Opinion
NO. 5:16-CV-00450-TES-MSH
12-04-2018
ROBERT WRIGHT, Plaintiff, v. ROBERT UTLEY, Defendant.
REPORT AND RECOMMENDATION
Pending before the Court is Defendant's motion for summary judgment (ECF No. 81), which the Court construes as a motion to dismiss. For the reasons explained below, it is recommended that Defendant's motion be granted.
BACKGROUND
Plaintiff states that on October 30, 2014, he was attacked by a fellow inmate at Dooly State Prison ("DSP"). Compl. 10, ECF No. 1. Plaintiff alleges he "was blindsided with a blow to [his] face while trying to leave [his] cell and avoid trouble" and that he "was knocked-out" by the blow. Id. Plaintiff notified prison officials, who took photos of the injuries, confirmed Plaintiff was attacked by another inmate, and placed Plaintiff in "'the hole' . . . where prisoners are sent to be punished" with no other treatment. Id. at 10-11. The next day, Plaintiff was transported to the Taylor Regional Trauma Center by prison guards Westley Harper and Cornelius Hollis. Suppl. Compl. 2, ECF No. 13. There, x-rays revealed Plaintiff suffered a badly fractured jaw. Compl. 11. Although the emergency room doctor stated that Plaintiff "needed immediate treatment," Harper and Hollis refused and stated that "Atlanta" would not pay for Plaintiff's care. Id.; see also Suppl. Compl. 2. Harper and Hollis returned Plaintiff to DSP and placed him back in the hole until November 4, 2014; Plaintiff received little to no medical attention until he was transferred to Augusta State Medical Prison on that date. Suppl. Compl. 2; Compl. 11. On November 5, 2014, Plaintiff had surgery to remove several teeth and implant a metal plate in his jaw. Compl. 11.
Plaintiff was transferred back to DSP in February 2015, and received no additional treatment for the next eleven months, until his aunt called the governor. Id. Plaintiff then saw several medical professionals who referred Plaintiff to the prison dentist for further treatment consisting of a custom mouth guard and medication to relax the nerves in Plaintiff's jaw. Id. Plaintiff states he was given two call-out slips to go to the dental department at DSP. On both occasions, he was told they would need to be re-scheduled, which never happened. Compl. 7. Plaintiff alleges that "[n]o dental treatment was done," until April 25, 2017, when Plaintiff received surgery to remove two teeth at the Augusta State Medical Prison. Id. at 6-7, 11-12; see also Suppl. Compl. 2. Defendant was employed by MHM Correctional Services, Inc. and was assigned to provide dental services at DSP. Utley Aff. ¶ 4, ECF No. 55.
After a preliminary review of Plaintiff's original and supplemental complaints, his claims for deliberate indifference against Harper, Hollis, and Defendant were allowed to proceed. Order & R. & R. 6-8, Jun. 29, 2017, ECF No. 14. On April 25, 2018, this Court recommended that the claims against Harper and Hollis be dismissed due to Plaintiff's failure to exhaust his administrative remedies. Order & R. & R. 12, ECF No. 72. That Order and Recommendation was adopted and made the Order of the Court on June 29, 2018. Order 17, ECF No. 77. Defendant moved for summary judgment (ECF No. 81) on August 8, 2018 and Plaintiff responded on August 24, 2018 (ECF No. 84).
DISCUSSION
Defendant moves for summary judgment (ECF No. 81) claiming, inter alia, that Plaintiff failed to exhaust his administrative remedies. Br. in Supp. of Mot. 5-10, ECF No. 81-1. Because the Court finds that Plaintiff did not exhaust his administrative remedies, the other grounds raised in Defendant's motion will not be addressed. I. Exhaustion Standard
"Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, 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." Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008). Defendant's motion for summary judgment, therefore, will be treated as a motion to dismiss.
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . 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). "[W]hen a state provides a grievance procedure for its prisoners, as Georgia does here, 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 (11th Cir. 2000) (emphasis added). "To exhaust administrative remedies in accordance with the PLRA, prisoners must properly take each step within the administrative process. If their initial grievance is denied, prisoners must then file a timely appeal." Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (citation and punctuation omitted).
The argument that a plaintiff has failed to satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant, 530 F.3d at 1375 ("[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]"). Further, since dismissal for failure to exhaust is not an adjudication on the merits, the Court can resolve factual disputes using evidence from outside the pleadings. Id. at 1376. "[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process." Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). "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 versions of the facts as true." Id. If, taking plaintiff's facts as being true, the defendant is entitled to dismissal for failure to exhaust, then the complaint should be dismissed. Id. "If the complaint is not subject to dismissal at the first step . . . the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion." Id. The defendant bears the burden of proof during this second step. Id.
