Opinion
5:21-cv-373-MTT -CHW
01-27-2023
CHRISTOPHER AARON VASS, Plaintiff, v. Deputy Warden ERIC MARTIN, et al., Defendants.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle United States Magistrate Judge
Plaintiff Christopher Vass, a state inmate, originally filed a pro se civil rights complaint seeking relief under 42 U.S.C. § 1983 regarding his confinement in Baldwin State Prison. (Doc 1). He later retained counsel and filed an amended complaint. (Docs. 43, 44, 47). Defendants have filed a partial motion to dismiss citing Plaintiff's failure to exhaust and arguing that they are also entitled to qualified immunity regarding Plaintiff's medical deliberate indifference claims. (Doc. 48). Plaintiff alleges that he attempted to exhaust, but also argues that the administrative remedies were unavailable to him. (Docs. 1, 44-1, 51). Because Plaintiff failed to exhaust available remedies for the claims disputed by Defendants before bringing this action, it is RECOMMENDED that Defendants' partial motion to dismiss (Doc. 48) be GRANTED and that Plaintiff's claims for deliberate indifference to medical needs and conditions of confinement claims - except those related to second-hand smoke - be DISMISSED. Plaintiff's failure to protect claims also remain pending.
BACKGROUND
Plaintiff brought this action on September 28, 2021, alleging several constitutional violations regarding his incarceration at Baldwin State Prison's (BSP). (Doc. 1). Following screening of Plaintiff's initial complaint under 28 U.S.C. § 1915A, the Court allowed Plaintiff to proceed on his failure to protect claims, but all other claims were dismissed without prejudice against Warden Berry, Deputy Warden of Care and Treatment Womble, Deputy Warden of Security Martin, and Chief Counselor Whipple. (Docs. 13, 19). Plaintiff's amended complaint, filed with the assistance of counsel, reasserted his failure to protect claims and renewed claims for deliberate indifference to a serious medical need and for violations of conditions of confinement against the same Defendants, except Defendant Womble, who was dismissed by the Court. (Docs. 44-1, 47).
Defendants moved to dismiss Plaintiff's claims, except for his failure to protect claims and claims relating to second-hand smoke exposure for failure to exhaust, and requested qualified immunity for deliberate indifference to Plaintiff's medical needs. (Doc. 48). Defendants also moved to stay discovery while the motion to dismiss was pending (Doc. 49), which was granted except to matters relating to exhaustion. (Doc. 50). In his response, Plaintiff argues that the administrative remedies at BSP are unavailable, thus excusing any failure to exhaust. (Doc. 51). Alternatively, he requests additional time to conduct discovery regarding the issue of exhaustion. (Id.)
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).
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. 48-2, Attachment 1). 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. See generally (Id.)
The referenced page numbers are from taken from the policy itself and not the document number in which the policy was attached.
ANALYSIS
Defendants move to dismiss Plaintiff's conditions of confinement claims, excepting claims related to second-hand smoke exposure and claims of deliberate indifference to a serious medical need. (Docs. 48). They argue that because Plaintiff did not fully exhaust before he originally filed suit, he failed to exhaust his available administrative remedies. (Id.) In addition to exhaustion, Defendants also argue that they are entitled to qualified immunity for any medical deliberate indifference claims because Plaintiff failed to state a claim and therefore cannot show a constitutional violation. (Id., p. 14-17). Plaintiff alleges that he appealed all grievances (Docs. 1, 44-1, p. 4), but counters that he should be relieved from having to exhaust because the grievance process is unavailable under Ross v. Blake, 578 U.S. 632 (2016), and that he did not fail to state a claim. (Doc. 51).
1. Failure to Exhaust
In considering whether dismissal for failure to exhaust is appropriate under Turner's step one, a court must first consider all the facts alleged in the complaint, construed in favor of Plaintiff when the facts conflict. Plaintiff alleges generally that he exhausted all available administrative remedies, and, alternatively, to the extent that he did not exhaust, that he should be excused from the requirement because the grievance process was unavailable. (Docs. 1, p. 3-4; 44-1, p. 4; See generally Doc. 51). When the record is construed in Plaintiff's favor, his claims survive under step one of Turner and the analysis moves on to Turner's second step. Under Turner's second step, any disputed facts must be examined to determine if the administrative remedies were available and, if they were, whether Plaintiff exhausted those available administrative remedies prior to filing suit.
