Opinion
5:22-cv-249-MTT -CHW
07-20-2023
MARCUS JACKSON, Plaintiff, v. LAWRENCE WHITTINGTON, Defendant.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle United States Magistrate Judge
In this pro se civil rights action, Plaintiff Marcus Jackson, a state inmate, seeks relief under 42 U.S.C. § 1983 regarding his confinement in Wilcox State Prison. (Doc 1). He alleges that Defendant Warden Whittington has been deliberately indifferent to his safety by allowing the prison to be understaffed and leaving inmates without supervision for long periods of time. Defendant Warden Whittington has filed a motion to dismiss, primarily citing Plaintiff's failure to exhaust. (Doc. 15). Plaintiff contends in response that he exhausted but also argues that the administrative remedies were unavailable to him. (Docs. 1, 19, 25). Because the record shows that such remedies were available and that Plaintiff did not properly exhaust them before bringing this action, it is RECOMMENDED that Defendant's motion to dismiss (Doc. 15) be GRANTED and that Plaintiff's claims be DISMISSED.
BACKGROUND
Plaintiff signed and dated his complaint on May 31, 2022, alleging several constitutional violations regarding his incarceration at Wilcox State Prison's (WSP). (Doc. 1). The complaint was not received for filing until July 5, 2022. (Id.) Following screening of Plaintiff's initial complaint under 28 U.S.C. § 1915A, the Court allowed Plaintiff to proceed on his deliberate indifference to safety claims against Defendant. (Doc. 6).
Defendant moves to dismiss, arguing that Plaintiff failed to exhaust his claims before bringing suit. (Doc. 15). Defendant also argues that any claims for money damages are barred against him in his official capacity. (Id.) In his response, Plaintiff argues that the administrative remedies at WSP operate as a dead-end and are unavailable, thus excusing any failure to exhaust. (Doc. 19). Plaintiff was permitted to file a surreply (Doc. 24), in which he clarifies that he is only suing Defendant in his individual capacity and further argues that he was prevented from exhausting his administrative remedies. (Doc. 25).
The Exhaustion Requirement
The Prison Litigation Reform Act (PLRA) requires prisoners to exhaust available administrative remedies before bringing an action with respect to prison conditions under 42 U.S.C. § 1983, or any other federal law. 42 U.S.C. § 1997e(a). Exhaustion in this context means proper exhaustion: prisoners must “complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in a federal court.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). The exhaustion requirement is “designed to eliminate unwarranted federal-court interference with the administration of prisons” by “seek[ing] to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008).
The Eleventh Circuit's Turner opinion establishes a two-step process for reviewing motions to dismiss based on a prisoner's failure to exhaust. A reviewing court first “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 version of the facts as true. If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed.” Id. at 1082. Second, if the complaint is not dismissed under step one, “the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion. .. .Once the court makes findings on the disputed issues of fact, it then decides whether under those findings the prisoner has exhausted his available administrative remedies.” Id. at 108283 (internal citations omitted).
Grievance Procedure
The grievance procedure applicable in this case is set by the Georgia Department of Corrections (GDOC) Standard Operating Procedure No. 227.02. (Doc. 15-3). Under that procedure, prisoners must follow a two-step process by first filing an “original grievance” within 10 days of the grievable issue. (Id. at 8). Prisoners may file outside of the 10-day window if they show good cause. (Id.). The original grievance is then screened by prison staff, and typically either rejected or accepted for processing. (Id. at 9). The grievance procedure further provides that a response of some kind is due within 40 days of the date of a grievance's submission, with the possibility of a 10-day extension on written notice. (Id. at 11). On expiration of the response period or on the prisoner's receipt of a response, the prisoner must proceed to step two by filing a “central office appeal” within seven days. (Id. at 14). The grievance procedure then contemplates a 120-day period in which the Commissioner may give a response. (Id. at 15). The grievance policy itself does not list any specific detail required for a grievance. See generally (Id.)
