Dickerson v. LT. Zirkel

Full title: TAURUS BERNARD DICKERSON, Plaintiff, v. LT. ZIRKEL, et al., Defendants.

Court: United States District Court, Middle District of Georgia

Date published: Jun 23, 2021

7:20-CV-08 (HL) (M.D. Ga. Jun. 23, 2021)

Opinion

7:20-CV-08 (HL)

06-23-2021

TAURUS BERNARD DICKERSON, Plaintiff, v. LT. ZIRKEL, et al., Defendants.

THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE

ORDER AND RECOMMENDATION

THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE

Plaintiff effectively filed this action pursuant to 42 U.S.C. § 1983 in January 2020. (Doc. 1). By Order dated July 14, 2020, Plaintiff's claims regarding contaminated food, excessive force, deliberate indifference to safety, and retaliation were allowed to proceed. (Doc. 9).

Presently pending herein are Defendants' Motion to Dismiss, Plaintiff's Motion for Protective Order, and Plaintiff's Motion to have written interrogatories filed. (Docs. 19, 29, 30). The Court notified the Plaintiff of the filing of the pending motion to dismiss and directed him to respond thereto within twenty-one (21) days of the Court's Order. (Doc. 21). Plaintiff has responded to Defendants' Motion. (Doc. 26).

According to Plaintiff's Complaint, while he was confined at Valdosta State Prison beginning in July 2017, Defendants Stewart, Williams, CO II Sharp, and Sergeant Sharp allowed other inmates to contaminate Plaintiff's food, with the knowledge of Defendant Zirkel. Plaintiff further alleges that Defendant Sergeant Sharp tased Plaintiff on two (2) occasions in retaliation, that Defendants Stewart, COII Sharp, Williams and Sergeant Sharp dry tased Plaintiff, and that Defendant Zirkel pepper-sprayed Plaintiff on two (2) occasions for no reason. Plaintiff maintains that all Defendants made threats of harm against him. Plaintiff further alleges that Defendant Zirkel intentionally endangered Plaintiff's safety with other inmates by telling the dorm that Plaintiff was a “rat” and Plaintiff alleges that a hit had been placed on Plaintiff by Defendant Stewart. Finally, Plaintiff alleges that Defendants retaliated against him by threatening Plaintiff with physical violence for his filing of grievances. (Docs. 1, 9).

RECOMMENDATION

Motion for protective order

In a letter filed on the docket on November 23, 2020, Plaintiff appears to seek an order placing him in protective custody. (Doc. 29). To the extent that Plaintiff is seeking injunctive relief, he has failed to satisfy the standard for granting such relief. In order to obtain injunctive or declaratory relief, the Plaintiff must prove that: (1) there is a substantial likelihood that he will prevail on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11^th Cir. 1985); Snook v. Trust Co. of Georgia Bank of Savannah, N.A., 909 F.2d 480, 483 (11^th Cir. 1990). Accordingly, it is the recommendation of the undersigned that Plaintiff's request for injunctive relief be DENIED. (Doc. 29).

Motion to Dismiss

In their Motion to Dismiss, Defendants maintain that certain of Plaintiff's claims are unexhausted. (Doc. 19). Specifically, Defendants assert that Plaintiff's excessive force claim that Sergeant Sharp tased Plaintiff on two (2) occasions because Plaintiff would not drop a grievance¹, Plaintiff's excessive force claim that Defendants Stewart, COII Sharp, and Williams dry-tased Plaintiff, Plaintiff's claims of excessive force against Defendants Zirkel and Stewart, Plaintiff's claims of threats of harm by Defendants, Plaintiff's deliberate indifference to safety claims against Defendants Zirkel and Stewart, and Plaintiff's retaliation claims against Defendants Zirkel, Sharp, Stewart, and Sharp are unexhausted. Discovery was stayed as to all issues except the exhaustion of administrative remedies. (Doc. 21). Plaintiff has filed a response to Defendants' Motion to Dismiss. (Doc. 26).

1 Defendants appear to list this claim, that Sergeant Sharp tased Plaintiff on two (2) occasions because Plaintiff would not drop a grievance, twice, although the Court only identified one such claim as being allowed to go forward. (Doc. 19-1, p. 2; Doc. 9).

