Opinion
5:23-cv-296-MTT-CHW
01-24-2025
JODY LEE RABY, Plaintiff, v. ANGELA REAVES-PHAMS, et al., Defendant.
REPORT AND RECOMMENDATION
PROCEEDINGS UNDER 42 U.S.C. § 1983 BEFORE THE U.S. MAGISTRATE JUDGE
CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jody Raby, a state inmate, filed a pro se civil rights complaint seeking relief under 42 U.S.C. § 1983 regarding his confinement at Riverbend Correctional and Rehabilitation Facility in Milledgeville, Georgia. (Doc. 1). Defendants Angela Reaves-Phams, Michael McRae, and Douglas West filed a motion for summary judgment, arguing that Plaintiff has failed to exhaust his administrative remedies and that Defendants were not deliberately indifferent to a substantial risk of serious harm. (Doc. 42). Plaintiff has filed several responses and declarations laying out his version of facts related to exhaustion and his deliberate indifference claims. (Docs. 1-16, 1-17, 46, 47). Although Defendants have failed to show that Plaintiff did not exhaust his administrative remedies, the record before the Court shows that Defendants Reaves-Phams, McRae, and West were not deliberately indifferent to a substantial risk of serious harm. Therefore, it is RECOMMENDED that Defendants' motion for summary judgment be GRANTED.
BACKGROUND
Plaintiff brought this action on July 20, 2023, alleging constitutional violations regarding his incarceration at Riverbend Correctional and Rehabilitation Facility (“Riverbend”). (Docs. 1, 23). Following screening of Plaintiff's complaint and amended complaint under 28 U.S.C. § 1915A, the Court allowed Plaintiff to proceed on his deliberate indifference claims against Defendants Reaves-Phams, West, and McRae. (Docs. 18, 26).). In his deliberate indifference claim, Plaintiff alleges that Defendants failed to protect him from inmate assaults. (Doc. 1-1, p. 11-12). Defendants each filed an answer which raised the defenses of failure to state a claim and failure to exhaust, among others. (Docs. 32, 33, 35). The parties then engaged in a period of discovery. Defendants have now filed a joint motion for summary judgment. (Doc. 42).
SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The party moving for summary judgment bears the burden of informing the Court of the basis for its motion, and of citing “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 32224 (1986). In resolving motions for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Tolan v. Cotton, 572 U.S. 650, 657 (2014).
Although Plaintiff responded to Defendants' motion for summary judgment (Doc. 46), he did not specifically respond to all of Defendants' statement of material facts as required by Local Rule 56. See MDGA Local Rule 56. This failure could trigger consequences under both the Federal Rules of Civil Procedure and this Court's Local Rules. Federal Rules of Civil Procedure 56(e)(2) provides that if a party “fails to properly address another party's assertion of fact as required by Rule 56(c),” then the Court may “consider the fact undisputed for purposes of the motion.” FED. R. CIV. P. 56(e)(2). This Court's Local Rule 56 similarly provides: “All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate.” MDGA Local Rule 56. Finally, Federal Rule of Civil Procedure 56(e)(3) provides that the Court may “grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to” summary judgment. FED. R. CIV. P. 56(e)(3); see also Urdanetta v. Wells Fargo Bank, N.A., 734 F. App'x. 701, 704 (11th Cir. 2018).
Accordingly, because Defendants properly asserted their factual assertions with specific citations to the record, and because Plaintiff responded to some of Defendants' assertions while failing to respond to others pursuant to Local Rule 56, Defendants' facts may be accepted by the Court as undisputed. Nevertheless, the Court has reviewed the record of evidence to confirm the facts set forth in Defendants' statement. If evidence in the record shows that a fact is disputed, the Court has drawn all justifiable inferences in Plaintiff's favor for purposes of summary judgment.
RELEVANT FACTS
Plaintiff's claims stem from his incarceration at Riverbend from July 2022 through May 2023. Defendant Reaves-Phams is the Facility Administrator at Riverbend. (Doc. 42-8, ¶ 1). Defendant West is the Unit Manager of E and F building at Riverbend. (Doc. 42-9, ¶ 1). Defendant McRae is an Investigator at Riverbend. (Doc. 42-10, ¶ 1).
I. Plaintiff's Version of Events
Plaintiff transferred from Coffee Correctional Facility to Riverbend on July 14, 2022. (Doc. 42-4, p. 2). Plaintiff alleges in his initial complaint-which the Court treats as evidence because the complaint is verified under 28 U.S.C. § 1746-that, upon arrival, he “advised Medical, Mental Health, and security staff that he is gay and felt vulnerable to assault and sexual harassment” and that” he had been sexually assaulted in open barracks in 2018 [at Jenkins Correctional Facility] and feared being in open barracks.” (Doc. 1-1, p. 3). Plaintiff was originally housed in “E-A,” a “cell house,” before he was moved to an open barracks dorm on July 25, 2022. (Docs. 1-1, p. 34; 42-4, p. 2). According to Plaintiff, he informed Defendant West at that time of his concerns regarding his safety. (Doc. 1-1, p. 4).
