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Gholston v. Morales

United States District Court, Middle District of Georgia
Dec 14, 2021
5:20-cv-491-MTT-CHW (M.D. Ga. Dec. 14, 2021)

Opinion

5:20-cv-491-MTT-CHW

12-14-2021

DEANTE GHOLSTON, Plaintiff, v. Warden JOSE MORALES, et al., Defendants.


REPORT AND RECOMMENDATION PROCEEDINGS UNDER 42 U.S.C. §1983 BEFORE THE U.S. MAGISTRATE JUDGE

Charles H. Weigle United States Magistrate Judge

Before the Court is a motion to dismiss filed by the Defendants. (Doc. 33). Because Plaintiff failed to exhaust his prison grievance remedies prior to commencing this action, it is RECOMMENDED that the Defendants' motion be GRANTED, and that Plaintiff's pending motion to supplement (Doc. 47, 48), which seeks uncertain relief, be DENIED.

BACKGROUND AND PLAINTIFF'S MOTION

In this Section 1983 action, Plaintiff Deante Gholston, a Georgia prisoner, advances two claims of constitutional wrongs. First, Plaintiff contends that he was transferred, without sufficient procedural safeguards, from the SMU's C-Wing into the E-Wing, where conditions are allegedly more harsh. The nature of this November 2020 transfer, Plaintiff argues, violated the Fourteenth Amendment's due process clause.

SMU refers to the Special Management Unit of the Georgia Diagnostic and Classification Prison.

Second, Plaintiff claims that conditions within E-Wing are so unbearable that they violate the cruel and unusual punishments clause of the Eighth Amendment. In particular, Plaintiff complains that after his November 2020 transfer, he slipped in a puddle of excrement that had collected within his E-Wing cell and thereby suffered an injury to his finger.

Plaintiff commenced this Section 1983 action only a month after his slip and fall, in December 2020. As discussed below, the Prison Litigation Reform Act (PLRA) required Plaintiff to exhaust the prison grievance process prior to commencing this action. Smith v. Terry, 491 Fed.Appx. 81, 83 (11th Cir. 2012). Insofar as Plaintiff seeks, in his pending motion (Doc. 47), to waive the exhaustion requirement in this or another action, the Court cannot grant that relief. Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir. 1998) (“there is no longer discretion to waive the exhaustion requirement”). Similarly, Plaintiff may not employ relation-back amendment rules to render effective, in this action, any post-commencement exhaustion efforts. See Harris v. Garner, 216 F.3d 970, 981 (11th Cir. 2000) (“such an amendment or supplement makes no difference”). Accordingly, it is recommended that Plaintiff's pending motion be denied.

EXHAUSTION

In their pending motion to dismiss, the Defendants raise the defense of failure to exhaust. 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:

[L]ooks 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:

[P]roceeds 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 PROCEDURES

Two grievance procedures are relevant to the Court's exhaustion analysis in this action. The first such procedure is Georgia Department of Corrections Standard Operating Procedure (GDC SOP) No. 227.02. (Doc. 33-3). Under the rules therein, prisoners must follow a two-step process by first filing an “original grievance” within ten days of any grievable issue. (Doc. 33-3, p. 9). The original grievance is then screened by prison staff, and either rejected or investigated. The grievance procedure further provides that a response of some kind is due within 40 days of the date of an original grievance's submission, with the possibility of a 10-day extension on written notice. (Doc. 33-3, p. 12). On either the expiration of this response period or upon the prisoner's receipt of a response, the prisoner must next file a “central office appeal” within seven days. (Doc. 33-3, p. 15). The grievance procedure then contemplates a 120-day period in which the Warden may provide a response to the central office appeal. (Doc. 33-3, p. 16).

Disciplinary actions, such as transfers for misbehavior, are not “greivable issues, ” and hence, a different procedure set by GDC SOP 209.01 (effective September 2019) governs. See (Doc. 33-3, p. 5). Transfers into the SMU (also known as Tier III), along with transfers within the SMU to its most restrictive wings, E-Wing and F-Wing, require “a formal hearing” upon the recommendation of transfer. (Doc. 33-9, pp. 4, 8). After this hearing, the prisoner may object to any recommendation of transfer by filing an Assignment Appeal Form within 14 days of his receipt of notice of assignment. (Doc. 33-9, pp. 8-9). If the prisoner appeals, GDC SOP 209.01 contemplates a further two-step process pursuant to which the Director of Field Operations and the Assistant Commissioner for Facilities both conduct an additional review. (Doc. 33-9, p. 9).

ANALYSIS

The record shows that Plaintiff commenced this Section 1983 action before he exhausted available prison remedies. This conclusion holds true both for Plaintiff's Eighth Amendment conditions of confinement claim and for his Fourteenth Amendment due process claim. As a result, it is recommended that the Defendants' motion to dismiss be granted.

