Opinion
5:22-cv-170-MTT-CHW
07-12-2024
LAWRENCE R. SMITH, Plaintiff, v. Warden GREGORY SAMPSON, et al., Defendant.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
ORDER & RECOMMENDATION
CHARLES H. WEIGLE UNITED STATES MAGISTRATE JUDGE
Plaintiff initiated this case pursuant to 42 U.S.C. § 1983, raising claims related to his incarceration at Central State Prison. Following the Court's screening review of the recast complaint (Doc. 11), Plaintiff's claims of deliberate indifference to a serious medical need against Defendants Sampson, Mims, Banks, and R. Green were permitted to move forward for factual development. (Docs. 13, 22). Plaintiff and Defendants have filed motions for summary judgment, and Plaintiff has filed several related motions. As will be fully discussed below, the record shows that Plaintiff failed to exhaust his claim against Defendant Green and that the remaining Defendants are entitled to qualified immunity. Plaintiff is also not entitled to injunctive or declaratory relief or to compensatory damages. Therefore, it is RECOMMENDED that Defendants' motion for summary judgment (Doc. 53) be GRANTED and that Plaintiff's motion for summary judgment (Doc. 55) be DENIED. Plaintiff's other pending motions are addressed below.
RELEVANT FACTS
Plaintiff's claims stem from two incidents at Central State Prison (CSP), which occurred on September 29, 2021, and March 28, 2022. (Doc. 11). Plaintiff was diagnosed with an unspecified seizure disorder in 2019 while incarcerated at another prison. (Doc. 53-1, ¶¶ 22, 25); see (Doc. 55-27, p. 41-48). To treat his seizures, Plaintiff was prescribed Keppra and was given a lower bunk medical profile. (Doc. 53-1, ¶ 29; Doc. 53-3, p. 13); see (Doc. 55-27, p. 54-55, 58). Plaintiff transferred to CSP on October 1, 2019. (Doc. 55-11). At the time of his deposition, Plaintiff was incarcerated at Phillips State Prison. (Doc. 53-3, p. 4)
All Defendants except Defendant Sampson worked at CSP during all the events in Plaintiff's complaint. Defendant Warden Sampson has been the warden of CSP since November 1, 2021, after serving as an assistant to the previous warden for one month. (Doc. 53-1, ¶ 4).Prior to that, Sampson was at Clayton Transitional Center. (Id.) Defendant Mims became the Deputy Warden of Security at CSP on September 1, 2021, before which he served in the same role at Valdosta State Prison. (Doc. 53-1, ¶ 5). Defendant Banks began her role as Chief of Security at CSP on August 2, 2021. (Doc. 53-1, ¶ 6). Defendant Green was a lieutenant at CSP, whose duties included assigning officers to their posts during a shift. (Doc. 53-1, ¶ 7; Doc. 55-8, p. 4). None of these Defendants is a medical professional or a part of the medical staff at CSP. (Doc. 53-1, ¶ 9). These Defendants do not assign inmates to certain prisons. (Doc. 53-1, ¶ 21).
Defendants provided incomplete declarations with their motion for summary judgment (Docs. 53-4 to 537), which Plaintiff moved to strike. (Doc. 58). Defendants subsequently corrected the error and submitted corrected declarations. (Docs. 67-1 to 67-4). Therefore, Plaintiff's motion to strike (Doc. 58) is DENIED as moot.
Plaintiff alleges, and the Georgia Department of Corrections acknowledges, that prisons in Georgia, including CSP, have struggled to maintain appropriate staffing levels. (Docs. 11; 53-12, p. 2). See also (Docs. 55-10, p. 3; Doc. 55-11, p. 4, 5) (admissions that CSP is not fully staffed). In an affidavit, Defendant Sampson testified that there is no policy to understaff the prison and stated that additional supervisors were hired during his tenure at CSP. (Doc. 53-4, ¶ 6). CSP is staffed at night, and officers make rounds at night, although an individual officer may not be assigned to a particular building. (Doc. 53-1, ¶ 17). Because CSP does not have a 24-hour medical facility, CSP has an on-call doctor, who is contacted when there is a medical emergency after hours. (Doc. 67-4, ¶ 9-10; Doc. 55-9, p. 6).
