Opinion
5:22-cv-00282-TES-MSH
11-20-2023
QUAMELL MALIK GLOVER, Plaintiff, v. LIEUTENANT FULLER, et al., Defendants.
REPORT AND RECOMMENDATION
Stephen Hyles, United States Magistrate Judge
Pending before the Court is Defendants' motion for summary judgment (ECF No. 87). For the reasons explained below, it is recommended that Defendants' motion be granted.
PROCEDURAL BACKGROUND
Plaintiff Quamell Glover's claims arise from his confinement at Macon State Prison (“MSP”). Comp. 5, ECF No. 1. Glover contends that in retaliation for a Prison Rape Elimination Act (“PREA”) complaint against Defendant Fuller, Defendants came to his cell on April 1, 2021, and physically assaulted him.The Court received Glover's complaint on July 29, 2022 (ECF No. 1). After preliminary review, his excessive force and retaliation claims against Defendants were allowed to proceed for further factual development. Order & R. 9-10, Oct. 18, 2022, ECF No. 8; Order 1-2, Nov. 14, 2022, ECF No. 25 (adopting recommendation). Defendants moved for summary judgment on August 24, 2023 (ECF No. 87). After being given an extension of time to do so, Glover timely responded (ECF No. 91). Defendants' motion is ripe for review.
Glover has given different dates as to when this alleged assault occurred. His complaint suggested it occurred in August 2020. Compl. 5. In his deposition, he stated it occurred in March or April 2021. Pl.'s Dep. 58:15-20, ECF No. 87-4. In response to the motion for summary judgment, he contends it occurred on April 1, 2021. Pl.'s Resp. to Mot. for Summ. J. 1, ECF No. 91.
DISCUSSION
Defendants move for summary judgment, contending Glover failed to exhaust his administrative remedies. Defs.' Br. in Supp. of Mot. for Summ J. 5-15, ECF No. 87-2. The Court agrees and recommends Defendants' motion be granted and Glover's complaint be dismissed.
I. Exhaustion Standard
The Prison Litigation Reform Act (“PLRA”) 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.” 42 U.S.C. § 1997e(a). When a grievance procedure is provided for 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 (11th Cir. 2000) (emphasis added). “To exhaust administrative remedies in accordance with the PLRA, prisoners must properly take each step within the administrative process. If their initial grievance is denied, prisoners must then file a timely appeal.” Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (internal citation and quotation marks omitted). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The critical function of the grievance process is that it provides the institution with notice of a problem such that they have an opportunity to address the problem internally.” Toenniges v. Ga. Dep't of Corr., 600 Fed.Appx. 645, 649 (11th Cir. 2015) (per curiam).
“Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.” Bryant, 530 F.3d at 1374-75 (internal quotation marks omitted). Further, 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. “[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. In resolving the factual dispute, a Court is authorized to make credibility determinations. See Bryant, 530 F.3d at 1377-78 (finding district court did not clearly err in determining plaintiff's allegation that he was denied access to grievance forms was not credible); see also Whatley v. Smith, 898 F.3d 1072, 1082-83 (11th Cir. 2018) (upholding district court finding that one of inmate's grievances was not filed).
Such is the case here. Therefore, although Defendants argue exhaustion in a summary judgment motion, it will be treated as if raised in a motion to dismiss.
A prisoner need only exhaust administrative remedies that are available. Ross v. Blake, 578 U.S. 632, 642 (2016). In Ross, the Supreme Court held that an administrative procedure is unavailable under the PLRA when either (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates,” (2) it is “so opaque that it becomes, practically speaking, incapable of use,” or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 643-44. For a remedy to be available, it “must be capable of use for the accomplishment of its purpose.” Turner, 541 F.3d at 1084 (quotation marks omitted). The burden is on the defendant to show that an administrative remedy is available, but “once that burden has been met, the burden of going forward shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was subjectively and objectively unavailable to him.” Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020) (internal quotation marks omitted) (citing Turner, 541 F.3d at 1085). District courts must use the two-step Turner analysis when addressing the availability of the grievance process. See Jenkins v. Sloan, 826 Fed.Appx. 833, 839 (11th Cir. 2020) (per curiam) (directing district courts to apply “the two-step Turner test when addressing the question of exhaustion and the availability of the grievance process”).
II. MSP Administrative Procedures
Defendants have submitted the declaration of Deirdra Black-the Chief Counselor and Grievance Coordinator at MSP-to establish that administrative remedies were available to Glover at MSP. Black Decl. ¶¶ 2-3, ECF No. 87-3. Black's responsibilities include overseeing the grievance process at MSP and acting as custodian of institutional grievance records. Id. ¶ 2. According to Black, MSP follows the GDC Standard Operating Procedures (“SOPs”) regarding grievances. Id. ¶ 3.
