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Marroquin v. Core Civic, Inc.

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

July 11, 2019

JUAN ENRIQUEZ MARROQUIN, Plaintiff,
v.
CORE CIVIC, INC.; and OFFICER LOCKE, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff brought this action under 42 U.S.C. § 1983 while incarcerated Coffee Correctional Facility in Nicholls, Georgia, to challenge certain conditions of his confinement. Doc. 1. After a thorough and careful review of the record, I RECOMMEND the Court DISMISS without prejudice Plaintiff's Complaint, doc. 1, 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.[1] I DENY as moot Plaintiff's Motion to Preserve Evidence, doc. 8.

         BACKGROUND

         Plaintiff alleges Defendant Locke discharged CS spray into Plaintiff's face on September 8, 2018 around 5:14 a.m. while Plaintiff was in his cell in building 8-RR. Doc. 1 at 5; Doc. 1-1 at 2-3. He writes that there was “no reason” for Defendant Locke to discharge the CS spray because, at the time Defendant did so, Plaintiff was “sitting quietly on [his] bottom bunk and eating [from his] food tray.” Doc. 1 at 5; Doc. 1-1 at 2-3. The CS spray caused Plaintiff to experience pain in his lungs and chest. Doc. 1 at 5; Doc. 1-1 at 2-3. Plaintiff requested medical help, but no help was provided until around 6:25 a.m. Doc. 1 at 5; Doc. 1-1 at 2-3. His breathing did not improve, and he required additional medical treatment that day around 12:18 p.m. Doc. 1 at 5; Doc. 1-1 at 2-3. The prison nurse “advised” Plaintiff “to go to sick call” for acid reflux on September 8, 2018 and ordered an x-ray on September 26, 2018. Doc. 1 at 5; Doc. 1-1 at 2-3. Plaintiff required medical treatment for trouble breathing again on October 2, 2018 and October 18, 2018. Id.; Doc. 1-1 at 2-3. Plaintiff avers that prison officials “knew” he had been diagnosed with tuberculosis in 2016, that he did not receive treatment for that condition, and that his lungs are weak. Doc. 1 at 5; Doc. 1-1 at 2-3.

         Plaintiff filed this action on November 6, 2018. Doc. 1. As relief, Plaintiff requests a declaratory judgment, preliminary and permanent injunctions, $150, 000 in compensatory damages, $100, 000 in punitive damages, court costs, and “any additional relief this [C]ourt deems just, proper, and equitable.” Doc. 1 at 6; Doc. 1-1 at 4. On December 26, 2018, Plaintiff filed a Motion requesting the Court order Defendants to preserve the videotaped evidence of his alleged assault by Officer Locke.[2] Doc. 8.

         I. Proper Exhaustion Under § 1997(a)

         A. PLRA's Exhaustion Requirement

         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)).

         Proper exhaustion is mandatory, 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.”). While inmates are not required to specially plead or demonstrate exhaustion in their complaint, courts must dismiss complaints sua sponte “for failure to exhaust if the lack of exhaustion appears on the face of the complaint.” Burns v. Warden, USP Beaumont, 482 Fed.Appx. 414, 416 (11th Cir. 2012) (quoting Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011)); see also Jones, 549 U.S. at 214-16; Pearson v. Taylor, 665 Fed.Appx. 858, 867 (11th Cir. 2016); Okpala v. Drew, 248 Fed.Appx. 72, 73 (11th Cir. 2007) (“When an affirmative defense appears on the face of a prisoner's complaint, thereby revealing that the prisoner cannot state a claim, the PLRA continues to require a district court to dismiss the complaint.”); Malcolm v. Doe, No. 6:18-cv-24, 2018 WL 2108108, at *4 (S.D. Ga. Mar. 19, 2018).

         Proper exhaustion requires strict compliance with the prison's administrative policies, deadlines, and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 91 (2006). “[A]n inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.” Smith v. Terry, 491 Fed.Appx. 81, 83 (11th Cir. 2012) (emphasis retained) (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000); Gooch v. Tremble, No. 1:18-cv-058, 2018 WL 2248750, at *3 (S.D. Ga. Apr. 20, 2018) (“[B]ecause exhaustion of administrative remedies is a ‘precondition' to filing an action in federal court, Plaintiff had to complete the entire administrative grievance procedure before initiating this suit.” (emphasis retained) (quoting Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000))). An incarcerated individual cannot “cure” an exhaustion defect by properly exhausting all remedies after filing suit. Terry, 491 Fed.Appx. at 83; Harris, 216 F.3d at 974. Moreover, courts may not consider the adequacy or futility of the administrative remedies afforded to the inmate. Higginbottom, 223 F.3d at 1261 (noting that an inmate's belief that administrative procedures are futile or needless does not excuse the exhaustion requirement). Rather, courts may only determine whether administrative remedies are available and whether the inmate properly exhausted these remedies prior to bringing his federal claim. Id.

         Moreover, to properly exhaust, prisoners must do more than simply initiate grievances; they must also appeal any denial of relief through all levels of review that comprise the administrative grievance process. 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))); see also Okpala, 248 Fed.Appx. at 73 (affirming sua sponte dismissal for failure to exhaust when a federal inmate submitted a written complaint and appealed the decision but filed his lawsuit before receiving the final decision on his appeal); Sewell v. Ramsey, No. CV406-159, 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).

         The policies of the particular institution determine what is necessary to fully exhaust all administrative remedies. 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.”). However, “[p]roper exhaustion generally does not require that a prisoner resort to optional administrative procedures to address prison conditions.” Trevari v. Robert A. Deyton Det. Ctr., 729 Fed.Appx. 748, 752 (11th Cir. 2018) (citing Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015)).

         B. The Georgia Department of Corrections' (“GDC”) Administrative Remedies

         Coffee Correctional Facility utilizes the GDC's procedures for prisoner grievances.[3] The GDC's “prison grievance procedures are set out in a standard operating procedure.” Whatley I, 802 F.3d at 1208. Standard Operating Procedure (“SOP”) IIB05-0001 contains the GDC's 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 ...


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