[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 18, 2006
No. 05-15168 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-23142-CV-UUB
GEORGE LYONS,
Plaintiff-Appellant,
versus
DAISY SERRANO,
DURA DURADO,
SONIA OSSO,
Defendants-Appellees,
TRINITY SERVICES GROUP, INC.,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 18, 2006)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Proceeding pro se, George Lyons, a Florida state prisoner confined at
Jackson Correctional Institution, appeals the district court’s grant of summary
judgment in favor of Daisey Serrano, Dura Durado, and Sonia Osso, based on
Lyons’s failure to exhaust administrative remedies as to his race discrimination
claim. Although the district court found that Lyons failed to exhaust his
administrative remedies because there was no evidence that the Secretary of the
Florida Department of Corrections had received an appeal, we conclude that Lyons
failed to identify his racial discrimination claim in his earlier grievances and
AFFIRM on that ground.
I. BACKGROUND
Trinity Services Group, Inc., was a food services contractor for Everglade
Correctional Institute, and Serrano, Durado, and Osso were employed as
supervisors at the prison. Lyons claimed that while he was employed in food
service at Everglade, Serrano hired only Spanish speaking supervisors and
discriminated racially. Lyons also claimed that Serrano removed Lyons from food
service because he complained about discrimination. Allegedly, Durado and Osso
discriminated by giving Spanish inmates whatever they wanted, while saying that
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African Americans, like Lyons, were dishonest.
Lyons filed multiple grievances concerning this behavior, alleging that
prison officials (1) favored Hispanic prisoners in job assignments and (2) retaliated
against Lyons for complaining about these alleged discriminatory practices. The
issue presented in this case is whether Lyons exhausted the administrative
remedies provided by the state prior to filing suit. Generally, the state requires an
inmate to file an informal grievance with the offending officer, then a formal
grievance with the warden or deputy warden, and finally an appeal to the Secretary
of the Florida Department of Corrections (“DOC”). These steps must be taken
with regard to every claim in order to exhaust the remedies as to that claim.
During the pendency of the case, the district court issued a scheduling order
requiring all dispositive motions be filed by 7 June 2004. On 27 June 2005, the
district court issued an order allowing both parties leave to file, by 1 July 2005,
renewed motions for summary judgment on the issue of whether Lyons exhausted
his administrative remedies.
The defendants’ summary judgment brief argued that Lyons’s numerous
grievances could not be connected in order to complete the three steps necessary
for Lyons to exhaust his administrative remedies for either of his claims; that is,
they argued that it was not clear that Lyons followed the steps of informal
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grievance, formal grievance, then appeal with respect to each claim. In support of
their argument that Lyons did not properly appeal his grievances to the secretary of
the DOC, the defendants attached an affidavit by the record custodian of inmate
appeals for the DOC, averring that Lyons did not file any appeals to the DOC
Secretary between 28 July 2002 to 11 December 2002. The custodian stated that
Lyons had filed 55 other appeals outside that period. Lyons stated that he had
exhausted his administrative remedies and provided a sworn affidavit averring that
he had filed every grievance that he had provided as evidence in his case.
The record contains Lyons’s copies of the grievances that he filed with
Everglade authorities. An informal grievance, dated 15 August 2002, stated that
Lyons had previously filed an informal grievance relating to Serrano but that he
had received no response. A formal grievance, dated 25 August 2002, stated that
Lyons had received no response from a previous informal grievance. The warden
responded, stating that he had previously addressed the issue and would not take
action on the grievance. Lyons filed an appeal to the Secretary of the Florida
Department of Corrections on 28 August 2002, stating that he had filed several
informal grievances regarding the defendants’ acts of racial discrimination but had
not received answers.1
1
Lyons filed another series of grievances but failed to appeal this line of grievances to
the Secretary of the DOC. Among them, he filed an informal grievance from 30 September
4
The district court granted the defendants’ motion for summary judgment,
finding that Lyons’s claim of retaliation was based upon his dismissal nine days
before he filed this lawsuit and finding that Lyons did not submit any grievance
relating to his retaliation claim before filing this lawsuit. Therefore, the court
concluded, Lyons had not exhausted his administrative remedies for that claim.
The district court also found that Lyons did not show that, before filing his suit, he
had filed an appeal of his racial discrimination grievance that was denied by the
Florida DOC Secretary or that any evidence indicated that he actually had
submitted an appeal to the DOC Secretary. The district court concluded that Lyons
did not exhaust his administrative remedies and granted the defendants’ summary
judgment motion.
