Opinion
4:20-CV-249-CDL-MSH
12-14-2021
JEROME W. BLACK JR., Plaintiff, v. Nurse KIM RAYBURN, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court are Defendants' motions for summary judgment (ECF Nos. 49, 51). For the reasons explained below, it is recommended that Defendants' motions be granted.
PROCEDURAL BACKGROUND
Plaintiff Jerome Black's claims arise from his confinement at Rutledge State Prison (“RSP”). Compl. 3, ECF No. 1. Compl. 3, ECF No. 1. Black contends Defendants were deliberately indifferent to his serious medical needs by failing to respond appropriately after he suffered serious burns to his right foot. The Court received Black's complaint on October 13, 2020 (ECF No. 1). Although Black also asserted a claim against the warden of RSP, following preliminary screening, only his Eighth Amendment deliberate indifference to serious medical needs claim against Crawford, Rayburn, and Hedden was allowed to proceed for further factual development. Order & R. 7, Nov. 16, 2020, ECF No. 4; Order, Jan. 20, 2021, ECF No. 7 (adopting recommendation). Rayburn and Hedden answered the complaint on February 25, 2021 (ECF No. 14). Crawford answered on March 1, 2021 (ECF No. 15). On April 14, 2021, Crawford moved to dismiss Black's complaint for failure to exhaust his administrative remedies and intentional misrepresentation of material facts (ECF No. 28). The Court scheduled an evidentiary hearing on Crawford's motion to dismiss for August 26, 2021, but prior to the hearing, Crawford withdrew her motion (ECF Nos. 42, 46). Defendants moved for summary judgment on September 2, 2021 (ECF Nos. 49, 51). After the Court granted an extension, Black timely responded to the motions (ECF No. 55). Defendants filed reply briefs (ECF Nos. 59, 60). Black did not request an evidentiary on Defendants' motions. Defendants' motions for summary judgment are ripe for review.
Crawford withdrew her motion to dismiss with a cursory explanation that she had “received additional evidence relevant to her motion to dismiss not previously received in discovery.” Crawford Notice of Withdrawal 1, ECF No. 46. Crawford did not specify what discovery item led her to withdraw her motion, but her notice did not indicate she was waiving the exhaustion defense raised in her answer. The Court notes that Black was deposed on May 10, 2021, and cross-examined on the exhaustion issue. Pl.'s Dep. 63:20-68:12, 72:8-73:3, ECF No. 51-1.
DISCUSSION
Rayburn and Hedden move for summary judgment on the grounds that 1) Black failed to exhaust his administrative remedies, 2) they did not violate Black's Eighth Amendment rights, 3) Black intentionally misrepresented a material fact, and 4) Black's claim for money damages against them in their official capacities is barred. Rayburn and Hedden Mot. for Summ. J. 7-14, ECF No. 49. Crawford moves for summary judgment on the same grounds. Crawford Br. in Supp. of Mot. for Summ. J. 8-14, ECF No. 51-7.
I. Summary Judgment Standard
Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). If the movant meets this burden, the burden shifts to the party opposing summary judgment to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact, or that the movant is not entitled to judgment as a matter of law. Id. at 324-26. This evidence must consist of more than conclusory allegations. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
II. Factual Background
On the evening of August 16, 2019, Black walked out of his dorm room at RSP and stepped into a bucket of boiling water heated by “some type of heating device” plugged into the wall. Pl.'s Dep. 12:7-15:15. Water spilled out and burned Black's right foot. Id. at 12:17-19, 21:7-10, 24:10-13. Another inmate, Boyzie Barnes, heard Black screaming and asking for help. Pl.'s Exs. 9, ECF No. 55-2. Barnes asked Black what was wrong, and Black showed him his burned foot with “big bumps [that] looked as though they were full of water.” Id. Black asked someone to get an officer, so three or four inmates went to the guard station window to get an officer's attention. Id. Black hobbled up the steps to the guard station, and the inmates knocked on the window. Pl.'s Dep. 24:8-9, 25:10-11. When Officer Hedden opened the door, Black let him know that he was seriously burned. Id. at 25:11-13, 28:4. Black testified at his deposition that he showed Hedden his foot, but he could not remember if he had taken off his shoes-which he described as “crocs”-though he believed he had. Id. at 32:3-33:13. Black said that his foot had “one big blister across the middle section of [his] foot[] and . . . a big circle blister . . . dead in the center of [his] foot.” Id. at 34:4-6 Hedden told Black he would call the medical unit. Id. at 30:3. He got on the phone and then came back and told Black that the medical unit had said for Black to file a sick call request. Id. at 28:12-13; Pl.'s Exs. 9. Black asked Hedden for a form, but he never received one. Pl.'s Dep.30:4-5. Black told Hedden he needed help immediately, but Hedden responded that he had done all he could by calling the medical unit. Pl.'s Exs. 9. Following his exchange with Hedden, Black did not speak with any other correctional officers or prison employees about his injury until the next evening when he walked to the medical unit. Pl.'s Dep. 35:21-36:11, 37:18-38:5.
Plaintiff was unclear in his deposition about what Hedden told him about a sick call request form. At one point, Plaintiff stated that Hedden told him he did not have any forms. Pl.'s Dep. 29:20-21. At another point, Plaintiff testified that Hedden did not state this but instead simply did not bring him a form. Id. at 30:3-8.
On the evening of August 17th, Black “hopped” half a mile or a mile to the medical unit for pill call. Id. at 42:12-18; Crawford Ex. E, at 3, ECF No. 51-5. As he approached the door, he ran into Crawford-a nurse-who was also going in the door. Pl.'s Dep. 44:25-45:1, 46:7-8. Black told Crawford he had a medical emergency and about his “situation.” Id. at 45:2, 46:8-10. She asked when the accident had occurred, and he said the day before. Id. at 46:10-11. When she asked Black why he had not come to the medical unit sooner, he responded that he was told he needed a sick call slip. Id. at 46:11-13. Crawford looked at Black's wounds and then walked off to “go about her business.” Id. at 47:1-2, 70:22-25. Black described his interaction with Crawford as lasting between 2-10 seconds. Id. at 48:13-17, 49:6-10.
After his brief conversation with Crawford as they entered the door, Black then immediately spoke with Rayburn, the nursing director. Pl.'s Dep. 45:5-6, 48:16-17, 71:18-20. Rayburn saw his wounded foot. Id. at 49:16-17; Crawford Ex. E, at 3. Rayburn told Black she could not help him at that time because he needed to submit a sick call slip. Pl.'s Dep. 47:23-24. She instructed an orderly to hand him a form. Id. at 47:24-25. The orderly told Black his foot looked bad, shook his head, handed him the form, and told him to put it in the box in the chow hall. Id. at 47:25-48:1, 48:22-49:1, 50:15-20. Black then left. Id. at 50:19-20. His conversation with Rayburn lasted 3-4 seconds. Id. at 49:18-22. Black then completed the form and submitted it as instructed. Id. at 51:2-7.
Black testified inconsistently about whether Rayburn could have heard his conversation with Crawford. At one point, he said she could, but then he later testified that Rayburn was not present during the conversation with Crawford because it occurred outside the medical department. Pl.'s Dep. 49:11-17, 70:22-25.
The evidence is unclear as to whether Black was wearing shoes when he came to the medical unit. Although Rayburn did not file an affidavit, Crawford avers that Black was wearing shoes when she saw him, an assertion Black has not disputed. Crawford Aff. ¶ 11, ECF No. 51-4.
Black was seen in the medical unit on Monday, August 19, 2019. Pl.'s Dep. 52:11-16. Between the incident on August 16th and being seen in the medical department on August 19th, the only prison officials Black spoke with were Hedden, Crawford, and Rayburn. Id. at 52:25-53:4. He stated he was in pain throughout this time. Id. at 38:16-17. On August 19, 2019, the medical unit determined that Black needed to be seen immediately by a burn specialist. Id. at 53:12-15. They also cleaned the wound and gave Black pain medication. Id. at 53:16-20. Black then returned to his dorm. Id. at 53:23. On August 21, 2019, he was transferred to Doctors Hospital in Augusta, Georgia, where a doctor told him that he had second and third degree burns and a bad infection and that he needed surgery. Pl.'s Dep. 53:23-24, 57:24-58:5. Black first underwent surgery to clean the wound and later underwent another surgery to receive a skin graft. Id. at 58:6-19. On August 26, 2019, Black was transferred to Augusta State Medical Prison (“ASMP”) where he remained until September 28, 2019, when he was transferred back to RSP. Pl.'s Aff. in Opp'n to Summ. J. 2, ECF No. 55-1. Black states he still has residual pain and walks with a cane. Pl.'s Dep. 59:15-60:3.
