[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 4, 2008
No. 08-11311 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00037-CV-1-LGW
GENE L. WILLIAMS,
Plaintiff-Appellant,
versus
LOGAN MARSHALL, Sheriff,
CHRIS DURDEN, Captain,
MARCUS REYNOLDS, Deputy Sheriff,
IMOGENE CROWDER, Deputy Sheriff,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 4, 2008)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Gene Williams, a state prisoner, appeals pro se the dismissal without
prejudice of his complaint. 42 U.S.C. § 1983. The district court ruled that
Williams failed to exhaust available administrative remedies under the Prison
Litigation Reform Act. 42 U.S.C. § 1997e(a). The district court also denied
Williams’s motion for recusal. We affirm in part, vacate in part, and remand.
I. BACKGROUND
Federal marshals transferred Williams to the McDuffie County Detention
Center on June 22, 2005. A marshal told Deputy Sheriff Marcus Reynolds that
Williams required insulin. A detention officer entered Williams’s medical
information into a computer during booking. Williams submitted an inmate
request for medical services on June 24, 2005. The next day, Williams was found
on the floor of the McDuffie County Jail and complained of chest pain. Williams
was transferred to the McDuffie County Hospital and then to University Hospital
for treatment. Williams returned to the McDuffie County Detention Center on
June 28, 2005. On July 8, 2005, United States Magistrate Judge W. Leon Barfield
released Williams on an appearance bond.
On March 9, 2006, while Williams was incarcerated at the Augusta State
Medical Prison, he filed a complaint against Deputy Reynolds, Sheriff Logan
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Marshall, and Deputy Sheriff Imogene Crowder of the McDuffie County Detention
Center. Williams alleged that the officers were deliberately indifferent to his
medical needs as a diabetic and heart patient. Williams alleged that he filed
requests for medical treatment on his third and fourth days at the detention facility
and suffered an insulin-induced heart attack on his fifth day at the facility.
After Williams’s deposition, the officers moved for summary judgment.
The officers argued that Williams failed to comply with the grievance procedure of
the jail. The officers attached an affidavit executed by Durden that said the
grievance policy was listed in the inmate handbook and posted in plain view in the
inmate living quarters; all detention officers were trained to provide information
and forms for grievances and medical needs, which were provided to the inmates
on request; and under the Policy and Procedure Directive of the facility, an inmate
had 72 hours to appeal to the sheriff the response to a grievance. Durden attached
to the affidavit three pages from the inmate handbook and Policy Number E-401 of
the McDuffie County Jail Policy and Procedure Directive. The excerpt of the
inmate handbook titled “GRIEVANCE” stated that an inmate was “entitled to
communicate legitimate complaints . . . in writing.” The excerpt did not address
appeals or medical requests. The attached policy directive stated that the jail had a
“policy” to “permit[]” inmates “to submit grievances to the Jail Administration and
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that each grievance [would] receive a response”; directed the Jail Administrator to
“devise a grievance form” and respond to grievances “in writing”; and stated that
“[t]he decision of the Jail Administrator may be appealed to the Sheriff within . . .
72 hours of the receipt of the grievance decision.” The officers also attached a
blank grievance form, which had blocks for the inmate to write his grievance and
“solution desired,” along with date and signature lines, and a blank appeal form,
which stated that the “Chief Jailer” had 20 days to respond to the appeal.
In a response to the motion, Williams alleged that he submitted a medical
request form on June 24, but when he learned the next day that he would not see
the doctor until June 30, he requested a grievance form. Williams was told there
was a shortage of forms and, unless he wanted to wait until the next day, he could
complete a medical request form that would be “treated the same as a [g]rievance
[f]orm.” Williams completed a second medical request form that “somehow
disappeared” or was thrown away because he went to the hospital. Williams
contended that “[b]ased on the circumstances and time frame of the incident, [he]
was unable to fill out a [g]rievance [f]orm.”
The magistrate judge recommended that the district court grant the officials’
motion for summary judgment for failure to exhaust administrative remedies and
dismiss Williams’s complaint without prejudice. The magistrate found that
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Williams knew about the grievance procedure. The magistrate also found
“incredible” Williams’s allegations that he did not use the grievance procedure
because of a “shortage of forms” and because he was later housed in another
facility. The magistrate distinguished the situation from that in Goebert v. Lee
County, 510 F.3d 1312, 1323 (11th Cir. 2007), where this Court concluded that an
inmate did not fail to exhaust administrative remedies when she did not know that
she should or could appeal the denial of medical treatment. The magistrate
concluded that even if Williams was temporarily unable to use the jail’s grievance
procedure, he was obliged to exhaust the procedure when he returned to the jail
after treatment.
After Williams received the report and recommendation, he filed a motion
for recusal of the district court. Williams argued that the district court had a
conflict of interest because the marshals who transferred him to the McDuffie
County Detention Center and Magistrate Judge Barfield would be witnesses in his
case.
The district court adopted the recommendation of the magistrate judge. The
district court ruled that, even if Williams’s medical request form constituted an
“informal grievance,” he failed to exhaust available administrative remedies by
appealing that decision to the “highest level of the administrative process.”
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II. STANDARD OF REVIEW
We review de novo the interpretation and application of the requirement to
exhaust administrative remedies. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th
Cir. 2005). We review the denial of a motion to recuse for an abuse of discretion.
Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000).
III. DISCUSSION
Williams makes two arguments on appeal. First, he argues that the district
court erred by dismissing his civil complaint. Second, Williams complains that the
district court judge should have recused from his case. We address each issue in
turn.
A. It Is Unclear from the Record Whether an Administrative Process was
Available to Williams.
