Opinion
5 : 17-CV-230 (MTT)
07-18-2018
AQUANUS DONTEL THOMPSON, Plaintiff, v. Warden GREGORY MCLAUGHLIN, et al., Defendants.
RECOMMENDATION
Presently pending in this action brought pursuant to 42 U.S.C. § 1983 is Defendants' Motion to Dismiss. (Doc. 18). The Court notified the Plaintiff of the filing of Defendants' Motion to Dismiss and directed him to respond thereto within thirty (30) days of the Court's Order. (Doc. 19). The Plaintiff has not filed a response to Defendants' motion.
Plaintiff brought this action in June 2017, raising allegations of Defendants' deliberate indifference to a serious danger from other inmates while he was confined at Macon State Prison in February 2017. (Doc. 1). Plaintiff's Eighth Amendment failure to protect claims were allowed to proceed against the named Defendants. (Doc. 7).
Motion to Dismiss
Defendants filed their Motion to Dismiss on January 31, 2018, asserting in part that Plaintiff has failed to exhaust his claims prior to filing this lawsuit. (Docs. 18, 18-1). A motion to dismiss can be granted only if Plaintiff's Complaint, with all factual allegations accepted as true, fails to "raise a right to relief above the speculative level". Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
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." 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. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556, 570).
In regard to exhaustion of administrative remedies, the Prison Litigation Reform Act ("PLRA") mandates that all prisoners wishing to bring suits pursuant to § 1983 based on conditions of confinement violations must exhaust all available administrative remedies prior to filing a federal action. The Act provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. §1997e (a). In order to satisfy the exhaustion requirement, an inmate must fully pursue all available administrative remedies, including pursuing and completing all levels of appeal. Moore v. Smith, 18 F. Supp. 2d 1360, 1363 (N.D.Ga. 1998); Harper v. Jenkin, 179 F.3d 1311 (11th Cir. 1999) (inmate who failed to seek leave to file an out-of-time grievance failed to exhaust his administrative remedies as required by the PLRA). "An inmate must use all steps in the administrative process and comply with any administrative deadlines and other critical procedural rules before exhaustion is proper. Thus, if an inmate has filed an 'untimely or otherwise procedurally defective administrative grievance or appeal', he has not properly exhausted his administrative remedies." Woodford v. Ngo, 548 U.S. 81, 89-92 (2006).
The Eleventh Circuit has held that
deciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process. First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the
plaintiff's response, and if they conflict, takes the plaintiff's version of 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. . . . If the complaint is not subject to dismissal at the first step, where the plaintiff's allegations are assumed to be true, the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.
Turner v. Burnside, 541 F.3d 1077, 1082 (11 Cir. 2008).
Plaintiff indicates in his Complaint that he filed a grievance regarding his claims but that this grievance was denied. (Doc. 1, p. 3). Plaintiff's claims therefore are not subject to dismissal pursuant to the first step of the Turner analysis. See Whatley v. Warden, Ware State Prison, -- F.3d --, 2015 WL 5568465 *5 (11 Cir. 2015) (under Turner analysis, court must accept plaintiff's facts as true and ask whether, given those facts, the alleged grievances exhausted administrative remedies; court must make specific findings to resolve disputed factual issues related to exhaustion).
Defendants establish, by means of the declaration testimony of Lachaka McKenzie, currently the Deputy Warden of Care and Treatment at Macon State Prison and previously the Chief Counselor and Grievance Coordinator at Macon State Prison, that a statewide grievance process was in place at the Georgia Department of Corrections, and specifically at Macon State Prison, at the time of the incident underlying this lawsuit. (Doc. 18-2, ¶¶ 3-5). According to McKenzie's declaration testimony, the grievance process available to Plaintiff includes two (2) steps, the filing of an Original Grievance and a Central Office Appeal. Id. at ¶ 9. The inmate must provide a completed formal grievance form to a counselor no later than ten (10) days from the date the inmate knew, or should have known, of the facts giving rise to the grievance. Id. at ¶ 10. The original grievance is screened by the Grievance Coordinator, who makes a recommendation to the Warden to either reject the grievance or to accept the grievance for further consideration and investigation. Id. at ¶¶ 11, 12. If the grievance is rejected, the inmate may appeal the Warden's rejection decision to the Central Office, either within 7 days of receipt of the response, or after the expiration of the 40-day time period for the Warden's decision. Id. at ¶¶ 13-14.