Lyons argues on appeal that the district court abused its discretion by
allowing the defendants to file an untimely motion for summary judgment after the
2002, which stated that the defendants racially discriminated against African American inmates.
Lyons filed an informal grievance on 5 October 2002, accusing the defendants of racial
discrimination, and the prison official referred Lyons to a prior response. In a 21 October 2002
informal grievance, Lyons asked why he had been removed from food service. Prison officials
responded that food service managers had requested Lyons’s removal. A second 21 October
2002 informal grievance stated that the defendants had retaliated against Lyons’s grievances by
removing him from food service. Prison officials responded on 28 October 2002 that his
removal did not amount to retaliation, Lyons did not specify how the defendants harassed him,
and his removal was in the best interests of all parties. Lyons’s third informal grievance of 21
October alleged that Serrano had put all new Spanish inmates in good jobs. Lyons filed no other
grievances or appeals before filing this lawsuit on 24 October 2002. We do not consider these
grievances or any others filed after the initiation of the lawsuit, as they are not properly
exhausted.
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close of discovery, after it had previously denied appellees’ motion to dismiss his
complaint on exhaustion grounds. Lyons also claims that the district court abused
its discretion by denying his motion for summary judgment because he proved that
he exhausted his administrative remedies.
II. DISCUSSION
We review de novo a district court’s grant of summary judgment, viewing
all evidence and inferences in the light most favorable to the nonmoving party.
Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1276–77 (11th Cir. 2001). “Pro se
pleadings are held to a less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed.” Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998) (per curiam). “Summary judgment is appropriate
when there are no genuine issues of material fact and the movant is entitled to
judgment as a matter of law.” Burton, 271 F.3d at 1277.
In the context of a motion for summary judgment, the moving party bears
the initial burden of proving that there is no genuine issue of material fact for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). If this
burden is met, the nonmoving party may not rest on his pleadings, but must “go
beyond the pleadings and by [his] own affidavits, or by the depositions, answers to
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interrogatories, and admissions of file, designate specific facts showing that there
is a genuine issue for trial” in order to avoid summary judgment. Id. at 324, 106
S. Ct. at 2553 (quotations omitted).
Although the “facts alleged in an inmate’s sworn pleading are sufficient” to
defeat a motion for summary judgment and “a separate affidavit is not necessary,”
conclusory allegations are legally insufficient to defeat summary judgement. See
Sammons v. Taylor, 967 F.2d 1533, 1544–45 & n.5 (11th Cir. 1992). First, we
address the timing of the motions for summary judgment. Second, we address the
merits of the district court’s ruling.
A. Timing of Motions for Summary Judgment
Federal Rule of Civil Procedure 56(a) allows a plaintiff to file a motion for
summary judgment any time after 20 days have elapsed from the time that he filed
suit. Rule 56 also allows a defendant to file a motion for summary judgment at any
time. Fed. R. Civ. P. 56(b). Thus, Rule 56 does not prohibit parties from filing
motions for summary judgment after the close of discovery. The rules require a
district court to enter a scheduling order that limits the time to file motions. Fed.
R. Civ. P. 16(b)(2). This schedule may be modified upon a showing of good cause
and with the leave of the district court. Fed. R. Civ. P. 16(b).
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Lyons argues that the district court abused its discretion in allowing the
parties to file “untimely” motions for summary judgment after denying the
defendants’ motion to dismiss. The record shows that the district court originally
required the parties to file motions for summary judgment by 7 June 2004. The
district court then granted both parties leave to file renewed motions for summary
judgment within a seven-day period ending on 1 July 2005, and appellees filed a
timely motion. Further, the district court set trial in the matter for 26 September
2005, more than two months after motions for summary judgment were due.
Because more than twenty days had elapsed since Lyons filed his complaint when
the district court granted the parties leave to renew their motions for summary
judgment and because Rule 56 provides that defendants may file a summary
judgment motion at any time, the district court did not err in allowing new motions
for summary judgment after denying the defendants’ motion to dismiss.
B. Merits of the Summary Judgment Decision
Pursuant to the Prison Litigation Reform Act (“PLRA”), “[n]o 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 correctional
facility until such administrative remedies as are available are exhausted.” 42
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U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requirement applies to all inmate
suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992 (2002). Exhaustion of
administrative remedies is a precondition to the filing of a § 1983 suit in federal
district court. Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1279 (11th Cir. 2001)
(per curiam).
