Jermichael Pearson v. Warden, et al

Filing

Opinion issued by court as to Appellant Jermichael Pearson. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15459
Non-Argument Calendar
________________________
D.C. Docket No. 7:13-cv-00026-HL-TQL

JERMICHAEL PEARSON,
Plaintiff-Appellant,
versus
WARDEN CEDRIC TAYLOR,
DEPUTY WARDEN CALVIN ORR,
DEPUTY WARDEN TED PHILBIN,
CERT TEAM OFFICER ROBERT WESTON,
Defendants-Appellees,
WARDEN WILLIAM DANFORTH, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(December 20, 2016)

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Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Jermichael Pearson, a Georgia state prisoner proceeding pro se, filed a civilrights complaint under 42 U.S.C. § 1983 alleging claims under the Eighth
Amendment against several employees of the Georgia state prison system. He
alleged that CERT Team Officer Robert Weston used excessive force by
maliciously pepper spraying him and that the other defendants, Deputy Warden
Ted Philbin, Deputy Warden Calvin Orr, and Warden Cedric Taylor, were
deliberately indifferent to his medical needs after the use of excessive force. The
district court granted summary judgment to Weston on the excessive-force claim
and dismissed the deliberate-indifference claims for failure to exhaust
administrative remedies.
On appeal, Pearson argues that the district court erroneously granted
summary judgment to Weston because material facts are in dispute. Furthermore,
he contends that the Georgia Department of Corrections’s (“GDOC”) use-of-force
policy is unconstitutional, and he asks for leave to amend his complaint to add
GDOC policymakers Brian Owens and “Mr. Tillman” as defendants. Finally, he
asserts, the district court improperly resolved factual disputes in deciding whether
he had exhausted his administrative remedies, erred in concluding that the

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administrative remedies were “available,” and abused its discretion by not allowing
him to amend his complaint to show exhaustion.
After a careful review of the record and consideration of the parties’ briefs,
we conclude that the district court improperly granted summary judgment to
Weston, and we vacate and remand for further proceedings on Pearson’s
excessive-force claim. We affirm the district court in all other respects.
I. FACTUAL BACKGROUND
We first present the facts relevant to Pearson’s excessive-force claim against
Weston. For clarity, and because Weston disputes whether Pearson’s version of
events must be credited at summary judgment, we set forth the parties’ distinct
versions of the relevant events, as well as a summary of other record evidence,
including a video recording.
A.

Pearson’s Version of Events
On January 15, 2013, an inmate escaped his cell at Valdosta State Prison and

stabbed another inmate repeatedly with a metal shank. The attacker then threw the
shank into Pearson’s cell and threatened him not to tell anyone.
When prison officers responded to the attack, Pearson discreetly obtained
Officer Weston’s attention. Weston came over and saw the shank on the floor of
Pearson’s cell. Weston told Pearson to hand over the shank, but Pearson refused,
stating that he did not want to risk disease because the shank was covered in blood.
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Pearson offered to be handcuffed so that Weston could retrieve the shank.
Apparently ignoring Pearson’s offer, Weston again ordered Pearson to hand him
the shank and threatened to use pepper spray if he did not. Pearson asked why
Weston would pepper spray him if he was not a threat to security, other inmates, or
himself.
At that point, Weston, wielding a “riot-size” canister of pepper spray,
deployed pepper spray at Pearson and into his cell for one to two minutes.
Because Pearson was wearing only underwear at the time, the spray hit all parts of
his body, including, most notably, his eyes. The spray caused Pearson to vomit
blood and mucus and to faint for around five minutes. He awoke to Weston and
another officer yelling at him to stand up and come to the cell door to be
handcuffed. Pearson responded that he could not breathe or stand up. Weston
deployed a second burst of pepper spray, this time for ten to fifteen seconds.
Pearson was near the back of the cell for the second burst, so it did not directly hit
him, but he pled for time to compose himself and for Weston not to use pepper
spray again. During this time, Weston and the other officer shouted abusively and
harshly ordered him to come to the door to “cuff up.” Pearson eventually did so.
Weston and other officers escorted Pearson from his cell to a shower cell,
where he waited for around twenty minutes for the nurse to arrive. While waiting
in the shower, Pearson vomited blood and mucus. When the nurse arrived, she
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conducted what Pearson claims was an improper evaluation and then told him that
he would recover in twenty-four hours when the pepper spray wore off. Pearson
was not allowed to shower either before or after the nurse’s evaluation.
When the nurse left, Weston escorted Pearson back to his cell. Along the
way, Weston “spitt[ed] obscenities” at Pearson and stomped on his bare feet.
When they reached Pearson’s cell, the chemical agents from the pepper spray still
lingered in the air. Pearson’s cell door had remained closed while he was in the
shower cell, and ventilation in the cells was otherwise poor. Pearson asked for but
was refused cleaning supplies to decontaminate his cell.
Pearson claimed that the exposure to pepper spray damaged his eyes. He
asserted that he has suffered from temporary blindness, blurry vision, and other
vision complications since the incident.
B.

