Opinion
CASE NO. 5:17-CV-00363-MTT-MSH
01-30-2019
MARCO MCILWAIN, Plaintiff, v. DR EDWARD BURNSIDE, et al., Defendants.
REPORT AND RECOMMENDATION
Pending before the Court is Defendants' motion to dismiss Plaintiff's complaint (ECF No. 17). For the reasons explained below, it is recommended that Defendants' motion be granted and Plaintiff's complaint be dismissed.
BACKGROUND
Plaintiff's claims arise from his treatment in the Special Management Unit ("SMU") at the Georgia Diagnostic and Classification Prison ("GDCP") in Jackson, Georgia. Compl. 3, ECF No. 1. He claims that on August 11, 2016, he arrived at the SMU with serious injuries including "5 stab wounds to the head," "several deep puncture wounds to the back," and a collapsed lung. Compl. Attach. 1 at 3, ECF No. 1-1. Defendant Burnside, the prison physician, told Plaintiff that he would be housed in an observation cell "due to the seriousness of the injuries." Id. Plaintiff inquired about pain medication and Defendant Burnside said Defendant Adair—a prison nurse—would provide him with pain medication. Id.
Approximately five days later, Defendants Burnside and Adair were making their rounds in the SMU and Plaintiff again asked for pain medication, telling them he "was hurting real bad and c[ould] barely breath[e]." Id. Plaintiff states that Defendants Burnside and Adair ignored him. Id.
Two days later, Plaintiff states his "back locked up" and "he couldn't move and was in excruciating pain." Id. Plaintiff was taken to medical and examined by another prison nurse who called Defendant Burnside and told him that Plaintiff was in "real bad pain and his right lung was diminishing." Compl. Attach. 1 at 4. Plaintiff was told that Defendant Burnside would see him the next morning. Id. Defendant Burnside did not see Plaintiff the next morning, even though Plaintiff's "pain was so bad that he couldn't get his food tray." Id.
After another three days, Plaintiff notified Defendant Adair that he was still in "excruciating pain" and that his "wounds were bleeding through his shirt." Compl. Attach. 1 at 5. Plaintiff asked when Defendant Adair would "do dressing change and clean the wounds so they wouldn't get infected[]" and again requested pain medication. Id. Plaintiff alleges Defendant Adair again ignored him. Id.
After another week, Plaintiff's wounds again began to bleed "real bad" leaving him in "excruciating pain." Id. Defendant Uglee, a prison lieutenant, notified medical but was told "medical . . . wasn't coming to SMU." Id. Defendant Burnside saw Plaintiff the next day and prescribed him pain medication, three weeks after Plaintiff first requested help. Compl. Attach. 1 at 6. Plaintiff continued to have issues with pain and notified Defendants Adair and Burnside about his symptoms multiple times. Id. At some point, it appears Defendant Burnside stopped providing Plaintiff with pain medication or prescribed Plaintiff with medication that he knew was not effective. Compl. Attach. 1 at 7.
Plaintiff also alleges that Defendant Adair gave him the wrong medication, causing Plaintiff to become dizzy, vomit, and suffer from "real bad" stomach and chest pains for approximately twenty-one hours. Id. at 9-11. Plaintiff contends that when he informed Defendants Adair and Uglee that he had received the wrong medication, they laughed at him and refused to provide him with any treatment for his symptoms. Id. at 11. Plaintiff also alleges that Defendant Burnside refused to provide him with treatment "after gaining knowledge that Nurse Adair gave [Plaintiff] the wrong medication." Id. at 16.
Plaintiff additionally asserts that he filed numerous grievances regarding these incidents, and that on one occasion Defendant Uglee asked him to "drop the grievance," and when Plaintiff refused to do so Defendant Uglee refused to feed Plaintiff that day. Compl. Attach. 1 at 7, 11, 14. Plaintiff also appears to allege that Defendant Adair intentionally gave him the wrong medication "after gaining knowledge" that Plaintiff had filed grievances against her. Id. at 18.
Plaintiff contends that Defendants' actions have violated his constitutional rights and seeks declaratory relief, injunctive relief, compensatory and punitive damages, a jury trial, and costs in this action, as well as "any additional relief this court deems just, proper, and equitable." Id. at 20-21.
DISCUSSION
Defendants move to dismiss Plaintiff's complaint on the grounds that he failed to exhaust his administrative remedies. Mot. to Dismiss 1, ECF No. 17. Defendant contends the GDCP grievance process was deficient such that it was not actually available to him, and, alternatively, that he did exhaust his administrative remedies. Br. in Supp. of Resp. to Mot. to Dismiss 11-15, 16, ECF No. 23-1. Because the Court finds that Plaintiff did not exhaust his administrative remedies, it is recommended that Defendants' motion be granted and Plaintiff's complaint dismissed.
