United States District Court, M.D. Georgia, Macon Division
Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle United States Magistrate Judge.
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
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
Dewayne Oneal Gibson, a pretrial detainee formerly housed
at Bibb County Law Enforcement Center (“Bibb County
LEC”),  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.
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,
authored his complaint on October 23, 2017, and it was filed
with the Court on October 30. Doc. 1.
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.
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.
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.
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).
EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Prison Litigation Reform Act
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).
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).
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.
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.
Available Administrative Remedies
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, ...