Weston’s Version of Events
Weston provided the same basic outline of events, but he contradicted

Pearson on several key facts. According to Weston, when he responded to the
stabbing incident, he saw Pearson standing in his cell holding a bloody shank.
Weston ordered Pearson four separate times to either hand over the shank or come
to the cell door to be handcuffed. Pearson refused and instead tried to flush the
shank down the toilet.

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Deciding he needed to recover the shank as quickly as possible for safety
and security reasons, Weston deployed a three-second burst of pepper spray into
Pearson’s cell and then shut the tray slap to let the spray take effect. Weston did
not observe Pearson coughing, vomiting, or fainting. After the single use of
pepper spray—the only time pepper spray was used—another officer began
recording the incident with a video camera. Pearson eventually came to the door to
be handcuffed after a different officer threatened to use pepper spray again.
Pearson was taken to a shower cell to be seen by a nurse, and he was permitted to
shower after the nurse saw him.
C.

Other Relevant Evidence
The nurse who examined Pearson executed an affidavit in which she stated

that she completed a “use of force” assessment when she examined Pearson on
January 15, 2013. The nurse stated that she did not observe any objective medical
symptoms or injuries that would indicate that an excessive amount of pepper spray
had been used. The nurse did not see any vomit, blood, or mucus on the floor of
the shower. Pearson was not allowed to shower before the examination, the nurse
said, but he showered afterward. The nurse, referencing medical records attached
to the affidavit, stated that Pearson had complained of vision problems multiple
times before January 15, 2013.

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The record also includes a DVD with a video recording, lasting just over
eight minutes, taken by one of the officers. The video begins after any use of
pepper spray and ends with Pearson in the shower waiting for the nurse. Near the
beginning of the video, Pearson is depicted standing in his cell, walking around,
and refusing to comply with officers’ directives to turn over the shank or be
handcuffed. Only a small portion of his cell is visible, however, as the camera is
often pointed at the wall or the door, or the view is otherwise obscured by officers.
Eventually Pearson allows himself to be handcuffed, and he is then escorted out of
his cell, walking under his own power, and taken to a shower cell where he waits
to be examined by the nurse. Pearson’s face is visible only briefly during these
events, but his eyelids appear noticeably swollen. No vomiting is clearly depicted,
but Pearson appears to be hunched over and coughing while in the shower cell at
the end of the video.
II. PROCEDURAL HISTORY
Pearson filed his “recast” complaint in June 2013, alleging violations of the
Eighth Amendment. He alleged that Weston used excessive force against him by
maliciously pepper spraying him and that the other defendants—Orr, Philbin, and
Taylor—were deliberately indifferent to his pain and suffering by denying him
medical and mental-health treatment after the pepper-spray incident.

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Orr, Philbin, and Taylor moved to dismiss the complaint against them for
failure to exhaust administrative remedies. They asserted that the only grievance
Pearson filed relating to the incident did not raise any issue about medical care or
name the three defendants. Pearson responded that these defendants were put on
notice through other means. Later, Pearson sent a letter to the magistrate judge
stating that he had proof of exhaustion and asking for permission to amend his
complaint. He attached an informal grievance he filed before the January 2013
incident and several other documents relating to the substance of that grievance,
which concerned Pearson’s fear of harm from gang members.
Weston moved for summary judgment on the excessive-force claim. He
argued that Pearson’s version of events was contradicted by the video recording,
the nurse’s testimony, and Pearson’s medical records. He contended that summary
judgment was appropriate because Pearson could not establish that he used force
maliciously or sadistically. Pearson responded that summary judgment should not
be granted because genuine disputes of material fact remained, the GDOC’s useof-force policy was unconstitutional, and the officers failed to record the use of
force as they were supposed to. Pearson attached an affidavit in which he largely
reiterated his deposition testimony and clarified some facts in response to Weston’s
motion and the video evidence.

