Opinion
7:21-CV-51 (WLS)
04-03-2023
JESSE DANIEL MAJOR, Plaintiff, v. Officer JONES, Defendant.
RECOMMENDATION
THOMAS Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 on April 23, 2021. (Doc. 1). Presently pending in the above-captioned case is Defendant's Motion for Judgment on the Pleadings. (Doc. 34).
Procedural Background
Plaintiff was ordered to supplement his Complaint, and Plaintiff's Supplemental Complaint was filed on May 27, 2021. (Docs. 5, 7). In this Court's preliminary review of the Complaint, as supplemented, the Court allowed to proceed for further factual development Plaintiff's Eighth Amendment claims against Defendant based on the alleged threats and harassment of Plaintiff by Defendant, and on the alleged sexual harassment of Plaintiff by Defendant. (Doc. 15).
Defendant filed a Motion to Dismiss, arguing that he was entitled to dismissal because Plaintiff's official capacity claims against him were barred by the Eleventh Amendment and the text of § 1983, and Plaintiff's claims were barred by the Prison Litigation Reform Act (“PLRA”) because Plaintiff failed to exhaust his administrative remedies. (Doc. 23). The Court granted-in-part and denied-in-part Defendant's Motion to Dismiss such that Plaintiff's official capacity claims against Defendant were dismissed, but Plaintiff's personal capacity claims for damages against Defendant proceeded based upon Defendant's failure to submit evidence showing that Plaintiff failed to exhaust his administrative remedies. (Docs. 28, 29).
Plaintiff's Allegations
Plaintiff sets forth the following relevant allegations in his Complaint, as supplemented, concerning conditions of his incarceration at Valdosta State Prison (“VSP”).
On October 16, 2020, Defendant became verbally abusive towards Plaintiff and other inmates. (Doc. 1, p. 6). Plaintiff says that Defendant pulled him from view and forcefully grabbed Plaintiff's genitals. Id. Plaintiff attempted to file a PREA complaint but was unsure how to do so. Id. at 6-7. Plaintiff states that, while Defendant was supervising Plaintiff's scheduled drug screen on October 26, 2020, Defendant physically and verbally harassed Plaintiff and prevented Plaintiff from urinating for the drug screen. Id. at 7. Defendant then called for his supervisor and reported that Plaintiff was insubordinate, causing Plaintiff to be sent to the hole. Id. at 8. As a result of these alleged violations of his constitutional rights, Plaintiff seeks damages. (Doc. 7, p. 1).
Discussion
Defendant filed a Motion for Judgment on the Pleadings, arguing that he is entitled to dismissal because Plaintiff's claims are barred by the PLRA because Plaintiff failed to exhaust his administrative remedies. (Doc. 34). Despite being notified (Doc. 37) by the Court of his rights and obligations in responding to Defendant's Motion, Plaintiff did not file a Response.
Although Defendant asserts it in a motion for judgment on the pleadings, the Court must treat Defendant's exhaustion defense as if it were raised in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (“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 non-Rule 12(b) motion; “instead, it ‘should be raised in a motion to dismiss, or be treated as such if raised'” in a non-Rule 12(b) motion) (citations omitted); see also Doe v. Sheely, 855 Fed.Appx. 497 (11th Cir. 2021) (per curiam) (affirming the granting of a motion for judgment on the pleadings for failure to exhaust); Holland v. Moore, 2017 WL 7049112 at *3 (M.D. Ga. 2017) (“Although Defendant Moore raises the defense of failure to exhaust in a motion filed under Federal Rule of Civil Procedure 12(c), the motion is properly ‘treat[ed as a] motion . . . brought under Rule 12(b).'”) (alterations in original) (first citing Bryant, 530 F.3d at 1376; and then citing Brooks v. Warden, 706 Fed.Appx. 965 (11th Cir. 2017)).
Further, although this is Defendant's second motion seeking to dismiss Plaintiff's claims based upon his alleged failure to exhaust his administrative remedies, there are no forfeiture concerns pursuant to Rule 12(g)(2). See FED. R. CIV. P. 12(g)(2) (“[A] party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.”). In Brooks, the Eleventh Circuit found that the defendant officer was barred from raising the exhaustion defense in his Rule 12(c) motion for judgment on the pleadings because he did not raise the exhaustion defense in his first motion to dismiss under Rule 12. Brooks, 706 Fed.Appx. at 969 (citing Rule 12(g)(2)). Here, however, Defendant did raise his exhaustion defense in his first Rule 12(b) motion, his Motion to Dismiss. (Doc. 23). Accordingly, Defendant may raise his exhaustion defense in this Rule 12(c) Motion for Judgment on the Pleadings. The Court notes that there is no collateral estoppel concern as the Court did not previously find that Plaintiff had exhausted, but rather, found that the Court could not determine whether Plaintiff had exhausted for lack of supporting documentation. (Docs. 28 & 29).
