Opinion
5:17-CV-00363-MTT-MSH
06-10-2021
MARCO MCILWAIN, Plaintiff, v. DR EDWARD BURNSIDE, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, an inmate confined at Georgia Diagnostic and Classification Prison (“GDCP”) in Jackson, Georgia, has filed a pro se complaint (ECF No. 1) seeking relief pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendants' renewed motion to dismiss (ECF No. 49). For the hereinbelow reasons, the Court recommends that Defendants' renewed motion be granted in part and denied in part.
BACKGROUND
Plaintiff's claims arise from his treatment in the GDCP Special Management Unit (“SMU”). Compl. 1, 3, 5, ECF No. 1. According to Plaintiff, on August 11, 2016, he arrived at the SMU with serious injuries including “5 stab wounds to the head, ” “several deep puncture wounds to the back, ” and a collapsed lung. Compl. Attach. 1, at 3, ECF No. 1-1. Defendant Dr. Edward Burnside, a GDCP physician, told Plaintiff that he would be housed in an observation cell “due to the seriousness of the injuries.” Id. Plaintiff inquired about pain medication and Burnside said Defendant Linda Adair-a prison nurse-would provide him with pain medication. Id. On August 16, 2016, while Burnside and Adair made their rounds in the SMU, Plaintiff again asked for pain medication, telling them he “was hurting real bad and c[ould] barely breath[e].” Id. Burnside and Adair ignored him. Id.
On August 18, 2016, Plaintiff's “back locked up, ” and “he couldn't move and was in excruciating pain.” Id. A nurse examined Plaintiff in medical, and the nurse called Burnside and told him that Plaintiff was in “real bad pain and his right lung was diminishing.” Compl. Attach. 1, at 4. The nurse told Plaintiff that Burnside would see him the next morning. Id. Burnside did not see Plaintiff the next morning, even though Plaintiff's “pain was so bad that he couldn't get his food tray.” Id. On August 22, 2016, Plaintiff notified Adair that he was still in “excruciating pain” and that his “wounds were bleeding through his shirt, ” and he requested to see Burnside. Id. at 5. Plaintiff asked when Adair would “do dressing change and clean the wounds so they wouldn't get infected[]” and again requested pain medication. Id. Plaintiff alleges Adair again ignored him. Id.
On August 29, 2016, Plaintiff's wounds again began to bleed “real bad” leaving him in “excruciating pain.” Compl. Attach. 1, at 5. Defendant Lt. Anthony Uglee, a prison guard, notified medical but was told “medical . . . wasn't coming to SMU.” Id. On August 30, 2016, Burnside saw Plaintiff and prescribed him pain medication-three weeks after Plaintiff first requested help. Id. at 6. Plaintiff continued to have issues with pain and notified Adair and Burnside about his symptoms multiple times. Id. Plaintiff received Ibuprofen on August 31, 2016, and his lungs were x-rayed on September 1, 2016. Id. On October 13, 2016, Plaintiff requested medical treatment when his face began to swell and leak fluid and his back locked up. Id. On October 18, 2016, Plaintiff saw Burnside and Adair in medical, Burnside refused to examine Plaintiff's face, and Adair gave him a cortisone shot. Compl. Attach. 1, at 6. Between October 2016 and March 2017, Plaintiff repeatedly complained about his back pain, requested treatment, and met with Burnside and Adair, but they refused to treat him. Id. at 6-7. On March 24, 2017, Burnside again prescribed Plaintiff Ibuprofen, but Plaintiff told him the Ibuprofen “wasn't working.” Id. at 7. Plaintiff had another x-ray on May 4, 2017, but Burnside refused to tell him the result of his x-ray. Id. at 8.
Plaintiff also believes Adair gave him the wrong medication, causing Plaintiff to become dizzy, vomit, and suffer from “real bad” stomach and chest pains for approximately twenty-one hours. Id. at 9-11. When he informed Adair and Uglee that he had received the wrong medication, they laughed at him and refused to provide him with any treatment for his symptoms. Id. at 10. Burnside also refused to treat him “after gaining knowledge that Nurse Adair gave [Plaintiff] the wrong medication.” Compl. Attach. 1, at 16. Plaintiff indicates he filed numerous grievances regarding these incidents, and that on one occasion, Uglee asked him to “drop the grievance, ” and when Plaintiff refused to do so, Uglee refused to feed Plaintiff that day. Id. at 7, 11, 14. Moreover, Adair intentionally gave him the wrong medication “after gaining knowledge” that Plaintiff had filed grievances against her. Id. at 18.
Plaintiff contends that Defendants violated his constitutional rights and seeks declaratory relief, injunctive relief, compensatory and punitive damages, a jury trial, and costs in this action, as well as “any additional relief this court deems just, proper, and equitable.” Id. at 20-21. At this stage, Plaintiff's deliberate indifference claims against Burnside, Adair, and Uglee and his retaliation claims against Adair and Uglee remain. Order 6-11, Feb. 12, 2018, ECF No. 6.