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A magistrate judge prepared two reports and recommendations (“R&R”) on
Pearson’s claims. In the first R&R, the magistrate judge recommended that the
claims against Orr, Philbin, and Taylor be dismissed for failure to exhaust
administrative remedies.

According to the magistrate judge, these defendants

“establishe[d] the presence of a grievance system at Valdosta State Prison and
establishe[d] that the Plaintiff did not complete the grievance process regarding his
deliberate indifference claims prior to filing this lawsuit.”
In the second R&R, the magistrate judge recommended that summary
judgment be granted to Weston on the excessive-force claim.

Initially, the

magistrate judge identified the following factual disputes relevant to this claim:
(a) whether Weston initially gave Pearson the option of being handcuffed so that
Weston could enter the cell; (b) whether the pepper spray was deployed once or
twice; (c) the length of the first spray blast, whether one to two minutes or just
three seconds; and (d) whether the spray caused Pearson to suffer vomiting,
difficulty breathing, loss of consciousness, and eye damage.
The magistrate judge determined that, even after resolving these factual
disputes in Pearson’s favor, the force used by Weston was de minimis and did not
amount to a constitutional violation. Because Pearson was non-compliant with
Weston’s orders throughout the encounter, the magistrate judge reasoned, “[a]ny
factual disputes involving the length of the first burst of pepper spray and whether
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a second burst occurred, do not create a reasonable inference that Defendant
Weston acted maliciously and sadistically to cause harm.”

In addition, the

magistrate judge found, Weston’s decision to use pepper spray instead of physical
contact demonstrated an attempt to temper the force used.
Despite indicating that the factual disputes identified above were not
material, the magistrate judge also appears to have found that Pearson’s version of
events simply could not be credited. The magistrate judge stated that Pearson
“presented no evidence beyond the bare assertions of his recast Complaint,
repeated in his affidavit and deposition testimony, to establish Defendant Weston’s
use of force,” and that Pearson’s version of events was contradicted by all of the
relevant evidence other than his own testimony.
Over Pearson’s timely objections, the district court adopted the magistrate
judge’s R&Rs. This appeal followed.
III. DISCUSSION
A.

Summary Judgment on Excessive-Force Claim against Weston
We review the grant of summary judgment de novo, viewing the evidence in

the light most favorable to the non-moving party, Pearson, and drawing all
reasonable inferences in his favor. Pourmoghani-Esfahani v. Gee, 625 F.3d 1313,
1315 (11th Cir. 2010).

We do not weigh the evidence or make credibility

determinations about competing affidavits. See Reeves v. Sanderson Plumbing
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Prods., Inc., 530 U.S. 133, 150–51 (2000). Thus, “when conflicts arise between
the facts evidenced by the parties, we credit the nonmoving party’s version.”
Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (en banc) (emphasis
omitted).
Nevertheless, “[w]hen opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling
on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
“Thus, where an accurate video recording completely and clearly contradicts a
party’s testimony, that testimony becomes incredible.” Morton v. Kirkwood, 707
F.3d 1276, 1284 (11th Cir. 2013). But even where the entire series of events is
recorded, video evidence is not obviously contradictory if it fails to convey spoken
words or tone, or fails to provide an unobstructed view of the events.
Pourmoghani-Esfahani, 625 F.3d at 1315.

In Pourmoghani-Esfahani, for

example, we declined to rely on video evidence to entirely discredit the plaintiff's
version of events because the video lacked sound and was periodically obstructed.
Id. at 1315, 1316 n.2.
The Eighth Amendment prohibits prison officers from using excessive force
against prisoners. Thomas v. Bryant, 614 F.3d 1288, 1303–04 (11th Cir. 2010).
The “core judicial inquiry” for an excessive-force claim is “whether force was
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applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting
Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
The Supreme Court has “rejected the notion that ‘significant injury’ is a
threshold requirement for stating an excessive force claim.” Id. Thus, while de
minimis uses of force, absent exceptional circumstances, do not violate the
constitution, de minimis injury does not necessarily bar a prisoner’s excessiveforce claim. Id. at 37–38. In other words, a prisoner “does not lose his ability to
pursue an excessive force claim merely because he has the good fortune to escape
without serious injury.”

