                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT

                            ________________________          FILED
                                                     U.S. COURT OF APPEALS
                                  No. 12-10421         ELEVENTH CIRCUIT
                                                           JUNE 18, 2012
                              Non-Argument Calendar
                            ________________________        JOHN LEY
                                                             CLERK

                     D.C. Docket No. 5:10-cv-00069-LGW-JEG

JAMEL DEANGELO THOMPSON,

                                                      Plaintiff-Appellant,

                           versus

CORRECTIONS CORP. OF AMERICA,
TODD THOMAS,
in his individual and official capacity,
PEGGIE COOPER,
in her individual and official capacity,
MICHAEL WOODS,
JOSEPH RUSSELL,
in his individual and official capacity, et al.

                                                      Defendants-Appellees.

                          ___________________________

                    Appeal from the United States District Court
                       for the Southern District of Georgia
                       ____________________________

                                    (June 18, 2012)
Before MARCUS, JORDAN, and BLACK, Circuit Judges.

PER CURIAM:

      Jamel Thompson, a Georgia prisoner, appeals from the district court’s adverse

rulings on his civil rights complaint under 42 U.S.C. § 1983. The district court ruled

that Mr. Thompson’s deliberate indifference claim was barred by the applicable two-

year statute of limitations, and that Mr. Thompson’s mental issues did not warrant

tolling. It therefore granted summary judgment in favor of the defendants on that

claim. The district court also concluded that Mr. Thompson had failed to exhaust

administrative remedies as to his retaliation claim. As a result, it dismissed that

claim. Mr. Thompson now appeals, and we affirm.

                                          I

      In June of 2010, while confined at Georgia State Prison, Mr. Thompson filed

a § 1983 lawsuit in the Southern District of Georgia. The lawsuit arose from Mr.

Thompson’s confinement at Coffee Correctional Facility, a correctional institution

operated by Corrections Corporation of America as a contractor for Georgia. The

deliberate indifference and retaliation claims are summarized below.

      First, Mr. Thompson first alleged that he was savagely assaulted and beaten by

another inmate at Coffee in September of 2007, that he previously had told Unit

Manager Michael Woods that this inmate was threatening to kill him (because the

                                          2
inmate incorrectly believed that Mr. Thompson had stolen his cd player), that Mr.

Wood failed to do anything to protect him from the inmate, and that officials at

Coffee failed to take any action against the inmate. Mr. Thompson asserted that Mr.

Woods had been deliberately indifferent to the substantial risk of harm that he faced

from the other inmate.

        Second, Mr. Thompson alleged that CCA and several other Coffee officials

– Todd Thomas, Peggie Cooper, Joseph Russell, and John Ferguson – refused to

investigate his allegations due to retaliation. Mr. Thompson claimed that the

retaliation was to get back at him for having prevailed on a grievance against Coffee.

                                          II

      We review the district court’s summary judgment ruling de novo, applying the

same Rule 56 standards as the district court. See Citizens for Smart Growth v.

Secretary of Dept. of Transportation, 669 F.3d 1203, 1210 (11th Cir. 2012). The

district court’s rulings with respect to the statute of limitations, tolling, and the

exhaustion of administrative remedies are also subject to plenary review, though there

may be underlying factual issues that require resolution and preclude summary

judgment. See Arthur v. Thomas, 657 F.3d 1257, 1261 n.3 (11th Cir. 2012) (statute

of limitations); Jackson v. Astrue, 506 F.3d 1349, 1352 (11th Cir. 2007) (tolling);

Parcyk v. Prison Health Services, 607 F.3d 1215, 1217 n.2 (11th Cir. 2010)

                                          3
(exhaustion of remedies).

                                          III

      The statute of limitations for Mr. Thompson’s § 1983 deliberate indifference

claim is that which Georgia provides for personal injury torts, see Wallace v. Kato,

549 U.S. 384, 387 (2007), and that limitations period is two years from the accrual

of the right of action. See O.C.G. § 9-3-33; Williams v. City of Atlanta, 794 F.2d 624,

626 (1986). Mr. Thompson’s deliberate indifference claim accrued as a matter of

federal law in September of 2007, when he was assaulted by the other inmate despite

having told Unit Manager Woods previously about the inmate’s threats. At that time,

Mr. Thompson had a “complete and present cause of action” against Unit Manager

Woods. See Kato, 549 U.S. at 388 (internal quotation marks and citation omitted).

Because Mr. Thompson did not file suit until June of 2010, the deliberate indifference

claim is time-barred unless the limitations period was tolled.