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 the inmate knew or should have known of the facts giving rise to the grievance; and (2) file an appeal to the Central Office. Black Attachs. 18, ECF No. 87-3.After a grievance is filed, the grievance coordinator will screen the grievance and accept it for processing or recommend rejection of the grievance for one of the reasons enumerated in the SOPs, including raising a non-grievable issue, untimeliness, or raising more than one issue. Id. at 19. If a grievance is accepted, the warden has forty calendar days from the date the offender submitted the grievance to respond, though a one-time ten-day extension may be granted. Id. at 21. An inmate may file an appeal within seven days after the warden issues a decision or after the time allowed for the warden to decide expires. Id. at 24. The Commissioner has one hundred and twenty days within which to respond to a grievance appeal. Id. at 25. An inmate may also appeal a warden's rejection of a grievance. Id. at 20.
Because Black's declaration and exhibits were filed together as one document instead of separate attachments, the Court cites to Black's exhibits by using the document number and electronic screen page number shown at the top of each page by the Court's CM/ECF software as opposed to any other page number that may appear on the exhibits.
With certain exceptions not applicable here, an inmate “may file a grievance about any condition, policy, procedure, or action or lack thereof that personally affects the [inmate].” Black Attachs. 14. However, when the grievance alleges use of physical force by prison staff which is deemed non-compliant with GDC policies-and the grievance is accepted-the “facility shall forward a copy of the grievance packet containing all relevant information” to the GDC Office of Professional Standards, Criminal Investigation Division (“CID”) “for review and any action deemed appropriate.” Id. at 12, 22. Notification of the referral will be given to the inmate, who “must” sign an acknowledgement of receipt of the notification. Id. at 22. An inmate cannot appeal the referral, and the signing of the notice “effectively closes the grievance.” Id. If the grievance alleging physical force deemed to be non-compliance is rejected, the facility shall still forward the grievance to CID “for review and any action deemed appropriate.” Id. Again, the inmate must be notified of the decision and sign an acknowledgement of receipt. Id.
II. Plaintiff's Grievances
According to Black, Glover filed two grievances at MSP related to staff use-of-force. Black Decl. ¶¶ 16-19. The first is Grievance Number 313872, which Glover filed on September 11, 2020. Black Attachs. 38. In this grievance, Glover stated that on September 5, 2011, tactical squad officers came into his cell and started punching and kicking him. Id. Then, after he was handcuffed and removed from the cell, Fuller told the officers to put Glover's face “in the shit water.” Id. He stated he was then taken to the shower where he was again punched and kicked. Id. On September 21, 2020, the Warden rejected the grievance on a pre-printed form stating the inmate had “failed to follow the proper procedure for filing the formal grievance.” Id. at 39. However, the form stated the matter had been referred to CID. Id. Glover signed an acknowledgement of receipt of the grievance rejection and referral on September 25, 2020. Black Attachs. 39. The rejection did not state how the grievance was procedurally non-compliant, but included with the grievance is a report regarding an August 14, 2020, incident where Glover was handcuffed following a fight with another inmate and found to be in possession of a weapon. Id. at 40-44. Glover did not appeal the grievance rejection. Black Decl. ¶ 17.
The second grievance alleging staff use-of-force is Grievance Number 323228, which Glover submitted on April 7, 2021. Black Attachs. 64. The grievance related to the April 1, 2021, incident which is the subject of Glover's complaint. Id.; Pl.'s Resp. to Mot. for Summ. J. 1. The grievance began with a statement that it is a “retaliation grievance” regarding Fuller. Black Attachs. 64. The grievance then described how after Glover had spoken to investigators about a PREA complaint he had filed against Fuller, Defendants came to his cell and began taunting him, taking his property, and physically attacking him while he was naked. Id. He said he was finally able to escape the cell, but they were able to catch him and beat him again. Id. On May 17, 2021, the Warden rejected the grievance on the same pre-printed form as described above and again stated Glover had failed to follow the proper procedure for filing a formal grievance. Id. at 65. And once again, the form rejection did not explain how the grievance was procedurally non-compliant. Id. The rejection stated a copy of the grievance had been forwarded to CID, though, and Glover signed an acknowledgement of receipt of the grievance rejection and referral on June 7, 2021. Id. Glover did not appeal the grievance rejection. Black Decl. ¶ 19. Included with the grievance is an incident report summarizing Glover's interview with the PREA investigators on April 1, 2021, during which he alleged that Fuller had previously assaulted him after he had refused to allow another inmate in his cell. Black Attachs. 68. Glover contended Fuller “grabbed his butt and looked at his penis” during the incident. Id. Glover stated the attack occurred on March 3, 3021, but the allegations were deemed unfounded. Id. at 68-69.
