Billy Wheater v. Frank Shaw ( 2018 )


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  •    Case: 16-60163   Document: 00514339251   Page: 1   Date Filed: 02/07/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-60163                       FILED
    February 7, 2018
    Lyle W. Cayce
    Clerk
    BILLY N. WHEATER,
    Plaintiff−Appellant,
    versus
    FRANK SHAW, Warden;
    MAJOR SMITH, East Mississippi Correctional Facility;
    INVESTIGATOR RICE, East Mississippi Correctional Facility;
    INVESTIGATOR ALEXANDER, East Mississippi Correctional Facility;
    OFFICER BATTLES, East Mississippi Correctional Facility;
    CAPTAIN NADOW, East Mississippi Correctional Facility;
    CAPTAIN BRYANT, East Mississippi Correctional Facility;
    CAPTAIN TREHUNE, East Mississippi Correctional Facility;
    CAPTAIN DYKES, East Mississippi Correctional Facility;
    UNKNOWN CLARKE, Case Manager;
    TIESHA EVANS, East Mississippi Correctional Facility;
    UNKNOWN JENKINS, Nurse,
    Defendants−Appellees.
    Appeal from the United States District Court
    for the Southern District of Mississippi
    No. 3:13-CV-813
    Case: 16-60163       Document: 00514339251          Page: 2     Date Filed: 02/07/2018
    No. 16-60163
    Before REAVLEY, SMITH, and OWEN, Circuit Judges.
    JERRY E. SMITH, Circuit Judge:*
    Billy Wheater appeals a summary judgment that is based on his failure
    to exhaust administrative remedies under 42 U.S.C. § 1997e(a). Because there
    is a genuine dispute as to whether Wheater withdrew his grievance before
    exhausting, we affirm in part and vacate and remand in part.
    I.
    Wheater, a Mississippi prisoner, filed a 42 U.S.C. § 1983 civil rights
    action against Frank Shaw, Derrick Smith, Ray Rice, Augustine Battle,
    Mathew Naidow, and Christopher Dykes—employees of the Management &
    Training Corporation (“MTC”), a private prison management company operat-
    ing the East Mississippi Correctional Facility (“EMCF”). Wheater alleged that
    those defendants failed to protect him from inmates who attacked and stabbed
    him in December 2012. He also alleged a failure-to-protect claim against
    Tyeasa Evans, an employee of the Mississippi Department of Corrections
    (“MDOC”) who monitors MTC’s operations at EMCF. 1 Wheater additionally
    sued a nurse, Santa Jenkins, asserting that she refused to give him insulin.
    The magistrate judge (“MJ”) conducted an “omnibus” hearing and said the
    parties should address whether Wheater had exhausted his administrative
    remedies. Wheater conceded that he did not exhaust with respect to Jenkins. 2
    *Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in
    5TH CIR. R. 47.5.4.
    Shaw, Smith, Rice, Battle, Naidow, Dykes, and Evans are collectively referred to as
    1
    the MTC Defendants.
    2At the omnibus hearing, the MJ asked Wheater whether he had “completed the ARP
    process on th[is] issue.” Wheater replied, “I only took – I took to the first step, and I got a
    response that said―from Nurse Little that said he felt that [Jenkins’s] action was
    appropriate.”
    2
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    No. 16-60163
    The defendants moved for summary judgment, asking for dismissal
    because Wheater had failed to exhaust his remedies through the MDOC’s two-
    step Administrative Remedy Program (“ARP”). The MTC Defendants asserted
    specifically that Wheater withdrew his ARP grievances concerning their fail-
    ure to protect him.
    The MJ recommended dismissal for failure to exhaust. She noted sum-
    mary judgment evidence showing that, in January 2013, Wheater filed three
    stabbing-related grievances that were consolidated. She concluded that, after
    Wheater was transferred, he withdrew those grievances, and also that
    Wheater withdrew a later grievance against Jenkins. Finally, she observed
    that, after his transfer, Wheater filed another grievance about the stabbing
    that was rejected as untimely.
    Wheater filed objections asserting that he had not failed to exhaust his
    grievance about being stabbed but had withdrawn only his grievances about
    the denial of insulin and other matters. The district court overruled the objec-
    tions and dismissed without prejudice.
    II.
    On appeal, Wheater contends that prison officials violated the Eighth
    Amendment by being deliberately indifferent to his safety. Concerning ex-
    haustion, he again asserts he never withdrew his grievance about being
    stabbed. We address only the latter, preliminary issue, because the district
    court did not reach the merits of the Eighth Amendment claims. 3
    A dismissal for failure to exhaust administrative remedies is reviewed
    3“‘It is the general rule, of course, that a federal appellate court does not consider an
    issue not passed upon below.’” Humphries v. Elliott Co., 
    760 F.3d 414
    , 418 (5th Cir. 2014)
    (quoting Singleton v. Wulff, 
    428 U.S. 106
    (1976)).
    3
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    de novo. Powe v. Ennis, 
    177 F.3d 393
    , 394 (5th Cir. 1999). “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 cor-
    rectional facility until such administrative remedies as are available are
    exhausted.” 42 U.S.C. § 1997e(a). This court takes a strict approach to exhaus-
    tion. Dillon v. Rogers, 
    596 F.3d 260
    , 268 (5th Cir. 2010). Substantial compli-
    ance is insufficient; prisoners must properly exhaust all available remedies by,
    among other things, complying with deadlines and procedural rules. 4 Exhaus-
    tion must be completed before suit; it may not be excused if it occurs while the
    suit is pending. Gonzalez v. Seal, 
    702 F.3d 785
    , 788 (5th Cir. 2012).
    After the district court issued its order, the Supreme Court held, “A
    prisoner need not exhaust remedies if they are not ‘available.’” Ross v. Blake,
    
