United States District Court, M.D. Georgia, Columbus Division
ORDER AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
pending before the Court is Plaintiff's complaint (ECF
No. 1) seeking relief under 42 U.S.C. § 1983. Also
pending are Defendants' motions to dismiss
Plaintiff's complaint (ECF Nos. 27, 30) and
Plaintiff's motions for discovery, (ECF No. 19) judgment,
(ECF No. 22) leave to amend, (ECF No. 29) and appointment of
counsel (ECF No. 33). For the reasons explained below,
Plaintiff's motions for discovery, judgment, and
appointed counsel are denied. His motion to amend is granted.
Finally, it is recommended that Defendants' motions to
dismiss be granted and Plaintiff's original and amended
claims be dismissed.
claims arise out of an alleged incident at Rutledge State
Prison (“RSP”). He claims Defendants failed to
provide him with adequate medical treatment and alleges the
following facts. On May 21, 2017, Plaintiff, a
“paranoid schizophrenic” and “[l]evel 3
mental health inmate, ” swallowed approximately
eighteen razor blades “because [he] was hearing voices
& seeing things.” Compl. 5-6, ECF No. 1. At least
one corrections officer and several inmates witnessed
Plaintiff swallow the blades. See Attach. 1 to
Compl. 3, 7, 9, 11, 13, 15, ECF No. 1-1. The corrections
officers on duty “called a code in, ” and
Defendant Thornton, a captain at RSP, ordered a “CERT
officer” to place Plaintiff in a “strip
cell.” Compl. 5. Plaintiff was then taken to the
medical department where the health services administrator,
Defendant Vaughn, and a prison nurse stated that “the
razors would dissolve in [Plaintiff's] stomach.”
Id. Plaintiff was then returned to the strip cell
where he remained for approximately six hours until he was
transferred to the “Crisis Stabilization Unit” at
Georgia State Prison by order of Defendant Thompson, the
prison psychologist. Id. Plaintiff contends that
prison policy requires a physician be contacted in such
circumstances to “medically clear” a prisoner
for transport. See Id. Plaintiff was treated at the
Crisis Stabilization Unit for three days, released by a
prison psychiatrist, and transported back to RSP.
Id. After returning to RSP, he was placed in
administrative segregation for six days before being returned
to “E-[building].” Compl. 6.
October 19, 2017, the Court allowed only Plaintiff's
claims against Defendants Thornton, Vaughn, and Thompson to
proceed following preliminary review. Order & R. & R.
11, ECF No. 11; Order, ECF No. 21. Defendants Thornton and
Vaughn filed their motion to dismiss (ECF No. 27) on January
3, 2018. The next day, Defendant Thompson filed his motion to
dismiss (ECF No. 30).
Defendants' Motions to Dismiss
move to dismiss Plaintiff's complaint alleging, inter
alia, that Plaintiff failed to exhaust his
administrative remedies. (ECF Nos. 27, 30.) Because the Court
finds that Plaintiff did not exhaust his administrative
remedies, the Court declines to address Defendant's other
grounds for dismissal.
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.
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.
Plaintiff's Failure to Exhaust
contend Plaintiff failed to fully utilize the Georgia
Department of Corrections (“GDOC”) grievance
procedure-applicable to all inmates-before filing his
complaint. First Br. in Supp. 5-7, ECF No.
27-1. Plaintiff's complaint states that he
presented his complaints via institutional grievance and
appealed its denial to the highest possible level. Compl.
3-4. He responded to Defendants' exhaustion arguments by
stating he has not been “instructed or advised about
the grievance process” and contending that his suit
should not be dismissed based on an “inability to
understand the complexities of law.” Pet'r's
Aff. 2, ECF No. 34; Pet'r's Aff. 2, ECF No. 35.
Because at the first stage of the exhaustion analysis the
Court must take Plaintiff's version of the facts as being
true, Plaintiff's Complaint cannot be dismissed for lack
of exhaustion at this first step. Turner, 541 F.3d
at 1082; see also Dollar v. Coweta Cty. Sheriff
Office, 446 Fed.Appx. 248, 251-52 (11th Cir. 2011).
the Complaint was not dismissed at the first step, the Court
can make factual findings relating to exhaustion. A defendant
bears the burden of establishing a lack of exhaustion at the
second step of the inquiry. Turner, 541 F.3d at
1082-83. The Court makes the following factual findings and