A motion to dismiss can be granted only if a complaint, with all factual allegations accepted as true, fails to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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) (citations omitted) (quoting Twombly, 550 U.S. at 556, 570).
Exhaustion
A defense of failure to exhaust should be raised in a motion to dismiss. Miller v. Pryor, 315 Fed.Appx. 149, 150 (11th Cir. 2008) (per curiam) (citing Bryant v. Rich, 530 F.3d 1368, 137475 (11th Cir. 2008)). “Where exhaustion . . . is treated as a matter in abatement . . ., it is proper for a judge to consider facts outside of the pleadings and to resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record.” Id. (alterations in original) (quoting Bryant, 530 F.3d at 1376).
A prisoner seeking to bring a claim pursuant to § 1983 must first exhaust his administrative remedies under the prison's administrative process. The PLRA mandates 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). “[W]hen a state provides a grievance procedure for its prisoners, as Georgia does here, 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.” Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (citation omitted).
In other words, the prisoner must have exhausted his administrative remedies prior to bringing suit. Smith v. Terry, 491 Fed.Appx. 81, 83 (11th Cir. 2012) (per curiam) (citing Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000)); Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (per curiam) (finding exhaustion is a precondition to filing a federal lawsuit under the PLRA). “The only facts pertinent to determining whether a prisoner has satisfied the PLRA's exhaustion requirement are those that existed when he filed his original complaint.” Smith, 491 Fed.Appx. at 83 (citation omitted) (emphasis added).
Exhaustion of administrative remedies requires compliance with an agency's procedural rules. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). Where a prison's grievance policy contains multiple steps, i.e., an initial grievance, followed by one or more appeals, a prisoner must “properly take each step within the administrative process.” Bryant, 530 F.3d at 1378 (citing Johnson, 418 F.3d at 1158). “If their initial grievance is denied, prisoners must then file a timely appeal.” Id.; see also Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999) (per curiam) (affirming the dismissal of the prisoner-plaintiff's complaint for failure to appeal a denied grievance).
Finally, a prisoner cannot waive the exhaustion requirement “based upon the prisoner's belief that pursuing administrative procedures would be futile.” Higginbottom, 223 F.3d at 1261 (citation omitted).
The United States Court of Appeals for the Eleventh Circuit developed a two-step inquiry that district courts must implement when deciding a motion to dismiss for failure to exhaust administrative remedies. Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). The two steps proceed in sequence:
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 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 . . . 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.Id. (citations omitted).
A prisoner-plaintiff is not required to affirmatively plead or demonstrate exhaustion of his administrative remedies in his complaint. Jones v. Bock, 549 U.S. 199, 216 (2007). Under the Turner inquiry, a defendant bears the burden of proving that the prisoner-plaintiff failed to exhaust his available administrative remedies. Turner, 541 F.3d at 1082 (citing Jones, 549 U.S. at 216).
TURNER Step One
Defendant maintains that Plaintiff failed to properly grieve his claims against Defendant before filing this lawsuit. (Doc. 34-1, pp. 7-8).
Plaintiff did not file a Response to Defendant's Motion for Judgment on the Pleadings. In his initial Complaint, Plaintiff asserts that he presented his complaint as a grievance but that “nothing was done,” and that he “was transferred to another facility to cover up the matter.” (Doc. 1, p. 3). Plaintiff checked “no” in response to the question on the form complaint of whether he filed a grievance appeal, but in the section available to explain why he did not appeal, Plaintiff states that the “grievance paperwork did not follow [him] to the new facility” and that he was transferred on November 16, 2020. Id. at 4.
Because it is not clear that Plaintiff's Complaint is due to be dismissed at the first Turner step, the Court will proceed to the second Turner step and make specific findings based upon the evidence as submitted by the parties and resolve the disputed factual issues related to exhaustion.
