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Conner v. Allen

United States District Court, S.D. Georgia, Statesboro Division

March 12, 2019

RASHARD CHARLES CONNER, Plaintiff,
v.
MARTY ALLEN; ROBERT TOOLE; SGT. NORRIS HERNDON; JOSEPH HUTCHESON; and VALARIE JACKSON, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.

         This 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.

         BACKGROUND

         On 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.

         After 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.[1] Doc. 9 at 12; Doc. 20.

         On July 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.

         Plaintiff opposes the Motion to Dismiss.[2] 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.[3] Docs. 24-1 to 24-6.

         DISCUSSION

         I. Whether Plaintiff Exhausted his Administrative Remedies

         A. Legal Requirements for Exhaustion

         Under 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.

         Exhaustion 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).

         B. Standard of Review for Exhaustion

         Failure 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)).

         In 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 12(c).”).

         “If 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).

         C. GDC's Administrative Grievance Policies

         The 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.”[4] Id. Rather, SOP IIB09-0003 outlines the procedure by which inmates may contest placement in Tier II administrative segregation. Doc. 21-4.

         1. SOP IIB05-0001

         Under 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 appeal[.]”).

         2. SOP IIB09-0003

         The 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 ...


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