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Simmons v. Williams

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

August 9, 2017

ANTONIO SIMMONS, Plaintiff,
v.
WARDEN STANLEY WILLIAMS; JAMES DEAL; WAYNE JOHNSON; ERIC SMOKES; JOHNNY DAVIS; RONNIE BYNUM; CURTIS WHITFIELD; ANTONIO ABALOS; JOHNATHAN SANTIAGO; ZECHARIAH JONES; PAUL GRIFFIN; and ANDREW MCFARLANE, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Plaintiff, who is currently housed at Smith State Prison in Glennville, Georgia, filed this cause of action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, et seq., contesting certain conditions of his confinement. Defendants filed a Motion to Dismiss, (doc. 41), to which Plaintiff filed a Response, (doc. 54). In addition, Plaintiff filed a Motion for Default Judgment, (doc. 46), four Motions for Judgment as a Matter of Law, (docs. 71, 72, 73, 75), and a Motion for Injunction, (doc. 83).

         The Court should DENY Plaintiff's Motion for Default Judgment, (doc. 46), DENY Plaintiff's Motions for Judgment as a Matter of Law, (docs. 71, 72, 73, 75), and DENY Plaintiff's Motion for Injunction, (doc. 83). Further, for the reasons which follow, the Court should GRANT in part and DENY in part Defendants' Motion to Dismiss, (doc. 41). Specifically, I RECOMMEND the following:

• The Court should GRANT Defendants' Motion to Dismiss Plaintiff's retaliation and forced shaving claims. Due to Plaintiff's failure to exhaust his administrative remedies as to those claims, the Court should DISMISS those claims WITHOUT PREJUDICE.
• The Court should GRANT Defendant's Motion to Dismiss Plaintiff's Procedural Due Process Claims, and DISMISS those claims for failure to state a claim.
• The Court should GRANT IN PART AND DENY IN PART Defendants' Motion to Dismiss Plaintiff's RLUIPA claims based on the exposure of Plaintiff's awrah. The Court should DISMISS Plaintiff's RLUIPA claims for monetary relief, but his RLUIPA claims for injunctive and declaratory relief based on the exposure of his awrah should remain pending against Defendants Abalos, Davis, Griffin, Santiago, and Whitfield.
• The Court should GRANT IN PART AND DENY IN PART Defendants' Motion to Dismiss Plaintiff's First Amendment claims based on the exposure of his awrah. The Court should DISMISS Plaintiff's First Amendment claims for monetary relief based on the exposure of his awrah, but his First Amendment claims based on the exposure of his awrah for injunctive and declaratory relief should remain pending against Defendants Abalos, Davis, Griffin, Santiago, and Whitfield.
• The Court should GRANT IN PART AND DENY IN PART Defendants' Motion to Dismiss Plaintiff's Fourth Amendment claims. The Court should DISMISS Plaintiff's Fourth Amendment claims for monetary relief, but Plaintiff's Fourth Amendment claims for injunctive and declaratory relief against Defendants Abalos, Whitfield, and Santiago should remain pending.
• The Court should DENY Defendants' Motion to Dismiss Plaintiff's Eighth Amendment excessive force claims. Plaintiff's excessive force claim based on the use of pepper spray should remain pending against Defendants Abalos and Whitfield. Plaintiff's excessive force claim based on the use of a “chicken wing maneuver” should remain pending against Abalos, Whitfield, and Santiago.
• The Court should DENY Defendants' Motion to Dismiss Plaintiff's Eighth Amendment failure to intervene claims. Plaintiff's claims for failure to intervene during the use of pepper spray and during the use of a “chicken wing maneuver” should remain pending against Defendants Williams, Deal, Johnson, McFarlane, Smokes, Davis, and Griffin. Plaintiff's failure to intervene claim during the use of pepper spray should also remain pending against Defendant Santiago.
• The Court should DENY Defendants' Motion to Dismiss Plaintiff's Eighth Amendment deliberate indifference to medical needs claims. These claims should remain pending against Defendants Whitfield, Santiago, Griffin, Abalos, Williams, Deal, Smokes, Johnson, and McFarlane.
• The Court should GRANT Defendants' Motion to Dismiss Plaintiff's Eighth Amendment conditions of confinement claims and DISMISS those claims for failure to state a claim.
• The Court should DENY Defendants' Motion to Dismiss Plaintiff's supervisory liability claims as Plaintiff does not base his claims on Defendants' mere supervisory position.