In support of their partial motion to dismiss for failure to exhaust, Defendants provided copies of Plaintiff's applicable grievances and a declaration from Defendant Whipple, who is the grievance coordinator at BSP. (Docs. 48-2). Plaintiff's grievance history log shows that he filed 30 grievances while at BSP. (Doc. 48-2, p. 30-31). Defendants provided 11 of Plaintiff's grievances. Plaintiff's grievance history also reflects other potentially related grievances, including Grievance Nos. 297665, 298522, and 324896, which are labeled “medical” and “conditions of confinement” grievances, but which Defendants did not provide in support of their motion. (Doc. 48-2, p. 30-31). Defendants assert that they have only provided grievances relevant to their motion to dismiss. (Doc. 52, p. 3, n. 1). The grievance history shows that Plaintiff dropped Grievance Nos. 297665 and 298522 and that Grievance No. 324896 was denied. (Id.) Additionally, through the review of Plaintiff's companion case, Vass v. Berry, 5:21-cv-374-TES-CHW, which included Defendants Berry and Whipple but raised issues relating to the BSP's handling of COVID-19, this recommendation takes judicial notice of the substance and status of Grievance Nos. 326634 and 335873, labeled as “medical” grievances, and Grievance Nos. 329652, 331162, and 332186, labeled as “conditions of confinement” grievances.
Medical Related Grievances
1. Grievance No. 291427 : Plaintiff filed Grievance No. 291427 on June 11, 2019, complaining of chronic medical care issues and requesting updated medications and profiles. (Doc. 48-2, p. 34). He specifically listed “pain med, stool softener, shoe profile, depekote snack, acid reflux,...,multivitamins [and] profiles need updating.” The grievance was deemed resolved on August 6, 2019 (Id., p. 36), although the grievance history lists the outcome as “dropped by offender.” (Id., p. 31). However, it is clear from the record that Plaintiff did not appeal this grievance to the Central Office. See (Id., p. 4, ¶ 14; Attachment 3).
2. Grievance No. 303154 : Grievance No. 303154, submitted on February 6, 2020, complained that a prison kitchen staffer, Ms. Glover, threatened Plaintiff with consequences for not reporting to morning duty, although Plaintiff's shift began later in the day. (Doc. 48-2, p. 40, 43). Plaintiff stated that the threat precluded him from going to pill call to get his seizure medications and created an unsafe work environment. (Id., p. 40-43). Ms. Glover responded to Plaintiff's grievance, explaining that the situation was a misunderstanding. (Id., p. 45). The grievance was ultimately rejected because Plaintiff failed to follow instructions. (Id., p. 31, 49). Plaintiff did not appeal this grievance. (Id., p. 4-5, ¶ 5).
3. Grievance No. 3044418 : Grievance No. 304418, filed on February 20, 2020, complained about another incident with Ms. Glover interfering with pill call and threatening him with a disciplinary report. (Doc. 48-2, p. 51). Because the instigating event occurred on February 1, 2020, the grievance was rejected as out-of-time. (Id., p. 30, 54). Plaintiff did not appeal this grievance. (Id., p. 5, ¶ 16).
4. Grievance No. 314318 : Plaintiff filed Grievance No. 314318 on September 14, 2020, citing a failure to provide him a full 5-day regimen of prednisone. (Doc. 48-2, p. 56). In that grievance, Plaintiff acknowledged that he addressed his concerns with medical staff and the medicine was restarted. (Id.) The medical staff response indicated that records show Plaintiff was given two 5-day doses of prednisone. (Id, p. 58, 60). Staff recommended that the grievance be denied. (Id., p. 63). A later form notes that the issue was resolved, and a note from prison staff stated that Plaintiff requested to drop the grievance. (Id., p. 57). This grievance was not appealed. See (Id., p. 5, ¶ 17, Attachment 6).
5. Grievance No. 319502 : On December 22, 2020, Plaintiff submitted Grievance No. 319502 alleging he was charged a co-pay for medication he did not receive or accept. (Doc. 48-2, p. 73). Staff denied the grievance because a separate procedure covered complaints about charges assessed for healthcare. (Id., p. 74). Plaintiff signed to acknowledge the denial but noted that he disagreed with the decision. (Id.) He appealed the denial, which was also denied. (Id., p. 5, ¶ 18, p. 30, 71).
6. Grievance No. 323200 : Grievance No. 323200, filed in April 2021, again complained about overcharges to his account for medicine. (Doc. 48-2, p. 82). Records reflect that Plaintiff ultimately dropped the grievance, and it was not appealed. (Id., p. 5-6, ¶ 19, p. 30, 83).
