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Parham v. Georgia Department of Corrections

United States District Court, M.D. Georgia, Albany Division

November 28, 2017

CARLOS DE'ANDRE PARHAM, Plaintiff,
v.
GEORGIA DEPARTMENT OF CORRECTIONS, et al., Defendants.

          REPORT AND RECOMMENDATION

          STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE

         Presently pending before the Court are Defendant's motion to dismiss (ECF No. 22) and Plaintiff's motion to amend (ECF No. 26). For the reasons explained below, it is recommended that Defendant's motion to dismiss be granted and Plaintiff's motion to amend be denied.

         BACKGROUND

         Plaintiff's claims arise from his incarceration at Calhoun State Prison. According to Plaintiff's Recast Complaint, Plaintiff and his cellmates were accused of hiding contraband-a cell phone and “green leafy material”-in their cell. Recast Compl. 5, ECF No. 10. Plaintiff alleges that during the disciplinary hearing related to this infraction, one of his cellmates “took full responsibility for said contraband” and made clear that Plaintiff “had no knowledge of its presents [sic] or location.” Id. Despite this cellmate's confession, Defendant Daniels, the disciplinary hearing officer, found Plaintiff guilty of possessing the contraband even though Defendant Daniels acknowledged to Plaintiff that “he truly believed” the contraband did not belong to Plaintiff. Id. at 6. Plaintiff states that he “protested” this decision at the time, and he was then asked to leave the room. Id.

         Shortly after Plaintiff left the room, Plaintiff alleges that Defendant Daniels conferred with Defendant Holloman, the unit manager. Plaintiff was asked again to step outside, where he “was surrounded by C.E.R.T. officers White, Ingram & Hendrix” who placed him in handcuffs. Id. Plaintiff alleges he was compliant with the officers' instructions, but when he questioned why he was being handcuffed, Defendant Holloman instructed the other officers to “TAKE [Plaintiff] DOWN.” Id. Plaintiff contends Defendants White, Ingram, and Hendrix lifted him off his feet, twisted his arms, brought him “down face 1st into the pavement blinding [him] for seconds, ” “dove” onto Plaintiff's back, and cuffed him very tightly. Id. at 7. Plaintiff alleges he was not resisting during this episode. Id. Plaintiff states he was then locked into a two man cell for forty-nine days and later returned to general population despite requesting protective custody. Id.

         After a preliminary review of his recast complaint, only Plaintiff's claim for excessive force against Defendants Holloman, Hendrix, Ingram, and White was allowed to proceed. Order 1-2, Aug. 30, 2017, ECF No. 19. Defendants moved to dismiss for, inter alia, Plaintiff's failure to exhaust his administrative remedies for the excessive force claim. (ECF No. 22.) Plaintiff responds that he either sufficiently exhausted or attempted to exhaust. (ECF No. 25.) Plaintiff also moves to amend (ECF No. 26) to assert additional facts concerning his excessive force claim and to bring additional claims. These motions are ripe for review.

         DISCUSSION

         I. Defendants' Motion to Dismiss

         Defendants move to dismiss claiming, first, that Plaintiff failed to exhaust his administrative remedies. Plaintiff responds with multiple arguments for why this Court should excuse his failure to exhaust. Because the Court finds that Plaintiff did not exhaust his administrative remedies, the Court declines to address Defendants' other grounds for dismissal.

         A. Exhaustion Standard

         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). The argument that a plaintiff has failed to satisfy section 1997e(a) is 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.

         B. Plaintiff's Failure to Exhaust

         Defendants move to dismiss for lack of exhaustion claiming that the Georgia Department of Corrections (GDOC) has a grievance procedure that applies to all inmates, but Plaintiff failed to fully utilize this procedure regarding his claims for excessive force. Defs.' Br. in Supp. of Mot. to Dismiss 3-11, ECF No. 22-1. Plaintiff responds that he fully exhausted four grievances at Calhoun State Prison; that because his claim is for excessive force, filing a grievance would be futile; that he did exhaust through grievance 205763; and that he appealed grievances 224795 and 205763, but he has not received a response regarding those appeals. Br. in Opp'n to Mot. to Dismiss 1-7, ECF No. 25. Because at the first stage of the exhaustion analysis the Court must take Plaintiff's version of the facts as being ...


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