Plaintiff's initial complaint (Doc. 1), objection to the Court's screening order (Doc. 22), and amended complaint (Doc. 23), were all given under penalty of perjury. See 28 U.S.C. § 1976. The Court must “credit the specific facts pled in [Plaintiff's] sworn complain when considering his opposition to summary judgment.” Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (internal quotations and citations omitted); see LaCroix v. Lee Cnty., Fla., 819 Fed.Appx. 839, 842 n.1 (11th Cir. 2020) (“[Plaintiff] filed a verified complaint, which can serve as an affidavit under 28 U.S.C. § 1746.”); see also Sorrells v. Dodd, 2024 WL 3981781, *4 n.11 (11th Cir. Aug. 29, 2024) (explaining that an unsworn declaration “carries the same force as a sworn affidavit under 28 U.S.C. § 1746 because he signed and dated the document, and declared under penalty of perjury that his statements are true and correct”) (internal quotations and citations omitted).
Plaintiff states that there was a gang war while he was housed in G-Building and that he wrote a letter to Defendants Reaves-Phams and McRae on July 28, 2022, expressing his fear of being in that dorm due to gang violence. (Doc. 1-1, p. 4-5). Plaintiff wrote another letter to Defendants Reaves-Phams and McRae on August 4, 2022. (Id., p. 5). Plaintiff filed his first grievance on September 14, 2022, and wrote another letter to Defendant Reaves-Phams that same day. (Id.; Doc. 1-9, p. 2).Plaintiff wrote in his first grievance that he “should have been assessed during intake for risk of being sexually abused,” that he advised staff that he had been sexually assaulted at a previous facility, and that he was currently getting harassed daily for being gay and was in fear of an assault. (Doc. 1-7, p. 2). Defendant West “harassed” Plaintiff later that day for filing the grievance. (Doc. 1-1, p. 6).
Plaintiff attached this letter as an exhibit to his complaint. (Doc. 1-9). It was addressed to Defendant Reaves-Phams and was given under penalty of perjury. See supra fn.1. Plaintiff states in the letter that he and other inmates are being harassed due to their sexual orientation and status as sex offenders. (Doc. 1-9, p. 1).
On September 18, 2022, Plaintiff awoke to find other inmates robbing him. (Id.). The next day, Plaintiff was punched and kicked in his face by other inmates while he was sitting in his bed. (Id.). He wrote letters to Defendants Reaves-Phams and West that day explaining the incidents. (Id.). Plaintiff also provided a declaration from inmate Ronald Ray Agan, in which Agan states that Plaintiff had a “severe blackeye” around September 2022. (Doc. 46-2, p. 1). At some point in late 2023 to early 2024, Plaintiff learned from his mental health case manager, Ms. Robinson, that other inmates had been calling Plaintiff's cousin and demanding money in exchange for not assaulting Plaintiff. (Id., p. 7). Plaintiff “was extorted for over $70,000 from December 2022 to April 2023.” (Id.). Plaintiff filed a second grievance on April 13, 2023, reiterating the concerns he wrote in his first grievance and adding that he had reported the robbery and assault without hearing a response. (Doc. 42-2, p. 4). He also listed in this grievance that he had been extorted. (Id.). Ms. Robinson later informed Plaintiff that she reported the extortion to Defendant McRae. (Doc. 23-1, p. 3).
Plaintiff was assaulted a second time on April 14, 2023. (Doc. 1-1, p. 7). A non-defendant prison official arrived and escorted Plaintiff out of the dorm where another non-defendant official escorted Plaintiff to the medical ward. (Id., p. 8). Plaintiff had “cuts on his face, 2 dark black eyes, [a] bloody nose and a cut on his chin.” (Id.). Plaintiff informed the prison official that that he needed protective custody, and he was moved to a cell house that day. (Id.; Doc. 42-4, p. 2). On April 17, 2023, Defendant West, along with two other prison officials, informed Plaintiff that he would be moving again. (Doc. 1-1, p. 8-9). Plaintiff ran away, while having an anxiety attack, and Defendant McRae placed Plaintiff in involuntary protective custody. (Id., p. 9); see (Docs. 1-12, p. 1; 42-4, p. 2). Plaintiff wrote letters to Defendants Reaves-Phams and McRae on May 5 and 6, 2023, and wrote a third grievance April 17, 2023. (Docs. 1-1, p. 9; 1-10; 1-11; 42-4, p. 7-9). Plaintiff's third grievance reiterated the complaints from the first two and added the assault on April 14. (Doc. 42-2, p. 7-8). On April 21, 2023, Plaintiff signed an inmate request form in which he requested to be taken out of protective custody. (Doc. 1-12). GDC transferred Plaintiff to Wheeler Correctional Facility on May 23, 2023. (Doc. 42-4, p. 2).
II. Defendants' Version of Events
Defendants dispute many of the facts as described by Plaintiff. Defendant Reaves-Phams testifies in her sworn declaration that after Plaintiff completed his orientation upon arrival at Riverbend, he was assigned to G-Building, an open dorm. (Doc. 42-8, ¶ 8). Plaintiff was not eligible for a cell because only inmates that are enrolled in the Animal Training Program are permitted to be in a cell, and Plaintiff's sexual orientation was not a factor in the transfer consideration. (Id, ¶ 9-10). Defendant West testifies that Plaintiff did not express at any time “any fear for his safety being in open dorms due to being sexually assaulted and harassed in open dorms in the past.” (Doc. 42-9, ¶ 10). He states that there was “no constant violence that posed a known threat to the safety of [Plaintiff] being housed in general population.” (Id., ¶ 13). Defendants Reaves-Phams and McRae also deny that any gang violence occurred the month that Plaintiff alleges and state that they did not receive any letter relating to gang violence or to Plaintiff's concerns of assault (Docs. 42-8, ¶ 13-16, 18; 42-10, ¶ 10, 15). There is no copy of such a letter in the record. Defendant Reaves-Phams states in her declaration that between September 15, 2022, and April 13, 2022, she had no communication with anyone that related to the safety of Plaintiff. (Doc. 42-8, ¶ 18). Defendant West also states he never had any communications with anyone that related to any alleged threat or extortion of Plaintiff while Plaintiff was incarcerated at Riverbend.
(Doc. 42-9, ¶ 14). Defendant McRae provides that the first he heard of Plaintiff was on April 14, 2023, and that he had no communication with anyone prior to that date concerning Plaintiff. (Doc. 42-10, ¶ 10-15).
Following Plaintiff's second grievance, Defendant McRae conducted an investigation. Defendant McRae's investigation revealed that Plaintiff had a bruised and blackened eye. (Doc. 42-10, ¶ 20). The investigation also
revealed that the alleged assault could not be substantiated by CCTV footage; no evidence of extortion; no evidence of sexual assault; no evidence that [Plaintiff] reported any incidents of harassment, assault, or extortion prior to the alleged assault; and no evidence that [Plaintiff] was at risk of being assaulted by . . . any [] inmates at Riverbend prior to the alleged assault.(Doc. 42-8, ¶ 21); see (Docs. 42-10, ¶ 20, 25-28; 42-5; 42-6). On April 14, 2023, Plaintiff was reassigned to protective custody, where he remained until he was transferred to Wheeler State Prison. (Doc. 42-10, ¶ 21-22). Plaintiff was placed in protective custody solely for his own protection and as required by Riverbend's policies and procedures. (Id., ¶ 21; Doc, 42-9, ¶ 17). According to Defendant West, Plaintiff's relocation on April 17 to another cell in the protective custody unit was due to officials' discovery that Plaintiff was engaging in a sexual relationship with another inmate. (Doc. 42-9, ¶ 17). Plaintiff also provided a witness statement that day in which he requested to be placed in protective custody. (Doc. 42-5, p. 4).
ANALYSIS
In their motion for summary judgment, Defendants argue that Plaintiff failed to exhaust his claims against Defendants West and McRae. Defendants also argue that Plaintiff has provided no evidence that Defendants Reaves-Phams, McRae, and West were deliberately indifferent to a substantial risk of serious harm. As discussed below, Defendants have not shown that Plaintiff failed to exhaust his administrative remedies, but the record, construed in the light most favorable to Plaintiff, fails to establish, as a genuine issue of material fact, that Defendants violated Plaintiff's Eighth Amendment rights.
I. 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. § 1997(e)(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 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) (quoting Woodford, 548 U.S. at 93).
The Eleventh Circuit's Turner opinion establishes a two-step process for reviewing motions to dismissbased 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.” Turner, 541 F.3d 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.
A motion for summary judgment raising failure to exhaust is treated like a motion to dismiss. See Bryant v. Rich, 530 F.3d 1368, 1374-1375 (11th Cir. 2008) (explaining that “an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment; instead; it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment”) (internal quotations and citations omitted).
The grievance procedure applicable in this case is set by the Georgia Department of Corrections Standard Operating Procedure No. 227.02 (Doc. 42-3). Under that procedure, prisoners must follow a two-step process by first filing an “original grievance” within ten days of the grievable issue. (Id., p. 8). 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 9). 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 11). 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 14). The grievance procedure then contemplates a 120-day period in which the Commissioner may give a response. (Id. at 15).
The referenced page numbers cite to the policy itself and not the document to which the policy was attached.
A. TurnerStep One
Even when a failure to exhaust is raised in a motion for summary judgment, determining whether dismissal is appropriate requires the Court to apply the test outlined in Turner to determine whether Plaintiff failed to exhaust the administrative remedies available to him. 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. As such, Turner's step one requires us to take Plaintiff's version of the facts as true. Turner, 541 F.3d at 1082.
In his original complaint and subsequent declarations, Plaintiff acknowledges that DSP has a grievance procedure and states that he submitted three grievances relating to his claims: Grievance No. 343402 on September 14, 2022; Grievance No. 351883 on April 17, 2024; and Grievance No. 351887 on April 27, 2023. (Docs. 1, 23).
As to Grievance No. 343402 (i.e., Plaintiff's first grievance), Plaintiff asserts that he received a rejection from Defendant Reaves-Phams and could not appeal it because it was forwarded to the Sexual Abuse Response Team (SART). (Docs. 1-1, p. 1; 46, p. 1). As to Grievances No. 351883 and No. 351887, Plaintiff's second and third grievances, GDC records indicate that both were denied, appealed within the seven (7) day requirement, and denied again on appeal. (Doc. 42-2, p. 4-9).
The PLRA requires exhaustion prior to filing suit. 42 U.S.C. § 1997e(a). The filing of Plaintiff's complaint serves as the marker for when he is required to have completed exhaustion of available administrative remedies as required. Harris v. Garner, 216 F.3d 970 (11th Cir. 2000). In Harris, the Eleventh Circuit, sitting en banc, considered what the word “brought” means in the context of the PLRA requirements and an amended complaint. The Court concluded that “‘brought' means ‘commenced.'” Id. at 974. Amending or supplementing the complaint attempting to show exhaustion which was not complete when the action commenced will not suffice to meet the exhaustion requirement. Id. at 982-984 (discussing FED. R. CIV. P. 15 and other examples of where amendment will not cure jurisdictional requirements needed to bring suit). Pursuant to Harris, the entire administrative process, from initial grievance to the appeal outcome, needed to have been completed before Plaintiff filed this action on July 20, 2023. (Doc. 1).
Based on his own allegations, Plaintiff did not appeal Grievance No. 343402. (Doc. 46, p. 1). Plaintiff did, however, fully exhaust Grievance No. 351883. Plaintiff's second grievance reiterates allegations from his first grievance-a grievance that Plaintiff arguably was unable to appeal per GDC SOP because it was forwarded to a SART investigator rather than rejected on the merits-and adds that he had been assaulted and extorted. (Doc. 42-2, p. 3-4). As such, and in taking Plaintiff's version of facts as true as required by Turner's step one, Plaintiff's claims survive at step one.
B.TurnerStep Two
At Turner's second step, any disputed facts must be examined to determine whether Plaintiff exhausted the available remedies prior to filing suit. In support of their motion, Defendants provided copies of all of Plaintiff's Riverbend grievances, his grievance history, and the declaration of MauQuesa S. Jefferson, the acting Institutional Grievance Coordinator at Riverbend. The evidence presented by the parties shows that Plaintiff filed the following grievances while incarcerated at Riverbend:
Grievance No. 343402: Plaintiff filed Grievance No. 343402 on September 14, 2022, stating that he had been sexually assaulted at a previous facility and requesting that he be moved to a cell house because it would be safer for him as a gay inmate. (Doc. 42-2, p. 2-3). The grievance was rejected because allegations of sexual abuse are non-grievable issues pursuant to the GDC SOP. (Docs. 42-4, p. 23; 42-3, p. 6). It was then forwarded to the SART. (Doc. 42-7, ¶ 16). The grievance is listed as “rejected.” (Doc. 42-2, p. 2). Plaintiff did not appeal. (Doc. 46, p. 1).
Grievance No. 351883: Plaintiff filed Grievance No. 351883 on April 17, 2023, reiterating the concerns from his previous grievance. (Id., p. 4). Plaintiff added that he had reported to mental health staff that he had been assaulted, harassed, and extorted for over $70,000.00 while at Riverbend. (Id.). The grievance was denied because an investigation revealed that Plaintiff had denied sexual assault and harassment. (Id.). Plaintiff filed a timely appeal, and the central office confirmed the denial on May 18, 2023, by finding that the issues had already been presented and addressed in Grievance No. 343402. (Id., p. 5-6); see (Docs. 42-5; 42-6).
Grievance No. 352571: Grievance No. 352571, filed on April 18, 2023, concerned a grievance that Plaintiff had allegedly filed previously but was not recorded. (Doc. 42-2, p. 6). The grievance was denied on May 18, 2023, and Plaintiff did not appeal. (Id., p. 7).
Grievance No. 351887: Plaintiff filed Grievance No. 351887 on April 28, 2023, reiterating his allegations from Grievance Nos. 343402 and 351883, and alleged for the first time that he had been robbed in September 2022. (Id., p. 7-8).
Plaintiff also added that he was assaulted for a second time on April 14, 2023. (Id., p. 8). The grievance was denied because an investigation revealed that the issues presented were previously addressed in Grievance No. 351883. (Id.). Plaintiff filed a timely appeal, and the central office confirmed the denial on May 22, 2023, by finding that Plaintiff violated SOP by having two active grievances when he filed this one. (Id., p. 9).
Three of the grievances above concern Plaintiff's present claims against Defendants.
The burden is on Defendants to show that Plaintiff failed to exhaust his administrative remedies. Turner, 541 F.3d at 1082. In this case, Defendants have failed to do so. The record shows that Plaintiff filed three grievances relating to his claims against Defendants. While it was not necessary for Plaintiff to have filed a separate grievance each time he alerted prison officials to his safety concerns, he must have filed at least one to put the prison on notice and to exhaust his administrative remedies as to this claim. Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) (“[T]he purpose of administrative exhaustion . . . is to put the [administrative authority] on notice of all issues in contention and to allow the [authority] an opportunity to investigate those issues.”) (internal quotation and citation omitted); see Diamond v. Owens, 131 F.Supp.3d 1346, 1361 (M.D. Ga. 2015) (explaining that “nothing in GDOC's grievance procedures requires inmates to file new grievances addressing every subsequent act by a prison official that contributes to the continuation of a problem already raised in an earlier grievance”) (internal quotation and citation omitted).
At least one of the grievances, Grievance No. 351883, was properly exhausted on the merits. See (Doc. 42-3, p. 10); see also Whatley v. Smith (Whatley II), 898 F.3d 1072, 1084 (11th Cir. 2018) (holding “that a prison waives its procedural objections to considering the merits of a grievance, and therefore waives its exhaustion defense, if it does not explicitly rely on the grievance's procedural shortcomings as an adequate and independent ground for denying the grievance at the administrative level”).That grievance addresses an assault and extortion, and Plaintiff's witness statement in the subsequent investigation mentions the extortion and April 14, 2023, assault. (Docs. 42-2, p. 4; 42-5, p. 2).
For example, Grievance No. 351887 was denied on appeal for procedural reasons because Plaintiff had two active grievances in process when he filed Grievance No. 351887. (Doc. 42-2, p. 9).
Defendants West and McRae also argue that Plaintiff's claims should be dismissed for lack of exhaustion because he did not specifically name them in his grievances. (Doc. 42-1, p. 16). This argument is not supported by caselaw or the PLRA. Under the statutory terms of the PLRA, “exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances.” Jones v. Bock, 549 U.S. 199, 219 (2007). To meet proper exhaustion “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. at 218 (citing Woodford, 548 U.S. at 88). Neither the applicable grievance process in Jones nor the PLRA was found to require the naming of specific defendants. Id. at 217-219. As summarized above, there is likewise nothing in the GDOC grievance procedure requiring the naming of specific defendants.
Defendants West and McRae also argue that Plaintiff's claims should be dismissed for lack of exhaustion because he did not specifically name them in his grievances. (Doc. 42 1, p. 16). This argument is not supported by caselaw or the PLRA. Under the statutory terms of the PLRA, “exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances.” Jones v. Bock, 549 U.S. 199, 219 (2007). To meet proper exhaustion “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. at 218 (citing Woodford, 548 U.S. at 88). Neither the applicable grievance process in Jones nor the PLRA was found to require the naming of specific defendants. Id. at 217-219. As summarized above, there is likewise nothing in the GDOC grievance procedure requiring the naming of specific defendants. As such, Defendants have not met their burden in showing that Plaintiff failed to exhaust his administrative remedies.
II. Plaintiff's Claims Under 42 U.S.C. § 1983
The Eighth Amendment prohibits “a prison official's ‘deliberate indifference' to a substantial risk of serious harm to an inmate” because “prison officials have a duty to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 828, 833 (1994) (citations omitted). Not “every injury suffered by one inmate at the hands of another” translates into constitutional liability, however. Id. at 834. To establish a deliberate indifference claim, Plaintiff “must allege facts sufficient to show (1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation.” Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016) (internal quotations omitted). Plaintiff must show that Defendants were “subjectively aware that [Plaintiff] was at risk of serious harm” and that Defendants “acted ‘with subjective recklessness as used in the criminal law'” in disregarding that risk. Wade v. McDade, 106 F.4th 1251, 1255 (11th Cir. 2024) (quoting Farmer, 511 U.S. at 839). Even if the risk was known, Defendants may still not be found liable, so long as they acted reasonably. Id. at 1255 (citing Farmer, 511 U.S. at 844, 837). Finally, Defendants must actually have been in a position to intervene for liability to attach. Terry v. Bailey, 376 Fed.Appx. 894, 896 (11th Cir. 2010).
A. Substantial Risk of Serious Harm
Turning first to whether Plaintiff faced a substantial risk of serious harm, this element is “assessed objectively and requires [Plaintiff] to show ‘conditions that were extreme and posed an unreasonable risk of serious injury to his future health or safety.'” Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019) (quoting Lane, 835 F.3d at 1307). In the jail setting, a risk of harm to some degree always exists by the nature of it being a jail. Purcell ex re. Est. of Morgan v. Toombs Cnty., Ga, 400 F.3d 1313, 1323 (11th Cir. 2005). Successful failure to protect claims will generally require some further reason-beyond a plaintiff feeling threatened by his incarceration with other offenders convicted of violent and/or gang-related offenses-that a prison official could have concluded that a particular threat evidenced a substantial threat, rather than the mere possibility of serious harm. See Marbury, 936 F.3d at 1236; see also Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (“The known risk of injury must be a strong likelihood, rather than a mere possibility before a guard's failure to act can constitute deliberate indifference.” (internal quotations and citations omitted)). Moreover, the risk must be specific and imminent; “a generalized awareness of risk in these circumstances does not satisfy the subjective awareness requirement.” Carter, 352 F.3d at 1350.
While “an excessive risk of inmate-on-inmate violence at a jail creates a substantial risk of serious harm[,] occasional, isolated attacks by one prisoner on another may not” arise to a substantial risk. Lane, 835 F.3d at 1307 (quoting Harrison v. Culliver, 746 F.3d 1288, 1299 (11th Cir. 2014)). An inmate can meet the burden of showing a substantial risk of serious harm by pleading facts showing “that he was in an environment so beset by violence that confinement, by its nature, threatened him with the substantial risk of serious harm” or by providing prison officials with details about a specific threat sufficient “to enable them to conclude that it presents a ‘strong likelihood' of injury, not a ‘mere possibility.'” Marbury, 936 F.3d at 1235-36 (quoting Brooks v. Warden, 800 F.3d 1295, 1301 (11th Cir. 2015)).
In this case, Defendants challenge Plaintiff's assertion that there was a substantial risk of serious harm (Doc. 42-1, p. 18), but for purposes of this Report and Recommendation and because Plaintiff testifies in his verified complaint (Doc. 1-1, p. 6-7) and declaration (Doc. 1-16, p. 1) that he was assaulted twice, the Court, in viewing the facts in a light most favorable to the non-movant, must assume that there was a substantial risk of serious harm.
Defendants argue in their Reply that portions of inmate Ronald Ray Agan's declaration lack proper foundation and should be stricken from the summary judgment record. (Doc. 51, p. 2). Specifically, Defendants argue that five of inmate Agan's statements lack the proper foundation and are conclusory in nature. (Id., p. 2-3). Because this recommendation assumes that there was a substantial risk of serious harm to Plaintiff based on the first assault, and not because there were extreme conditions at Riverbend, the Court has no need to determine whether these portions of inmate Agan's declaration should be stricken from the record.
B. Deliberate Indifference
The second element of a deliberate indifference claim requires evidence that Defendants had subjective knowledge of a risk of serious harm and that they “acted with subjective recklessness as used in the criminal law” in disregarding that risk. Wade, 106 F.4th at 1255 (internal quotations omitted). Subjective awareness requires that Defendants “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [they] must also draw the inference.” Rodriguez v. Sec'y for Dep't of Corr., 508 F.3d 611, 617 (11th Cir. 2007) (quoting Farmer, 511 U.S. at 837). “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Farmer, 511 U.S. at 842. The trier of fact may, therefore, “conclude that [Defendants] knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.
Plaintiff has not shown that Defendants were subjectively aware of facts from which an inference could be drawn that a substantial risk of serious harm existed, nor has he shown that Defendants drew the inference. The version of the facts most favorable to the non-movant shows as follows. Upon arrival to Riverbend, Plaintiff informed an unnamed staff member that he was gay and was concerned about assault and sexual harassment due to having been sexually assaulted at a prior facility. (Doc. 1-1, p. 3). Upon being told that he would be housed in an open barracks, Plaintiff informed Defendant West of his concerns. (Id., p. 4).
On July 28, 2022, Plaintiff wrote a letter to Defendant Reaves-Phams and McRae expressing his fear of being in the open barracks due to a previous “gang war.” (Id., p. 4-5). Plaintiff wrote another letter to Defendants Reaves-Phams and McRae on August 4, 2022. (Id., p. 5). Plaintiff wrote a third letter to Defendant Reaves-Phams on September 14, 2022. (Doc. 1-9, p. 2). Plaintiff never received a response any of his letters. (Id.). Plaintiff filed Grievance No. 343402 on September 14, 2022, and alleged that unnamed staff violated PREA during his orientation, and that he was currently being harassed and was in fear of an assault. (Doc. 42-4, p. 2-3).
On September 18, 2022, Plaintiff was robbed, and the next day Plaintiff was assaulted. (Doc. 1-1, p. 6). He wrote a letter to Defendants Reaves-Phams and McRae to that effect. (Id.). From December 2022-April 2023, Plaintiff was extorted for over $70,000.00, and Defendant McRae was informed of that by Plaintiff's case manager. (Doc. 23-1, p. 3). Plaintiff wrote Grievance No. 351883 on April 13, 2023, reiterating the concerns he wrote in his first grievance and adding that he had reported the robbery and assault without hearing a response. (Doc. 42-2, p. 4). He also listed in this grievance that he had been extorted. (Id.).
Plaintiff was assaulted for a second time the next day. (Doc. 1-1, p. 7). After calling for help and being taken to medical, Plaintiff requested protective custody, and he was placed there later that day. (Docs. 1-1, p. 8; 42-4, p. 2, 4). Over the next few weeks, Defendant McRae conducted an investigation which concluded that Plaintiff had not been sexually assaulted while at Riverbend but that there was evidence to indicate Plaintiff had been physically assaulted, as indicated by a black eye, although the assault could not be verified because CCTV was down during the alleged assault. (Docs. 42-6, p. 4; 42-10, ¶ 16-20). Further, on May 17, 2023, when Defendant McRae documented Plaintiff's request for protective custody, Defendant McRae stated that he had previously instructed Plaintiff to tell his family to provide evidence of the extortion, and that Plaintiff's family had since failed to submit any evidence of the alleged extortion. (Doc. 42-6, p. 4). Plaintiff remained in protective custody from April 14, 2023, until he was transferred to Wheeler Correctional Facility on May 23, 2023. (Docs. 42-4, p. 2; 42-8, ¶ 23).