II. Exhaustion
Defendants each argue that Black failed to exhaust his administrative remedies. Rayburn and Hedden Mot. for Summ. J. 7-9; Crawford Br. in Supp. of Mot. for Summ. J. 8-9. Although they raise other grounds for summary judgment, the Court must first address exhaustion as it is “threshold matter” that must be decided prior to considering the merits of the case. Chandley v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004). As the Court agrees that Black failed to exhaust his administrative remedies, it recommends that his complaint be dismissed and declines to address Defendants' remaining grounds.
A. Exhaustion Standard
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . 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). When a grievance procedure is provided for prisoners, “an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added).
“To exhaust administrative remedies in accordance with the PLRA, prisoners must properly take each step within the administrative process. If their initial grievance is denied, prisoners must then file a timely appeal.” Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (internal citation and quotation marks omitted). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The critical 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.” Toenniges v. Ga. Dep't of Corr., 600 Fed.Appx. 645, 649 (11th Cir. 2015) (per curiam).
“Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.” Bryant, 530 F.3d at 1374-75 (internal quotation marks omitted). Further, since dismissal for failure to exhaust is not an adjudication on the merits, the Court can resolve factual disputes using evidence from outside the pleadings. Id. at 1376. “[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the plaintiff's versions of the facts as true.” Id. If, taking plaintiff's facts as being true, the defendant is entitled to dismissal for failure to exhaust, then the complaint should be dismissed. Id. “If the complaint is not subject to dismissal at the first step . . . the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.” Id. The defendant bears the burden of proof during this second step. Id. In resolving the factual dispute, a Court is authorized to make credibility determinations. See Bryant, 530 F.3d at 1377-78 (finding that district court did not clearly err in determining that plaintiff's allegation that he was denied access to grievance forms was not credible); see also Whatley v. Smith, 898 F.3d 1072, 1082-83 (11th Cir. 2018) (upholding district court finding that one of inmate's grievances was not filed).
A prisoner need only exhaust administrative remedies that are available. Ross v. Blake, -- U.S. --, 136 S.Ct. 1850, 1858 (2016). In Ross, the Supreme Court held that an administrative procedure is unavailable under the PLRA when either (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates, ” (2) it is “so opaque that it becomes, practically speaking, incapable of use, ” or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S.Ct. at 1859-60. For a remedy to be available, it “must be capable of use for the accomplishment of its purpose.” Turner, 541 F.3d at 1084 (quotation marks omitted). The burden is on the defendant to show that an administrative remedy is available, but “once that burden has been met, the burden of going forward shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was subjectively and objectively unavailable to him.” Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020) (internal quotation marks omitted) (citing Turner, 541 F.3d at 1085).
B. RSP Administrative Procedures
The parties do not dispute that the Georgia Department of Corrections (“GDC”) Standard Operating Procedures (“SOPs”)-specifically SOP 227.02-apply to grievances submitted at RSP. See Rayburn and Hedden Ex. 4, ECF No. 49-4; Pl.'s Aff. in Opp'n to Summ. J. 4. Under SOP 227.02, an inmate must follow a two-step process in order to exhaust his remedies. Rayburn and Hedden Ex. 4, at 8. First, an inmate must file an original grievance no later than ten days “from the date the Offender knew, or should have known, of the facts giving rise to the grievance, ” though grievances filed later than ten days may “be considered upon Good Cause.” Id. Second, if a grievance is denied or rejected, the inmate must file an appeal to the Central Office. Id. at 8, 14. The warden has forty calendar days within which to respond to an original grievance, though a one-time ten-day extension may be granted. Id. at 11. An inmate may file an appeal after the warden issues a decision or after the time allowed for the warden to make his decision expires. Id. at 14. The Commissioner has 120 days within which to respond to a grievance appeal. Id. at 15.
Pursuant to SOP 227.02, an inmate “may file a grievance about any condition, policy, procedure, or action or lack thereof that personally affects the Offender.” Rayburn and Hedden Ex. 4, at 4. If “a grievance is filed in reference to a different facility, the Grievance Coordinator at the Offender's current facility will notify the Grievance Coordinator at the originating facility . . . for screening and processing.” Id. at 17. A warden “should reject” a grievance if it . . . [i]s not timely filed; however, the Grievance Coordinator may waive the time limit for Good Cause[.]” Id. at 9. The SOP defines “good cause” as “[a] legitimate reason involving unusual circumstances that prevented the Offender from timely filing a grievance . . . . Examples include: serious illness [and] being housed away from a facility covered by this procedure (such as being out on a court production order or for medical treatment).” Id. at 2.