Id. at 38.

The extent of injury remains a relevant

consideration and may provide an indication of the amount of force applied, but
“[i]njury and force . . . are only imperfectly correlated, and it is the latter that
ultimately counts.” Id. at 37–38.
We have identified five factors to help evaluate whether force was applied
maliciously or sadistically. See Danley v. Allen, 540 F.3d 1298, 1307 (11th Cir.
2008), overruled on other grounds as recognized by Randall v. Scott, 610 F.3d
701, 709 (11th Cir. 2010). They include the following: (1) the need for force; (2)
the relationship between that need and the amount of force used; (3) the extent of
the resulting injury; (4) the extent of the threat to the safety of staff and inmates, as
reasonably perceived by the responsible official on the basis of facts known to that
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official; and (5) any efforts made to temper the severity of the use of force. Id.
(citing Whitley v. Albers, 475 U.S. 312, 320–21 (1986)); see also Fennell v.
Gilstrap, 559 F.3d 1212, 1218–20 (2009) (applying these factors).

When

evaluating whether the force used was excessive, we give broad deference to
prison officials acting to preserve discipline and security. Bennett v. Parker, 898
F.2d 1530, 1533 (11th Cir. 1990).
In general, prison officers are authorized to use force when a prisoner
repeatedly fails to obey an order. Danley, 540 F.3d at 1307. Officers are not
required to convince every prisoner that their orders are reasonable and wellthought out before resorting to force. Id.
Moreover, we have recognized that “[p]epper spray is an accepted non-lethal
means of controlling unruly inmates.” Id. It is designed to be disabling without
causing permanent physical injury and is a reasonable alternative to escalating a
physical confrontation. Id. at 1308. Therefore, “[a] short burst of pepper spray is
not disproportionate to the need to control an inmate who has failed to obey a
jailer’s orders.” Id. at 1307–08. A “short” burst is around five seconds or less.
See id. (collecting cases).
Even when an initial use of force is constitutional, however, prison officers
may still violate the constitution by failing to temper the severity of their forceful
response. See id. at 1308–09. For example, subjecting a prisoner to special
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confinement that causes him to suffer increased effects of environmental
conditions—like pepper spray lingering in a small cell or on the inmate—can
constitute excessive force. Id. Pepper spray acts “by causing intense pain, a
burning sensation that causes mucus to come out of the nose, an involuntary
closing of the eyes, a gagging reflex, and temporary paralysis of the larynx.” Id. at
1309 (citations and internal quotation marks omitted).

“Once a prisoner has

stopped resisting there is no longer a need for force, so the use of force thereafter is
disproportionate to the need.” Id. Therefore, the use of pepper spray immediately
followed by confinement in a small, poorly ventilated, pepper-spray filled cell,
when the inmate is no longer resisting, can constitute excessive force. See id.
Here, the district court improperly granted summary judgment in favor of
Weston.

Crediting Pearson’s version of events and drawing all reasonable

inferences in his favor, Pearson’s sworn testimony creates a genuine issue of
material fact as to “whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” See Wilkins, 559
U.S. at 37.
Two factors in particular weigh in favor of finding a constitutional violation.
First, even assuming that Weston was authorized to use force based on the
presence of the shank in Pearson’s cell and Pearson’s refusal to hand over the
shank as ordered, see Bennett, 898 F.2d at 1533, Pearson’s testimony indicates that
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the force used was grossly disproportionate to the need for force. According to
Pearson, Weston did not use a “short burst” of pepper spray to enforce compliance
with his orders, see Danley, 540 F.3d at 1307, but rather sprayed Pearson and his
cell for at least 60 seconds, causing him to vomit mucus and blood and to lose
consciousness. Then, after Pearson woke up and was having difficulty breathing
or standing, and may not have been able to comply with Weston’s orders at the
time, Weston hit him again with a ten-to-fifteen second burst of pepper spray. See
id. at 1309 (using force against an incapacitated inmate is excessive). From this
evidence, a reasonable factfinder could conclude that the force Weston used went
far beyond the need for control and instead reflected an intent to maliciously and
sadistically cause Pearson harm. 1
Second, Pearson’s sworn testimony creates genuine issues of material fact as
to whether Weston did enough to temper the severity of the forceful response. See
id. at 1308–09.

