          Case: 17-10716    Date Filed: 04/03/2018   Page: 1 of 11


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 17-10716
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:15-cv-03234-AT



JONATHAN-MICHAEL TREVARI,

                                                            Plaintiff-Appellant,

                                  versus

ROBERT A. DEYTON DETENTION CENTER,

                                                                     Defendant,

WARDEN,
PRICE,
Staff Psychiatrist,
BOWEN,
Chaplain,
RALPH CHERRY,
former Warden,
ASSISTANT WARDEN, et al.,

                                                         Defendants-Appellees.
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                           ________________________

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

                                   (April 3, 2018)

Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Jonathan-Michael Trevari, a prisoner proceeding pro se, appeals the district

court’s dismissal of his claims against certain prison officials. On appeal, Trevari

argues the district court improperly determined that he had failed to exhaust the

available administrative remedies for his claims under the First Amendment and

Equal Protection Clause, which alleged that he had been denied access to religious

services, a kosher diet, and homosexual adult publications.

                                          I.

      At all times relevant to this case, Trevari was incarcerated at the Robert A.

Deyton Detention Facility (the “Deyton Facility”), a privately owned prison in

Lovejoy, Georgia. The Deyton Facility is operated by The GEO Group, Inc.

      Trevari brought suit against twelve current and former GEO employees who

worked at the Deyton Facility: warden Randy Tillman, former warden Ralph

Cherry, assistant warden Danny Horton, security chief Herbert Walker, chaplain

Donald Bowen, medical administrator Dr. Tracy Kinders, former medical


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administrator Dr. McCardel, case manager Ralph Holmes, grievance coordinator

Erick Hardy, classification manager C.E. Johnson, Prison Rape Elimination Act

compliance manager Teressa Mims, and Wayne Woods, compliance assistant for

that Act. He also brought claims against Dr. Bryan Price, an independent

contractor who worked as a staff psychiatrist at the Deyton Facility.

       Between his initial complaint and his later amendments, Trevari brought a

total of twenty-three claims. After a frivolity review, the district court allowed

Trevari to proceed on seven of those claims. 1

       His first two claims alleged that on April 10, 2015, Trevari informed Price

that he was suffering abuse and sexual harassment from other prisoners. When

Price failed to report the complaint to the proper channels, Trevari wrote to Cherry,

Hardy, Horton, and Tillman, all of whom failed to adequately respond. Trevari

similarly alleges that Mims and Woods failed to adequately respond to his claims

of abuse and sexual harassment. Trevari generally alleged the defendants who

didn’t respond to his complaints failed to protect him from abuse.

       Trevari’s third claim alleged that Mims and Woods lied about his

confinement status. Mims and Woods told Trevari in August 2015 that his solitary

confinement was voluntary and he could leave whenever he felt comfortable doing


       1
         None of those seven claims were brought against McCardel or Johnson as defendants,
and therefore they have no part in this appeal.

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so. However, Holmes—and later Horton—told Trevari his classification was not

voluntary, and he remained in solitary confinement until at least November 2015.

Trevari brought an administrative-confinement claim against Woods, Horton, and

Mims.

      Trevari’s fourth claim was that he was denied access to a homosexual adult

magazine. Holmes told Trevari the request was denied because the magazine

contained nudity, but Tillman had told Trevari that other inmates were allowed to

access Playboy and Hustler, which contain nudity. Trevari brought a claim under

the First Amendment and the Equal Protection Clause against Holmes and Tillman.

      Trevari’s fifth claim alleged that he changed his religious beliefs in

September 2015 and requested a kosher diet. Bowen, Tillman, and Kinder denied

this request, allegedly for safety and health reasons. Trevari brought a First

Amendment claim against Bowen, Tillman, and Kinder.

      Trevari’s sixth claim alleged that he was denied the right to attend church.

Trevari wrote several complaints to a non-defendant official at the Deyton Facility,

who told Trevari that Tillman and Walker would consider the issue. Trevari never

got a response from Tillman or Walker, and brought a First Amendment claim

against each of them.

      Trevari’s final claim alleged he was denied requested healthcare. Trevari

asserted that he requested a prostate exam and spoke with Kinder about the issue,


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but that his request has been ignored. Trevari brought a claim against Kinder for

failure to provide adequate medical care.

      Defendants moved to dismiss all seven claims, and the magistrate judge

issued a report and recommendation (“R&R”) recommending that all be dismissed.

First, the R&R acknowledged that while Trevari brought his claims under 42

U.S.C. § 1983, that statute covers only state actors, and relief against federal actors

is instead available under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971). Construing Trevari’s

pro se petition broadly, the magistrate allowed him to proceed under Bivens, but

found Trevari’s claims for failure to protect, administrative confinement, and

denial of medical care all failed because alternative remedies exist under state law

to address those claims. As for the remaining claims arising under the First

Amendment and Equal Protection Clause, the R&R recommended dismissal for

lack of exhaustion because Trevari had not filed any internal appeals as part of the

prison’s grievance process.

      Over Trevari’s objections, the district court adopted the R&R and dismissed

his claims. On appeal, Trevari contends the district court erred in dismissing his

claims for lack of exhaustion. He argues he complied with the grievance

procedures at the Deyton Facility, or deviated from those procedures only when

they proved futile.


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                                                 II.

       As an initial matter, we affirm the district court’s ruling with regard to the

sixteen claims that were dismissed during the frivolity review for failure to state a

claim. Trevari made no mention of those claims in his appeal, and this Court

generally will not consider any issues not raised in an appellant’s initial brief.

United States v. Durham, 795 F.3d 1329, 1330–31 (11th Cir. 2015) (en banc) (per

curiam).

       Similarly, we must affirm the district court’s dismissal of Trevari’s claims

for failure to protect, administrative confinement, and denial of medical care.

Trevari’s initial brief focused entirely on the grievance procedure and whether the

complaints he has filed demonstrate an exhaustion of available remedies. He made

no mention of the district court’s finding that these four claims should be dismissed

because an alternative remedy exists, meaning relief under Bivens is unavailable. 2

See Minneci v. Pollard, 565 U.S. 118, 131, 132 S. Ct. 617, 626 (2012) (“[W]here

. . . a federal prisoner seeks damages from privately employed personnel working

at a privately operated federal prison, where the conduct allegedly amounts to a

violation of the Eighth Amendment, and where that conduct is of a kind that

       2
         Trevari’s reply brief makes mention of the Bivens issue, saying defendants erred by
asserting that any of his claims had been dismissed pursuant to Bivens. However, issues
addressed for the first time in a reply brief are not properly raised to the Court. Lovett v. Ray,
327 F.3d 1181, 1183 (11th Cir. 2003) (per curiam). Even if the Court were to consider this
argument, Trevari is incorrect: the district court’s order adopted the R&R’s conclusion that
Bivens relief was unavailable for these four claims.

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typically falls within the scope of traditional state tort law . . . the prisoner must

seek a remedy under state tort law. We cannot imply a Bivens remedy in such a

case.”). While we construe pro se filings with leniency, see Lorisme v. I.N.S., 129

F.3d 1441, 1444 n.3 (11th Cir. 1997), pro se litigants must still advise the Court in

their filings of the issues they seek to raise on appeal, see Timson v. Sampson, 518

F.3d 870, 874 (11th Cir. 2008) (per curiam) (applying the waiver rule to a pro se

litigant’s initial brief). For this reason we affirm the district court’s dismissal of

Trevari’s claims for failure to protect, administrative confinement, and denial of

medical care.

                                           III.

      Trevari’s remaining claims, alleging violations of the First Amendment and

Equal Protection Clause, were dismissed by the district court for lack of

exhaustion. Before a prisoner may bring a suit complaining of prison conditions,

the Prison Litigation Reform Act (“PLRA”) requires the prisoner to exhaust all

available administrative remedies. 42 U.S.C. § 1997e(a); Alexander v. Hawk, 159

F.3d 1321, 1322, 1324–25 (11th Cir. 1998) (holding that § 1997e(a) applies to

Bivens claims). We review de novo the dismissal of a lawsuit for failure to

exhaust administrative remedies under the PLRA, but the district court’s factual

findings are reviewed for clear error. Whatley v. Warden, 802 F.3d 1205, 1209

(11th Cir. 2015).


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      If a prison publishes a grievance procedure, an inmate “must file a grievance

and exhaust the remedies available under that procedure.” Johnson v. Meadows,

418 F.3d 1152, 1156 (11th Cir. 2005) (quotation omitted). A remedy must be

available before a prisoner is required to exhaust it. Turner v. Burnside, 541 F.3d

1077, 1084 (11th Cir. 2008). A remedy may be unavailable when the grievance

process “operates as a simple dead end—with officers unable or consistently

unwilling to provide any relief to aggrieved inmates.” Ross v. Blake, 578 U.S.

