Opinion
5:22-cv-00338-CAR-CHW
07-14-2023
ARMOND GIBSON, Plaintiff, v. MACON STATE PRISON, et al., Defendants.
REPORT AND RECOMMENDATION
Charles H. Weigle, United States Magistrate Judge
Plaintiff Armond Gibson, a state inmate, filed a pro se civil rights complaint seeking relief under 42 U.S.C. § 1983 regarding his confinement in Macon State Prison. (Docs. 1, 7). Defendant Knight, the remaining defendant, has filed a motion to dismiss based on Plaintiff's failure to exhaust. Plaintiff did not respond to the motion as directed. Because Plaintiff failed to exhaust his available remedies before bringing this action, it is RECOMMENDED that Defendant's motion (Doc. 15) be GRANTED and that Plaintiff's claims against Defendant be DISMISSED without prejudice.
BACKGROUND
Plaintiff brought this action on September 7, 2022, alleging constitutional claims against several prison officials related to a June 2022 fire in Plaintiff's cell at Macon State Prison (MSP). (Doc. 1). The Court ordered Plaintiff to file an amended complaint, which Plaintiff did on November 14, 2022. (Docs. 6, 7). Following screening of Plaintiff's complaint under 28 U.S.C. § 1915A, the Court allowed Plaintiff to proceed on his conditions-of-confinement claim against Defendant Knight. (Docs. 8, 11). Plaintiff's remaining claims were dismissed, including all claims against other defendants. (Id.) Defendant filed a pre-answer motion to dismiss. (Doc. 15). The Court gave Plaintiff notice of the motion to dismiss and ordered Plaintiff to respond. (Doc. 18). Plaintiff did not file a response. Defendant moves to dismiss Plaintiff's complaint primarily for Plaintiff's failure to exhaust his administrative remedies, but also raises an immunity defense.
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).
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. 15-2, Attachment 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 to dismiss Plaintiff's complaint under the PLRA's exhaustion requirement. (Doc. 15). He argues that because Plaintiff did not fully exhaust before he originally filed suit, he failed to exhaust his available administrative remedies. (Id.) In addition to exhaustion, Defendants also suggest that any claims against him in his official capacity are barred under the Eleventh Amendment and sovereign immunity. (Id.)
1. Plaintiff did not properly exhaust prior to filing suit.
Determining whether dismissal is appropriate requires applying the test outlined in Turner to see if Plaintiff failed to exhaust the administrative remedies available to him. In first considering whether dismissal for failure to exhaust is appropriate under Turner's step one, a court must first consider all the alleged facts construed in favor of Plaintiff when the facts conflict. Plaintiff alleges that he filed a grievance regarding the matters in his complaint. (Docs. 1, p. 4; 7, p. 1). Therefore, when the pleadings are construed in Plaintiff's favor, his claims survive under step one of Turner. Under step two of Turner, however, the record shows that Plaintiff failed to exhaust his administrative remedies prior to filing suit.
Under Turner's second step, any disputed facts must be examined to determine if Plaintiff exhausted the available administrative remedies prior to filing suit. In support of his motion to dismiss for failure to exhaust, Defendant provided copies of Plaintiff's grievances and a declaration from Curtis Jeffries, who is the chief counselor and grievance coordinator at MSP. (Doc. 15-2). Plaintiff was housed at MSP from December 6, 2016, until January 12, 2023 (Id., p. 5, ¶ 13), and his grievance history log shows that he filed one grievance, Grievance No. 340483, on June 28, 2022. (Id., p. 49). While this grievance concerns the fire in Plaintiff's cell and was filed prior to Plaintiff commencing suit, the grievance was not properly exhausted as required by the PLRA.
Plaintiff filed Grievance No. 340483 on June 28, 2022, complaining that a fire broke out in his cell on June 27, 2022. (Id., p. 52). Plaintiff stated that because the cell did not have a working sprinkler system, he was burned and suffered smoke inhalation before help arrived to remove him from the cell and extinguish the fire. (Id.) After an investigation, and well beyond the grievance policy's response timeframe, the warden denied the grievance on January 24, 2023. (Id., p. 51). Plaintiff refused to sign to acknowledge the denial. (Id.) Plaintiff did not appeal. (Id., p. 5, ¶ 15; p. 49).
The PLRA requires exhaustion prior to filing suit. 42 U.S.C. § 1997e(a). Plaintiff's complaint serves as the marker for whether he properly exhausted his available administrative remedies as required. Harris v. Garner, 216 F.3d 970 (11th Cir. 2000). In Harris, the Eleventh Circuit, sitting en banc, considered the question of what the word “brought” means in the context of the PLRA requirements and an amended complaint. The Court concluded that “‘brought' means ‘commenced.'” Id. at 974. Even amending or supplementing the complaint to show exhaustion which did not exist when 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 where amendment will 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 September 7, 2022.
Plaintiff did not properly exhaust his grievance prior to filing suit. While the grievance covering the fire in his cell was filed before Plaintiff commenced this action, Plaintiff did not appeal the grievance. Defendant admits that the warden initially denied the grievance and issued his response well beyond the 40-day time frame contemplated by the grievance policy (Doc. 151, p. 7), but the failure to receive a response within the time frame did not foreclose Plaintiff's ability to appeal. In fact, Plaintiff had two options to appeal his grievance and exhaust the available administrative remedies. He could have filed an appeal once the warden's time to respond had elapsed. (Doc. 15-2, Ex. 1, p. 14). Plaintiff's second option would have been to appeal once he finally received the warden's response in January 2023. (Id.) Plaintiff chose neither of these options but, instead, filed this suit. The full grievance process was not completed prior to commencing suit as required. Therefore, this action should be dismissed without prejudice for Plaintiff's failure to exhaust his administrative remedies.
2. Plaintiff's claims for money damages are barred against Defendant in his official capacity under the Eleventh Amendment.
Defendant also moves to dismiss any money claims against him in his official capacity. To the extent that Plaintiff seeks to recover money damages against Defendant in his official capacity, such claims would be barred by the Eleventh Amendment and 42 U.S.C. § 1983. See generally, Kentucky v. Graham, 473 U.S. 159, 169 n. 17. Defendant was employed by the Georgia Department of Corrections at MSP when the incident underlying Plaintiff's claims occurred. The State of Georgia has not waived sovereign immunity, and Section 1983 was not meant to abrogate a state's Eleventh Amendment sovereign immunity, therefore Plaintiff is barred from suing Defendant in his official capacity for damages. Section 1983 itself also precludes any officialcapacity claims against Defendant for nominal damages because the state is not a person for under the meaning of Section 1983. Moody v. City of Delray Beach, 609 Fed.Appx. 966, 967 (11th Cir. 2015) (quoting Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)). Section 1983 provides no remedy for the Plaintiff against Defendant in his official capacity.
CONCLUSION
It is RECOMMENDED that Defendants' motions to dismiss (Doc. 15) be GRANTED and that Plaintiff's case be DISMISSED without prejudice.
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 RECOMMENDED.