Opinion
NO. 5:17-CV-00099-MTT-MSH
01-30-2019
CHARLIE ANDREW MASSENGALE, Plaintiff, v. Warden BENJAMIN FORD, et al., Defendants.
REPORT AND RECOMMENDATION
Pending before the Court is Plaintiff's recast (ECF No. 7) and amended complaints (ECF No. 9) seeking relief under 42 U.S.C. § 1983, and Defendants' motion for summary judgment (ECF No. 29). For the reasons explained below, it is recommended that Defendants' motion be granted and Plaintiff's remaining claims be dismissed.
Plaintiff's claims regarding denial of adequate medical care and lack of access to administrative remedies were dismissed by the Court's order on January 23, 2018. Order 2, ECF No. 18. --------
BACKGROUND
Plaintiff's claims arise from his incarceration at the Calhoun State Prison. Recast Compl. 5, ECF No. 7. Plaintiff alleges that in July of 2016, he became concerned that his housing assignment was unsafe. Id. Plaintiff accordingly refused his housing assignment, and "security" sent him to the J-1 cell block. Id. Plaintiff contends he was moved from cell to cell in J-1 but was unable to receive a safe assignment "due to [his] charges." Id. Plaintiff alleges that Defendant Doe, the "officer-in-charge of J-1[,]" ultimately assigned him to a cell with an inmate named Taylor who threatened to beat Plaintiff "until his brain [was] scattered all over this cell." Id. Plaintiff alleges that he told Defendant Doe that he was scared of inmate Taylor "after all the comments he has made that he's going to kill whom ever [sic] goes into his cell," but Defendant Doe "disregard[ed his] pleadings." Id. Approximately two to three days later, inmate Taylor attacked Plaintiff, causing several injuries that required medical treatment. Recast Compl. 5; Recast Compl. Attach. 1, ECF No. 7-1. Plaintiff further alleges that he still suffers severe headaches and nightmares as a result of the attack. Recast Compl. Attach. 1. Plaintiff contends Defendants' failure to protect him from this attack violated his constitutional rights, and he seeks compensatory and punitive damages as a result. Recast Compl. 6.
DISCUSSION
Defendants move for summary judgment in their favor claiming, inter alia, that Plaintiff failed to exhaust his administrative remedies. Br. in Supp. Mot. for Summ. J. 1-2, 12-15, ECF No. 29-2. Failure to exhaust administrative remedies "is a matter in abatement and not generally an adjudication on the merits [and, therefore,] is not ordinarily the proper subject for a summary judgment [motion]." Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008). If such an argument is raised in a motion for summary judgment, it should be treated as if it were raised in a motion to dismiss. Id. at 1375. Accordingly, the Court has analyzed Defendants' failure to exhaust argument as if it were brought in a motion to dismiss. Because Plaintiff did not exhaust his administrative remedies, the Court recommends that his remaining claims should be dismissed and declines to address Defendants' other grounds for judgment in their favor.
I. Exhaustion Standard
Title 42, United States Code section 1997e(a) 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." "[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) (internal quotation marks and citation omitted). Because dismissal for failure to exhaust is not an adjudication on the merits, the Court can resolve factual disputes using evidence from outside the pleadings. Rich, 530 F.3d 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.
II. Defendants' Motion
Defendants contend that the Georgia Department of Corrections ("GDOC") has a grievance procedure applicable to all inmates which Plaintiff failed to fully utilize regarding his remaining claims. Br. in Supp. Mot. for Summ. J. 2, 12-15. Plaintiff was given notice of Defendants' motion but did not respond to it. Notice, July 26, 2018, ECF No. 30.
Calhoun State Prison follows the GDOC's Standard Operating Procedures ("SOPs") regarding grievances. Cross Aff. ¶ 3, ECF No. 29-3. 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 of the incident giving rise to the grievance; and (2) file an appeal to the Central Office. Id. ¶ 6-9 & Ex. 1 at 14-20. A warden has forty calendar days within which to respond to an original grievance. Id. Ex. 1 at 17. An inmate may file an appeal after the warden issues a decision or after the time allowed for the warden to make his decision expires. Id. at 19. To successfully file an appeal, an inmate must fill out a Central Office Appeal Form, sign it, and give it to the appropriate counselor. Id. The Commissioner—or their designee—must deliver a decision on the appeal to the inmate within one-hundred calendar days of their receipt of it. Id. at 20.
In his amended complaint, Plaintiff states that on March 3, 2017, he filed a grievance concerning the issues involved in this case. Am. Compl. 3, ECF No. 9. That grievance was rejected as untimely filed and Plaintiff acknowledged receipt of that decision on July 3, 2017. Cross Aff. ¶ 12, Ex. 3 at 39, 43. In response to the standard complaint form's prompt asking if he had appealed that grievance, Plaintiff marked "yes and no." Am. Compl. at 4. Plaintiff attached a hand-written document dated March 3, 2017, and May 1, 2017, and entitled "Grievance Appeal Form[,]" to his amended complaint which he mailed to the Central Office in the first week of May 2017. Cross Aff. ¶ 13; Massengale Dep. 62-63, ECF No. 29-7. Plaintiff initiated this suit on March 10, 2017 (ECF No. 1).
"The PLRA exhaustion requirement requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 93 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules." Id. at 91. Accordingly, "where an inmate's grievance fails to meet administrative deadlines or an existing exception to a timely filing requirement, his federal claim will be barred." Tilus v. Kelly, 510 F. App'x 864, 866 (11th Cir. 2013). Because the un-contested facts show that Plaintiff failed to properly and fully exhaust his available administrative remedies, it is clear at step one of the exhaustion analysis that Plaintiff failed to exhaust. Turner, 541 F.3d at 1082; see also Dollar v. Coweta Cty. Sheriff Office, 446 F. App'x 248, 251-52 (11th Cir. 2011). Plaintiff initiated this suit prior to the conclusion of the grievance process and failed to follow that process' procedural rules. Accordingly, it is recommended that Defendants' motion for summary judgment (ECF No. 29) be granted and Plaintiff's claims be dismissed.
CONCLUSION
For the reasons explained above, it is recommended that Defendants' motion for summary judgment (ECF No. 29) be granted and Plaintiff's claims dismissed. 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, this 30th day of January, 2019.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE