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Acree v. Hunt

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

August 7, 2019

WILLIAM A. ACREE, Plaintiff,
v.
ARLISSA HUNT; JAVAKA JOHNSON; OFFICER BILLUPS; MS. JACKSON; and PRISONER MAPP, 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 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 appeal.

         BACKGROUND

         On May 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.

         Plaintiff 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.[1] 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.

         After 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 4-8.

         On 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 all.

         On 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.

         DISCUSSION

         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(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 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. “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))).

         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 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.

         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 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 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., 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. 2015)).

         B. The GDC's ...


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