United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
who is currently incarcerated at Macon State Prison in
Oglethorpe, Georgia, submitted a Complaint pursuant to 42
U.S.C. § 1983 contesting certain conditions of his
confinement while housed at Georgia State Prison in
Reidsville, Georgia. (Doc. 1.) For the reasons set forth
below, I RECOMMEND that the Court
DISMISS WITHOUT PREJUDICE Plaintiff's
Complaint based on his failure to exhaust his administrative
remedies, DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Plaintiff
leave to proceed in forma pauperis on
filed this Section 1983 action on August 31, 2017, in the
United States District Court for the Middle District of
Georgia. (Doc. 1.) After granting Plaintiff's Motion for
Leave to Proceed in Forma Pauperis, the Middle
District of Georgia transferred Plaintiff's case to this
Court because the events complained of occurred while
Plaintiff was at Georgia State Prison. (Doc. 10.)
Specifically, Plaintiff contends that, in September 2015, he
was transferred to Georgia State Prison for a
“pre-scheduled hernia surgery.” (Id. at
p. 5.) Despite assurances that the surgery was completed with
“zero complications, ” Plaintiff quickly
experienced severe swelling and bleeding from his genitalia.
(Id.; Doc. 1-1, p. 1.) These side effects worsened
significantly in the following days, and Plaintiff was
required to undergo corrective surgery. (Id. at pp.
1-2.) As a result of these complications, Plaintiff is
permanently disfigured, sterile, and suffers from chronic
pain and constipation. (Id. at p. 4.)
seeks to bring this action in forma pauperis. Under
28 U.S.C. § 1915(a)(1), the Court may authorize the
filing of a civil lawsuit without the prepayment of fees if
the plaintiff submits an affidavit that includes a statement
of all of his assets, shows an inability to pay the filing
fee, and also includes a statement of the nature of the
action which shows that he is entitled to redress. Even if
the plaintiff proves indigence, the Court must dismiss the
action if it is frivolous or malicious, or fails to state a
claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)-(ii). Additionally, pursuant to
28 U.S.C. § 1915A, the Court must review a complaint in
which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or
any portion thereof, that is frivolous or malicious, or fails
to state a claim upon which relief may be granted or which
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).
Court looks to the instructions for pleading contained in the
Federal Rules of Civil Procedure when reviewing a complaint
on an application to proceed in forma pauperis.
See Fed.R.Civ.P. 8 (“A pleading that states a
claim for relief must contain [among other things] . . . a
short and plain statement of the claim showing that the
pleader is entitled to relief.”); Fed.R.Civ.P. 10
(requiring that claims be set forth in numbered paragraphs,
each limited to a single set of circumstances). Further, a
claim is frivolous under Section 1915(e)(2)(B)(i) “if
it is ‘without arguable merit either in law or
fact.'” Napier v. Preslicka, 314 F.3d 528,
531 (11th Cir. 2002) (quoting Bilal v. Driver, 251
F.3d 1346, 1349 (11th Cir. 2001)).
a complaint fails to state a claim under Section
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Thompson v. Rundle, 393 Fed.Appx. 675, 678
(11th Cir. 2010). Under that standard, this Court must
determine whether the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must assert “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not” suffice. Twombly,
550 U.S. at 555. Section 1915 also “accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Bilal, 251
F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys . . .
.”) (emphasis omitted) (quoting Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However,
Plaintiff's unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States,
508 U.S. 106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Dismissal for Failure to Exhaust Administrative
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 Fed.Appx. 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”).
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
Fed.Appx. 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 ...