___, 136 S. Ct. 1850, 1859 (2016). Proper exhaustion generally does not require

that a prisoner resort to optional administrative procedures to address prison

conditions. See Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015) (“The

PLRA requires proper exhaustion that complies with the critical procedural rules

governing the grievance process.” (quotations omitted)). It is defendant’s burden

to prove that the plaintiff failed to exhaust his administrative remedies. Turner,

541 F.3d at 1082–83.

      The Deyton Facility has an established grievance procedure set forth in the

prison handbook. Detainees are encouraged to first seek informal resolution of any

complaints. Regardless of whether they elect to seek informal resolution, all

formal complaints are submitted on a grievance form to the Grievance

Coordinator. The detainee should then receive a written response. The handbook

then states “[i]f you are dissatisfied with the reviewing authority’s response you


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may request an appeal.” The grievance response form has two appellate

checkboxes: one indicates that there is newly discovered evidence relevant to the

decision, and the other covers “[p]robable error committed by the reviewing

authority.” The handbook is silent on the steps a detainee should take if he never

receives a response to a grievance.

       On the record now before our Court, we are unable to determine whether

Trevari exhausted the available administrative remedies on his First Amendment

and Equal Protection claims. The R&R and the district court’s order both assumed

that a failure to file an internal appeal would mean Trevari’s claims were

unexhausted. However, the prison handbook states that when a detainee is

dissatisfied with a grievance response, he “may request an appeal.” This

permissive language is ambiguous about whether an internal appeal is a necessary

step to exhaust available remedies, or whether it is merely an optional requirement

like the informal grievance process. 3 See Turner, 541 F.3d at 1083–84

(“[Appellant’s] failure to comply with an optional administrative procedure does

not amount to a failure to properly exhaust his remedies.”); see also Dimanche, 783

F.3d at 1210 (requiring compliance with “critical procedural rules” (quotation

omitted)). We have also held that where a prisoner files a second grievance after

       3
         The affidavit submitted by a current grievance counselor at the Deyton Facility does not
resolve this ambiguity. That affidavit merely states that “[i]nmates have the option to appeal any
grievance,” but it does not say whether internal appeals are mandatory and not permissive.

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receiving an unsatisfactory grievance response and he receives a second response

on the merits, prison officials cannot then fault him for failing to file an internal

appeal. Whatley, 802 F.3d at 1215–16. Trevari has produced a number of

grievances he says he filed and claims to have filed dozens more. However the

district court never made factual findings that would allow us to understand

whether the facts of this case are analogous to Whatley. Therefore, on the record

now before us, it is not clear whether a failure to file an internal appeal would

doom Trevari’s claims.

       It is also true that the district court never made a factual finding about

whether Trevari filed a formal grievance regarding his church-access claim, nor

whether he received a response. 4 Instead, the R&R noted that there was “no

evidence that Plaintiff sought an appeal in regard to any grievance,” and the district

court accepted this finding. The district court found this was fatal to Trevari’s

claim because “[a]lthough it may indeed require more effort to appeal a grievance

to which there has been no Level-1 Response (with a section for requesting an

appeal), that does not mean that the ability to appeal was unavailable or that

Plaintiff could not have requested an appeal when an official rejected or failed to

       4
         None of the grievances produced by defendants pertain to the church-access claim.
However, Trevari submitted copies of additional grievances, including one that contained a
request for church attendance. The district court acknowledged this grievance but noted it was
“unsigned/unstamped.” The district court ultimately dismissed this claim because there was no
evidence of an internal appeal, without ever making a finding about whether the grievance had
been filed or a response had been issued.

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respond to a regular grievance.” This incorrectly states the law. Where the

grievance procedures provide no instruction on how to handle unreturned

grievances, a prisoner should not be faulted for failing to use the prison’s preferred

method to appeal a claim. Id. at 1212 & n.2. Therefore, if Trevari did file a

grievance regarding church attendance and received no response, he may have

exhausted all available remedies on this issue.

      Because the district court did not make explicit findings of fact regarding the

required grievance procedures or the full remedies available to Trevari, we are not

able to determine on the current record whether Trevari has additional remedies

available to him. See id. at 1213 (“[W]e are a court of appeals. We do not make

fact findings. We review them for clear error. Without any explicit findings of

fact . . . we cannot undertake that review.”) Therefore we vacate the dismissal of

Trevari’s First Amendment and Equal Protection claims and remand for the district

court to make the necessary factual findings.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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