A motion to dismiss can be granted only if Plaintiff's Complaint, with all factual allegations accepted as true, fails to “raise a right to relief above the speculative level”. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556, 570).

In regard to exhaustion of administrative remedies, the Prison Litigation Reform Act (“PLRA”) mandates that all prisoners wishing to bring suits pursuant to § 1983 based on conditions of confinement violations must exhaust all available administrative remedies prior to filing a federal action. The Act provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, 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). In order to satisfy the exhaustion requirement, an inmate must fully pursue all available administrative remedies, including pursuing and completing all levels of appeal. Moore v. Smith, 18 F.Supp.2d 1360, 1363 (N.D.Ga. 1998); Harper v. Jenkin, 179 F.3d 1311 (11th Cir. 1999) (inmate who failed to seek leave to file an out-of-time grievance failed to exhaust his administrative remedies as required by the PLRA). “An inmate must use all steps in the administrative process and comply with any administrative deadlines and other critical procedural rules before exhaustion is proper. Thus, if an inmate has filed an ‘untimely or otherwise procedurally defective administrative grievance or appeal', he has not properly exhausted his administrative remedies.” Woodford v. Ngo, 548 U.S. 81, 89-92 (2006).

The Eleventh Circuit has held that

deciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process. 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 version of 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....If the complaint is not subject to dismissal at the first step, where the plaintiff's allegations are assumed to be true, the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.

Turner v. Burnside, 541 F.3d 1077, 1082 (11^th Cir. 2008).

In his Complaint, Plaintiff states that he filed a grievance which was denied initially and on appeal. (Doc. 1, pp. 3-4). Thus, Plaintiff's pending claims are not subject to dismissal pursuant to the first step of the Turner analysis. See Whatley v. Warden, Ware State Prison, -- F.3d --, 2015 WL 5568465 *5 (11^th Cir. 2015) (under Turner analysis, court must accept plaintiff's facts as true and ask whether, given those facts, the alleged grievances exhausted administrative remedies; court must make specific findings to resolve disputed factual issues related to exhaustion).

Defendants establish, by means of the affidavit testimony of Heather Davis, Chief Counselor/Grievance Coordinator at Valdosta State Prison, that a statewide grievance process was in place at the Georgia Department of Corrections, and specifically at Valdosta State Prison, at the time of the incidents underlying this lawsuit. (Doc. 19-2, ¶¶ 2-4). According to Davis' affidavit testimony, the inmate must submit a completed formal grievance form no later than ten (10) days from the date the inmate knew, or should have known, of the facts giving rise to the grievance. Id. at ¶ 7. The original grievance is screened by the Grievance Coordinator, who makes a recommendation to the Warden. Id. at ¶ 8. The inmate may appeal the Warden's decision to the Central Office, either within 7 days of receipt of the response, or after the expiration of the 40-day time period for the Warden's decision. Id. at ¶ 9.

Counselor Davis states that Plaintiff filed one (1) grievance pertaining to food service while he was confined at Valdosta State Prison, and one (1) grievance alleging that Defendant Sergeant Sharp dry tased him. Id. at ¶ 12. Plaintiff filed Grievance No. 247979 in July 2017, regarding allegations pertaining to food service. Id. Specifically, Plaintiff alleged that the vegan trays were not clean, were transported without tops and contained flies. (Doc. 19-7, p. 3). Plaintiff's grievance history shows that Grievance No. 247979 was filed on July 25, 2017, was denied initially, and was denied on appeal on March 1, 2018. (Doc. 19-6, p 1).

Plaintiff filed Grievance No. 278868 in November 2018, raising allegations concerning food and an allegation that he was dry tased by Sergeant Sharp. Id. Specifically, Plaintiff alleged that Defendants COII Sharp and Williams were placing waste in his food, that Plaintiff reported this to Defendant Zirkel, and that Defendant Sergeant Sharp tased him without the use of a camera. (Doc. 19-8, pp. 1-3). Plaintiff filed Grievance No. 278868 on November 26, 2018, and the grievance was denied initially and on appeal on November 12, 2019.

Counselor Davis states that Plaintiff did not file any grievances regarding his claims of excessive force other than the allegation in Grievance No. 278868 regarding dry tasing by Defendant Sergeant Sharp, and did not file any grievances regarding his claims of deliberate indifference to safety or retaliation as raised in this lawsuit. Id. at ¶¶ 13-15.

In response to Defendants' Motion to Dismiss, Plaintiff asserts that he exhausted all administrative remedies, to the best of his ability. (Doc. 26). Plaintiff states that he was transported between prisons for medical treatment, and that although he tried to grieve his complaints, it was “hard when Plaintiff isn't safe”. (Doc. 26, p. 2). Plaintiff states that he tried to comply with the grievance procedure by filing an emergency grievance, and that Deputy Warden Woods refused to take the grievance because she did not have time to investigate his claims. Id. Plaintiff references his original Complaint, wherein he stated that he filed a grievance on November 26, 2018, which was denied, and he appealed the denial on September 6, 2019. Id. Plaintiff also states that he tried to file other grievances, but does not detail these efforts or results. Id. at p. 3. In an attachment to his original Complaint, Plaintiff states that he “went to medical” on August 1, 2017 and on August 14, 2018, and that he “was going to the prison hospital” between November 1, 2018 and March 4, 2019. (Doc. 1-1, p. 1). Plaintiff's movement history shows that he was housed at Augusta State Medical Prison between November 1, 2018 and November 6, 2018, and again between February 28, 2019 and March 7, 2019. Id. at p. 6.

In reply to Plaintiff's response, Defendants have submitted a supplemental affidavit from Counselor Davis, who states that Plaintiff was transferred from Valdosta State Prison to Augusta State Medical Prison on November 1, 2019 through November 6, 2019, and from February 28, 2019 to March 7, 2019. (Doc. 28-1, ¶ 5). Davis states that Plaintiff could have filed a grievance while he was confined at Augusta State Medical Prison but failed to do so. Id. at ¶ 9. Davis also states that she searched for but did not locate any emergency grievances submitted by Plaintiff. Id. at ¶ 8.

Defendants have also submitted a supplemental affidavit from Deputy Warden Woods, who states that Plaintiff did not give her an emergency grievance or a witness statement as he alleges in 2017, or at any other time. (Doc. 28-3, ¶ 3).

“[W]hen a state provides a grievance procedure for its 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 (11^th Cir. 2000). “[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules - rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007); see also Toenniges v. Georgia Dept. of Corrections, 600 F. A'ppx 645, 648 (2015) (prisoner must complete review process according to rules set forth in prison grievance system itself).

Taking the factual allegations presented by Plaintiff as true, the Court finds that the Plaintiff has not exhausted the identified claims, in that, he has not utilized all available remedies to grieve the alleged offenses. The affidavit testimony in support of the Defendants' motion establishes the presence of a grievance process at Valdosta State Prison, which was made known to Plaintiff, and establishes that the Plaintiff did not properly complete the process regarding the claims as identified by Defendants prior to filing this lawsuit. The record reveals that Plaintiff filed a grievance raising certain allegations, but not the claims identified by Defendants in their Motion to Dismiss as unexhausted. In Woodford, the Supreme Court reasoned that because proper exhaustion of administrative remedies is necessary an inmate cannot “satisfy the Prison Litigation Reform Act's exhaustion requirement . . . by filing an untimely or otherwise procedurally defective administrative grievance or appeal”, or by effectively bypassing the administrative process simply by waiting until the grievance procedures are no longer available to her. Woodford, 548 U.S. at 83-84. In order to properly exhaust, Plaintiff must use all steps of the available exhaustion procedure. Woodford, 548 U.S. at 93. Plaintiff was required to complete the entire grievance procedure before filing suit. Higginbotham v. Carter, 223 F.3d 1259, 1261 (11^th Cir. 2000);

It does not appear that this is a situation where administrative procedures were unavailable to Plaintiff based on officers being “unable or consistently unwilling to provide any relief to aggrieved inmates” or based on an administrative scheme “no ordinary prisoner can discern or navigate”. Ross v. Blake, 136 S.Ct. 1850, 1859 (2016). There is no indication that Plaintiff's use of the grievance process was actually prohibited by prison officials, by means of threat or otherwise. In order to demonstrate that administrative remedies were unavailable, the Plaintiff must point to specific facts showing that officials prohibited or blocked his use of the appeals process. Miller v. Tanner, 196 F.3d 1190, 1194 (11^th Cir. 1999) (inmate was not required to file an appeal after being told unequivocally, and in writing, that appeal was precluded; plaintiff produced memorandum denying grievance and informing plaintiff that no appeal was available); Turner, 541 F.3d at 1085 (prison official's serious threats of retaliation against an inmate for pursuing a grievance render administrative remedies unavailable).

Although Plaintiff contends that he was not able to file a grievance while he was transported to the prison medical hospital, Defendants have established that Plaintiff could have filed a grievance while he was confined at Augusta State Medical Prison, but he failed to do so. Moreover, pursuant to the Georgia Department of Corrections Grievance Policy, “[t]he Grievance Coordinator may waive the [10 day] time limit for good cause.” S.O.P. IIB05-0001 (VI)(C)(5)(b)(2). There is no evidence before the Court that Plaintiff attempted to establish good cause for any late filing of a grievance. Nor is there any evidence before the Court as to Plaintiff's medical condition that would establish his inability to complete a grievance during the ten-day time period as set out in the grievance policy. Additionally, the affidavit testimony of Deputy Warden Woods establishes that Plaintiff did not give her an emergency grievance or a witness statement as he alleges in 2017, or at any other time. (Doc. 28-3, ¶ 3).

It does not appear that this is a situation where administrative procedures were unavailable to Plaintiff based on officers being “unable or consistently unwilling to provide any relief to aggrieved inmates” or based on an administrative scheme “no ordinary prisoner can discern or navigate”. Ross v. Blake, 2016 WL 3128839, *7-8, 578 U.S. (2016). Although some courts have found that a prisoner's physical incapacity can render administrative remedies unavailable for purposes of the PLRA, a prisoner must have been physically or mentally incapable of complying with the grievance procedure and this incapacity must be shown in the record. Hurst v. Hantke, 634 F.3d 409 (7^th Cir. 2011); Braswell v. Corrections Corp. of America, 419 F. A'ppx 622 (6^th Cir. 2011); Days v. Johnson, 322 F.3d 863 (5^th Cir. 2003).

The record before the Court does not establish that Plaintiff was physically or mentally incapable of complying with the grievance procedure during the time period for filing a grievance or thereafter by seeking a waiver of the ten-day period for good cause. See Brazier v. Maricopa County Sheriff's Office, 2006 WL 753157 (D.Ariz. 2006) (prisoner's alleged incapacity due to injuries did not render administrative grievances exhausted; prisoner provided no evidence that he requested a time extension due to his injuries or that he filed a grievance upon his recovery).

“[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford, 548 U.S. at 93. Prisoners must “properly take each step within the administrative process” in order to exhaust administrative remedies in accordance with the PLRA. Bryant v. Rich, 530 F.3d 1368, 1378 (11^thCir. 2008).

Conclusion

As Plaintiff has not exhausted the identified claims, it is the recommendation of the undersigned that Defendants' Motion to Dismiss to the extent it addresses exhaustion issues, be GRANTED, and that Plaintiff's claims, as identified below, be DISMISSED without prejudice.

The following claims are recommended DISMISSED:

1. Excessive force against Defendant Zirkel.

2. Excessive force against Defendant Sergeant Sharp regarding tasing Plaintiff on two (2) occasions in retaliation.

3. Excessive force against Defendants Stewart, COII Sharp, and Williams regarding dry tasing Plaintiff.

4. Excessive force against Defendant Zirkel regarding pepper-spraying Plaintiff on two (2) occasions for no reason.

5. Threats of harm against all Defendants.

6. Deliberate indifference to safety against Defendant Zirkel.

7. Retaliation against all Defendants.

If this Recommendation is adopted, the following claims will remain pending:

1. Food contamination as to Defendants Stewart, Williams, COII Sharp, Sergeant Sharp, and Zirkel.

2. Excessive force against Defendant Sergeant Sharp regarding dry tasing Plaintiff.

Objections

Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to the recommendations herein, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the District Judge 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.”

ORDER

Plaintiff's request to have written interrogatories served on Heather Davis regarding his grievance history is DENIED as improper. (Doc. 30). Ms. Davis is not a party to this civil action, and thus, may not be served with interrogatories under Fed.R.Civ.P. 33. Plaintiff's motion is also denied because it seeks to have the Court conduct discovery for Plaintiff. The Court further notes that Plaintiff has had an opportunity to submit evidence on the question of his exhaustion of administrative remedies.

SO ORDERED and RECOMMENDED.