the district court erred by not properly applying the steps we
laid out in Turner v. Burnside,
541 F.3d 1077 (11th Cir. 2008). After carefully
reviewing the record and arguments before us, we agree. The district court did not
sufficiently resolve the relevant factual disputes before dismissing his claims, as
the second step in Turner requires. Accordingly, we vacate the district court’s
order and remand the case to the district court for further proceedings.
I.
Marco McIlwain is an inmate in the Special Management Unit at the
Georgia Diagnostic and Classification Prison (GDCP) in Jackson, Georgia. He
arrived at GDCP on August 11, 2016 with serious injuries, including stab wounds
to his head and back and a collapsed lung. McIlwain alleges that workers at GDCP
failed to provide adequate medical treatment for these injuries.
According to his complaint and his response to the defendants’ motion to
dismiss, McIlwain filed or attempted to file five different grievances related to the
workers’ conduct, but his efforts proved unsuccessful. McIlwain’s first grievance
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raised concerns over GDCP workers’ failure to treat his injuries and give him pain
medication. He submitted the grievance under his cell door to a prison counselor
(one part of the counselors’ duties at the prison was to accept such grievances).
The counselor tore off the receipt portion of the form and returned it to McIlwain,
keeping the other portions of the form for himself. The warden dismissed this first
grievance as untimely, stating that McIlwain did not file it within ten days of the
incident it described. McIlwain appealed, arguing that he had a receipt showing
that he submitted the grievance within ten days of the incident. But the appeal was
fruitless; the prison’s central office denied it as untimely without any other
explanation.
McIlwain alleges that he filed a second grievance concerning unreturned
calls to medical staff and continued failure by GDCP workers to treat his medical
needs. He never received a response—other than a statement from the nurse who
gave him a receipt that medical officials were not going to help him because he
kept filing grievances.
McIlwain next alleges that he was told by Dr. Edward Burnside, a prison
physician, that he was going to have to learn to live with his back pain. Following
that refusal of treatment, as well as harrowing experiences with incorrect
medication, he filed his third and fourth grievances. The warden denied both.
McIlwain alleges that he submitted appeals for these denials to his counselor—
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hand delivering one appeal and mailing the other because the counselor did not
come by his cell during the appeal window. McIlwain did not receive a response
to either appeal.
Finally, McIlwain filed a fifth grievance detailing an incident in which an
officer insisted that McIlwain drop his third grievance; the officer took away
McIlwain’s breakfast when he refused to do so. McIlwain claims that he mailed
this grievance to his prison counselor but received a letter in reply stating that he
could not file a third grievance until he dropped one of his two grievances that
remained pending at that time.
After the prison either rejected or did not respond to his five grievances,
McIlwain filed this complaint under § 1983, alleging that the defendants acted with
deliberate and reckless indifference to his medical needs and retaliated against him
in violation of the Eighth Amendment. He attached to his complaint, among other
things, a receipt for the first grievance that showed a submission date within ten
days of the incident it described.
In response, the defendants asked the district court to stay discovery, which
it immediately did. They then moved to dismiss McIlwain’s claims for failure to
exhaust administrative remedies. As part of their motion, they submitted an
affidavit from Counselor Goody stating that McIlwain’s receipt for the first
grievance was forged. McIlwain asked the district court to obtain the original copy
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of the first grievance form and compare its tear lines to those on the receipt
McIlwain submitted to show that he did not forge his receipt, but the district court
never responded to this request.
A magistrate judge reviewed the case and recommended granting the
defendants’ motion to dismiss, making three conclusions in a report and
recommendation. First, the magistrate judge concluded that the first grievance was
untimely because “Defendants’ submissions” were “more credible than
Plaintiff’s.” Second, the magistrate concluded that McIlwain “failed to appeal” the
denial of his third and fourth grievances. Third, the magistrate stated that the
administrative remedies were “actually available” to McIlwain because he had
“availed himself of the GDOC’s grievance procedures numerous times.” The
magistrate judge cited the government’s version of the facts when making these
conclusions, relying heavily on the affidavit of Chanel Footman, the grievance
coordinator at GDCP. McIlwain’s second and fifth grievances were left
unaddressed.
The district court adopted the magistrate judge’s recommendation in full and
dismissed McIlwain’s claims. Neither the magistrate judge nor the district court
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explained why McIlwain had failed to exhaust administrative remedies for his
second or fifth grievance.