In his deposition testimony, Plaintiff explained some of his beliefs surrounding staffing at CSP. Plaintiff testified that some understaffing occurred when officers went on strike and were fired, which occurred before Defendant Sampson became Warden. (Doc. 53-3, p. 42-43). Plaintiff also testified that he is unfamiliar with staffing policies or any attempts to hire additional staff (Doc. 53-3, p. 38-39; Doc. 66, ¶ 14), but he maintained that a lack of overnight staffing meant that he did not consistently get his medication, which led to an increase in seizures. See (Doc. 53-3, p. 14-16, 35). Understaffing also meant that he could not get medical attention when he suffered a seizure on September 29, 2021. (Doc. 11, p. 7; Doc. 53-1, ¶ 36). Because Plaintiff was assigned to a top bunk, other inmates had to keep Plaintiff from falling onto the floor during the seizure. (Doc. 11, p. 7; Doc. 55-3). Inmates called for help, but no staff member was on the floor and Plaintiff could not receive medical treatment. (Doc. 11, p. 7; Doc. 53-3, p. 42; Doc. 55-3). Plaintiff testified that he suffered no physical injuries as a result of the September 29, 2021 seizure. (Doc. 53-3, p. 46). Medical records do not reflect that Plaintiff went to the medical unit after this seizure. See (Doc. 55, Exhibits V-1, V-2). Plaintiff testified that he put in a sick call but was not seen. (Doc. 53-3, p. 46-47).
Before the September 29, 2021 seizure, Plaintiff testified that he had not had a seizure since at least March 2021, which is when he moved to K-Building. (Doc. 53-1, ¶ 37; Doc. 53-3, p. 44; Doc. 55-14). A medical note from November 22, 2022, states that Plaintiff's seizures were well controlled on Keppra until 6 months prior, or May 2022. (Doc. 55-27, p. 64). Plaintiff's medical consult history shows no neurological testing between November 2019 and August 2022. (Doc. 55-24, p. 2). His complaint lists other later dates on which Plaintiff experienced seizures but was unable to get medical treatment due to understaffing. (Doc. 11, p. 11).
Plaintiff testified that he addressed his concerns about understaffing and lack of proper bunk assignments to staff in person and through grievances. (Doc. 53-3, p. 26, 36). He filed Grievance No. 1137815 on December 4, 2020, pertaining to understaffing and mail issues. (Doc. 55-16, p. 2). Plaintiff believes that this and other grievances he filed about his seizures put prison staff on notice about conditions and staffing concerns. (Doc. 53-3, p. 48).
The first grievances in the record which are contemporaneous to Defendants Sampson, Mims, and Banks's employment at CSP, were filed the day after the September 29, 2021 seizure. One grievance relating to the understaffing issues, Grievance No. 796208, was partially granted(Doc. 53-12, p. 2; Doc. 55-18, p. 2), although Plaintiff testified that he saw no change in staffing while he was at CSP. (Doc. 53-3, p. 47-49). Plaintiff also filed a grievance the same day requesting a bottom bunk because of his seizure disorder, Grievance No. 796210, which was fully granted at the facility level. (Doc. 53-13, p. 2; Doc. 55-19, p. 2). Plaintiff does not dispute that he never told anyone about the medical advice that he had received about his seizure condition. (Doc 53-1, ¶ 26; Doc. 66, ¶ 26).Plaintiff did not meet with Defendants Mims and Bank until after he filed Grievance No. 844558, on May 14, 2022, which is after he filed this suit. (Doc. 19, p. 2; Doc. 53 3, p. 36, Doc. 53-17). Plaintiff confirmed that this May 2022 meeting was the only time that he met with them. (Doc. 53-3, p. 38).
Plaintiff filed an emergency grievance regarding understaffing, Grievance No. 796213, which was rejected for not being an emergency. (Doc. 55-17, p. 2).
