                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            MAR 3, 2009
                             No. 08-11344
                                                          THOMAS K. KAHN
                       ________________________
                                                              CLERK

                    D.C. Docket No. 06-60178 CV-JIC

EARL HUGHES BURGEST,

                                                     Plaintiff-Appellant,

                                  versus

UNITED STATES OF AMERICA,
SHERIFF KEN JENNE, et al.,

                                                     Defendants,

BRENDA WEST, #11548,

                                                     Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (March 3, 2009)

Before TJOFLAT, BLACK and COX, Circuit Judges.

PER CURIAM:
                                    I. BACKGROUND

       Earl Hughes Burgest was an inmate in a Florida jail. While in jail, another

inmate told Burgest that a guard, Deputy Brenda West, had been telling inmates about

Burgest’s HIV status. Burgest filed a grievance alleging that West had disclosed

private medical information. When the jail did not respond to the initial grievance

in a timely fashion, Burgest filed additional grievances.                 Ultimately, the jail

responded to one of his grievances, and found no merit in it.

       Burgest brought this 42 U.S.C. § 1983 suit against West, alleging that she

violated his constitutional right to privacy by disclosing his HIV status to other

inmates.1

       West moved for summary judgment, arguing that Burgest had provided no

competent evidence that she had disclosed Burgest’s HIV status to other inmates.

Additionally, West argued that summary judgment was appropriate because Burgest

had not exhausted the administrative remedies available to him before bringing his

§ 1983 suit as required by the Prison Litigation Reform Act of 1995. 42 U.S.C. §

1997e(a). The magistrate judge agreed with both of West’s arguments, and his report

recommended granting summary judgment to West. The district court, however,



       1
         The complaint also alleged claims against other defendants, which were dismissed early in
the litigation. (R.14 at 1.)

                                                2
adopted only those portions of the magistrate judge’s report that addressed

exhaustion, and granted summary judgment to West because Burgest had not

exhausted his administrative remedies. Burgest appeals.

      II. CONTENTIONS OF THE PARTIES & ISSUES ON APPEAL

      Burgest argues that the district court’s grant of summary judgment was

inappropriate because he did exhaust his administrative remedies. Specifically,

Burgest contends that his administrative remedies were exhausted when the jail failed

to comply with its own grievance policy and respond to his grievance in a timely

manner.

      West responds that the jail’s lack of a timely response to Burgest’s grievance

is irrelevant to the inquiry of whether he exhausted his administrative remedies. West

contends that Burgest has failed to exhaust his administrative remedies since he did

not complete all steps outlined in the jail’s grievance policy.          West argues

alternatively that summary judgment is appropriate because she is entitled to qualified

immunity, as Burgest has presented no admissible evidence that West disclosed his

HIV status to anyone, and even if West did violate Burgest’s constitutional right to

privacy, such a right was not clearly established at the time of the violation.




                                          3
      We address in this appeal whether Burgest has produced any admissible

evidence of the alleged constitutional violation.      Because this issue alone is

dispositive of the appeal, we do not address the other contentions of the parties.

                         III. STANDARD OF REVIEW

      We review de novo the district court’s grant of summary judgment to West.

Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary

judgment is appropriate when the evidence, viewed in the light most favorable to

Burgest, the non-movant, presents no genuine issue of fact and compels judgment as

a matter of law. Fed. R. Civ. P. 56(c).

                                IV. DISCUSSION

      West argues that the she is entitled to qualified immunity because Burgest has

not produced any admissible evidence of a constitutional violation. Specifically, she

argues that Burgest has only produced inadmissible hearsay evidence that she

disclosed his HIV status to other inmates. Because we conclude that Burgest has not

produced any admissible evidence of the constitutional violation he alleges, we need

not reach the issue of whether the disclosure of his HIV status by West would, under

the circumstances of this case, be a violation of Burgest’s constitutional right to

privacy. We assume for the sake of this appeal that it is.




                                          4
      Burgest points to the affidavit of Devon Thomas, an inmate, as competent

evidence that West told other inmates about Burgest’s HIV status. Thomas’s

affidavit, however, includes only hearsay evidence of the alleged constitutional

violation, as he did not witness any disclosure by West, but only heard about it from

another inmate. (R.69 at 4-5.)      Inadmissible hearsay cannot be considered when

deciding a motion for summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1322

(11th Cir. 1999).

      Burgest argues alternatively that we should not address the issue of whether

there is adequate evidence of a constitutional violation because the district court has

not yet addressed it. We disagree. We will affirm a grant of summary judgment if it

is correct for any reason supported by the record, even if the district court did not rely

on that reason. Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282,

1301 (11th Cir. 2007) (citing United States v. $121,100 in U.S. Currency, 999 F.2d

1503, 1507 (11th Cir. 1993).

      Finally, Burgest contends that he was unable to obtain an affidavit from one of

the inmates whom West told about his HIV status because the prison housing him

refused his requests to communicate with the prisoner. Had he been able to get in

touch with this prisoner, Burgest argues, he could have provided admissible evidence

of the alleged constitutional violation. If this is so, Burgest should have moved to

                                            5
continue the motion for summary judgment under Fed. R. Civ. P. 56(f) to permit more

discovery and thus allow him an opportunity to obtain competent evidence of the

alleged disclosure.2        Regardless, we review whether summary judgment was

appropriate based only on the evidence in the record. Welding Servs., Inc. v. Forman,

509 F.3d 1351, 1356 (11th Cir. 2007). Because there is no admissible evidence in the

record that West disclosed Burgest’s HIV status, summary judgment was appropriate.

       Because we conclude that the grant of summary judgment was appropriate

since Burgest produced no competent evidence of the alleged constitutional violation,

we need not address whether Burgest exhausted his administrative remedies.

                                      V. CONCLUSION

       Burgest has failed to provide any admissible evidence of the constitutional

violation he alleges. West is therefore entitled to qualified immunity, and summary

judgment was appropriate. Accordingly, we affirm the district court’s grant of

summary judgment.

       AFFIRMED.



       2
          Burgest did file a Rule 56(f) motion to continue. (R.65.) But, his motion to continue sought
to first compel West to serve him with copies of West’s answer to his complaint and the exhibits
filed in support of the motion for summary judgment, and then to continue the motion for summary
judgment until he had received those documents and had time to respond to them. (Id. at 3.) The
motion to continue did not seek time to conduct discovery needed to oppose the motion for summary
judgment.

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