FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 18, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11132

Non-Argument Calendar

________________________

D. C. Docket No. 04-00007-CV-3

MENACHEM PRI-HAR, 

Plaintiff-Appellant, 

versus 

CORRECTIONS CORPORATION OF AMERICA, INC., 

JOE D. SNODDY, CURTIS A. RANUM, 

GALEY GATES, 

 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(November 18, 2005)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
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On appeal, Menachem Pri-Har, a prisoner proceeding pro se, appeals the

entry of summary judgment against him in his diversity action and the denial by

the district court of his motion for recusal. The district court entered summary

judgment based on Pri-Har’s failure to exhaust administrative remedies pursuant to

the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). 

Pri-Har is a federal prisoner confined in McRae Correctional Facility, a

prison operated by Corrections Corporation of America (“CCA”) pursuant to a

contract with the Bureau of Prisons (“BOP”). Pri-Har argues that he was not

subject to the exhaustion requirement of § 1997e(a), and that he nevertheless

complied with § 1997e(a) by exhausting his available administrative remedies. 

Pri-Har further argues that the district court’s rulings demonstrated a lack of

impartiality sufficient to warrant recusal under 28 U.S.C. § 455(a).

We review a district court’s grant of summary judgment de novo. Skrtich v.

Thorton, 280 F.3d 1295, 1299 (11th Cir. 2002). The moving party is entitled to

summary judgment “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). If the non-moving party bears

the ultimate burden of proof regarding the claim at issue in the motion, that party,
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in response to the motion, must go beyond the pleadings and establish, through

competent evidence, that there truly is a genuine, material issue to be tried. Celotex

Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“When deciding whether summary judgment is appropriate, all evidence and

reasonable factual inferences drawn therefrom are reviewed in a light most

favorable to the non-moving party.” Rojas v. Florida, 285 F.3d 1339, 1341-42

(11th Cir. 2002) (internal citation and quotations omitted). We also review the

district court’s interpretation of the PLRA de novo. Troville v. Venz, 303 F.3d

1256, 1259 (11 Cir. 2002). We review the district court’s refusal to recuse itself th

for abuse of discretion. Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Fla.,

Inc., 140 F.3d 898, 905 (11 Cir. 1998). 

th

Pri-Har first argues that as a federal prisoner in a privately run prison he is

not required to exhaust CCA’s administrative remedies because the BOP lacks the

legal authority to place him in a private facility. Thus, Pri-Har reasons, he satisfied

the requirements of § 1997e(a). Prior to 1996, the PLRA’s exhaustion requirement

only applied to state prisoners. Porter v. Nussle, 534 U.S. 516, 523, 122 S.Ct. 983,

987, 152 L.Ed.2d 12 (2002). As amended in 1996, the PLRA now states, “No

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
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correctional facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). We have held that § 1997e(a) “now applies to

both federal and state prisoners.” Alexander v. Hawk, 159 F.3d 1321, 1325 (11th

Cir. 1998). By its terms, § 1997e(a) applies to prisoners confined in “any” prison. 

Accordingly, § 1997e(a) applies to federal criminal prisoners in any prison,

regardless of whether it is a federal prison or a privately operated facility.

Pri-Har next argues that he was not required to exhaust CCA’s grievance

procedure, but only to exhaust the BOP procedure, because CCA did not have the

legal or contractual authority to create a grievance procedure.

Section 1997e(a)’s mandate to exhaust “such administrative remedies as are

available” is mandatory. Johnson v. Meadows, 418 F.3d 1152, 1155 (11 Cir. th

2005), petition for cert. filed, (No. 05-6336) (Sept. 8, 2005). We have interpreted

the term “available” as used in this section as acknowledging that “not all prisons

actually have administrative remedy programs.” Alexander, 159 F.3d at 1326. 

We have also held that when a state provides a grievance procedure, state inmates

must exhaust that procedure before filing suit in federal court. Johnson, 418 F.3d

at 1156 (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11 Cir. 2000)). CCA th

made a grievance procedure available to its inmates. Because Pri-Har was able to

utilize that grievance procedure, he was required to exhaust it before filing his
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lawsuit.

Pri-Har next argues that a disposition at the initial stage of the grievance

procedure by the Warden or his associates both rendered CCA’s grievance

procedures futile and exhausted his available administrative remedies. We do not

review the effectiveness of available administrative remedies. Miller v. Tanner,

196 F.3d 1190, 1193 (11 Cir. 1999). Furthermore, an assertion that available th

administrative procedures are futile does not excuse the requirement of exhaustion. 

Higginbottom v. Carter, 223 F.3d 1259, 1261 (11 Cir. 2000). Pri-Har’s th

arguments take issue with the manner in which CCA’s administrative procedures

are structured, challenging their adequacy and effectiveness. Although CCA’s

grievance procedures were available within the meaning of § 1997e(a), and Pri-Har

was required to exhaust them before filing suit, there is no evidence that Pri-Har

completed all the remaining steps of CCA’s grievance procedure. Therefore, PriHar failed to exhaust his available administrative remedies. 

Pri-Har’s final contention regarding the grant of summary judgment is that

CCA’s grievance procedure lacked time limits for responses by prison officials,

that the failure to implement time limits, in and of itself, exhausted his

administrative remedies, and that by not having a timely response to his grievances

he satisfied the exhaustion requirement. As a result of the 1996 amendment of the
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PLRA, administrative remedies are no longer required to be plain, speedy, and

effective. Porter, 534 U.S. at 524, 122 S.Ct. at 988. We recognized that “[t]he

removal of the qualifiers ‘plain, speedy, and effective’ from the PLRA’s

mandatory exhaustion requirement indicates that Congress no longer wanted courts

to examine the effectiveness of administrative remedies but rather to focus solely

on whether an administrative remedy is ‘available’ in the prison involved.” 

Alexander, 159 F.3d at 1326. Because an administrative remedy does not have to

be speedy, the absence of a time frame in which prison officials must respond to

grievances does not per se satisfy the exhaustion requirement of § 1997e(a). In

this case, there is no evidence of a failure to respond that prevented Pri-Har from

utilizing CCA’s grievance system. Pri-Har’s four grievance forms, which appear

to be at step three in CCA’s five step process, were submitted by Pri-Har between

December 15, 2003, and January 8, 2004. Pri Har’s complaint was dated January

13, 2004, and filed January 23, 2004, approximately one month later. At the time

the complaint was filed, the CCA Managing Director for Division IV, who

responded at step five, had not responded to his grievances. Pri-Har, therefore,

failed to exhaust his available administrative remedies as required by the PLRA

before filing this lawsuit. 

Finally, Pri-Har argues that the district court erred in refusing to recuse itself
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under 28 U.S.C. § 455(a) based on the lack of an extrajudicial source for bias

because the court’s rulings themselves reflected a lack of impartiality sufficient to

warrant recusal. The standard for recusal under § 455 is “whether an objective,

fully informed lay observer would entertain significant doubt about the judge’s

impartiality.” Christo v. Padgett, 223 F.3d 1324, 1333 (11 Cir. 2000). The th

extrajudicial source doctrine applies to § 455(a), but it is not the exclusive basis for

recusal. Liteky v. United States, 510 U.S. 540, 551,554-55, 114 S.Ct. 1147,

1155,1157, 127 L.Ed.2d 474 (1994). Although judicial rulings alone “almost

never constitute a valid basis for a bias or partiality motion,” they are a valid basis

“if they reveal such a high degree of favoritism or antagonism as to make fair

judgment impossible.” Id. 510 U.S. at 555, 114 S.Ct. at 1157. The

recommendation of the magistrate and orders of the district court do not reflect the

antagonism on the part of either judge that would make fair judgment impossible. 

Accordingly, the district court did not abuse its discretion in denying Pri-Har’s

motion for recusal. 

Upon review of the district court record and the parties’ briefs, we find no

reversible error. 

AFFIRMED.