As Weston acknowledges, “[t]he record contains disputed

evidence regarding whether Pearson was permitted to shower following the
incident.” See id. at 1310 (concluding that the defendants’ failure to allow the
plaintiff to shower for “the amount of time required by jail policy” was
1

Pearson also testified that Weston used vulgar language toward him after deploying
pepper spray but before the video recording began. A jury could consider this abusive language
as part of the totality of the circumstances relevant to determining Weston’s subjective state of
mind. See Bozeman v. Orum, 422 F.3d 1265, 1271 n.11 (11th Cir. 2005) (noting that threatening
language “can be relevant to . . . the determination of reasonable inferences about the Officers’
subjective state of mind”).
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circumstantial evidence of malicious intent). Although it appears that Weston
personally did not prevent Pearson from showering, Weston was present at the
shower cell, so it is reasonable to infer that he was aware that Pearson had not been
able to wash the pepper spray from his face or body. But despite this knowledge,
Weston returned Pearson to his pepper-spray filled, poorly ventilated cell without
providing any means for him to decontaminate himself or the cell. These facts
indicate that Weston did not do enough to temper the severity of his forceful
response and continued to subject Pearson to force—lingering pepper spray in the
air and on his body—well after Pearson stopped resisting. See id. (“The use of
force in the form of extended confinement in the small, poorly ventilated, pepper
spray-filled cell, when there were other readily available alternatives, was
excessive.”).
In support of the district court’s summary-judgment ruling, Weston mainly
argues that Pearson’s version of events is implausible and cannot be credited when
contrasted with all other evidence in the record. Relying on the nurse’s affidavit
and Pearson’s medical records, Weston stresses that Pearson suffered only de
minimis injuries from the use of pepper spray. However, the nurse’s affidavit and
medical records, even if credited, refute Pearson’s allegations only as to the
severity or existence of Pearson’s injuries. The nurse does not claim to have
witnessed any portion of the allegedly excessive use of force. And our inquiry is
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not whether Pearson met a certain arbitrary injury requirement, but rather “whether
force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Wilkins, 559 U.S. at 37. Pearson
“does not lose his ability to pursue an excessive force claim merely because he
ha[d] the good fortune to escape without serious injury.” Id. at 38. Therefore,
even if Pearson overstates his alleged injuries, Weston is not entitled on that basis
to judgment as a matter of law.
Weston next argues that Pearson’s version of events, particularly as to the
amount of pepper spray discharged in his cell, is contradicted by the video
evidence and the nurse’s use-of-force assessment. However, again, the nurse was
not present for the allegedly excessive use of force and her testimony mainly
speaks to the severity or existence of Pearson’s injuries, so her testimony and useof-force assessment do not clearly contradict Pearson’s version of events.
Moreover, Pearson claims the nurse’s examination was inadequate. In any case, to
the extent there is a conflict between the nurse’s and Pearson’s testimony, we
credit Pearson’s version of the events for purposes of resolving Weston’s motion
for summary judgment. See Evans, 407 F.3d at 1278; see also Jackson v. West,
787 F.3d 1345, 1357 n.6 (11th Cir. 2015) (“One cannot ‘refute’ a witness’s
statements using another witness’s statements at summary judgment; such a
swearing contest is one for the jury to resolve.”).
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Nor does the video evidence “completely and clearly” contradict Pearson’s
testimony such that no reasonable jury could credit it. See Morton, 707 F.3d at
1284. The video does not depict any of the events critical to Pearson’s claim. The
video begins after any use of pepper spray and ends before Pearson was examined
by the nurse. In addition, the video fails to provide an unobstructed view of the
events it does depict, such as the inside of Pearson’s cell. See PourmoghaniEsfahani, 625 F.3d at 1315. To the extent that the video provides some reason to
doubt the veracity of some aspects of Pearson’s account, it is not so “blatantly
contradict[ory]” that we may entirely disregard Pearson’s version of events for
purposes of summary judgment. See Scott, 550 U.S. at 380.
In sum, Pearson has presented sufficient evidence to establish a genuine
dispute of material fact as to whether Weston used excessive force against Pearson,
in violation of the Eighth Amendment. We therefore vacate the district court’s
order granting summary judgment in favor of Weston and remand for further
proceedings.
B.

