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Green v. Simpson

United States District Court, S.D. Georgia, Augusta Division

June 18, 2014

RAMONE WILLIE GREEN, Plaintiff,
v.
HAROLD SIMPSON, Correctional Officer I, et al., Defendants.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

BRIAN K. EPPS, District Judge.

Plaintiff, an inmate incarcerated at Valdosta State Prison in Valdosta, Georgia, commenced the above-captioned case pursuant to 42 U.S.C. § 1983, concerning events alleged to have occurred at Augusta State Medical Prison in Grovetown, Georgia. Because he is proceeding in forma pauperis ("IFP"), Plaintiff's complaint must be screened to protect potential defendants. Phillips v. Mashburn , 746 F.2d 782, 785 (11th Cir. 1984); Al-Amin v. Donald, 165 F.Appx. 733, 736 (11th Cir. 2006) ( per curiam ). Pleadings drafted by pro se litigants must be liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972) ( per curiam ), but the Court may dismiss a complaint, or any part thereof, that is frivolous or malicious or that fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e) & 1915A.

I. SCREENING OF THE COMPLAINT

A. BACKGROUND

Plaintiff names the following as Defendants in this case: (1) Harold Simpson, Correctional Officer I; (2) FNU Greenway, Corrections Emergency Response Team ("CERT") Officer; (3) FNU Neighbors, CERT Officer; (4) Justin Washington, CERT Officer; (5) Ben LNU, CERT Officer; (6) Lenon Butler, CERT Officer; (7) Clifford Brown, Correctional Officer I; (8) Devon Perry, Correctional Officer I; (9) FNU Williams, Uniform Blue, Sergeant; and (10) Jerry L. Beard, Captain. (See doc. no. 1, pp. 1, 4.) Taking all of Plaintiff's factual allegations as true, as the Court must for purposes of the present screening, the facts are as follows.

On October 24, 2013, at 11:55 a.m., Defendant Perry intentionally put a restraint too tight on Plaintiff's left wrist, cutting it and causing it to swell. (Id. at 5.) Defendant Simpson then struck Plaintiff several times "with a closed fist" on the right side of his head. (Id.) Defendant Brown, Washington, Butler, Ben, Neighbors, Greenway, Williams, and "several more officers" began to kick and punch Plaintiff. (Id.) Pursuant to Defendant Beard's instructions, Defendants Greenway, Neighbors, Ben, Washington, and Butler then took Plaintiff to the elevator and beat him, "busting" his right ear drum and refusing him any medical treatment. (Id.)

As to the prison grievance procedure, Plaintiff states he is awaiting his final appeal. (Id. at 3-4.) Plaintiff seeks monetary relief. (Id. at 6.)

B. DISCUSSION

1. Lack of Exhaustion

Plaintiff's complaint should be dismissed because of his failure to exhaust administrative remedies. Section 1997e(a) of 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, 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). The PLRA's mandatory exhaustion requirement "applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle , 534 U.S. 516, 520 (2002). Moreover, the Court does not have discretion to waive the requirement, even if it can be shown that the grievance process is futile or inadequate. See Smith v. Terry, 491 F.Appx. 81, 83 (11th Cir. 2012) ( per curiam ); Alexander v. Hawk , 159 F.3d 1321, 1325 (11th Cir. 1998).

Furthermore, the PLRA also "requires proper exhaustion." Woodford v. Ngo , 548 U.S. 81, 93 (2006). In order to properly exhaust his claims, a prisoner must "us[e] all steps" in the administrative process; he must also comply with any administrative "deadlines and other critical procedural rules" along the way. Id . at 90 (internal quotation omitted). If a prisoner fails to complete the administrative process or falls short of compliance with procedural rules governing prisoner grievances, he procedurally defaults his claims. Johnson v. Meadows , 418 F.3d 1152, 1159 (11th Cir. 2005).

Also, because exhaustion of administrative remedies is a "precondition" to filing an action in federal court, the Eleventh Circuit requires prisoners to complete the administrative process before initiating suit. Poole v. Rich, 312 F.Appx. 165, 166 (11th Cir. 2008) ( per curiam ); see also Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) ( per curiam ).[1] Finally, under the PLRA, the Court has no discretion to inquire into whether administrative remedies are "plain, speedy, [or] effective." Porter , 534 U.S. at 524; see also Alexander , 159 F.3d at 1326. Rather, under the PLRA's "strict exhaustion" requirement, administrative remedies are deemed "available" whenever "there is the possibility of at least some kind of relief.'" Johnson , 418 F.3d at 1155, 1156.

Because of the date of the incident that Plaintiff alleges, the administrative grievance procedure applicable in this case is governed by the version of the Georgia Department of Corrections' Standard Operating Procedure ("SOP") IIB05-0001 that became effective on December 10, 2012. Inmates are encouraged to resolve complaints on an informal basis before filing a grievance, however this step is not required. SOP IIB05-0001 § VI(A)(4). The administrative remedies procedure commences with the filing of the Original Grievance. An inmate may file a grievance "about any condition, policy, procedure, or action or lack thereof that affects the offender personally." SOP IIB05-0001 § VI(B)(1). The inmate has ten calendar days from "the date the offender knew, or should have known, of the facts giving rise to the grievance" to file the Original Grievance and give it to a Counselor. SOP IIB05-0001 § VI(D)(1)-(5). Once the Counselor gives the grievances to the Grievance Coordinator, they will screen it in order to determine whether to accept it or recommend that the Warden reject it. SOP IIB05-0001 § VI(D)(5). If the Warden rejects the grievance, the inmate may appeal the rejection to the Central Office. SOP IIB05-0001 § VI(D)(5)(f).

If the Grievance Coordinator accepts the grievance or the Warden rejects the coordinator's recommendation, the Grievance Coordinator will appoint a staff member to investigate the complaint. SOP IIB05-0001 § VI(D)(6). After the staff member prepares a report, the Grievance Coordinator submits a recommended response to the Warden. Id . The Warden or their designee reviews the grievance, the report, and the recommendation and issues a decision in writing. Id . The Warden has 40 days from the date the offender gave the Original Grievance to the Counselor to deliver a decision. SOP IIB05-0001 § VI(D)(7). The inmate then has 7 calendar days from the date they receive the response to file a Central Office Appeal to the Office of the Commissioner; the Office of the Commissioner or his designee then has 100 calendar days after receipt of the grievance appeal to respond. SOP IIB05-0001 § VI(E). The grievance procedure is terminated upon the issuance of a response from the Commissioner's Office. See id.

Here, Plaintiff admits that he did not exhaust his administrative remedies prior to the commencement of this case, as is required under the PLRA, because he is currently waiting on a response to the "final appeal" of his formal grievance. (Id. at 4.) In order to properly exhaust, Plaintiff must use all steps of the available exhaustion procedure. Woodford , 548 U.S. at 93. Additionally, because exhaustion of administrative remedies is a "precondition" to filing an action in federal court, Plaintiff had to complete the entire administrative grievance procedure before initiating this suit. Higginbottom , 223 F.3d at 1261. It is plain from the face of his complaint that Plaintiff failed to complete the entire grievance process prior to submitting the current complaint. (Doc. no. 1, pp. 3-4.) Therefore, Plaintiff's complaint should be dismissed without prejudice.[2]

III. CONCLUSION

For the reasons set forth above, the Court REPORTS and RECOMMENDS that Plaintiff's complaint be DISMISSED without prejudice for failure to exhaust administrative remedies and that this civil action be CLOSED.

SO REPORTED and RECOMMENDED.


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