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Shaw v. Toole

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

July 27, 2015

DEXTER SHAW, Plaintiff,
v.
ROBERT TOOLE; DEPUTY WARDEN JOHN PAUL; and MILTON SMITH, Defendants.

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

R. STAN BAKER, Magistrate Judge.

Plaintiff, who is currently housed at Valdosta State Prison in Valdosta, Georgia, filed a cause of action, as amended, pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc, et seq., contesting certain conditions of his confinement while he was housed at Georgia State Prison in Reidsville, Georgia. (Docs. 1, 10, 22.) Defendants Robert Toole, John Paul, and Milton Smith ("Defendants") filed a Second Motion to Dismiss. (Doc. 43.) Plaintiff filed a Response, (doc. 57), and Defendants filed a Reply. (Doc. 62.) Plaintiff filed a Surreply. (Doc. 63.) For the reasons which follow, Defendants' Motion should be GRANTED, and Plaintiff's Complaint should be DISMISSED, without prejudice. Based on the undersigned's recommended disposition of Defendants' Second Motion to Dismiss, Plaintiff's Motions to Amend/Correct, (docs. 33, 35), Motion for Leave to File, (doc. 41), Motion for Extension of Time, (doc. 42), Motion for Defendants to Respond to his Complaint, (doc. 50), and his Motion to Appoint Counsel, (doc. 54), are DISMISSED as moot. In addition, Defendants' first Motion to Dismiss, (doc. 28), also should be DISMISSED as moot. Finally, Plaintiff should be DENIED leave to appeal in forma pauperis.

BACKGROUND[1]

Plaintiff asserts he is a Suma Muslim who adheres to Islam and its teachings, including following the dietary prohibitions against eating chicken and other meats and meat byproducts. (Doc. 10, p. 2.) Plaintiff states he signed up in 2009 to receive vegan meals through the Georgia Department of Corrections' Alternative Entree Program based on his sincerely held religious beliefs, and the "religious authorities" approved his placement in the program. (Id. at p. 3.) Plaintiff asserts he was transferred to Georgia State Prison on March 13, 2014, and he immediately wrote Defendant Toole, the warden, to inform him of his (Plaintiff's) vegan diet requirement. (Id.) According to Plaintiff, Defendant Toole failed to respond. Plaintiff states he was forced to eat around the meat and meat byproducts on his trays, which resulted in him being able to eat very little food, such as a spoonful of vegetables or an occasional piece of fruit. (Id.) Plaintiff maintains he lost a significant amount of weight and became violently ill. (Id.)

Nevertheless, Plaintiff contends, prison officials ignored his need for adequate nutrition and his required diet. In particular, Plaintiff asserts Defendant Paul informed him Georgia State Prison did not participate in the Alternative Entree Program, so Plaintiff would have to "eat around the foods [he] cannot eat." (Id.) Plaintiff also asserts he filed a grievance on March 27, 2014, and alleged he was being denied adequate nutrition and his required vegan meals. However, Plaintiff maintains, he learned a month later that the grievance coordinator (Defendant Smith) destroyed this grievance in an attempt to conceal the nature of Plaintiff's grievance and so "the state and it's (sic) agents could allow serious physical injuries to come to me as a form of widespread retribution." (Id. at p. 4; Doc. 22-1, p. 1.) Plaintiff avers he had become visibly weaker and smaller due to his weight loss, and officers suggested he go to the commissary to "maintain." (Doc. 10, p. 4.) Plaintiff also avers he "properly" filed another grievance on April 29, 2014, and stated that his previous grievance had been destroyed in an attempt to conceal the denial of adequate nutrition. (Id.)

Plaintiff maintains he spoke to Defendant Toole again during inspection about the denial of adequate nutrition and that Defendant Toole told him Georgia State Prison did not offer vegan meals, but officials were looking into doing so. (Id.) According to Plaintiff, he explained to Defendant Toole that he should not have to wait for the future to receive his vegan diet. (Id.) Plaintiff also states stickers identifying him and his vegan meal requirement were placed on his trays, even though the prison did not provide vegan meals, "[a]s a malicious tactic to conceal facts and a mockery towards my religious exercise." (Id.)

