Opinion
5:19-cv-00457-TES-MSH
05-27-2021
TEO A. JAMISON, Plaintiff, v. Sheriff GARY LONG, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
The present action arises out of Plaintiff's former confinement at the Butts County Detention Center (“BCDC”). Plaintiff has filed a second recast complaint (ECF No. 21) seeking relief pursuant to 42 U.S.C. § 1983. Pending before the Court are Plaintiff's motion to amend (ECF No. 63), motion to raise state law claims (ECF No. 64), and motion to add defendants (ECF No. 65). Also pending are motions to dismiss filed by Defendant Long (ECF No. 40), Defendants Wrobel and Younger (ECF No. 44), Defendant Bell (ECF No. 47), and Defendant Kvistad (ECF No. 76). For the reasons explained below, it is recommended that Plaintiff's motions to amend and add defendants be granted and that his motion to raise state law claims be denied. It is also recommended that Plaintiff's deliberate indifference claims related to treatment of his finger be dismissed for failure to exhaust. It is recommended that Defendants' remaining grounds for dismissal be denied as moot in light of Plaintiff's amended complaint. Finally, it is recommended that Plaintiff be ordered to recast his amended complaint.
PROCEDURAL HISTORY
I. Original Complaint
The Court received Plaintiff's original complaint (ECF No. 1) on November 18, 2019. Plaintiff alleged that he had been deprived use of a cane while detained at BCDC, resulting in him suffering multiple falls. Comp. 2, ECF No. 1. In one such fall, Plaintiff alleged he suffered a broken finger that was not timely treated. Id. at 2, 8. As the complaint was not on the Court's standard § 1983 form, Plaintiff was ordered to recast his complaint using the standard form. Order 1, Nov. 19, 2019, ECF No. 6. He was notified that the recast complaint would “take the place of and supersede all allegations made in the original complaint” and that the Court would “not consider those facts contained in Plaintiff's recast complaint.” Id. at 2.
II. First Recast Complaint
The Court received Plaintiff's first recast complaint (ECF No. 11) on January 13, 2020. Plaintiff used the standard § 1983 form and identified as defendants the United States Marshal's Service (“USMS”), BCDC, Southern Correctional Medicine (“SCM”), Nurse Melinda, Nurse Shanae, Dr. Peter Wrobel, Captain Weaver, Captain Lee, Sheriff Gary Long, Major Gandee, Chief White, Sergeant Henderson, and Sergeant Noun. 1st Recast Compl. 1, 4, ECF No. 11.
The Court reviewed the first recast complaint and noted that in the statement of claim portion of the standard form, Plaintiff made only general allegations and referred the Court to a separately docketed motion for judgment (ECF No. 12). Order 2, May 7, 2020, ECF No. 20. The Court further observed that while Plaintiff had “arguably alleged facts showing that he had a need for a cane, without which he was prone to falling, putting his health and safety at risk” and also “allege[d] facts suggesting that he had a serious medical need with regard to his finger injury, which ultimately led to Plaintiff losing the use of that finger because of delays in treatment, ” his allegations were “general and vague concerning the deliberate indifference of any of the named defendants” and failed to “show which, if any, of the defendants were deliberately indifferent to his safety and his medical needs.” Id. at 3.
The Court, therefore, again ordered Plaintiff to recast his complaint. Id. at 4. The Court instructed Plaintiff that he must identify the defendants against whom he wished to make claims and “provide specific factual allegations” to support his claims. Id. To aid Plaintiff in doing so, the Court propounded six questions that it recommended Plaintiff answer for each defendant. Id. at 4-5. Finally, the Court again notified Plaintiff that the recast complaint “would take the place of and supersede the previous filings in this action” and that the Court would “not look back to the original or recast complaints to determine whether Plaintiff has stated a claim.” Id. at 5.
III. Second Recast Complaint
The Court received Plaintiff's second recast complaint (ECF No. 21) on June 2, 2020. Attached to the form § 1983 complaint was a six page handwritten “Statement of Claim.” 2d Recast Compl. 7-12, ECF No. 21. In addition, Plaintiff also attached responses to the six questions propounded by the Court as to the following six individuals: Kimberly Kvistad, Sergeant Bell, Dr. Wrobel, Asia Bennett, Donna Younger, and Sheriff Long. Id. at 13-24. The following is a summary of Plaintiff's allegations in his second recast complaint.
