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Horne v. Nevil

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

March 7, 2017

SHANNON LABRANCE HORNE, Plaintiff,
v.
GARRETT NEVIL; KAYE DRIGGERS; and JOHN STATEN, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Presently before the Court are Defendants' Motions to Dismiss, or in the Alternative, Motions for Summary Judgment.[1] (Docs. 34, 36.) For the reasons and in the manner set forth below, I RECOMMEND that the Court DENY Defendants' Motions to Dismiss. In addition, I RECOMMEND that the Court GRANT IN PART and DENY IN PART Defendants' Nevil and Staten's Motion for Summary Judgment, (doc. 34). The Court should GRANT the Motion for Summary Judgment as to Defendant Nevil but DENY the portion of the Motion as to Defendant Staten. Furthermore, I RECOMMEND that the Court GRANT Defendant Driggers' Motion for Summary Judgment. (Doc. 36.) Finally, I RECOMMEND that the Court DENY Plaintiff leave to appeal in forma pauperis the Court's decision as to Defendant Driggers' and Defendant Nevil's Motions for Summary Judgment.

         BACKGROUND[2]

         Plaintiff, an inmate at Phillips State Prison in Buford, Georgia, filed this cause of action pursuant to 42 U.S.C. § 1983 alleging that Defendants were deliberately indifferent to his serious medical needs while he was housed at Bulloch County Jail (or “the Jail”). (Doc. 1.) Plaintiff filed this cause of action against Defendant Staten, sheriff of Bulloch County Jail, Defendant Nevil, Chairman of the Board of Bulloch County Commissioners, and Defendant Driggers, a nurse at the Jail. In his Complaint, Plaintiff, diagnosed with Human Immunodeficiency Virus (“HIV”), alleges that Defendants were deliberately indifferent to his medical needs when they refused to provide him with antiviral medication for approximately 25 days. (Id.) On January 6, 2015, Plaintiff was transferred from Calhoun State Prison to Bulloch County Jail to answer pending criminal charges. (Id. at ¶ 5.) Plaintiff states that, in addition to an intake evaluation noting his condition, nurses from Calhoun State Prison forwarded documents explaining Plaintiff's medical and dietary needs. (Id.) Plaintiff arrived at the Bulloch County Jail with enough antiviral medication to last approximately one month. (Id.) After he ran out of medication, Plaintiff filed three grievances asking for a refill. (Id. at p. 4.) In response, Nurse Mock told Plaintiff that his medication could not be reordered because it was expensive, and medical “had to get approval through Captain Staten and . . . the county is not going to approve this.” (Id. at p. 5.) Plaintiff alleges that staff at the Bulloch County Jail continued to deny him a refill for the rest of his stay there. As a result, Plaintiff alleges that his viral load increased, and he “started feeling bad and getting sick.” (Id. at p. 6.)

         On August 4, 2016, Defendants Nevil and Staten filed a joint Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, and Defendant Driggers separately filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. (Docs. 34, 36.) Plaintiff filed a Response to both Motions on August 30, 2016. (Doc. 42.) On December 15, 2016, the Court directed the parties to provide supplemental information regarding Plaintiff's exhaustion of available administrative remedies, including the administrative remedies and procedures available at Bulloch County Jail. (Doc. 47.) Defendant Driggers filed a supplemental memorandum on December 29, 2016, and Defendants Nevil and Staten filed a supplement on January 5, 2017. (Docs. 48, 49.) Plaintiff filed a Response, (doc. 50), and Defendants filed Replies, (docs. 52, 54).[3]

         DISCUSSION

         I. Defendants' Motion to Dismiss for Plaintiff's Failure to Exhaust Bulloch County Jail's Available Administrative Remedies Before Filing Suit

         A. 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. Id. In these instances, “it is proper for a judge to consider facts outside of the pleadings and to resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record.” Id. at 1376.

         In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit Court of Appeals set forth a “two-step process” that lower courts must employ when examining the issue of exhaustion of administrative remedies. First, the court is to take the plaintiff's version of the facts regarding exhaustion as true. Id. at 1082. If, even under the plaintiff's version of the facts, the plaintiff has not exhausted, the complaint must be dismissed. Id. However, if the parties' conflicting facts leave a dispute as to whether plaintiff has exhausted, the court need not accept all of plaintiff's facts as true. Id. Rather, “the court then proceeds to make specific findings in order to resolve the disputed factual issues[.]” Id. “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 1083. The Eleventh Circuit has held that a district court may consider materials outside of the pleadings and resolve factual disputes regarding exhaustion in conjunction with a Rule 12(b)(6) motion to dismiss so long as the factual disputes do not decide the merits of the case. See Bryant, 530 F.3d at 1376-77.

         Additionally, the United States Supreme Court has “held that the PLRA's [Prison Litigation Reform Act's] text suggests no limits on an inmate's obligation to exhaust- irrespective of any ‘special circumstances.' And that mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account.” Ross v. Blake, __U.S.__, 136 S.Ct. 1850, 1856 (June 6, 2016). However, the Supreme Court reiterated that a prisoner need only exhaust those remedies which were available to him. Id. at 1858 (“An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”).

         B. Legal Requirements for Exhaustion

         Where Congress explicitly mandates, prisoners seeking relief for alleged constitutional violations must first exhaust inmate grievance procedures before filing suit in federal court. See Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) of Title 42 of the United States Code states, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law . . . until such administrative remedies as are available are exhausted.” In Porter, the Supreme Court held that exhaustion of available administrative remedies is mandatory. Porter, 534 U.S. at 523; see also O'Brien v. United States, 137 F. App'x 295, 301-02 (11th Cir. 2005) (finding lack of exhaustion where prisoner “prematurely filed his civil complaint . . . and . . . ‘failed to heed that clear statutory command' requiring that his administrative remedies be exhausted before bringing suit”).

