McNelley v. Gentiles et al

Filing 60

MEMORANDUM OPINION OVERRULING Plaintiff's 54 59 Objections and ADOPTING and ACCEPTING the 51 Magistrate Judge's Report and Recommendation. Signed by Judge Virginia Emerson Hopkins on 3/28/2017. (JLC)

FILED
2017 Mar-28 PM 03:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KELLY A. MCNELLEY,
Plaintiff ,
v.
BETSY GENTILES, et al.,
Defendants.

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) Case No. 2:15-cv-01140-VEH-TMP
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MEMORANDUM OPINION
The magistrate judge filed a report on February 28, 2017, recommending that
the defendants= motions for summary judgment be treated as motions to dismiss and
the motions be granted and the claims be dismissed without prejudice pursuant to 42
U.S.C. ' 1997e(a) for the plaintiff=s failure to exhaust administrative remedies.
(Doc. 51). On March 15, 2017, the plaintiff filed objections to the report and
recommendation.

(Doc. 54).

On the same date, the plaintiff moved for an

extension of time to conduct additional research and supplement her objections.
(Doc. 52). The plaintiff stated that she was recently transferred to another facility
and did not have adequate time to conduct research in the prison=s law library. (Id.
at 1-2). On March 16, 2017, the magistrate judge granted the plaintiff=s motion for
extension of time and allowed her until March 24, 2017, to supplement her

objections to the report and recommendation. (Doc. 56). On March 27, 2017, the
court received the plaintiff=s supplemental objections. (Doc. 59).
The plaintiff reasserts her claim that she filed three Agrievances@ with Jackson
County Sheriff Chuck Phillips before filing the present action and she has, therefore,
exhausted her administrative remedies pursuant to 42 U.S.C. ' 1997e(a). (Doc. 54
at 1-3). The plaintiff does not dispute that the Jackson County Jail provides an
administrative remedy for inmate requests and grievances concerning medical and
non-medical issues. (Doc. 26-4, Gentles Aff. & 4; Doc. 26-5 at 88-89). Under the
Jail=s grievance procedure, inmates are encouraged to informally resolve grievances
between themselves and members of the staff when possible. (Doc. 26-5 at 88). If
informal resolution is not possible, an inmate may complete an Inmate Request
Form stating his or her grievance. (Id.). The Corrections Deputy receiving the
request form must sign it, date it, and note the time it is received. (Id.). If possible,
the Corrections Deputy receiving the grievance should answer it but, if he or she
cannot do so, it should be forwarded to the Shift Sergeant for further action. (Id.).
Any Corrections Deputy answering a grievance must determine if a staff member or
inmate has acted improperly, if an inmate=s rights were violated, if privileges were
unjustly denied, or if a crime was committed.

(Id.).

After reviewing the

grievance, the officer must write a response on the Inmate Request Form, giving

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findings which substantiate or disprove the complaint and, if applicable, a remedy.
(Id. at 88-89). The officer must also sign, date, and note the time of their response
on the request form. (Id. at 89).
After the process is completed, a copy of the Inmate Request Form containing
the response must be made and delivered to the inmate. (Doc. 26-5 at 89). The
original form, containing the response, should be forwarded to the Shift Sergeant for
review, and then placed in the inmate=s Jail file. (Id.). These tasks should be
accomplished within 72 hours of the time that the grievance was received, excluding
weekends and holidays. (Id.). Grievances should be answered by the appropriate
staff member at the lowest level of the chain of command. 1 (Id.). If an inmate is
dissatisfied with the response she receives to a request or grievance, she may appeal,
in writing, to the next higher level in the chain of command of the Sheriff=s Office
above the person issuing the response. (Id.).