A. Summary of Allegations
Plaintiff asserts that he was detained by USMS on April 2, 2018. Id. at 7. Two weeks later, USMS contracted with BCDC to house Plaintiff. Id. From March 1, 2019, through November 1, 2019, while Plaintiff was housed at BCDC, the facility was severely understaffed, having only five officers and one certified nursing assistant to care for over three hundred inmates on the weekends. Id.
Medical services for BCDC were contracted through SCM, which required its employees to have only minimal medical qualifications. Id. The primary job of SCM's nurses at BCDC was to pass out medicine to the inmates. 2d Recast Compl. 7. SCM operated from 7:00 a.m. to 5:00 p.m. seven days per week, but SCM doctors and nurse practitioners visited BCDC only on Wednesdays, two to four times per month. Id. at 7-8. SCM contracted with doctors, nurse practitioners, and x-ray services through a third-party system. Id. at 7. The x-ray services were scheduled only on an as-needed basis, and it regularly took two weeks before services were performed following a request. Id. at 8.
On April 27, 2019, Plaintiff tripped and fell at BCDC. Id. When he fell, Plaintiff heard a loud popping sound and felt severe pain in his left hand, which immediately began swelling and bruising, and he lost mobility in his hand. Id. Plaintiff promptly reported the injury to Officer Smith, who told Plaintiff that the SCM nurse was gone for the day and no other medical staff was there to help Plaintiff. 2d Recast Compl. 8. Officer Smith told Sergeant Bell-the officer in charge-that Plaintiff needed to speak to him. Id. According to Plaintiff, Bell had the authority to have Plaintiff taken to the local emergency room for treatment, but Bell told Plaintiff that he could not authorize Plaintiff to be taken to the hospital. Id. Plaintiff then submitted a request to be treated by SCM. Id.
In his recent amended complaint, Plaintiff alleges he fell on April 15, 2019. Pl.'s Mot. to Amend Attach. 2, at 4, ECF No. 63-2.
The next morning at pill call, Plaintiff reported his injury to Younger-a nurse employed by SCM-who agreed with Plaintiff that his finger appeared to be broken but said that she could not treat his injury because that “was out of her pay grade.” Id. Plaintiff next called his wife and asked her to call Kvistad-who Plaintiff alleges was the director of USMS-and Major Gandee of BCDC to report his injury and try to get him medical attention. Id. Plaintiff contends that his wife personally spoke to Kvistad on this and other occasions about Plaintiff's medical care at BCDC. 2d Recast Compl. 14.
Thereafter, Major Gandee, Sheriff Long, and Sergeant Cox all came to Plaintiff's cell to inspect his injury. Id. at 9. Sheriff Long did not dispute that Plaintiff's finger was broken, but he said that because Plaintiff was a detainee of the USMS, Long had to get permission before he could transport Plaintiff offsite. Id. Although Plaintiff insisted that his finger needed emergency treatment, Long apparently did not attempt to get such permission, instead telling Cox to make sure that someone from SCM looked at Plaintiff's injury. Id.
Plaintiff asserts that Long's statement that he had to have permission to transport Plaintiff was due to a policy instituted by Kvistad prohibiting facilities from taking inmates offsite for medical care. Id. at 13. Plaintiff further contends that it was Kvistad's policy, as well as the policy of Asia Bennett, the director at SCM, that facilities not be required to maintain 24-hour medical services. Id. at 13, 19.
On April 29, 2019, two days after the fall, Plaintiff was taken to medical, where Younger tried to make a splint for Plaintiff's finger using a tongue depressor and medical tape. 2d Recast Compl. 9. Plaintiff alleges that Younger's attempt to assist Plaintiff in this way resulted from Bennett's policy of having unqualified medical staff treat injuries in BCDC. Id. at 19.
Nurse Teresa was present when Younger tried to make the splint. Id. at 9. Nurse Teresa said that she would email Dr. Wrobel to tell him that Plaintiff needed to be sent offsite to be fitted for a specialty splint because Plaintiff was in pain and could not bend his finger or grasp any objects with that hand. Id. Dr. Wrobel denied the request, telling Nurse Teresa that Plaintiff would not be taken to the emergency room under any circumstances. Id. Instead, he said that he would see Plaintiff the next time he was at BCDC, which was on May 5, 2019-a week after the injury occurred. Id. At that time, Plaintiff explained that he was in extreme pain and needed to go to the hospital, but Dr. Wrobel said that he would make a treatment decision once an x-ray had been taken. 2d Recast Compl. 9. The x-ray was completed five days later, on May 10, 2019. Id. Nine days later, on May 19, 2019, Dr. Wrobel confirmed that Plaintiff's finger was fractured and referred him to Resurgens Orthopedics. Id. In June, Plaintiff asked Nurse Teresa about seeing the hand specialist, and she told Plaintiff that she was having trouble getting the appointment approved. Id. at 10. In particular, she said that BCDC was waiting on a payment from USMS to cover two sheriff's officers' expenses to transport Plaintiff plus the cost of the initial appointment. Id. Nurse Teresa also said that because BCDC staff had failed to file the proper incident reports with USMS, she was having trouble processing the claim with Kvistad. Id. Plaintiff told Nurse Teresa that he had medical insurance and could pay for the appointment if necessary because he just wanted to be adequately treated. 2d Recast Compl. 10.
