United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants' Motion to
Dismiss. Doc. 21. For the reasons below, I
RECOMMEND the Court GRANT
Defendants' Motion, DISMISS without
prejudice Plaintiff's excessive force, failure
to intervene, and retaliation claims for failure to exhaust
administrative remedies, and DISMISS with
prejudice Plaintiff's procedural due process
claims for failure to state a claim. I also
RECOMMEND the Court DIRECT
the Clerk of Court to CLOSE this case and
enter the appropriate judgment of dismissal and
DENY Plaintiff in forma pauperis
status on appeal.
January 11, 2017, Plaintiff, while incarcerated at Georgia
State Prison (“GSP”) in Reidsville, Georgia,
brought this action under 42 U.S.C. § 1983 to challenge
certain conditions of his confinement. Doc. 8. Plaintiff
alleges he was attacked by another inmate on September 30,
2016, and Defendant Herndon, instead of protecting him,
sprayed him in the face with pepper spray and temporarily
blinded him. Id. at 6. As a result of the fight, the
prison issued a disciplinary report against Plaintiff and, at
some point in October or November 2016, placed Plaintiff in
the Tier II program, a form of administrative segregation.
Id. at 6-7; Doc. 32 at 4-5. Plaintiff asserts he did
not instigate the fight or defend himself against the other
inmate and that the disciplinary report issued against him
was expunged on appeal. Doc. 8 at 8; Doc. 24-6 at 2; Doc. 32
at 2. However, Plaintiff alleges Defendants Jackson and
Hutcheson did not move Plaintiff back to general population,
even after the disciplinary report was expunged. Doc. 32 at
7. According to Plaintiff, these Defendants placed Plaintiff
in administrative segregation and ensured he remained there
to silence him. Doc. 8 at 6.
the Court conducted a frivolity review, the following claims
remained pending: (1) Plaintiff's Eighth Amendment
excessive force claim against Defendant Herndon; (2)
Plaintiff's Eighth Amendment failure to intervene claim
against Defendant Herndon; (3) Plaintiff's First
Amendment retaliation claims against Defendants Jackson,
Hutcheson, Allen, and Toole; and (4) Plaintiff's
Fourteenth Amendment procedural due process claims against
Defendants Jackson, Hutcheson, Allen, and
Toole. Doc. 9 at 12; Doc. 20.
30, 2018, Defendants filed a Motion to Dismiss. Doc. 21. In
their supporting brief, doc. 21-1, Defendants argue Plaintiff
failed to properly exhaust all available administrative
remedies, as set out in the Georgia Department of
Corrections' (“GDC”) grievance policy. Doc.
21-1 at 3-7. Additionally, Defendants assert that all four of
Plaintiff's claims fail due to failure to state a claim
upon which relief can be granted. Id. at 8-20.
Third, Defendants aver that all of Plaintiff's claims are
barred by qualified immunity. Id. at 20-22. Finally,
and alternatively, Defendants argue Plaintiff is limited to
only nominal damages. Id. at 23-24. Defendants
provide seven supporting exhibits: (1) an affidavit from Jeff
Sikes, the grievance coordinator at GSP, doc. 21-2; (2)
Standard Operating Procedure (“SOP”) IIB05-0001,
detailing the GDC's policy for general grievances, doc.
21-3; (3) SOP IIB09-0003, detailing the GDC's policy for
Tier II administrative segregation placements, reviews, and
appeals, doc. 21-4; (4) a copy of Plaintiff's assigned
location and movements while incarcerated, doc. 21-5; (5) a
copy of Plaintiff's grievance and disciplinary history,
doc. 21-6; (6) a copy of Grievance Number 232489, doc. 21-7;
and (7) a copy of Grievance Number 234467, doc. 21-8.
opposes the Motion to Dismiss. Docs. 24, 27, 32. In support,
Plaintiff attaches several exhibits, including receipts for
various grievances, copies of grievance forms and appeals,
and other related documents. Docs. 24-1 to 24-6.
Whether Plaintiff Exhausted his Administrative
Legal Requirements for Exhaustion
the Prison Litigation Reform Act (“PLRA”), an
incarcerated individual must properly exhaust all available
administrative remedies-the prison's internal grievance
procedures-before filing a federal lawsuit to challenge
prison conditions. 42 U.S.C. § 1997e(c)(1); see
Jones v. Bock, 549 U.S. 199, 202 (2007); Harris v.
Garner, 216 F.3d 970, 974 (11th Cir. 2000). The purpose
of the PLRA's exhaustion requirement is to “afford
corrections officials time and opportunity to address
complaints internally before allowing the initiation of a
federal case.” Whatley v. Warden, Ware State
Prison (Whatley I), 802 F.3d 1205, 1208 (11th
Cir. 2015) (quoting Woodford v. Ngo, 548 U.S. 81, 93
(2006)). Exhaustion is a mandatory requirement, and courts
have no discretion to waive it or excuse it based on improper
or imperfect attempts to exhaust, no matter how sympathetic
the case or how special the circumstances. Ross v.
Blake, 136 S.Ct. 1850, 1857 (2016) (finding that the
PLRA requires exhaustion “irrespective of any
‘special circumstances'” and its
“mandatory language means a court may not excuse a
failure to exhaust, even to take such circumstances into
account”); Jones, 549 U.S. at 211
(“There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought
in court.”). Moreover, courts may not consider the
adequacy or futility of the administrative remedies afforded
to the inmate. Higginbottom v. Carter, 223 F.3d
1259, 1261 (11th Cir. 2000). Rather, courts may only
determine whether administrative remedies are available and
whether the inmate properly exhausted these remedies prior to
filing suit. Id.
must be proper, and proper exhaustion requires compliance
with the prison's administrative policies, deadlines, and
other critical procedural rules. Woodford, 548 U.S.
at 91- 92; Bryant v. Rich, 530 F.3d 1368, 1378 (11th
Cir. 2008) (“To exhaust administrative remedies in
accordance with the PLRA, prisoners must ‘properly take
each step within the administrative process.'”
(quoting Johnson v. Meadows, 418 F.3d 1152, 1157
(11th Cir. 2005))). The prison's administrative grievance
policies delineate what procedural steps prisoners must
follow to fully exhaust. Jones, 549 U.S. at 218;
Bracero v. Sec'y, Fla. Dep't of Corr., No.
17-14278, 2018 WL 3861351, at *1 (11th Cir. Aug. 14, 2018)
(“To satisfy the exhaustion requirement, a prisoner
must complete the administrative process in accordance with
the applicable grievance procedures established by the
prison.”). Proper exhaustion requires prisoners do more
than simply initiate a grievance; they must correctly follow
all procedural rules set out in the institution's policy-
including time limits-and must appeal any denial of relief
through all levels of review that comprise the agency's
administrative grievance process. Johnson, 418 F.3d
at 1159 (“Prisoners must timely meet the deadlines or
the good cause standard of Georgia's administrative
grievance procedures before filing a federal claim.”);
Sewell v. Ramsey, No. 4:06-cv-159, 2007 WL 201269
(S.D. Ga. Jan. 27, 2007) (finding that a plaintiff who is
still awaiting a response from the warden regarding his
grievance is still in the process of exhausting his
administrative remedies); see also Porter v.
Sightler, 457 Fed.Appx. 880, 882 (11th Cir. 2012)
(affirming dismissal based on lack of exhaustion when
plaintiff-inmate failed to file a grievance within 10 days of
the incident as required by GDC policy).
Standard of Review for Exhaustion
to exhaust administrative remedies is an affirmative defense,
and inmates are not required to specially plead or
demonstrate exhaustion in their complaint. Jones,
549 U.S. at 216; Pearson v. Taylor, 665 Fed.Appx.
858, 867 (11th Cir. 2016); Whatley I, 802 F.3d at
1209. “In response to a prisoner lawsuit, defendants
may file a motion to dismiss and raise as a defense the
prisoner's failure to exhaust administrative
remedies.” Pearson, 665 Fed.Appx. at 867.
Additionally, “[w]hen ruling on a motion to dismiss for
failure to exhaust administrative remedies, the court may
consider evidence outside the pleadings.” White v.
Berger, 709 Fed.Appx. 532, 541 n.4 (11th Cir. 2017)
(citing Bryant, 530 F.3d at 1376); Glenn v.
Smith, 706 Fed.Appx. 561, 563-64 (11th Cir. 2017);
Singleton v. Dep't of Corr., 323 Fed.Appx. 783,
785 (11th Cir. 2009) (“A district court may properly
consider facts outside of the pleadings to resolve a factual
dispute regarding exhaustion where the factual dispute does
not decide the merits and the parties have a sufficient
opportunity to develop the record.” (citing
Bryant, 530 F.3d at 1376)).
Turner v. Burnside, the Eleventh Circuit Court of
Appeals laid out a two-part test for resolving motions to
dismiss for failure to exhaust administrative remedies under
§ 1997e(a). 541 F.3d 1077, 1080-82 (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, take the
plaintiff's version of the facts as true.”
Id.; see also Bracero, 2018 WL 3861351, at
*1. This prong of the Turner test ensures there is a
genuine dispute of material fact regarding the
inmate-plaintiff's failure to exhaust. Glenn,
706 Fed.Appx. at 563-64 (citing Turner, 541 F.3d at
1082); Pavao v. Sims, 679 Fed.Appx. 819, 824 (11th
Cir. 2017). “The court should dismiss [the action] if
the facts as stated by the prisoner show a failure to
exhaust.” Abram v. Leu, No. 17-12319, 2019 WL
76849, at *2 (11th Cir. Jan. 2, 2019) (quoting Whatley
I, 802 F.3d at 1209); Turner, 541 F.3d at 1082
(“This process is analogous to judgment on the
pleadings under Federal Rule of Civil Procedure
the complaint is not subject to dismissal at the first step,
where the plaintiff's allegations are assumed to be true,
the court then proceeds to make specific findings in order to
resolve the disputed factual issues related to
exhaustion.” Turner, 541 F.3d at 1082; see
also Glenn, 706 Fed.Appx. at 563-64; Pearson,
665 Fed.Appx. at 867 (“At the second step, the court
[is] permitted to make factual findings to resolve the issue
of exhaustion.”). After resolving the factual disputes,
the court then decides whether, “based on those
findings, defendants have shown a failure to exhaust.”
Bracero, 2018 WL 3861351, at *1 (quoting Whatley
I, 802 F.3d at 1209).
GDC's Administrative Grievance Policies
GDC's general grievance policies are set out in Standard
Operating Procedure (“SOP”) IIB05-0001.
Whatley I, 802 F.3d at 1208. SOP IIB05-0001 contains
the policy for general grievances, including grievances for
excessive force and retaliation. See Whatley v.
Smith (Whatley II), 898 F.3d 1072, 1074 (11th
Cir. 2018) (“To exhaust administrative remedies under
the Georgia Department of Corrections Standard Operating
Procedures (“SOP”), inmates must follow the . . .
prison grievance process outlined in SOP IIB05-0001.”).
Under SOP IIB05-0001, inmates may “file a grievance
about any condition, policy, procedure, or action or lack
thereof” which “affects the offender
personally” and which is not explicitly listed in the
SOP as a “non-grievable issue.” Doc. 21-3 at 7.
Under SOP IIB05-0001, inmates cannot file grievances about
“[i]nvoluntary assignments to administrative
segregation.” Id. Rather, SOP IIB09-0003
outlines the procedure by which inmates may contest placement
in Tier II administrative segregation. Doc. 21-4.
SOP IIB05-0001, inmates must file grievances within 10 days
of becoming aware of the facts from which the grievance
arises. Whatley II, 898 F.3d at 1075; Shaw v.
Toole, No. 6:14-CV-48, 2015 WL 4529817, at *5 (S.D. Ga.
July 27, 2015). The grievance is screened by a Grievance
Counselor, who determines whether to accept the grievance for
processing. Shaw, 2015 WL 4529817, at *5. Inmates
may “hand deliver” a completed grievance form to
any counselor, who provides the offender with a receipt. Doc.
21-3 at 9. If the grievance is accepted for processing, the
warden has 40 days to review the grievance and determine
whether to grant or deny it. Shaw, 2015 WL 4529817,
at *5. If a grievance goes unanswered, the inmate may appeal
the non-response after the warden's time to answer
expires. Id. (“An inmate can file an appeal
with the Commissioner's Office in the following
instances: if the grievance coordinator rejects his original
grievance; after the warden responds to the original
grievance; or when the time allowed for the warden's
decision has expired.”); see also, Whatley
I, 802 F.3d at 1208 (“If the warden does not
respond within forty days . . . the prisoner may
Tier II program is a “comprehensive facility-wide
[s]egregation stratification plan that manages the
institutional conduct and programmatic need of offenders
assigned to the program.” Doc. 21-4 at 1. The Tier II
program was established “to protect staff, offenders,
and the public from offenders who commit or lead others to
commit violent, disruptive, predatory, or riotous actions, or
who otherwise pose a serious threat to the safety and
security of the institutional operation.” Id.
The program operates as “an offender management process
. . . not a punishment measure” and creates “an
incentive program-based level of privileges” based on
“offender behavior and program compliance.”
Id. at 4-5. The ...