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Webb v. Allen

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

June 6, 2019

AARON WEBB, Plaintiff,
v.
WARDEN MARTY ALLEN, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         BACKGROUND

         In his 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.[1]

         Plaintiff 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.

         DISCUSSION

         I. Exhaustion

         A. Legal Standard

         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.”).

         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. “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).

         B. Georgia Department of Corrections' Grievance Procedures

         The 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 appeal[.]”).

         C. Plaintiff's Efforts at Exhaustion

         Plaintiff's 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, ...


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