TURNER Step Two: Specific Findings
In support of his Motion, Defendant submits the Declaration of Heather Davis, the Deputy Warden of Care and Treatment, and a prior Grievance Coordinator and current backup Grievance Coordinator at VSP. (Doc. 35). In support of Ms. Davis's Declaration, Defendant also submits the Georgia Department of Corrections' (“GDC”) statewide grievance procedure, the GDC's statewide Prison Rape Elimination Act (“PREA”) procedure, Plaintiff's grievance history, and documents related to Plaintiff's grievance. Id.
Ms. Davis states that Plaintiff filed a single grievance, Grievance 316476, on November 5, 2020. Id. at 5. In Grievance 316476, Plaintiff states that on October 26, 2020, he was falsely imprisoned because he was never served “any D.R.” and Lee Anna Smith, Unit Manager of VSP's Annex, ordered Plaintiff to be put on lockdown. Id. at 68. Plaintiff also states that Rodney Foulks, Unit Manager, decided to put Plaintiff in a Level 3 Dorm, although Plaintiff is Level 2, and when Plaintiff asked for his “D.R.” he was not given one, he was ignored, or all officers he encountered since being put on lockdown refused to provide it. Id.
Plaintiff was transferred to another facility on November 16, 2020. (Doc. 1, pp. 4, 10). Attached to Grievance 316476 is a Memorandum showing that the Warden's Response, dated November 24, 2020, rejected Grievance 316476 based on Plaintiff's failure to follow the proper procedure to grieve involuntary assignments to Administrative Segregation, and was transmitted to Plaintiff's new facility on November 30, 2020 for Plaintiff to sign. The Memorandum requested that a signed copy with the appeal/drop form if applicable be returned as soon as possible. (Doc. 35, pp. 66-67). No response was received as of July 12, 2021. Id. at 67.
The GDC's grievance policy applies to all offenders committed to the GDC. Id. at 8. The policy requires an offender to complete a two-step process consisting of first filing an original grievance and then filing a central office appeal. Id. at 15. At the first step, the offender's grievance may be submitted electronically through a kiosk or tablet, or it may be submitted on paper on the GDC's required Grievance Form. Id. An offender must submit a grievance within ten (10) calendar days from the date the offender knew, or should have known, of the facts giving rise to the grievance. Id. Grievances filed later than ten (10) days are only considered upon a showing of “good cause.” Id. Complaints made under the PREA procedure are separate from grievances and offenders are allowed to file grievances regarding sexual abuse to preserve their ability to seek judicial redress after exhausting administrative remedies. Id. at 4, 49.
Once the offender has submitted the grievance, the Warden has forty (40) calendar days from the date an offender submits a grievance to respond, though a ten (10) calendar day extension may be granted upon advising the offender prior to the expiration of the original forty (40) calendar days. Id. at 18. At the second step, after the Warden has responded, or the time in which the Warden was required to respond has expired, the offender may file an appeal. Id. at 21. The Commissioner then has 120 calendar days after the appeal is submitted in which to respond. Id. at 22.
Plaintiff's grievance history shows that he filed only one grievance, Grievance 316476, on October 26, 2020. Id. at 64. Because Plaintiff did not file a response to Defendant's Motion for Judgment on the Pleadings, the Court will look to Plaintiff's factual allegations in his Complaint regarding his efforts to properly grieve his complaints at VSP. The date on which Plaintiff effectively filed his original Complaint, April 20, 2021, controls for purposes of determining whether Plaintiff exhausted his administrative remedies prior to filing his Complaint. See Smith, 491 Fed.Appx. at 83.
Ms. Davis states that the Grievance History incorrectly reflects a filing date of October 26, 2020, and that Grievance 316476 indicates that it was filed and received on November 5, 2020. (Doc. 35, p. 4 n.1).
In his initial Complaint, Plaintiff asserts that he presented his complaint as a grievance, that nothing was done, that he was transferred to another facility to cover up the matter, and that he did not file an appeal because his grievance paperwork did not follow him after his transfer on November 16, 2020. (Doc. 1, pp. 3-4).
TURNER Step Two: Resolving Disputed Factual Issues
Considering the facts and evidence, the Court makes the following findings to resolve the disputed factual issues. The Court finds that Plaintiff did not exhaust his administrative remedies as to his claims prior to filing this action for the following reasons.
The only grievance in the record before the Court relates to Plaintiff allegedly being falsely imprisoned by Unit Managers Smith and Foulks, neither of whom are parties to this matter. As a result, there is no grievance in the record as to Plaintiff's claims against Defendant, which relate to Defendant's alleged sexual harassment of Plaintiff. Plaintiff does not submit any other grievances and there are no records of any other grievances having been filed by Plaintiff during the relevant time period. Accordingly, the Court finds that Plaintiff did not exhaust his administrative remedies as to his claims against Defendant.
