Opinion
5:19-cv-00421-MTT-CHW
04-01-2021
PABLO F. MALDONADO, Plaintiff, v. Warden BENJAMIN FORD, et al., Defendants.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
CHARLES H. WEIGLE UNITED STATES MAGISTRATE JUDGE
Presently pending before the Court is a motion to dismiss filed on behalf of Defendants Baushcum, Coffee, Colon, Ford, Scott, Spikes, and Ward. (Doc. 32). Because Defendants have shown that Plaintiff failed to exhaust his available administrative remedies in accordance with the Prison Litigation Reform Act (“PLRA”), it is RECOMMENDED that the Defendants' motion to dismiss be GRANTED. Additionally, it is RECOMMENDED that Plaintiff's motion for a preliminary injunction (Doc. 34) and motion to add new defendants and claims (Doc. 39) be DENIED.
BACKGROUND
Plaintiff Pablo Maldonado, a prisoner at Georgia Diagnostic and Classification Prison, commenced this Section 1983 action on October 17, 2019. (Doc. 1, p. 6). Thereafter, on March 30, 2020, Plaintiff filed a Recast Complaint. (Doc. 20, p. 6). Plaintiff asserts constitutional violations due to twenty-three-hour isolation, exposure to extreme heat, hindered visitation, interference with mail and electronic mail, and retaliation through the use of disciplinary reports. (Id. at 5, 7-17). On screening under 28 U.S.C. § 1915A, the Court allowed Plaintiff to proceed on conditions of confinement claims against Defendants Ward and Ford, First Amendment visitation claims against Defendants Ward and Ford, First Amendment mail interference claims against Defendants Spikes, Coffee, and Baushcum, and retaliation claims against Defendants Spikes, Coffee, Colon, and Scott. (Doc. 10, p. 14).
Under the “mailbox rule, ” filings made by pro se prisoner litigants are considered filed on the date they are delivered to prison authorities for mailing. See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).
“An amended complaint supersedes the initial complaint unless the amended complaint ‘specifically refers to or adopts' the initial complaint.” Shreane v. Middlebrooks, 522 Fed.Appx. 845, 847-48 (11th Cir. 2013) (quoting Varnes v. Local 91, 674 F.2d 1365, 1370 n.6 (11th Cir. 2013)). Plaintiff's Recast Complaint is therefore the operative pleading in this case. See id.; see also Barber v. Krepp, 680 Fed.Appx. 819, 821 n.2 (11th Cir. 2017 (declining to consider allegations in pro se petitioner's initial application for a writ of mandamus since initial application “would have been superseded by the amended application for a writ of mandamus” filed subsequently).
Defendants have now moved to dismiss Plaintiff's First Amendment claims for loss of visitation, First Amendment claims for mail interference, and retaliation claims due to Plaintiff's failure to comply with the exhaustion requirement under the PLRA. (Doc. 32-1, pp. 2-3, 7-10). Plaintiff has filed a response to the motion, (Doc. 38), to which Defendants have replied. (Doc. 42). Additionally, Plaintiff has moved for a preliminary injunction, (Doc. 34), and to amend his Recast Complaint. (Doc. 39). Defendants have responded to both motions. (Docs. 37, 43).
Defendants initially sought to dismiss Plaintiff's claim of exposure to extreme heat, (see Doc. 32-1, p. 2), but withdrew their motion regarding this claim upon Plaintiff's evidence of exhaustion. (Doc. 39-1, pp. 6-8; Doc. 42, p. 4).
MOTION FOR PRELIMINARY INJUNCTION
In his pending motion for preliminary injunction, (Doc. 34), Plaintiff seeks return of his legal materials and property. (Doc. 34-1, p. 1). Additionally, Plaintiff requests that the Court prevent Defendants from retaliating against Plaintiff or hindering his access to the Court. (Id.) Plaintiff has failed to show that a preliminary injunction is warranted at this time.