         BACKGROUND[1]

         Plaintiff contends that Defendants Whitfield, Santiago, Abalos, Griffin, Williams, Deal, Johnson, McFarlane, and Smokes subjected him to two instances of excessive force on April 12, 2013, during a shakedown of his dormitory, which led to a spate of additional constitutional violations. Specifically, Plaintiff asserts that Defendants Whitfield and Santiago led Correctional Emergency Response Team (“CERT”) officers[2] to his cell while he and his cellmate were reading the Qu'ran. (Doc. 1, p. 6.) Defendant Santiago then ordered Plaintiff to submit to a body cavity search, which required Plaintiff to remove his clothes, bend over at the waist, and spread his buttocks so officers could visually inspect his anal cavity. (Id.) Plaintiff contends he informed Defendant Santiago that his religious beliefs prohibited him from being naked in the presence of another man and he, therefore, could not comply with the search. (Id. at p. 7.) Plaintiff requested that Defendants allow him to comply in an alternate manner. (Id.)

         Following Plaintiff's request, Defendant Whitfield agreed to conduct the search in a manner comporting with Plaintiff's beliefs. (Id. at p. 9.) Shortly thereafter, however, Defendant Whitfield directed Defendant Abalos to spray Plaintiff with pepper spray. (Id. at p. 10.) After Defendant Abalos sprayed Plaintiff, Defendants left Plaintiff in his cell for thirty to forty-five minutes. During this period of time, Plaintiff could not breathe and intermittently lost consciousness. Plaintiff avers that Defendants ignored his requests for medical attention during this time. After this time passed, the CERT team returned to Plaintiff's cell and threatened to spray him again if he did not comply with the body cavity search. (Id. at pp. 11-12.) Plaintiff then submitted to a body cavity search “under force[, ] [ ] threat, duress[, ] and coercion.” (Id. at p. 12.) Plaintiff alleges Defendants Williams, Deal, Johnson, McFarlane, and Smokes watched these events unfold but did nothing. (Id.)

         After Defendant Abalos conducted the body cavity search, unnamed officers placed Plaintiff in a shower without running water for ten to fifteen minutes. (Id. at p. 13.) Plaintiff was “left inside [the] shower burning and unable to see.” (Id.) While in the shower, he “pleaded for the help and assistance of Warden Williams, James Deal, and Captain McFarlane” but his “[pleas and cries] went unanswered.” (Id.) CERT team officers later placed Plaintiff in a functional shower, but the water temperature was too hot and intensified Plaintiff's burning and pain. (Id.) When Plaintiff called to Defendant Williams from the shower in pain, Defendant Williams replied that Plaintiff should have complied with orders. (Id.) Plaintiff asserts Defendants Williams, Deal, and McFarlane knew he was in pain and in need of medical attention but did nothing to help him.

         After his shower, the CERT team attempted to escort Plaintiff to the medical unit. However, Plaintiff fainted during this escort. (Id. at p. 14.) Defendants Abalos and Santiago then dragged Plaintiff to the medical unit using the “chicken wing” maneuver, which dislocated Plaintiff's shoulder. While being dragged to the shower and to the medical unit, Plaintiff's “awrah”[3]-which he describes as the area between his waist and knees-was exposed because prison staff provided him only one pair of white boxer shorts to wear. (Id. at pp. 12, 14.) Upon his arrival to the medical unit, medical staff provided no medical treatment to Plaintiff. (Id. at p. 15.) Following these events, Plaintiff was not allowed to clean or sanitize his cell for one to two weeks, even though the cell, his bedding, and his belongings were covered in pepper spray. As a result, Plaintiff's skin broke out in rashes and hives. (Id. at p. 16.)

         Plaintiff alleges that, shortly thereafter, Defendants launched a campaign of retaliation against him. First, Defendant Abalos served a false disciplinary report upon Plaintiff immediately following Plaintiff's body cavity search. While serving this disciplinary report on Plaintiff, Defendant Abalos reminded Plaintiff that he had been told to withdraw his previously-filed grievances. (Id.) Following this encounter, Plaintiff called the Prison Rape Elimination Act (“PREA”) hotline and reported the alleged sexual assault and misconduct by the officers during his body cavity search. (Id.) Plaintiff asserts that, after calling the PREA hotline, he filed another grievance pertaining to those events on April 15, 2013.

         Two days later, Defendant Johnson threatened to file disciplinary reports against Plaintiff in response to Plaintiff's utilization of the PREA hotline and for filing another grievance. (Id. at p. 17.) Plaintiff alleges he then received another false disciplinary report from Defendant Johnson. Plaintiff contends that, during the disciplinary hearings on these two disciplinary reports, Defendant Bynum denied his rights to call witnesses and to present evidence. Plaintiff alleges Defendant Bynum then imposed severe and unconstitutional punishment on him for the purpose of retaliation, including nine (9) months' outdoor recreation restriction and 450 days' commissary, telephone, and package restrictions. According to Plaintiff, the sanctions he received “resulted in conditions of confinement that are much worse than what is normal for prisoners.” (Id. at p. 19.)

         Plaintiff also sets forth related events which allegedly occurred from June 13, 2013, through April 3, 2014. Plaintiff characterizes these events as another campaign of retaliation by Defendants in response to his filing of grievances. Specifically, Plaintiff claims Defendants Williams and Johnson approached him on June 14, 2013, stated that the grievances Plaintiff filed had gotten Plaintiff “in trouble, ” and warned that Plaintiff should stop if he “knew what was best” for him. (Id. at p. 21.) Plaintiff also states Defendants Abalos and Jones “harassed and threatened” him while he was in the intake area on June 19, 2013. Plaintiff then alleges Defendants Williams and Deal threatened him on July 5, 2013, based on the grievances and other paperwork Plaintiff had filed. According to Plaintiff, Defendants Williams and Smokes then came to his cell and threatened him on July 30, 2013. Plaintiff contends Defendant Williams told Plaintiff he would have the CERT officers (including Defendants Whitfield, Santiago, Abalos, Griffin, and Jones) hurt him and that Defendant Williams was trying to find a “justifiable” way to kill Plaintiff. (Id.)

         As laid out above, Plaintiff maintains Defendants harassed and threatened him over the course of several months, yet failed to follow through on their threats. (Id. at pp. 22-25.) However, Plaintiff claims Defendants took several retaliatory actions against him following these initial threats. First, Defendants forced him to shave, in violation of his religious beliefs. Second, Defendant Davis performed a “shakedown” of his cell on November 4, 2013, and took a portion of Plaintiff's property. Defendant Davis forced Plaintiff to shave on this same date and “said something about the papers [he] filed.” (Id. at p. 23.) Finally, Plaintiff claims he was removed from his cell on February 6, 2014, and placed in a “hard cell” for no apparent reason. According to Plaintiff, a hard cell is a “punishment cell[, ]” and his placement in this cell was retaliatory. (Id. at p. 24.)

         On April 29, 2015, I issued a Report and Recommendation recommending that the Court dismiss the following claims: official capacity claims for monetary relief, sexual abuse claims, stand-alone verbal threat claims, substantive due process claims, deprivation of property claims, and RLUIPA claims for monetary damages. (Doc. 9.) However, I found that Plaintiff stated claims for violation of his rights to procedural due process, non-monetary RLUIPA claims, First Amendment free exercise and retaliation claims, excessive force claims, supervisory liability claims, and Fourth Amendment claims. Id. Accordingly, I ordered that the Complaint be served on Defendants Bynum, Whitfield, Abalos, Santiago, Williams, Smokes, Griffin, Deal, Johnson, Davis, Jones, and McFarlane. Id.

         DISCUSSION

         Defendants set forth several grounds for dismissal of Plaintiff's Complaint. First, Defendants contend Plaintiff failed to exhaust his retaliation claims and his Eighth Amendment claims regarding the forced shaving of his beard. (Doc. 41-1, p. 8.) Defendants further argue that Plaintiff fails to set forth a viable procedural due process claim, RLUIPA claim, First Amendment free exercise claim, Fourth Amendment claim, retaliation claim, supervisory liability claim, and Eighth Amendment excessive force, failure to intervene, and deliberate indifference claims. (Id. at pp. 13-31.) Finally, Defendants maintain they are entitled to qualified immunity and that Plaintiff is not entitled to injunctive relief. (Id. at pp. 35-37.)

         I. Exhaustion of Administrative Remedies

         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.

         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 United States 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”). Additionally, the Supreme Court recently “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, 1856-57 (June 6, 2016).

         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).

         C. The Georgia Department of Corrections' Grievance Procedure

         The Georgia Department of Corrections' grievance procedure is set forth in Standard Operating Procedure (“SOP”) IIB05-0001. This SOP no longer requires an inmate to attempt to informally resolve his complaint before filing a formal grievance. (Doc. 41-3, p. 6.) An inmate can file, with a few exceptions, “a grievance about any condition, policy, procedure, or action or lack thereof that affects the [inmate] personally.” (Id.) An inmate must submit a grievance form “no later than 10 calendar days from the date the [inmate] knew, or should have known, of the facts giving rise to the grievance.” (Id. at p. 9.) The warden has a period of forty (40) calendar days from the date the inmate gave his grievance to the counselor to respond. An extension of ten (10) calendar days can be granted once, provided the inmate is advised in writing of the extension before the original 40 calendar days have expired. (Id. at p. 11.) An inmate can file an appeal with the Commissioner's Office in the following instances: if the grievance coordinator rejects his original grievance; after the warden responds to the original grievance; or the time allowed for the warden's decision has expired. The inmate has seven (7) calendar days in which to file this appeal. (Id. at p. 13.) The Commissioner has 100 calendar days after receipt to render a decision. (Id. at p. 14.) Time limits may be waived for good cause. (Id. at p. 13.)