At the initial screening phase, the Court dismissed Plaintiff's claims against Unit Managers Smith and Foulks. (Docs. 15, p. 10; 27).
While Plaintiff does not explicitly allege that the grievance process was unavailable to him, the Court will nevertheless now consider the Ross circumstances.
The Ross Circumstances
“An inmate need exhaust only such administrative remedies as are ‘available.'” Ross v. Blake, 578 U.S. 632, 648 (2016). An administrative procedure is rendered unavailable when (1) officers' consistent unwillingness to provide relief to aggrieved inmates causes it to operate as a dead end, (2) an administrative scheme is so opaque that it becomes incapable of use, and (3) prison administrators thwart inmates from using the grievance process through machination, misrepresentation, or intimidation (“Ross circumstances”). Id. at 643-44.
Considering the specific findings, and resolution of the disputed facts, the Court finds that Plaintiff has not shown his administrative remedies were unavailable to him. Id.; see also Jenkins v. Sloan, 826 Fed.Appx. 833, 839 n.1 (11th Cir. 2020) (per curiam) (reversing and remanding to permit the district court to consider the Ross circumstances and the Turner steps).
As to the first Ross circumstance, Plaintiff does not allege that the grievance procedure operates as a dead end. Ross, 578 U.S. at 643. Nor does Plaintiff allege, as to the second Ross circumstance, that the grievance procedure is “so opaque that it becomes, practically speaking, incapable of use.” Id. at 643-44. Finally, Plaintiff does not allege that he was thwarted from taking advantage of the grievance process. Id. at 644.
Plaintiff does allege that he was transferred to another facility to cover up the matter. (Doc. 1, p. 3). The Eleventh Circuit has not expressly determined whether the Ross circumstances are examples, only, or are exhaustive in and of themselves. Geter v. Baldwin State Prison, 974 F.3d 1348, 1355-56 (11th Cir. 2020). The Eleventh Circuit has noted that other Circuits have determined that the Ross circumstances are not exhaustive. Id. at 1355 n.13 (citations omitted). However, the Court need not consider whether a transfer to another facility to “cover up” a grievance-related matter could be considered a Ross circumstance for the following reasons:
After Ross, a proper Turner analysis
requires the plaintiff to allege a grievance procedure is unavailable to him in response to the defendant's affirmative defense of failure to exhaust. Responding with allegations that a prison system is unavailable allows the district court to complete the necessary analysis set forth in Turner for evaluating whether a defendant is entitled to have a complaint dismissed for failure to exhaust.Id. at 1356 (citing Turner, 541 F.3d at 1082). “While the burden is on the defendant to show an available administrative remedy, once that burden has been met, the burden of going forward shifts to the plaintiff, who, pursuant to Turner, must demonstrate that the grievance procedure was ‘subjectively' and ‘objectively' unavailable to him.” Id. (citing Turner, 541 F.3d at 1085).
Here, Plaintiff did not file a response to Defendant's affirmative defense of failure to exhaust. As a result, he did not carry his burden to demonstrate that the grievance procedure was subjectively and objectively unavailable to him.
Further, even if the Court considered Plaintiff's allegation in his initial Complaint that he was transferred to “cover up” his grievance-related matter under the Turner analysis, Plaintiff still would not have carried his burden. Plaintiff filed a grievance, but the grievance did not relate to the matters asserted against Defendant. Further, it is apparent that the Grievance Coordinator at VSP attempted to enable Plaintiff to properly grieve his prison conditions claims - against two non-parties - by sending the Warden's Response to Plaintiff's new facility. Accordingly, the Court finds that Plaintiff had administrative remedies available to him and that his failure to exhaust was not related to the unavailability of administrative remedies.
Conclusion
Having considered the facts, made findings thereof, and resolved the factual disputes in accordance with the first and second Turner steps, and having considered the availability of administrative remedies in accordance with Ross, it is RECOMMENDED that Defendant's Motion for Judgment on the Pleadings, treated as a Motion to Dismiss (Doc. 34), be GRANTED, and that Plaintiff's Complaint be DISMISSED without prejudice.
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 shall make a de novo determination as to those portions of this Recommendation to which objection is made; all other portions of this Recommendation may be reviewed by the district judge for clear error. Any objection is limited in length to TWENTY (20) PAGES. See M.D. GA. L.R. 7.4.
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.