C. Analysis
Defendants contend Black failed to exhaust his administrative remedies because the grievance he filed was untimely. Rayburn and Hedden Mot. for Summ. J. 9; Crawford Br. in Supp. of Mot. for Summ. J. 8-9. As such, he did not properly exhaust his administrative remedies as required by the PLRA. Id. Black submitted a single grievance related to the incident at issue in this case on September 30, 2019. Pl.'s Exs. 2. This was well outside the ten-day deadline for filing grievances under SOP 227.02. Rayburn and Hedden Ex. 4, at 8. On the portion of the grievance form asking for an explanation if a grievance is filed past the ten-day limit, Black wrote, “Because I got send [sic] off to Augusta for serious burns.” Pl.'s Exs. 2. On November 8, 2019, the warden rejected the grievance as untimely. Id. at 3. Black appealed the rejection on November 14, 2019. Id. at 4. In his appeal, Black stated that he “reject[ed]” the warden's response. Id. He noted that “the incident occurred on August 16, 2019, ” that he was “transferred to [ASMP] on August 21, 2019, ” and that while he was at ASMP, he “spoke with a counselor about submitting a grievance” but that the counselor “told [him] that [he] would have to wait and file a grievance once [he returned] to RSP.” Id. On December 3, 2019, the Central Office denied the appeal. Id. at 5. The response did not reference Black's transfer on August 21, 2019, his contention regarding what he was told by the ASMP counselor, or the SOP's allowance for out-of-time grievances for good cause. Instead, it simply noted the ten-day deadline for filing grievances, and concluded:
You stated the incident happen[ed] ¶ 8-16-19, however you filed your
grievance on 9-30-19. This grievance was filed out of time. Based on this information, this grievance is denied.Id. Black contends he complied with the GDC grievance procedure by “timely” filing a grievance and appeal. Pl.'s Resp. to Mot. for Summ. J. 2, ECF No. 55. He argues his grievance was timely because he had “good cause” for filing it outside the ten-day time limit. Pl.'s Aff. in Opp'n to Summ. J. 4.
It is not clear if Black contends he exhausted his administrative remedies or that they were rendered unavailable by the rejection of his grievance as untimely. There is no factual dispute that Black's grievance was not considered on the merits. The Eleventh Circuit has held that “the PLRA's exhaustion requirement does contain a procedural default component” wherein “[p]risoners must timely meet the deadlines or the good cause standard of Georgia's administrative grievance procedures before filing a federal claim.” Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005). Here, Black implicitly invoked the good cause exception for filing an out-of-time grievance at the administrative level and was rejected.
Black's grievance did not explicitly ask for a good cause waiver, but as the form included a section for the inmate to explain why his grievance was filed outside the ten-day time limit, the clear implication is that completing this portion of the form invokes the good cause exception.
The question that the Eleventh Circuit has not explicitly addressed is whether a district court can reject a prison official's finding that the GDC's good cause standard has not been met. The Supreme Court has emphasized, however, that “it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. Here, although not explicitly stated, prison officials apparently concluded that Black was not entitled to a good cause waiver of his untimely grievance. As has been stated:
“Courts must give deference to prison officials regarding the interpretation and application of their own grievance procedures so long as the procedures provide inmates with a meaningful opportunity to present grievances, ” and provided that the application of the grievance rules was not “clearly erroneous, arbitrary or intended to prevent plaintiff from exercising his right of access to the courts.”Stephens v. Corizon, LLC, No. 3:20-cv-70-PDB, 2021 WL 2981317, at *8 (M.D. Fla. July 14, 2021) (quoting Jones v. Frank, No. 07-cv-141-BBC, 2008 WL 4190322, at *3 (W.D. Wis. Apr. 14, 2008)). As Black was not transferred from RSP until five days after the incident, and his grievance was not filed until approximately six weeks later, the Court cannot conclude that the GDC's rejection was arbitrary or capricious or intended to prevent him from exercising his right of access to the courts. Therefore, the Court concludes that Black did not exhaust GDC's administrative remedies.
Nevertheless, Black's argument raises a factual dispute as to whether the GDC's grievance procedure was available to him. Thus, the Court will proceed to the second step of the Turner analysis and “make specific findings in order to resolve the disputed factual issues related to exhaustion.” Turner, 541 F.3d at 1082; see Jenkins v. Sloan, 826 Fed.Appx. 833, 839 (11th Cir. 2020) (per curiam) (directing district courts to apply “the two-step Turner test when addressing the question of exhaustion and the availability of the grievance process”). “In terms of a defendant's initial showing, Turner only requires a defendant to show a remedy is ‘generally available.'” Daker v. Owens, No. 6:14-cv-47, 2021 WL 725668, at *5 (S.D. Ga. Feb. 22, 2021) (quoting Wright v. Ga. Dep't of Corr., 820 Fed.Appx. 841, 845 (11th Cir. 2020)), recommendation adopted by 2021 WL 1175213 (S.D. Ga. Mar. 26, 2021). A defendant need not show that “a remedy was available to [a plaintiff] practically speaking.” Wright, 820 Fed.Appx. at 845. Once the defendant's burden is met, “the burden of going forward shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was subjectively and objectively unavailable to him.” Geter, 974 F.3d at 1356 (internal quotation marks and citation omitted).
