Opinion
4:23-CV-19-CDL-MSH
01-22-2024
MICHAEL A. GLOVER, Plaintiff, v. Deputy Warden LETITIA BURKS, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court are Defendant Letitia Burks's motion for judgment on the pleadings (ECF No. 16) and Plaintiff Michael A. Glover's motion for judgment on the pleadings (ECF No. 23). For the reasons explained below, it is recommended that Burks's motion be granted, and Glover's motion be denied.
BACKGROUND
Glover's claim arises from his confinement at Rutledge State Prison (“RSP”), prior to his transfer to Phillips State Prison (“PSP”). Compl. 5, ECF No. 1. Glover alleges, in relevant part, that he was involved in an altercation in 2020 that permanently damaged his right eye. Id. at 11. He was originally scheduled to have surgery on his eye in 2020, but it was delayed by the Covid-19 pandemic. Id. While Glover says that he has seen an eye doctor for the injury to his eye four or five times within the last year, a nurse practitioner deemed his need for surgery to be “urgent,” but Burks did not schedule him for surgery. Id. at 11-12. Glover says that Burks transferred him to another facility “against medical advice” on July 12, 2022, to avoid incurring the cost of the surgery. Id. at 13, 15.
The Court received Glover's complaint on February 6, 2023 (ECF No. 1). After preliminary review, his Eighth Amendment deliberate indifference to a serious medical need claim against Burks was allowed to proceed for further factual development. Order & R. 12, May 31, 2023, ECF No. 5; Order, July 17, 2023, ECF No. 10 (adopting recommendation). Burks filed a motion for judgment on the pleadings on September 19, 2023 (ECF No. 16). Glover timely responded (ECF No. 19), and Burks filed a reply brief (ECF No. 20). Several months later, Glover filed a motion which is docketed as a motion for judgment on the pleadings (ECF No. 23), and Burks filed a timely response (ECF No. 24). Glover did not file a reply. Both motions are ripe for review.
Although the Court received the original complaint on February 6, 2023, Glover signed it on September 30, 2022. Compl. 16. “Under the prison mailbox rule, a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing.” United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012) (internal quotation marks omitted). “Unless there is evidence to the contrary, like prison logs or other records, we assume that a prisoner's motion was delivered to prison authorities on the day he signed it.” Id.
DISCUSSION
Burks moves for judgment on the pleadings, arguing Glover failed to exhaust his administrative remedies. Def's. Br. in Supp. of Mot. for J. on the Pleadings 3-8, ECF No. 16-1. The Court recommends granting Burks's motion, properly construed as a motion to dismiss. As a result of this recommendation, it is also recommended that Glover's motion be denied as moot.
I. 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 the 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 district court did not clearly err in determining 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).
Therefore, although Burks argues exhaustion in a motion for judgment on the pleadings, it will be treated as a motion to dismiss. Burks specifically raised exhaustion as a defense in her answer, so it is not waived. Def.'s Answer 2, ECF No. 14; see Black v. Camon, No. 7:06-cv-75-HL, 2008 WL 2119914, at *2 (M.D. Ga. May 19, 2008) (finding exhaustion was not waived and could be asserted in a motion for summary judgment because defendants raised it as a defense in their answer); see also Holland v. Moore, No. 5:16-cv-88-MTT-CHW, 2017 WL 7049112 at *3 (M.D. Ga. 2017), recommendation adopted by 2018 WL 547231 (M.D. Ga. Jan. 24, 2018), (“Although Defendant Moore raises the defense of failure to exhaust in a motion filed under Federal Rule of Civil Procedure 12(c), the motion is properly ‘treat[ed as a] motion . . . brought under Rule 12(b).'”) (alterations in original) (first citing Bryant, 530 F.3d at 1376; and then citing Brooks v. Warden, 706 Fed.Appx. 965 (11th Cir. 2017)).
A prisoner need only exhaust administrative remedies that are available. Ross v. Blake, 578 U.S. 632, 642 (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, 578 U.S. at 643-44. 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). District courts must use the two-step Turner analysis when addressing the availability of the grievance process. 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”).