Under section 1997e(a), “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title . . . by a prisoner confined in any jail,
prison, or correctional facility until such administrative remedies as are available
are exhausted.” This requirement of exhaustion is mandatory. Johnson, 418 F.3d
at 1155. We have explained 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.’” Id. (quoting Brown v. Sikes, 212 F.3d 1205, 1207
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(11th Cir. 2000)).
This Court announced recently a two-step process to decide a motion to
dismiss for failure to exhaust administrative remedies. Turner v. Burnside, 541
F.3d 1077, 1082 (11th Cir. 2008). In the first step, the court reviews the factual
allegations in the motion to dismiss and the plaintiff’s response and, if they
conflict, accepts the plaintiff’s factual allegations as true. Id. If, based on those
facts, the plaintiff failed to exhaust administrative remedies, the court must dismiss
the complaint. Id. If the complaint survives the first level of review, then the court
makes findings to resolve disputes of fact related to exhaustion. Id. In this second
step, the defendant must prove that the plaintiff failed to exhaust his available
administrative remedies. After the court makes its findings of fact, the court
decides whether the prisoner has exhausted his available administrative remedies.
Id.
The magistrate judge ruled that Williams did not exhaust his available
administrative remedies based on three findings. First, the magistrate judge found
that Williams failed to use the available grievance procedure. Second, the
magistrate judge found that, even if Williams was temporarily unable to use the
available grievance procedure, he should have used it when he returned from the
hospital. Third, the magistrate found that, even if Williams used a medical request
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form in lieu of a grievance form, Williams’s failure to state whether he received a
response or appealed the decision constituted a failure to exhaust. The district
court adopted the final finding of the magistrate and ruled that, even if Williams’s
medical request form was an “informal grievance,” he failed to appeal that
decision.
It is not clear from the record whether an administrative process was
“available” to Williams. An administrative remedy is not “available” if “an inmate
does not know about, and cannot discover through reasonable effort . . . remedies
or requirements for remedies . . . by the time they are needed.” Goebert v. Lee
County, 510 F.3d 1312, 1322 (11th Cir. 2007). In Goerbert, we ruled that an
inmate who did not know that she should or could have appealed the denial of
medical treatment exhausted her administrative remedies by filing a complaint in
which she requested urgent prenatal treatment that was denied four days after her
baby was stillborn.
Although the record establishes that the McDuffie County Detention Center
provided an administrative grievance procedure, it is not clear that Williams was
aware of or could utilize that procedure. The excerpt of the inmate handbook
submitted by the officers states that inmates are allowed to file grievances and that
those grievances must be in writing and signed by the accepting officer. To
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understand the grievance procedure, an inmate must reference Policy Directive E-
401 which is not included or referenced in the excerpt of the handbook. Policy
Directive E-401 contemplates the use of a “grievance form” that is made available
“upon request.” The form is evaluated, after “[c]omplet[ion] by an inmate,” by the
Jail Administrator.
Williams alleged that he requested a grievance form, but, even if he had
received that form, it is not clear that he would have known that he could or should
appeal the decision. The grievance form does not explain how to exhaust the
grievance process under Policy Directive E-401. The grievance form is directed to
the “Chief Jailor,” not the Jail Administrator; does not state how long the Chief
Jailor has to decide the grievance or provide a space to indicate that decision; and
does not state how to appeal or how many days in which the inmate must appeal.
Only the policy directive contains the details that an inmate is allowed to appeal
the decision of the Jail Administrator to the Sheriff within 72 hours after receipt of
a decision on his grievance. An inmate must use a separate form to appeal, and
even that form states incorrectly that the “Chief Jailer,” not the Sheriff, evaluates
the appeal.
We vacate the order that dismissed Williams’s complaint and remand for the
magistrate judge to decide whether, in the light of our decision in Goebert,
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Williams had an “available” administrative remedy. As part of that determination,
the district court must decide whether a medical request form constituted a
grievance under the procedures of the McDuffie County Detention Center and
whether the medical request form that Williams filed on June 24, 2006 constituted
a grievance under that process. If the district court concludes that the medical
request form constituted a grievance, then the court must decide whether Williams
should or could have known how to exhaust that grievance.
B. The District Court Did Not Abuse Its Discretion by Denying Williams’s
Motion To Recuse.
A judge must “disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). Recusal is appropriate only
if “‘an objective, disinterested, lay observer fully informed of the facts underlying
the grounds on which recusal was sought would entertain a significant doubt about
the judge’s impartiality.’” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir.
2003) (quoting Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.
1988)). Although a judge must recuse if he “has a personal bias or prejudice
concerning a party, . . . personal knowledge of disputed evidentiary facts
concerning the proceeding,” or “[i]s to the judge’s knowledge likely to be a
material witness in the proceeding,” 28 U.S.C. § 455(b)(1), (5)(iv), the allegation
of bias necessary to require disqualification must be “personal as opposed to
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judicial in nature,” United States v. Meester, 762 F.2d 867, 884 (11th Cir. 1985).
The district court did not abuse its discretion by denying Williams’s motion
to recuse. The marshals are employed by the Department of Justice and no conflict
would prevent them from testifying before the district court. That Magistrate
Judge Barfield released Williams on bond, allegedly due to conditions at the
McDuffie County Detention Center, is a fact arising out of a judicial proceeding
that does not create any question regarding the impartiality of the district court. A
decision on Williams’s bond also does not make the judge a material witness to the
conditions at the detention center.
IV. CONCLUSION
We AFFIRM the denial of Williams’s motion to recuse. We VACATE the
order that dismissed Williams’s complaint without prejudice and REMAND for
further proceedings.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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