United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
before the Court are Defendants' Motions to Dismiss, or
in the Alternative, Motions for Summary
Judgment. (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.
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.)
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).
Defendants' Motion to Dismiss for Plaintiff's Failure
to Exhaust Bulloch County Jail's
Available Administrative Remedies Before Filing Suit
Standard of Review
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.
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.
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.”).
Legal Requirements for Exhaustion
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
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).
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).
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
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).
‘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.
Bulloch County Jail's Grievance Procedure
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.)
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.)
Whether Bulloch County Jail's Administrative Remedies
were Available to Plaintiff
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.
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