         With these standards and procedures in mind, the Court now addresses Defendants' arguments that Plaintiff did not exhaust his administrative remedies as to his claims against Defendants.

         D. Assessment of Plaintiff's Exhaustion

         Defendants note Plaintiff filed multiple grievances during the time in which his retaliation claims and forced shaving claims arose, prior to filing this cause of action on October 15, 2014. (Doc. 41-2, pp. 6-12.) Nevertheless, Defendants contend Plaintiff did not satisfy his obligation to exhaust administrative remedies prior to filing suit because he failed to follow proper grievance procedures. (Id. at pp. 8-12.) Specifically, Defendants aver that, as to his retaliation claims, Plaintiff: (1) filed untimely grievances; (2) improperly attempted to grieve more than one issue per grievance; and (3) asserted non-grievable issues. As to Plaintiff's forced shaving claims, Defendants argue that Plaintiff's grievance was untimely filed and did not refer to either of the two instances alleged in Plaintiff's Complaint. (Doc. 41-1, pp. 8-12.) Accordingly, Defendants contend that the Court should dismiss Plaintiff's retaliation claims and forced shaving claims for his failure to properly exhaust administrative remedies prior to filing suit. (Id. at p. 11.)

         Plaintiff responds that he exhausted all administrative remedies available to him.[4] To the extent Plaintiff concedes he did not complete each requisite step in the grievance procedure, Plaintiff avers he was prevented from doing so by the policies contained within the Georgia Department of Corrections' (“GDC”) SOP. Specifically, Plaintiff contends that, per the SOP, he was permitted to lodge only two grievances at a time-each of which could contain only one issue. As Plaintiff has alleged at least ten claims pertaining to the events of April 12, 2013, he argues that he could not fully exhaust each individual claim in the manner contemplated by the SOP. Accordingly, Plaintiff argues that he exhausted all the administrative remedies available to him, given the constraints of the GDC's SOP. In the alternative, Plaintiff alleges that: (1) Smith State Prison's grievance procedure was “not made known” to him; and (2) Defendants submitted “incomplete and misleading” records regarding his grievance history to create the impression that he failed to properly exhaust his administrative remedies.

         Defendants respond that Plaintiff was aware of the grievance procedure in place at Smith State Prison when his claims arose and that they have accurately presented his grievance filing history to the Court. (Doc. 62, pp. 3-4.) As to Plaintiff's claim that the policies within the grievance procedure prevented him from timely exhausting each of his claims, Defendants argue that Plaintiff has no constitutional right to a prison grievance system and, therefore, has improperly attacked the grievance process. (Doc. 62, p. 3.) Defendants maintain that, regardless of his characterization of the grievance procedure, Plaintiff was required to adhere to that procedure to properly exhaust his claims.

         (1) Plaintiff's Grievances

         As of July 3, 2015, Plaintiff had filed thirty-three (33) grievances at Smith State Prison. (Doc. 41-2, p. 6; Doc. 54-1, pp. 2, 5.) It appears that four (4) of these grievances address Plaintiff's retaliation and forced shaving claims. (Doc. 41-8.) Plaintiff filed the first of those grievances, Grievance No. 148811, on May 6, 2013. (Id. at p. 2.) That grievance was rejected because Plaintiff “grieved eleven issues that . . . happened over the course of 83 days, ” and thus, failed to follow proper grievance procedure, which required Plaintiff to grieve a single issue per grievance and within ten days of the grievable event. (Id. at p. 3.) The second grievance, Grievance No. 149613, was rejected because Plaintiff had two pending grievances in addition to Grievance No. 149613, in violation of the SOP. (Doc. 41-7, p. 3.) The third grievance, Grievance No. 151708, was rejected because Plaintiff presented more than one issue in his grievance, (doc. 41-8, p. 3), and the fourth grievance, Grievance No. 162747, was rejected as untimely filed, (doc. 41-16, p. 2).