Plaintiff's only nonconclusory allegations relevant to Defendants' subjective knowledge are that he advised Defendant West “that he was in fear for his safety in open dorms due to being sexually assaulted and harassed in open dorms” at a previous facility, that he wrote letters to Defendants Reaves-Phams and McRae, and that Plaintiff's case manager informed Defendant McRae that Plaintiff was being extorted. (Docs. 1-1, p. 4-6; 23-1, p. 3). As for Plaintiff's argument that his letters to Defendants Reaves-Phams and McRae established awareness of risk, the Court noted previously in its screening order that
the Eleventh Circuit has held that the mailing of letters to prison officials does not establish the awareness of risk necessary to find deliberate indifference. Green v. Hooks, 798 Fed.Appx. 411, 425 (11th Cir. 2020) (finding that “[w]e will not assume that because Green placed the letters in the internal prison mail system, the letters were delivered to and received by the prison officials prior to the assault. Consequently, those letters cannot serve as a basis for finding that Warden Hooks and Deputy Warden Brown were subjectively aware of any risk to Green”). Accordingly, Plaintiff cannot demonstrate that his unanswered letters to Defendants Reaves-Pham and McRae establish subjective awareness by them of a risk to the Plaintiff's safety.(Doc. 18, p. 8). Plaintiff wrote in his amended complaint that discovery would show that the letters were delivered, but there is no such evidence in the record. (Doc. 23-1, p. 2-3).
i. Defendant Reaves-Phams
Regarding Defendant Reaves-Phams's subjective knowledge due to Plaintiff's filed grievances, a prison official's subjective knowledge of a risk can be inferred where a prisoner has filed a grievance that “provides a sufficient basis to make the inferential leap that a substantial risk of serious harm to Plaintiff existed.” Carter, 352 F.3d at 1349. But a court cannot impute knowledge of a risk to a prison official based on a vague grievance. See id. (explaining that where the plaintiff told a guard that his cellmate had said the plaintiff would help him fake a hanging “one way or another” “[did] not provide a sufficient basis to make the inferential leap that a substantial risk of serious harm to Plaintiff existed”); see, also, Winstead v. Williams, 750 Fed.Appx. 849, 851 (11th Cir. 2018) (holding that a grievance's vague refences to “problems” and “trouble” with a cellmate, even when combined with a plea for urgent action, were not specific enough to impute subjective knowledge of a substantial risk of serious harm to prison wardens and unit manager at prison). Plaintiff's first grievance states only that he was assaulted at a previous facility, that he was currently being “harassed,” and that he was fearful of being assaulted in the future. (Doc. 42-2, p. 2-3). Plaintiff did not describe any specific conduct in that grievance or detail a “particularized threat or fear” that would cause Defendant Reaves-Phams to be “aware of specific facts from which an inference could be drawn that a substantial risk of serious harm exists.” Carter, 352 F.3d at 1349-50 (citing Farmer, 511 U.S. at 837). Likewise, Plaintiff's second grievance does not provide specific facts from which an inference could be drawn, and Plaintiff provides no evidence that Defendant Reaves-Phams drew such an inference. Plaintiff's second grievance alleged that he had made reports to other staff members that he had been harassed, assaulted, and extorted. (Doc. 42-2, p. 4). Plaintiff's complaints were not particularized and did not allege at all that he was in fear of his safety, and the grievance was filed seven months after the alleged assault. (Id.); (Doc. 1-1, p. 6). Plaintiff has not provided any evidence to indicate that he informed Defendant Reaves-Phams of the alleged assault in the intervening time, other than his letters which, as the Court discussed, do not establish subjective knowledge. Although the grievance also alleges that Plaintiff had been extorted, Plaintiff provided no evidence that Defendant Reaves-Phams was previously aware of this or that the extortion continued after the grievance.
Plaintiff's final grievance was filed after the second alleged assault. (Doc. 42-2, p. 7-8). Because Plaintiff does not allege new information in that grievance concerning Defendant Reaves-Phams's subjective knowledge prior to the assault, it cannot have informed Defendant Reaves-Phams of any particularized fears Plaintiff had regarding the assault. Thus, Plaintiff has failed to present evidence to “support a reasonable jury's findings that [Defendant Reaves-Phams] harbored a subjective knowledge that [Plaintiff] was in serious danger.” Marbury, 936 F.3d at 1238.
ii. Defendant McRae
Plaintiff alleges that Defendant McRae possessed subjective knowledge because Plaintiff's case manager had allegedly informed Defendant McRae that Plaintiff had been extorted. (Doc. 23-1, p. 3). Setting aside Defendant McRae's sworn statements that the first he ever learned of Plaintiff was when Plaintiff filed his report on April 14, 2023 (Doc. 42-10, p¶ 11-19), and assuming that extortion is an objectively serious harm, Plaintiff has failed to rebut Defendant McRae's showing that responded reasonably to Plaintiff's concerns. Defendant McRae “may be found free from liability if [he] responded reasonably to the risk, even if the harm ultimately was not averted.” Wade, 106 F.4th at 1257 (quoting Farmer, 511 U.S. at 844). The determination of whether a risk has been disregarded is objective: “[Defendant McRae] must have responded to the known risk in an unreasonable manner.” Marbury, 936 F.3d at 1233; Wade, 106 F.4th at 1255. In other words, “a defendant who ‘respond[s] reasonably' to risk, even a known risk, ‘cannot be found liable' under the Eighth Amendment.” Wade, 106 F.4th at 1255 (quoting Farmer, 511 U.S. at 844, 837).
