United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE
who is currently housed at Augusta State Medical Prison in
Grovetown, Georgia, filed a cause of action pursuant to 42
U.S.C. § 1983 to contest certain conditions of his
confinement at Georgia State Prison in Reidsville, Georgia.
Doc. 1. For the following reasons, I
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint,
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Plaintiff
leave to proceed in forma pauperis on appeal.
Complaint, Plaintiff asserts he arrived at Georgia State
Prison in April 2017 and was forced to lie on a bed in feces
and deprived nursing care. Doc. 1 at 7. Plaintiff also
asserts the prison is not compliant with the Americans with
Disabilities Act, 42 U.S.C. § 12132 et seq. Id.
Plaintiff seeks a transfer to Augusta State Medical Prison
and monetary damages. Id. at 8.
asserts he filed a formal grievance with the prison related
to his allegations and that his grievance was denied.
Id. at 5. He further states he appealed the denial
to the highest possible level, and that his appeal was
denied. Id. at 6. In a later filing, Plaintiff
attaches a copy of the grievance form he filed and a copy of
the Warden's grievance response. Doc. 14-1.
Plaintiff's grievance form is dated May 7, 2018, and the
Warden's response form is dated June 28, 2018.
Id. Plaintiff signed his Complaint on May 11, 2018,
doc. 1 at 8, four days after filing his grievance and more
than a month before the Warden responded to his grievance.
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
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. “A district court may dismiss an action sua
sponte, however, if an affirmative defense- including failure
to exhaust-appears on the face of the complaint.”
Booth v. Allen, 758 Fed.Appx. 899, 901 (11th Cir.
2019) (citations omitted).
Georgia Department of Corrections' Grievance
Georgia Department of Corrections' 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.” 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. If the
grievance is accepted for processing, the warden has 40 days
to review the grievance and determine whether to grant or
deny it. Id. 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
Plaintiff's Efforts at Exhaustion
filings reveal on their face his failure to exhaust his
administrative remedies, and therefore, merit dismissal of
his Complaint. Booth, 758 Fed.Appx. at 901.
Plaintiff filed his Complaint a mere four days after filing
his initial grievance and well in advance of the Warden's
response to his grievance. In other words, rather than
exhausting his remedies as required, ...