         (2) Whether Plaintiff's Grievances Exhausted his Retaliation and Forced Shaving Claims

         As discussed above, Defendants argue that Plaintiff failed to properly exhaust his retaliation and forced shaving claims because the grievances addressing those claims did not comply with the GDC's grievance procedure. (Doc. 41-1, pp. 8-12.) Plaintiff does not dispute that he failed to adhere to proper grievance procedures. However, Plaintiff contends that he should be excused from doing so because, in his view, the grievance procedure is unfair and unconstitutional.

         At the time of the events giving rise to Plaintiff's Complaint, Smith State Prison required that inmates: (1) submit a grievance within ten calendar days from the date the [inmate] knew, or should have known, of the facts giving rise to the grievance; (2) present only one issue per grievance; and (3) have no more than two pending grievances at a time. (Doc. 41-3, pp. 7, 9). Plaintiff's Grievances Nos. 148811 and 162747 were rejected for being untimely filed.[5]Grievances No. 151708 was rejected for grieving more than one issue per grievance. Finally, Grievance No. 149613 was rejected because Plaintiff had two grievances pending at the time of submission. In Woodford, the Supreme Court held that, “[i]n order to properly exhaust his claims, a prisoner must . . . comply with any administrative ‘deadlines and other critical procedural rules' along the way.” See Holley v. Smith, No. CV 110-108, 2010 WL 5671758, at *2 (S.D. Ga. Dec. 30, 2010) (citing Woodford, 548 U.S. at 90). “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.” Id. (citing Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005)). “Put plainly, ‘a Georgia prisoner must timely meet the deadlines .. . of Georgia's administrative grievance procedures.”' Id. (citing Salas v. Tillman, 162 F. App'x 918, 920 (11th Cir. 2006) (quoting Johnson, 418 F.3d at 1155).

         Accordingly, even accepting as true Plaintiff's claim that the grievance procedure is unfair, he still failed to adhere to the applicable procedures. Therefore, under Turner step one, Plaintiff failed to exhaust his administrative remedies as to his retaliation and forced shaving claims. Even if the Court were required to proceed to the second Turner step, the Defendants' account that Plaintiff failed to properly exhaust the administrative remedies as to Defendants' retaliation and forced shaving claims is more credible than Plaintiff's conclusory assertion to the contrary. However, as discussed below, Plaintiff argues it was “impossible” to properly exhaust his retaliation and forced shaving claims under the applicable SOP. Accordingly, Plaintiff maintains that administrative remedies were unavailable to him.

         (3) Whether Administrative Remedies Were Available to Plaintiff at the Time He Filed Suit

         Construing Plaintiff's arguments liberally, he contends that he was unable to exhaust administrative remedies due to the confines built into the SOP. Defendants maintain that Plaintiff has no constitutional right to a grievance procedure and that his inability to exhaust each of his claims simultaneously under the SOP is, therefore, inconsequential.

         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. Ross, __ U.S. __ 136 S.Ct. 1850, 1856-57 (June 6, 2016) (“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. 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., __U.S. __, 2016 WL 3128839, at *8 (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 inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. However, the Supreme Court recognized that, “[g]iven prisons' own incentives to maintain functioning remedial processes, we expect that these circumstances will not often arise.” Id., __ U.S. __, 2016 WL 3128839, at *7.

         As discussed above, Plaintiff contends that the administrative remedies officially on the books at Smith State Prison were not made available to him. Specifically, Plaintiff avers it was impossible to timely exhaust each of his claims prior to filing suit. SOP IIB05-0001 provides that an inmate may only have two active grievances pending at one time and that he may present only one issue per grievance. (Doc. 41-3.) For example, if an inmate has more than two active grievances, the procedure states that the inmate must drop one of the outstanding active grievances being processed in order to file a new grievance. (Id.) There are three exceptions to the rule that an inmate may only have two active pending grievances: (1) the additional grievance is filed as an emergency grievance and is determined to be an emergency grievance by the Grievance Coordinator; (2) the additional grievance involves allegations of physical abuse with significant injury to the inmate or sexual assault; or (3) the additional grievance involves an important issue of prison security or administration, such as a serious threat to life, health, or safety of any person. (Id.)