Plaintiff asserts that Defendants Sampson and Banks were told that by Nurse Nunez Plaintiff needed to be monitored because of his seizures (Doc. 66, ¶¶ 26-27), which Defendants generally deny. (Doc. 67-4, ¶ 15; Doc. 67-3, ¶ 13, Doc. 67-1, ¶ 12). Plaintiff does not specify the time when Defendants may have been notified. The earliest date that the record supports for when medical staff spoke to security is in October 2022. See (Doc. 55-26, p. 54). The record indicates that Plaintiff missed doses of medication, but not until after this suit was filed. See (Doc. 55-26, p. 16, 18, 20, 22, 53, 54).
Plaintiff also alleges that he suffered a seizure on March 28, 2022, and again was unable to seek immediate medical treatment due to a lack of staff. (Doc. 11, p. 9). When Plaintiff saw Defendant Green and asked to go to medical, Defendant Green instead slapped Plaintiff and placed him in the “cage” without water or bathroom facilities. (Id.) Plaintiff's deposition testimony was consistent with the incident as described in his complaint. See, e.g., (Doc. 53-3, p. 32-33).
Both Plaintiff and Defendants now move for summary judgment. (Docs. 53, 55). Defendants argue that Plaintiff failed to exhaust his claim against Defendant Green and that Defendants Sampson, Mims, and Banks are entitled to qualified immunity. Defendants also argue that Plaintiff is not entitled to recover compensatory damages or the injunctive relief that he requests. Plaintiff's motion for summary judgment reiterates the allegation made in his supplemental complaint and includes several documents in support. (Docs. 11, 55, 81).
At his deposition, Plaintiff testified that Defendant Green was not involved in the September 29, 2021 claim. (Doc. 53-3, p. 40). However, in Plaintiff's motion for summary judgment and in his response to Defendant's motion for summary judgment, Plaintiff appears to say that Defendant Green is included in his understaffing related claims, and Plaintiff cites to his complaint to show that he asserted this claim. (Docs. 11, 55, 63). Later in his response, Plaintiff addresses the qualified immunity defense only as to Defendants Sampson, Mims, and Banks. See (Doc. 63, p. 22). Only Plaintiff's deliberate indifference claims against Defendants Sampson, Mims, and Banks, stemming from a policy of understaffing in September 2021, survived screening. (Docs. 13, 22). The screening recommendation specifically noted that Plaintiff did not state “a claim that [Green] was deliberately indifferent to Plaintiff's medical needs because Green ‘is responsible for assigning correction officer to each shift he supervise[s].” (Doc. 13, p. 2). The Order reviewing this recommendation did not change this decision, but instead it allowed claims to proceed against Defendants Mims and Banks. (Doc. 22). Therefore, the only deliberate indifference claim remaining against Defendant Green relates to the incident on March 28, 2022, when Defendant Green allegedly slapped Plaintiff and placed him in a cage. See (Docs. 13, 22).
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, 134 S.Ct. 1861, 1866 (2014).
ANALYSIS
In their motion for summary judgment, Defendants argue that Plaintiff failed to exhaust his claim against Defendant Green, that the remaining defendants, Defendants Sampson, Mims, and Banks, are entitled to qualified immunity because these Defendants did not maintain a policy or custom of understaffing such that they were deliberately indifferent to Plaintiff's serious medical need, and that Plaintiff is not entitled to compensatory damages or injunctive relief. Plaintiff seeks summary judgment on the merits of his claims against all Defendants. As discussed below, the evidence shows that Plaintiff failed to exhaust his administrative remedies as to his claim against Defendant Green, and the remaining Defendants are entitled to qualified immunity.
The Exhaustion Requirement
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 108283 (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. at 1082.
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”) (citations omitted). Plaintiff acknowledged this standard in his response to Defendant's motion for summary judgment. (Doc. 63, p. 2).
Grievance Procedure
The grievance procedure applicable in this case is set by the Georgia Department of Corrections (GDOC) Standard Operating Procedure No. 227.02. (Doc. 53-9). 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 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). On expiration of the response period or on the prisoner's receipt of 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 grievance policy itself does not list any specific detail required for a grievance. CSP is one of four prisons piloting a program where inmates submit grievances via the kiosk or tablet. (Doc. 53-8, ¶ 7).