PROCEDURAL HISTORY
The Court received Plaintiff's complaint (ECF No. 1) on September 25, 2017. Defendants filed their original motion to dismiss (ECF No. 17) on May 25, 2018. The Court granted Defendants' motion (ECF Nos. 27, 31) and entered judgment (ECF No. 32) on March 1, 2019. On October 9, 2020, the U.S. Court of Appeals for the Eleventh Circuit reversed and vacated the Court's order of dismissal and judgment and remanded the case for further proceedings. McIlwain v. Burnside, 830 Fed.Appx. 606, 610-612 (11th Cir. 2020) (per curiam). The Eleventh Circuit issued its mandate (ECF No. 47) on November 9, 2020. Following remand, the Court ordered Defendants to file an answer, renewed motion to dismiss, or other appropriate response. Order 1-3, Nov. 10, 2020, ECF No. 48. Defendants filed their pending renewed motion to dismiss (ECF No. 49) on December 1, 2020.
Defendants also filed a motion to stay discovery pending a ruling on their motion to dismiss. Mot. to Stay Discovery 1-2, ECF No. 50. The Court granted in part and denied in part Defendants' motion to stay and afforded the parties sixty days to conduct limited discovery on the issue of exhaustion. Order 1-2, Dec. 2, 2020, ECF No. 51. The Court also (1) afforded Plaintiff sixty days-the close of the limited discovery period-to respond to Defendants' renewed motion to dismiss, and (2) permitted Defendants to reply or supplement their motion to dismiss within fourteen days from the date Plaintiff filed his response. Id. at 2. The Court received Plaintiff's response (ECF No. 52) to Defendants' renewed motion to dismiss on December 21, 2020-before the close of limited discovery. Defendants replied (ECF No. 54) on January 4, 2021. The limited discovery period closed on February 1, 2021, and Defendants' time to supplement their renewed motion to dismiss expired on February 15, 2021.
On April 14, 2021, the Court ordered the parties to appear for a hearing to (1) determine whether the parties complied with the Court's December 2, 2020, Order for limited discovery, and (2) hear evidence on Defendants' renewed motion to dismiss. Order 1-3, Apr. 14, 2021, ECF No. 55. Defendants filed their proposed witness and exhibits lists and attached their proposed exhibits (ECF No. 61) on April 26, 2021. The Court held the hearing on April 28, 2021 (ECF No. 62), and Plaintiff and former GDCP Counselor Johannes Goody testified. The Court also allowed the parties to file post-hearing briefs. Text-only Minute Entry, Apr. 28, 2021, ECF No. 62. Defendants filed their post-hearing brief (ECF No. 63) on May 12, 2021, and the Court received Plaintiff's post-hearing brief (ECF No. 64) on May 24, 2021. Defendants filed a second post-hearing brief (ECF No. 65), styled as a reply, on June 4, 2021. Defendants' renewed motion to dismiss (ECF No. 49) is ripe for review.
DISCUSSION
Defendants move to dismiss Plaintiff's complaint arguing he failed to exhaust administrative remedies. Renewed Mot. to Dismiss 4-10, ECF No. 49. Plaintiff contends he exhausted all available administrative remedies. Resp. to Renewed Mot. to Dismiss 1-3, ECF No. 52; see also Br. in Opp'n to Mot. to Dismiss 2-15, ECF No. 23-1. The Court recommends that Defendants' renewed motion to dismiss be granted in part and denied in part.
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). The argument that a plaintiff has failed to satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008) (“[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]”). Furthermore, 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.
II. Defendants' Renewed Motion to Dismiss
Defendants argue Plaintiff failed to exhaust his administrative remedies because he failed to file or appeal prison grievances concerning his claims. Renewed Mot. to Dismiss 4-10. The Court recommends that Defendants' motion be granted in part and denied in part.
A. First Step: Defendants' Motion
Defendants claim Plaintiff failed to comply with GDC grievance procedures because (1) he did not file a grievance concerning the allegations underlying some claims raised in his complaint, and (2) he failed to appeal grievances he filed concerning some of his claims. Renewed Mot. to Dismiss 5-10. Plaintiff alleges he timely filed grievances and appeals concerning the allegations underlying each of his claims. Resp. to Renewed Mot. to Dismiss 1-3; Br. in Opp'n to Mot. to Dismiss 2-15; Pl.'s Post-Hearing Br. 2-6, ECF No. 64. Because at the first stage of the exhaustion analysis the Court must accept Plaintiff's version of the facts as true, Plaintiff's complaint cannot be dismissed for failure to exhaust at this first step. Turner, 541 F.3d at 1082; see also Dollar v. Coweta Cnty. Sheriff Office, 446 Fed.Appx. 248, 251-52 (11th Cir. 2011) (per curiam).
B. Second Step: Factual Findings
Since Plaintiff's complaint was not dismissed at the first step, the Court can make factual findings relating to exhaustion. Turner, 541 F.3d at 1082. A defendant bears the burden of establishing a lack of exhaustion at the second step of the inquiry. Id. at 1082-83.
GDC has promulgated Standard Operating Procedure (“SOP”) IIBO5-0001 regarding grievances which applies to all inmates in GDC custody, and GDCP follows this SOP. Footman Aff. ¶¶ 3-4; Defs.' Hearing Ex. 1, at 2, ECF No. 61-1. The SOP mandates that an inmate must follow a two-step process in order to exhaust his remedies: (1) file an original grievance with prison officials; and (2) file an appeal to the Central Office. Footman Aff. ¶¶ 7; Defs.' Hearing Ex. 1, at 9. An inmate must file a grievance within ten days of the incident underlying the grievance. Footman Aff. ¶ 8; Defs.' Hearing Ex. 1, at 10; FTR Gold 2:05:28-2:05:40. A grievance can address only a “single issue/incident.” Defs.' Hearing Ex. 1, at 9. If a grievance is rejected by the warden without processing, a notice of that rejection must be provided to the inmate. Footman Aff. ¶ 9; Defs.' Hearing Ex. 1, at 10-11. The inmate may then appeal the rejection to the Central Office within seven days. Footman Aff. ¶ 10; Defs.' Hearing Ex. 1, at 11, 14; FTR Gold 2:05:47-2:05:58. If a grievance is processed, “[t]he Warden has 40 calendar days from the date the [inmate] gave the Grievance Form to the Counselor to deliver the decision to the [inmate].” Footman Aff. ¶ 9; Defs.' Hearing Ex. 1, at 12; FTR Gold 2:05:40-2:05:46. 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. Footman Aff. ¶ 10; Defs.' Hearing Ex. 1, at 14. “The Commissioner or his/her designee has 100 calendar days after receipt of the Grievance Appeal to deliver a decision to the” inmate. Defs.' Hearing Ex. 1, at 15.
All citations to the April 28, 2021, evidentiary hearing minutes refer to times logged contemporaneously by the Court's FTR Gold recording system on the dates of the proceedings.
As the Eleventh Circuit noted, Plaintiff alleges he filed five grievances concerning the claims underlying his complaint. See McIlwain, 830 Fed.Appx. at 608-09. The Court separately addresses these five alleged grievances below and finds that (1) Defendants have met their burdening of showing Plaintiff failed to exhaust administrative remedies as to four of the alleged grievances, and (2) Defendants have not met their burden as to one grievance. Thus, the Court recommends that Defendants' renewed motion to dismiss be granted in part and denied in part.
1. Grievance 227745
In grievance 227745, Plaintiff states that “[o]n August 18, ” he was taken to medical after experiencing “excruciating back pain.” Defs.' Hearing Ex. 3, at 2, ECF No. 61-3. A nurse told Plaintiff his “lungs were diminishing, ” and Plaintiff “complained . . . of other severe pains.” Id. The nurse “fell on top of [Plaintiff] causing [his] pain to increase.” Id. The nurse provided Plaintiff pain medication and told him he “would be seen by the doctor the following morning.” Id. The doctor did not see Plaintiff, and by the time Plaintiff signed the grievance, he “still [had] yet to see any doctor regarding [his] pain.” Id. Plaintiff alleges he filed grievance 227745 on August 26, 2016. Br. in Opp'n to Mot. to Dismiss 2-6. In support, Plaintiff attached a copy of a grievance receipt (ECF No. 1-3) which appears to be signed by Goody and indicates he received grievance 227745 on August 26, 2016. Compl. Ex. B, at 1, ECF No. 1-3; see also Mot. to Dismiss Ex. C, at 2, ECF No. 17-11. Plaintiff asserts the tear marks at the top of his grievance receipt match the tear marks at the bottom of grievance 227745, indicating the receipt concerns grievance 227745. Compare Defs.' Hearing Ex. 3, at 2 with Compl. Ex. B., at 1. Plaintiff was notified that the warden had denied his grievance on September 28, 2016, he appealed the denial on October 5, 2016, and he was notified that the Central Office had denied his appeal on January 10, 2017. Defs.' Hearing Ex. 3, at 5-9.
Defendants do not dispute that Plaintiff filed and appealed grievance 227745, but they assert Plaintiff did not file it until September 2, 2016, and that his grievance receipt dated August 26, 2016, is a forgery. Renewed Mot. to Dismiss 5-6; Reply 1-2, ECF No. 54. In support, they rely on Goody's affidavit (ECF No. 61-8) and hearing testimony. Goody was employed as a counselor in GDCP's SMU from 2013 to 2020, when Plaintiff was confined in that unit. FTR Gold 2:01:56-2:03:02. In his role as counselor, Goody was familiar with the grievance SOP and he ensured grievance forms were available, provided inmates grievance forms when requested, and provided all necessary information on the forms once the inmates completed the forms. Id. at 2:03:51-2:04:30, 2:05:05-2:05:12.
Specifically, Goody had a standard practice when an inmate handed him a completed grievance form: (1) he read the inmate's grievance at the inmate's cell, (2) he filled out the top portion of the form which requires, inter alia, the inmate's name and prison, (3) he filled out the bottom receipt portion of the form with his name, date, and signature, and (4) he tore off the bottom receipt portion of the form and returned the receipt to the inmate by sliding it under the cell door. Id. at 2:06:45-2:07:24. He always wrote the same date on the top of the form and on the bottom receipt before tearing off the receipt and handing it to the inmate. Id. at 2:10:32-2:12:03. Inmates could watch Goody fill out this information through their cell windows and complain if he made an error. Id. at 2:07:24-2:07:45, 2:12:23-2:13:05. In fact, Goody testified that inmates often protest and confront him if he makes a mistake or writes the wrong information on the grievance or receipt. Id. at 2:13:06-2:13:44.