Preliminary injunctive relief is only available where the movant demonstrates that: “(a) there is a substantial likelihood of success on the merits; (b) . . . the preliminary injunction is necessary to prevent irreparable injury; (c) the threatened injury outweighs the harm that . . . a preliminary injunction would cause to the non-movant; and (d) . . . the preliminary injunction would not be adverse to the public interest.” Parker v. State Bd. Of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001) (citation omitted). “[A] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the ‘burden of persuasion' as to each of the four prerequisites.” Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003) (alteration in original) (citation omitted).
As an initial matter, Plaintiff's request for an injunction prohibiting the Defendants from retaliating against him does not adequately specify the relief requested. In essence, Plaintiff requests the Court to order Defendants to follow the law. This type of relief is impermissible. Elend v. Basham, 471 F.3d 1199, 1209 (11th Cir. 2006) (“It is well-established in this circuit that an injunction demanding that a party do nothing more specific than ‘obey the law' is impermissible.”).
Further, Plaintiff fails to demonstrate irreparable harm. An irreparable injury “must be neither remote or speculative, but actual and imminent.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (citations omitted). Plaintiff claims that Defendants' confiscation of “his legal documents and materials may have caused Plaintiff to miss this court deadline or made Plaintiff fail to make a timely filing to this court.” (Doc. 34-1, p. 3). Thus, Plaintiff argues the irreparable harm he suffers, and will continue to suffer, is his access to the courts. Plaintiff's filing of this motion directly refutes this argument. Accordingly, Plaintiff is not entitled to injunctive relief.
THE EXHAUSTION REQUIREMENT
The 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. Turner, 541 F.3d at 1082-83. Second, if the Complaint is not dismissed under step one, the Court “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.
GRIEVANCE PROCEDURE
The grievance procedure applicable in this case is set by the Georgia Department of Corrections Standard Operating Procedure No. 227.02. (Doc. 32-3) (May 10, 2019); (Doc. 32-4) (July 20, 2015). Under that procedure, prisoners must follow a two-step process by first filing an “original grievance” within ten days of the grievable issue. (Doc. 32-3, p. 8; Doc. 32-4, p. 8). The original grievance is then screened by prison staff, and typically either rejected or accepted for processing. (Doc. 32-3, p. 9; Doc. 32-4, p. 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. (Doc. 32-3, p. 11; Doc. 32-4, p. 11).
On either 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. (Doc. 32-3, p. 14; Doc. 32-4, p. 13). The previous grievance procedure then contemplated a 100-day period in which the Warden may give a response, (Doc. 32-4, p. 14), whereas the current grievance procedure contemplates a 120-day period. (Doc. 32-2, p. 15).
ANALYSIS
I. Defendant's Motion to Dismiss
Based on Turner's two-step review process, the record shows that Plaintiff failed to exhaust his administrative remedies prior to commencing this Section 1983 action. (Doc. 1). On that basis, it is recommended that the Defendants' motion to dismiss (Doc. 32) be granted.
Under Turner's first step, Defendants allege that Plaintiff commenced this lawsuit prior to fully exhausting his administrative remedies with respect to some of his claims. (Id. at 8-9). Plaintiff responds that he attempted to exhaust the grievance process to the best of his ability, but was hindered because he was denied access to the regulations governing this process and Defendants' delayed responses. (Doc. 38, pp. 1-4). Additionally, Plaintiff alleges he consistently appealed his grievances but his appeals “would go unanswered, would disappear, be returned unanswered, or denied on technicalities.” (Doc. 38-1, p. 2). Given the conflict between the parties' versions of the facts, under Turner's first step, the Court must take Plaintiff's version as true.
