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Acree v. Hutchenson

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

August 16, 2019

WILLIAM A. ACREE, Plaintiff,
v.
JOSEPH HUTCHENSON, et al., Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         BACKGROUND

         Plaintiff filed his initial Complaint on August 7, 2017, doc. 1, and amended as a matter of right on August 23, 2017, doc. 4.[1] 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.

         Plaintiff 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.

         On 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.[2] 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.

         DISCUSSION

         Defendants 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.

         I. Exhaustion

         A. Legal Standard

         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)). 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 in court.”).

         In 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 1082.

         B. Georgia Department of Corrections' Grievance Procedures

         The 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, ...


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