Plaintiff alleges that while he was at BCDC, he was considered a nuisance because he constantly complained about the medical treatment. Id. In this regard, Plaintiff had health issues which required him to use a cane and need other medical accommodations. Id. He repeatedly filed grievances and “spoke to all defendants” about his treatment. Id. Captain Weaver and Captain Lee continuously defied doctors' treatment orders as to Plaintiff's need for a cane and medical housing. Id. Additionally, Captain Lee and Officer Blackmon punished Plaintiff by putting him in solitary confinement when he complained about the lack of medical care. Id. After this happened, Plaintiff took his grievances only to Chief White, who said that he was going to help but took no action. 2d Recast Compl. 10. Plaintiff was finally taken to the orthopedic doctor in July 2019, at which point, he had an MRI. Id. The orthopedic doctor then informed Plaintiff that he would need surgery to remove bone fragments from the joint and place a small rod in his finger to allow the bone to fuse back together. Id. The doctor also told Plaintiff that he could have been effectively treated without surgery had he been brought in right away. Id.
Plaintiff notes that Nurse Teresa was working with Kvistad to obtain medical payments and schedule appointments for Plaintiff, but that Nurse Teresa ultimately resigned from SCM. Id. at 11. In doing so, Nurse Teresa complained that SCM was understaffed, and Captain Lee was irresponsible. Id. Notably, when Nurse Teresa would schedule medical appointments for Plaintiff, Lee would fail to set up transportation, prolonging Plaintiff's pain and suffering. 2d Recast Compl. 11. Lee apparently procrastinated because he thought that Plaintiff was being transferred into federal custody, and because of these delays, Plaintiff missed three appointments with the orthopedic doctor. Id.
After Plaintiff's stay at BCDC was extended, Plaintiff underwent surgery in September 2019, five months after his injury occurred. Id. Following the surgery, the orthopedic doctor informed Plaintiff that because his finger had not been properly set or put in a brace, it healed out of alignment. Id. As a result, the only way that Plaintiff will ever be able to grasp objects or close his left hand again is if he has that finger amputated. Id.
B. Preliminary Review of Plaintiff's Second Recast Complaint
Upon receipt of Plaintiff's second recast complaint, the Court conducted a preliminary review as required by 28 U.S.C. § 1915A(a). Order & R. 2-17, Aug. 5, 2020, ECF No. 23. As noted above, in response to the questions propounded by the Court in its May 7, 2020, Order to recast, Plaintiff only provided answers as to Kvistad, Bell, Dr. Wrobel, Bennett, Younger, and Sheriff Long. 2d Recast Compl. 13-24. Further, Plaintiff identified only these six individuals in the portion of the pre-printed § 1983 complaint form instructing the Plaintiff to list “each defendant in this lawsuit.” Id. at 4. Thus, although Plaintiff mentioned numerous people in his second recast complaint and included Major Gandee, Chief White, Captain Weaver, Captain Lee, Sergeant Cox, and Officer Smith in the caption to his “Statement of Claim, ” the Court construed Plaintiff's second recast complaint as naming only Kvistad, Bell, Dr. Wrobel, Bennett, Younger, and Sheriff Long as defendants. Id. at 7; Order & R. 8, Aug. 5, 2020, ECF No. 23. The Court further construed Plaintiff's second recast complaint as asserting claims against these individuals for deliberate indifference to a serious medical need, negligence, and medical malpractice. Id. at 8. Finally, while Plaintiff's second recast complaint referenced denial of a cane, his responses to the questions posed by the Court did not include allegations of deliberate indifference for denial of a cane but instead only addressed treatment of his broken finger. 2d Recast Compl. 13-24.
In reviewing Plaintiff's claims, the Court first observed that Plaintiff may have intended to raise claims against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1). Order & R. 8, Aug. 5, 2020. However, because it did not appear that Plaintiff had provided USMS with written notice of his claim as required by 28 U.S.C. § 2675(a), the Court recommended that any claim under the FTCA be dismissed. Id. at 8-9. The Court then recommended dismissal of Plaintiff's state law claims for medical malpractice and negligence because he failed to attach an expert affidavit as required for medical malpractice actions in Georgia or allege that he complied with Georgia's ante-litem notice requirements for tort claims against a state government entity and its officers and employees. Id. at 9. Finally, the Court reviewed Plaintiff's deliberate indifference to a serious medical need claims and concluded that his allegations against Kvistad, Bell, Dr. Wrobel, Younger, and Sheriff Long were sufficient to proceed for further factual development. Id. at 17. The Court, however, recommended that his claims against Bennett be dismissed. Id. Plaintiff filed no objections to the Court's recommendation, and on August 25, 2020, it was adopted and made the order of the Court. Order 1, ECF No. 26.
III. Subsequent Procedural History
Sheriff Long, Dr. Wrobel, and Younger moved to dismiss (ECF Nos. 40, 44) the claims against them on October 5, 2020. Bell moved to dismiss (ECF No. 47) on October 23, 2020. On October 28, 2020, the Court granted Plaintiff's motion for an extension of time (ECF No. 50) to file responses to Defendants' motions, giving him until December 2, 2020, to file his responses. Text-Only Order, ECF No. 51. On December 9, 2020, the Court granted Plaintiff a second extension, allowing him until February 1, 2021, to file his responses. Text-Only Order. Not having received Plaintiff's responses to the motions to dismiss, the Court issued a report and recommendation (“R&R”) that Defendants' motions be granted. R. & R. 1, Feb. 22, 2021, ECF No. 62.
Following issuance of its R&R, the Court received an envelope from Plaintiff on March 10, 2021, containing numerous documents, including responses to Defendants' motions to dismiss. The responses to the motions to dismiss were not dated or signed, though a signed cover letter dated January 28, 2021, was included with the multitude of documents. See, e.g., Pl's Mot. to Amend Attach. 1, ECF No. 63-1. In this letter, Plaintiff stated, “Please excuse me, I intended to file for another extension of time.” Id. The envelope had no postmark date. See, e.g., Pl.'s Resp. to Def. Long's Mot. to Dismiss Attach. 1, ECF No. 66-1. Also included in the envelope was Plaintiff's motion to amend his complaint (ECF No. 63), motion to raise state law claims (ECF No. 64), and motion to add Chief White, Captain Lee, Captain Weaver, Officer Blackmon, and “Nurse Tracey” as defendants (ECF No. 65). On March 12, 2021, the Court received Plaintiff's objections to the R&R (ECF No. 62), wherein Plaintiff stated he mailed his responses to the Defendants' motions to dismiss on January 28, 2021. Pl.'s Obj. to R. & R. 1, ECF No. 71.
In response to Plaintiff's filings, the Court acknowledged that if Plaintiff provided his responses to the motion to dismiss to prison authorities on January 28, 2021, they could be timely under the prison mailbox rule. Order 2, Mar. 15, 2021, ECF No. 72. However, because of the great length of time between when Plaintiff claimed he provided his filings to prison authorities and the Court's receipt of the same, the Court ordered Plaintiff to provide a statement under oath detailing the mailing of his documents. Id. at 2. The Court also allowed Defendants fourteen days to respond to any statement provided by Plaintiff. Id. at 2-3.
“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.” Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014) (per curiam) (quoting United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012)). “Absent evidence to the contrary, we assume that a prisoner delivered a filing to prison authorities on the date that he signed it.” Id. Further, “[t]he burden is on the Government to prove the motion was delivered to prison authorities on a date other than the date the prisoner signed it.” Id.
In the meantime, Kvistad-who had been served later than the other Defendants- moved to dismiss (ECF No. 76) Plaintiff's claims against her on March 29, 2021. On April 1, 2021, the Court withdrew its R&R (ECF No. 62), stating that a new report and recommendation would be issued to address the subsequently-filed documents. Text-Only Order, ECF No. 79. On April 2, 2021, the Court received Plaintiff's response (ECF No. 81) to the Court's March 15, 2021, Order (ECF No. 72) that he provide a statement under oath. In his statement, Plaintiff swore that he had provided his responses to prison authorities on January 28, 2021. Pl.'s Resp. to Ct. Order 1, ECF No. 81. Defendants did not respond to Plaintiff's statement.