Next, at Turner's second step of review, the evidence shows that Plaintiff did not fully exhaust his administrative remedies before filing this suit on October 17, 2019. Of the numerous grievances Plaintiff filed while incarcerated at GDOC, grievance numbers 290213, 295963, and 298867, are relevant to Plaintiff's current federal lawsuit. On June 3, 2019, Plaintiff filed grievance number 290213, claiming his contact visits were being withheld. (Doc. 32-5, p. 13). This grievance was denied on June 26, 2019, and Plaintiff then appealed, giving the GDOC 120 days to issue a final decision. (Id. at 14; Doc. 32-1, p. 8). Prior to the cessation date, Plaintiff withdrew this grievance, and filed the instant Complaint. On September 17, 2019, Plaintiff filed grievance number 295963, claiming that Defendant Scott retaliated against him and placed him in solitary confinement. (Doc. 32-5, pp. 19-20). This grievance was denied on November 1, 2019, after Plaintiff filed his complaint in this case. (Id. at 19). Finally, on October 29, 2019, after filing his complaint in this case, Plaintiff filed grievance number 298867, complaining of mail interference. (Id. at 21). As full and proper exhaustion requires exhausting remedies before filing a § 1983 lawsuit, Plaintiff has failed to exhaust his First Amendment claims regarding contact visitation and mail interference, as well as his retaliation claim. Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000).
The reasons Plaintiff has offered do not excuse his failure to exhaust available remedies before filing a lawsuit. First, Plaintiff contends he has no understanding of the grievance process because he was not allowed to review it in the legal library. (Doc. 38, pp. 2-3). As Defendants note, Plaintiff's allegations are contradicted by his own evidence. (Doc. 42, p. 2). Plaintiff submitted a copy of the rules and regulations pertaining to death row inmates which discusses the grievance process. (See Doc. 39-4, p. 22). While Plaintiff claims he received notification “verbally and in writing that his request to see the rules and regulations were denied[, ]” Plaintiff has failed to present evidence of a written denial. (Doc. 38, pp. 2-3). Plaintiff also submitted evidence of his grievance history, dating from 2013 to 2019, which suggests both that the grievance process was available to Plaintiff and that he was aware of the procedure. (See Doc. 39-1, pp. 2-50). The affidavit of Ruby Pugh, the Grievance Coordinator, further corroborates that Plaintiff, like all Georgia prisoners, received instructions as to the grievance procedure upon his entry into the prison system. (Doc. 32-1, ¶ 7). Accordingly, Plaintiff's allegation that the grievance process was unavailable is not credible.
Next, Plaintiff contends he did not drop grievance number 290213, as Defendants have presented no evidence of the applicable form. (Doc. 44, p. 4). Under the grievance policy, the only requirements pertaining to dropped grievances include the process for doing so when an inmate has two active grievances and wishes to file a third. (See Doc. 32-2, pp. 6-7). In this situation, an inmate must submit an “Active Grievances Process Form” indicating which of the three active grievances he wishes to drop. (Id.) If an inmate fails to submit such form in the applicable time, “then the third . . . grievance will be closed.” (Id. at 7). There is no requirement that an inmate submit such a form in instances not pertaining to the two active grievance rule. As such, Plaintiff's argument is unavailing.
Moreover, even taking Plaintiff's allegation as true, Plaintiff's claim involving contact visits would still be subject to dismissal for lack of exhaustion. As previously discussed, when Plaintiff appealed grievance number 290213 on July 15, 2019, the GDOC then had 120 days to submit a final decision. Thus, a final decision was due no later than November 12, 2019. Plaintiff filed this Complaint on October 17, 2019. As such, Plaintiff's allegation cannot overcome his lack of exhaustion.
Finally, Plaintiff argues that proper exhaustion is unavailable to him due to Defendants' threats of retaliation. In support thereof, Plaintiff cites to the Eleventh Circuit's holding in Turner, concluding that the PLRA's exhaustion requirement becomes unavailable when a prison official threatens to retaliate against an inmate for filing a grievance in good faith. 541 F.3d at 1085. To meet this standard, Plaintiff must show: “(1) the threat actually did deter the plaintiff inmate from lodging a grievance . . . and (2) the threat is one that would deter a reasonable inmate of ordinary fitness and fortitude from lodging a grievance or pursuing the part of the grievance process the inmate failed to exhaust.” Id. (citations omitted). Plaintiff's reliance on Turner is misplaced. Plaintiff cannot show that any alleged threat on Defendant Baushcum's part actually deterred Plaintiff's filing of a grievance. To the contrary, Plaintiff's filing of grievance number 295963, and, even more, his following through with the administrative procedure with respect to this grievance, demonstrates he perceived no such threat. See Williams v. Barrow, 559 Fed.Appx. 979, 988 (11th Cir. 2014) (dismissing a claim that administrative remedies were unavailable to the plaintiff when the plaintiff had “not identified any actual threats of retaliation that deterred him from pursuing his grievance” and the plaintiff “did administratively exhaust” the grievance “he just failed to do so before filing [the] lawsuit.”) (citation omitted). Thus, Plaintiff's argument that the grievance process was unavailable to him is without merit.