The referenced page numbers are from taken from the policy itself and not the document number in which the policy was attached.
1. Failure to Exhaust
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, a court must first consider all the alleged facts construed in favor of Plaintiff when the facts conflict.
In his initial complaint, Plaintiff alleges that he filed grievances regarding the matters in his complaint, although he contends his grievance for the March 2022 incident involving Defendant Green, filed April 4, 2022, was pending when he filed suit. (Doc. 1, p. 3; Doc. 33-5; Doc. 63, p. 2-3).After he failed to get a response from the warden, he filed a central office appeal on June 1, 2022. (Doc. 63, p. 3, 11). When he learned that this grievance does not appear on his grievance history, Plaintiff argued that the grievance process as to his claim against Defendant Green “became unavailable to Plaintiff because [prison staff] failed to follow the grievance procedure by processing and logging [grievances] as required...” (Id., p. 4). When this record is construed in Plaintiff's favor, his claim arising from the March 2022 incident arguably survives under step one of Turner. However, when the record is examined under step two of Turner, the record plainly shows that Plaintiff could not have exhausted the administrative remedies prior to filing suit.
Plaintiff filed a motion to take judicial notice, wherein he requests the Court take judicial notice of the grievance receipts that Plaintiff filed (Doc. 33) to show that filed a grievance in April 2022 and appeal in June 2022. (Doc. 77). To the extent Plaintiff asks the Court to review and consider the grievance receipts he previously filed when preparing this recommendation, the motion (Doc. 77) is GRANTED.
Under Turner's second step, any disputed facts must be examined to determine if Plaintiff exhausted the available administrative remedies prior to filing suit. In support of his motion, Defendant Green has provided copies of Plaintiff's grievances, his grievance history, and the affidavit of Pashion Chambers, Deputy of Care and Treatment at CSP, who also acted as Grievance Coordinator. (Docs. 53-8 to 53-18). These records show that Plaintiff filed multiple grievances at CSP, but none of these grievances correlate to the grievance that Plaintiff alleges he filed on April 4, 2022, regarding the March 28, 2022 incident with Defendant Green.(Doc. 53-11). Plaintiff states that he filed an appeal on June 1, 2022, which likewise does not appear on his grievance history. (Doc. 53-11; Doc. 63, p. 2-3, 11). The record does, however, show a Grievance No. 875107, filed on September 20, 2022, in which Plaintiff complained that the April 4, 2022 grievance and June 1, 2022 appeal had gone unanswered. (Doc. 53-11, p. 2; Doc. 53-18). Deputy Warden Chambers testifies that Plaintiff ultimately voluntarily dropped Grievance No. 875107. (Doc. 53-8, ¶ 20).
The remaining Defendants, against whom claims arose in September 2021, have not raised an exhaustion defense.
a. Plaintiff did not exhaust his claims against Defendant Green prior to filing suit.
The record of evidence supports Plaintiff's claim that he submitted a timely grievance and appeal concerning the incident with Defendant Green, which prison officials failed or refused to process, but also shows that Plaintiff filed suit before the grievance process could have been exhausted.
Plaintiff contends that he filed a grievance about the March 2022 incident with Defendant Green on April 4, 2022, by giving a written grievance to Counselor Hudgins because the kiosk was not working. (Doc. 53-3, p. 57-58; Doc. 63, p. 2). After the grievance went either unprocessed or unanswered, Plaintiff appealed the grievance on June 1, 2022. (Id., p. 3; Doc. 53-3, p. 64). Plaintiff filed his receipts from these grievances with the Court after incidents in which Plaintiff believed that Defendant Green and other prison staff tried to find and destroy his grievance receipts. (Docs. 33; 33-5; 63). The April 4, 2022 grievance receipt appears to be signed “Hudgins.” (Doc. 33-5). The June 1, 2022 receipt bears a signature that is illegible, and Plaintiff has not identified the counselor who accepted the grievance. (Id.). Plaintiff argues that the grievance process was unavailable because the chief counselor failed to process his April 4, 2022 grievance and June 1, 2022 appeal from the failure to respond to his grievance, such that his failure to exhaust his claim against Defendant Green should be excused. (Doc. 63, p. 11, 14-15). Defendants dispute these receipts, providing records to show that grievances corresponding to April 4, 2022, and June 1, 2022, do not appear on Plaintiff's grievance history. See (Doc. 53-11).
