Harris v. Sheriff Kevin Sproul, et. al.

Filing 39

ORDER denying 26 MOTION to Compel filed by PHILLIP BRYAN HARRIS, 27 MOTION for Sanctions filed by PHILLIP BRYAN HARRIS; REPORT AND RECOMMENDATION recommending granting 23 MOTION for Summary Judgment filed by Major Lewis, Lance Montgerard, SHEPHERD, KEVIN SPROUL. Ordered by US Magistrate Judge STEPHEN HYLES on 10-16-14. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
PHILLIP BRYAN HARRIS,
Plaintiff,
v.
KEVIN SPROUL, et al.,
Defendants.

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CASE NO. 1:13-CV-71-WLS-MSH

ORDER AND RECOMMENDATION
Presently pending before the Court are Defendants’ motion for summary judgment
(ECF No. 23) and Plaintiff’s motion to compel discovery (ECF No. 26) and motion for
sanctions (ECF No. 27).

For the reasons explained below, Defendants’ motion for

summary judgment should be granted and Plaintiff’s motions are denied.
BACKGROUND
On April 24, 2013, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983.
(ECF No. 1.) This is the second of four lawsuits filed in this Court by Plaintiff against
various staff members at Dougherty County Jail (DCJ).1

In the instant Complaint,

Plaintiff alleges that Defendants Sheriff Sproul, Major Lewis, Lieutenant Montgerard,
and Officer Shepherd retaliated against him or condoned retaliation against him for his
filing of the first lawsuit. Specifically, Plaintiff claims Officer Shepherd threatened
Plaintiff after finding out about the other suit, and retaliated by allegedly telling other

1

See Harris v. Sproul, No. 1:13-cv-53-WLS-MSH; Harris v. Gulley, No. 1:13-cv-127WLS-TQL; and Harris v. Sproul, No. 1:13-cv-128-WLS-TQL.

inmates that Plaintiff was a “child rapist” and that he had AIDS. (Compl. 11-12.) He
further alleges that Lt. Montgerard retaliated by delaying the provision of legal materials
that Plaintiff required to prosecute his other case (Id. at 7-8), and that Sheriff Sproul and
Major Lewis were both aware of the retaliation and failed to stop it (Id. at 13-18). After
preliminary review, these claims were allowed to proceed.
Plaintiff has filed two discovery motions, a motion to compel discovery and a
motion for sanctions. Defendants responded contending that both motions should be
denied. These motions are ripe for review. Defendants filed their motion for summary
judgment on June 18, 2014 (ECF No. 23), and Plaintiff responded on August 4, 2014
(ECF No. 31). Defendants replied (ECF No. 33) and Plaintiff was granted leave to file a
sur-reply (ECF No. 38). The motion is now ripe for review.
DISCUSSION
I.

Motion for Summary Judgment
Defendants contend that summary judgment should be granted in this case for

multiple reasons. Defendants contend, inter alia, that Plaintiff failed to exhaust his
administrative remedies prior to filing this suit as required by the Prison Litigation
Reform Act (PLRA). (Defs.’ Br. in Supp. of Mot. for Summ. J. 7-9, ECF No. 23-2.)
Furthermore, Defendants argue that Plaintiff has not established sufficient facts to prove
that Defendants violated his rights in any way and that the record shows they are entitled
to summary judgment. (Id. at 14-18.) For the reasons explained below, Defendants’
motion should be granted because Plaintiff failed to exhaust his available administrative
remedies prior to filing this action on three of his claims and Defendants are entitled to
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summary judgment on Plaintiff’s remaining claims.
A.

Standard of Review

Summary judgment may be granted only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). In determining whether a genuine dispute of material fact
exists to defeat a motion for summary judgment, the evidence is viewed in the light most
favorable to the party opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A
factual dispute is genuine if the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Id.
B.

Exhaustion of Administrative Remedies

Title 42, United States Code section 1997e(a) provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title . . . by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” “[W]hen a state provides a grievance procedure
for its prisoners, as Georgia does here, an inmate alleging harm suffered from prison
conditions must file a grievance and exhaust the remedies available under that procedure
before pursuing a § 1983 lawsuit.” Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir.
2005) (internal quotation marks and citation omitted). Although Defendants here raised
the issue in a motion for summary judgment, the argument that a plaintiff has failed to
satisfy section 1997e(a) is more properly raised in a motion to dismiss. Bryant v. Rich,
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530 F.3d 1368, 1375 (11th Cir. 2008) (“[E]xhaustion should be decided on a Rule 12(b)
motion to dismiss[.]”). Furthermore, since dismissal for failure to exhaust is not an
adjudication on the merits, the Court can resolve factual disputes using evidence from
outside the pleadings. Id. at 1376.
“[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a
two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the
court looks to the factual allegations in the defendant’s motion to dismiss and those in the
plaintiff’s response, and if they conflict, takes the plaintiff’s versions of the facts as true.”
Id. If, taking plaintiff’s facts as being true, the defendant is entitled to dismissal for
failure to exhaust, then the complaint should be dismissed. Id. “If the complaint is not
subject to dismissal at the first step . . . , the court then proceeds to make specific findings
in order to resolve the disputed factual issues related to exhaustion.” Id. The defendant
bears the burden of proof during this second step. Id.
Defendants contend that Plaintiff has failed to exhaust his administrative remedies
as to three of his claims. First, Defendants state that although Plaintiff filed a grievance
regarding Officer Sheppard’s alleged retaliation and threats, he failed to appeal that
grievance. (Defs.’ Br. in Supp. of Mot. for Summ. J. 9; Montgerard Aff. Ex D. at 22,
ECF No. 23-6.) Plaintiff responds by arguing that he completed the administrative
remedies afforded to him and an appeal was not available because although he filed the
grievance as an “emergency grievance” it was not returned to him in a timely manner.
(Pl.’s Resp. 8.) As for Plaintiff’s second claim, that Lieutenant Montgerard retaliated
against him by delaying the provision of legal materials, Defendants argue that Plaintiff
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did not file a grievance until after he filed this lawsuit. (Defs.’ Br. in Supp. of Mot. for
Summ. J. 9.) Plaintiff does not argue otherwise. Finally, as to Plaintiff’s third claim, that
he was retaliated against due to his religious beliefs, Defendants argue that Plaintiff has
never filed a grievance related to religion-based retaliation. (Id.) Again, Plaintiff does
not dispute this contention.
Because Plaintiff does not dispute the arguments raised against his Complaint with
regard to the second and third claims, the Court finds at the first step of the analysis that
Defendants’ have shown Plaintiff failed to exhaust his administrative remedies for those
claims. Accordingly, those claims should be dismissed without prejudice. However,
because Plaintiff disputes the facts surrounding the grievance process on his first claim,
the Court must move on to step two and “make specific findings in order to resolve the
disputed factual issues related to exhaustion.” Turner, 541 F.3d at 1082.
Plaintiff argues that he should not be punished with dismissal of his claim for
failure to exhaust because the grievance he filed was not responded to in a timely manner.
(Pl.’s Resp. 8.) He contends that “Defendants withheld the ability to appeal grievances
by intentionally not returning [the] Grievance Card to Plaintiff.” (Id.) Plaintiff admits,
however, that he was notified that the grievance was under investigation. (Compl. 8.)
Defendants point out that Plaintiff’s own filings show he has previously filed grievances
without the official grievance cards. (Defs.’ Reply 7.) Instead of attempting to appeal
the decision to investigate his grievance, Plaintiff filed this lawsuit.

That does not

comply with the PLRA’s requirements.
Plaintiff also argues that because he filed the grievance as an “emergency
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grievance,” the procedural requirements were not applicable.

(Pl.’s Resp. 10.)

He

contends that emergency grievances are to be given an expedited response of one to two
days at most. (Pl.’s Surreply 2, ECF No. 38.) After eleven days had “passed with no
return of grievance card which is required to appeal and for a timely appeal,” Plaintiff
determined that filing this Complaint was the proper course of action. (Id.) However, the
fact that Plaintiff checked the box on his grievance that he considered the grievance an
“emergency” does not make it so. (Defs.’ Reply 6.) Defendants show that Plaintiff did
not follow the emergency grievance procedure which requires giving the grievance
directly to the pod officer, and the grievance was not treated as an emergency grievance
throughout the process. (Id.) Furthermore, Plaintiff is aware, based on previously filed
emergency grievances, that there is an appeals process for emergency grievances as well.
(Id. at 7; Montgerard Aff. Ex. D at 20, ECF No. 23-6.)
Based on Plaintiff’s voluminous grievance filings, it is clear that he is not being
prevented from accessing the grievance process. The only suggestion otherwise comes
from Plaintiff’s conclusory allegations that he is being “blocked” from the process or that
officials are withholding documents from him, which is belied by Plaintiff’s extensive
grievance record. Plaintiff does not deny that he filed this lawsuit before filing an appeal
of the grievance at issue here. A warden's failure to respond will not excuse a prisoner
from his obligation to file an appeal as allowed by grievance procedures. Turner v.
Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008); see also Bettencourt v. Owens, 542 F.
App’x 730, 733 (11th Cir. 2013) (prisoner required to appeal in accordance with
grievance procedures when warden did not respond within time allotted). Plaintiff has
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therefore failed to exhaust his administrative remedies with regard to his claim for
retaliation by Officer Sheppard, and that claim should likewise be dismissed without
prejudice.
C.

Failure to Intervene

Plaintiff’s only remaining claim is against Sheriff Sproul and Major Lewis for
their alleged failure to intervene when they were made aware of Plaintiff’s allegations
against Officer Sheppard. Plaintiff alleges that despite numerous grievances, letters, and
phone calls from both Plaintiff and his mother, these Defendants refused to investigate
the complaints or punish Officer Sheppard. (Pl.’s Surreply 37.) Defendants argue that
Plaintiff has not established a claim for failure to intervene because he has not established
sufficient facts to constitute a violation of Plaintiff’s constitutional rights. (Defs.’ Br. in
Supp. of Mot. for Summ. J. 16-18.)
A prison official violates the Eighth Amendment “when a substantial risk of
serious harm, of which the official is subjectively aware, exists and the official does not
respond reasonably to the risk.” Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir.
2003) (per curiam) (alterations and quotation marks omitted). To survive summary
judgment on his § 1983 claim, a plaintiff must “produce sufficient evidence of (1) a
substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk;
and (3) causation.” Id. (quotation marks omitted). To satisfy the “deliberate indifference”
standard, there must be more than a mere possibility of serious harm; instead, there must
be a strong likelihood. See Edwards v. Gilbert, 867 F.2d 1271, 1276 (11th Cir.1989).
Moreover, “[e]ven assuming the existence of a serious risk of harm and legal causation,
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the prison official must be aware of specific facts from which an inference could be
drawn that a substantial risk of serious harm exists—and the prison official must also
‘draw that inference.’” Carter, 352 F.3d at 1350 (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)).
Plaintiff has failed to produce sufficient evidence to support his claim against
Sheriff Sproul and Major Lewis.

Plaintiff argues that Officer Sheppard’s action in

allegedly confronting Plaintiff in his cell and threatening him over the filing of Plaintiff’s
first lawsuit and in allegedly telling other inmates about Plaintiff’s charges, calling him a
child rapist, and stating he has AIDS created a substantial risk of serious harm. This is
not corroborated by the evidence. Plaintiff has been in protective custody since July
2012.2 (Defs.’ Br. in Supp. of Mot. to Dismiss 18.) He has not been physically assaulted
by anyone since the alleged actions of Officer Sheppard. (Id.) He has not shown any
proof of a serious threat of harm against him, other than his speculation.

Such

unsupported and speculative allegations do not show that there was a “substantial risk of
serious harm” to Plaintiff from which Sheriff Sproul and Major Lewis would be under
any obligation to protect him. See Thompson v. Byrd, 7:12-CV-99 HL, 2014 WL 652466
(M.D. Ga. Feb. 19, 2014) (finding that where a plaintiff did not suffer any physical injury
as a result of comments made, even exposure to general hostilities from other prisoners
did not create an actionable risk of harm). Consequently, Defendants are entitled to
summary judgment on Plaintiff’s failure to protect claim.
2

Defendants’ motion includes a copy of the true bill of indictment returned by the
Dougherty County Grand Jury in March 2013, but does not otherwise indicate a disposition of
the charges.

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Furthermore, to the extent that Plaintiff argues that Defendants are liable for
violations of the grievance procedure, this claim is not cognizable under 42 U.S.C. §
1983. “[A] prisoner does not have a constitutionally-protected liberty interest in an
inmate grievance procedure.” Dunn v. Martin, 178 F. App’x. 876, 878 (11th Cir. 2006).
Additionally, “[a]s a general rule, a [prison official] may not be held liable under § 1983
for failure to respond to grievances and letters.” Thomas v. Humphrey, 5:13-CV-108MTT, 2013 WL 3282892, at *5 (M.D.Ga., June 27, 2013). Thus, to the extent that
Plaintiff was asserting a claim for violations of the grievance procedure, Defendants
motion for summary should also be granted as to that claim.
II.

Discovery Motions
Plaintiff moves the Court to compel Defendants to respond to discovery requests

served upon them on May 5, 2014. (Pl.’s Mot. to Compel 2, ECF No. 26.) In his motion,
Plaintiff admits that the time to respond to his discovery requests would have continued
beyond the discovery period. He asks the Court to excuse his unfamiliarity with the
procedural rule that discovery requests must be filed such that the response must be due
no later than the end of discovery.
Although courts afford liberal construction to pro se litigants' pleadings, litigants
appearing pro se must adhere to the procedural requirements of the Federal Rules of Civil
Procedure as well as the Local Rules. McNeil v. United States, 508 U.S. 106, 113 (1993)
(“[W]e have never suggested that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed without counsel.”)
Furthermore, Plaintiff’s motion to compel was filed on June 20, 2014, well after the close
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of discovery on May 19, 2014. As Plaintiff is well aware, motions to compel must be
filed before the close of discovery. See Harris v. Bishop, No. 1:13-CV-53, slip op. 6-7
(M.D. Ga. July 9, 2014). Plaintiff’s motion is denied.
Plaintiff also asks the Court to sanction Defendants for their failure to respond to
the discovery requests discussed above.

(Pl.’s Mot. for Sanctions 1, ECF No. 27.)

Because the Court finds that Defendants were under no obligation to respond to
Plaintiff’s untimely discovery requests, sanctions are inappropriate.

This motion is

likewise denied.
CONCLUSION
For the reasons explained above, it is RECOMMENDED that Defendants’ motion
for summary judgment (ECF No. 23) be GRANTED. Pursuant to 28 U.S.C. § 636(b)(1),
the parties may serve and file written objections to this recommendation with the United
States District Judge within fourteen (14) days after being served a copy of this
recommendation. Furthermore, Plaintiff’s motion to compel (ECF No. 26), and motion
for sanctions (ECF No. 27) are denied.
SO ORDERED and RECOMMENDED, this 16th day of October, 2014.
/s/ STEPHEN HYLES
UNTED STATES MAGISTRATE JUDGE

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