As to grievance 227745, Goody testified that when Plaintiff handed him the grievance form through his cell door, he filled out the portions at the top of the form- including the September 2, 2016, filing date-in blue ink. FTR Gold 2:25:59-2:27:09. He stated that he would have also written the same September 2, 2016, date on the receipt. Id. at 2:27:26-2:27:47. According to Goody, Plaintiff could watch him through his cell door while he completed the form. Id. at 2:30:15-2:30:38. Goody testified that he did not write the August 26, 2016, filing date on the alleged receipt or sign the receipt. Id. at 2:33:08-2:33:28, 2:39:33-2:41:10. He recalled confronting Plaintiff about the alleged forgery, and Plaintiff told Goody that “he ha[d] to do what he ha[d] to do.” Id. at 2:41:10-2:41:48. Plaintiff, however, testified that he did not forge Goody's signature and date on the alleged receipt for grievance 227745. Id. at 2:50:38-2:50:52. He also noted that despite Goody allegedly confronting him, Goody never filed a disciplinary report claiming Plaintiff forged his signature on the receipt. FTR Gold 2:37:50-2:38:40.
Plaintiff attached his original grievance receipt (ECF No. 1-3) as an exhibit to his complaint and requested that the Court compare the tear marks at the top of his grievance receipt with the tear marks on the bottom of grievance 227745 to show that he did not forge Goody's signature on his receipt. FTR Gold 2:51:02-2:53:52. The Clerk, however, indicates the original grievance receipt is no longer available.
Based on this evidence, Defendants argue Plaintiff filed grievance 227745 on September 2, 2016, and the alleged grievance receipt is a forgery. Renewed Mot. to Dismiss 5-6; Reply 1-4; Defs.' Post-Hearing Br. 3-5, ECF No. 63. They maintain grievance 227745 was untimely because it concerns only Plaintiff's denial of medical treatment on August 19, 2016, but he filed it more than ten days after the denial of treatment. Renewed Mot. to Dismiss 5-6 (citing Defs.' Hearing Ex. 1, at 10 (providing that an inmate must file a grievance “no later than [ten] calendar days from the date the [inmate] knew, or should have known, of the facts giving rise to the grievance”)); Reply 1-4. Consequently, they contend Plaintiff failed to exhaust administrative remedies as to this grievance.
Defendants fail to show that Plaintiff failed to exhaust administrative remedies as to grievance 227745. Even assuming Plaintiff filed grievance 227745 on September 2, 2016, Defendants have not met their burden of showing Plaintiff failed to exhaust because that grievance was still timely under the SOP's ten-day rule. Defendants maintain grievance 227745 concerns only Plaintiff's denial of medical treatment on August 18, 2016 because he states that the nurse promised a doctor would see him on August 18, 2016, but he was not seen on that date. Renewed Mot. to Dismiss 5-6; Reply 2; Defs.' Post-Hearing Br. 3-4; see Defs.' Hearing Ex. 3, at 2. In his grievance, however, Plaintiff also states that he “still [had] yet to see any doctor regarding [his] pain” at the time he filed the grievance. Defs.' Hearing Ex. 3, at 2. Thus, as the Eleventh Circuit recognized, Plaintiff appears to complain of a denial of medical treatment continuing to the date he filed the grievance- not simply the denial of treatment on one specific date. McIlwain, 830 Fed.Appx. at 611 (“[T]he district court did not explain why, even taking Defendants' submissions as true, the first grievance was untimely where [Plaintiff] alleged an ongoing failure to treat his injuries as of the day he signed the grievance.”).
Defendants also argue Plaintiff still failed to exhaust as to grievance 227745 because the grievance does not name Burnside and Adair and does not mention prior or subsequent denials of treatment. Renewed Mot. to Dismiss 5-6; Defs.' Post-Hearing Br. 3-4. The Eleventh Circuit, however, has held that “[a] prisoner need not name any particular defendant in a grievance in order to properly exhaust his claim.” Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218-19 (11th Cir. 2010) (citations omitted). “Further, exhaustion does not necessarily require an inmate to file a new grievance for each harmful incident in a string of related occurrences.” Toenniges v. Ga. Dep't of Corr., 600 Fed.Appx. 645, 649 (11th Cir. 2015) (per curiam) (citing Parzyck, 627 F.3d at 1218). Rather, exhaustion “merely requires inmates to complete the administrative review process in compliance with the prison's grievance procedures, so that there is ‘time and opportunity to address complaints internally before allowing the initiation of a federal case.'” Parzyck, 627 F.3d at 1219 (quoting Woodford v. Ngo, 548 U.S. 81, 93 (2006)).
