JARRELL v. CORIZON HEALTH INC et al

Filing 44

ORDER re 33 MOTION to Appoint Counsel, 19 MOTION for Discovery, 29 MOTION to Amend/Correct filed by WILLIAM KEITH JARRELL, REPORT AND RECOMMENDATION re 27 MOTION to Dismiss Complaint re 1 Complaint : filed by THORTON, HAZEL VAUGHN, 30 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by JOHN THOMPSON, 1 Complaint and 29 MOTION to Amend/Correct filed by WILLIAM KEITH JARRELL. Parties may submit objections within fourteen (14) days. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 7-13-18. (bdd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
WILLIAM KEITH JARRELL,
Plaintiff,
v.
CORIZON HEALTH INC, et al.,
Defendants.
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NO. 4:17-CV-00153-CDL-MSH

ORDER AND RECOMMENDATION
Presently pending before the Court is Plaintiff’s complaint (ECF No. 1) seeking
relief under 42 U.S.C. § 1983. Also pending are Defendants’ motions to dismiss Plaintiff’s
complaint (ECF Nos. 27, 30) and Plaintiff’s motions for discovery, (ECF No. 19)
judgment, (ECF No. 22) leave to amend, (ECF No. 29) and appointment of counsel (ECF
No. 33). For the reasons explained below, Plaintiff’s motions for discovery, judgment, and
appointed counsel are denied. His motion to amend is granted. Finally, it is recommended
that Defendants’ motions to dismiss be granted and Plaintiff’s original and amended claims
be dismissed.
BACKGROUND
Plaintiff’s claims arise out of an alleged incident at Rutledge State Prison (“RSP”).
He claims Defendants failed to provide him with adequate medical treatment and alleges
the following facts. On May 21, 2017, Plaintiff, a “paranoid schizophrenic” and “[l]evel 3
mental health inmate,” swallowed approximately eighteen razor blades “because [he] was
hearing voices & seeing things.” Compl. 5-6, ECF No. 1. At least one corrections officer

and several inmates witnessed Plaintiff swallow the blades. See Attach. 1 to Compl. 3, 7,
9, 11, 13, 15, ECF No. 1-1. The corrections officers on duty “called a code in,” and
Defendant Thornton, a captain at RSP, ordered a “CERT officer” to place Plaintiff in a
“strip cell.” Compl. 5. Plaintiff was then taken to the medical department where the health
services administrator, Defendant Vaughn, and a prison nurse stated that “the razors would
dissolve in [Plaintiff’s] stomach.” Id. Plaintiff was then returned to the strip cell where he
remained for approximately six hours until he was transferred to the “Crisis Stabilization
Unit” at Georgia State Prison by order of Defendant Thompson, the prison psychologist.
Id.

Plaintiff contends that prison policy requires a physician be contacted in such

circumstances to “medically clear[]” a prisoner for transport. See id. Plaintiff was treated
at the Crisis Stabilization Unit for three days, released by a prison psychiatrist, and
transported back to RSP. Id. After returning to RSP, he was placed in administrative
segregation for six days before being returned to “E-[building].” Compl. 6.
On October 19, 2017, the Court allowed only Plaintiff’s claims against Defendants
Thornton, Vaughn, and Thompson to proceed following preliminary review. Order & R.
& R. 11, ECF No. 11; Order, ECF No. 21. Defendants Thornton and Vaughn filed their
motion to dismiss (ECF No. 27) on January 3, 2018. The next day, Defendant Thompson
filed his motion to dismiss (ECF No. 30).
DISCUSSION
I. Defendants’ Motions to Dismiss
Defendants move to dismiss Plaintiff’s complaint alleging, inter alia, that Plaintiff
failed to exhaust his administrative remedies. (ECF Nos. 27, 30.) Because the Court finds
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that Plaintiff did not exhaust his administrative remedies, the Court declines to address
Defendant’s other grounds for dismissal.
A. Exhaustion Standard
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). The argument that a plaintiff has failed to
satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant v. Rich, 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
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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.
B. Plaintiff’s Failure to Exhaust
Defendants contend Plaintiff failed to fully utilize the Georgia Department of
Corrections (“GDOC”) grievance procedure—applicable to all inmates—before filing his
complaint. First Br. in Supp. 5-7, ECF No. 27-1. 1 Plaintiff’s complaint states that he
presented his complaints via institutional grievance and appealed its denial to the highest
possible level. Compl. 3-4. He responded to Defendants’ exhaustion arguments by stating
he has not been “instructed or advised about the grievance process” and contending that
his suit should not be dismissed based on an “inability to understand the complexities of
law.” Pet’r’s Aff. 2, ECF No. 34; Pet’r’s Aff. 2, ECF No. 35. Because at the first stage of
the exhaustion analysis the Court must take Plaintiff’s version of the facts as being true,
Plaintiff’s Complaint cannot be dismissed for lack of exhaustion at this first step. Turner,
541 F.3d at 1082; see also Dollar v. Coweta Cty. Sheriff Office, 446 F. App’x 248, 251-52
(11th Cir. 2011).
Since the Complaint was not dismissed at the first step, the Court can make factual
findings relating to exhaustion. A defendant bears the burden of establishing a lack of
exhaustion at the second step of the inquiry. Turner, 541 F.3d at 1082-83. The Court