In determining whether a prisoner exhausted his administrative remedies, a
district court need not evaluate the effectiveness of the remedy, but whether a
remedy was available. Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998).
Exhaustion requires that “when a state provides a grievance procedure for its
prisoners . . . an inmate alleging harm suffered from prison conditions must file a
grievance and exhaust the remedies available under that procedure before pursuing
a § 1983 lawsuit.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000).
The Florida DOC has an inmate grievance procedure, which requires an
inmate first to file an informal grievance with the person responsible for the
particular problem. Fla. Admin. Code Ann. r. 33-103.005(1) (2001). Next, if an
inmate desires review of the answer to an informal grievance, he must file a formal
grievance directed to the warden or deputy warden of his facility. Id. r. 33-
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103.006. Lastly, the inmate may file an appeal of his grievance to the DOC
Secretary. Id. r. 33-103.007. The DOC Secretary has 30 days to respond to an
inmate’s appeal. Id. r. 33-103.011(3)(c).
Unless the inmate has agreed, in writing, to an extension, expiration of a
time limit at any step in the process entitles the inmate to proceed to the next step
of the grievance process. Id. r. 33-103.011(4). If an inmate does not agree to an
extension of time at the central office level of review, he is entitled to proceed with
judicial remedies because he has exhausted his administrative remedies. Id. Lyons
presents two claims, which we address in turn.
1. Retaliation
The district court did not err in concluding that Lyons failed to exhaust his
administrative remedies concerning his retaliation claim. Lyons was removed
from food service on 16 October 2002. He filed an informal grievance on 21
October 2002, stating that his removal was an act of retaliation. Lyons then filed
this lawsuit on 24 October 2002, three days before prison officials responded to the
informal grievance. There is no evidence in the record that Lyons filed a formal
grievance or an appeal to the Secretary of the Florida DOC concerning retaliation
before filing this suit. Therefore, Lyons did not exhaust his administrative
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remedies before filing his 42 U.S.C. § 1983 suit, as required by 42 U.S.C.
§ 1997e(a).
2. Equal Protection
Regarding the equal protection claim, Lyons filed an informal grievance
against Serrano on 15 August 2002. Lyons then filed a formal grievance on 25
August 2002. Neither grievance mentioned racial discrimination, rather, the
grievances addressed the failure of prison officials to respond to previous
grievances.2 Lyons claims that he filed an appeal to the Florida DOC Secretary on
28 August 2002, referencing the defendants’ alleged racial discrimination and the
failure of prison officials to respond to his previous grievances.
The district court concluded that Lyons failed to show that he appealed his
formal grievance to the Secretary of the DOC. We need not reach the issue of
whether Lyons’s sworn affidavit, which claims that he properly filed every
grievance in the record, would be sufficient to create an issue of fact, making
2
The defendants submitted the original grievance with their motion for summary
judgment. That grievance complained that Serrano was not judging the inmates’ work
performance but rather was doling out better assignments based on “those who are friends or
homeboys” of certain inmates. R2-98 Exh. B at 2. Thus, even if we allowed this unresponded to
grievance to connect to the grievances complaining of no response, that earlier grievance does
not explicitly allege racial discrimination.
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resolution of this issue on summary judgment inappropriate.3 We conclude that the
Florida regulations required Lyons to specify the nature of his grievance and that
there is no evidence of an informal or formal grievance regarding racial
discrimination prior to the contested appeal to the Secretary of the Florida DOC.
Because the evidence does not support the conclusion that Lyons followed the
state’s procedures for exhausting his administrative remedies, Lyons’s claim may
not be brought in federal court because of the limiting language of the PLRA.
III. CONCLUSION
Lyons has appealed the district court’s grant of summary judgment in favor
of Serrano, Durado, and Osso, based on his failure to exhaust administrative
remedies. Although the district court found that Lyons failed to exhaust his
administrative remedies because there was no evidence that the Secretary of the
DOC had received an appeal, we conclude that Lyons failed to identify his racial
discrimination claim in his earlier grievances and affirm on that ground.
AFFIRMED.
3
“We may affirm a decision on any adequate grounds, including grounds other than the
grounds upon which the district court actually relied.” Rowe v. Schreiber, 139 F.3d 1381, 1382
n.2 (11th Cir. 1998).
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