Dismissal for Failure to Exhaust Administrative Remedies
Pearson next argues that the district court erred in dismissing his deliberate-

indifference claims for failure to exhaust administrative remedies under the Prison
Litigation Reform Act (“PLRA”) and abused its discretion by denying his request
for leave to amend to plead exhaustion.
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We review de novo a district court’s interpretation and application of the
PLRA’s exhaustion requirement, codified in 42 U.S.C. § 1997e(a). Johnson v.
Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005). We review the denial of a
motion to amend a complaint for an abuse of discretion, but we review questions of
law de novo. Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291
(11th Cir. 2007).
The PLRA requires prisoners who wish to challenge some aspect of prison
life, including excessive-force claims, to exhaust all available administrative
remedies before resorting to the courts. Porter v. Nussle, 534 U.S. 516, 532
(2002); see 42 U.S.C. § 1997e(a). Exhaustion is mandatory under the PLRA, and
unexhausted claims cannot be brought in court. Jones v. Bock, 549 U.S. 211
(2007). Before a remedy must be exhausted, however, it must be “available” and
capable of accomplishing its purpose. Turner v. Burnside, 541 F.3d 1077, 1084
(11th Cir. 2008).
When a state provides a grievance procedure for its prisoners, a prisoner
“alleging harm suffered from prison conditions must file a grievance and exhaust
the remedies available under that procedure before pursuing a § 1983 lawsuit.”
Johnson, 418 F.3d at 1156 (quotation marks omitted). But a prisoner need not
necessarily “name any particular defendant in a grievance to properly exhaust his
claim.” Parzyck v. Prison Health Servs. Inc., 627 F.3d 1215, 1218–19 (11th Cir.
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2010). Rather, a grievance is sufficient to exhaust so long as it alerts prison
officials to the problem and gives them an opportunity to resolve it before being
sued. Id. That is because the PLRA’s “exhaustion requirement is designed to alert
prison officials to a problem, not to provide personal notice to a particular official
that he may be sued.” Id. at 1219 (internal quotation marks omitted).
In response to a prisoner lawsuit, defendants may file a motion to dismiss
and raise as a defense the prisoner’s failure to exhaust administrative remedies.
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015).
Defendants bear the burden of proving that the plaintiff failed to exhaust his
administrative remedies. Turner, 541 F.3d at 1082.
In Turner, we established a two-step process for deciding motions to dismiss
for failure to exhaust under the PLRA. Id. District courts first should compare the
factual allegations in the motion to dismiss and those in the prisoner’s response
and, where there is a conflict, accept the prisoner’s view of the facts as true.
Whatley, 802 F.3d at 1209. “The court should dismiss if the facts as stated by the
prisoner show a failure to exhaust.” Id. Second, if dismissal is not warranted at
the first stage, the court should make specific findings to resolve disputes of fact,
“and should dismiss if, based on those findings, defendants have shown a failure to
exhaust.” Id.