II. RSP Administrative Procedures
Burks has submitted her own declaration to establish that administrative remedies were available to Glover at RSP. Burks Decl. ¶ 2, ECF No. 16-2. Burks's responsibilities include overseeing the grievance process at RSP and maintaining information and records regarding grievances. Id. According to Burks, RSP follows the Georgia Department of Corrections (“GDC”) Standard Operating Procedures (“SOPs”) regarding grievances. Burks Decl. ¶ 3.
The SOPs mandate that an inmate must follow a two-step process in order to exhaust his remedies: (1) file an original grievance no later than ten days from the date the inmate knew or should have known of the facts giving rise to the grievance; and (2) file an appeal to the Central Office. Burks Decl. Attachs. 15, ECF No. 16-2. An inmate is limited to two active grievances, and if an inmate with two active grievances files another, the grievance coordinator will advise the offender he may drop one of the two active grievances to pursue the new grievance. Id. at 13. After a grievance is filed, the grievance coordinator will screen the grievance and accept it for processing or recommend rejection of the grievance for one of the reasons enumerated in the SOPs, including raising a non-grievable issue, untimeliness, or raising more than one issue. Id. at 16. If a grievance is accepted, the warden has forty calendar days from the date the offender submitted the grievance to respond, though a one-time ten-day extension may be granted. Id. at 18. An inmate may file an appeal within seven days after the warden issues a decision or after the time allowed for the warden to decide expires. Id. at 21. The Commissioner has one hundred and twenty days within which to respond to a grievance appeal. Id. at 22. An inmate may also appeal a warden's rejection of a grievance. Burks Decl. Attachs. 17. With certain exceptions not applicable here, an inmate “may file a grievance about any condition, policy, procedure, or action or lack thereof that personally affects the [inmate].” Id. at 11-12.
Because Burks's declaration and exhibits were filed together as one document instead of separate attachments, the Court cites to Burks's exhibits by using the document number and electronic screen page number shown at the top of each page by the Court's CM/ECF software as opposed to any other page number that may appear on the exhibits.
III. Glover's Grievances
Glover filed five grievances during the relevant time period, but Glover appears to suggest only one is actually relevant to his claim in this case. While housed at RSP, Glover filed two grievances: Grievances 338448 and 340849. In Grievance 338448, Glover alleged that he was being harassed by an officer. Burks Decl. Attachs. 59. In Grievance 340849, Glover alleged that he was improperly placed in administrative segregation. Id. at 67. While housed at PSP, Glover filed three grievances: Grievances 343654, 348271, and 350714. In Grievances 343654 and 348271, Glover alleged issues with his mail at PSP. Id. at 77, 83. In Grievance 350714, Glover alleged that a doctor sent him to the wrong eye appointment on March 28, 2023. Id. at 92.
Of these five grievances, Glover appears to focus on Grievance 340849 because, in his response to the motion for judgment on the pleadings, Glover asserts that grievance included his claim against Burks, and it was exhausted because the Central Office did not timely respond to his appeal of the warden's denial. Pl.'s Resp. 4, ECF No. 19. Grievance 340849 was written by Glover on June 28, 2022, and filed on July 7, 2022. Burks Decl. Attachs. 46, 67; Compl. 3. Grievance 340849 was denied by the warden on September 7, 2022. Burks Decl. Attachs. 61. According to Burks, the warden's denial of Grievance 340849 was not appealed by Glover. Id. at 5. As previously noted, Glover claims he appealed Grievance 340849, but the Central Office did not timely respond. Pl.'s Resp. 4. Glover does, however, attach to his complaint a grievance appeal form that appears to have been completed by him, and is dated August 18, 2022. Compl. Attachs. 19, ECF No. 1-2. Notably, there is no grievance number listed on the appeal form, but Glover states that his grievance appeal “will also contain the true facts of . . . Burk's [sic] direct deliberate medical indifference to [his] urgent emergency medical need deemed so” by a nurse practitioner. Id. at 21.
IV. Analysis
Burks contends Glover failed to exhaust his administrative remedies because the grievances he filed at RSP and PSP did not pertain to the subject matter of his claim at issue here. Def.'s Br. in Supp. of Mot. to Dismiss 6-8. Burks notes, in relevant part, Grievance 340849 did not involve the subject matter of Glover's claim here and no Central Office appeal was submitted. Id. at 6. Further, Burks notes that Grievance 350714, which was filed at PSP, involved a complaint regarding Glover's eye, but it involved different actors and a March 28, 2023, incident, which is later than the 2022 incident at issue in this lawsuit. Id. at 6-7.
In his response to Burks's motion for judgment on the pleadings, Glover primarily argues the merits of his claim. Pl.'s Resp. to Mot. for J. on the Pleadings, ECF No. 19. He does, however, assert that he appealed the denial of Grievance 340849, and the Office of Professional Standards failed to respond on December 18, 2022. Id. at 4. In relevant part,
Burks replies that there is no evidence of Glover filing a grievance appeal on December 18, 2022. Burks Reply 2, ECF No. 20. The Court recommends that Burks's motion be granted for several reasons.
First, applying the Turner analysis to Glover's claim, the Court finds Glover's claim survives the first step and moves to the second step. In his complaint, Glover alleges he filed a grievance, did not receive a response, and that he appealed. Compl. 3-4. At the second step, however, the Court finds Glover did not exhaust his administrative remedies for his claim against Burks. None of the grievances in the record-including those submitted by Glover-reference his claim against Burks. The two grievances Glover filed at RSP address other issues: Grievance 338448 addresses harassment by an officer, and Grievance 340849 addresses Glover's placement in administrative segregation. As a result, these two grievances do not show Glover exhausted his administrative remedies. This conclusion is not altered by Glover's argument that the denial of Grievance 340849 was appealed with no response. Assuming, arguendo, Glover did appeal, the subject matter of Grievance 340849 did not pertain to Glover's claim against Burks.
Second, to the extent Glover asserts Burks transferred him to avoid incurring the cost of his eye surgery, see Compl. 13, 15, none of the grievances Glover filed at PSP pertain to his claim against Burks. Grievances 343654 and 348271 dealt with issues regarding Glover's mail at PSP. Grievance 350714 addressed an issue with Glover's eye appointment, but the eye appointment was on March 28, 2023. The events underlying Glover's claim against Burks occurred in 2022. As a result, Glover's three grievances filed while housed at PSP do not show he exhausted his administrative remedies. Accordingly, the Court finds Glover did not exhaust his administrative remedies.
While Glover does not explicitly allege the grievance process was unavailable to him, he does assert the Central Office did not respond to his appeal of Grievance 340849. Compl. 4; Pl.'s Resp. to Mot. for J. on the Pleadings 4. However, even if the Court assumes such a failure could constitute a Ross circumstance of unavailability, Glover has not shown that his administrative remedies were unavailable to him because-as noted herein-the grievance was unrelated to his claim against Burks.
Under the PLRA, exhaustion of administrative remedies is “a precondition to filing an action in federal court.” Varner v. Shepard, 11 F.4th 1252, 1260 (11th Cir. 2021) (quoting Higginbottom v. Carter, 223 F.3d 1259, 1260 (11th Cir. 2000)). Because the Court finds that Glover did not exhaust his administrative remedies prior to bringing this federal action, he has not met the PLRA's precondition to bringing an action in federal court. Accordingly, it is also recommended that Glover's motion for judgment on the pleadings be denied as moot.
CONCLUSION
For the reasons explained above, it is recommended that Defendant Letitia Burks's motion for judgment on the pleadings, treated as a motion to dismiss (ECF No. 16) be GRANTED, and that Plaintiff Michael A. Glover's motion for judgment on the pleadings (ECF No. 23) be DENIED as moot. 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. Any objection should be no longer than TWENTY (20) PAGES in length. See M.D. Ga. L.R. 7.4. 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, this 22nd day of January, 2024.