United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EFPS UNITED STATES MAGISTRATE JUDGE.
an inmate at Ware State Prison (“WSP”) in
Waycross, Georgia, brought this case pursuant to 42 U.S.C.
§ 1983 regarding events alleged to have occurred at
Telfair State Prison (“TSP”) in Helena, Georgia.
Plaintiff is proceeding pro se and in forma pauperis
(“IFP”). The Court REPORTS and RECOMMENDS
Defendants' motion to dismiss be GRANTED IN PART and
DENIED IN PART, (doc. no. 22), Plaintiff's claims for
retaliatory transfer be DISMISSED, and Plaintiff's
injunctive relief claims be DISMISSED.
Plaintiff's Complaint Plaintiff names the following
Defendants: (1) Phil Hall, Warden; (2) Cathy Lewis, Deputy
Warden of Care and Treatment; (3) Fred Gammage, Deputy Warden
of Security; and (4) Barbara Grant, Unit Manager. (Doc. no.
1, pp. 1-3.) Taking all of Plaintiff's allegations as
true, as the Court must for purposes of the present motion,
the facts are as follows.
August 4, 2016, Plaintiff was strip searched under command of
Deputy Warden Gammage in Building H Dorm 1. (Doc. no. 1-1, p.
1.) He was then escorted by Deputy Warden Gammage and other
security personnel to the segregation unit and placed in an
isolation cell in Building E Dorm 1. (Id.) Plaintiff
was never told why he was being subjected to this treatment.
(Id.) On August 11, 2016, after seven days in the
isolation cell, Sergeant Knight offered Plaintiff a plea
bargain for ninety days commissary duty, visitation, phone
restriction, and no disciplinary isolation. (Id.)
Plaintiff was not aware of any charges or disciplinary
offenses against him. (Id.) Twenty-seven days later,
Plaintiff was still in the isolation cell. (Id. at
1-2.) Outside of his presence, his personal papers with
contact information of family and friends were searched and
lost. (Id. at 2.) Plaintiff lost several privileges
including: (1) his mail was withheld, (2) he was not allowed
to call anyone, (3) he could not attend religious services,
(4) he received a new offender schedule detailing he had lost
his good prison job as a diet specialist assistant in the
kitchen, (5) he was not allowed to shave or get haircuts, and
(6) he was denied use of an electrical socket to power a fan
in his cell, which had no air conditioning. (Id.)
August 29, 2016, Plaintiff was visited by Unit Manager Grant
and Counselor Ates who together told Plaintiff he was being
recommended for the Tier II Program because of cellphones and
drugs. (Id.) He refuted ever having cellphones or
drugs and stated there were never any disciplinary processes.
(Id. at 3.) Defendant Grant asked Plaintiff if he
would sign the form detailing the Tier II Program change and
Plaintiff did. (Id.) However, Plaintiff's door
sheet only said he had “failed to follow
instructions” as the reason for him being in isolation.
(Id.) On September 16, 2016, Plaintiff was escorted
from his isolation cell to the shower in handcuffs.
(Id.) Plaintiff saw Deputy Warden Gammage on the way
to the shower and asked him what was going on. (Id.)
Deputy Warden Gammage only responded with a taunt about how
much different Plaintiff looked after being in the isolation
October 3, 2016, Plaintiff received a copy of the Georgia
Department of Corrections Standard Operating Procedures on
Offender Discipline and Involuntary Administrative
Segregation. (Id.) Plaintiff then wrote a grievance
about his housing situation. (Id.) Warden Hall
rejected the grievance because involuntary housing
assignments based on administrative segregation was a not a
grievable issue. (Id. at 4.) Plaintiff appealed the
grievance denial. (Id.) Plaintiff wrote personal
letters to all Defendants explaining procedural errors and
received no response. (Id.) On November 8, 2016,
Plaintiff was again visited by Unit Manager Grant and
Counselor Ates who were conducting a disciplinary segregation
thirty-day review and recommending Plaintiff for the Tier II
Program again. (Id.) Plaintiff asked why he was
still in an isolation cell with no disciplinary report, and
Unit Manager Grant responded by stating “they
didn't need a disciplinary report to do what they
wanted.” (Id.) Plaintiff appealed the Tier II
recommendation, and the appeal was denied by Warden Hall.
(Id. at 4-5.)
Warden Lewis came to Plaintiff's cell for inspection.
(Id. at 5.) Plaintiff asked if she received his
letter and why he had not received a hearing in front of the
classification committee, of which Deputy Warden Lewis was
head, and she responded she did not know what was going on.
(Id.) On November 17, 2016, Plaintiff was placed in
the administrative segregation Tier II Program and remained
in an isolation cell. (Id.; doc. no. 13, pp. 1-2.)
He began writing each Defendant letters daily about his
situation and procedural errors occurring in his case. (Doc.
no. 1-1, p. 5.) Defendants became angry and upset Plaintiff
was informing Defendants of their wrongdoing, and Defendants
agreed Plaintiff would be transferred to a disciplinary
prison. (Id.) Subsequently, on November 29, 2016,
Plaintiff was transferred to WSP in retaliation for writing
letters to Defendants pointing out their procedural errors.
(Id. at 5-6.) Upon transfer to WSP, unknown
officials placed information in Plaintiff's
administrative file prompting hardships by WSP officials.
(Id. at 6.) Plaintiff was immediately placed in the
segregation unit, and TSP officials placed false gang
affiliations in his file. (Id.) Plaintiff is seeking
injunctive relief, $300, 000 in compensatory damages against
each Defendant, jointly and severally, and $300, 000 in
punitive damages against each Defendant, jointly and
severally. (Doc. no. 1, p. 5; doc. no. 1-3, p. 1.)
attached Plaintiff's grievance history to their motion to
dismiss. (Doc. no. 22-2, p. 25.) Plaintiff's grievance
history show he filed five grievances between January 8, 2014
and August 23, 2017. (Id.) Plaintiff filed only two
grievances during August to November 2016, the relevant
period of this case. (Id.) Plaintiff filed Grievance
227741 on September 20, 2016, which was categorized as a
policy/procedural challenge. (Id.) Grievance 227741
was “dropped by offender” on October 19, 2016.
(Id.) Plaintiff also filed Grievance 227738 on
September 20, 2016, which was denied on appeal on April 3,
2017. (Id.) Plaintiff admits he did not file any
grievance relating to his retaliatory transfer allegations.
(Doc. no. 27-1, p. 9.)
Defendants' Motion to Dismiss
March 19, 2019, Defendants filed a motion to dismiss alleging
(1) Plaintiff failed to exhaust administrative remedies as to
his First Amendment retaliatory transfer claim; (2) Plaintiff
failed to state Fourteenth Amendment due process claims
against Defendants Gammage and Grant for placing Plaintiff in
an isolation cell from August 4, 2016 to November 17, 2016;
(3) Plaintiff failed to state Fourteenth Amendment due
process claims against all Defendants for placing Plaintiff
in Tier II isolation cell from November 17, 2016 to November
24, 2016; and (4) Plaintiff is not entitled to the injunctive
relief he request and, even if he was, his request is now
moot upon being transferred from TSP. (Doc. no. 27-1.) On May
3, 2019, Plaintiff responded to Defendants' motion,
arguing (1) he did not fail to exhaust his First Amendment
retaliatory transfer claim because it was non-grievable; (2)
he did properly allege due process claims against Defendants;
and (3) his request for injunctive relief is narrowly drawn
and necessary even after his transfer. (Doc. no. 27-1.)
Plaintiff's Exhaustion of ...