United States District Court, M.D. Georgia, Macon Division
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
before the Court is Defendant's motion for summary
judgment (ECF No. 81), which the Court construes as a motion
to dismiss. For the reasons explained below, it is
recommended that Defendant's motion be granted.
states that on October 30, 2014, he was attacked by a fellow
inmate at Dooly State Prison (“DSP”). Compl. 10,
ECF No. 1. Plaintiff alleges he “was blindsided with a
blow to [his] face while trying to leave [his] cell and avoid
trouble” and that he “was knocked-out” by
the blow. Id. Plaintiff notified prison officials,
who took photos of the injuries, confirmed Plaintiff was
attacked by another inmate, and placed Plaintiff in
“‘the hole' . . . where prisoners are sent to
be punished” with no other treatment. Id. at
10-11. The next day, Plaintiff was transported to the Taylor
Regional Trauma Center by prison guards Westley Harper and
Cornelius Hollis. Suppl. Compl. 2, ECF No. 13. There, x-rays
revealed Plaintiff suffered a badly fractured jaw. Compl. 11.
Although the emergency room doctor stated that Plaintiff
“needed immediate treatment, ” Harper and Hollis
refused and stated that “Atlanta” would not pay
for Plaintiff's care. Id.; see also
Suppl. Compl. 2. Harper and Hollis returned Plaintiff to DSP
and placed him back in the hole until November 4, 2014;
Plaintiff received little to no medical attention until he
was transferred to Augusta State Medical Prison on that date.
Suppl. Compl. 2; Compl. 11. On November 5, 2014, Plaintiff
had surgery to remove several teeth and implant a metal plate
in his jaw. Compl. 11.
was transferred back to DSP in February 2015, and received no
additional treatment for the next eleven months, until his
aunt called the governor. Id. Plaintiff then saw
several medical professionals who referred Plaintiff to the
prison dentist for further treatment consisting of a custom
mouth guard and medication to relax the nerves in
Plaintiff's jaw. Id. Plaintiff states he was
given two call-out slips to go to the dental department at
DSP. On both occasions, he was told they would need to be
re-scheduled, which never happened. Compl. 7. Plaintiff
alleges that “[n]o dental treatment was done, ”
until April 25, 2017, when Plaintiff received surgery to
remove two teeth at the Augusta State Medical Prison.
Id. at 6-7, 11-12; see also Suppl. Compl.
2. Defendant was employed by MHM Correctional Services, Inc.
and was assigned to provide dental services at DSP. Utley
Aff. ¶ 4, ECF No. 55.
preliminary review of Plaintiff's original and
supplemental complaints, his claims for deliberate
indifference against Harper, Hollis, and Defendant were
allowed to proceed. Order & R. & R. 6-8, Jun. 29,
2017, ECF No. 14. On April 25, 2018, this Court recommended
that the claims against Harper and Hollis be dismissed due to
Plaintiff's failure to exhaust his administrative
remedies. Order & R. & R. 12, ECF No. 72. That Order
and Recommendation was adopted and made the Order of the
Court on June 29, 2018. Order 17, ECF No. 77. Defendant moved
for summary judgment (ECF No. 81) on August 8, 2018 and
Plaintiff responded on August 24, 2018 (ECF No. 84).
moves for summary judgment (ECF No. 81) claiming, inter
alia, that Plaintiff failed to exhaust his
administrative remedies. Br. in Supp. of Mot. 5-10, ECF No.
81-1. Because the Court finds that Plaintiff did
not exhaust his administrative remedies, the other grounds
raised in Defendant's motion will not be addressed.
I. Exhaustion Standard
Prison Litigation Reform Act (“PLRA”) 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.” 42 U.S.C. § 1997e(a).
“[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.”
Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000)
(emphasis added). “To exhaust administrative remedies
in accordance with the PLRA, prisoners must properly take
each step within the administrative process. If their initial
grievance is denied, prisoners must then file a timely
appeal.” Bryant v. Rich, 530 F.3d 1368, 1378
(11th Cir. 2008) (citation and punctuation omitted).
argument that a plaintiff has failed to satisfy section
1997e(a) is properly raised in a motion to dismiss.
Bryant, 530 F.3d at 1375 (“[E]xhaustion should
be decided on a Rule 12(b) motion to dismiss[.]”).
Further, 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.
Plaintiff's Failure to Exhaust
moves to dismiss for lack of exhaustion, claiming the Georgia
Department of Corrections (“GDOC”) has a
grievance procedure that applies to all inmates, which
Plaintiff failed to fully utilize regarding his claims. Br.
in Supp. of Mot. 5-10. Plaintiff responds that he did file a
grievance but the grievance procedure is futile and, in
reality, unavailable as a remedy. Compl. 3; Pl.'s
Opp'n to Mot. 2-4, ECF No. 84. Because at this stage of
the exhaustion analysis the Court must take Plaintiff's
version of the facts as true, Plaintiff's Complaint
cannot be dismissed 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) (per
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 ...