McIlwain appeals.
II.
We review a district court’s dismissal for failure to exhaust administrative
remedies under the PLRA de novo. Bingham v. Thomas,
654 F.3d 1171, 1174
(11th Cir. 2011). We review the district court’s factual findings for clear error.
Id.
at 1174–75.
III.
A.
The Prison Litigation Reform Act forbids suits by prisoners “with respect to
prison conditions” under any federal law, including § 1983, “until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
This exhaustion requirement is a mandatory pre-condition to suit. Alexander v.
Hawk,
159 F.3d 1321, 1325–26 (11th Cir. 1998). But if remedies are unavailable
to a prisoner, they (unsurprisingly) need not be exhausted. Turner v. Burnside,
541
F.3d 1077, 1084 (11th Cir. 2008).
State law “determines what steps are required to exhaust.” Dimanche v.
Brown,
783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones v. Bock,
549 U.S.
199, 218 (2007). At the GDCP, standard operating procedures from the Georgia
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Department of Corrections (GDOC) set out the steps required for exhaustion.
First, a prisoner must submit an original grievance within ten days of an incident.
The warden has forty days to respond. Second, the prisoner must appeal within
seven days of receiving a denial or after the time allowed for the warden to decide
expires. The Commissioner or her designee must deliver a decision on the appeal
to the inmate within one hundred days of receipt.
Failure to exhaust “is an affirmative defense under the PLRA” and “inmates
are not required to specially plead or demonstrate exhaustion in their complaints.”
Jones,
549 U.S. at 216. The burden is on the defendant to show a failure to
exhaust.
Id. at 212. In Turner, we established a two-step process for resolving
motions to dismiss for failure to exhaust.
541 F.3d at 1082. First, looking to the
defendant’s motion and the plaintiff’s response, the district court assesses whether
dismissal is proper under the plaintiff’s version of the facts; and second, if
dismissal is inappropriate, the court makes “specific findings in order to resolve the
disputed factual issues related to exhaustion.”
Id. A district court may resolve
material questions of fact based on submitted papers only “in the absence of a
timely request for an evidentiary hearing.” Bryant v. Rich,
530 F.3d 1368, 1377
n.16 (11th Cir. 2008). And the district court’s findings must be specific enough to
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provide this Court with an opportunity to conduct meaningful appellate review.
Danley v. Allen,
480 F.3d 1090, 1092 (11th Cir. 2007).
If a district court fails to properly apply the two-step Turner test, remand is
generally appropriate. Whatley v. Warden, Ware State Prison,
802 F.3d 1205,
1213 (11th Cir. 2015). But we need not remand if it would be futile, meaning if
the outcome of the case could not change. Hill v. Seaboard Coast Line R. Co.,
885
F.2d 804, 810 (11th Cir. 1989).
B.
Under Turner, a district court must make “specific findings” of fact to
resolve disputed issues related to exhaustion before dismissing a prisoner’s
complaint for failure to exhaust administrative remedies.
541 F.3d at 1082. Here,
the district court did not identify and make specific findings to resolve all relevant
factual disputes regarding each of McIlwain’s five grievances before dismissing
his complaint for failure to exhaust. That means that the district court failed to
follow our instructions from Turner and we must remand for it to make these
findings in the first instance. Whatley, 802 F.3d at 1213. We address each of
McIlwain’s five grievances in turn to identify the disputed factual issues the
district court failed to make specific findings to resolve.
First, the district court failed to make specific findings to resolve the
disputed issue of whether McIlwain’s first grievance was timely. The district court
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stated in a footnote that Defendants’ submissions were “more credible than
Plaintiff’s” but did not make any specific findings that would enable us to engage
in meaningful review of this conclusion. And the district court did not explain
why, even taking Defendants’ submissions as true, the first grievance was untimely
where McIlwain alleged an ongoing failure to treat his injuries as of the day he
signed the grievance.
Further, the district court did not give McIlwain an opportunity to develop
the record on this issue before deciding it based on submitted papers. Bryant
instructs us that a district court may resolve disputed questions of fact on submitted
papers only “in the absence of a timely request for an evidentiary hearing.”