DISCUSSION
I. Plaintiff's Motions
Plaintiff has filed a motion to amend his complaint (ECF No. 63), motion to raise state law claims (ECF No. 64), and motion to add Chief White, Captain Lee, Captain Weaver, Officer Blackmon, and “Nurse Tracey” as defendants (ECF No. 65). The motion to add defendants is simply a one-page statement that Plaintiff wishes to add Chief White, Captain Lee, Captain Weaver, Officer Blackmon, and Nurse Tracey, so the Court considers that motion along with the motion to amend. Along with adding five parties, Plaintiff's motion to amend also seeks to re-assert claims related to denial of a cane while in BCDC and add a retaliation claim against Lee and Blackmon. Pl.'s Mot. to Amend Attach. 2, at 12. Despite the shortcomings discussed below, the Court recommends that Plaintiff be allowed to amend his complaint.
A plaintiff may file an amended complaint once as a matter of course within twenty-one days of service of the original complaint or within twenty-one days of the defendant's filing of a responsive pleading or Rule 12 motion to dismiss. See Fed. R. Civ. P. Rule 15(a). A pro se plaintiff does not waive his right to amend as a matter of course by filing a motion to amend instead of an amended complaint. Toenniges v. Ga. Dep't of Corr., 502 Fed.Appx. 888, 889 (11th Cir. 2012) (per curiam). Here, Plaintiff filed his amended complaint within the extension of time allowed by the Court. And although Plaintiff previously filed two recast complaints as required by the Court, it is not clear that bars him from filing an amended complaint as a matter of course. Compare Bingham v. Morales, No. CV 311-019, 2011 WL 5358594, at *2 (S.D. Ga. Nov. 4, 2011) (“The fact that [the plaintiff] had twice amended his complaint prior to his motion to amend precluded him from amending the complaint again as a matter of right, irrespective of the fact that his prior amendments were directed by the Court to address pleading deficiencies.”), with Renasant Bank, Inc. v. Smithgall, No. 1:15-cv-459-WSD, 2016 WL 164311, at *2 (N.D.Ga. Jan. 13, 2016) (“Because the First Amended Complaint was not filed by the Plaintiff as ‘a matter of course' but upon the Order of the Court, the Court holds that Plaintiff's court-ordered First Amended Complaint did not qualify as Plaintiff's amendment allowed as a matter of course under Fed.R.Civ.P. 15.”) and Morris v. Morales, No. 1:13-CV-21-WLS-TQL, 2014 WL 4384823, at *1 (M.D. Ga. Feb. 19, 2014) (finding court did not have the discretion to deny a motion to amend even though the plaintiff had previously filed a recast complaint), recommendation adopted by 2014 WL 4384978 (M.D. Ga. Sept. 3, 2014).
The Court granted Plaintiff until February 1, 2021, to file a response to Defendants' motions to dismiss. Text-Only Order, Dec. 9, 2020. The cover letter enclosed with Plaintiff's motion to amend his complaint is dated January 28, 2021. Pl's Mot. to Amend Attach. 1. In his statement, Plaintiff swore that he provided his motion to prison authorities on January 28, 2021. Pl.'s Resp. to Ct. Order 1. Defendants did not respond to Plaintiff's statement under oath. Thus, the Court concludes that Defendants have not met their burden of proving that Plaintiff provided his documents to prison authorities on a date other than January 28, 2021.
Further, while Plaintiff's amended complaint is not signed as required by Rule 11(a) of the Federal Rules of Civil Procedure, the Supreme Court has held that where a pro se litigant fails to satisfy Rule 11's signature requirement, he may promptly cure the defect such that the signed document relates back to the date of the original filing. Becker v. Montgomery, 532 U.S. 757, 760 (2001). The Supreme Court noted this was consistent with Rule 11's provision that the omission of a signature could be corrected promptly after being called to the attention of the party. Id. at 764 (citing Fed.R.Civ.P. 11(a)). Here, although the Court has observed that Plaintiff's responses to the motions to dismiss were not signed, it did not mention the amended complaint or call it to Plaintiff's attention. Order 1, Mar. 15, 2021. Moreover, “an unsigned pleading is not invalid.” Holley Coal Comp. v. Globe Indem. Co., 186 F.2d 291, 295 (4th Cir. 1950).
Plaintiff's amended complaint also ignores the Court's admonishments from its two previous orders to recast. The Court previously instructed Plaintiff that he needs to file his complaint using the Court's standard § 1983 form. Order 1, Nov. 19, 2019, ECF No. 6. The amended complaint is not on a standard form. The Court also recommended that Plaintiff provide numbered responses to six questions as to each defendant. Order 4-5, May 7, 2020, ECF No. 20. While Plaintiff's second recast complaint followed this recommendation, the amended complaint does not. Plaintiff was also told that he “should take care to include all relevant factual allegations for any claims that he wishes to raise in [his] complaint, ” but he now re-asserts claims-specifically those related to the cane-that he omitted in his second recast complaint. Id. at 5.