    136 S. Ct. 1850
    , 1855 (2016). An administrative remedy can be unavailable
    where officials are “unable or consistently unwilling to provide any relief.” 
    Id. at 1859.
    Also, “an administrative scheme might be so opaque that it becomes,
    practically speaking, incapable of use” by the ordinary prisoner or “when prison
    administrators thwart inmates from taking advantage of a grievance process
    through machination, misrepresentation, or intimidation.” 
    Id. at 1859–60.
    “When a prisoner has no means of verifying prison officials’ claims about the
    administrative grievance process, incorrect statements by officials may indeed
    make remedies unavailable.” 
    Dillon, 596 F.3d at 268
    –69.
    The MDOC ARP is a two-step process set forth in the Inmate Handbook. 5
    An inmate must file a grievance within 30 days of the complained-of incident.
    4   Woodford v. Ngo, 
    548 U.S. 81
    , 90–91 (2006); see 
    Dillon, 596 F.3d at 267
    –68.
    
    5 Wilson v
    . Epps, 
    776 F.3d 296
    , 300 n.2 (5th Cir. 2015); see MDOC Inmate Handbook,
    ch. VIII, http://www.mdoc.ms.gov/Inmate-Info/Documents/CHAPTER_VIII.pdf [hereinafter
    MDOC Inmate Handbook]; see also Howard v. Epps, No. 5:12CV61 KS-MTP, 
    2013 WL 2367880
    , at *2 (S.D. Miss. May 29, 2013).
    4
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    See MDOC Inmate Handbook. The grievance is reviewed by the prison’s legal-
    claims adjudicator and, if there is an adverse response at the first step, the
    inmate may appeal to step two. 
    Id. If the
    inmate disagrees with the step-two
    response, he may sue. 
    Id. 1. Jenkins,
    who allegedly refused to give Wheater insulin, contends that
    Wheater has failed to brief, and has thus waived, any claim that he exhausted
    administrative remedies against her. Jenkins is correct. See Yohey v. Collins,
    