II. Plaintiff's Failure to Exhaust
Defendant moves to dismiss for lack of exhaustion, claiming the Georgia Department of Corrections ("GDOC") has a grievance procedure that applies to all inmates, which Plaintiff failed to fully utilize regarding his claims. Br. in Supp. of Mot. 5-10. Plaintiff responds that he did file a grievance but the grievance procedure is futile and, in reality, unavailable as a remedy. Compl. 3; Pl.'s Opp'n to Mot. 2-4, ECF No. 84. Because at this stage of the exhaustion analysis the Court must take Plaintiff's version of the facts as true, Plaintiff's Complaint cannot be dismissed at this first step. Turner, 541 F.3d at 1082; see also Dollar v. Coweta Cty. Sheriff Office, 446 F. App'x 248, 251-52 (11th Cir. 2011) (per curiam).
Since the Complaint was not dismissed at the first step, the Court can make factual findings relating to exhaustion. A defendant bears the burden of establishing a lack of exhaustion at the second step of the inquiry. Turner, 541 F.3d at 1082-83. The Court makes the following factual findings and determines Defendant has met his burden.
The Court has previously rejected Plaintiff's argument that the grievance process was not available to him. Order 15-16, June 29, 2018, ECF No. 77.
DSP follows the GDOC's Standard Operating Procedures ("SOPs") regarding grievances. McClairen Aff. ¶ 3, ECF No. 25-2. The SOPs mandate that an inmate follow a two-step process in order to exhaust his remedies: (1) file an original grievance; and (2) file an appeal to the Central Office. Id. ¶ 14 & Attach. A-1 at 16-22. Except for a limited number of non-grievable issues, an inmate "may file a grievance about any condition, policy, procedure, or action or lack thereof that affects the offender personally." Id. Attach. A-1 at 14-15. The inmate must file the grievance within ten days of the event giving rise to it. Id. Attach A-1 at 17. A warden has forty calendar days within which to respond to an original grievance. Id. Attach A-1 at 19. An inmate may file an appeal after the warden issues a decision or the time for the warden to issue his decision expires. Id. Attach A-1 at 21. The Commissioner has 100 days within which to respond to a grievance appeal. McClairen Aff. Attach. A-1 at 22.
Plaintiff alleges that on October 30, 2014, he was attacked in his cell by a fellow inmate. Compl. 10. He states he suffered a broken jaw as a result of that attack but failed to receive proper medical treatment for the next several years. Id. at 10-12. Plaintiff specifically alleges Defendant failed to treat Plaintiff despite medical referrals to DSP's dental department. Compl. 5-7, 10-11.
The Court finds that Plaintiff filed one grievance at DSP. On August 24, 2016, Plaintiff filed grievance number 226345. Therein, Plaintiff complains that "staff and medical staff have shown "deliberate indifference" to Plaintiff's severe medical needs—specifically his jaw and teeth. McClairen Aff. Attach. A-3 at 31. This grievance was denied on September 20, 2016. Id. Attach. A-3 at 33. Plaintiff appealed the denial the following day. Id. Attach. A-3 at 34. The Commissioner thereafter had 100 days to respond. Id. Attach. A-1 at 22. Plaintiff filed his Complaint in this Court on October 11, 2016—twenty days after appealing the grievance denial. Compl. 13.
In order for an inmate to have exhausted his administrative remedies, he must complete the grievance process prior to filing a civil action. See, e.g., Brown, 212 F.3d at 1207. The relevant date for determining whether the administrative remedies are exhausted is the date on which a plaintiff files his initial complaint, not an amended or recast complaint. See Smith v. Terry, 491 F. App'x 81, 83-84 (11th Cir. 2012) (per curiam) ("The only facts pertinent to determining whether a prisoner has satisfied the PLRA's exhaustion requirement are those that existed when he filed his original complaint.").
Plaintiff signed his Complaint on October 11, 2016, and it was received by the Court on October 17, 2016. Compl. 13. The Commissioner had 100 days from Plaintiff's appeal of grievance 226345—until December 30, 2016—to issue a decision. Plaintiff failed to allow the time for the Commissioner to respond to his appeal to expire. Thus, he failed to fully exhaust his administrative remedies before filing his Complaint, and Defendant's motion to dismiss should be granted.
"Under the 'prison mailbox rule,' a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing. Absent evidence to the contrary, we assume that [it] was delivered to prison authorities the day he signed it." Daker v. Comm'r, Ga. Dep't of Corr., 820 F.3d 1278, 1286 (11th Cir. 2016) (citations and internal quotation marks omitted).
The record indicates that Plaintiff's appeal was denied on April 10, 2017, but that Plaintiff was not informed of this denial until August 2017. McClairen Aff. Attach. A-2 at 1 & Attach. A-3 at 2, 6. --------
CONCLUSION
For the reasons explained above, it is recommended that Defendant's motion to dismiss (ECF No. 81) be granted. 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 hereof. 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 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 4th day of December, 2018.
S/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE