United States District Court, M.D. Georgia, Albany Division
ORDER AND RECOMMENDATION
STEPHEN HYLES, Magistrate Judge.
Presently pending before the Court are Defendants' motion for summary judgment (ECF No. 23) and Plaintiff's motion to compel discovery (ECF No. 26) and motion for sanctions (ECF No. 27). For the reasons explained below, Defendants' motion for summary judgment should be granted and Plaintiff's motions are denied.
On April 24, 2013, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) This is the second of four lawsuits filed in this Court by Plaintiff against various staff members at Dougherty County Jail (DCJ). In the instant Complaint, Plaintiff alleges that Defendants Sheriff Sproul, Major Lewis, Lieutenant Montgerard, and Officer Shepherd retaliated against him or condoned retaliation against him for his filing of the first lawsuit. Specifically, Plaintiff claims Officer Shepherd threatened Plaintiff after finding out about the other suit, and retaliated by allegedly telling other inmates that Plaintiff was a "child rapist" and that he had AIDS. (Compl. 11-12.) He further alleges that Lt. Montgerard retaliated by delaying the provision of legal materials that Plaintiff required to prosecute his other case ( Id. at 7-8), and that Sheriff Sproul and Major Lewis were both aware of the retaliation and failed to stop it ( Id. at 13-18). After preliminary review, these claims were allowed to proceed.
Plaintiff has filed two discovery motions, a motion to compel discovery and a motion for sanctions. Defendants responded contending that both motions should be denied. These motions are ripe for review. Defendants filed their motion for summary judgment on June 18, 2014 (ECF No. 23), and Plaintiff responded on August 4, 2014 (ECF No. 31). Defendants replied (ECF No. 33) and Plaintiff was granted leave to file a sur-reply (ECF No. 38). The motion is now ripe for review.
I. Motion for Summary Judgment
Defendants contend that summary judgment should be granted in this case for multiple reasons. Defendants contend, inter alia, that Plaintiff failed to exhaust his administrative remedies prior to filing this suit as required by the Prison Litigation Reform Act (PLRA). (Defs.' Br. in Supp. of Mot. for Summ. J. 7-9, ECF No. 23-2.) Furthermore, Defendants argue that Plaintiff has not established sufficient facts to prove that Defendants violated his rights in any way and that the record shows they are entitled to summary judgment. ( Id. at 14-18.) For the reasons explained below, Defendants' motion should be granted because Plaintiff failed to exhaust his available administrative remedies prior to filing this action on three of his claims and Defendants are entitled to summary judgment on Plaintiff's remaining claims.
A. Standard of Review
Summary judgment may be granted only "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). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
B. Exhaustion of Administrative Remedies
Title 42, United States Code section 1997e(a) 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." "[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." Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (internal quotation marks and citation omitted). Although Defendants here raised the issue in a motion for summary judgment, the argument that a plaintiff has failed to satisfy section 1997e(a) is more properly raised in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008) ("[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]"). Furthermore, 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.
Defendants contend that Plaintiff has failed to exhaust his administrative remedies as to three of his claims. First, Defendants state that although Plaintiff filed a grievance regarding Officer Sheppard's alleged retaliation and threats, he failed to appeal that grievance. (Defs.' Br. in Supp. of Mot. for Summ. J. 9; Montgerard Aff. Ex D. at 22, ECF No. 23-6.) Plaintiff responds by arguing that he completed the administrative remedies afforded to him and an appeal was not available because although he filed the grievance as an "emergency grievance" it was not returned to him in a timely manner. (Pl.'s Resp. 8.) As for Plaintiff's second claim, that Lieutenant Montgerard retaliated against him by delaying the provision of legal materials, Defendants argue that Plaintiff did not file a grievance until after he filed this lawsuit. (Defs.' Br. in Supp. of Mot. for Summ. J. 9.) Plaintiff does not argue otherwise. Finally, as to ...