                                                                   [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                              11/18/99
                                No. 98-9153                THOMAS K. KAHN
                                                               CLERK


                    D.C. Docket No. 96-00148-4-CV-HLM


TRACY ANTHONY MILLER,


                                                            Plaintiff-Appellant,


     versus


TANNER, LT., CHARLIE POOLE, et al.,


                                                         Defendants-Appellees.



                 Appeal from the United States District Court
                    for the Northern District of Georgia

                            (November 18, 1999)


Before ANDERSON, Chief Judge, TJOFLAT, Circuit Judge, and FAY, Senior Circuit
Judge
TJOFLAT, Circuit Judge:

      Tracy Miller, a Georgia prison inmate, appeals the district court’s dismissal of

his 42 U.S.C. § 1983 claim because he failed to exhaust his administrative remedies

as required by the Prison Litigation Reform Act, see 42 U.S.C. § 1997e(a) (Supp. II

1996). We find that Miller did exhaust the administrative remedies set forth in the

Georgia Department of Corrections’ (the “GDC”) procedures.1 Accordingly, we

reverse the district court’s grant of summary judgment.



                                           I.

      In his complaint, filed with the district court on May 22, 1996, Miller

alleged that upon arriving at Hays State Prison (“Hays”) on April 18, 1996,

appellee Tanner and eleven prison guards, including appellees Poole, Blalock, and

Martin, dragged him from the transport van and beat him for being a




      1
         Miller also disputes that: (a) section 1997e(a) applies to his section 1983
lawsuit because the underlying events occurred before section 1997e(a)’s effective
date; (b) his excessive force claim is a claim “with respect to prison conditions” and
thus covered by section 1997e(a); and (c) the district court’s conclusion that a district
court lacks discretion to waive section 1997e(a)’s exhaustion requirement makes the
provision unconstitutional as applied to Georgia inmates. Our finding that Miller
complied with the GDC’s grievance procedures and thus exhausted his administrative
remedies makes it unnecessary for us to decide these other issues.
                                           2
“troublemaker” who filed numerous grievances at his former prison.2 Miller

further alleged that after being beaten, he was taken to the prison infirmary where

appellee Dr. Derrick refused to treat him, forcibly x-rayed him, and ordered him

shackled to a metal bed. Lastly, Miller alleged that appellees were indifferent to

his medical needs as a paraplegic with a neurogenic bladder. Instead of treating

him, appellees housed him in an unaccommodated unit, left him on the concrete

floor of his cell, allowed him to become covered in feces and urine, denied him the

use of a wheelchair or leg braces, and denied him physical therapy.3

      On November 12, 1996, Miller amended his complaint, presenting the

following additional allegations: that on April 22, 1996 he obtained an inmate

grievance form from his counselor at Hays, and that he filed that grievance on

April 25. Miller failed to sign or date the grievance form. On May 2, 1996, Kyla

Wilbanks, the Hays grievance clerk, sent Miller a memorandum stating that his



      2
        The question presented in this appeal is whether appellant exhausted his
administrative remedies. The facts relating to that question are undisputed. Although
the facts underlying the grievance are in dispute, they are irrelevant as to the
exhaustion question. We offer appellant’s version merely as background.
      3
        In his complaint, Miller also alleged instances of excessive force that occurred
on May 9, 1996. Miller admits that he did not exhaust his administrative remedies
as to these instances because he did not file a grievance after they occurred. On
appeal, therefore, we address only the allegations in Miller’s complaint that relate to
the April 18, 1996 incidents.
                                           3
grievance was denied because “[he] did not sign or date [his] grievance form.”

This memorandum also stated that “[w]hen any grievance is terminated at the

institutional level you do not have the right to appeal. The above listed

grievance(s) is closed.”4 After his grievance was denied, Miller filed a section

1983 civil rights action, alleging that appellees violated his Eighth Amendment

right to be free of cruel and unusual punishment by using excessive force against

him and being deliberately indifferent to his medical needs.

