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recognizing that the Muscogee County Jail has an established grievance procedure
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4:22-CV-19-CDL-MSH
08-23-2022
WARREN PASCHAL, JR, Plaintiff, v. Doctor PETTY, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Dr. Jeremey Petty's motion to dismiss Plaintiff's complaint (ECF No. 20). For the reasons explained below, it is recommended that Defendant's motion be granted, and Plaintiff's complaint dismissed without prejudice.
BACKGROUND
Pro se Plaintiff Warren Paschal, Jr.'s complaint arises out of his confinement in the Muscogee County Jail (“MCJ”) in Columbus, Georgia. Compl. 1-2, ECF. No. 1. According to Plaintiff, he received inadequate medical treatment when he “had a hernia” and Defendant Petty “violated [Plaintiff's] rights by not sending [him] to get surgery.” Recast Compl. 5, ECF No. 4. Plaintiff claims he experienced significant pain from this hernia and that he “went on emergency sick call 5 times in 60 days” due to his pain. Objs. 2, ECF No. 9. Plaintiff's allegations give rise to a claim that Defendant acted with deliberate indifference to his serious medical needs in violation of the Fourteenth Amendment. Order and R. 6, ECF No. 10.
In accordance with the Court's previous orders and instructions, Plaintiff recast his complaint on the Court's standard form (ECF No. 4) and supplemented his motion for leave to proceed in forma pauperis (ECF No. 5). The Court granted Plaintiff's motion to proceed in forma pauperis but recommended that Plaintiff's claims be dismissed without prejudice on March 29, 2022. Order & R 1, ECF No. 8. On April 15, 2022, Plaintiff timely filed objections to the Court's Report and Recommendation (ECF No. 9), which the undersigned liberally construed as a motion to amend his Complaint. Order & R 1, ECF No. 10. On May 2, 2022, the Court withdrew its March 29, 2022 Order and Recommendation (ECF No. 8) and conducted a new preliminary screening of Plaintiff's Recast Complaint. Id. The Court found that Plaintiff's medical treatment claims against Defendant Petty should proceed for further factual development but dismissed Plaintiff's claims against Defendant Countryman without prejudice. Id.; Order 1, Aug. 1, 2022, ECF No. 26 (adopting recommendation).
On May 16, 2022, Plaintiff moved for leave to appeal the preliminary screening Recommendation. Mot. for Leave to Appeal, ECF No. 13; Order & R. 4-9, May 2, 2022, ECF No. 10. The Court denied this motion on May 19, 2022. Order 1, ECF No. 14. Plaintiff filed objections and a response (ECF No. 15) to the Order and Recommendation on June 7, 2022. On June 30, 2022, Defendant Petty answered plaintiff's Recast Complaint (ECF No. 19) and simultaneously moved to dismiss the complaint (ECF No. 20). Plaintiff responded (ECF No. 24) to Defendant Petty's motion to dismiss on July 20, 2022. Pl.'s Resp. to Def.'s Mot. to Dismiss, ECF No. 24. Defendant Petty replied to Plaintiff's response on July 28, 2022. Def.'s Reply, ECF No. 25. Defendant's motion to dismiss is ripe for review.
DISCUSSION
Defendant Petty moves for dismissal, arguing (1) Plaintiff's complaint should be dismissed because he violated the “three strike rule” set forth in 28 U.S.C. § 1915(g); (2) Plaintiff abused the judicial process by failing to disclose prior lawsuits; and (3) Plaintiff has failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Def.'s Mot. to Dismiss 3-17, ECF No. 20. The Court recommends that Defendant's motion be granted.
I. Motion to Dismiss Standard
When the Court considers a 12(b)(6) motion to dismiss, it must accept as true all facts set forth in the plaintiff's complaint and consider only the pleadings and the exhibits attached thereto. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The complaint must include sufficient factual allegations “to raise a right to relief above the speculative level” and “a formulaic recitation of the elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555. Although the complaint must contain factual allegations that “raise a reasonable expectation that discovery will reveal evidence of” the plaintiff's claims, id. at 556, “Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable.'” Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).
II. The “Three Strikes” Rule
1. The Prison Litigation Reform Act The “three strikes” provision of the Prison Litigation Reform Act (“PLRA”) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915 (g). This provision “generally bars a prisoner from proceeding IFP if he has previously filed three or more meritless lawsuits.” Mitchell v. Nobles, 873 F.3d 869, 872 (11th Cir. 2017). Thus, Plaintiff's failure to comply with court orders in this case and in at least three previous lawsuits should mandate dismissal under § 1915 (g).
A prisoner's “failure to comply with court rules requiring disclosures about [his] previous litigation constitutes an abuse of the judicial process warranting dismissal” of his pleading. Sears v. Haas, 509 Fed.Appx. 935, 936 (11th Cir. 2013). See also Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007) (“[D]ismissal for abuse of process is precisely the type of strike that Congress envisioned when drafting section 1915(g).”)
2. Plaintiff's Failure to Disclose Previous Suits
The Court's standard form for prisoners proceeding pro se under 42 U.S.C. § 1983 instructed Plaintiff to “DISCLOSE ALL PRIOR CIVIL CASES” and warned that not doing so “MAY RESULT IN THE DISMISSAL OF THIS CASE.” Recast Compl. 2, ECF No. 4 (emphasis in original). Further, the form requested specific information regarding the disposition of previous suits. Id. Here, Plaintiff disclosed only one previous lawsuit filed in 2015, listing the Defendant as “Cert Team.” Id. He indicated the case was disposed of when he was awarded $165,000. Id. at 3. Further, Plaintiff answered “No” to Question No. 8 of the form, which stated, AS TO ANY LAWSUIT FILED IN ANY FEDERAL COURT in which you were permitted to proceed in forma pauperis, was any suit dismissed on the ground that it was frivolous, malicious, or failed to state a claim?” Id. (emphasis in original).
Plaintiff's description of his litigation history is not accurate. Despite his representations, Plaintiff failed to disclose the remaining thirteen lawsuits he filed while incarcerated, many of which were dismissed for failure to follow the Court's orders. See Def's Mot. to Dismiss Ex. A, ECF No. 20-1 (Docket Report of lawsuits filed by Warren Paschal, Jr.). A review of court records on the Federal Judiciary's Electronic Filing (“CM/ECF”) database reveals that Plaintiff has been afforded his three strikes. See, e.g., Paschal v. Doe, 4:19-cv-40 (dismissed for failure to follow Court's order to pay filing fee or file a motion to proceed IFP on July 15, 2019); Paschal v. Thompkins, et al., 4:19-cv-126 (dismissed for failure to show cause, comply with previous Court orders, and failure to prosecute his case on October 16, 2019); and Paschal v. Thompkins, et al., 4:19-cv-68 (dismissed for failure to follow Court's order to provide prison trust fund account information regarding his motion to proceed IFP on March 4, 2020).
In sum, six of Plaintiff's previous cases were dismissed for failure to follow Court orders, and one was dismissed for failure to state a claim. See Paschal v. Walkman, et al., 4:21-cv-213 (dismissed for failure to state a claim upon which relief could be granted on June 7, 2022); see also Def's Mot. to Dismiss 5-6, ECF No. 20. Thus, Plaintiff has exceeded the “three strikes” allowed under 28 U.S.C. § 1915 (g), and his Complaint should be dismissed without prejudice so that Plaintiff may refile his suit when he can pay the filing fee required by this Court.
A prisoner falling under the “three strikes” provision “must pay the full filing fee at the time he initiates suit.” Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam) (emphasis in original).
3. The “Imminent Danger” Exception
The PLRA carves out an exception to the “three strikes” bar only where “the prisoner is under imminent danger of serious physical injury” because, “[w]hen such fundamental interests are at stake, the litigant's inability to pay the filing fee cannot be a barrier to his access to the judiciary. Miller v. Donald, 541 F.3d 1091, 1096 (11th Cir. 2008). However, “a prisoner's allegation that he faced imminent danger sometime in the past is an insufficient basis to allow him to proceed in forma pauperis pursuant to the imminent danger exception to [28 U.S.C. 1915 (g)].” Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). Thus, a harm that already took place or a danger that has passed cannot justify the use of the exception to the “three strike” rule. Id.
Plaintiff does not allege any present danger that entitles him to use of the “imminent danger” exception. Plaintiff alleges that Defendant Petty violated his rights by failing to send him for hernia surgery; however, Plaintiff fails to assert facts showing the surgery is or was medically necessary. Recast Compl. 5, ECF No. 4. In his response to Defendant's motion to dismiss, Plaintiff alleges he “went on emergency sick call 5 times in 60 days,” but he does not assert any facts showing “imminent danger” because of the alleged hernia. Pl.'s Resp. to Def.'s Mot. to Dismiss 2, ECF No. 24. A court should not “presume imminent danger” whenever a plaintiff complains of a medical issue. Skillern v. Paul, 202 F. App'x. 343, 344 (11th Cir. 2006). Therefore, Plaintiff's complaint of an alleged hernia that occurred during his incarceration that may have caused harm in the past does not amount to “imminent danger” that warrants an exception to the “three strike” rule.
III. Failure to Disclose Prior Lawsuits
Irrespective of whether Plaintiff is barred by the “three strike” rule, his complaint should be dismissed for failure to disclose the thirteen previous lawsuits he filed in federal court. In his Recast Complaint, Plaintiff listed only one previous lawsuit and he signed the complaint under penalty of perjury. Recast Compl. 2-6, ECF No. 4. Plaintiff's response was false. As noted above, Plaintiff has filed over thirteen lawsuits in federal court, at least three of which were dismissed as frivolous, malicious, or for failure to state a claim. A prisoner's “failure to comply with court rules requiring disclosures about his previous litigation” may constitute “an abuse of the judicial process warranting dismissal” of the party's pleading as frivolous or malicious under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1). See Sears, 509 Fed.Appx. at 936; see also Shelton v. Rohrs, 406 Fed.Appx. 340, 340-41 (11th Cir. 2010) (per curiam) (affirming dismissal of prisoner's complaint where prisoner “checked ‘no' to the question on the complaint form asking whether he had filed any other actions in state or federal court” but case management system revealed at least four other actions filed in federal court). “Although Pro se pleadings are held to a less stringent standard, a plaintiff's Pro se status does not excuse mistakes regarding procedural rules.” Sears, 509 Fed.Appx. at 936 (citing McNeil v. United States, 508 U.S. 106, 113 (1993)). Dismissal is also proper under 28 U.S.C. § 1915 where a plaintiff engages in bad faith litigiousness or manipulative tactics. Redmon v. Lake Cty. Sheriff's Office, 414 Fed.Appx. 221, 225 (11th Cir. 2011) (per curiam).
A prisoner's failure to disclose his full litigation history, when requested to do so, is not considered a minor omission. Such information is highly relevant where, as here, a prisoner seeks to proceed without prepayment of the filing fee, as the court has a duty to enforce the statutory three strikes bar, 28 U.S.C. § 1915(g). See Greyer v. Ill. Dep't Corr., 933 F.3d 871, 880 (7th Cir. 2019) (“If an undisclosed past case was dismissed as frivolous, malicious, or failed to state a claim (i.e., it was or should have been a strike), then omission of that case is material.”). This information is also necessary for the court to determine, prior to service, whether a prisoner's claims are related to, or should be considered in connection with, another pending action and-more importantly-whether any claims or issues in the current complaint have already been decided. Williams v. Wiggins, No. 6:09-cv-943, 2010 WL 4983665, at *2 (M.D. Fla. Dec. 2, 2010). Reliable disclosures are thus essential for an efficient and effective screening of the large number of Pro se prisoner complaints received by this Court. See 28 U.S.C. § 1915A(a). Further, as other courts within this Circuit have reasoned, if Pro se plaintiffs suffered no substantial penalty for providing false or misleading information in the complaint, “there would be little or no disincentive” for prisoners to attempt to evade the requirement that such disclosures be made. Williams, 2010 WL 4983665 at *4 (internal quotation marks omitted); see also Hood v. Tompkins, 197 Fed.Appx. 818, 819 (11th Cir. 2006) (per curiam) (agreeing with district court's conclusion that allowing prisoner to “acknowledge what he should have disclosed earlier would serve to overlook his abuse of the judicial process”).
Here, Plaintiff failed to disclose his complete litigation history on a complaint form that unambiguously requires this disclosure. The form additionally warned Plaintiff that the failure to disclose all his prior cases could result in the dismissal of this case. Recast Compl. 2, ECF No. 4. Plaintiff's failure to disclose his other lawsuits and failure to comply with the Court's rules amounts to lying under penalty of perjury, which is the kind of abuse of process that warrants dismissal. See Rivera, 144 F.3d at 731. Therefore, Plaintiff's failure to disclose his other lawsuits results in an independent justification for dismissal of his claim.
IV. Failure to Exhaust Administrative Remedies
The 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).
An argument for failure to exhaust administrative remedies is properly brought in a motion to dismiss. Bryant, 530 F.3d at 1375. 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 that district court did not clearly err in determining that 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).
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.” Ross, 578 U.S. 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”).
1. Muscogee County Jail's Grievance Process
Defendant Petty submitted the affidavit of Lt. Antionette Holloway, the Grievance Coordinator at the MCJ, to show that administrative remedies are available and MCJ has a clear grievance process available to Plaintiff that he could have followed prior to filing a § 1983 lawsuit. Holloway Aff. ¶ 2, ECF No. 20-2. The grievance process is described in the MCJ Inmate Handbook, a copy of which is given to each inmate, along with a verbal description of the grievance process. Id at ¶ 3. Under the MCJ procedures, inmates are required to file grievances and appeals as described in the Inmate Handbook prior to filing a civil lawsuit. Id. at ¶ 6.
MCJ's grievance process is as follows. If complaints are not handled informally, inmates “may file a written grievance within five days of discovery of when [they] reasonably should have discovered the incident. Holloway Aff. Ex. A, at 15, ECF No. 202. The grievance officer then orders an investigation of the incident to begin within twenty-four hours of the complaint and an impartial member of the staff investigates the grievance and submits a written report of his findings and recommendation. Id. When an inmate receives a formal response to the grievance, they may either accept the finding and action taken, or appeal to the jail Commander or designee. Id. If the inmate does not appeal, it is assumed they accept the findings, and the case is closed. Id.
2. Plaintiff's Grievance
Upon review of Plaintiff's entire jail grievance record, Lt. Holloway found that, though Plaintiff filed multiple sick call requests, he only filed one Medical Grievance, dated April 22, 2021. Holloway Aff. ¶ 8, ECF No. 20-2. Further, Plaintiff did not file an appeal to his sole grievance and did not file any other grievances. Id. Plaintiff's grievance stated, “DR. PETTY, I REQUESTED THAT YOU LOOK AT MY HERNIA, IT IS THE SIZE OF AN EGG AND IT IS EXCRUTIATINGLY PAINFUL.” Id. at ¶ 9. The next day, Plaintiff received a formal response, instructing Plaintiff to “[p]ut in a sick call request.” Id.
According to the MCJ Inmate Handbook, Plaintiff was required to appeal this grievance or file another one prior to commencing litigation, however, Plaintiff never filed an appeal or another grievance. Id. at ¶ 10-11. Plaintiff's response does not contradict this finding. Pl.'s Resp. to Def.'s Mot. to Dismiss 1-5, ECF No. 24. Plaintiff only argues that Defendant's alleged violations of his Eighth and Fourth Amendment rights “constituted a deliberate indifference to his medical needs by being in pain for 60 days.” Id. at 2. Plaintiff contends that, if the court would subpoena jail records, it would show that Plaintiff went on emergency sick call five times in the last sixty days. Id. at 4. Plaintiff's response does not provide any justification for his failure to pursue administrative remedies beyond the sole grievance he filed on April 22, 2021, nor does he allege that MCJ's grievance process was unavailable or unknown to him. Under the two-step Turner analysis, the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response do not conflict. Turner, 541 F.3d at 1082. Taking all of Plaintiff's facts as being true, Defendant is entitled to dismissal for failure to exhaust. Further, to the extent Plaintiff argues Defendant was deliberately indifferent to his medical needs in violation of the Eighth and Fourteenth Amendments, Plaintiff's claim is moot due to his failure to exhaust his administrative remedies. Therefore, Defendant Petty's motion to dismiss should be granted and Plaintiff's Recast Complaint should be dismissed without prejudice.
To support his deliberate indifference argument, Plaintiff claims that, in the last three years, four jail inmates died of medical reasons due to “malpractice and neglect.” Pl.'s Resp. to Def.'s Mot. to Dismiss 2-3, ECF No. 24. The Court need not reach the merits of this argument because of Plaintiff's failure to exhaust.
CONCLUSION
For the reasons explained above, it is recommended that Defendant's motion to dismiss (ECF No. 20) be granted. 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. Any objection should be no longer than TWENTY (20) PAGES in length. See M.D. Ga. L.R. 7.4. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are 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,