I. Exhaustion Standard
Title 42, United States Code section 1997e(a) 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." "[W]hen a state provides a grievance procedure for its prisoners, as Georgia does here, 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." Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (internal quotation marks and citation omitted). The argument that a plaintiff has failed to satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008) ("[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]"). Furthermore, 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.
A motion that is not brought under Rule 12(b) but raises the opposition's failure to exhaust may "be treated as [a motion to dismiss]." Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008).
"[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.
II. Plaintiff's Failure to Exhaust
A. Step One
Because at the first stage of the exhaustion analysis the Court must take Plaintiff's version of the facts as being true, Plaintiff's Complaint cannot be dismissed for lack of exhaustion at this first step. Turner, 541 F.3d at 1082; see also Dollar v. Coweta Cty. Sheriff Office, 446 F. App'x 248, 251-52 (11th Cir. 2011). Since the Complaint was not dismissed at the first step, the Court can make factual findings relating to exhaustion. As noted above, Defendants bear the burden of establishing a lack of exhaustion at the second step of the inquiry. Turner, 541 F.3d at 1082-83. The Court makes the following factual findings and determines that Defendants have met their burden regarding Plaintiff's claims.
B. Step Two
GDCP follows the Georgia Department Of Correction's Standard Operating Procedures ("SOPs") regarding grievances. Footman Aff. ¶ 2, ECF No. 17-2. The SOPs mandate that an inmate must follow a two-step process in order to exhaust his remedies: (1) file an original grievance no later than ten days from the date of the incident giving rise to the grievance; and (2) file an appeal to the Central Office. Id. ¶ 7 & Attach. A at 9, ECF No. 17-3. A warden has forty calendar days from when an inmate delivers a grievance form to a counselor within which to respond to an original grievance. Id. Attach. A at 12. An inmate may file an appeal within seven calendar days of receiving the response to the original grievance or after the time allowed for the warden to make his decision expires. Id. ¶ 10 & Attach. A at 14. In order to successfully file an appeal, an inmate must fill out a Central Office Appeal Form, sign it, and give it to the appropriate counselor. Id. Attach. A at 14. The Commissioner—or their designee—must deliver a decision on the appeal to the inmate within one-hundred calendar days of their receipt of it. Id. at 15.
Plaintiff submitted his first of three relevant grievances on September 2, 2016. Footman Aff. Attach. C at 2, ECF No. 17-5. Therein, he complains of not seeing the doctor he was promised for his "excruciating" back pain and lung problems on August 18, 2016. Id. On September 22, 2016, that grievance was rejected as untimely because it had been filed beyond the SOP's ten-day filing window. Id. at 4. Plaintiff filed his second relevant grievance on May 30, 2017. Footman Aff. Attach E at 2, ECF No. 17-7. That grievance concerned the medication Defendant Adair was providing Plaintiff and was denied on the ground that there was "no evidence" supporting Plaintiff's allegation. Id. Plaintiff failed to appeal that denial. Id. ¶ 17 & Attach. E. Similarly, Plaintiff's third and final relevant grievance was rejected on July 17, 2017, because of a lack of supporting evidence, and Plaintiff did not appeal that decision. Id. ¶ 18 & Attach. F, ECF No. 17-8.
With his complaint, Plaintiff submitted a "Receipt for Grievance at Counselor's Level" on which the date "8/26/16" is listed as the date the grievance was received by Plaintiff's grievance counselor. Compl. Ex. B. The Court finds Defendants' submissions showing this grievance was filed on September 2, 2016, more credible than Plaintiff's contradictory submission.
"The PLRA exhaustion requirement requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 93 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules." Id. at 91. The proper exhaustion requirement is central to achieving the aim of giving the administrative authority an opportunity to "address[] the issues on the merits." Halpin v. Crist, 405 F. App'x 403, 407 (11th Cir. 2010). Accordingly, "where an inmate's grievance fails to meet administrative deadlines or an existing exception to a timely filing requirement, his federal claim will be barred." Tilus v. Kelly, 510 F. App'x 864, 866 (11th Cir. 2013). Plaintiff's grievances relating to the conduct he complains of in this case all fail to satisfy the applicable exhaustion requirements. Therefore, Defendants' motion to dismiss Plaintiff's complaint should be granted.
The Court also finds that Defendants have shown that the administrative remedies at issue here were actually available to Plaintiff and not "so opaque" that they became "practically speaking, incapable of use." Ross v. Blake, 136 S. Ct. 1850, 1859 (2016). Plaintiff has availed himself of the GDOC's grievance procedures numerous times and his claim that they were, in practice, unavailable is without merit. See Footman Aff. Attach. B, ECF No. 17-4. --------
CONCLUSION
For the reasons explained above, it is recommended that Defendants' motion to dismiss (ECF No. 17) be granted and Plaintiff's claims dismissed. 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, this 30th day of January, 2019.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE