                                                         [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                            AUGUST 29, 2007
                            No. 06-14455                   THOMAS K. KAHN
                        Non-Argument Calendar                  CLERK
                      ________________________

                 D. C. Docket No. 04-10084-CV-KMM

THOMAS GEORGE HYLAND,


                                                 Plaintiff-Appellant,

                                 versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
TODD KOSON,


                                                 Defendants-Appellees,

NADINE HOOD,

                                                 Defendant.


                      ________________________

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

                             (August 29, 2007)
Before BIRCH, BLACK and CARNES, Circuit Judges.

PER CURIAM:

      Thomas George Hyland sued Todd Koson, his probation officer, under 42

U.S.C. § 1983 for: (1) causing him to be illegally confined to a halfway house,

contrary to the state court’s incarceration order; and (2) knowingly falsifying

information on an arrest affidavit that Hyland had violated his probation, causing

Hyland to be falsely arrested. The district court granted summary judgment to

Koson based on qualified immunity and Hyland’s failure to exhaust his

administrative remedies, and denied Hyland’s cross motion for summary judgment.

Hyland appeals.

                                          I.

      The district court granted summary judgment to Koson on Hyland’s illegal

confinement claim based on Hyland’s failure to exhaust his administrative

remedies. Hyland contends on appeal that the court erred in concluding that he

needed to exhaust his administrative remedies because: (1) the correctional facility

he was in when he filed his § 1983 claims did not have an established grievance

procedure; (2) he did in fact exhaust his administrative remedies at the halfway

house; (3) under the Florida Department of Corrections’ grievance procedure, the

substance of a state court’s incarceration order was not subject to administrative



                                          2
remedies; and (4) he was not able to remedy his confinement at the halfway house

because it was not part of the order of probation.

      The Prison Litigation Reform Act 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). In deciding whether a prisoner has exhausted his administrative

remedies, we do not review the effectiveness of those remedies, but rather whether

remedies were available and exhausted. Alexander v. Hawk, 159 F.3d 1321,

1326–27 (11th Cir. 1998). The exhaustion requirement is mandatory. Id. at

1325–26. The Supreme Court has determined that the PLRA’s mandatory

exhaustion requirement applies to all federal claims brought by any prisoner.

Porter v. Nussle, 534 U.S. 516, 520, 122 S. Ct. 983, 986 (2002).

      Hyland first contends that exhaustion was unnecessary in this case because

there were no administrative remedies available to him at the correctional facility

where he was incarcerated at the time he filed his § 1983 claims. Hyland’s

contention is not supported by the record. In his complaint, Hyland checked the

“Yes” box when asked, “Is there a prisoner grievance procedure in this institution

[the one where you are currently incarcerated]?” (R1:1:3.) When asked, “Did you



                                           3
present the facts relating to your complaint in the state prisoner grievance

procedure?,” Hyland checked the “No” box. (Id.) Hyland was required under the

PLRA to pursue his administrative remedies even if he was confined to a different

correctional facility from the one where his rights were allegedly violated. See

Napier v. Preslicka, 314 F.3d 528, 534 (11th Cir. 2002) (“the PLRA covers all

federal civil lawsuits filed by prisoners concerning emotional or mental injury

suffered while in past or present custody, even if the subject of the filed lawsuits is

unrelated to the current imprisonment”).

       The halfway house where Hyland alleges that he was illegally confined also

had a grievance procedure, a copy of which Hyland received and acknowledged.

Hyland contends that he exhausted the administrative procedures at the halfway

house when he told his probation officer about his illegal confinement. However,

talking with the probation officer is only the first of the five steps in the

Department of Corrections’ grievance process. If the issue raised is not resolved at

that first step, a complaining resident of the halfway house must then: (2) talk with

the probation officer’s supervisor, and if it is still not resolved; (3) file a written

complaint with the circuit administrator, and if it is still not resolved; (4) file a

written complaint with the regional director, and if it is still not resolved; (5) file a

written complaint with the assistant secretary of probation and parole. Hyland did



                                             4
not do any of those things.

      Hyland’s third contention is that his illegal confinement was not grievable

under the Department of Corrections’ grievance procedures because his complaint

is that the state’s incarceration order was illegal or invalid. This, however, is a

mischaracterization of Hyland’s complaint to Koson and his § 1983 claim. Hyland

has never contended in this lawsuit that the state court’s incarceration order was

illegal or invalid. His claim instead has been that Koson had misunderstood the

confinement order and had confined him at the halfway house in violation of the

order. The state Department of Corrections’ interpretation and application of court

orders and the conditions of an inmate’s care or supervision are specifically

included in the grievance procedures as “grievable matters” that “[a]n offender

may file a grievance regarding.” (R:103:Ex.L:2.) Hyland’s failure to exhaust

these state remedies is not excused on this ground.