Finally, portions of Plaintiff's amended complaint are illegible. As Plaintiff is “seek[ing] redress from a governmental entity or [an] officer or employee of a governmental entity, ” the Court is required to conduct a preliminary review of his amended complaint. See 28 U.S.C. § 1915A(a) (requiring the screening of prisoner cases); 28 U.S.C. § 1915(e) (regarding in forma pauperis proceedings). A district court may dismiss an amended complaint on preliminary review if it is illegible because an illegible complaint does not meet the requirement that pleadings “contain a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); see Munson v. Trueblood, No. 4:20cv179-WS-HTC, 2020 WL 4004820, at *2 (N.D. Fla. June 9, 2020) (“Plaintiff's illegible amended complaint fails to provide a short and plain statement of the claim showing that the pleader is entitled to relief.” (internal quotation marks omitted)), recommendation adopted by 2020 WL 4003970 (N.D. Fla. July 14, 2020).
Under the circumstances, the Court is tempted to recommend sua sponte dismissal without prejudice of Plaintiff's amended complaint on preliminary review without giving him another opportunity to amend. However, while portions of Plaintiff's amended complaint are illegible, most of it is legible, and enough of it can be read to understand that he is adding claims related to his cane and also retaliation. Furthermore, one panel of the Eleventh Circuit recently reversed a district court for failure to allow a pro se plaintiff an opportunity to amend his complaint before dismissing without prejudice, even though he had previously amended his complaint in compliance with the district court's order. Isaac v. United States, 809 Fed.Appx. 595, 599 (11th Cir. 2020) (per curiam).
Therefore, because it appears Plaintiff is still entitled to amend his complaint as a matter of course, the Court recommends granting Plaintiff's motion to amend (ECF No. 63) and motion to add defendants (ECF No. 65). The Court also recommends, however, that he be ordered to recast his amended complaint to address the above-noted deficiencies. Specifically, the Court recommends (1) that Plaintiff be required to file his amended complaint using the standard § 1983 form, (2) that the amended complaint be typewritten or neatly handwritten in legible ink, (3) that it clearly identifies each defendant and the causes of action being asserted against each, and (4) that it be signed. The Plaintiff should be warned that failure to file an amended complaint as instructed will result in dismissal of his action for failure to comply with a Court order. Following receipt of the recast amended complaint, the Court will conduct a preliminary review of Plaintiff's amended pleadings.
Plaintiff should also be aware that while the Court recommends granting his motion to amend his complaint, the amended complaint he has filed (ECF No. 63-2) constitutes his one amendment as a matter of course. The Court's order that he recast his amended complaint will not serve as carte blanche to add yet more defendants and claims. Any attempt to do so will be construed as a motion to amend requiring consent of the opposing party or leave of the court. Fed.R.Civ.P. 15(a)(2). And while Rule 15 requires that leave should freely be given when justice so requires, a district court may deny leave to amend “(1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (per curiam) (citing Forman v. Davis, 371 U.S. 178, 182 (1962)). Further, the Court is recommending that Plaintiff's deliberate indifference claims related to his injured finger be dismissed for failure to exhaust. Thus, if the recommendation is adopted, a re-asserted claim related to the injured finger may be subject to dismissal.
As for Plaintiff's motion to raise state law claims (ECF No. 64), the Court previously recommended dismissal of Plaintiff's state law claims for medical malpractice and negligence because he failed to attach an expert affidavit as required for medical malpractice actions in Georgia or allege that he complied with Georgia's ante-litem notice requirements for tort claims against a state government entity and its officers and employees. Order & R. 9, Aug. 5, 2020, ECF No. 23. The recommendation was adopted and made an order of the Court. Order 1, Aug. 25, 2020, ECF No. 26. Plaintiff's motion does not remedy these defects but simply states that “Plaintiff would like expert to file affidavit in requirement with O.C.G.A. § 9-11-9.1, ” and contains a nebulous reference to “written notice to the State” under O.C.G.A. § 50-21-26(a). Pl.'s Mot. to Raise State Law Claims, ECF No. 64. No. expert affidavit or proof of compliance with the state ante-litem notice is attached. Therefore, the Court recommends Plaintiff's motion to raise state law claims be denied.
III. Motions to Dismiss
Defendants each move to dismiss Plaintiff's claims related to delayed treatment of his broken finger, arguing, inter alia, that Plaintiff failed to exhaust his administrative remedies. Def. Long's Br. in Supp. of Mot. to Dismiss 5-6, ECF No. 40-2; Defs.' Wrobel and Younger's Br. in Supp. of Mot. to Dismiss 5-7, ECF No. 44-1; Def. Bell's Br. in Supp. of Mot. to Dismiss 4-5, ECF No. 47-1; Def. Kvistad's Mem. in Supp. of Mot. to Dismiss 6-10, ECF No. 76-1. The Court agrees that Plaintiff did not exhaust his administrative remedies as it pertains to these claims. Thus, although the Court recommends allowing Plaintiff to recast his amended complaint, it also recommends that claims related to delayed treatment of his broken finger be dismissed.
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).
“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).
The argument that a plaintiff has failed to satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant, 530 F.3d at 1375 (“[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]”). 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. BCDC Administrative Procedures
Defendants have submitted the declaration of Captain Mary Weaver-who is the records custodian for BCDC and oversees personnel who handle inmate grievances-to establish that administrative remedies were available to Plaintiff while he was incarcerated at BCDC. Weaver Decl. ¶ 2, ECF No. 40-1. According to Weaver, BCDC's grievance procedures are set forth in the Inmate Handbook which is provided to all inmates at BCDC. Id. ¶¶ 3-4. Under the procedures, an inmate may submit a grievance by requesting a form from the grievance officer and then submitting a completed form within five days of an incident. Weaver Decl. p. 5. An inmate “may only address one area of concern per Grievance Form” and grievances are “restricted to incidents which occur to the inmate while incarcerated” in BCDC. Id. If an inmate disagrees with a resolution of a grievance, the inmate may submit a written appeal within two days to the Security Commander. Id. The Security Commander's designee will then review the grievance. Id.
Weaver has attached an orientation form signed by Plaintiff indicating that he was issued an inmate handbook. Weaver Decl. pp. 6-7.
C. Plaintiff's Failure to Exhaust
Defendants contend that Plaintiff failed to exhaust his administrative remedies. Specifically, they assert that Plaintiff filed no grievances related to the failure to receive timely or appropriate medical care for his injured finger. Def. Long's Br. in Supp. of Mot. to Dismiss 5-6; Defs.' Wrobel and Younger's Br. in Supp. of Mot. to Dismiss 6; Def. Bell's Br. in Supp. of Mot. to Dismiss 5; Def. Kvistad's Mem. in Supp. of Mot. to Dismiss 9. In support, Defendant Long has submitted copies of Plaintiff's grievances submitted in 2019 while at BCDC. Weaver Decl. ¶ 5 and pp. 9-14. According to these submissions, Plaintiff filed six grievances at BCDC in 2019. Weaver Decl. pp. 9-14. Grievance Number 20951 was submitted on February 5, 2019-prior to the incident in this case-and involves his placement in disciplinary cell. Id. at p. 9. Grievance Number 201998 was filed on June 20, 2019, and concerned payment for a damaged dental bridge. Id. at p. 11. In Grievance Number 201917, which was filed on September 3, 2019, Plaintiff complained that the jail was not allowing him to use his cane. Id. at p. 10. He stated that he had undergone surgery for his finger and was worried he would re-injure the finger if he did not have his cane to maintain balance. Id. Plaintiff submitted Grievance Number 201920 on September 11, 2019, again complaining about BCDC's refusal to allow him use of a cane. Id. at p. 12. Grievance Number 201923 was submitted on September 25, 2019, and also concerned Plaintiff's demand for a cane. Weaver Decl. p. 13. In this grievance, he again mentioned need of the cane in light of his previous fall and broken finger. Id. Finally, Plaintiff lodged Grievance Number 201944 on November 20, 2019-after filing this lawsuit-wherein he complained about a $5.00 charge for medical services. Id. at p. 14.
Plaintiff responds generally that he filed grievances. Pl.'s Resp. to Wrobel and Younger Mot. to Dismiss 5, ECF No. 68; Pl.'s Resp. to Bell Mot. to Dismiss 2, ECF No. 69; Pl.'s Mot. to Amend Attach. 2, at 16. He also vaguely references “attempted informal resolutions, ” “multiple inmate request[s], ” correspondence, and various discussions between himself and family members and jail staff. Pl.'s Mot. to Amend Attach. 2, at 16. Because at the first stage of the exhaustion analysis the Court must take Plaintiff's version of the facts as being true, Plaintiff's claims cannot be dismissed for lack of exhaustion at this first step. Turner, 541 F.3d at 1082; see also Dollar v. Coweta Cnty. Sheriff Office, 446 Fed.Appx. 248, 251-52 (11th Cir. 2011) (per curiam). Since Plaintiff's claims were not dismissed at the first step, the Court makes the following factual findings and determines that Defendants have met their burden at step two regarding Plaintiff's failure to exhaust.