1

The plaintiff argues that Athere is nothing [in the grievance procedure] that
mandates she resolve the issues starting with the lower chain [of command].@ (Doc. 59 at 4).
However, this is precisely what the grievance procedure requires.
3

It is undisputed that the plaintiff did not submit a grievance pursuant to the
Jail=s grievance procedure in which she complained that defendants Gentles and
Hughes denied her medical care for her allergic reaction and used excessive force
against her on March 4, 2015. It is also undisputed that the plaintiff failed to submit
a grievance regarding defendant Burbank=s alleged deliberate indifference to the
plaintiff=s serious medical needs when Burbank failed to note the plaintiff=s bean
allergy in her medical records or inform jail staff of the same. Instead, the plaintiff
filed three letters, or Agrievances,@ directly to Sheriff Phillips concerning the events
involving the defendants on March 4, 2015. (Doc. 36 at 15-17; Doc. 24-12 at 1-3;
Doc. 24-12 at 4). The plaintiff argues in her objections that she is Aexcused and/or
immune@ from the Jail=s grievance procedure since one of her complaints concerned
defendant Gentles, Athe highest ranking official [at] the Jackson County Jail.@
(Doc. 54 at 2). The plaintiff reasons it was permissible for her to forward her
grievances directly to Sheriff Phillips. (Id.).
The U.S. Supreme Court has held that exhaustion of administrative remedies
must be Aproper.@ Woodford v. Ngo, 548 U.S. 81, 93 (2006). AProper exhaustion
demands compliance with an agency=s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.@ Id. at 90-91. In other words, an

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institution=s requirements define what is considered exhaustion. Jones v. Bock, 549
U.S. 199, 218 (2007). Therefore, under the law, a plaintiff must do more than
simply initiate a grievance; she 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) (ATo 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, 1158 (11th
Cir. 2005))).
The plaintiff cannot simply ignore the Jackson County Jail=s established
grievance procedure or alter the process to fit what she considers to be Acommon
sen[s]e.@ (Doc. 54 at 1). Indeed, the Supreme Court concluded that exhaustion of
administrative remedies is mandatory even if the procedures to do so do not meet
certain Aminimum acceptable standards@ of fairness and effectiveness, and courts do
not have discretion to excuse exhaustion even when exhaustion is not Aappropriate
and in the interest of justice.@ Booth v. Churner, 532 U.S. 731, 740 n.5 (2001).
In her supplemental objections, the plaintiff argues for the first time that she
was provided only one Inmate Request Form while housed at the Jackson County
Jail in March 2015 and that jail staff denied her additional forms. (Doc. 59 at 1).
The plaintiff=s objections are not well taken. As an initial matter, the magistrate

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judge specifically advised the plaintiff that her A[o]bjections should not contain new
allegations, present additional evidence, or repeat legal arguments .@ (Doc. 51 at
20). Although the plaintiff stated in her response to summary judgment that Inmate
Request Forms are not readily available to inmates upon request, she acknowledged
that A[i]t may be the next shift or even days before any are provided again.@ (Doc.
35 at 7). The plaintiff did not allege in her response that she requested Inmate
Request Forms and jail staff denied her forms for the duration of her stay. 2 Neither
does the plaintiff provide any supporting facts for her claim that she was denied
Inmate Request Forms. For instance, the plaintiff does not provide the names of the
individual jail employees to whom she made her requests for forms, the dates on
which the she made the requests, or the responses she received. The plaintiff
cannot state new allegations at this late juncture. Based on the foregoing, the
plaintiff=s objections are OVERRULED.
The undisputed facts show that the plaintiff did not comply with the Jail=s
grievance procedure to properly exhaust her administrative remedies with regard to
the constitutional claims she now alleges against defendants Gentles, Hughes, and
Burbank in her original and amended complaints. Thus, the defendants have met
2

On March 11, 2015, the plaintiff filed an Inmate Request Form stating that she
Aneed[ed] a break,@ and requesting that defendant Gentles allow her one hour out of lock-down.
(Doc. 26-5 at 69). The plaintiff now claims that this was the only grievance form she received.
(Doc. 59 at 1-2).
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their burden of showing the plaintiff did not exhaust available administrative
remedies.
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation and the objections thereto, the
magistrate judge=s report is hereby ADOPTED and the recommendation is
ACCEPTED. Therefore, the defendants= motions for summary judgment are due
to be treated as motions to dismiss and the motions are due to be granted and the
claims dismissed without prejudice pursuant to 42 U.S.C. ' 1997e(a) for the
plaintiff=s failure to exhaust administrative remedies.
A Final Judgment will be entered.
DONE this the 28th day of March, 2017.

_________________________________
VIRGINIA EMERSON HOPKINS
UNITED STATES DISTRICT JUDGE

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