II. Plaintiff's Motion to Amend
Plaintiff has also filed a motion to amend, (Doc. 39), seeking to clarify existing claims and add new claims and Defendants. Defendants respond that Plaintiff's amendments offer no new evidence or facts and would be futile. (Doc. 43, p. 1). Because Plaintiff has failed to demonstrate such amendments are warranted, it is recommended that Plaintiff's motion to amend be denied.
“Federal Rule of Civil Procedure 15(a) gives a plaintiff the right to amend a complaint once as a matter of course, so long as no responsive pleading has been filed.” Coventry First, LLC v. McCarty, 605 F.3d 865, 869 (11th Cir. 2010). Since Plaintiff has already amended the complaint, see (Doc. 20), amendment is only proper “with the opposing party's written consent or the court's leave, ” the latter of which “should freely [be given] when justice so requires.” Fed.R.Civ.P. 15(a)(2). A proposed amendment may be denied for, among other things, futility. Coventry First, LLC, 605 F.3d at 869. An amendment is futile “when the complaint as amended would still be properly dismissed.” Id. (internal quotation omitted).
Plaintiff's motion to amend is futile. First, Plaintiff's proposed amendments to his existing claims offer nothing new to overcome the requirements of exhaustion. (See Doc. 39, pp. 1-5). Accordingly, Plaintiff's motion as it relates to clarifying existing claims should be denied. See Giles v. Manser, 757 Fed.Appx. 891, 894 n.6 (11th Cir. 2018) (finding the “proposed amendment was futile because the amendment added nothing factually new.”).
Next, the record demonstrates that Plaintiff failed to exhaust six of the eight claims he now seeks to add. These included claims of constitutional violations resulting from: (1) restricted attorney-client visits by Defendants Colon and Scott, (2) denial of international postage, (3) lack of maintenance repairs, (4) confiscation of legal documents and property, (5) prevented access to the Court by Lieutenant Delvin Kirk and Deputy Warden Teketa Jester, and (6) the grievance process. (Doc. 39, pp. 5-11).
On August 15, 2015, Plaintiff filed grievance number 294736, claiming that Defendants Scott and Colon implemented a rule restricting attorney-client visits to one hour. (Doc. 32-5, p. 18). This grievance was denied on October 4, 2019. (Id.) Plaintiff did not seek to appeal. (Id.) On June 3, 2019, Plaintiff filed grievance number 290211, complaining of GDOC's lack of international postage stamps. (Id. at 12). This grievance was denied on August 19, 2019, and Plaintiff failed to appeal. (Id.) By not appealing both of these grievances, Plaintiff did not properly exhaust his administrative remedies. Thus, Plaintiff's claims involving restriction of attorney-client visits and lack of international postages should be denied as futile. See Gould v. Owens, 383 Fed.Appx. 863, 868 (11th Cir. 2010) (upholding the district court's denial of a motion to amend when the new allegations would be futile as they were not exhausted).
At the bottom of the response to Plaintiff's grievance, Plaintiff writes that he “submitted an appeal form on Sept[ember] 12, 2019.” (Doc. 39-1, p. 34). Plaintiff provides no evidence other than this self-serving statement. See Kozuh v. Nichols, 185 Fed.Appx. 874, 876 (11th Cir. 2006) (“[D]espite his arguments to the contrary, there is no evidence that Kozuh was thwarted from bringing his grievances or that the grievance process was unavailable.”).