         Several courts have found that similar restrictions do not excuse an inmate from exhausting the grievance procedure before filing suit. Howard v. Smith, No. CV606-062, 2008 WL 816685, at *5 (S.D. Ga. Feb. 28, 2008), report and recommendation adopted in pertinent part, rejected in part, No. CV606-062, 2008 WL 816684 (S.D. Ga. Mar. 26, 2008) (rejecting inmate plaintiff's argument that he could not exhaust grievance procedure due to former SOP IIB05-0001's limit on grievances and noting that “inmates are given the opportunity to prioritize their grievances by dismissing a pending grievance to allow the resolution of another grievance.”); Cummings v. Crumb, 347 F. App'x 725, 727 (3d Cir. 2009) (being on grievance restriction did not prevent inmate from exhausting his remedies); Eckard v. Glebe, No. C14-5898 RJB-KLS, 2015 WL 6507233, at *8 (W.D. Wash. Oct. 5, 2015), report and recommendation adopted, No. C14-5898 RJB-KLS, 2015 WL 6507519 (W.D. Wash. Oct. 27, 2015) (“Because [Plaintiff] did not abide by the limitations [the prison] places on the number of grievances that an offender may have active at any one time, he did not properly exhaust his claim[.]”); West v. Endicott, No. 06-C-763, 2008 WL 90622, at *8 (E.D. Wis. Mar. 31, 2008) (prison's limit on number of grievances “does not prohibit the filing of any complaints so much as it requires the inmate to prioritize his claims . . . [t]he rule is not, in other words, an excuse for failure to exhaust.”); Ciarpaglini v. Gorske, 07-C-461-S, 2007 WL 5614117 (W.D. Wis. Oct. 4, 2007) (dismissing prisoner lawsuit for exceeding limit on number of grievances).

         The reasoning behind these decisions applies with equal force in this case, where Plaintiff alleges that he could not timely present his claims simultaneously to prison administration under the rules of the SOP. Moreover, Plaintiff could have taken advantage of certain exceptions to the grievance restriction rule. For example, Plaintiff could have sought a waiver of the ten-day time limit for good cause in order to timely present each of his claims. (Doc. 41-3, p. 9.) Alternatively, Plaintiff could have dropped one of his other grievances. Finally, Plaintiff could have asked that prison authorities consider his additional grievances because they involved important issues of prison security or administration. Plaintiff could not simply disregard the grievance process and then argue, after the fact, that any grievance he filed would have been rejected. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (“[T]he exhaustion requirement cannot be waived based upon the prisoner's belief that pursuing administrative procedures would be futile.”). Therefore, SOP IIB05-0001's grievance limit and restriction of one claim per grievance did not make the prison's grievance process unavailable to Plaintiff.

         Accordingly, even assuming as true Plaintiff's allegation that he could not timely exhaust each of his claims simultaneously under the applicable SOP, he fails to establish that the administrative remedies at Smith State Prison were not capable of use. Again, an inmate must comply with the institution's procedural rules in order to effectuate proper exhaustion. Jones, 549 U.S. at 218; Woodford, 541 U.S. at 90-92. It is not this Court's place to second guess a prison's grievance rules, and an inmate cannot create unavailability by failing to abide by those rules.

         In sum, under the first Turner step, Plaintiff does not establish that prison officials were “unable or consistently unwilling to provide any relief to aggrieved inmates, ” that the grievance process at Smith State Prison was so complicated that it was “essentially unknowable, ” or that prison officials “thwart[ed] inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, __U.S. __, 136 S.Ct. at 1859-60. Thus, even if the hurdles to exhaustion existed as Plaintiff claims, they did not rise to the height of unavailability that the Supreme Court contemplated in Ross.

         Plaintiff's claims of unavailability wither even more readily when subjected to the crucible of examination the second Turner step requires. Again, under that step, the Court resolves any disputed factual issues and then assesses, under those findings, whether the prisoner has exhausted his available administrative remedies. Turner, 541 F.3d 1083. Having reviewed all of Plaintiff's and Defendants' filings, the Court finds Defendants' account of the availability of administrative remedies more credible than Plaintiff's.

         In support of their Motion to Dismiss, Defendants offer the affidavit of Smith State Prison Grievance Coordinator Eyvette Cook, (doc. 41-2), along with Plaintiff's grievance filing history and copies of Plaintiff's grievances. Grievance Coordinator Cook states that, upon admission to Smith State Prison, all prisoners receive an oral explanation of the grievance process and an outline of the grievance process. (Id. at p. 3.) She further testifies that all inmates may review the entire grievance SOP, which is located in the prison's law library. (Id.) This account, which the Court finds to be more credible than Plaintiff's account, contradicts Plaintiff's arguments that “the GDC grievance procedure was ‘not made known' [to Plaintiff], [and] was not published for [him].” (Doc. 54-1, p. 5.) Therefore, to the extent Plaintiff contends that he did not know he could request a waiver of the ten-day time restriction for good cause; that he could have dropped one of his other pending grievances; or that he could have asked for his additional grievances to be considered because they involved an important issue of prison security or administration, those contentions are contradicted by the ready availability of the SOP for his review. In addition, Plaintiff's frequent submission of grievances contradicts his claim that he did not know how to use the grievance system. (Doc. 41-4.)