Defendants suggest the grievance was rejected for raising more than one issue- retaliation and excessive force-but there is no documentation confirming that theory. Defs.' Br. in Supp. of Mot. for Summ. J. 13.
It is not clear if the incident reports included with Grievance Numbers 313872 and 323228 are kept with the grievances as a matter of course or if Black simply attached them to the grievances for reference.
III. Analysis
Defendants contend Glover failed to exhaust his administrative remedies because he did not appeal the rejection of Grievance Number 323228. Defs.' Br. in Supp. of Mot. for Summ. J. 14. Plaintiff responds he did appeal the rejection of the grievance “when he came out of CSU,” though he did not know or include the grievance number on his appeal form. Pl.'s Resp. to Mot. for Summ. J. Attach. 1, at 6, ECF No. 91-1. He also contends he “recently” refiled an additional appeal of the grievance. Id. Because at the first stage of the exhaustion analysis the Court must take Glover's version of the facts as being true, his claims cannot be dismissed for lack of exhaustion at the first step of the Turner analysis. Turner, 541 F.3d at 1082. Therefore, the Court will proceed to the second step and make specific findings of fact.
The Court concludes Glover failed to exhaust his administrative remedies as required by the GDC SOPs. While Glover states he appealed the rejection of Grievance Number 323228, he presents no documentation to corroborate this. Moreover, Black has attached Glover's grievance history and grievances from the relevant time period, and none of them include an appeal of Grievance Number 323228. See generally, Black Attachs. Glover's complaint attaches a July 11, 2022, Central Office response to a grievance appeal, but that grievance related to missing or confiscated property at Augusta State Medical Prison.Compl. 12; Black Attachs. 36. As for Glover's contention he recently appealed the grievance, that is insufficient to exhaust administrative remedies, because he was required to exhaust prior to filing suit. See Brown, 212 F.3d at 1207 (“[A]n inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.” (emphasis added)); Christopher v. Tinker, No. CV 105-089, 2006 WL 1776358, at *4 (S.D. Ga. June 26, 2006) (“Allowing a prisoner to proceed with his complaint because he exhausts administrative remedies after the fact would contravene the plain language of § 1997e(a) and eviscerate the exhaustion requirement.”).
Black's declaration attaches the original grievance material, indicating she did not simply rely on the SCRIBE system.
Glover did not request an evidentiary hearing on Defendants' motion for summary judgment.
Although not specifically raised by Glover, the Court will also address whether the simple act of filing of Grievance Number 323228, even if rejected, was sufficient to exhaust his administrative grievances. After all, whether accepted or rejected, a grievance alleging excessive force results in the same outcome: referral to CID. Considering Glover received the only relief obtainable from a grievance, pursuing an appeal in such circumstances would seemingly be futile for purposes of exhaustion. However, the Supreme Court has clarified that by exhaustion of “administrative remedies,” the PLRA is referring to exhaustion of the administrative “process itself,” not the specific relief that may be obtained through the process. Booth v. Churner, 532 U.S. 731, 738-39 (2001). Therefore, the fact Glover obtained the only relief available does not mean he satisfied the requirement of “procedural exhaustion.” Id.; see Varner v. Shepard, 11 F.4th 1252, 1262 (11th Cir. 2021) (“‘[R]emedies' as used in § 1997e(a) refers to the administrative process, not the particular forms of relief occurring at the end of that process.” (quoting Booth, 532 U.S. at 738-39)). Further, the apparent futility in pursuing an appeal does not allow circumvention of the exhaustion requirement. See Varner, 11 F.4th at 1263-64 (rejecting a futility exception to the PLRA). Here, in order to exhaust the administrative process, Glover was required to appeal the grievance rejection as allowed under the SOPs. Because the Court finds he did not do so, he failed to exhaust his administrative remedies, and Defendants are entitled to dismissal of his complaint.
The Court notes that in an appeal, Glover could have addressed the rejection's failure to specify how his grievance was procedurally deficient.
CONCLUSION
For the reasons explained above, it is recommended that Defendants' motion for summary judgment (ECF No. 87) be granted and that Glover's complaint be dismissed without prejudice for failure to exhaust his administrative remedies. 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.