Plaintiff contends he began refusing to accept any trays because of the presence of meat, in violation of his religious requirements, on May 8, 2014. (Id. at p. 5.) Plaintiff states the door charts, which officers are required to sign every 30 minutes, noted he was on a hunger strike. Plaintiff also states the established procedures required him to be seen by medical personnel on a daily basis after he missed nine (9) meals. (Id.) Plaintiff maintains the State ordered "it's (sic) agents not to have me medically seen or treated[ ]" due to "ill intent to cause and allow irreparable harms[.]" (Id.)

Plaintiff alleges he had surgery on his right shoulder on May 15, 2014, which involved detaching his bicep and tendon and reattachment in a different place, the cleaning of his rotator cuff, and the shaving of a bone in his shoulder. (Id.) Plaintiff maintains he had to be taken to the medical unit that night because his incision site would not stop bleeding. Plaintiff states the nurse cautioned him he had to eat in order to heal. (Id.) Plaintiff also states Dr. Steve Nicolou examined him the following day and explained to Plaintiff the importance of protein in the healing process. (Id.) Plaintiff asserts he informed Dr. Nicolou of his religious precepts, and Dr. Nicolou told him he could not make a medical order to change Plaintiff's diet because his religious precepts did not present a medical issue. Dr. Nicolou encouraged Plaintiff to eat because failing to do so would prevent healing and could expose Plaintiff to bacteria and infections. (Id. at p. 6.) Plaintiff states he still refused to eat the prohibited foods he was provided over the course of the following two to three (2-3) weeks' time, and he had lost 25 pounds from the time he arrived at Georgia State Prison.

Plaintiff contends he went to the medical unit on June 6, 2014, to have his bandage changed, and the nurse noticed the surgical wound was swollen and excessively bleeding. (Id.) Plaintiff maintains Dr. Nicolou explained his surgical wound was not going to heal if he did not eat. Plaintiff asserts Dr. Nicolou told him to accept the trays so that he could be medically treated for a lack of protein and nutrients, which Dr. Nicolou could not do if Plaintiff continued with his hunger strike. (Id.) Plaintiff asserts he agreed to accept the trays, but he still did not eat the prohibited items, even though his liver and other organs were deteriorating. (Id. at p. 7.) Plaintiff also asserts Dr. Nicolou prescribed a 90-day supply of Ensure to be taken twice a day. (Id. at p. 6.) Despite having Ensure and any permissible commissary items he was able to get from another inmate, Plaintiff asserts he was not receiving adequate nutrition. (Id. at p. 7.)

After conducting the requisite frivolity review, Plaintiff's Complaint, as amended, was served upon Defendants, in their individual capacities, on the basis of Plaintiff's allegations that Defendants violated his right to free exercise of his religion and failed to provide Plaintiff with nutritionally adequate food, in violation of the Eighth Amendment's proscription against cruel and unusual punishment.[2] Plaintiff's Complaint was also served based on Plaintiff's claims for injunctive relief under the RLUIPA. (Doc. 30.) Upon review of Plaintiff's Objections to the Magistrate Judge's Report and Recommendation, the Honorable B. Avant Edenfield, inter alia, dismissed Plaintiff's RLUIPA claims in their entirety, thus leaving Plaintiff's constitutional claims against Defendants in their individual capacities as the remaining claims. (Doc. 49.)

DISCUSSION

Defendants set forth several grounds for dismissal of Plaintiff's Complaint in their Motion. First, Defendants aver Plaintiff failed to exhaust his administrative remedies prior to the filing of his Complaint. Defendants note Plaintiff does not state a claim for relief under the First Amendment.[3] Defendants also note Plaintiff, as a "three striker" within the meaning of Section 1915(g), is not entitled to recover damages. (Doc. 43-1.) As set forth below, the undersigned agrees that Plaintiff failed to exhaust his administrative remedies prior to filing his Complaint, and his Complaint is due to be dismissed on this ground. Accordingly, the Court need not address Defendants' other arguments for dismissal.

I. Standard of Review

The determination of whether an inmate exhausted his available administrative remedies prior to filing a cause of action in federal court is a matter of abatement and should be raised in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). "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." Id. at 1374-75 (internal citation omitted). "Even though a failure-to-exhaust defense is non-jurisdictional, it is like" a jurisdictional defense because such a determination "ordinarily does not deal with the merits" of a particular cause of action. Id. at 1374 (internal punctuation and citation omitted). Further, a judge "may resolve factual questions" in instances where exhaustion of administrative remedies is a defense before the Court. ...


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