         Similarly, Plaintiff's grievance history belies any contention that prison officials thwarted his attempts to file grievances or otherwise made the grievance process unavailable to him. (Doc. 41-4.) As of July 3, 2015, Plaintiff had filed over thirty (30) grievances. (Doc. 41-2, p. 6; Doc. 54-1, pp. 2, 5.) Pertinently, the grievance procedure at issue, SOP IIB05-0001, has been in effect since December 10, 2012. (Doc. 41-3, p. 1); see also Velez v. Chatman, No. CV614-074, 2015 WL 649128, at *4 (S.D. Ga. Feb. 13, 2015) (“This SOP was amended with an effective date of December 10, 2012.”). Given Plaintiff's extensive grievance history and Cook's affidavit, Plaintiff's argument that he was somehow ignorant of Smith State Prison's grievance procedure or that he was prevented from using it is not credible. Wright, 562 F. App'x at 776 (“[I]t was reasonable for the district court to find that [plaintiff's] purported ignorance of the five-day grievance filing period was not credible, given [plaintiff's] significant prior experiences filing grievances and lawsuits in federal court, as well as the jail official's affidavit stating that each [county] inmate is given a copy of the Inmate Handbook spelling out the grievance procedure.”)

         Finally, the record contradicts Plaintiff's claim that Defendants submitted “incomplete and misleading” records regarding his grievance history to create the impression that he failed to properly exhaust his claims. (Doc. 54-1, p. 7.) First, Defendants only submitted as exhibits grievances dating after April 12, 2013, because Plaintiff's claims arose after that date. (Doc. 62, p. 3.) Therefore, Plaintiff's reference to Grievance No. 145943, filed on March 20, 2013, and addressing his prior assignment to administrative segregation, is not relevant to the claims presented in this case. Defendants' failure to submit a copy of that grievance or to discuss this grievance was not misleading. Furthermore, the two additional exhibits submitted by Plaintiff to support his argument that Defendants misrepresented his grievance-filing history-copies of Grievance Nos. 151708 and 162747-were addressed by Eyvette Cook in her affidavit. Moreover, all three grievances referenced by Plaintiff were included in the printout Defendants submitted to the Court containing Plaintiff's grievance filing history, (doc. 41-4). Accordingly, Plaintiff's claim that Defendants misled this Court by failing to accurately present his grievance filing history is without merit.

         In sum, Plaintiff filed this lawsuit without properly alerting prison officials to the facts underlying his retaliation and forced shaving claims. An inmate must do more to resolve his dispute within the literal walls, or at least the figurative walls, of the prison system before seeking relief in the halls of the courthouse. Consequently, the Court should GRANT this portion of Defendants' Motion and DISMISS Plaintiff's retaliation and forced shaving claims against all Defendants without prejudice.

         II. Whether Plaintiff States Plausible Claims for Relief Against Defendants

         Plaintiff asserts numerous claims against Defendants which implicate his rights under RLUIPA, as well as his constitutional rights pursuant to the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. Defendants contend that Plaintiff has failed to state any claims upon which relief may be granted.

         A. Standard of review

         Under a Rule 12(b)(6) motion to dismiss, a court must “accept[ ] the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff.” Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). “A complaint must state a facially plausible claim for relief, and ‘[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” does not suffice. Ashcroft, 556 U.S. at 678.

         “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal punctuation and citation omitted). While a court must accept all factual allegations in a complaint as true, this tenet “is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are insufficient. Id.

         B. Procedural Due Process Claim

         In this action, Plaintiff contends Defendant Bynum violated his right to procedural due process during a disciplinary hearing.[6] Specifically, Plaintiff alleges that Defendant Bynum did not allow Plaintiff to speak at his hearing or to call witnesses, refused to view an evidentiary video, and imposed unconstitutional sanctions. Following the hearing, Plaintiff lost nine (9) months' outdoor recreation time, 450 days' commissary, telephone, and package restrictions, and access to rehabilitative programs while confined to administrative segregation. Plaintiff contends he has a protected liberty interest in outdoor recreation time, access to rehabilitative programs, and recreation, commissary, and phone privileges. He maintains he was, therefore, entitled to proper process prior to the removal of those privileges.[7]

         In the Motion to Dismiss, Defendant Bynum first argues that due process did not attach to the disciplinary proceeding at issue because that proceeding did not affect the length of Plaintiff's prison sentence.[8] (Doc. 41, p. 14.) In the alternative, Defendant Bynum argues that recreation time, rehabilitative programs, and commissary, telephone, and package privileges are not protected liberty interests under the Constitution and, therefore, Plaintiff was not entitled to process prior to the deprivation of those privileges. (Doc. 41-1, p. 14 (citing West v. Higgins, 346 F. App'x 423, 426 (11th Cir. 2009).) Finally, Defendant Bynum argues that, even if Plaintiff has alleged he had a protected liberty interest, Plaintiff's appeal of Defendant Bynum's disciplinary hearing decision served as adequate process. (Id. at p. 15.)