On July 28, 2019, Plaintiff filed grievance number 293546, complaining that there is no maintenance repair system in place. (Id. at 16). This grievance was denied on October 31, 2019, after Plaintiff filed his Section 1983 lawsuit. (Id.) Plaintiff proceeded to appeal this denial, and that appeal was denied on January 30, 2020. (Doc. 32-5, p. 17). Plaintiff argues that because he has now exhausted this grievance, his claim for lack of maintenance repairs should not be dismissed. (Doc. 39, p. 10). Plaintiff's argument is unavailing. “The only facts pertinent to determining whether a prisoner has satisfied the PLRA's exhaustion requirement are those that existed when he filed his original complaint.” Smith v. Terry, 491 Fed.Appx. 81, 83 (11th Cir. 2012) (citing Harris v. Garner, 216 F.3d 970, 981 (11th Cir. 2000)). Therefore, Plaintiff's subsequent exhaustion of this grievance is irrelevant. Accordingly, Plaintiff's amended claim of a constitutional violation due to a lack of maintenance repair should be denied as futile.
The record indicates that, at some point in 2013, Plaintiff filed grievance number 144674, claiming a denial of access to the courts. (Doc. 39-1, p. 2). This grievance was denied on March 21, 2013, and Plaintiff received notice of this denial on April 1, 2013. (Id.) There is no other evidence in the record suggesting Plaintiff appealed this denial. Thus, it appears Plaintiff failed to exhaust this claim. Furthermore, the record does not show that Plaintiff filed any such grievance complaining of confiscation of his property. At most, Plaintiff previously submitted evidence of a list detailing the property allegedly confiscated, and a request to return said property. (See Doc. 34-4, p. 1; Doc. 34-5, p. 1; Doc. 34-6, p. 1). This is not the proper grievance procedure, and therefore Plaintiff failed to exhaust this claim. As such, Plaintiff's amended claims of denied access to the courts and confiscated property should be denied as futile.
Similarly, the evidence shows that Plaintiff did not file any grievance relating to his claim involving the grievance process. To the extent that Plaintiff alleges his inaccessibility to the grievance process all together, this claim is also futile. Plaintiff has not proven any apparent threat deterring him from filing a grievance. See Turner, 541 F.3d at 1085. Nor has he demonstrated, as he alleges, that Defendants restricted his access to the grievance procedure regulations. See Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (“[A] grievance procedure that requires a prisoner to provide information he does not have and cannot reasonably obtain is not a remedy that is ‘available' to the prisoner.”); see also Goebert v. Lee Co., 510 F.3d 1312, 1323 (11th Cir. 2007) (“That which is unknown and unknowable is unavailable; it is not ‘capable of use for the accomplishment of a purpose.'”) (citing Booth v. Churner, 532 U.S. 731, 738 (2001)). In contrast, Plaintiff's numerous grievances filed since 2013 demonstrate Plaintiff's full comprehension of the process. Accordingly, Plaintiff's claim regarding the grievance procedure should be denied.
Additionally, Plaintiff seeks to amend his retaliation claim to include Lieutenant Kirk. (Doc. 39, pp. 6-7). Under Federal Rule of Civil Procedure 20(a)(2), a party may join claims against multiple defendants in the same action only if those claims arise “out of the same transaction, occurrence, or series of transactions or occurrences” and raise a “question of law or fact common to all defendants.” The related active claim is a retaliation claim against Defendants Colon and Scott, involving their use of disciplinary reports “to get back at” Plaintiff from August 30, 2019, through October 15, 2019. (Doc. 20, p. 10). Plaintiff's amended claim does not specify when, if ever, Lieutenant Kirk has used the disciplinary report system to retaliate against Plaintiff. (See Doc. 39, pp. 6-7). Rather, Plaintiff generally contends that Lieutenant Kirk is acting in the same manner as Defendants Colon and Scott. (Id.) Apart from this conclusory allegation, Plaintiff does not explain how the claim against Defendants Colon and Scott arose out of the same transaction or occurrence as his proposed claim against Lieutenant Kirk. Absent a logical relationship to the active claim in this case, Plaintiff's proposed amended claim is subject to dismissal. See Constr. Aggregates, Ltd. V. Forest Commodities Corp., 147 F.3d 1334, 1337 (11th Cir. 1998).
With respect to Plaintiff's claim involving insufficient outside exercise time, Defendants respond that “[t]his proposed new claim is already addressed in Plaintiff's claim regarding 23-hour lockdown.” (Doc. 43, p. 3). The Court agrees. In his Recast Complaint, Plaintiff states that, prior to the implementation of 23-hour lockdown, prisoners received four to six “hours out of [their] cells” for “recreational activities[.]” (Doc. 20, p. 7). In his original Complaint, Plaintiff describes his recreational activities as both indoors and outdoors. (See Doc. 1-1, pp. 14-15). Plaintiff's amended claim argues that for “one hour per day” during the week, he is allowed outside. (Doc. 39, p. 7). This suggests Plaintiff contemplated the issue of outdoor recreation time, or lack thereof, within his claim of impermissible 23-hour lockdown.
Nevertheless, Plaintiff seeks to amend this claim to include Defendants Scott and Colon. Plaintiff's original claim alleges that Defendants Ward and Ford implemented the policy of a 23hour lockdown. (Doc. 20, pp. 5, 7). Plaintiff's amended claim argues that Defendants Scott and Colon significantly limited Plaintiff's outside exercise time. (Doc. 39, p. 7). Plaintiff does not explain how these two claims arose out of the same transaction or occurrence. At most, Plaintiff alleges two separate policies by two sets of Defendants, together, violated Plaintiff's constitutional rights. Without a logical relationship between Plaintiff's active claim in this case, Plaintiff's proposed amended claim is subject to dismissal. See Constr. Aggregates, Ltd., 147 F.3d at 1337.
Finally, with respect to Plaintiff's claim that his access to religious services has been severely limited, Plaintiff fails to state a claim upon which relief may be granted. (Doc. 43, p. 7). Plaintiff argues that “Defendant Colon and Scott created a rule that restricted [his] religious rights.” (Doc. 39, p. 8). Specifically, Plaintiff contends that prisoners are forced to choose between “one hour of Pastorial a week, or one hour of church service.” (Id.)
“A prison regulation, even though it infringes the inmate's constitutional rights, is an actionable constitutional violation only if the regulation is unreasonable.” Hakim v. Hicks, 233 F.3d 1244, 1247 (11th Cir. 2000) (citations omitted). To determine if a regulation is unreasonable, the Supreme Court has created a four-factor test. “First, there must be a ‘valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner v. Safley, 482 U.S. 78, 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984). Second, the regulation must provide “alternative means of exercising the right that remain open to prison inmates.” Id. at 90. Third, the Court must consider “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. “Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. (citing Block, 468 U.S. at 587).
Here, Plaintiff's claim fails under the second factor as Defendants continue to provide Plaintiff a form of religious services. As the Supreme Court in Turner made clear, “[w]here ‘other avenues' remain available for the exercise of the asserted right, . . . courts should be particularly conscious of the ‘measure of judicial deference owed to correctional officials . . . in gauging the validity of the regulation.'” Id. (citations omitted). As such, Plaintiff has not been denied access to religious services, and therefore, Plaintiff's amended claim should be denied.
CONCLUSION
Because Plaintiff failed to exhaust the available administrative remedies before filing the instant suit, it is RECOMMENDED that Defendants' motion to dismiss (Doc. 32) be GRANTED and that Plaintiff's First Amendment visitation, First Amendment mail interference, and retaliation claims be DISMISSED without prejudice. It is further RECOMMENDED that Plaintiff's motions for a preliminary injunction (Doc. 34) and to amend (Doc. 39) be DENIED.
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. The District Judge will 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.