United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
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. I DENY as moot
Plaintiff's Motion to Preserve Evidence, doc. 8.
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.
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. Doc. 8.
Proper Exhaustion Under § 1997(a)
PLRA's Exhaustion Requirement
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
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).
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.
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
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)).
The Georgia Department of Corrections'
(“GDC”) Administrative Remedies
Correctional Facility utilizes the GDC's procedures for
prisoner grievances. 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