      Hyland’s final contention is related to his third one: he argues that because

the confinement order did not provide for his confinement at the halfway house,

there was nothing to file a grievance about. But the conditions of his confinement

and the probation officer’s interpretation of the confinement order, which are both

covered by the Department’s grievance procedures, are directly in dispute. Under

the PLRA, Hyland was required to exhaust the administrative procedures



                                           5
challenging Koson’s interpretation and application of the confinement order and

the conditions of his confinement, even if doing so would have been futile.

Alexander, 159 F.3d at 1327. Because Hyland did not do so, summary judgment

was appropriate on his illegal confinement claim.

                                           II.

      The district court granted summary judgment on Hyland’s false arrest claim

based on Koson’s qualified immunity from suit. Hyland contends that the state

court’s order of confinement did not contain a requirement that he complete the

program at the halfway house, and therefore Koson falsely stated on the arrest

affidavit that Hyland had violated condition nine of his probation, which required

that he comply with all of the probation officer’s instructions. Koson’s false

statement in the arrest affidavit, Hyland argues, led to his false arrest.

      In order to be eligible for summary judgment on grounds of qualified

immunity, the government employee must have been engaged in a discretionary

function. Holloman ex. rel. Holloman v. Harland, 370 F.3d 1252, 1263–64 (11th

Cir. 2004). If the court concludes that the defendant engaged in a discretionary

function, the burden shifts to the plaintiff to prove that the defendant is not entitled

to qualified immunity. Id. at 1264. To overcome qualified immunity, the plaintiff

must satisfy a two prong test. He must show that: (1) the defendant violated a



                                            6
constitutional right, and (2) this right was clearly established at the time of the

alleged violation. Id.

      “Knowingly making false statements to obtain an arrest warrant can lead to a

Fourth Amendment violation.” Whiting v. Taylor, 85 F.3d 581, 585 n.5 (11th Cir.

1996). “[T]he Constitution prohibits a police officer from knowingly making false

statements in an arrest affidavit about the probable cause for an arrest in order to

detain a citizen . . . if such false statements were necessary to the probable cause.”

Jones v. Cannon, 174 F.3d 1271, 1285 (11th Cir. 1999). However, a “warrant is

valid if, absent the misstatements or omissions, there remains sufficient content to

support a finding of probable cause.” Dahl v. Holley, 312 F.3d 1228, 1235 (11th

Cir. 2002). An arrest made with probable cause is an absolute bar to a § 1983

false arrest claim. Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996).

      In this case, Koson was engaged in a discretionary function when he caused

Hyland to be arrested based on alleged probation violations. See Herren v.

Bowyer, 850 F.2d 1543, 1545 n.5 (11th Cir. 1988) (sheriff performed a

discretionary function when he made an arrest even though it was done without

probable cause or a warrant). The burden is on Hyland to show that Koson

violated his constitutional rights, in this case, the right to be free of unreasonable

seizures. Hyland has failed to meet this burden.



                                            7
       Even if we credit Hyland’s allegation that Koson falsely stated that Hyland

violated condition nine of his probation, Koson’s arrest affidavit also provided that

Hyland violated condition three of his probation, which prohibited him from

changing his residence or leaving the county without Koson’s consent. Hyland

does not contend that Koson falsely stated that he violated condition three of his

probation, nor does he argue that Koson lacked probable cause to make such a

charge in the arrest affidavit. In fact, Hyland admitted to the state court judge that

he changed his address and moved to a different county without permission. Based

on this admission, the state court found that Hyland had violated his probation and

sentenced him to jail.

       Accordingly, Koson’s arrest affidavit was valid and supported by probable

cause, even without the allegedly false statements related to Hyland’s violation of

condition nine. See Dahl, 312 F.3d at 1235. Given that Hyland’s arrest based on

Koson’s affidavit was supported by probable cause of a probation violation,

Hyland is absolutely barred by qualified immunity from asserting his § 1983 false

arrest claim against Koson. See Ortega, 85 F.3d at 1525. The district court

properly granted summary judgment to Koson on this claim.1


       1
           Hyland contends that he is entitled to summary judgment on his malicious prosecution
claim. This claim, however, was first asserted in his response to Koson’s motion for summary
judgment. We have held that “[a]t the summary judgment stage, the proper procedure for
plaintiffs to assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P.

