Case: 14-10522   Date Filed: 01/23/2015   Page: 1 of 10


                                                        [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10522
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:09-cv-00165-WLS-TQL

DONALD WAYNE TOENNIGES,

                                                     Plaintiff-Appellant,

                                   versus

GEORGIA DEPARTMENT OF CORRECTIONS, et al.,

                                                              Defendants,

KEITH JONES,
DR. SMITH,
WARDEN, CALHOUN STATE PRISON,
DEBRA EDWARDS,
NURSE PATRICIA BROWN,
JOHNSON,
HSA SATTERFIELD,
DR. HENDERSON,
LT. TARVER,

                                                     Defendants-Appellees.
                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                     ________________________
                           (January 23, 2015)
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Before TJOFLAT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

      Donald Toenniges, a formerly incarcerated inmate proceeding pro se,

appeals following the dismissal of his civil rights action filed under 42 U.S.C. §

1983 alleging, among other things, that officials at two penal institutions violated

his constitutional rights.   Specifically, he alleges that Keith Jones and Debra

Edwards improperly denied him visitation rights, Lt. Tarver retaliated against him

for exercising certain rights, and Dr. Smith, Nurse Brown, and Dr. Henderson were

deliberately indifferent to his medical needs. The district court originally entered a

final judgment against Toenniges in 2011, but on appeal, we vacated and remanded

the case for further proceedings. See Toenniges v. Georgia Dept. of Corr., 502

Fed. App’x 888 (11th Cir. 2012) (unpublished). In 2014, the district court once

again entered a judgment against Toenniges, this time concluding that he failed to

timely serve Nurse Brown with service of process, and that he failed to

administratively exhaust his claims against the remaining defendants. On appeal,

Toenniges argues that: (1) he properly served Nurse Brown or had good cause for

the failure to do so; (2) as to Jones and Edwards, he was not required to use the

administrative grievance procedure to grieve the denial of court ordered visitation;




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and (3) as to Lt. Tarver, Dr. Smith, and Dr. Henderson, he completely exhausted

administrative remedies. After thorough review, we affirm.

      Under Fed.R.Civ.P. 12(b)(5), we review a dismissal for insufficient service

of process de novo as to legal issues, and for clear error as to findings of fact.

Albra v. Advan, Inc., 

, 829 (11th Cir. 2007). We review de novo a

district court’s dismissal for failure to exhaust administrative remedies under the

Prison Litigation Reform Act (“PLRA”). Brown v. Sikes, 

, 1207

(11th Cir. 2000); Johnson v. Meadows, 

, 1155 (11th Cir. 2005).

However, we review any factual findings underlying an exhaustion ruling for clear

error. Bryant v. Rich, 

, 1377 (11th Cir. 2008).

      First, we are unpersuaded by Toenniges’s claim that the district court erred

in concluding that he had failed to timely serve Nurse Brown.            Pursuant to

Fed.R.Civ.P. 4(m), the district court may dismiss an action for failure to complete

service of process within 120 days. The district court may do so either on the

motion of a party, or on its own once notice is given and the party in error fails to

show good cause for the lack of timely service. Pardazi v. Cullman Medical

Center, 

, 1316 (11th Cir. 1990). However, when a litigant proceeds

in forma pauperis, the district court may order the U.S. Marshal to serve a

defendant named in the complaint. See 28 U.S.C. § 1915(d). In Richardson v.

Johnson, 

(11th Cir. 2010), we held that it was “unreasonable to


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expect incarcerated and unrepresented prisoner-litigants to provide the current

addresses of prison-guard defendants who no longer work at the prison.” 

We concluded “that, as long as the court-appointed agent can locate the

prison-guard defendant with reasonable effort, prisoner-litigants who provide

enough information to identify the prison-guard defendant have established good

cause for Rule 4(m) purposes.” 

      Here, the evidence showed that Toenniges did not complete service of

process on Nurse Brown within 120 days of April 10, 2013, when his amended

complaint was reinstated. His argument that he sent the complaint via certified

mail is unavailing since that is not an approved method of service. Moreover, his

claim that he did not receive adequate notice that his failure to perfect service

could lead to Brown’s dismissal is rebutted by the record. As the record shows,

Toenniges requested a motion for extension of time to respond to Brown’s motion

to dismiss, based in part on service of process grounds, before the time to serve her

had run. Furthermore, although the district court granted Toenniges assistance

from the U.S. Marshals to complete service of process while he was incarcerated,

he was no longer incarcerated when his amended complaint was reinstated and he

was required to serve the amended complaint on Brown, and the court correctly

noted that he was not proceeding in forma pauperis. Thus, the district court did not




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err in finding that he failed to show good cause for his failure to timely complete

service of process, nor in dismissing Nurse Brown for failed service of process.

      We also find no merit to Toenniges’s claim that the district court erred in

concluding that he had failed to administratively exhaust his claims against Jones

and Edwards. The PLRA provides that “[n]o action shall be brought” by a prisoner

“until such administrative remedies as are available are exhausted.” 42 U.S.C. §

1997e(a). To evaluate the exhaustion of administrative remedies, first, the district

court looks to the parties’ factual allegations, and if they conflict, the court takes

the plaintiff’s version as true. Turner v. Burnside, 

, 1082-84 (11th

Cir. 2008). If, per the plaintiff’s account, the administrative remedies have been

exhausted, then the court proceeds to step two. At step two, the defendants bear

the burden of proving that the plaintiff did not exhaust administrative remedies. 

stage, the court makes factual findings on whether or not the plaintiff

exhausted the available remedies. 

To the extent the factual findings

lead to procedural dismissal as opposed to dismissal on the merits, the district court

is free to make any findings necessary to resolve the issue. 

.    If the remedies are not found to be exhausted, then dismissal is

appropriate. 

.

      The Georgia Department of Corrections (“GDOC”) Standard Operating

Procedures (“SOP”) provided the administrative grievance process applicable to


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Toenniges. Georgia Dep’t of Corrections SOP IIB05-001 VI; 

. Exhaustion requires the inmate to complete three steps. Georgia Dep’t of

Corrections SOP IIB05-001 VI. The inmate must (1) file an informal grievance,

(2) file a formal grievance, and (3) file an appeal. 

grievance must

be filed within ten days of the date the inmate knew or should have known of the

harm that occurred. SOP IIB05-001 VI(B)(5). The counselor must respond to the

informal grievance, and, if the inmate is dissatisfied with that response, he may

request a form to file a formal grievance with the Warden or Superintendent. SOP

IIB05-001 VI(B). If the Warden or Superintendent violates the time limit for

responding to a formal grievance, then the inmate may proceed directly to appeal

to the Commissioner. SOP IIB05-001 VI(A)(11). Finally, if the Warden is timely

and the inmate is still dissatisfied, the inmate must file a direct appeal with the

Commissioner’s office. SOP IIB05-001 VI(D). The forms to directly appeal to the

Commissioner are kept in the control unit of each living area where they are

accessible to inmates. SOP IIB05-001 VI(D)(1).

      Among many things, the exhaustion requirement is designed to incentivize

efficient grievance resolution, to reduce frivolous litigation against prisons, and to

improve the quality of the record of a grievance should it reach the federal courts.

Porter v. Nussle, 

, 524-25 (2002). Inmates must properly exhaust the

grievance procedures unless the reason for not doing so is extreme. Woodford v.


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Ngo, 

, 92 (2006) (holding that proper exhaustion, rather than mere

circumvention of available procedures, was a necessary prerequisite to filing a

grievance in court, but that failure will be excused if procedures are rendered

unavailable); 

(holding that a procedure may be

unavailable and the failure to exhaust it may be excusable if its unavailability is

caused by extreme threats of physical retaliation); Miller v. Tanner, 

(11th Cir. 1999). Inmates cannot circumvent proper grievance procedures simply

because they are less speedy or effective than desired. 

.