    985 F.2d 222
    , 224–25 (5th Cir. 1993). Additionally, the unrebutted summary
    judgment evidence shows that Wheater explicitly withdrew his ARP grievance
    against Jenkins before exhausting. The judgment of dismissal for Jenkins is
    affirmed.
    2.
    Wheater claims that, because he never withdrew his grievance about the
    MTC Defendants’ failure to protect him from being stabbed, he should be
    deemed to have exhausted his administrative remedies concerning that claim.
    The MTC Defendants rely on evidence purporting to show that Wheater with-
    drew his ARP grievance against them. The evidence included affidavits by
    Becky Naidow, ARP coordinator for the EMCF, and Mary Dempsey, MTC’s
    ARP coordinator.
    According to the defendants, Wheater submitted a grievance on Janu-
    ary 21, 2013, in which he complained that he was stabbed on December 21,
    2012, because the defendants failed to protect him. He asked to be transferred
    to the Marshall County jail. On January 25, 2013, he filed another grievance
    asserting that other defendants failed to protect him from the stabbing, asking
    again that he be transferred, and asking for criminal charges against his
    5
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    attackers. On January 29, 2013, he filed a third grievance about the stabbing,
    again asserting that it was the result of defendants’ denial of his requests for
    protection. He asked for a transfer to Marshall County or the state prison in
    Parchman and for the prosecution of his attackers. According to Dempsey’s
    affidavit, the three grievances were accepted and consolidated into one, which
    was identified as EMCF-13-990.
    Dempsey’s affidavit states in a conclusional manner that after Wheater
    was transferred to another prison, SMCI, he withdrew the consolidated griev-
    ance before receiving an answer at step one. The affidavit provides no indica-
    tion of how or when Wheater made that request. Becky Naidow’s affidavit is
    even more succinct and states merely that Wheater filed a grievance and then
    “withdrew his complaint regarding being transferred.”
    In contradiction, Wheater points to a note in which he withdrew only
    other grievances, while explicitly requesting that the office focus on his ARP
    “concerning *being stabbed*.” He asserts that, after he was transferred to
    SMCI, he inquired about the stabbing grievances but was told by EMCF that
    there was no record of any ARP about the stabbing and that he should refile.
    He complied with such instruction, but, by that time, such grievance was un-
    timely and was not accepted into the ARP program. Wheater contends that
    EMCF thus tried “to hinder [him] from achieving relief.” The MTC Defendants
    respond that, even if the grievances “were somehow mishandled,” Wheater
    should have proceeded to step two when he did not receive a reply at step one.
    The district court did not address these latter contentions when it
    adopted the MJ’s recommendation. That recommendation urged summary
    judgment based only on the finding that Wheater had withdrawn the ARP con-
    cerning the stabbing. Thus, we consider only the district court’s ruling that
    there was no genuine dispute of material fact that Wheater withdrew the ARP.
    6
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    There is a “genuine” issue of fact as to whether Wheater withdrew his
    stabbing grievances. See 
    Cuadra, 626 F.3d at 812
    . The MTC Defendants point
    only to conclusional statements, in affidavits, that say Wheater withdrew his
    ARP in this matter, whereas Wheater supplies all documents concerning the
    various ARP filings and points to the one that explicitly withdraws other ARPs
    while requesting continuing review of the stabbing ARP. A reasonable fact-
    finder could find the document explicitly requesting continued review of the
    stabbing ARP, in combination with a lack of any documentation showing with-
    drawal of the stabbing ARP—especially in a process perfectly documented in
    every other respect—outweighs the conclusional statements of the affiants.
    This contested issue is also “material” in that its resolution could affect
    the outcome of the action under applicable law. See 
    Cuadra, 626 F.3d at 812
    .
    For example, in 
    Wilson, 776 F.3d at 301
    , this court noted that “under some
    circumstances, a prison’s failure to respond to a prisoner’s grievances can
    result in the prisoner’s administrative remedies being deemed exhausted,”
    though no such circumstances were found in that case. A delay in responding
    to a grievance does not permit a prisoner to run to court without finishing the
    administrative process. 6
    Nonetheless, if the ARP administrators mistakenly regarded Wheater’s
    failure-to-protect claim as withdrawn, and if they told Wheater that he had no
    grievance on file and that he needed to refile, then his situation would be
    distinguishable from a circumstance of a mere delay in responding and may be
    one in which the ARP process was unavailable per Ross. A “strict approach
    does not absolutely foreclose the possibility that prison officials’ statements
    6 MDOC Inmate Handbook (explaining that the exhaustion “requirement does not fall
    by the wayside in the event that the prison fails to respond to the prisoner’s grievance at
    some preliminary step in the grievance process. Instead, the prison’s failure to timely
    respond simply entitles the prisoner to move on to the next step in the process.”).
    7
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    concerning administrative remedies can render such remedies unavailable.”
    
    Dillon, 596 F.3d at 268
    . In light of the statement from the EMCF, Wheater
    possibly should not have been required or expected to proceed to step two on
    what he was told was a nonexistent grievance. His administrative remedy was
    thus potentially rendered unavailable by the EMCF’s statements.
    Accordingly, the order granting summary judgment to Jenkins is
    AFFIRMED, the order granting summary judgment to the MTC Defendants is
    VACATED, and this matter is REMANDED to the district court for further
    proceedings as needed. We place no limitation on the matters that the district
    court may address, as needed, on remand, and we indicate no view on the
    ultimate merits.
    8