Opinion
5:22-cv-423-TES-CHW
06-25-2024
CHARLES F. TUCKER, Plaintiff, v. Warden LAWRENCE WHITTINGTON, Defendant.
Proceedings Under 42 U.S.C. §1983 Before the U.S. Magistrate Judge
ORDER AND RECOMMENDATION
Charles H. Weigle United States Magistrate Judge
Plaintiff Charles Tucker, a state inmate, filed a pro se civil rights complaint seeking relief under 42 U.S.C. § 1983 regarding his confinement in Wilcox State Prison. (Doc 1). Defendant Warden Whittington filed a motion for judgment on the pleadings seeking judgment in his favor because Plaintiff failed to exhaust his administrative remedies before filing suit. (Doc. 20). Plaintiff admits that he did not file a grievance, but he also argues that grievance process was unavailable to him. (Docs. 1, 24, 27). Because Plaintiff did not properly exhaust the available remedies before bringing this action, it is RECOMMENDED that Defendant's motion for judgment on the pleadings (Doc. 20) be GRANTED and that Plaintiff's claims be DISMISSED. Based on this recommendation, discovery is no longer warranted, and the parties' motions to reopen and for extension of discovery (Docs. 21, 31) are DENIED as futile.
BACKGROUND
Plaintiff signed and dated his complaint on November 17, 2022, alleging constitutional violations regarding his incarceration at Wilcox State Prison's (WSP). (Doc. 1). 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 filed an answer to the complaint, opening the 90-day discovery period set out in the Court's scheduling order. (Doc. 6).
At the conclusion of discovery, Defendant moved for judgment on the pleadings, arguing that Plaintiff did not exhaust his claims before commencing suit. (Doc. 20). In his complaint, Plaintiff states that he did not file a grievance because forms were not available due to understaffing. (Doc. 1, p. 3). Plaintiff filed a response to the motion (Doc. 24), in which he alleges both that grievance forms are not available in segregation and that filing a grievance would have served no purpose. Following Defendant's reply brief (Doc. 26), Plaintiff filed a surreply. (Doc. 27). Although Plaintiff did not seek leave of Court before submitting the surreply, the document has been considered. Plaintiff argues in his surreply, for the first time, that tried to ask for grievance form once he returned to WSP and felt better, but that one was not provided to him. (Id.) He also accuses Defendant of unfairly focusing on his failure to exhaust. (Id.)
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). As failure to exhaust is an affirmative defense under the PLRA, “defendants bear the burden of proving that the plaintiff has failed to exhaust his available administrative remedies.” Id.
The Turner standard equally applies to a motion for judgment on the pleadings based upon a failure to exhaust. See, e.g., Doe v. Sheely, 855 Fed.Appx. 497 (11th Cir. 2021) and Sauder v. Harkin, 2020 WL 4032458 (N.D. Fla. Apr. 7, 2020) (recommendation later adopted).
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. 20-2, Exhibit 1). 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 referenced page numbers cite to the policy itself and not the document to which the policy was attached.
ANALYSIS
Defendant moves for judgment on the pleadings which would dismiss Plaintiff's complaint under the PLRA's exhaustion requirement. (Doc. 20). Defendant argues that because Plaintiff did not file a grievance about his claims, Plaintiff failed to exhaust his available administrative remedies. (Id.) Plaintiff admits that no grievance was filed, but contends that the grievance process was unavailable due to a lack of forms and argues that filing a grievance would have also been pointless. (Docs. 1, 24, 27).
1. Plaintiff failed to exhaust the available administrative remedies.
Determining whether dismissal is appropriate requires applying the test outlined in Turner to the record of Plaintiff's efforts to exhaust the administrative remedies available to him. Under Turner's step one, a court must first consider all the alleged facts construed in favor of Plaintiff when the facts conflict. Plaintiff acknowledges that WSP had a grievance procedure, but he contends in his response to the motion to dismiss that he did not file a grievance both because forms are unavailable and because filing a grievance “would have served no purpose concerning to, or in relation to [the] incident that caused my injuries.” (Doc. 24); see also (Docs. 1, 27). Construed in Plaintiff's favor, the claims in Plaintiff's pleadings survive under step one of Turner because Plaintiff's explanation suggests that the grievance process was unavailable to him. Under step two of Turner, however, the evidence of record shows that Plaintiff failed to exhaust his available administrative remedies prior to filing suit.
Under Turner's second step, any disputed facts must be examined to determine whether Plaintiff exhausted the available administrative remedies prior to filing suit. In support of his motion for judgment on the pleadings, Defendant provided Plaintiff's grievance history, the applicable grievance policy, and a declaration from Kelly Dunagan, a Behavior Health Counselor at WSP who also oversees the grievance process. (Docs. 20-2). Plaintiff's claims concern an incident from July 2022. (Doc. 6, p. 3). Plaintiff's grievance history shows that he filed two grievances at WSP, both of which were filed in 2018. (Doc. 20-2, p. 41). This record confirms, as Plaintiff admits, that he did not file a grievance about his claims in this case.
A. The prison grievance process was available to Plaintiff
In his complaint and surreply, Plaintiff states that he did not file a grievance because forms were not available or provided. In his initial response, he also argues that a grievance would have served no purpose. These explanations are construed as an argument that the administrative grievance process was unavailable to Plaintiff. Courts have outlined three different ways a plaintiff can show that administrative remedies are unavailable:
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 Ross v. Blake, 578 U.S. 632 (2016).