Plaintiff's only evidence that Defendant McRae was aware of the extortion is from his verified amended complaint, in which he states that Ms. Robinson “told [Plaintiff] that she did in fact tell [Defendant] McRae about [Plaintiff] and his family being extorted as well as asked [Defendant] McRae to have [Plaintiff] moved.” (Doc. 23-1, p. 3). Plaintiff states that he “believes” this occurred in December 2022 or January 2023.(Id.). Defendant McRae testifies in his sworn declaration that he was first informed of the extortion was on April 14, 2023. (Doc. 42-10, ¶ 1117). Upon notice of the alleged extortion, Defendant McRae conducted a thorough investigation, separated Plaintiff from the inmates Plaintiff alleged were extorting and harassing him, and assisted in transferring Plaintiff to protective custody. (Docs. 42-6, p. 2, 4; 42-8, ¶ 22; 42-10, ¶ 21). Defendant McRae also asked Plaintiff's family to provide evidence of the extortion, but Defendant McRae never received any such evidence. (Doc. 42-6, p. 4). This evidence, construed in the light most favorable to Plaintiff, shows that Defendant McRae acted reasonably in investigating the extortion allegation once he was made aware of it. Plaintiff has not presented sufficient evidence for a reasonable jury to find that Defendant McRae was deliberately indifferent to a substantial risk of serious harm.
Plaintiff provides in the verification section of his amended complaint that he “verif[ies] that the matters alleged therein are true and correct except as to matters alleged on information and belief, and as to those, I believed them to be true and correct.” (Doc. 23-1, p. 5-6). To be sufficient to create a factual issue, an affidavit or verified complaint must be based on personal knowledge. FED. R. CIV. P. 56(c)(4). An affidavit or declaration based on anything less than personal knowledge is insufficient. Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002) (citing Stweart v. Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir. 2000) (“upon information and belief” is insufficient). “Moreover, statements in affidavits that are based, in part, upon information and belief, cannot raise genuine issues of fact, and thus also cannot defeat a motion for summary judgment.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citation omitted).
iii. Defendant West
Finally, Plaintiff argues that Defendant West was deliberately indifferent to his safety in two separate instances. First, Plaintiff alleges that on July 25, 2022, he advised Defendant West that he was in fear for his safety due to a sexual assault at a previous facility. (Doc. 1-1, p. 4). As discussed above regarding Defendant Reaves-Phams, Plaintiff's alleged statement to Defendant West did not detail a particularized threat that would impute subjective knowledge on Defendant West's part. Plaintiff did not alert Defendant West to a specific threat at Riverbend or allege that the perpetrators at the previous facility had threatened harm at the new one.
Second, Plaintiff alleges that Defendant West harassed Plaintiff and called Plaintiff a liar on September 14, 2022. (Doc. 1-1, p. 6). This alleged conduct by Defendant West does not amount to deliberate indifference. Even if Defendant West did call Plaintiff a liar-which Defendant West swears in his declaration did not occur-such a statement by Defendant West would support an inference that Defendant West did not possess the subjective knowledge of a substantial risk of serious harm required under Wade. 106 F.4th at 1255; (Doc. 42-9, ¶ 15). Plaintiff's only other allegation that Defendant West was subjectively aware of a substantial risk of serious harm comes from Plaintiff's response to the motion for summary judgment, in which Plaintiff states that Defendant West personally carried a copy of Plaintiff's grievance and a letter he wrote to Defendant Reaves-Phams. (Doc. 46, p. 2). Plaintiff's response is not verified, however, or based on personal knowledge, and this allegation is not supported by any evidence in the summary judgment record. Thus, Plaintiff has failed to present evidence on which a reasonable jury could find that Defendant West was deliberately indifferent to a substantial risk of serious harm.
Grievance No. 351887 (Plaintiff's third grievance related to the facts in this lawsuit) is not material to the Court's analysis. Plaintiff wrote in that grievance that he was in danger of being assaulted and had been robbed and assaulted the prior September. (Doc. 42 2, p. 7-8). As explained in the Court's subjective knowledge analysis of Grievance No. 351883, Plaintiff's non-specific concerns about an assault do not rise to the particularized threat requirement. Plaintiff alleged further that he had written about the assault to Defendant Reaves Phams and an unnamed investigator, but as explained previously, there is no evidence in the record that any letters were delivered. Plaintiff's reiteration of extortion, likewise, is not material to this suit because he simply realleges that he was extorted. (Id.). He does not that allege in the grievance that he informed any Defendant of the extortion or that the extortion was ongoing. (Id.). Finally, Plaintiff alleged in this grievance that he was assaulted on April 14, 2023, but that too is not indicative of a substantial risk of serious harm or deliberate indifference because he never expressed a particularized fear before that assault and does not allege that the previous assault put any Defendant on notice of this assault.
CONCLUSION
Because the undisputed facts do not support Plaintiff's deliberate indifference claims against Defendants Reaves-Phams, McRae, and West, it is RECOMMENDED that Defendants' motion for summary judgment by GRANTED.
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