        Appellees moved the district court to dismiss Miller’s complaint, as

amended, for failure to allege a constitutional violation. The district court denied

their motion. After filing an answer, appellees filed a motion, styled “Defendants’

Motion to Dismiss and Motion for Summary Judgment,” in which they argued that

appellant failed to exhaust his administrative remedies before bringing suit.

Appellees contended that Miller failed to exhaust his administrative remedies, as

required by 42 U.S.C. § 1997e(a), because he did not sign and date the grievance

form.




        4
       Miller attached this memorandum to his amended complaint; the
memorandum therefore became part of his allegations.
                                          4
      On August 28, 1998, the district court granted appellees’ motion and

dismissed Miller’s case without prejudice.5 The court found that Miller failed to

exhaust his administrative remedies because he did not follow the GDC’s

grievance procedures, which required that he sign and date his grievance form.

This appeal followed.



                                          II.

      We review de novo dismissals for failure to exhaust administrative remedies

under section 1997e(a). See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir.

1998).

      Prison inmates have a constitutional right of access to the courts. See Lewis

v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606 (1996)

(stating that prisoners must be afforded “a reasonably adequate opportunity to

present claimed violations of fundamental constitutional rights to the courts”)

(internal quotation marks omitted). Section 1997e(a) sets forth the procedures



      5
          The district court’s order “grant[ed] Defendants’ Motion for Summary
Judgment and Motion to Dismiss.” Because the district court relied on at least one of
appellees’ affidavits in support of their motion in making its decision, we assume that
the district court granted a motion for summary judgment and in the same breath,
dismissed Miller’s complaint, as amended, without prejudice. Our review is of the
district court’s grant of summary judgment.
                                          5
prisoners must follow in exercising their fundamental right of access to the courts.

Under this provision, prisoners must exhaust any administrative remedies available

to them before filing a suit in federal court based on violations of constitutional

rights. Specifically, section 1997e(a) provides that:

     [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 U.S.C. § 1997e(a). An inmate incarcerated in a state prison, thus, must first

comply with the grievance procedures established by the state department of

corrections before filing a federal lawsuit under section 1983.

      In deciding if Miller exhausted his administrative remedies, we do not

review the effectiveness of those remedies, but rather whether remedies were

available and exhausted. See Alexander, 159 F.3d at 1326. There is no dispute

that the GDC made administrative remedies available to prisoners. Before

deciding whether Miller followed the proper procedures to exhaust those remedies,

we must first determine what the procedures were that he had to follow.

      The GDC has a detailed set of Standard Operating Procedures (the “SOPs”)

relating to inmate grievances. These procedures provide inmates and their

counselors a step-by-step guide to filing a grievance. For instance, the


                                           6
“Jurisdiction” section of the SOPs explains what kinds of harms can form the basis

of a grievance, what kinds of harms cannot be grieved, and what kinds of harms

must be grieved through more specialized processes such as the Administrative

Segregation appeal process. See Georgia Dep’t of Corrections, SOPs, at 3-4

(1996). The “Procedures for Filing a Grievance” section of the SOPs is similarly

specific.

      The procedures section first sets forth the hierarchy for running the

grievance system at each Georgia prison. At the top is the warden/supervisor,

followed by the Grievance Coordinator, and then the counselors. See SOPs at 5.

The counselors assist inmates in filing their grievances by distributing grievance

forms, assisting prisoners in preparing such forms (particularly prisoners for whom

English is a second language), and receiving completed forms. See id. at 5-6.

When a counselor receives a grievance form, he or she is required to “complete the

receipt portion of the form indicating the inmate’s name, I.D. Number, and the date

the inmate submitted the grievance.” Id. at 6 (emphasis in original). Next, the

counselor signs the receipt portion of the grievance form and returns one copy to

the inmate. See id. A counselor is also required, by the next business day, to

submit to the Grievance Coordinator the information necessary to enter the

grievance into the Inmate Grievance Management System database. Id. This


                                          7
information includes the inmate’s name and the date on which the inmate filed his

or her grievance. Thus, once the Grievance Coordinator enters the grievance into

the database, which presumably occurs within a few days, anyone in the GDC is

able to find out that a grievance was filed, by whom, and on what date.