      Tolling of the limitations period in a § 1983 action is generally determined by

reference to state law. See id. at 394. Under Georgia law, a statute of limitations is

tolled for a person who is “legally incompetent because of mental retardation or

mental illness” at the time a cause of action accrues, with the tolling continuing until

the “disability is removed.” See O.C.G. § 9-3-90(a). We have explained that under

this statute the “test for mental incapacity is not whether one did not manage his own

                                           4
affairs, acquiescing in the management thereof by others, or whether one has merely

managed his affairs unsuccessfully or badly. That one was not ‘bright’ or not clear

about some matters occurring during the period is not evidence of mental incapacity.

The test is one of capacity – whether the individual, being of unsound mind, could not

manage the ordinary affairs of his life.” Lawson v. Glover, 957 F.2d 801, 805 (11th

Cir. 1987) (quoting Curlee v. Mack Enterprises, Inc., 173 Ga. App. 594, 327 S.E.2d

736, 742 (1985)). A plaintiff who seeks tolling bears the burden of proving

incapacity under Georgia law, and a court may determine incapacity as a matter of

law. See Carter v. Glenn, 243 Ga. App. 544, 533 S.E.2d 109, 114 (2000).

      In the district court, Mr. Thompson argued that he suffered from a mental

incapacity from July of 2008 to June of 2010.          The magistrate judge, while

recognizing that Mr. Thompson “suffered from mental health issues,” believed that

tolling was not warranted because he had never been declared legally incompetent.

See R2:59 at 3-4 & n.1.1 The district court similarly noted that Mr. Thompson had

mental health problems, but ruled that there was “no evidence before the court which

indicates [he] was not able to manage the ‘ordinary affairs of his life.’ In fact, the


      1

              The standard for incapacity used by the magistrate judge was likely not
a correct statement of Georgia law, see, e.g., Carter, 533 S.E.2d at 114 (person need
not be confined or require a guardian), but the error is harmless because the district
court applied the correct standard.
                                          5
evidence . . . reveals that, while [he] undoubtedly struggles with mental health issues,

he has been able to function properly with medication.” See R3:68 at 2. The district

court also pointed out that, according to the medical records, Mr. Thompson’s mental

health issues began in 2002, and were not the result of the assault. See id.

      Mr. Thompson argues that the district court committed several errors. First, he

asserts that he suffered a separate mental incapacity in 2007 due to the assault, and

that this incapacity consisted of features different from the 2002 incapacity. Second,

he contends that the district court mistakenly ruled that there was no evidence

showing that he was not able to manage the ordinary affairs of his life.

      As Mr. Thompson asserts, there is some evidence that the 2007 assault caused

him to suffer additional mental health problems. A department of corrections mental

health evaluation form, dated November 9, 2007, states that Mr. Thompson’s

problems with depression began in 2002 and continued with daily symptoms of

moderate intensity. The form also indicates, however, that Mr. Thompson was

suffering from hallucinations and delusions and had tried to kill himself. In March

of 2009, Mr. Thompson, who had stopped taking one of his medications (Risperdal),

was found to exhibit some signs of psychosis. As a result, medical officials directed

that Mr. Thompson resume taking Risperdal. In addition, a department of corrections

comprehensive treatment plan dated April 20, 2010, states that Mr. Thompson was

                                           6
diagnosed with major depressive disorder, “severe with psychotic features,” as well

as adjustment disorder with mixed anxiety and depressed mood. The plan also

indicates that the 2007 assault was clinically significant, that Mr. Thompson was

taking psychotropic medications, and that he had a history of suicide attempts.

        Nevertheless, other information in the medical records showed that Mr.

Thompson did not meet the standard set forth in § 9-30-90(a). In November of 2007,

about two months after the assault, Mr. Thompson indicated in a mental health

evaluation form that he was taking Prozac and Risperdal, which “help[ed] a little bit.”

The graduate intern who performed the evaluation and the clinical director who

supervised the intern’s work recommended that he receive outpatient treatment for

his psychosis while in the general prison population, and noted that Mr. Thompson

had a logical and coherent through process, no notable impairment of memory,

average intellectual level and judgment, and fair insight. A semi-annual review that

same month found that Mr. Thompson, though he had a major depressive disorder,

had been functioning without major incidents in a general population dormitory. In

a follow up evaluation in December of 2007, the graduate intern recommended that

Mr. Thompson continue with his medications and receive monthly counseling. In

February, May, July, and August of 2008, the doctor who evaluated Mr. Thompson

concluded that he was not suicidal or depressed, and that he was not experiencing any

                                          7
side effects from his medication. In September of 2008, a nurse reminded Mr.

Thompson of the importance of taking his medications as directed. In October of

2008, during a psychiatric transfer evaluation, Mr. Thompson told medical officials

that his medications helped him. The officials found him to be stable, and directed

that he continue on his medication regimen. In December of 2008, Mr. Thompson

said that he was getting along fairly well with his medications. Because he felt

stressed out because he did not have a work assignment, he asked to be classified for

a work detail. When examined in February of 2009, Mr. Thompson did not display

any psychosis, suicidal intent, or serious depression.