7. Grievance No. 329653 : Plaintiff filed Grievance No. 329653 on September 21, 2021, complaining about the denial of daily yard calls over the previous year. (Doc. 48-2, p. 85). Staff recommended that the grievance be denied because the issue had been addressed. (Id., p. 86-87). Plaintiff refused to sign acknowledging the denial. (Id., p. 87). Plaintiff's grievance history reflects that he appealed, but that a final decision has not been rendered. (Id., p. 30). This grievance addresses issues relating to Plaintiff's health and conditions of confinement.
Conditions of Confinement Related Grievances
8. Grievance No. 298521 : On October 31, 2019, Plaintiff submitted Grievance No. 298521, complaining about exposure to second-hand smoke because of his history with asthma. (Doc. 48-2, p. 99). Plaintiff's grievance history reflects that Plaintiff dropped this grievance (Id., p. 6, ¶ 23, p. 31), although the drop-form does not have any boxes checked reflecting that resolution. (Id., p. 104). Defendants are not seeking dismissal regarding Plaintiff's conditions of confinement claims related to second-hand smoke exposure. (Docs. 48; 48-1, p. 13).
9. Grievance No. 314514 : Plaintiff cited issues with black mold in Grievance No. 314514, submitted on September 17, 2020. (Doc. 48-2, p., 107). In response to the grievance, Defendant Whipple recommended that the grievance be denied because testing was not positive for mold and because aids to sanitize the area were available. (Id., p. 106, 108109). Plaintiff's grievance history indicates that Plaintiff did not appeal this grievance. (Id., p. 6-7, ¶ 24, p. 31).
10. Grievance No. 321137 : Plaintiff raised several concerns about his conditions of confinement in Grievance No. 312137 on February 5, 2021. (Doc. 48-2, p. 112). Plaintiff stated that he was living in isolation and made to take cold showers that caused chest pains and a sore body. (Id.) Maintenance staff indicated that any issues brought to their attention would be resolved. (Id., p. 114). Staff deemed the grievance resolved, and no further action was taken. (Id., p. 115). Plaintiff did not appeal this grievance. (Id., p. 30, 115).
11. Grievance No. 334051 : Grievance No. 334051, filed on December 28, 2021, complained that after another inmate was pepper sprayed in his vicinity, he experienced trouble breathing and was not taken for medical treatment. (Doc. 48-2, p. 118). Plaintiff was informed that he had more than the maximum number of open, pending grievances, and that to continue with Grievance No. 334051, he must drop other grievances. (Id., p. 119). In response, Plaintiff dropped this grievance and Grievance No. 334497, which concerned an access-to-courts issue. (Id., p. 7, ¶ 27, p. 30, 119).
Grievances for which judicial notice has been taken from Vass v. Berry, 5:21-cv-374-TES-CHW. (The cited docket numbers are from Plaintiff's companion case.)
12. Grievance No. 326634 : Grievance No. 326634, filed on July 12, 2021, raised concerns about Plaintiff's COVID-19 exposure after receiving the vaccines but remaining housed with unvaccinated inmates. (Docs. 35-1, p. 39; 56-2, p. 103). Staff denied his grievance, which Plaintiff refused to sign to acknowledge. (Docs. 35-1, p. 42; 56-2, p. 106). He appealed the denial of the grievance on November 4, 2021, stating that the basis for his appeal was “injunction” and “emergency injunction.” (Docs. 35-1, p. 40; 56-2, p. 103).
13. Grievance No. 329652 : Plaintiff raised concerns that BSP was short staffed, creating an unsafe environment in Grievance No. 329652 filed on September 21, 2021. (Doc. 35-1, p. 24). Staff recommended that the grievance should be denied. (Docs. 35-1, p. 27, 29; 56-2, 108). Plaintiff refused to sign the Warden's denial, which he appealed by simply stating “injunction” and “emergency injunction.” (Docs. 35-1, p. 25, 27, 32; 56-2, p. 107). Plaintiff's grievance history notes that the appeal was partially denied on November 21, 2021. (Doc. 56-2, p. 29).