ANALYSIS
Defendant moves to dismiss Plaintiff's deliberate indifference to safety claims. (Doc. 15). He argues that because Plaintiff did not fully exhaust before he originally filed suit, he failed to exhaust his available administrative remedies. (Id.) In his complaint, Plaintiff alleged that he filed a grievance and exhausted (Doc. 1), but now he argues that he should be relieved from having to exhaust because the grievance process was unavailable under Ross v. Blake, 578 U.S. 632 (2016). He contends that the policy operated as a dead end (Doc. 19) and that he was kept from exhausting due to threats and staff unavailability. (Doc. 25). As explained below, the record shows that the grievance process was available to Plaintiff and that Plaintiff failed to exhaust that process before filing suit.
1. Failure to Exhaust
In considering whether dismissal for failure to exhaust is appropriate under Turner's step one, a court must first consider all the facts alleged in the complaint and construe them in favor of Plaintiff when the facts conflict. In his complaint Plaintiff alleges generally that he exhausted all available administrative remedies and, alternatively, to the extent that he did not exhaust, that he should be excused from the requirement because the grievance process was unavailable. (Docs. 1, p. 4; 19; 25). When the record is construed in Plaintiff's favor, then, his claims survive under step one of Turner and the analysis moves on to Turner's second step. Under Turner's second step, any disputed facts must be examined to determine if the administrative remedies were available and, if they were, whether Plaintiff exhausted those available administrative remedies prior to filing suit.
In support of his motion to dismiss for failure to exhaust, Defendant has provided copies of Plaintiff's applicable grievances and a declaration from Jennifer Wilson, who is the Chief Counselor and Grievance Coordinator at WSP. (Doc. 15-3). Plaintiff's grievance history log shows that he filed four grievances while at WSP, one in 2017 and three in 2022. (Doc. 15-4). Defendant provided the three 2022 grievances, and Plaintiff's grievance history shows that none of the grievances was exhausted. (Docs. 15-4, 15-5, 15-6, 15-7).
Plaintiff filed Grievance No. 338939 on April 20, 2022, complaining that he was involuntarily placed in protective custody, that lack of staff rounds caused him mental anguish, that he feared being sprayed or tasered by staff, and that he had been threatened with loss of store privileges. (Doc. 15-5, p. 2). Under the requested resolution, Plaintiff wrote “I'm exhausting all my remedies at this time.” (Id.) The grievance was rejected on June 15, 2022, because it grieved more than one issue and raised a non-grievable housing issue. (Id., p, 1, 3). Plaintiff acknowledged the decision on June 18, 2022. The grievance was not appealed. (Doc. 15-4).
In Grievance No. 340441, submitted on June 6, 2022, Plaintiff explained that he had recently learned that months earlier a staff member and inmate had surrounded his door with intent to do him harm. (Doc. 15-6, p. 3). Plaintiff stated that at the time he thought he was crazy but now he understood that he was correct. (Id.) Plaintiff again stated that that he was exhausting his remedies “at this time.” (Id.) The grievance was rejected on July 28, 2022, as being out of time and lacking enough information to warrant an investigation. (Id., p, 1-2). Plaintiff did not appeal this grievance. (Doc. 15-4).
Plaintiff filed Grievance No. 340440 on June 6, 2022,complaining that his request for his medical records had been denied and questioning treatment for a communicable disease Plaintiff believes he has. (Doc. 15-7). The grievance was denied on July 21, 2022, because no record request had been received. (Id.) Plaintiff did not appeal the grievance. (Id.; Doc. 15-4).
Plaintiff's grievance history shows that this grievance was filed March 6, 2022. (Doc. 15-4). Ms. Wilson explained that the grievance was actually filed on June 6, 2022 (Doc. 15-2, ¶ 11), which is also born out by the grievance record itself. (Doc. 15-7).
A. The prison grievance process was available to Plaintiff
In his complaint Plaintiff contends that he exhausted his remedies because he had filed a grievance but received no response. (Doc. 1, p. 4). In response to Defendant's motion to dismiss,
Plaintiff now argues that he was not able to appeal because of inadequate staffing. (Doc. 19). Because staff was unavailable to accept his appeal, he argues, he should be excused from the exhaustion requirement. (Id.) Plaintiff also alleges that WSP's grievance process operates as a dead end and is thus unavailable under Ross v. Blake, 578 U.S. 632 (2016). (Id.) In a surreply, Plaintiff alters his argument to suggest that staff unavailability and unspecified threats kept him from exhausting. (Doc. 25).