      In this case, Toenniges failed to exhaust administrative remedies for his

denial of visitation claim against Jones and Edwards. The divorce decree upon

which he based his claim for court-ordered visitation did not excuse him from the

need to exhaust administrative remedies regarding the denial of his visitors at the

prison. Although the SOPs do not directly indicate whether prisoners need to file a

grievance to complain of visitation problems, prisons have a compelling interest in

maintaining safety, security, and efficient operation.       Caraballo-Sandoval v.

Honsted, 

, 525 (11th Cir. 1994). Thus, because of the important

institutional interest in security and the PLRA’s goal to give institutions an

opportunity to internally resolve issues, it follows that prisoners must exhaust

administrative remedies regarding denial of visitation claims prior to taking legal

action.   Toenniges, however, failed to even attempt to use the administrative


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remedies to address his denial of visitation claim. The district court did not err in

dismissing this claim for failure to exhaust administrative remedies.

          Finally, we reject Toenniges’s claim that the district court erred in

concluding that he had failed to administratively exhaust his claims against Lt.

Tarver, Dr. Smith, and Dr. Henderson. We interpret the PRLA to “mandate[ ]

strict exhaustion” no matter “the forms of relief sought and offered through

administrative avenues.” 

(quotation marks omitted).

To exhaust administrative remedies, a prisoner must complete the administrative

review process according to the rules set forth in the prison grievance process

itself.    Jones v. Bock, 

, 218 (2007).        Section 1997e(a) makes

exhaustion “a precondition to filing an action in federal court.” Leal v. Ga. Dep’t

of Corr., 

, 1279 (11th Cir. 2001) (quotation marks omitted).

          Exhaustion of the grievance procedure does not require that every single

defendant be identified by name. Parzyck v. Prison Health Servs. Inc., 

, 1218 (11th Cir. 2010); 

(holding that a defendant

need only provide all the information he has or could reasonably obtain). Further,

exhaustion does not necessarily require an inmate to file a new grievance for each

harmful incident in a string of related occurrences. 

.

Parzyck held that an inmate did not fail to exhaust administrative remedies against

a prison doctor by failing to name him, where the inmate filed a grievance before


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the specific doctor began treating him, and exhausted the process during the

doctor’s treatment. 

function of the grievance process is that it

provides the institution with notice of a problem such that they have an opportunity

to address the problem internally.

      As for Toenniges’s claim against Lt. Tarver, the record confirms that

Toenniges failed to properly complete the grievance process. Based on the SOP’s

plain language, a delay on the prison’s behalf at the informal grievance phase did

not authorize him to proceed to a direct appeal to the Commissioners.

Furthermore, Toenniges did not request a formal grievance form, and he does not

argue that he was denied access to the direct appeal form.

      As for his claim against Dr. Smith, Toenniges also failed to exhaust

administrative remedies. The district court’s factual finding that Toenniges’s 2008

medical grievance contained issues different from those contained in his deliberate

indifference claim was not clearly erroneous.            While the 2008 grievance

complained of his orthotics, prescription refills, and an update to his charts, his

deliberate indifference claim included some different elements including

complaints about shoulder problems and failed treatment.          Thus, Toenniges’s

situation is distinct from the one in Parzyck because the substantive discrepancy

between his 2008 grievance and his deliberate indifference claim casts doubt on

the fact that the prison was on notice of his grievance against Dr. Smith.


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      Finally, as for his claim against Dr. Henderson, Toenniges also failed to

exhaust administrative remedies. Toenniges attempted to rely on a general medical

grievance he filed and exhausted in 2006, but a 2006 grievance cannot possibly

constitute exhaustion against all future treating doctors. A 2006 grievance that was

completely exhausted by the time Dr. Henderson commenced treatment did not

serve the purpose of putting the institution on notice of an ongoing problem with

treatment, nor did it provide the institution an opportunity to internally address this

issue over time. In light of the goals of the PLRA, and the fact that Toenniges had

completely exhausted the 2006 grievance before seeing Dr. Henderson, he did not

complete the grievance process as to Dr. Henderson.

      AFFIRMED. 1




1
      Nevertheless, Appellant’s motion to file an out-of-time reply brief is GRANTED.
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