United States District Court, S.D. Georgia, Statesboro Division
WILLIAM A. ACREE, Plaintiff,
JOSEPH HUTCHENSON, et al., Defendants.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
currently incarcerated at Georgia State Prison in Reidsville,
Georgia, filed this 42 U.S.C. § 1983 cause of action, as
amended, contesting certain conditions of his confinement.
Docs. 1, 4. Defendants have moved to dismiss Plaintiff's
claims for failure to exhaust administrative remedies. Doc.
23. For the following reason, I RECOMMEND
the Court GRANT Defendants' Motion to
Dismiss. Doc. 23. I also RECOMMEND the Court
DISMISS without prejudice Plaintiff's
Complaint for failure to exhaust his administrative remedies,
DIRECT the Clerk of Court to enter the
appropriate judgment of dismissal and CLOSE
this case, and DENY Plaintiff in forma
pauperis status on appeal.
filed his initial Complaint on August 7, 2017, doc. 1, and
amended as a matter of right on August 23, 2017, doc.
In his Complaint, as amended, Plaintiff contends he filed a
claim under the Prison Rape Elimination Act
(“PREA”) against Defendant Mosley on May 26,
2017, after Defendant Mosley sexually harassed him. Doc. 4 at
8. Plaintiff asserts three days later, on May 31, 2017,
Defendants Shoemaker, Fugitt, Mosley, and Williams sprayed a
chemical agent into Plaintiff's cell while he was
restrained. Id. at 7. Plaintiff contends that
Defendant Hutchenson ordered these Defendants to take this
action. Id. Plaintiff alleges that Defendants
Shoemaker and Fuggitt dragged Plaintiff from his cell and
took him to a strip cell for 18 hours before returning him to
his cell which was still contaminated from the chemical
spray. Id. Plaintiff claims he suffered chemical
reactions and breathing problems as a result of
Defendants' actions and further claims he was denied
medical care after Defendants used chemical spray in his
cell. Id. at 8.
claims he filed a grievance on June 5, 2017 regarding the use
of chemical spray, and as of the time of filing his Amended
Complaint, he had not received a response from the warden.
Id. at 10-11. He further states he “wrote [to]
the Central Office and the Commissioner's Office.”
Id. at 10. He states that the warden's failure
to timely respond to his grievance means that “the
remedy is assumed to be ignored and is truly
exhausted.” Id. at 11.
November 9, 2017, the Court granted Plaintiff leave to
proceed in forma pauperis in this action. Doc. 6. On
July 3, 2018, the Magistrate Judge screened Plaintiff's
Amended Complaint, as required by 28 U.S.C. § 1915A, and
recommended the Court dismiss Plaintiff's claims against
Defendants Allen, Bobbitt, Kilgore, Pineiro, and the Georgia
Department of Corrections. Doc. 14. However, the Magistrate
Judge also found that Plaintiff asserted non-frivolous claims
against Defendants Hutchenson, Fuggitt, Mosley, Williams, and
Shoemaker for retaliation, excessive force, and deliberate
indifference and directed service on those Defendants.
Id. at 16. Those Defendants then executed waivers of
service on August 13, 2018, docs. 17-21, and filed a Motion
to Dismiss on September 4, 2018, doc. 23. Plaintiff filed a
Response, doc. 32, Defendants filed a Reply, doc. 44, and
Plaintiff filed a Surreply, doc. 56.
argue Plaintiff's claims should be dismissed because
Plaintiff failed to exhaust his administrative remedies. In
support of their Motion, Defendants submitted the sworn
declaration of Jeff Sikes, the Grievance Coordinator of
Georgia State Prison, doc. 23-2, a copy of the Georgia
Department of Corrections' Standard Operating Procedures
relating to grievances, doc. 23-3, and copies of
Plaintiff's grievance history, docs. 23-4, 23-5, 23-6.
For the following reasons, I find that Plaintiff did not
effectively exhaust his administrative remedies before filing
this suit and RECOMMEND the Court grant
Defendants' Motion to Dismiss. Doc. 23.
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)). Exhaustion is a mandatory requirement, 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
Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008),
the Eleventh Circuit set forth a “two-step
process” that lower courts must employ when examining
the issue of exhaustion of administrative remedies. First,
the court is to take the plaintiff's version of the facts
regarding exhaustion as true. Id. at 1082. If, even
under the plaintiff's version of the facts, the plaintiff
has not exhausted, the complaint must be dismissed.
Id. However, if the parties' conflicting facts
leave a dispute as to whether plaintiff has exhausted, the
court need not accept all of plaintiff's facts as true.
Id. The court may instead “make specific
findings in order to resolve the disputed factual issues
related to exhaustion.” Id. 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.
Accordingly, “defendants bear the burden of proving
that the plaintiff has failed to exhaust his available
administrative remedies.” Turner, 541 F.3d at
Georgia Department of Corrections' Grievance
Georgia Department of Corrections' general grievance
policies are set out in Standard Operating Procedure
(“SOP”) IIB05-0001. Whatley I, 802 F.3d
at 1208; Doc. 23-3. SOP IIB05-0001 contains the procedures
that inmates must follow to effectively exhaust their
administrative remedies. 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 IIB05-0001.”). Under
SOP IIB05-0001, inmates may “file a grievance about any
condition, policy, ...