Following Ross, courts have outlined three different ways a plaintiff can show that administrative remedies are unavailable: (1) by showing that the process is a dead end; (2) by showing that the process is too difficult to be of use; or (3) by showing that administrators acted to thwart use of the process:
The modifier “available” means that an administrative remedy must provide the possibility of some relief. Id. at 643. There are three kinds of circumstances that make an administrative remedy unavailable. Id. First, an administrative remedy is unavailable when the administrative procedure operates as a simple “dead end,” with officers unable or consistently unwilling to provide any relief to aggrieved inmates. Id. For example, if a handbook required inmates to submit grievances to a particular office and the office disclaims the capacity to consider petitions or if officials have authority but decline to exercise it, then it is unavailable. Id. Second, a remedy is unavailable when an administrative scheme is so opaque that it is incapable of use. Id. The mechanism may exist to provide relief, but no ordinary prisoner can discern or navigate it. Id. at 643-644. Third, a remedy is unavailable when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, and intimidation. Id. at 644.McDowell v. Bowman, 2022 WL 4140331, at *3 (11th Cir. Sept. 13, 2022) (citing Ross, 578 U.S. 632).
In this case, Plaintiff asserts that the grievance process is unavailable under the first and third Ross exceptions because the process operated as a simple dead end and because he was threatened or staff shortages otherwise stifled Plaintiff's attempts to exhaust. The record does not support Plaintiff's arguments.
First, Plaintiff argues that the grievance process operated as a simple dead end because no staff or grievance forms were available in his building. The record shows, to the contrary, that forms were available to Plaintiff because he did file three grievances around the time frame of the matters raised in his suit. Moreover, Plaintiff's staff unavailability argument fails because his grievances were processed, and, therefore, the grievance process still provided the possibility of relief and was not a dead end or futile. Even when a process might appear futile, exhaustion is still required under the PLRA. Garcia v. Obasi, 2022 WL 669611, *4 (11th Cir. March 7, 2022) (citing Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000)).
Plaintiff does not specify which grievance he was allegedly kept from appealing, but the timeline suggests it was Grievance No. 338939. This grievance was not rejected until June 2022. To the extent that Plaintiff attempts to suggest the grievance process was futile because he had not received a response by the time he filed suit, courts in the Eleventh Circuit have specifically rejected similar futility arguments. In Garcia, the plaintiff argued that prison officials essentially waived an exhaustion defense because they had not complied with grievance policy deadlines. Garcia, 2022 WL 996611 at * 4. The court found that the warden's failure to provide a timely response did not make a central appeal unavailable. Id.; (Doc. 15-3, p. 14). The Garcia Court reiterated that exhaustion of the grievance process- from submission of a formal grievance through appeal to the central office- was a precondition before filing suit under the PLRA. Garcia, 2022 WL 996611 at *5; see also Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (explaining “[t]o exhaust administrative remedies in accordance with the PLRA, prisoners ‘must properly take each step within the administrative process.'”) (internal citations omitted)). The Eleventh Circuit also considered a “dead end” argument in Wright v. Georgia Department of Corrections, 820 Fed.Appx. 841 (11th Cir. 2020). Even though the plaintiff in Wright had waived his unavailability argument, the court found that he had provided no factual support for his arguments that the process was a dead end because the wardens never approved a medical grievance. Thus, the court upheld the district court's dismissal for failing to exhaust. Plaintiff has likewise failed to support his “dead end” argument.