                                               8
                                            III.

       Hyland also contends that the district court erred by: (1) denying his motion

to reinstate Nadine Hood as a party to the lawsuit; (2) denying his motion for the

court to take Hood’s deposition and to propound interrogatories to her; and (3)

denying his motion to join Danny Kohlage and Ruth Thurston as parties to his

lawsuit.

       We first address Hyland’s contention that the court erred in denying his

motion to reinstate Hood as a defendant in this lawsuit. Hyland had initially

named Hood as a defendant, but pursuant to the PLRA, the magistrate judge

recommended that the court dismiss Hyland’s claims against Hood because he had

failed to state a claim upon which relief could be granted. See 28 U.S.C. §

1915(e)(2)(B)(ii) (for federal causes of action filed by prisoners, “the court shall

dismiss the case at any time if the court determines that . . . the action or

appeal . . . fails to state a claim on which relief may be granted”). Hyland did not

file objections to the magistrate judge’s report and recommendation. The district

court ordered, consistent with the magistrate judge’s recommendation, that

Hyland’s claim against Hood be dismissed. Hyland does not appeal the dismissal

of his claims against Hood.


15(a). A plaintiff may not amend her complaint through argument in a brief opposing summary
judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).

                                             9
      A year later, Hyland moved to reinstate Hood as a defendant, alleging the

same deficient theory of liability. The magistrate judge recommended that the

motion be denied because Hyland again had failed to state a claim, and the district

court agreed over Hyland’s objection.

      The district court did not abuse its discretion in denying Hyland’s motion to

add Hood as a party. See Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir. 1992).

Hyland, both initially and a year later, failed to state a claim against Hood and thus

there was no reason to join her in the lawsuit. Hyland did not allege that Hood was

in anyway responsible for or affirmatively acted to cause his confinement. And, by

his own admission in his complaint, Hyland did not exhaust his administrative

remedies as to Hood. Thus, for both reasons, dismissal would have been

appropriate had the court granted Hyland’s motion to join Hood into the lawsuit. It

was not an abuse of discretion to avoid a second, needless dismissal.

      Hyland next contends that the court erred in denying his motion for it to

depose Hood and to allow him to propound interrogatories to her. We review the

district court’s discovery rulings for an abuse of discretion. Cliff v. Payco Gen.

Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir. 2004). We find no abuse of

discretion here.

      Hood’s testimony, either through deposition or interrogatory, was not



                                          10
relevant to Hyland’s claims against Koson, and in particular was not relevant to his

failure to exhaust administrative remedies and Koson’s qualified immunity

defense. Instead, Hyland sought Hood’s testimony in support of his claims against

her. But since the district court did not abuse its discretion in denying Hyland’s

motion to join Hood in the lawsuit, it was not an abuse of discretion to refuse him

discovery from a nonparty whose testimony was irrelevant to the pending claims.

      Hyland’s final contention is that the district court erred in denying his

motion to add Kohlage and Thurston as defendants to his lawsuit. As we noted

above, “[t]he decision to join additional parties is left to the discretion of the

district court and will not be disturbed unless the court has abused its discretion.”

Dean, 951 F.2d at 1215. As before, we do not find an abuse of discretion.

      Hyland filed his motion to join the two additional parties on November 8,

2005. This was one month before discovery was set to end. Also, Hyland already

had a separate lawsuit against Kohlage and Thurston alleging the same facts and

causes of action as Hyland attempted to raise in this case. Hyland v. Kohlrage, 158

F. App’x 194, 195 (11th Cir. Nov. 29, 2005). Given that this case had been

pending for a year and was close to the end of discovery, the addition of the two

parties would have caused significant delay with new discovery requests, and

Hyland was not prejudiced in anyway by the denial of his motion since he was able



                                            11
to prosecute the same claims in a separate lawsuit, the court did not abuse its

discretion by denying Hyland’s motion. See United States v. Timmons, 672 F.2d

1373, 1380 (11th Cir. 1982) (“We further conclude that the district court acted well

within its discretion in denying joinder of McIntosh County and various county

officials pursuant to Fed. R. Civ. P. 20(a). The district judge appropriately

considered that joinder would not serve the interests of judicial economy in view of

the late stage of the proceedings and the lack of any disadvantage to the defendants

in bringing their claims in a separate action.”).

      AFFIRMED.




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