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Defendants filed separate motions to dismiss but in his motion, (ECF No. 30) Defendant
Thompson incorporated the arguments made by Defendants Thornton and Hazel (ECF No. 27).
The Court includes “First” when citing to the brief filed in support of Defendants Thornton and
Hazel’s motion and “Second” when citing to Defendant Thompson’s brief.
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makes the following factual findings and determines that Defendants have met their burden
regarding Plaintiff’s claims.
RSP follows the GDOC’s Standard Operating Procedures (“SOPs”) regarding
grievances. See First Br. in Supp. 5; Betterson Aff. ¶ 2, ECF No. 27-2. The SOPs mandate
that an inmate must follow a two-step process in order to exhaust his remedies: (1) file an
original grievance no later than ten days from the date of the incident giving rise to the
grievance; and (2) file an appeal to the Central Office. Betterson Aff. ¶ 7 & Ex. 1 at 9. A
warden has forty calendar days within which to respond to an original grievance. Id. Ex.
1 at 12. An inmate may file a Central Office appeal after the warden issues a decision or
after the time allowed for the warden to make his decision expires. Id. ¶ 9 & Ex. 1 at 14.
The Commissioner’s decision on such an appeal must be delivered to the inmate within
one hundred days of the Central Office’s receipt of the appeal. Id. ¶ 10 & Ex. 1 at 15.
On May 30, 2017, Plaintiff filed a grievance based on the factual claims described
above. Betterson Aff. ¶ 12 & Ex. 3 at 2. The RSP Warden responded to Plaintiff’s
grievance on June 9, 2017, and Plaintiff acknowledged receipt of that response on June 15,
2017. Id. ¶ 12 & Ex. 3 at 4. Plaintiff then submitted a Central Office appeal on June 19,
2017. Id. ¶ 12 & Ex. 3 at 5. Next, he filed this suit on July 10, 2017. 2 Compl. 8.
“The PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo,
548 U.S. 81, 93 (2006). “To properly exhaust, a prisoner must ‘[c]ompl[y] with prison

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Under the “mailbox rule,” filings made by pro se prisoner litigants are considered filed on the
date they are delivered to prison authorities for mailing. See Washington v. United States, 243
F.3d 1299, 1301 (11th Cir. 2001).
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grievance procedures.’” Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th
Cir. 2015) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). Further, in order for an
inmate to have exhausted his administrative remedies, he must complete the grievance
process prior to filing a civil action. See, e.g., Brown v. Sikes, 212 F.3d 1205, 1207 (11th
Cir. 2000) (“[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.”) (emphasis added). The relevant date for determining whether the administrative
remedies are exhausted is the date on which a plaintiff files his initial complaint, not an
amended or recast complaint. See Smith v. Terry, 491 F. App’x 81, 83-84 (11th Cir. 2012)
(“The only facts pertinent to determining whether a prisoner has satisfied the PLRA’s
exhaustion requirement are those that existed when he filed his original complaint.”).
Plaintiff initiated this lawsuit on July 10, 2017. The one hundred day period allowed
for the Central Office to deliver a decision on his appeal began in June 2017 and had not
expired. Furthermore, there is no evidence that Plaintiff had actually received a decision
on his appeal. Because he failed to allow the time for the Commissioner to respond to his
appeal to expire, Plaintiff failed to fully exhaust his administrative remedies before filing
his Complaint. Thus, Defendants’ motions to dismiss (ECF Nos. 27, 30) should be granted.
See Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir. 1998) (“Congress now has
mandated exhaustion in section 1997e(a) and there is no longer discretion to waive the
exhaustion requirement.”).