The grievance receipts and grievance history are of limited usefulness in determining whether or not an inmate has submitted a grievance, because there is nothing to link the two. The receipt is simply a strip of paper torn from the bottom of the grievance, which does not include a grievance number or any other means of connecting the receipt to a particular grievance. Prison officials do not provide inmates with a copy of their grievance. As a result, it is common in exhaustion cases for the defendant to contend that the inmate forged or altered a grievance receipt and for the plaintiff to argue that the counselor failed or refused to process the grievance. Because there is no way to link a grievance receipt to a particular grievance, the documentary evidence neither confirms nor refutes an inmate's testimony that he submitted a grievance and that the counselor either failed or refused to process it. Defendants in this case do not expressly contend that Plaintiff forged the grievance receipts, but their argument implies that he did. Either the grievance receipts Plaintiff has submitted are falsified, or the counselor failed or refused to process the grievances.
In support of his unavailability argument, Plaintiff has filed a motion asking that the Court take judicial notice of an Order and Recommendation entered in Ford v. Jefferson, 5:23-cv-19-MTT-CHW. (Doc. 69). That Recommendation suggested that defendant's motion to dismiss based upon failure to exhaust be denied because CSP staff failed to enter plaintiff's written grievance into the system, which caused the grievance to go unprocessed. Ford, 5:23-cv-19-MTT-CHW, 2023 WL 7993443 (M.D. Ga. Nov. 17, 2023). Plaintiff notes that his case and Ford involve the same grievance counselor and coordinator and argues that the Recommendation in Ford supports his testimony that CSP staff destroy paper grievances and do not process them correctly. (Doc. 77). Defendants argue that taking judicial notice of Ford is not appropriate, but even if it were, it does not excuse Plaintiff's failure to exhaust his claim against Defendant Green in this case. (Doc. 70). Plaintiff's motion asks the Court to take judicial notice of the truth of the matters from Ford and apply them to his case. That is not an appropriate use of judicial notice. See U.S. v. Jones, 29 F.3d 1549 (11th Cir. 1994) (acknowledged and cited by Plaintiff and Defendants) (“Accordingly, a court may take notice of another.. .order only for the limited purpose of recognizing the ‘judicial act' that the order represents or the subject matter of the litigation.”) Therefore, Plaintiff's motion to take judicial notice (Doc. 69) is DENIED.
Nevertheless, the burden is on Defendants to show that an inmate failed to exhaust his administrative remedies. Turner, 541 F.3d at 1082. Plaintiff's contention that prison officials either failed or refused to process his grievance and appeal is at least as plausible as Defendants' implicit argument that Plaintiff has falsified grievance receipts and lied to the Court about submitting a grievance. Where the prison has failed to maintain records sufficient to resolve this question, the Court must find that Defendants have failed to meet their burden of proving that Plaintiff did not file a grievance on April 4, 2022.The preponderance of the evidence shows that Plaintiff endeavored to exhaust his remedies for his claim against Defendant Green by submitting the unrecorded April 4, 2022 grievance. He further complied with policy on June 1, 2022, by appealing the April 4, 2022 grievance when he did not receive a response. (See (Doc. 53-9, p. 14)). He later filed a grievance about the lack of responses, which he later dropped. (Doc. 53-8, ¶ 20; Doc. 5318).
The Court presumes that the ordinary preponderance of the evidence standard applies, although it is not specified in Turner. See Turner, 541 F.3d at 1082.
Plaintiff argued that the grievance policy does not mention a deadline to appeal a grievance when the warden fails to respond. (Doc. 63, p. 10, n. 1). While there is no deadline to appeal in this scenario, an inmate may appeal a non-response within seven days after the expiration of the warden's response period, which is 40 to 50 days, if extended. (Doc. 53-9, p. 11, 14).
Although the preponderance of the evidence supports Plaintiff's claim that he submitted a grievance on April 1, 2022, and an appeal on June 1, 2022, the evidence also shows that Plaintiff could not have exhausted the process prior to filing suit. First, a lack of response or grievance processing does not make the process unavailable, and it does not excuse exhaustion. See Garcia v. Obasi, 2022 WL 669611, *4 (11th Cir. March 7, 2022) (citing Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000)). But second, and most significantly, a grievance filed on April 4, 2022, could not have been fully exhausted before Plaintiff commenced suit in this case on April 29, 2022.
The PLRA requires proper exhaustion prior to filing suit. 42 U.S.C. § 1997e(a). The filing of Plaintiff's complaint serves as the marker for when Plaintiff was required to complete 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 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 April 29, 2022. (Doc. 1).
By filing a grievance on April 4, 2022, the full grievance process, which at best takes 160-days, would not have been completed as required by April 29, 2022. Plaintiff acknowledged that he filed this suit before the expiration of the 40-day response window. (Doc. 53-3, p. 56). Plaintiff likely realized this created an issue because he filed Grievance No. 875107 on September 20, 2022, in an attempt to cure this failure. (Doc. 53-18). Neither of these grievances, even if successful, would excuse a failure to properly exhaust prior to suit. Because Plaintiff did not and could not have properly exhausted his administrative remedies as to his claim against Defendant Green prior to filing suit on April 29, 2022, as required by the PLRA, that claim should be dismissed under the second step of Turner.
Plaintiff asked the Court to schedule an evidentiary hearing regarding the issue of exhaustion. (Doc. 72). Because the record is clear that Plaintiff could not have fully exhausted prior to filing suit, an evidentiary hearing is not warranted. His motion for a hearing (Doc. 72) is therefore DENIED.
2. Qualified Immunity
The remaining Defendants argue that they are protected from suit under qualified immunity because Plaintiff cannot produce evidence to show a constitutional violation due to a custom or policy of understaffing. When considering whether summary judgment is appropriate based on qualified immunity, the Court “[draws] all inferences and [views] all of the evidence in the light most favorable to the nonmoving party.” Jones v. Michael, 656 Fed.Appx. 923, 925 (11th Cir. 2016) (internal quotations omitted). Qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted). Defendants “cannot obtain qualified immunity unless [they establish they were] acting within [their] discretionary authority.” Underwood v. City of Bessemer, 11 F.4th 1317, 1328 (11th Cir. 2021). It is undisputed that the decisions regarding prison administration fall within Defendants' discretionary authority. See, e.g., Goebert v. Lee Cty., 510 F.3d 1312, 1329 (11th Cir. 2007).
Once action under discretionary authority has been established, “the burden shifts to the plaintiff, who must show the [officers are] not entitled to qualified immunity.” Underwood, 11 F.4th at 1328. “At this stage, [the Court asks] two questions: (1) ‘whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right,” and (2) if so, ‘whether the right at issue was ‘clearly established' at the time of the [defendants'] alleged misconduct.'” Id. at 1328 (quoting Pearson, 555 U.S. at 231, 232). Both must be present for a plaintiff to prevail. Id.
Plaintiff alleges that the remaining Defendants are responsible for making sure there is adequate staff present in the prison or the housing units of the prison, that there is a policy or custom of understaffing, and that “the resultant delay” or denial of medical care “caused by such understaffing constitute[s] deliberate indifference to the treatment of [Plaintiff's] medical condition.” Ireland v. Prummell, 53 F.4th 1274, 1291 (11th Cir. 2022) (citations omitted); Piazza v. Jefferson Cnty., 923 F.3d 947, 957-58 (11th Cir. 2019) (citations omitted); Keith v. Dekalb Cnty., 749 F.3d 1034, 1047 (11th Cir. 2014) (citations omitted); Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985). In his complaint, Plaintiff alleges that Warden Sampson knew the staffing issues caused a lack of medical care because Plaintiff had filed a grievance notifying Warden Sampson of “the lack of correctional officers and the denial of medical attention.” (Doc. 11, p. 8). Plaintiff later clarified that he spoke with Defendants Banks and Mims after he filed a grievance on May 14, 2022, about how staffing led to a lack of medical care. (Doc. 19). Plaintiff alleges that Defendants acknowledged a staffing shortage during these interactions. According to Plaintiff, Warden Sampson partially granted the grievance and stated, “adequate staffing will be reviewed.” (Doc. 11, p. 8). Likewise, Defendants Bank and Mims told Plaintiff that CSP was lacking officers and there was nothing to do to fix it. (Doc. 19, p. 2). Thus, at the screening level, it was inferred that these Defendants knew, or should have known, that understaffing was resulting in a lack of medical care. (Docs. 13, 22).
As explained in the screening recommendation, however, Plaintiff cannot rely on a “generalized policy of understaffing” to establish deliberate indifference. McDowell v. Brown, 392 F.3d 1283, 1291 (11th Cir. 2004). Plaintiff must show a “‘deliberate intent' to inadequately staff” the prison.” Id. The record must present evidence that Defendants knew or should have known that understaffing resulted in a lack of medical care. Id.; Ireland, 53 F.4th at 1292; Piazza, 923 F.3d at 958; Anderson, 778 F.2d at 686. Now at the summary judgment level, in the face of competing motions, Plaintiff has presented nothing beyond his complaint to counter the Defendants' evidence that no such custom or policy of understaffing existed.
The remaining Defendants acknowledge that CSP is not fully staffed, but that fact alone does not show that there is a custom or policy to understaff the prison and that doing so resulted in a lack of medical care. The undisputed record, even when construed in favor of Plaintiff, fails to establish the existence of a deliberate custom or policy of understaffing. As the basis for his deliberate indifference claim against the remaining Defendants, Plaintiff specifically highlights the seizure he suffered on September 29, 2021, and his inability to get subsequent medical treatment. There is little to no evidence to suggest that these Defendants are responsible for a custom or policy leading to understaffing during the time surrounding September 29, 2021. For example, Defendant Sampson did not even begin working at CSP until two days after this incident, and he did not officially become warden until two months later. Defendants Mims and Banks only started a few months before, in September and August, respectively. The record does not show, and it would be difficult to establish, that Defendants Mims and Banks created a custom or policy of understaffing in less than two months or that Defendant Sampson implemented a policy before he arrived at CSP. Simply put, even if these Defendants had a longer tenure at CSP, nothing in the record shows that the understaffing that CSP is a deliberate or intentional policy to create a lack of medical care, especially when the evidence shows that the Defendants were unaware of Plaintiff's seizure disorder, either in its frequency or severity.
There is also no evidence to suggest that Defendants knew about Plaintiff's seizure condition in a way that would satisfy the deliberate indifference standard. To establish a deliberate indifference claim, Plaintiff “must establish (1) a serious medical need; (2) [Defendants'] deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Ross v. Corizon Med. Servs., 700 Fed.Appx. 914, 916 (11th Cir. 2017) (citing Mann v. Taser Int'l Inc. 588 F.3d 1291, 1306-1307 (11th Cir. 2009)). As explained in the Court's screening order (Doc. 6), a “serious medical need” is “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.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (internal quotations and citations omitted). “The medical need must be one that, if left unattended, poses a substantial risk of serious harm.” Id.; see also Mann, 588 F.3d at 1307 (explaining that a delay which worsens the condition can also be a serious medical need). As to the second prong, the Eleventh Circuit has recently held that a
In May 2023, an Eleventh Circuit panel decision recognized an inconsistent panel split between using “mere negligence” and “gross negligence” in the deliberate indifference standard before finding that “gross negligence” should be correct. Wade v. McDade, 67 F.4th 1363, 1374 (11th Cir. 2023). The court later decided to hear the case en banc, and the panel decision was vacated. Wade v. Georgia Correctional Health, LLC, 83 F.4th 1332 (11th Cir. 2023). To reflect that change, the Court's screening orders cited the “mere negligence” standard. On July 10, 2024, the Eleventh Circuit rejected both standards and clarified that a standard of “subjective recklessness as used in the criminal law” applies to Eighth Amendment deliberate indifference claims. Wade v. McDade, 2024 WL 3354963 (11th Cir. 2023).