      The SOPs do not require that an inmate sign or date a grievance form when

submitting it to his or her counselor. The only time the SOPs require a signature

from an inmate is when the inmate receives a response from the warden/supervisor.

At that time, the inmate is required to sign the grievance form confirming that a

response was received. See id. at 12. Further, the SOPs do not require that

inmates file their grievances under penalty of perjury.6

      Appellees argue that the GDC’s grievance procedures required that Miller

sign and date his grievance form. According to appellees, this is “a common sense

procedural requirement” because otherwise the GDC would have no way of

knowing who filed the grievance or when it was filed. If the GDC thought signing

and dating the form was a common sense requirement, it should have included the


      6
        If the grievance procedures required that inmates make their allegations under
penalty of perjury, then signing the form would be necessary. Such a rule would
operate much like the signature and oath requirements on an affidavit, in that the
signature – which certifies that the signer believes the allegations asserted are true –
provides the basis for bringing perjury charges against the signer. Cf. Cord v. Smith,
370 F.2d 418, 420 & n.1 (9th Cir. 1966); Lamberti v. United States, 22 F. Supp. 2d
60, 71 n.53 (S.D.N.Y. 1998).
                                           8
requirement in its grievance SOPs. The SOPs require many other specific steps,

such as that the form be completed in blue or black ink, that the counselor sign the

form, that the counselor fill out the inmates name and the date on which the

grievance was filed, and that the inmate sign upon receipt of the

warden’s/superintendent’s response. SOPs at 5-6. Certainly, if the GDC thought

to provide for all of these steps, it would have included the “common sense”

requirement of a signature and date if it had thought such a requirement useful to

the grievance procedure. But it did not. The GDC’s grievance procedures simply

do not require that an inmate sign and date a grievance form when it is submitted.

      Further, it is not true, as appellees asserted at oral argument, that without a

signature and date the GDC would have no way of knowing who filed the

grievance or when. Under the SOPs, a counselor must note, on the receipt portion

of the grievance form at the time of submission, both the inmate’s name and the

date on which the grievance was filed. Those pieces of information are forwarded

to the Grievance Coordinator for inclusion in the state-wide grievance database.

Thus, not only does the warden/superintendent, who receives the actual grievance

form, know the inmate’s name and the date on which the grievance was filed, but

anyone with access to the database may also discover that information.




                                          9
      Even if Miller was not required to sign and date his grievance form to

exhaust his administrative remedies, appellees argue, he was required to appeal the

institutional-level denial of his grievance to satisfy section 1997e(a)’s exhaustion

requirement. Again, we disagree. The memorandum Miller received on May 2,

1996 denying his grievance at the institutional level stated “[w]hen any grievance

is terminated at the institutional level you do not have the right to appeal. The

above listed grievance(s) is closed.” This statement unambiguously told Miller

that an appeal was futile, even prohibited. In other words, appealing might be

treated as insubordination and that there might be harmful consequences for

disobeying the rules.

      Appellees point us to a statement in the original grievance, which stated,

“[i]f you appeal, return this form and the appeal form to your counselor or

grievance coordinator, within four (4) calendar days of receipt of the

warden’s/superintendent’s response.” This is of no importance because it only told

Miller what to do if he could appeal. Miller was told he could not appeal by the

person charged with ensuring that the grievance procedures were complied with

properly. What the grievance form told Miller to do if he could appeal, therefore,

is irrelevant to determining whether he properly exhausted his administrative

remedies since he had been informed that an appeal was prohibited. We find that


                                          10
Miller was not required, in order to exhaust his administrative remedies, to file an

appeal after being told unequivocally that appeal of an institution-level denial was

precluded. He exhausted his administrative remedies by filing the April 25, 1996

grievance form.



                                          III.

      For the foregoing reasons, we find that Miller exhausted his administrative

remedies as required by 42 U.S.C. § 1997e(a). Therefore, we REVERSE the

district court’s dismissal of Miller’s complaint, as amended, and REMAND this

case to the district court for further proceedings consistent with this decision.

      SO ORDERED.




                                          11