In this case, Plaintiff's unavailability arguments best fall within the first and third Ross exceptions because he asserts that the process was futile and because he claims that staff shortages or a general failure to provide forms thwarted his attempt to exhaust. The record, however, does not support Plaintiff's arguments.
In his first response to Defendant's motion, Plaintiff argues that filing a grievance would have served no purpose because he had already been attacked. (Doc. 24). Plaintiff's belief that there was no point to filing a grievance is misplaced. Even when a process might appear futile, exhaustion is still required under the PLRA. See Varner v. Shepard, 11 F.4th 1252, 1264 (11th Cir. 2021) (citing Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000)). The Eleventh Circuit explained in Higginbottom that “the exhaustion requirement cannot be waived based upon the prisoner's belief that pursuing administrative procedures would be futile.” Higginbottom, 223 F.3d at 1261. Therefore, Plaintiff's futility argument cannot show that the grievance process operated as a “dead end” and was unavailable under Ross.
Plaintiff has modified his arguments about the unavailability of forms throughout his case to counter Defendant's evidence that the grievance process was available to WSP inmates, including those inmates in segregation. In his complaint, Plaintiff argues that forms were not available due to staffing shortages. (Doc. 1). In response to Ms. Dunagan's declaration that forms were available to inmates (Doc. 20-1, p. 4; Doc. 26-1), he argues not only that forms were generally unavailability (Doc. 24), but also that he requested a grievance form once he returned from Augusta State Medical Prison and never received one. (Doc. 27). Plaintiff does not specify to whom this request was made. (Id.)
To the extent that Plaintiff's allegations suggest prison staff thwarted him from filing grievances by making the forms hard to get or by failing to bring him a form, the record contradicts such contentions. Plaintiff admits that WSP had a grievance process and that he is familiar with the standard policies at the prison. See (Doc. 24). Ms. Dunagan confirmed that WSP's grievance policy existed and that forms were available even to those in segregation. (Docs. 20-2; 26-1). She acknowledged that WSP faced staffing shortages, but she also explained that in July 2022, when the incident underlying the Plaintiff's remaining claims occurred, counselors made weekly rounds for the purposes of collecting grievances. (Doc. 20-1, p. 4, ¶ 13). Even taking Plaintiff's description of the practical grievance process from his complaint and responses as true, the Court would have to find that he intended to submit a grievance but had no access to a grievance form since July 2022.
If Plaintiff's contention that forms were withheld or unavailable is true, it would follow that when forms were available upon his transfer to a different prison,he could have availed himself of the out-of-time/good cause provisions of the grievance policy to grieve the assault incidents raised in his complaint, However, his grievance history shows that he has not filed any grievance since October 31, 2018 (Doc. 20-2, p. 41). Plaintiff had the opportunity to file a grievance when he was at Augusta State Medical Prison following the attack, and he knew that out-of-time grievances could be filed and possibly accepted for good cause because he says that he asked for one after returning to WSP. (Doc. 27). The most plausible explanation based on Plaintiff's shifting explanations, and the record before the Court, is that Plaintiff did not attempt to use the grievance policy or exhaust his claims before filing suit. The record thus fails to support that the third Ross exception applies to Plaintiff's case. Based on the record before the Court, the grievance process was available to Plaintiff, and he is not excused from the requirement to exhaust.
Plaintiff states that he went to August State Medical Prison following the July 2022 attack (Doc. 27). When Plaintiff filed his suit, he was no longer at WSP. See (Doc. 1-1, p. 6).
In his complaint, Plaintiff lists fellow inmates John Fitzpatrick and Marcus Jackson as witnesses. Both Mr. Fitzpatrick and Mr. Jackson's cases were dismissed for failure to exhaust. Those plaintiffs also argued unavailability, including Mr. Jackson who was able to file three grievances at WSP in April and June 2022. See generally Jackson v. Whittington, 5:22-cv-249-MTT-CHW and Fitzpatrick v. Whittington, 5:22-cv-82-MTT-CHW.
B. Plaintiff failed to exhaust the available administrative remedies as required.
As the evidence submitted shows that 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 date of filing of Plaintiff's complaint serves as the date before which 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 when a plaintiff files an amended complaint. The Court concluded that “‘brought' means ‘commenced.'” Id. at 974. Amending or supplementing the complaint in an attempt to establish exhaustion that was not complete on the date 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 amendments that do 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 November 17, 2022. (Doc. 1).
Because Plaintiff did not file a grievance, he did not properly exhaust prior to filing suit. Plaintiff does not provide a specific date for when his claims arose, only that he was attacked in July 2022. Even if Plaintiff had filed a grievance, it is unlikely that the full grievance process would have been completed as required by the time he filed suit in November 2022. 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)). At a minimum the grievance process allows 160-days from grievance to appeal response. Accounting for a July 2022 incident date, the grievance process would have been completed on December 8, 2022, at best, and on January 7, 2023, at worst. Both dates come after Plaintiff commenced suit. Because Plaintiff did not exhaust his administrative remedies prior to filing suit as required by the PLRA, Plaintiff's complaint should be dismissed under the second step of Turner.
CONCLUSION
Because the record demonstrates that Plaintiff did not exhaust his available administrative remedies as required, it is RECOMMENDED that Defendant's motion for judgment on the pleadings (Doc. 20) be GRANTED and that Plaintiff's claims be DISMISSED. Based on this recommendation, discovery is no longer needed. The parties' motions to reopen and for extension of discovery (Docs. 21, 31) are DENIED as futile.
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 ORDERED AND RECOMMENDED, this 25th day of June, 2024.