According to McKenzie's affidavit testimony, Plaintiff filed four (4) grievances while he was confined at Macon State Prison between August 8, 2016 and June 21, 2017. Id. at ¶¶ 20-21. Plaintiff appealed the denial of only two (2) of these grievances. (Doc. 18-5). Plaintiff filed Grievance No. 229740 on October 12, 2016, contending that he was denied access to the law library for research on his appeal. (Doc. 18-2 at ¶ 22). This grievance was rejected as untimely, and Plaintiff's appeal was denied. Id. at ¶ 24.
Plaintiff filed Grievance No. 239685 on March 20, 2017, regarding his housing assignment and request for protective custody. Id. at ¶¶ 25, 26; Doc. 18-7. This grievance was denied, and Plaintiff's appeal was still pending when he executed this lawsuit on June 7, 2017. Id. at ¶¶ 27-28.
"[W]hen a state provides a grievance procedure for its prisoners . . . an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit." Brown v. Sikes, 212 F.3d 1205, 1207 (11 Cir. 2000). "[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules - rules that are defined not by the PLRA, but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007); see also Toenniges v. Georgia Dept. of Corrections, 600 F. A'ppx 645, 648 (2015) (prisoner must complete review process according to rules set forth in prison grievance system itself).
The Court finds that the Plaintiff has not exhausted his claims, in that, he has not utilized all available remedies to grieve the alleged offenses. The affidavit testimony in support of the Defendants' Motion to Dismiss establishes the presence of a grievance process at Macon State Prison, which was made known to Plaintiff, and establishes that the Plaintiff did not complete the process regarding his claims prior to filing this lawsuit. The record reveals an incomplete grievance process when this action was initiated by Plaintiff. In order to properly exhaust, Plaintiff must use all steps of the available exhaustion procedure. Woodford, 548 U.S. at 93. Plaintiff was required to complete the entire grievance procedure before filing suit. Higginbotham v. Carter, 223 F.3d 1259, 1261 (11 Cir. 2000).
Further, it does not appear that this is a situation where administrative procedures were unavailable to Plaintiff based on officers being "unable or consistently unwilling to provide any relief to aggrieved inmates" or based on an administrative scheme "no ordinary prisoner can discern or navigate". Ross v. Blake, 2016 WL 3128839, *7-8, ___ U.S. ___ (2016).
The Court also notes that there is no indication that Plaintiff's use of the grievance process was actually prohibited by prison officials, by means of threat or otherwise. In order to demonstrate that administrative remedies were unavailable, the Plaintiff must point to specific facts showing that officials prohibited or blocked his use of the appeals process. Miller v. Tanner, 196 F.3d 1190, 1194 (11 Cir. 1999) (inmate was not required to file an appeal after being told unequivocally, and in writing, that appeal was precluded; plaintiff produced memorandum denying grievance and informing plaintiff that no appeal was available); Turner, 541 F.3d at 1085 (prison official's serious threats of retaliation against an inmate for pursuing a grievance render administrative remedies unavailable).
The affidavit testimony in support of Defendants' Motion to Dismiss establishes the presence of a grievance system at Macon State Prison, and establishes that the Plaintiff did not complete the grievance process regarding his claims prior to filing this lawsuit.
Conclusion
Inasmuch as the Plaintiff has failed to fully exhaust administrative remedies as to his claims, it is the recommendation of the undersigned that the Defendants' Motion to Dismiss be GRANTED, and that Plaintiff's Complaint be dismissed without prejudice.
Objections
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to the recommendations herein, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the District Judge for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 18 day of July, 2018.
s/ THOMAS Q. LANGSTAFF
UNITED STATES MAGISTRATE JUDGE asb