         The requirement that the exhaustion of remedies occur “first in an agency setting allows ‘the agency [to] develop the necessary factual background upon which decisions should be based' and giv[es] ‘the agency a chance to discover and correct its own errors.'” Green v. Sec'y for Dep't of Corr., 212 F. App'x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159 F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)). Furthermore, requiring exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference with the administration of prisons” and allows “corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).

         The Supreme Court has noted exhaustion must be “proper.” Id. at 92. “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91. In other words, an institution's requirements define what is considered exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007).

         Thus, under the law, prisoners must do more than simply initiate grievances; they must also appeal any denial of relief through all levels of review that comprise the administrative grievance process. Bryant, 530 F.3d at1378 (“To exhaust administrative remedies in accordance with the PLRA, prisoners must ‘properly take each step within the administrative process.'”) (quoting Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27, 2007) (finding that a plaintiff who is still awaiting a response from the warden regarding his grievance is still in the process of exhausting his administrative remedies).

         Furthermore, an inmate who files an untimely grievance or simply spurns the administrative process until it is no longer available fails to satisfy the exhaustion requirement of the PLRA. Johnson, 418 F.3d at 1157-59; Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (inmate's belief that administrative procedures are futile or needless does not excuse the exhaustion requirement). Additionally, “[t]he 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.” Smith v. Terry, 491 F. App'x 81, 83 (11th Cir. 2012).

         “However, ‘while [Section] 1997e(a) requires that a prisoner provide as much relevant information as he reasonably can in the administrative grievance process, it does not require more.'” Id. (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000)). The purpose of Section 1997e(a) is not that “fact-intensive litigation” result over whether every fact relevant to the cause of action was included in the grievance. Hooks v. Rich, CV605-65, 2006 WL 565909, at *5 (S.D. Ga. Mar. 7, 2006) (internal citation omitted). “‘As long as the basic purposes of exhaustion are fulfilled, there does not appear to be any reason to require a prisoner plaintiff to present fully developed legal and factual claims at the administrative level.'” Id. (quoting Irvin v. Zamora, 161 F.Supp.2d 1125, 1135 (S.D. Cal. 2001)). Rather, Section 1997e(a) is intended to force inmates to give authorities a chance to correct constitutional violations before resorting to federal suit and to prevent patently frivolous lawsuits. Id.

         C. Bulloch County Jail's Grievance Procedure

         Through several affidavits, Defendant Staten asserts that Jail inmates may file grievances through a kiosk located within the Jail dormitory. (Docs. 34-1, 49.) When inmates are first detained at Bulloch County Jail, they are provided an individual, personal identification number to access the kiosk, as well as an explanation on how and for what purpose the kiosk is used. (Doc. 49, pp. 1-2.) Inmates may use the kiosk to communicate with Jail officers and submit grievances and other requests for Jail personnel, including requests for information, daily necessities, and medical services. Relevantly, this kiosk contains information regarding the grievance and appeal procedure. (Doc. 34-1, p. 15.) After submitting a grievance through the kiosk, decisions are rendered and conveyed to the inmates via the kiosk within three to five days. (Id.) According to Defendant Staten, inmates may appeal any adverse decision within 72 hours through the same kiosk. (Id.)

         Defendants provide a copy of the Inmate Handbook, which is provided to each inmate upon entry to the Jail. (Doc. 49, pp. 19-20.) The Handbook provides instructions for a paper grievance process. Inmates are directed to fill out an inmate grievance form, which “may take a week or longer to be processed.” (Id. at p. 19.) These forms may be obtained from and returned to any “mail persons” or officer. (Id.) However, the Handbook does not mention any appeal process. (Id.)

         D. Whether Bulloch County Jail's Administrative Remedies were Available to Plaintiff

         There is no dispute that Plaintiff filed initial grievances regarding the refusal of his medication. Indeed, Defendants attach numerous requests that Plaintiff submitted through the kiosk system where he complained about his medical issues and requested medication to treat his HIV. (Doc. 49, pp. 22-27 (“I AM WRITING IN REGARD OF SOME MEDICINE THAT I REALLY NEED. THE MEDICINE IS ATRIPLA AND ITS [sic] FOR HIV AND I HAVE BEEN OUT FOR 17 DAYS NOW. I HAV[E] WRITTEN TWO PREVIOUS GREIVANCES [sic] ABOUT THIS MATTER. I WAS TOLD BY OPR TO WRITE MEDICAL ABOUT ANY QUESTIONS I HAVE. . . .”).) However, Defendants contend that Plaintiff failed to appeal the denial of these grievances. Plaintiff concedes that he did not file an appeal. Ordinarily, this concession would be dispositive as Plaintiff was required to exhaust each step of the Jail's grievance procedure. Bryant, 530 F.3d at 1378. However, Plaintiff was only required to exhaust those steps of the process which were actually available to him. Despite this Court's request for additional information, (doc. 47, pp. 4-5), Defendants have failed to show that the Jail's purported appeal process was available to Plaintiff.

         Though the Supreme Court rejected a “special circumstances” exception to exhaustion in Ross, it reiterated that a prisoner need only exhaust those remedies which were available to him. __U.S. at__, 136 S.Ct. at 1858 (“An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”). The Court recognized “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Id. at 1859. First, the Court stated that, in some instances, the administrative procedure “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. Thus, if the administrative procedure lacks authority or if the officials with apparent authority “decline ever to exercise it, ” the inmate has no obligation to exhaust the remedy. Id. Second, when administrative remedies are so confusing that they are “essentially ‘unknowable, '” exhaustion is not required. Id. at 1859-60 (citing Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007), and Turner, 541 F.3d at 1084). Lastly, exhaustion is not required “when prison administrators thwart ...


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