      On this record, the district court did not err in concluding that tolling was not

warranted under § 9-3-90(a). We do not write on a blank slate, and precedent from

the Georgia courts – which we look to under Kato and Glover – indicates that, though

Mr. Thompson undoubtedly had mental problems both before and after the assault,

under medication he was able to manage the ordinary affairs of his life. See, e.g.,

Carter, 533 S.E.2d at 114-15 (plaintiff suffering from post-traumatic stress disorder

following rape was not entitled to tolling of statute of limitations even though treating

psychiatrist opined that plaintiff cognitively avoided any act that would require her

to speak of or react to the rape – there was no evidence that plaintiff was incapable

of managing the ordinary affairs of her life, and “[m]ental conditions that fall short

                                           8
of the applicable legal standard of incompetence are insufficient to trigger the tolling

provision of . . . § 9-3-90”); Charter Peachford Behavioral Health System, Inc. v.

Kohout, 233 Ga. App. 452, 504 S.E.2d 514, 524 (1998) (holding that tolling was not

appropriate because, even if plaintiff had multiple personality disorder and was

mentally ill, she was able – though with emotional difficulty and while sometimes

hospitalized for treatment – “carry on her daily ability to make decisions”).

                                          IV

          Mr. Thompson filed informal grievances at Coffee on May 27 and June 1,

2010, alleging that his family had just told him that officials were refusing to further

investigate the 2007 assault, and that those officials refused to allow him to keep

winning grievances against Coffee.2 Those informal grievances were rejected,

respectively, on June 1 and June 3, 2010, in part because they were untimely.

      As the magistrate judge saw it, Mr. Thompson had not properly exhausted his

administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. §

1997e(a), with respect to his retaliation claim. Contrary to the applicable grievance

procedures, he had filed his informal grievances more than 10 days after the date after


      2

             According to Mr. Thompson’s family, Ms. Cooper was one of the
officials who made the statement, and she and the others specifically referred to the
$50 that Mr. Thompson had been awarded in a prior grievance over the loss of his
property.
                                           9
he knew or should have known of the facts giving rise to the grievance. The

magistrate judge further explained that Mr. Thompson’s informal grievances were

submitted just a couple of weeks before the § 1983 lawsuit was filed, and therefore

Mr. Thompson had not completed the formal grievance procedure that was to follow

the informal grievance procedure. As a result, he had not let the administrative

process run its course. See R2:59 at 5-7.

      The district court also concluded that the informal grievances were submitted

well after the requisite 10-day period and only a short time before the complaint was

filed. Thus, Mr. Thompson had not properly exhausted his administrative remedies.

See R3:68 at 2-3.

      On appeal, Mr. Thompson argues that there is no evidence showing that he

knew, prior to June 1, 2010, that officials at Coffee were refusing to investigate the

2007 assault as retaliation for the $50 Mr. Thompson won in a prior grievance. As

a result, he says, his informal grievances were filed within the 10-day window.

      Assuming Mr. Thompson is correct on the timeliness of his informal

grievances, we nevertheless conclude that he did not properly exhaust the available

administrative remedies. Under § 1997e(a), “a prisoner must exhaust all available

administrative remedies before bringing a federal action challenging prison

conditions.” Parcyk v. Prison Health Services, Inc., 627 F.3d 1215, 1217 (11th Cir.

                                         10
2010). Thus, once the officials at Coffee rejected his informal grievances, Mr.

Thompson had to go to the next step of the process and file formal grievances. See

R2:46 at Exh. C (Affidavit of Lisa Trowell, Grievance Coordinator at Coffee); R2:56

at 5-6 (Georgia Department of Corrections grievance procedures); Turner v.

Burnside, 541 F.3d 1077, 1080-81 (11th Cir. 2007) (explaining three-tier grievance

procedures for Georgia Department of Corrections); Boggee v. Roberts, 430 Fed.

Appx. 753, 755-56 (11th Cir. 2001) (unpublished) (same). But he failed to do this,

and instead filed his § 1983 lawsuit prematurely. As a result, the retaliation claim

was properly dismissed. See Booth v. Churner, 206 F.3d 289, 292-93, 299 (3rd Cir.

2000) (prisoner who did not seek relief in second and third tiers of three-tiered

grievance system did not exhaust his administrative remedies), aff’d, 532 U.S. 731

(2001); West v. Higgins, 346 Fed. Appx. 423, 425 (11th Cir. 2009) (unpublished)

(dismissing Georgia prisoner’s claim, for failure to exhaust administrative remedies,

in part because he had failed to file a formal grievance).

                                          V

      The district court’s rulings on Mr. Thompson’s deliberate indifference and

retaliation claims are affirmed.

      AFFIRMED.




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