14. Grievance No. 331162 : Plaintiff filed Grievance No. 331162 on October 13, 2021, using the term “emergency injunction” to complain that BSP was not taking proper COVID-19 precautions and was not supplying “PPE” to inmates and staff. (Doc. 56-2, p. 78). Staff explained the procedures that they used to sanitize. (Id., p. 81). Based on this explanation, Defendant Whipple recommended that Plaintiff's grievance be denied. (Id.) Defendants also included minutes from dorm meetings reflecting discussions about COVID-19 protocols. (Id., p. 88-99). While Plaintiff's grievance history does not show the final outcome of the grievance, Defendant Whipple stated that records reflect that no appeal was timely filed. (Id., p. 6, ¶ 16; 29).
15. Grievance No. 332186 : Grievance No. 332186, filed on November 17, 2021, was labeled “emergency injunction” and complained that staff had failed to resolve conditions to prevent infections. (Doc. 35-1, p. 18). Plaintiff also alleged that Defendant Whipple had altered the grievance. (Id.) Defendant Whipple denied altering the grievance, and staff recommended the grievance be denied. (Id., p. 19, 21, 23). Plaintiff appealed. (Id., p. 20, 22). Plaintiff's grievance history indicates that the appeal was denied on February 9, 2022. (Doc. 56-2, p. 29).
16. Grievance No. 335873 : In Grievance No. 335873 from February 10, 2022, Plaintiff raised concerns about COVID-19 exposure when he was in class with other inmates who were not wearing a mask and were supposed to be quarantined. (Doc. 56-2, p. 33). The inmates were removed from the class, so staff deemed the issue resolved and denied the grievance. (Id., p. 34-35, 38). Plaintiff's grievance history reflects no appeal of this grievance. (Id., p. 29).
A. The prison grievance process was available to Plaintiff.
Plaintiff alleges that he attempted to appeal each grievance. (Docs. 1; 44-1, p. 4). In response to Defendants' motion to dismiss, he now argues that he should be excused from the exhaustion requirement because BSP's grievance process was unavailable under Ross v. Blake, 578 U.S. 632 (2016). (Doc. 51). Courts have outlined three different ways a plaintiff can show that administrative remedies are unavailable:
The modifier “available” means that an administrative remedy must provide the possibility of some relief. Id. at 643. There are three kinds of circumstances that make an administrative remedy unavailable. Id. First, an administrative remedy is unavailable when the administrative procedure operates as a simple “dead end,” with officers unable or consistently unwilling to provide any relief to aggrieved inmates. Id. For example, if a handbook required inmates to submit grievances to a particular office and the office disclaims the capacity to consider petitions or if officials have authority but decline to exercise it, then it is unavailable. Id. Second, a remedy is unavailable when an administrative scheme is so opaque that it is incapable of use. Id. The mechanism may exist to provide relief, but no ordinary prisoner can discern or navigate it. Id. at 643-644. Third, a remedy is unavailable when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, and intimidation. Id. at 644.McDowell v. Bowman, 2022 WL 4140331, at *3 (11th Cir. Sept. 13, 2022) (citing Ross, 578 U.S. 632).
Plaintiff asserts that the grievance process is unavailable under the first and third Ross exceptions because the process operated as a simple dead end and because prison staff threatened or otherwise stifled Plaintiff's attempts to exhaust. The record does not support Plaintiff's arguments.
First, Plaintiff argues that the grievance process operated as a simple dead end because no grievance was ever substantiated and because there were delays in prison responses under the grievance policy timeline. The mere fact that Plaintiff's grievances were denied or that the timeline may have been delayed does not mean that the process operated as a dead end, because the process still provided the possibility of relief. Even when a process might appear futile, exhaustion is still required under the PLRA. Garcia v. Obasi, 2022 WL 669611, *4 (11th Cir. March 7, 2022) (citing Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000)).
The Eleventh Circuit has specifically rejected the futility arguments Plaintiff now makes to show unavailability. In Garcia, the plaintiff argued that prison officials essentially waived an exhaustion defense because they had not complied with grievance policy deadlines. Garcia, 2022 WL 996611 at * 4. The court found that the warden's failure to provide a timely response did not make a central appeal unavailable. Id. The Garcia Court reiterated that exhaustion of the grievance process - from submission of a formal grievance through appeal to the central office - was a precondition before filing suit under the PLRA. Id. at *5; see also Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (explaining “[t]o exhaust administrative remedies in accordance with the PLRA, prisoners ‘must properly take each step within the administrative process.'”) (internal citations omitted)). The Eleventh Circuit also considered a “dead end” argument in Wright v. Georgia Department of Corrections, 820 Fed.Appx. 841 (11th Cir. 2020). Even though the plaintiff in Wright had waived his unavailability argument, the court found that he had provided no factual support for his arguments that the process was a dead end because the wardens never approved a medical grievance. Thus, the court upheld the district court's dismissal for failing to exhaust.
Plaintiff also argues that he should be excused from exhausting because prison officials kept him from using the grievance process under the third Ross exception. To show that administrative remedies were unavailable due to threats of retaliation by prison officials, a plaintiff must show that “(1) the threat actually deterred the inmate from lodging a grievance or pursuing part of the grievance process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.” Montalban v. Samuels, 2022 WL 4362800, at *2 (11th Cir. Sept. 21, 2022) (citing Turner, 541 F.3d at 1085). Plaintiff states that prison staff thwarted him from filing grievances by giving him food and forcing a pen from his hand. (Doc. 51, p. 11).
He also states that prison staff have simply refused to respond or were unavailable to address his grievances. (Id.) There is no support for these allegations in the record. Plaintiff does not specify which grievance he was allegedly kept from filing, and such an argument would be undermined by the record showing that he filed thirty grievances while he was at BSP. (Doc. 48-2, p. 29-30). Of the 30 grievances Plaintiff filed, he appealed at least eight of them. See (Id.) And of the grievances provided in both this case and Plaintiff's companion case, no grievance went unanswered, even if the answer was that Plaintiff failed to follow policy. Nothing in the records suggest that Plaintiff was actually deterred from filing a grievance or that a reasonable inmate would have been deterred. Plaintiff has not shown that he was threatened or intimidated. Based on the record before the Court, the grievance process was available to Plaintiff, and he is not excused from the requirement to exhaust.
Plaintiff alternatively requests additional time to support a proper Turner analysis by arguing that, due to counsel's recent appearance and other delays, he has had insufficient time to develop the record or to provide an affidavit in opposition to Defendants' motion. (Doc. 51, p. 1113). Plaintiff's counsel first made appearance in this case on July 6, 2022. (Doc. 43). Counsel had enough time to consult with Plaintiff and file a lengthy amended complaint. See (Doc. 44-1). Nothing prevented Plaintiff from seeking records relating to exhaustion, because discovery was stayed only for matters other than exhaustion. (Doc. 50). In the more than two months since Defendants' motion was briefed, no supplemental materials have been submitted by Plaintiff. As Plaintiff has had an adequate opportunity to develop the record regarding exhaustion or unavailability of administrative remedies, no additional time is warranted.
B. Plaintiff failed to exhaust the available administrative remedies as required.
As the administrative process was available to Plaintiff, the Court must next examine the record to determine whether Plaintiff exhausted as required under the PLRA. 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 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 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 September 28, 2021. (Doc. 1).
Plaintiff did not properly exhaust prior to filing suit. Of the potentially applicable grievances submitted before filing his complaint on September 28, 2021, Plaintiff appealed four: Grievance Nos. 319502, 326634, 329652, and 329653. (Doc. 48-2, p. 30-31). Only Grievance No. 319502 was fully exhausted prior to suit, but exhaustion of this grievance does not help Plaintiff survive Defendant's motion to dismiss because it concerned a co-pay discrepancy that is not related to any of the claims in this suit. The remaining three grievances were pending appeal or were not exhausted until after Plaintiff filed suit. See (Doc. 48-2, p. 30-31). Therefore, the full grievance process was not and could not have been completed prior to commencing suit as required. Because Plaintiff did not exhaust his administrative remedies prior to filing suit as required by the PLRA, Plaintiff's complaint must be dismissed under the second step of Turner.
2. Qualified Immunity
Defendants argue that Plaintiff's claims against them for deliberate indifference to his medical needs in their individual capacities are barred by qualified immunity because Plaintiff has failed to state a claim. (Doc. 48-1, p. 14-17). A qualified immunity defense is usually asserted in a motion for summary judgment; however, “the defense may be raised and considered on a motion on to dismiss.” Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001). The defense may be considered on a motion to dismiss because qualified immunity is “‘an entitlement not to stand trial or face the other burdens of litigation' [and] questions of qualified immunity must be resolved ‘at the earliest possible stage of litigation.'” Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) and Hunter v. Bryant, 502 U.S. 224, 227 (1991)) (abrogated on other grounds). Therefore, Defendants' defense of qualified immunity will be considered on their motion to dismiss; but at this stage, unlike at summary judgment, the facts alleged in Plaintiff's complaint will be taken as true and all reasonable inferences will be drawn in his favor. Chesser, 248 F.3d at 1121.