Here, there is no dispute that administrative remedies were generally available at RSP. Plaintiff, however, suggests the remedies were not available to him because he was transferred to the hospital five days after the incident occurred. Pl.'s Aff. in Opp'n to Summ. J. 1-2. Further, he testified in his deposition that he did not file a grievance in the five days he was at RSP following the incident because he “was in so much pain.” Pl.'s Dep. 64:24-65:3. He also argues that he requested a grievance form while he was at ASMP but was told that he would have to file a grievance when he returned to RSP. Pl.'s Aff. in Opp'n to Summ. J. 2. Finally, he asserts that in rejecting his untimely grievance, RSP officials “totally failed to adhere to the basic requirements of the SOP[] for the processing and disposition of the grievance and appeals.” Id. at 4. Black's arguments appear to implicate the first and third circumstances of unavailability identified in Ross.
The Court concludes that Black has failed to meet his burden of showing that an administrative remedy was subjectively or objectively unavailable to him. The Court recognizes that there may be some circumstances where physical or mental incapacitation can render an administrative remedy subjectively and objectively unavailable if the inmate is not able to meet the filing deadlines and prison officials are not willing to allow late filing. See Mason v. Corizon, Inc., No. 6:13-cv-06110-SOH-MEF, 2015 WL 10434528, at *5 (W.D. Ark. Dec. 17, 2015) (“The Fifth, Sixth, and Seventh Circuits currently recognize an exception to grievance filing deadlines when an inmate is physically or mentally incapacitated.”), recommendation adopted by 2016 WL 868835 (W.D. Ark. Mar. 7, 2016). In this case, though, the Court finds that Black's condition did not render him incapable of timely filing a grievance. By his own admission, Black was able to walk “half a mile or a mile” to the medical unit on August 17, 2021. Pl.'s Dep. 42:12-18. Further, while he testified that he was in pain, he also testified that he was seen in the medical unit on August 19, 2021, given pain medication, and allowed to return to his dorm. Pl.'s Dep. 53:12-23. Thus, while he was clearly in discomfort, he was not incapacitated, and he had two days prior to being transferred to the hospital on August 21, 2019, to file a grievance.
Moreover, according to the SOP, an inmate may file a grievance pertaining to an incident occurring at another facility. Rayburn and Hedden Ex. 4, at 17. Black was transferred to ASMP on August 26, 2021, which was within the ten days to file a grievance related to the incident with Hedden on August 16th and with Rayburn and Crawford on August 17th. Pl.'s Aff. in Opp'n to Summ. J. 2. Black alleges that he asked a counselor at ASMP for a grievance form, but he does not provide her name, only a vague description of her being a “white, stubby-like lady” in her early forties. Pl.'s Dep. 67:1-4. Defendants raised the exhaustion defense in their answers, and Black was given the opportunity to conduct discovery. Rayburn and Hedden Answer 1, ECF No. 14; Crawford Answer 1, ECF No. 15. However, he does not show that he made any effort to ascertain the identity of this counselor. Additionally, Black does not specify when in the approximately four weeks at ASMP that he requested a grievance form or even indicate that his intent was to file a grievance within the ten-day window or as close thereto as possible. This is significant because the longer Black waited after his arrival at ASMP to request a grievance form, the less convincing is his arguments as to both availability and good cause. Again, the burden of proving subjective and objective unavailability is on Black. Because he has failed to meet that burden, the Court recommends dismissal for failure to exhaust.
Black testified that he was “sedated with medication” while he was at ASMP, but he has not produced medical records to show that he lacked the mental faculties to pursue a grievance. Pl.'s Dep. 67:5-16. His ability to recall numerous other details about events subsequent to his injury indicates that did have such capacity.
CONCLUSION
For the reasons explained above, it is recommended that Defendants' motions for summary judgment (ECF Nos. 49, 51) be granted and that Plaintiff's complaint be dismissed without prejudice for failure to exhaust his administrative remedies. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.