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Here, the district court did not err in granting the motions to dismiss filed by
Orr, Philbin, and Taylor. At the first step of the Turner analysis, the court found
that Pearson’s allegations arguably showed that dismissal was not warranted, so
the court proceeded to the second step and concluded that the defendants had met
their burden of showing that Pearson failed to exhaust. At the second step, the
court was permitted to make factual findings to resolve the issue of exhaustion.
See id. We therefore reject Pearson’s assertion that the court improperly resolved
factual disputes.
The district court did not err in finding a failure to exhaust. The defendants
presented evidence that a grievance system was in place at Valdosta State Prison at
the time of the incident and that Pearson had filed several grievances in the past.
And there is no dispute that Pearson filed just one grievance related to the January
15, 2013, pepper-spray incident. In that grievance, Pearson did not mention Orr,
Philbin, or Taylor, nor did he include any complaint about a denial of medical care
or any injuries he suffered from Weston’s use of pepper spray. As a result, the
grievance would not have alerted prison officials to the problem and given them an
opportunity to resolve it before being sued. See Parzyck, 627 F.3d at 1218–19.
Accordingly, the defendants met their burden of showing that Pearson failed to
exhaust his administrative remedies under the grievance system before bringing
suit under § 1983. See Johnson, 418 F.3d at 1156.
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We are not persuaded by Pearson’s arguments that the grievance procedure
was not “available” for exhaustion of his deliberate-indifference claim. Pearson
first argues that the grievance procedure was unavailable because Philbin and
Taylor left Valdosta State Prison shortly after the pepper-spray incident, so filing a
grievance would have been ineffective. However, Pearson does not explain why
the grievance system could not have provided some remedy for his problem,
despite the departure of the specific defendants. See Parzyck, 627 F.3d at 1218–
19. And “the exhaustion requirement cannot be waived based upon the prisoner’s
belief that pursuing administrative procedures would be futile.” Higginbottom v.
Carter, 223 F.3d 1259, 1261 (11th Cir. 2000).
Pearson next contends that the grievance procedure was unavailable because
GDOC policy prevented him from having more than two grievances active at any
one time and from listing multiple issues in a single grievance. Because he had
two active grievances (including the use-of-force grievance), he asserts, he was
prevented from grieving the denial of medical treatment.
We are not persuaded that these aspects of the policy render the grievance
process unavailable for purposes of the PLRA. In the Supreme Court’s recent
decision in Ross v. Blake, 136 S. Ct. 1850 (2016), the Court distilled three
situations in which an administrative remedy is not “available” under the PLRA.
First, “an administrative procedure is unavailable when (despite what regulations
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or guidance materials may promise) it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. at
1859. Second, “an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use.” Id. Third, a remedy is not available “when
prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.”

Id. at 1860.

Here,

Pearson’s arguments regarding availability do not appear to fall within any of these
three “exceptions” to exhaustion.
Furthermore, the Supreme Court has held that “to properly exhaust
administrative remedies prisoners must complete the administrative review process
in accordance with the applicable procedural rules—rules that are defined not by
the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218
(internal quotation marks omitted).

Here, the limitations of which Pearson

complains were defined by the prison grievance process itself. And while Pearson
was limited to two active grievances at any one time, the defendants’ evidence
reflected that GDOC policy allowed him to withdraw a pending grievance and file
a new one. Thus, Pearson had an available route to exhaust his claims regarding
the denial of medical treatment according to the applicable procedural rules, even
if it would have required him to prioritize his grievances.

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Finally, Pearson has not shown that dismissal was inappropriate even if his
request for leave to amend had been granted. The documents that Pearson attached
to his letter requesting leave to amend did not relate to the issue of whether he
exhausted his deliberate-indifference claims.

Rather, the new documents

concerned Pearson’s attempts to get prison officers to take some action to protect
him because his life had been threatened by gang members.

Accordingly,

Pearson’s proposed amendments would have been futile.
For the reasons stated, we affirm the dismissal of the deliberate-indifference
claims against Orr, Philbin, and Taylor.
C.

Pearson’s Request for Leave to Amend on Appeal
Finally, Pearson argues that the GDOC’s use-of-force policy is

unconstitutional, and, for the first time on appeal, he asks that he be allowed to
amend his complaint to add GDOC policymakers Owens and Tillman as
defendants.
While Pearson asserted that the GDOC’s use-of-force policy was
unconstitutional in response to Weston’s motion for summary judgment, he did not
ask for leave from the district court to amend his complaint to add this claim or to
join Owens and Tillman as defendants. Plaintiffs cannot amend their complaints
“through argument in a brief opposing summary judgment,” but must instead seek
to amend the complaint in accordance with Rule 15, Fed. R. Civ. P. Gilmour v.
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Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Because Pearson
raises the issue of whether he should be permitted to amend his complaint through
Rule 15 for the first time on appeal, we will not consider the issue. See Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court
has repeatedly held that an issue not raised in the district court and raised for the
first time in an appeal will not be considered by this court.” (internal quotation
marks omitted)).
IV. CONCLUSION
For the reasons stated, we vacate the grant of summary judgment on
Pearson’s claim that Weston used excessive force against him, in violation of the
Eighth Amendment, and we remand for further proceedings on this claim. We
affirm the dismissal of Pearson’s deliberate-indifference claims for failure to
exhaust administrative remedies.
AFFIRMED in part; VACATED in part and REMANDED for further
proceedings.

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