         An inmate states a cognizable claim for the deprivation of his procedural due process rights under the Fourteenth Amendment when he alleges the deprivation of a constitutionally protected liberty or property interest, state action, and constitutionally inadequate process. Shaarbay v. Palm Beach Cty. Jail, 350 F. App'x 359, 361 (11th Cir. 2009) (citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Rather, “a disciplinary proceeding, whose outcome will ‘impose[ ] atypical and significant hardship on the inmate' must ensure the following due process rights: (1) advance written notice of the claimed violation, (2) a written statement by the fact finders as to the evidence relied upon and the reasons for the disciplinary action taken, and (3) an opportunity to call witnesses and present documentary evidence in his defense.” Asad v. Crosby, 158 F. App'x 166, 173 (11th Cir. 2005) (citing Wolff, 418 U.S. at 563-67).

         “Whether an inmate has a protected liberty interest that would entitle him to due process protections ‘is often a difficult determination in the context of a prison, because prisoners have already been deprived of their liberty in the ordinary sense of the term.'” Jacoby v. Baldwin Cty., 835 F.3d 1338, 1346 (11th Cir. 2016) (quoting Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999)). However, in Sandin v. Conner, 515 U.S. 472 (1995), “the Supreme Court gave us the test for determining whether a convicted inmate has a protected liberty interest.” Id. “This test examines the hardship imposed on the inmate relative to the ‘basic conditions' of prison life.” Id. at 1346-47. “Under this test, a convicted inmate is entitled to procedural due process in two circumstances. First, he is entitled to a measure of procedural due process when an increased restraint ‘exceed[s] [his] sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force.'” Id. at 1347 (citing Sandin, 515 U.S at 484). “Second, he is entitled to a measure of procedural due process when a change in his conditions of confinement ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'” Id. (citing Sandin, 515 U.S at 484).

         “In Sandin, the Supreme Court held that placing a convicted inmate in segregated confinement for thirty days as discipline was not ‘a dramatic departure from the basic conditions of [the inmate's] indeterminate sentence' of thirty years to life in prison.” Id. (citing Sandin, 515 U.S. 485). “Therefore, that inmate was not entitled [to procedural protections] before being placed in segregation.” Id. “The Supreme Court explained that a convicted inmate's disciplinary segregation did not give rise to a protected liberty interest because ‘[d]iscipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law.'” Id. (citing Sandin, 515 U.S. at 485). “The Court also said the disciplinary segregation at issue in Sandin was ‘within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life.'” Id. (citing Sandin, 515 U.S. at 487). “Said another way, convicted inmates have no right to a due process hearing before being punished for disciplinary infractions unless the punishment is demonstrably harsher than the ordinary conditions of prison life.” Id.

         Courts within this Circuit have found that deprivations of certain privileges during a prisoner's confinement in administrative segregation for an extensive period of time may result in an atypical or significant hardship, as contemplated by the Supreme Court in Sandin. For example, in Johnson v. Owens, No. 5:14-CV-3, 2014 WL 6620938 (M.D. Ga. Nov. 21, 2014), the United States District Court for the Middle District of Georgia held that a prisoner who had been “in segregation for at least six and a half months under conditions . . . including: deprivation of yard time; isolation; constraint by leg irons and waist chains; deprivation of personal property, commissary, receipt of package privileges; and deprivation of participation in educative, religious, or rehabilitative programs” had stated a liberty interest under the due process clause.[9] Similarly, here, Plaintiff alleges that he was assigned to “long-term segregation, ” and he received sanctions including nine months' outdoor recreation time restriction and 450 days' telephone, commissary, and package restrictions.[10] (Doc. 1, p. 19.) Construing Plaintiff's allegations liberally in his favor, he has plausibly alleged that the combination of conditions imposed upon him during assignment to long-term segregation presented an atypical or significant hardship in relation to ordinary prison life and, therefore, deprived him of liberty under the due process clause. See Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (finding that, while one adverse condition standing alone may not be sufficient to create a liberty interest, the aggregation of conditions in solitary confinement may impose an atypical and significant hardship); Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999) (a deprivation of two hours per week of yard time implicates a liberty ...


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