United States District Court, S.D. Georgia, Statesboro Division
WILLIAM A. ACREE, Plaintiff,
ARLISSA HUNT; JAVAKA JOHNSON; OFFICER BILLUPS; MS. JACKSON; and PRISONER MAPP, Defendants.
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 Georgia State Prison in Reidsville, Georgia, to
challenge certain conditions of his confinement. Doc. 1 at 1.
Defendants Jackson, Johnson, Billups, and Hunt filed a Motion
to Dismiss. Doc. 28. After careful consideration, I
RECOMMEND the Court GRANT
Defendants' Motion, doc. 28. I further
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint, as
supplemented, docs. 1, 19, 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
20, 2016, Defendant Mapp-then an inmate at Georgia State
Prison and Plaintiff's cellmate-attacked Plaintiff,
breaking Plaintiff's jaw and damaging his right eye. Doc.
1 at 5. Plaintiff contends Defendant Mapp attacked him after
Plaintiff “caused the room to get sprayed with mace and
[Plaintiff and] Mapp had to go to medical and get
decontaminated.” Doc. 19 at 2-3. Plaintiff alleges that
he previously informed Defendants Billups, Hunt, Johnson, and
Jackson (all prison employees) that Defendant Mapp threatened
to harm him, but the prison-employee Defendants failed to
protect Plaintiff. Doc. 1 at 5; Doc. 19. Plaintiff contends
the conditions at Georgia State Prison are “generally
dangerous, ” and the persistent “overcrowding and
understaffing” caused a significant threat to his
health, safety, and welfare. Doc. 19 at 1-3. Finally,
Plaintiff asserts Defendant Billups “gave [Defendant]
Mapp the green light to get” him and that Inmate Mapp
“was giv[en] the okay by a person acting under color of
state law (Billups) to attack [Plaintiff].”
Id. at 3-4.
filed this action with the Court on November 6, 2018. Doc. 1.
The Court initially found Plaintiff failed to state a claim
and recommended his action be dismissed. Doc. 15. On May 4,
2018, Plaintiff filed an Amended Complaint. Doc. 19. The
Court determined that Plaintiff's Amended Complaint cured
some of the deficiencies in his original pleading. Doc. 21.
The Court also found Plaintiff's allegation that
Defendant Billups, a prison official, approved
Defendant-Inmate Mapp's use of allegedly excessive force
on Plaintiff created a non-frivolous allegation that
Defendant-Inmate Mapp acted under color of state law and,
consequentially, allowed Plaintiff's § 1983 claim
against Mapp to proceed. Id. at 7-8.
the Court's requisite frivolity review, the following
claims remain pending: (1) an Eighth Amendment failure to
intervene claim against Georgia Department of Corrections
(“GDC”) employees Defendants Hunt, Johnson,
Billups, and Jackson; and (2) an Eighth Amendment excessive
force claim against Defendant-Inmate Mapp. Id. at
February 4, 2019, Defendant Mapp returned an executed waiver
of service to the Court. Doc. 28. However, Defendant Mapp
failed to submit a timely responsive pleading to
Plaintiff's Complaint or, indeed, submit any response at
November 20, 2018, Defendants Hunt, Johnson, Jackson, and
Billups filed a Motion to Dismiss, arguing Plaintiff failed
to exhaust his administrative remedies. Doc. 28. Plaintiff
filed Responses in opposition, and Defendants Hunt, Johnson,
Jackson, and Billups filed a Reply. Docs. 31, 32, 33, 37.
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(a); 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
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. “In response to a prisoner lawsuit, ”
however, “defendants may file a motion to dismiss and
raise as a defense the prisoner's failure to exhaust
administrative remedies.” Pearson, 665
Fed.Appx. at 867. Additionally, “[w]hen ruling on a
motion to dismiss for failure to exhaust administrative
remedies, the court may consider evidence outside the
pleadings.” White v. Berger, 709 Fed.Appx.
532, 541 n.4 (11th Cir. 2017) (citing Bryant v.
Rich, 530 F.3d 1368, 1376 (11th Cir. 2008)); Glenn
v. Smith, 706 Fed.Appx. 561, 563-64 (11th Cir. 2017);
Singleton v. Dep't of Corr., 323 Fed.Appx. 783,
785 (11th Cir. 2009) (“A district court may properly
consider facts outside of the pleadings to resolve a factual
dispute regarding exhaustion where the factual dispute does
not decide the merits and the parties have a sufficient
opportunity to develop the record.” (citing Bryant
v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008))).
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 v.
Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (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 Sewell v. Ramsey, No. 4:06-cv-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., 748 Fed.Appx. 200, 203 (11th
Cir. 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.
The GDC's ...