I. Eighth Amendment

By design, the SMU consists of a series of phases or wings that provide prisoners with “progressively more privileges.” (Doc. 33-9, p. 4). Plaintiff argues that conditions within E-Wing, the SMU's most restrictive wing, violate the Eighth Amendment's cruel and unusual punishments clause. In part, Plaintiff's claim is founded on a lack of access to amenities such as a television and a phone. Plaintiff's Eighth Amendment claim is also founded upon the allegedly unsanitary conditions within his E-Wing cell and, specifically, on the allegation that Plaintiff's cell was polluted with “blood and feces, ” along with “urine and water leaking from the toilet.” (Doc. 39-1, p. 1).

Plaintiff asserts that he attempted to file a prison grievance relating to conditions within E-Wing but that he was “blocked by Hargrove and other counselors, ” who “refused to take his grievances.” (Doc. 39-1, pp. 1-2). At Turner's first step of review, Plaintiff's assertions must be accepted as true. Because prisoners need not exhaust a grievance process that is not available, Ross v. Blake, 578 U.S. 632, 644 (2016), a dismissal at Turner's first step would not be proper.

A dismissal is proper, however, at Turner's second step of review because three factors discredit Plaintiff's allegations that the prison grievance process was unavailable. First, the declaration of Charles Hargrove, now the Deputy Warden and Grievance Coordinator at the Georgia Diagnostic and Classification Prison, credibly indicates both that Plaintiff filed no grievances “from November 30, 2020[, ] through January 5, 2021, ” and that Plaintiff “never complained to me directly about [unsanitary conditions], nor did he ever submit a grievance to me complaining about the same.” (Hargrove Decl., Doc. 33-2, pp. 6, 9).

Second, Plaintiff's grievance history strongly indicates both that the grievance process was available to Plaintiff and that Plaintiff is familiar with the requirements of the grievance process. As Plaintiff acknowledges, the record indicates that Plaintiff has filed “145 grievances while housed at [the] SMU.” (Doc. 39-1, p. 3). See also (Doc. 33-5, pp. 2-5) (grievance history). The record also shows that Plaintiff filed at least two original grievances, No. 321275 (Doc. 33-6, p. 2) and No. 321292 (Doc. 33-7, p. 2), roughly one month after he commenced this action. The existence of these contemporaneous original grievances, the substance of which pertains to conditions within the SMU, strongly indicates that the grievance process was in fact available to Plaintiff, and that prison officers were not refusing to accept Plaintiff's grievances for processing, as Plaintiff contends.

Third and finally, the timing of this action itself constitutes a third factor weighing against Plaintiff's account of events. Plaintiff was transferred into E-Wing on November 30, 2020. (Doc. 1, p. 14). Under the prison mailbox rule, Plaintiff commenced this action only three weeks later, on December 21, 2020. (Doc. 1-5, p. 2). Although the allegations Plaintiff raises regarding his conditions of confinement are colorable, this short span of time, combined with Plaintiff's grievance history and officer Hargrove's credibly declaration, all evince that Plaintiff failed to afford prison officials at the Georgia Diagnostic and Classification Prison an opportunity to rectify the problems of which Plaintiff now complains. Because Plaintiff failed to do so, his federal lawsuit should be dismissed.

II. Fourteenth Amendment

Plaintiff's due process claim is also subject to dismissal for failure to exhaust prison remedies based upon Plaintiff's failure to appeal his intra-SMU transfer from C-Wing into E-Wing as contemplated by GDC SOP 209.01.

The record indicates that Plaintiff first entered the SMU in June 2020, based upon “negative behavior” including “throwing both feces and bleach into the facial area and body of [two] different staff members, ” along with other misconduct, such as possessing shanks. (Doc. 33-4, p. 2; Doc. 33-8, p. 2). In November 2020, and again in January 2021, Plaintiff was subject to disciplinary transfers within the SMU to more restrictive wings or phases. See (Doc. 33-4, p. 2). In part, Plaintiff filed this action to complain of the first such transfer, which occurred on November 30, 2020. Specifically, Plaintiff contends that his transfer was “arbitrary” in that the transfer was unaccompanied by any disciplinary report or formal hearing. See (Doc. 1, p. 14). Little information is now available to the Court regarding the nature of Plaintiff's transfer or any accompanying process, but the Defendants argue that Plaintiff failed to challenge the transfer by exhausting the available appeals process, and the record supports the Defendants' argument.

At Turner's first step of review, Plaintiff alleges that he “turned in a classification form to challenge the move which was never responded to.” (Doc. 1, p. 15). Accord (Doc. 39-1, p. 1) (“he filed [a] classification appeals however the defendants are lying as to [it] being turned in”). Liberally construed in Plaintiff's favor, this allegation suggests that Plaintiff completed and filed an Assignment Appeal Form contesting his November 2020 intra-SMU transfer to E-Wing. See (Doc. 33-10, p. 2) (Assignment Appeal Form). The Court must accept Plaintiff's allegations as true at Turner's first step, and hence, a dismissal is not proper at that step of review.

At Turner's second step of review, the Court may weigh the credibility of Plaintiff's allegations against other available evidence. To this end, the declaration of Officer Hargrove credibly indicates that “there is no evidence [Plaintiff] appealed his movement from Building C to Building E of the SMU in 2020.” (Doc. 33-2, p. 9). The absence of any such form in the record bolsters Hargrove's testimony. Hargrove attests both that Plaintiff “never submitted a Tier III Appeal Form to me, nor did I ever refuse to provide him with a response from Warden Morales about the same, ” and also that Plaintiff “never submitted an Appeal Form after he was placed in Building E either to me or any other counselor.” (Doc. 33-2, p. 9).