Plaintiff also argues that he should be excused from exhausting under the third Ross exception because a lack of staff and other unspecified threats thwarted him from using the grievance process. To show that administrative remedies were unavailable due to threats of retaliation by prison officials, a plaintiff must show that “(1) the threat actually deterred the inmate from lodging a grievance or pursuing part of the grievance process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.” Montalban v. Samuels, 2022 WL 4362800, at *2 (11th Cir. Sept. 21, 2022) (citing Turner, 541 F.3d at 1085). Plaintiff states that prison staff thwarted him from filing grievances by simply being unavailable. (Docs. 19, 25). He also provided a letter from his mother to show that staff knew Plaintiff was being threatened at the prison. This letter is from December 2022, well after Plaintiff stated he attempted to exhaust, and it cannot serve to show that the grievance process was unavailable earlier in the year. Even if it could, this letter does not support that Plaintiff was kept from the grievance process by staff or the threats. Neither the letter nor Plaintiff's responses provide any detail about the nature of any threat or who made the threat. There is nothing in the record to suggest that Plaintiff was actually deterred from filing a grievance or that the process operated as a dead end and nothing to indicate that the third Ross exception applies to Plaintiff's case.
B. Plaintiff failed to exhaust the available administrative remedies as required.
As the administrative process was available to Plaintiff, the Court must next examine the record to determine whether Plaintiff exhausted as required under the PLRA. The PLRA requires exhaustion prior to filing suit. 42 U.S.C. § 1997e(a). The filing of Plaintiff's complaint serves as the marker for when Plaintiff was required to complete exhaustion of available administrative remedies as required. Harris v. Garner, 216 F.3d 970 (11th Cir. 2000). In Harris, the Eleventh Circuit, sitting en banc, considered what the word “brought” means in the context of the PLRA requirements and an amended complaint. The Court concluded that “‘brought' means ‘commenced.'” Id. at 974. Amending or supplementing the complaint attempting to show exhaustion which was not complete when the action commenced will not suffice to meet the exhaustion requirement. Id. at 982-984 (discussing Fed.R.Civ.P. 15 and other examples of where amendment will not cure jurisdictional requirements needed to bring suit). Pursuant to Harris, the entire administrative process, from initial grievance to the appeal outcome, needed to have been completed before Plaintiff filed this action on May 31, 2022. (Doc. 1). Even if the Court interpreted the case as being filed on July 5, 2022, when the Clerk received it, Defendant would still be entitled to dismissal for Plaintiff's failure to exhaust.
Plaintiff did not properly exhaust prior to filing suit. Of the grievances Plaintiff filed in 2022, Plaintiff filed only one before he signed and dated his complaint, Grievance No. 338939. While he received the warden's response before July 5, 2022, using this date as the day his suit was commenced does not save Plaintiff because he did not appeal the grievance. Even if he had appealed, the full process would not have been completed by July 5, 2022. Therefore, the full grievance process was not and could not have been completed prior to commencing suit as required, no matter which date the Court construes as Plaintiff's filing date. Because Plaintiff did not exhaust his administrative remedies prior to filing suit as required by the PLRA, Plaintiff's complaint must be dismissed under the second step of Turner.
2. Plaintiff's claims for money damages are barred against Defendant in his official capacity under the Eleventh Amendment.
Defendant also moves to dismiss any money claims against him in his official capacity. To the extent that Plaintiff seeks to recover money damages against Defendant in his official capacity, such claims would be barred by the Eleventh Amendment and 42 U.S.C. § 1983. See generally, Kentucky v. Graham, 473 U.S. 159, 169 n. 17. Defendant was employed by the Georgia Department of Corrections at WSP when the incident underlying Plaintiff's claims occurred. The State of Georgia has not waived sovereign immunity, and Section 1983 was not meant to abrogate a state's Eleventh Amendment sovereign immunity. Plaintiff is therefore barred from suing Defendant in his official capacity for damages. Section 1983 itself also precludes any official-capacity claims against Defendant for nominal damages because the state is not a person for under the meaning of Section 1983. Moody v. City of Delray Beach, 609 Fed.Appx. 966, 967 (11th Cir. 2015) (quoting Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)). Section 1983 provides no remedy for the Plaintiff against Defendant in his official capacity.
CONCLUSION
Plaintiff failed to exhaust the administrative remedies available to him prior to commencing this action Based on the foregoing, it is RECOMMENDED that Defendant's motion to dismiss (Doc. 15) be GRANTED and that Plaintiff's claims be DISMISSED.
OBJECTIONS
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 thereof. Any objection is limited in length to TWENTY (20) PAGES. 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 further 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