Opinion
5:22-cv-61-TES
01-02-2024
STEVIE PORTER, Plaintiff v. Dep. Warden DONAVON HAMILTION, et al., Defendants.
REPORT AND RECOMMENDATION
CHARLES H. WEIGLE UNITED STATES MAGISTRATE JUDGE
In this pro se civil rights action under 42 U.S.C. § 1983, Plaintiff Stevie Porter, an inmate at Georgia Diagnostic and Classification Prison (GDCP) in Jackson, Georgia, raised claims of deliberate indifference to serious medical needs against various medical providers. Following screening pursuant to 28 U.S.C. § 1915A, Plaintiff was allowed to proceed with a claim against Defendant Dr. Shepheard for deliberate indifference in providing dental care, along with claims against three other medical providers, Defendants Fowles, Eugene, and Prebus. (Doc. 10)
As a first responsive pleading, Defendant Shepheard filed a motion to dismiss, arguing that Plaintiff had failed to exhaust his administrative remedies and that Plaintiff's complaint failed to state a claim. (Doc 54). In lieu of a response, Plaintiff filed an amended complaint that included copies of grievances he had filed (Doc. 61), after which Defendants filed a second motion to dismiss on the same grounds. (Doc. 64). Because the record before the Court shows that Plaintiff did fully exhaust his available remedies prior to filing suit, and because the allegations in the complaint are sufficient to state a claim for deliberate indifference under 42 U.S.C. § 1983, it is RECOMMENDED that Defendants' motions (Doc. 54, 64) be DENIED.
Defendants Fowles, Eugene, and Prebus filed answers to the complaint (Docs. 20, 21, 58) and do not join in the motion to dismiss. Because the discovery period has expired as to those defendants, and no dispositive motions have been filed, their cases are ripe for trial.
1. Failure to Exhaust
The Prison Litigation Reform Act (PLRA) requires prisoners to exhaust available administrative remedies before bringing an action with respect to prison conditions under 42 U.S.C. § 1983, or any other federal law. 42 U.S.C. § 1997e(a). Exhaustion in this context means proper exhaustion: prisoners must “complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in a federal court.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). The exhaustion requirement is “designed to eliminate unwarranted federal court interference with the administration of prisons” by “seek[ing] to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008).
The Eleventh Circuit's Turner opinion establishes a two-step process for reviewing motions to dismiss based on a prisoner's failure to exhaust. A reviewing court first “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.” Id. at 1082. Second, if the complaint is not dismissed under step one, “the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion. .. .Once the court makes findings on the disputed issues of fact, it then decides whether under those findings the prisoner has exhausted his available administrative remedies.” Id. at 1082-83 (internal citations omitted). As failure to exhaust is an affirmative defense under the PLRA, “defendants bear the burden of proving that the plaintiff has failed to exhaust his available administrative remedies.” Id.
The grievance procedure applicable in this case is set by the Georgia Department of Corrections Standard Operating Procedure No. 227.02. (Doc. 64-2). Under that procedure, prisoners must follow a two-step process by first filing an “original grievance” within 10 days of the grievable issue. (Id. at 16). Prisoners may file outside of the 10-day window if they show good cause. (Id.). The original grievance is then screened by prison staff, and typically either rejected or accepted for processing. (Id. at 17). The grievance procedure further provides that a response of some kind is due within 40 days of the date of a grievance's submission, with the possibility of a 10-day extension on written notice. (Id. at 19). Once the prisoner receives the warden's response, or when the time allowed for the warden to respond expires without a response, the prisoner must proceed to step two by filing a “Central Office Appeal” within seven days. (Id. at 22). The grievance procedure then contemplates a 120-day period in which the Commissioner may give a response. (Id. at 23).
In considering whether dismissal for failure to exhaust is appropriate, under Turner's step one the Court must first consider all the alleged facts, construed in favor of Plaintiff when the facts conflict. In his original complaint, Plaintiff alleges that he first filed a grievance while at Wheeler Correctional Facility in 2019, which was not resolved until March 25, 2021, when it was denied, and then filed a second grievance on the same issues at GDCP. (Doc. 1, p. 4). His amended complaint includes copies of two grievances: (1) Grievance 298579 (Doc. 62-2, p. 3) dated October 29, 2019, along with the appeal response from the Central Office dated March 25, 2021 (Doc. 62-2, p. 2); and (2) Grievance 330576 (Doc. 62-3, p. 4) dated October 14, 2021, along with the Warden's response (Doc. 62-3, p. 3) dated November 9, 2021, and an appeal receipt (Doc. 62-3, p. 2) dated November 29, 2021. Although the amended complaint does not include a result from the appeal, Plaintiff contends that the appeal was fully exhausted prior to his filing suit. (Doc. 62, p. 6).
At Turner's second step, any disputed facts must be examined to determine whether Plaintiff exhausted the available administrative remedies prior to filing suit. The evidence presented by the parties shows that Plaintiff did fully exhaust Grievance 330576. Defendant's second motion to dismiss includes documents showing that Plaintiff's appeal from the denial of Grievance 330576 was denied on December 16, 2021, and thus was fully exhausted before Plaintiff executed his complaint on January 31, 2022. (Doc. 64-2, p. 31).
Defendant contends that this grievance did not constitute proper exhaustion because it does not specifically name Defendant Shepheard and because it violated the policy that a grievance “must be a single issue/incident and must be submitted no later than ten (10) Calendar Days from the date the Offender knew, or should have known, of the facts giving rise to the grievance.” (Doc. 64-2, p. 16). The amended complaint alleges that Plaintiff last saw Dr. Shepheard on September 16, 2021, (Doc. 62, p. 4), 28 days before he filed grievance 330756 on October 14, 2021.
Defendant characterizes the grievance as “a completely unmanageable list of separate non-specific medical issues.” (Doc. 64-1, p. 10). In the space provided for a description of the incident grieved, the grievance form states, “YOU MUST INCLUDE SPECIFIC INFORMATION CONCERNING YOUR GRIEVANCE TO INCLUDE DATES, NAMES OF PERSONS INVOLVED, AND WITNESSES.” (Doc. 62-3, p. 4). Plaintiff did not provide specific dates or names in his grievance, but instead wrote:
GDC Medical Services: Doctors, Advanced Level providers, specialists. Medical Care/Treatment - most recent 10/12/21. Medical care/treatment including multiple myeloma-related issues, neuropathy, eye care, oral care (teeth, gums, tongue), carpal tunnel in both hands. These persistent issues are sometimes very debilitating, extremely painful. They affect my day to day living abilities to see, eat, swallow, use my hands normally. Medication is having very little effect if at all. Sleep disturbances due to pain in my hands and the persistent inflammation in my hands, feet and legs. All ailments getting worse due to no treatment and/or improper treatment.
(Doc. 62-3, p. 4) (emphasis added).
Although the grievance did not specifically name Dr. Shepheard, it did reference dental care issues, mentioning deficient oral care to his teeth, gums, and tongue that resulted in difficulty eating and swallowing.
Based on the Standard Operating Procedures, the Warden could have rejected Plaintiff's grievance for failing to provide the names of the persons involved or possibly, depending on the institutional interpretation of what constitutes a “single issue/incident,” for setting forth multiple issues. The Warden did not do so, however. Instead, the grievance was accepted and investigated. Following investigation, the Warden's response was:
There is no evidence to support your allegation that you are not receiving proper medical treatment. According to provided documentation and statement, you were seen by the doctor on 09/23/2021 for cancer treatment. You have an upcoming specialist appointment already scheduled. This grievance is denied at the institutional level.
(Doc. 64-2, p. 30).
On appeal, the Central Office also addressed the grievance on its merits, rather than rejecting it for failing to comply with policy. The appeal was “forwarded to Health Services for review and any action deemed appropriate.” (Doc. 64-2, p. 31). On review of the appeal, the Office of Health Services concluded that medical personnel handled Plaintiff's case appropriately and that no further action was warranted. (Id.).
Where prison officials opted to review the grievance on its merits, it is not the Court's place to step in and state that the grievance should have been rejected for failure to meet the requirements of the Standard Operating Procedures. The exhaustion requirement in the PLRA “attempts to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to ‘affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'” Woodford v Ngo, 548 U.S. 81, 93 (2006) (alteration in original) (citing Porter v. Nussle, 534 U.S. 516, 525 (2002)). The exhaustion requirement was intended “to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Nussle, 534 U.S. at 524-525.
In this case, prison officials took the time and opportunity to address Plaintiff's complaints internally through the grievance process. Importantly, the purpose of the exhaustion requirement is to give the prison administration, not individual defendants, the opportunity to investigate and remedy complaints. Thus, it is of no consequence that the grievance does not specifically name Dr. Shepheard where the administration undertook to investigate Plaintiff's medical care as a whole in response to his grievance. Although the administrators could have chosen to reject the grievance on their own procedural grounds, they chose not to. It is not for this Court to apply procedural bars that the prison chose to waive. The purpose of the exhaustion requirement has been met in this case.
2. Failure to State a Claim
Plaintiff's complaint sets forth sufficient allegations to state a plausible claim of deliberate indifference to serious medical needs under the Eighth Amendment. In his amended complaint, Plaintiff makes the following allegations:
After continuous suffering from debilitating mouth and oral issues and during his stay in the GDC, I was sent to Georgia Diagnostic and Classification Prison (G.D.C.P.) and continue suffering from permanent physical damage to my tongue (deep teeth imprints around the edges and holes through it on my left side (front and back); chipped teeth with sharp points, lip soars; gum abscess/sores; decaying teeth (with partial cavities and obvious plaque); bad breath, swallowing difficulty. These ailments continue to cause me problems talking properly, eating/chewing my food, flossing and brushing my teeth; weight loss.
Finally on May 17, 2021, I visited Dr. Shepheard and told him about my issues and while he was examining me and taking x-rays, I asked him if he could do anything - at least clean my teeth and fill the cavity. He told me he wasn't touching it - there was nothing he could do and would refer me to an oral specialist at GDC's Augusta State Medical Prison (ASMP). I asked how long it would take - he didn't know. He and his dental assistant acknowledged my obvious, serious physical injuries to my mouth. I continued to suffer for months as my teeth, gums and other oral issues worsened.
My oncologist, Dr. Clark would eventually stop my chemo treatment so I could get help with my oral ailments. After no treatment, I placed another medical dental request.
On September 16, 2021, I was taken back to Dr. Shepheard's dental office by his assistant. Dr. Shepheard nor his assistant could find any notes, x-rays that were taken during my prior visit. He had his assistant call Augusta State Medical Prison (ASMP) and they were never sent any records regarding me. During the visit, I asked if he could at least clean my teeth and he said he “wasn't touching my mouth.”
Amended Complaint, Doc. 62, pp. 2-4
Plaintiff goes on to allege that he was later seen by a specialist at ASMP who “looked at my mouth and told me they couldn't do anything, that the dentist at G.D.C.P. is suppose to pull my teeth, fillings, cleanings, etc.” (Id., p. 5).
On motion to dismiss, the Court must accept Plaintiff's factual allegations as true. “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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “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.” Id..
Plaintiff's allegations are facially plausible and, construed liberally and accepted as true, are sufficient to allow the Court to draw the inference that Defendant acted with deliberate indifference to a serious medical need. To establish deliberate indifference, Plaintiff must first show he had a serious medical need, “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) (quotation marks and citation omitted). Further, he must show that the condition would pose a “substantial risk of serious harm” if left unattended. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003).
Plaintiff's claims regarding the condition of his teeth and mouth suggest a medical need that even a lay person would recognize as requiring treatment. Plaintiff alleges that he suffered damage to his tongue, including deep teeth imprints around the edges and holes on the left side, chipped teeth, lip sores, gum abscess and sores, decaying teeth with partial cavities and obvious plaque, bad breath, and difficulty with swallowing. These allegations plausibly indicate a serious medical need that required treatment.
After showing a serious medical need, Plaintiff must show that Defendant knew of and disregarded the risk “by conduct that is more than mere negligence.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011); see also Miller v. King, 384 F.3d 1248, 1251 (11th Cir.2004). “[I]t is obdurancy and wantonness, not inadvertence or error in good faith,” that violates the Constitution in “‘supplying medical needs.'” Adams v. Poag, 61 F.3d at 1543 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). “Conduct that is more than mere negligence includes: (1) grossly inadequate care; (2) a decision to take an easier but less efficacious course of treatment; and (3) medical care that is so cursory as to amount to no treatment at all.” Id. In this case, Plaintiff alleges that Defendant “acknowledged [the] obvious, serious physical injuries to [Plaintiff's] mouth” but provided no treatment at all, refusing even to touch Plaintiff's mouth. Plaintiff alleges that he continued to suffer from worsening conditions over a period of months without treatment.
In his motion to dismiss, Defendant contends that there was nothing he could do for Plaintiff and that Plaintiff's condition required treatment by a specialist. This argument raises a dispute of fact that is not appropriate on a motion to dismiss, when the Court must accept Plaintiff's allegations as true. The allegations in Plaintiff's complaint indicate that Plaintiff later did see a specialist, who told Plaintiff that his oral concerns should be treated by the dentist at GDCP, that is, Dr. Shepheard. This dispute of fact cannot be resolved on motion to dismiss, but requires the development of an evidentiary record.
CONCLUSION
Because the record demonstrates that Plaintiff fully exhausted his available administrative remedies prior to commencing suit, and because the allegation in Plaintiff's complaint are sufficient to state a claim for which relief can be granted, it is RECOMMENDED that Defendants' motions to dismiss (Docs. 54, 64) be DENIED and that this case proceed for further factual development.
As noted in footnote 1, above, because Defendants Fowles, Eugene, and Prebus have completed discovery and have not filed dispositive motions, their cases are ready for trial. Although Defendant Shepheard did not move to stay discovery when filing his motion to dismiss, it is further recommended that an additional discovery period of 60 days be provided as to claims against Defendant Shepheard, with dispositive motions to be due 30 days after the expiration of the discovery period.
OBJECTIONS
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. Any objection is limited in length to TWENTY (20) PAGES. 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 further 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.