These sworn statements by Hargrove are more credible that Plaintiff's vague assertions that prison officers blocked or rejected Plaintiff's efforts to file a classification appeal. Accordingly, at Turner's second step of review, it is recommended that the Court (a) find Hargrove's declaration credible, (b) find that Plaintiff failed to appeal his intra-SMU transfer as contemplated by GDC SOP 209.01, and (c) rule that Plaintiff failed to exhaust available administrative remedies relating to his due process claim. Accordingly, as to Plaintiff's due process claim, the Defendants are also entitled to a dismissal for failure to exhaust.

PLAINTIFF'S MOTION TO SUPPLEMENT

Plaintiff has filed two motions (Docs. 47, 48) related to a request to file a supplemental complaint adding new claims and new defendants, following a series of letters complaining about various incidents and conditions at the SMU (Docs. 40, 41, 42, 43, 44, 45, 50, 51). In the first motion (Doc. 47), Plaintiff requests permission to

proceed with filing a supplement to my 1983 or file another lawsuit without going through GRU process as defendants are making exhaustion unavailable due to them refusing to respond/return classification appeals, respond to GRUs and/or provide GRU numbers so I can appeal GRUs they refuse to respond to, and my GRU appeals, or will you order them to handle my GRUs and appeals and classification appeals so I may proceed.
(Doc. 47).
In the second motion (Doc. 48), Plaintiff “requests leave to file a supplemental complaint adding parties and claims.” Plaintiff filed a proposed supplemental complaint (Doc. 49) along with this motion. The proposed supplemental complaint restates the allegations from the original complaint and adds new claims related to incidents and events that took place after the filing of this case, including a subsequent transfer back to E-wing on January 13, 2021, a transfer to F-wing on August 20, 2021, a use of force incident on September 2, 2021, and ongoing failure to provide medical care for his injured finger.

Because these new claims involve incidents that took place after the filing of the present lawsuit, it is clear that Plaintiff did not exhaust administrative remedies related to these claims prior to filing suit. In fact, documents submitted by Plaintiff show that the grievance process is ongoing as to two of the incidents. Plaintiff's Exhibit B (Doc. 49-2, p. 2) shows that Plaintiff filed a grievance related to the September 2, 2021 use of force incident on September 6, 2021. A letter from the Warden dated October 18, 2021, (Doc. 49-2, p. 3), shows that the allegation had been referred to the Georgia Department of Corrections Criminal Investigations Division for review, in essence granting the relief Plaintiff requested in his grievance. As to the denial of medical care, Plaintiff filed a grievance dated March 15, 2021, claiming that he had not been seen by a doctor since the injury. The warden's response, dated April 20, 2021, indicates that medical staff indicated Plaintiff “has been seen and medical issues addressed.” (Doc. 49-4, p. 2). Rather than an acknowledgement of receipt, the response has a handwritten note stating, “Offender Gholston rpts as of 4/21/2021 has not been seen regarding his finger.” A subsequent memorandum indicates that following Plaintiff's contention that he still had not been seen as of April 21, 2021, the grievance was “being forwarded to Health Services for review and any action deemed appropriate.” (Doc. 49-4, p. 5). This memorandum is undated except for a handwritten date of November 12, 2021, which appears to be in Plaintiff's handwriting and accompanied by Plaintiff's signature. Finally, Plaintiff's grievance related to his subsequent transfer back to E-wing was granted. The record does not show the date this grievance was filed but does show that Plaintiff filed an appeal from the denial of the grievance on October 25, 2021. (Doc. 49-3, p. 2). On November 2, 2021, the appeal was granted, and Plaintiff was ordered transferred back to another wing in the Tier III program. (Doc. 49-3, p. 4).

Because the record shows that Plaintiff did not exhaust administrative remedies related to his new claims prior to filing suit in this case, it is further RECOMMENDED that Plaintiff's motion for leave to file a supplemental complaint be DENIED, without prejudice to his ability to refile these claims in a new action.

CONCLUSION

Because Plaintiff failed to exhaust his administrative remedies prior to commencing this action, it is RECOMMENDED that the Defendants' motion to dismiss (Doc. 33) be GRANTED. It is further RECOMMENDED that Plaintiff's pending motion for leave to file a supplemental complaint (Docs. 47, 48) 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,


Summaries of

Gholston v. Morales

United States District Court, Middle District of Georgia
Dec 14, 2021
5:20-cv-491-MTT-CHW (M.D. Ga. Dec. 14, 2021)
Case details for

Gholston v. Morales

Case Details

Full title:DEANTE GHOLSTON, Plaintiff, v. Warden JOSE MORALES, et al., Defendants.

Court:United States District Court, Middle District of Georgia

Date published: Dec 14, 2021

Citations

5:20-cv-491-MTT-CHW (M.D. Ga. Dec. 14, 2021)