by David M. Reutter

Here’s a simple message to prisonersfrom the U.S. Court of Appeals for the Eleventh Circuit: Exhaust your remedies, no matter how redundant they may seem.

That was the key takeaway from the Court’s ruling on August 31, 2021, in which it held that the grievance process in the Georgia Department of Corrections (DOC) is not an unconstitutional “dead-end” simply because it automatically refers prisoner’s complaints of excessive use of force to an Internal Investigation Unit (IIU). That process itself, the Court said, offers “the possibility of some relief,” satisfying the requirement laid out by the Supreme Court in Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819 (2001).

The Court’s opinion was issued in an appeal by DOC prisoner Christopher Varner, who was at Augusta State Medical Prison (ASMP) on February 13, 2014, when several guards entered a hallway and shouted epithets at prisoners standing there in a medication line. Varner responded to them.

Sgt. John Williams grabbed Varner, who suffers from schizophrenia, organic brain damage and bipolar disorder, and tried to handcuff him. Varner struck Williams in the head. The guards responded by taking him into a small vestibule and placing him in a chokehold until he lost consciousness.

Varner was handcuffed when he regained consciousness, and the guards “punched, kicked, and stomped on [him]” as he lay on the floor. They then took him to the medical unit, tarrying to ride up and down the elevator four times as they continued using excessive force on Varner, “including the use of pepper spray and a metal baton, despite Varner’s being handcuffed and compliant.” He was transferred to a hospital for treatment of a broken eye socket, jaw, and nose, and extensive bruising on his face and torso.

The day of the incident, the warden referred the matter to IIU. Varner’s father and mother also lodged a complaint with ASMP. After reviewing video evidence and interviewing the three guards, IIU determined they had used excessive force. Williams and guards Antonio Binns and Justin Washington resigned in lieu of termination. They subsequently pleaded guilty to federal criminal charges related to the assault and were given five years probation, a $2,000 fine, and a special $100 assessment. See: U.S. v. Williams, USDC. (S.D. Ga.), Case No. 1:16-CR-00024.

Varner filed three grievances related to the excessive use of force in July 2015, June 2016 and June 2017. But under DOC policy, he was required to file a grievance within 10 days of the incident. So when he then filed suit in U.S. District Court for the Southern District of Georgia, it was dismissed for failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e (PLRA). Varner appealed.

Citing Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016), the Court noted that relief is considered not obtainable from administrative remedies only “(1) when the procedure ‘operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates’; (2) when the administrative scheme is ‘so opaque that it becomes, practically speaking, incapable of use’; and (3) ‘when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.’”

But that’s what Varner argued—that the grievance process was a dead end because DOC policy requires that any allegation of excessive use of force is “automatically forwarded” to IIU and “such actions automatically end the grievance process.”

Not so, the Eleventh Circuit replied. The focus is on the relief available, and under DOC’s policy the relief is a referral to IIU. Once that is done, administrative remedies are exhausted and the prisoner is free to file a federal civil rights action. That an IIU investigation ensued before Varner filed his grievances was of no consequence to the exhaustion issue, for PLRA simply requires a prisoner to exhaust administrative remedies, and Varner failed to do so with his untimely grievances.

Simply put: Even if the grievance will result in an investigation that is already underway, it must be filed to satisfy the PLRA’s exhaustion requirement.

Finally, the Court found Varner’s other argument—that his mental illness rendered the administrative remedies unavailable to him—unpersuasive. It noted that Varner used the process to file two medical grievances on March 12, 2014, which was “close enough in proximity” to the incident on February 13, 2014, to prove his knowledge of the process. Thus the district court’s dismissal was affirmed.

In partial dissent, Judge Jill Pryor took exception with the majority’s acceptance of the automatic referral to IIU as “relief,” saying that a referral alone “does not substantively address the underlying allegations” as the Supreme Court’s Booth decision requires. See: Varner v. Shepard, 11 F.4th 1252 (11th Cir. 2021).

Varner filed for writ of certiorari from the U.S. Supreme Court, but that petition was denied on February 22, 2022. See: Varner v. Shepard, 2022 U.S. LEXIS 841.

Varner was represented in his suit by attorneys Ryan Primerano and Sarah Elisabeth Geraghty of the Southern Center for Human Rights in Atlanta. Geraghty has since been appointed to the federal bench in the Northern District of Georgia. 

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