530
F.3d at 1377 n.16. In his response to the defendants’ motion to dismiss, McIlwain
requested an evidentiary hearing to compare the tear marks on his receipt with
those on the original grievance form so that he could rebut the defendants’
allegation of forgery. Again in his objections to the magistrate judge’s report and
recommendation, he requested “that the original documents of the grievances be
submitted and put together because the counselor tears the receipt off and give[s] it
to the inmate as Counselor Footman stated in her affidavit.” This was an explicit
request for the district court to gather a key document from the defendants and
perform a specific evidentiary hearing—the kind of request Bryant contemplates.
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But the district court never held such a hearing, and also decided the issue without
making specific findings, violating the requirements of Turner and Bryant.
Second, the district court did not address McIlwain’s second grievance,
despite factual disputes between the parties over whether he had exhausted the
claims related to this grievance. McIlwain proffered a receipt showing he
submitted the second grievance, but the district court failed to address this
grievance at all when dismissing his claims. The defendants acknowledge that the
district court did not make specific findings with regard to this issue as required by
Turner—and recognize that “remand would typically be appropriate”—but ask us
to affirm because any remand would be futile. Hill,
885 F.2d at 810.
The problem with this argument is that its futility conclusion is based on
new arguments not raised in the district court. And the defendants, not McIlwain,
bore the burden of proving exhaustion. Jones,
549 U.S. at 212. For the first time,
the defendants argue that even if McIlwain filed his second grievance, he failed to
appeal it, rendering remand futile. But the district court was the proper forum in
which to raise this argument. And, unlike the situation in Hill, the district court did
not make factual findings regarding the second grievance that would inevitably
doom McIlwain’s claim should we remand.
885 F.2d at 810. Thus, remand is
appropriate for the district court to undertake the second step of Turner and address
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all disputed issues of material fact concerning whether McIlwain exhausted
available remedies for his second grievance before dismissing that claim.
Third, the district court failed to make specific findings of fact when
determining that McIlwain did not appeal his third and fourth grievances. The
district court did not address McIlwain’s appeal receipt for his third grievance.
Nor did it address his argument that his counselor was unavailable during the
appeal window for his fourth grievance, requiring him to mail the appeal. The
defendants again admit that the district court did not make specific findings of fact
as required by Turner for these two grievances, but claim that remand is
unnecessary because even if McIlwain appealed these grievances, he did not wait
for the Commissioner’s one hundred-day response time to expire before filing this
lawsuit. But we will not consider arguments raised for the first time on appeal.
And remand is not futile because the district court made no factual findings
relating to whether the Commissioner’s time for responding to these appeals had
expired. The district court on remand should allow McIlwain to develop the
factual record on these issues and then identify and resolve relevant disputed
issues, making specific factual findings along the way.
Finally, the district court failed to address McIlwain’s fifth grievance,
despite factual disputes between the parties over whether this claim was exhausted.
For example, the parties dispute whether the two-grievance limitation rendered
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administrative remedies unavailable for McIlwain to file his fifth grievance.
Although the district court stated in a footnote that the grievance process was
“actually available” to McIlwain because he “availed himself of the GDOC’s
grievance procedures numerous times,” it did not address the impact of the
standing operating procedures’ two-grievance limitation or even mention the fifth
grievance specifically.
The defendants again acknowledge that the district court did not make
specific findings with regard to these issues as required by Turner—and again
recognize that “remand would typically be appropriate”—but ask us to affirm
because remand would be futile. Hill,
885 F.2d at 810. The defendants argue that
the two-grievance limitation did not render the administrative process unavailable
to McIlwain and that McIlwain’s fifth grievance did not concern an emergency that
could exempt it from the two-grievance limitation. But these arguments should be
raised to the district court. And it is possible for the district court to disagree,
meaning that remand is not futile. Thus, the district court must undertake the
second step of Turner and address all disputed issues of material fact concerning
whether McIlwain exhausted available remedies for his fifth grievance before
dismissing this claim.
In light of the district court’s failure to consider McIlwain’s request for an
evidentiary hearing concerning his first grievance and its failure to identify and
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resolve relevant factual disputes between the parties before dismissing McIlwain’s
claims, we are unable to adequately review its decision. Accordingly, we vacate
the district court’s order and remand the case to allow the district court to engage
in the second Turner fact-finding step with respect to each of the disputed issues
mentioned above.
VACATED AND REMANDED.
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