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Gibson v. Edwards

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

November 28, 2018

DEWAYNE ONEAL GIBSON, Plaintiff,
v.
Lieutenant PAUL EDWARDS, et al., Defendants.

         Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge

          REPORT AND RECOMMENDATION

          Charles H. Weigle United States Magistrate Judge.

         Before the Court is Defendants' motion for summary judgment. Doc. 24. It is RECOMMENDED that the Defendants' motion be GRANTED. As an alternative basis for decision, Plaintiff's claims are subject to dismissal for failure to exhaust administrative remedies.

         Plaintiff has also filed a second motion to appoint counsel. Doc. 30. For the reasons articulated in this Court's previous order (Doc. 16) denying Plaintiff's first motion to appoint counsel (Doc. 13), Plaintiff's motion is DENIED.

         I. BACKGROUND

         Plaintiff Dewayne Oneal Gibson, a pretrial detainee[1] formerly housed at Bibb County Law Enforcement Center (“Bibb County LEC”), [2] brings suit under 42 U.S.C. § 1983 against Defendants Lieutenant Paul Edwards and Sergeant Scott Crosby. Plaintiff claims that Defendants violated his First Amendment right to freedom of speech by opening his legal mail outside his presence.[3]

         Plaintiff has filed several grievances claiming that officials at Bibb County LEC were opening his legal mail without him present. On August 24, 2017, Plaintiff filed a grievance (No. 17082438283) stating that he had not yet received a response regarding his August 10 grievance, which concerned his legal mail being opened without him present, and that he was planning to file suit in federal court regarding the matter. Doc. 28-3, p. 7. Lieutenant James Lary, the grievance coordinator at Bibb County LEC (Doc. 28-3, ¶ 5), responded, stating that because of the large volume of mail that the jail has to sort on a daily basis, “there are times that an envelope will accident[al]y get opened because it was mistaken for a normal letter.” Doc. 28-3, p. 8. Lary stated that he had “stressed to the supervisors to make sure that they double check the envelopes to make sure no legal mail gets opened.” Doc. 28-3, p. 8. On September 29, 2017, Plaintiff filed another grievance (No. 17092938283) requesting the names and titles of the mailroom officers, to which Lary acquiesced on October 13. Doc. 28-3, pp. 9-10.

         Plaintiff authored his complaint on October 23, 2017, and it was filed with the Court on October 30. Doc. 1.

         On November 1, 2017, Plaintiff filed another grievance (No. 17110138283) with the jail stating that the mail he received from this Court had been opened outside his presence. Doc. 28-3, p. 11. Plaintiff brought this new grievance to the attention of the Court in a letter filed on December 1, 2017. See Doc. 5. In the letter, Plaintiff appeared to be attempting to confirm with the Court that all pages of the mail at issue were accounted for. Doc. 5. Lary responded to Plaintiff's grievance on November 13, stating that he had advised Defendant Edwards to make sure that legal mail is not accidentally opened. Doc. 28-3, p. 12.

         In an undated follow-up grievance (No. 18031738283), Plaintiff once again stated his claim. Doc. 28-3, p. 13. Lary responded on April 3, 2018, stating: “The jail lieutenants are the ones that sort through the mail checking for contraband. . . . I assure you that when [legal mail is accidentally opened] the mail is not read. . . . I have spoken to Lt. Edwards and he has apologized for opening your mail on accident. I apologize that this issue has upset you and assure you that none of your l[e]gal mail was read.” Doc. 28-3, p. 14.

         On April 16, 2018, Plaintiff filed a grievance (No. 18041638283) complaining that his legal mail had once again been opened by jail staff. Doc. 28-3, p. 15. Lary responded: “I assure you that no one is opening your legal mail on purpose . . . . [S]ome envelopes don't look official looking and are opened. Due to this happening to you again I brought this to the major and captains [sic] attention and they are going to write up a policy on how mail is to be handled . . . .” Doc. 28-3, p. 16. Plaintiff responded to Lary's comments in the form of another grievance (No. 18041938283), stating that there was “no mistaking” the nature of the mail in question as it was a “big white legal envelope.” Doc. 28-3, p. 17. In response, Lary stated that “[n]o one is denying that your mail was opened, ” but any mail that was opened was opened unintentionally. Doc. 28-3, p. 18. Lary reiterated that “new ways of sorting the mail is [sic] being implemented.” Doc. 28-3, 18.

         In sum, Plaintiff alleges three separate instances of his legal mail being opened outside his presence: an incident occurring sometime in August 2017 (Doc. 28-3, p. 7); an incident around November 1, 2017 (Doc. 28-3, p. 11); and an incident on April 16, 2018 (Doc. 28-3, p. 15).

         II. EXHAUSTION OF ADMINISTRATIVE REMEDIES

         A. The Prison Litigation Reform Act

         Before this Court may address Plaintiff's claims on the merits, it must determine whether Plaintiff exhausted his available administrative remedies in accordance with the PRLA, 42 U.S.C. § 1997e(a). Bryant v. Rich, 530 F.3d 1368, 1372-78 (11th Cir. 2008) (noting that exhaustion is “a precondition to an adjudication on the merits”). The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). An inmate, therefore, must exhaust all available remedies before filing a claim in federal court. See Porter v. Nussle, 534 U.S. 516, 524 (2002); Pearson v. Taylor, 665 Fed.Appx. 858, 866 (11th Cir. 2016).

         “To exhaust administrative remedies in accordance with the PLRA, prisoners must properly take each step within the administrative process.” Bryant, 530 F.3d at 1378 (internal quotation marks omitted). This rule applies even where the administrative process is “futile and inadequate.” Alexander v. Hawk, 159 F.3d 1321, 1325-28 (11th Cir. 1998). That said, administrative remedies must be “available” for the exhaustion requirement to apply. See Goebert v. Lee Cty., 510 F.3d 1312, 1322-26 (11th Cir. 2007).

         Because exhaustion is “a matter in abatement and not generally an adjudication on the merits, ” it 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.” Bryant, 530 F.3d at 1374-75 (internal quotation marks omitted). As with other matters in abatement, courts may consider facts outside of the pleadings when determining whether a prisoner properly exhausted his available administrative remedies. Id. at 1376.

         In ruling upon motions to dismiss based upon the affirmative defense of failure to exhaust, courts in this Circuit follow a two-step process established by Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008). First, courts look to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, the court takes the plaintiff's version of the facts as true. Id. at 1082. “If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed.” Id. If the complaint is not subject to dismissal based on the plaintiff's version of the facts, the court must proceed to the second step, where it makes specific findings of fact in order to resolve the disputed factual issues related to exhaustion. Id. At the second step, it is the defendant's burden to prove that the plaintiff failed to exhaust his available administrative remedies. Id.

         B. Available Administrative Remedies

         Defendants have provided the affidavit of Lieutenant James Lary (Doc. 28-3), which includes an excerpt from the Inmate Handbook detailing the process prisoners must follow when filing and appealing grievances. The Handbook states: “An inmate is allowed to file a grievance when he/she believes that he/she has been subject to abuse, harassment, abridgment of civil rights, or denied privileges specified in the posted rules.” Doc. 28-3, ¶ 6. The Handbook notes three exceptions to the rule, ...


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