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). Here, there is no dispute that management and operational decisions of the prison fall within Defendants' discretionary authority.
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 v. Callahan, 555 U.S. 223, 231, 232 (2009)). Both must be present to for a plaintiff to prevail. Id.
Defendants seek qualified immunity as to Plaintiff's claims of deliberate indifference to his medical needs and treatment. Defendants are not medical personnel, and Plaintiff does not explain how Defendants withheld medical care or superseded the judgment of the prison medical staff as alleged. See (Doc. 44-1, ¶¶137-148). At best, the remaining nexus between Plaintiff's medical treatment deliberate indifferences claims and Defendants is that Defendants had supervisory control of medical staff, grievance processes, or prison operations, and essentially assumes it would be impossible for them not to have been aware of the medical issues he experienced.
Supervisory officials are liable in limited circumstances, and their status alone does not create § 1983 liability. Gallagher v. Shelton, 587 F.3d 1063, 1069 (11th Cir. 2009). The facts, even construed most favorably to Plaintiff, do not show the required circumstances for supervisory liability. Defendants, as supervisory officials, could only be held liable under § 1983 if they personally participated in unconstitutional conduct or if there is a causal connection between their actions and alleged constitutional violation. Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008). “The standard by which [supervisors are] held liable in [their individual capacities] for the actions of a subordinate is extremely rigorous.” Hendrix v. Tucker, 535 Fed.Appx. 803, 805 (11th Cir. 2013). The alleged personal participation and knowledge by Defendants in Plaintiff's medical treatment comes from Plaintiff's grievances, alleged informal complaints, and other prison records. However, “denial of a grievance, by itself without any connection to the [alleged violation], does not establish personal participation under § 1983.” Gallagher, 587 F.3d at 1069. It is undisputed that Defendants are not medical professionals who would have directly provided Plaintiff medical care. Nothing in the record suggests that Defendants instructed any medical professional to withhold any treatment or to not to provide prescribed medications. There is also no evidence of willful blindness to his medical complaints or a failure to facilitate recommended treatment. See Goebert v. Lee Cnty, 510 F.3d 1312 (11th Cir. 2007) (allowing a claim for supervisory liability based on the official's personal participation in not providing outside medical care to a pregnant woman leaking amniotic fluid despite medical staff's recommendation for outside care). Without any evidence of personal participation by Defendants, a causal connection must exist before supervisory liability may be present.
A causal connection can be established if
(1) a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation and he fail[ed] to do so; (2) the supervisor's improper custom or policy le[d] to deliberate indifference to constitution rights; or (3) facts support an inference that the supervisor directed the subordinates to act unlawfully or know the subordinates would act unlawfully and failed to stop them from doing so.Hendrix, 535 Fed.Appx. at 805.
The complaint fails to show any causal connection between Defendant and Plaintiff's medical treatment. As noted above, there is nothing to suggest that Defendants directed medical staff to not treat Plaintiff. There is no evidence of a history of widespread abuse that would inform Defendants that Plaintiff was not receiving medical care as alleged. Nothing Plaintiff's complaint, accepted as true, supports an inference that Defendants had a custom or policy of not providing medical care to inmates. Plaintiff attempts to connect Defendants to a delay in medical care by attributing inherent knowledge of his issues within the prison to them simply through his grievances and informal requests. This allegation is not enough to create a causal connection.
“[D]eprivations that that constitute widespread abuse sufficient to notify the supervising official must obvious, flagrant, rampant and of continued duration, rather than isolated occurrences. Hendrix, 535 Fed.Appx. at 805, citing Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999).
Because Plaintiff has not alleged sufficient facts to establish that these Defendants were deliberately indifferent to a serious medical need as a matter of law, Plaintiff has failed to state a claim and there is no need to examine the second prong of the qualified immunity analysis. Defendant is entitled to qualified immunity as a matter of law regarding Plaintiff's medical deliberate indifference claims.
CONCLUSION
Plaintiff failed to exhaust the administrative remedies available to him prior to commencing this action for his claims of deliberate indifference and conditions of confinement, except for those relating to second-hand smoke exposure. Defendants are also entitled to qualified immunity for Plaintiff's deliberate indifference claims. Based on the foregoing, it is RECOMMENDED that Defendants' partial motion to dismiss (Docs. 48) be GRANTED. Plaintiff's conditions of confinement claim based on second-hand smoke exposure and failure to protect claims remain pending.
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, this 27th day of January, 2023.