In grievance 227745, Plaintiff clearly alleges that he experienced “a serious lung injury including injuries to [his] back, ” he was not evaluated by a doctor, and this “denial of proper medical treatment” caused him additional pain and suffering. Defs.' Hearing Ex. 3, at 2. This was sufficient to give GDCP authorities notice of his injuries and lack of treatment and to afford them an opportunity to address the issues. See Parzyck, 627 F.3d at 1219. In fact, Plaintiff testified that he filed grievance 227745 concerning his medical treatment based on Goody's instructions. FTR Gold 2:58:40-3:00:10. Defendants have not met their burden of showing that Plaintiff failed to exhaust administrative remedies as to grievance 227745.
Defendants also argue that Plaintiff had already received some medical care from Burnside and Adair by September 2, 2016. Defs.' Post-Hearing Br. 3-4. Defendants, however, have not moved to dismiss for failure to state a claim, and the Court does not reach the merits of Plaintiff's deliberate indifference claims. Moreover, although Plaintiff may have received some medical treatment before September 2, 2016, this does not show that grievance 227745 did not concern Burnside and Adair's ongoing failure to render adequate medical treatment or their delay in treating him.
2. February 20, 2017, Grievance
Plaintiff alleges he filed a grievance on February 20, 2017, concerning his treatment from Burnside and Adair. Br. in Opp'n to Mot. to Dismiss 7. According to Plaintiff, he submitted his grievance to Goody who “signed and dated it as usual.” Id. Plaintiff contends Goody “told [him] that Burnside and Nurse Adair wasn't [sic] going to help [him] because [he] [kept] filing grievances on them.” Id. Plaintiff also submitted a grievance receipt (ECF No. 1-6) which he contends concerns this alleged grievance, appears to display Goody's signature, and is dated February 20, 2017. He alleges he never received a response to the grievance, and he “can't appeal a grievance without a grievance number.” Id.
Defendants argue Plaintiff failed to exhaust administrative remedies as to this alleged grievance because he never filed a grievance on February 20, 2017. Renewed Mot. to Dismiss 7. They note that Plaintiff's grievance history does not list a grievance filed on that date and that Grievance Coordinator Chantel Footman did not identify this grievance as a relevant grievance in her affidavit. Id.; see Defs.' Hearing Ex. 2, at 2, ECF No. 61-2; Footman Aff. ¶¶ 13-19, ECF No. 61-9. They appear to contend that Plaintiff's alleged grievance receipt (ECF No. 1-6) is a forgery, stating that the “receipt Plaintiff provides is almost identical to the receipt . . . with respect to Grievance No. 227745.” Id. Defendants primarily rely on Goody's hearing testimony. During the evidentiary hearing, Goody testified that all grievances received from an inmate are logged into the inmate's grievance history even if the grievances are procedurally flawed. FTR Gold 2:16:51-2:18:12; see also Goody Decl. ¶ 10, ECF No. 61-8. Goody reviewed Plaintiff's grievance history and noted that it showed no grievance filed on February 20, 2017. Id. at 2:20:50-2:23:37. As additional evidence that Plaintiff never filed a grievance on February 20, 2017, Defendants note that he failed to (1) follow up by filing another similar grievance, (2) mention this missing grievance in his subsequent grievances, or (3) file a grievance alleging Goody failed to process his February 20, 2017, grievance. Renewed Mot. to Dismiss 7.
The Court finds that Plaintiff failed to file a grievance on February 20, 2017, concerning any of the named defendants based on (1) the omission of the alleged grievance from Plaintiff's grievance history, (2) Goody's testimony that all grievances are logged into an inmate's grievance history in the regular course of business, (3) Plaintiff's failure to describe the specific incidents underlying the grievance, and (4) Plaintiff's failure to raise an issue as to this alleged missing grievance when he did not receive a response. Even if Plaintiff filed a grievance on February 20, 2017, he still failed to exhaust administrative remedies because he did not file an appeal once the warden's forty-day response window expired or take any other steps to follow up on his grievance or procure a grievance number to facilitate appeal.
Importantly, even assuming Plaintiff was unable to appeal his alleged February 20, 2017, grievance, he fails to establish exhaustion because he no longer claims this grievance was sufficient to exhaust administrative remedies. In response to Defendants' original motion to dismiss, Plaintiff claimed the grievance corresponding to the receipt dated February 20, 2017, concerned his treatment by Burnside and Adair. Br. in Opp'n to Mot. to Dismiss 7. During the evidentiary hearing, however, Plaintiff testified that this alleged February 20, 2017, grievance was unrelated to the claims in his complaint. FTR Gold 3:00:10-3:02:32. Specifically, he stated that the receipt “does not have anything to do with [his] complaint at all.” Id. at 3:01:36-3:01:49. Rather, he testified the grievance corresponding to his receipt dated February 20, 2017, concerned a different GDCP medical staff member unrelated to his claims against Defendants. Id. at 3:01:50-3:02:32. Based on Plaintiff's own testimony, therefore, any grievance filed on February 20, 2017, is irrelevant to establish exhaustion because it did not raise any issues related to this case.