plaintiff must demonstrate that the defendant acted with “subjective recklessness as used in the criminal law,” and to do so he must show that the default was actually
subjectively aware that his own conduct caused a substantial risk of serious harm to the plaintiff-with the caveat, again, that even if the defendant “actually knew of a substantial risk to inmate health or safety,” he “cannot be found liable...” if he “responded reasonably to the risk.”Wade v. McDade, 2024 WL 3354963, *7 (11th Cir. 2024) (quoting Farmer v. Brennan, 511 U.S. 825 (1994)).
There is no dispute that a seizure disorder constitutes a serious medical need, but there is no evidence that these Defendants had subjective knowledge of Plaintiff's seizure disorder and the risk that it imposed at the times operative to the complaint. Plaintiff admitted that he never told any Defendant about medical advice that he was given until at least May 2022, which is after he commenced suit. Moreover, Plaintiff had been seizure free for several months before September 29, 2021. The medical records that Plaintiff provides indicate that his seizures were well controlled until around May 2022, after he commenced suit. He contends that medical staff informed Defendants about his condition, but nothing in the record shows that these Defendants were informed, and there is no timeframe for when this information may have been shared. The record simply does not support a finding that these Defendants had the requisite knowledge to be deliberately indifferent to Plaintiff's seizure disorder or that they deliberately understaffed the prison to create a lack of medical care.
Because the record shows that no custom or policy of understaff existed or that a constitutional violation occurred, Defendants Sampson, Mims, and Banks are entitled to qualified immunity.
3. Plaintiff's requests for compensatory damages and injunctive relief
Defendants argue that Plaintiff's prayers for relief in terms of compensatory damages and injunctive or declaratory relief are not permitted in this case. (Doc. 53). They assert that compensatory damages are barred because Plaintiff suffered no physical injury. (Doc. 116-2, p. 14-151). The PLRA states that “[n]o federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of a physical injury....” 42 U.S.C. § 1997e(e). In the absence of physical injury, a plaintiff is precluded from recovering compensatory damages against a defendant. See, e.g., Hoever v. Marks, 993 F.3d 1353 (11th Cir. 2021) (en banc) (keeping the bar against compensatory damages but recognizing a claim under the PLRA for punitive damages, where there is no physical injury). As discussed above, Plaintiff testified that he suffered no physical injury as a result of the September 29, 2021 seizure. Therefore, Plaintiff cannot recover any compensatory damages from Defendants under the PLRA.
Plaintiff originally sought injunctive and declaratory relief. (Doc. 1). Plaintiff, however, is no longer housed at CSP. “The general rule is that a prisoner's transfer or release from a jail moots his individual claims for declaratory or injunctive relief.” See, e.g., McKinnon v. Talladega Cnty., 745 F.2d 1360, 1363 (11th Cir. 1984). Therefore, any such relief has been mooted by Plaintiff's transfer away from CSP.
CONCLUSION
Because Defendants Sampson, Banks, and Mims are entitled to qualified immunity, it is RECOMMENDED that Defendants' motion for summary judgment (Doc. 53) be GRANTED as to all claims and that Plaintiff's motion for summary judgment (Doc. 55) be DENIED. It is hereby ordered, for the reasons explained above, that Plaintiff's motion to strike (Doc. 58) is DENIED as moot, Plaintiff's first motion to take judicial notice (Doc. 69) is DENIED, Plaintiff's motion for evidentiary hearing (Doc. 72) is DENIED, and Plaintiff's second motion to take judicial notice (Doc. 77) is 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 ORDERED