In his responses, Plaintiff refers the Court to items of discovery but does not attach those items. Pl.'s Resp. to Wrobel and Younger Mot. to Dismiss 5; Pl.'s Mot. to Amend Attach. 2, at 16.
First, the Court finds that there were administrative remedies available to Plaintiff while he was incarcerated at BCDC as evidenced by Captain Weaver's declaration and attached exhibits. See generally Weaver Decl. Plaintiff has presented no argument or evidence that any of the circumstances of unavailability discussed in Ross are present in this case.
Second, the Court finds that the only grievances filed by Plaintiff are those submitted by Defendants. To the extent Plaintiff claims otherwise, the Court finds the assertion not credible. He has attached no copies of other grievances he claims he filed, or provided grievance numbers or dates for such other grievances to show that he exhausted his administrative remedies. In fact, the only grievances he specifically cites are those submitted by Defendants. Pl.'s Resp. to Long Mot. to Dismiss 4, ECF No. 66; Pl.'s Resp. to Wrobel and Younger Mot. to Dismiss 5; Pl.'s Resp. to Bell Mot. to Dismiss 2.
Third, none of the grievances submitted by Plaintiff expressed concern with the treatment he was receiving for his injured finger. Plaintiff refers to Grievance Number 201998, asserting it was in regard to his broken finger. Pl.'s Resp. to Bell Mot. to Dismiss 2. That contention, however, is contradicted by a plain reading of the grievance, which refers explicitly to damage to a dental bridge and makes no reference to Plaintiff's finger or hand. Weaver Decl. p. 11. As noted, a couple of grievances filed in September 2019 referenced his injured finger but only to explain why he needed a cane. These grievances were not sufficient to put Defendants on notice of a problem with the medical care Plaintiff was receiving for his finger. See Toenniges, 600 Fed.Appx. at 649. Moreover, both of those grievances were submitted several months after the Defendants' alleged malfeasance, which is not compliant with the grievance procedures. Weaver Decl. p. 5. “Procedurally defective grievances or appeals are not adequate to exhaust.” Bracero v. Sec'y, Fla. Dep't of Corr., 748 Fed.Appx. 200, 202 (11th Cir. 2018) (per curiam) (citing Woodford v. Ngo, 548 U.S. 81, 93-95 (2006)).
Fourth, even if Plaintiff's contention that he “attempted informal resolutions” is true, BCDC's grievance procedures do not provide for informal resolution or-even if allowed-provide that it may be in lieu of the formal grievance procedures. Weaver Decl. p. 5. Thus, it would be insufficient to exhaust his administrative remedies. See Schlicher v. Fla. Dep't of Corr., 399 Fed.Appx. 538, 539 (11th Cir. 2010) (per curiam) (finding plaintiff failed to exhaust his administrative grievances where plaintiff claimed he “fil[ed] informal grievances regarding his access to grievance forms, wr[ote] letters to the Secretary of the FDOC, a federal judge, and the inspector general, and ma[de] verbal complaints to various prison officials”). Therefore, the Court concludes that Plaintiff failed to exhaust his administrative remedies as it pertains to treatment for his hand and finger.
CONCLUSION
For the reasons explained above, it is recommended that Plaintiff's motion to amend (ECF No. 63) and motion to add defendants (ECF No. 65) be granted and that his motion to raise state law claims (ECF No. 64) be denied. It is also recommended that Defendant Long's motion to dismiss (ECF No. 40), Defendant Dr. Wrobel and Younger's motion to dismiss (ECF No. 44), Defendant Bell's motion to dismiss (ECF No. 47), and Defendant Kvistad's motion to dismiss (76) be granted in part and denied in part as moot. It is recommended that they be granted as to Plaintiff's deliberate indifference claims related to delayed treatment of his finger because of Plaintiff's failure to exhaust. It is recommended that they be denied as moot as to Plaintiff's other claims in light of his amended complaint.
As the only claims Plaintiff has asserted against Younger, Bell, and Kvistad pertain to delayed treatment for his broken finger, adoption of this recommendation should result in their dismissal from this action entirely.
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.