3. Grievance 244265
Plaintiff filed grievance 244265 on May 30, 2017, alleging that Adair provided him incorrect medication and that he had a negative reaction. Defs.' Hearing Ex. 4, at 2, ECF No. 61-4. According to Plaintiff, he told Adair and Uglee he suffered chest pains after taking the medication, they witnessed him vomit after taking it, and they laughed and joked as he did. Id. at 3. The GDCP warden denied grievance 244265 on July 10, 2017, and Plaintiff was notified of the denial on July 17, 2017. Id. at 18. Plaintiff alleges he appealed grievance 244265 on July 26, 2017. Br. in Opp'n to Mot. to Dismiss 10. He states that he gave the appeal to Goody and that he handed him a receipt. Id. He has filed an alleged receipt (ECF No. 23-3) for the grievance appeal.
Defendants argue that even assuming Plaintiff appealed grievance 244265 as he alleges, he failed to exhaust administrative remedies because he filed his complaint before allowing the GDC time to respond to his grievance appeal. Renewed Mot. to Dismiss 8. The Court agrees. Plaintiff states he gave his appeal of grievance 244265 to Goody on July 26, 2017. Br. in Opp'n to Mot. to Dismiss 9-10. The grievance SOP provides that “[t]he Commissioner or his/her designee has 100 calendar days after receipt of the Grievance Appeal to deliver a decision to the offender.” Defs.' Hearing Ex. 1, at 15. Thus, the GDC had until November 3, 2017, to timely respond to Plaintiff's appeal of grievance 244265. Plaintiff, however, filed his complaint on July 31, 2017-less than one hundred days after he alleges he appealed his grievance. Compl. 6. “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules.” Woodford, 548 U.S. at 91. Because Plaintiff failed to await the GDC's timely response to his appeal of grievance 244265, he failed to exhaust administrative remedies as to this grievance.
4. Grievance 245015
Plaintiff filed grievance 245015 on June 7, 2017, alleging Adair and Burnside retaliated against him for filing grievances. Defs.' Hearing Ex. 5, at 2, ECF No. 61-5. Plaintiff states he was transported to the medical unit for chest pains, and he asked Defendants why they gave him the wrong medication. Id. at 2-3. Defendants became angry, stormed out of the medical unit, refused to treat him, and later admitted they gave him the wrong medication. Id. The GDCP warden denied grievance 245015 on July 17, 2017, and Plaintiff was notified of the denial on July 27, 2017. Id. at 29. Plaintiff alleges he appealed grievance 245015 on July 27, 2017. Br. in Opp'n to Mot. to Dismiss 10. Specifically, he states that he mailed his appeal to Goody on July 27, 2017, because Goody “did not do his rounds for a week, ” but he did not receive a receipt. Id.
Like with grievance 244265, Defendants argue that even assuming Plaintiff appealed grievance 245015 as he alleges, he failed to await a timely response to his grievance appeal before filing his complaint. Renewed Mot. to Dismiss 8. Plaintiff states he mailed his grievance appeal to Goody on July 27, 2017. Br. in Opp'n to Mot. to Dismiss 10. Under the SOP, the GDC had 100 days-until November 4, 2017-to timely respond to Plaintiff's appeal of grievance 245015. See Defs.' Hearing Ex. 1, at 15. Plaintiff, however, filed his complaint on July 31, 2017-less than one hundred days after he alleges he mailed his appeal of grievance 245015. Compl. 6. Because Plaintiff filed his complaint before the GDC's time to respond to his appeal expired, he failed to exhaust administrative remedies as to grievance 245015. See Woodford, 548 U.S. at 91.
5. June 13, 2017, Grievance
Plaintiff alleges he attempted to file a fifth grievance on June 13, 2017, concerning Uglee's refusal to provide him a breakfast tray when Plaintiff refused to drop a grievance against him. Br. in Opp'n to Mot. to Dismiss 10. On June 30, 2017, the GDCP counseling department sent Plaintiff a letter informing him that “[p]er SOP, [he] may only have [two] active grievances at the local level.” Resp. to Mot. to Dismiss Ex. 4, at 1, ECF No. 23-5. The letter states that his latest grievance would not be accepted unless he dropped either grievance 244265 or grievance 245015, which were both pending at that time. Id. Plaintiff alleges he attempted to file an emergency grievance concerning this same situation to avoid the two-grievance limit, but Grievance Coordinator Footman told him the alleged denial of his breakfast tray did not qualify as an emergency grievance. Id. at 11. Plaintiff, therefore, contends his grievance remedy was unavailable as to his June 13, 2017, grievance. Br. in Opp'n to Mot. to Dismiss 10-11.
First, Defendants argue Plaintiff could not have filed a grievance concerning Uglee on June 13, 2017. Renewed Mot. to Dismiss 9; Reply 2-3. Specifically, they claim that Plaintiff's grievance receipt dated June 6, 2017 (ECF No. 23-4) corresponds to his grievance concerning Uglee. Renewed Mot. to Dismiss 9; Reply 2-3. They note that Plaintiff alleges Uglee deprived him of a breakfast tray on June 13, 2017, so he could not have filed a grievance on June 6, 2017, complaining of an incident which took place seven days later. Renewed Mot. to Dismiss 9; see Compl. Attach. 1, at 14 (claiming Uglee refused to give Plaintiff a breakfast tray “[o]n June 13, 2017”); Br. in Opp'n to Mot. to Dismiss 10 (“Defendants state[] that . . . Plaintiff did not file a grievance on Defendant Uglee addressing the June 13, 2017[, ] incident when Defendant Uglee . . . refuse[d] to give me my food tray . . . .”).
Plaintiff, however, clearly contends the grievance receipt dated June 6, 2017 (ECF No. 23-4) concerns grievance 245015-not his emergency grievance concerning Uglee's alleged retaliation on June 13, 2017. Id. (“I filed grievance 245015 on June 6, 2017[.] . . . Goody signed and dated [the] receipt[, ] tore it off[, ] and gave it to me.” (citing Resp. to Mot. to Dismiss Ex. 3, at 1, ECF No. 23-4)). Indeed, during the evidentiary hearing, Plaintiff emphasized that Goody wrote “Dr. Burnside” and “Nurse Adair” at the bottom of the June 6, 2017, grievance receipt, indicating that this grievance receipt corresponds with grievance 245015-not his emergency grievance concerning Uglee and his breakfast tray. FTR Gold 3:22:50-3:24:27. Thus, his allegations are not temporally inconsistent. Although Plaintiff has not filed a receipt for this grievance, the GDCP counseling department's June 30, 2017, letter clearly indicates prison officials received a grievance from Plaintiff.
Second, Defendants argue administrative remedies were available. Renewed Mot. to Dismiss 9-10. An inmate is required to exhaust those administrative remedies which are “available.” Booth v. Churner, 532 U.S. 731, 738-39 (2001). In Ross v. Blake, -- U.S. --, 136 S.Ct. 1850 (2016), 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.” Ross, 136 S.Ct. at 1859-60. “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 . . . 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) (citation omitted).
Defendants argue that GDC's two-grievance limit does not render grievance remedies unavailable. Renewed Mot. to Dismiss 9-10. The Court agrees. In Pearson v. Taylor, 665 Fed.Appx. 858 (11th Cir. 2016), the Eleventh Circuit considered whether “the grievance procedure was unavailable because [GDC] policy prevented [inmate plaintiff] from having more than two grievances active at any one time and from listing multiple issues in a single grievance.” Pearson, 665 Fed.Appx. at 867. The Court noted that this policy did “not appear to fall within any of these three ‘exceptions' to exhaustion” listed in Ross. Id. at 868 (citing Ross, 136 S.Ct. at 159-60). “Furthermore, the Supreme Court has held that ‘to properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules-rules that are defined not by the PLRA, but by the prison grievance process itself.'” Id. (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). The Court concluded that because the GDC SOP permitted plaintiff to withdraw an active grievance and file a new one, plaintiff “had an available route to exhaust his claims . . . according to the applicable procedural rules, even if it would have required [plaintiff] to prioritize his grievances.” Id.
Like in Pearson, the grievance SOP limits inmates to two active grievances and requires an inmate to “drop one of the outstanding active grievances” in order to file a new one. Defs.' Hearing Ex. 1, ECF No. 61-1. This requirement did not render Plaintiff's grievance remedy unavailable because he could have dropped either grievance 244265 or 245015, which remained pending when he attempted to file his June 13, 2017, grievance. Pearson, 665 Fed.Appx. at 867; see also Shaffer v. Bryson, No. 5:18-cv-459-TES-MSH, R. & R. 7-9 (M.D. Ga. Jan. 24, 2020), ECF No. 57, recommendation adopted by Order 10 (M.D. Ga. Feb. 21, 2020), ECF No. 59. In particular, here, Defendants argue Plaintiff could easily drop a pending grievance because his June 13, 2017, grievance “essentially complained of the same issue” as his pending grievances 244265 and 245015. Renewed Mot. to Dismiss 9-10. Indeed, in both grievances, Plaintiff complains that he did not receive appropriate medical treatment after Adair allegedly provided him the wrong medication. Compare Defs.' Hearing Ex. 4, at 2 with Defs.' Hearing Ex. 5, at 2. Thus, Plaintiff could have dropped either grievance in order to file his June 13, 2017, grievance concerning Uglee.
Plaintiff, however, also claims that GDCP's denial of his right to file an emergency grievance to avoid the two-grievance limit rendered his grievance remedy unavailable. Br. in Opp'n to Mot. to Dismiss 10-11. Defendants argue this did not render Plaintiff's grievance remedy unavailable because Plaintiff's June 13, 2017, grievance did not constitute an emergency grievance as defined in the SOP. Renewed Mot. to Dismiss 9-10; Defs.' Post-Hearing Br. 2-3. The SOP provides that “a grievance submitted by the [inmate] as an emergency grievance, and determined by the Grievance Coordinator to be an emergency grievance” does not count towards the two-grievance limitation. Defs.' Ex. 1, at 8. The SOP defines an “Emergency Grievance” as “[a]n unexpected situation involving significant threat to the health, safety or welfare of an [inmate] that requires prompt action.” Id. at 3. When an inmate attempts to file an emergency grievance, the grievance coordinator “must determine if the Grievance fits the definition of an Emergency Grievance.” Id. at 15. Plaintiff maintains his June 13, 2017, grievance should have been considered an emergency grievance because “not getting meals that [he is] suppose[d] to receive is affecting [his] welfare.” Resp. to Renewed Mot. to Dismiss 2. Additionally, he states that “[n]ot getting food is an unexpected situation because [he] was expecting [his] breakfast tray. Taking a man's food is a dire situation such as knowing if this [is] going to continue.” Id.
At the evidentiary hearing, Plaintiff stated that Uglee deprived him of a single breakfast tray on June 13, 2017. FTR Gold 3:11:15-3:11:52, 3:17:20-3:19:29. Goody testified that missing a single breakfast tray does not constitute an emergency under the grievance SOP. Id. at 2:45:38-2:46:03. Although Plaintiff speculates that he could have been denied additional breakfast trays if he did not file a grievance, he concedes that he received all subsequent meals. Id. at 3:13:21-3:14:28, 3:32:39-3:34:39, 3:34:44-3:35:20.
It is unclear whether the Court may review a prison's determination that an incident described in a grievance does not qualify as an emergency under the SOP. Even assuming this determination is reviewable, however, Plaintiff fails to show that his June 13, 2017, grievance rose to the level of an emergency. In Gipson v. Renninger, 750 Fed.Appx. 948 (11th Cir. 2018) (per curiam), the plaintiff was confined in a Florida prison and sought to file an emergency grievance, which Florida defined as a grievance complaining of issues which “would subject the inmate to substantial risk of personal injury or cause other serious and irreparable harm.” 750 Fed.Appx. at 952. The plaintiff “complained of ‘lower back and neck pain and head cold as an [sic] result of being forced to live [for 48 hours without bedding, his uniform, or comfort items].'” Id. The Eleventh Circuit found this did not constitute an emergency grievance. Id. Importantly, the Court noted that the plaintiff “did not clearly indicate that these conditions were ongoing.”
Similarly, here, Plaintiff's June 13, 2017, grievance did not allege a continuing deprivation, as he maintains he missed a single breakfast tray. FTR Gold 3:11:15-3:11:52, 3:17:20-3:19:29. This does not rise to the level of an emergency as defined in the grievance SOP. See Gipson, 750 Fed.Appx. at 952; Arias v. Perez, 758 Fed.Appx. 878, 881 n.3 (11th Cir. 2019) (per curiam) (stating that an inmate's grievance seeking protection from gang attacks “arguably qualified as an emergency one”); Elliott v. Jones, No. 4:06-cv-00089-MP-AK, 2008 WL 420051, at *5 (N.D. Fla. Feb. 12, 2008) (“[P]laintiff was being forced to work with a swollen and bloody leg, and according to the definitions of an emergency grievance, such circumstances should qualify.”). Thus, Grievance Coordinator Footman correctly determined that Plaintiff's grievance did not demonstrate an emergency and required Plaintiff to drop one of his two active grievances. As explained above, this requirement does not render the grievance remedy unavailable. See Pearson, 665 Fed.Appx. at 867. Plaintiff failed to drop one of his two active grievances, file his June 13, 2017, grievance, or appeal any adverse decision on that grievance. Therefore, he failed to exhaust available administrative remedies as to his June 13, 2017, grievance.
C. Plaintiff's Claims
To summarize, Plaintiff exhausted administrative remedies only as to grievance 227745. This grievance concerns his deliberate indifference claims against Burnside and Adair arising from their continuing denial of medical treatment for injuries arising from his stab wounds after his transfer to GDCP on August 11, 2016. Thus, these claims may proceed to discovery. In grievances 244265 and 245015, Plaintiff alleged that (1) Adair intentionally gave him the wrong medication as retaliation for Plaintiff filing grievances, and (2) Burnside and Adair failed to treat his reactions to the medications. See Defs.' Hearing Ex. 4, at 2; Defs.' Hearing Ex. 5, at 2. As explained above, however, Plaintiff failed to exhaust administrative remedies as to these grievances.
Plaintiff alleged Uglee retaliated against him in only one grievance allegedly filed on June 13, 2017. Br. in Opp'n to Mot. to Dismiss 10; Resp. to Mot. to Dismiss Ex. 4, at 1. Similarly, he failed to either exhaust administrative remedies as to this grievance or establish that his grievance remedy was unavailable. Thus, the following claims must be dismissed for failure to exhaust and will not proceed to discovery: (1) Plaintiff's retaliation claim against Adair, (2) Plaintiff's deliberate indifference claims against Burnside and Adair arising from their failure to treat his reactions to the medications, and (3) Plaintiff's retaliation claim against Uglee. For these reasons, the Court RECOMMENDS that Defendants' renewed motion to dismiss be GRANTED IN PART AND DENIED IN PART.
CONCLUSION
For the foregoing reasons, the Court recommends that Defendants' renewed motion to dismiss (ECF No. 49) be granted in part and denied in part. 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.”