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II. Plaintiff’s Motions
A. Motion for Discovery
On November 8, 2017, Plaintiff filed a motion asking the Court to “subpoena
aforementioned defendants and others who may be relevant to this case.” Mot. for Disc.
1, ECF No. 19. Plaintiff’s motion is denied because discovery is stayed pending a ruling
on Defendants’ motions to dismiss. See Text-only Order, January 5, 2018, ECF No. 32.
Moreover, discovery and discovery requests are not properly filed with the Court. See
M.D. Ga. Loc. Civ. R. 5.1. When, or if, the discovery stay is lifted in this case, Plaintiff
should serve his discovery requests directly on the defendant(s). At that time, Plaintiff may
renew his request for the issuance of subpoenas. Plaintiff’s motion for discovery (ECF No.
19) is denied.
B. Motion to Appoint Counsel
On January 9, 2018, Plaintiff filed a motion seeking “an appointed attorney
counsel.” Mot. to Appoint 1, ECF No. 33. Under 28 U.S.C. § 1915(e)(1), the Court “may
request an attorney to represent any person unable to afford counsel.” There is, however,
“no absolute constitutional right to the appointment of counsel” in a § 1983 lawsuit. Poole
v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per curiam). Appointment of counsel
is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d
15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided, the Court
considers, inter alia, the merits of Plaintiff’s claims and the complexity of the issues
presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989) (en banc).

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The facts stated in Plaintiff’s Complaint are not complicated, and the law governing
Plaintiff’s claims is neither novel nor complex. Accordingly, Plaintiff’s motion seeking
appointed counsel (ECF No. 33) is denied.
C. Motion to Amend
Plaintiff asks the Court to “admit and to include Warden Shay Hatcher and Deputy
Warden Bell to this civil case[.]” Mot. to Amend 2, ECF No. 29. Plaintiff filed his motion
to amend on January 2, 2018—less than twenty-one days after it was served on Defendants.
See Waivers, ECF Nos. 23, 25. Therefore, this motion is granted in accordance with
Plaintiff’s right to amend as a matter of course. Fed. R. Civ. P. 15(a)(2).
However, after conducting a preliminary review of the Plaintiff’s new claims, as
directed by the Prisoner Litigation Reform Act, (“PLRA”) the Court recommends that they
be dismissed. The PLRA obligates the district courts to conduct a preliminary screening
of every complaint filed by a prisoner who seeks redress from a government entity, official,
or employee. See 28 U.S.C. § 1915A(a). When conducting preliminary screening, the
Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437
F.3d 1107, 1110 (11th Cir. 2006); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003).
Pro se pleadings are “held to a less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed.” Id. (internal quotation marks omitted). Still,
the Court must dismiss a prisoner’s complaint if it “(1) is frivolous, malicious, or fails to
state a claim upon which relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C. §1915A(b). A claim is frivolous
if it “lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091,
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1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims
that are based on “indisputably meritless” legal theories and “claims whose factual
contentions are clearly baseless.” Id. (internal quotation marks omitted).
Plaintiff’s amended complaint names two new Defendants and concerns the same
alleged facts as his original claims. Mot. to Amend 2-3. The newly named Defendants are
both prison officials, therefore, Plaintiff’s new claims are subject to the same exhaustion
requirements as the original claims discussed above. Plaintiff’s amendment cannot cure
his exhaustion defect. See Smith, 491 F. App'x at 83 (“[A]lthough Rule 15(d) permits
parties to supplement a pleading even when the original pleading is defective, Rule 15 does
not and cannot override a substantive requirement or restriction contained in a statute.”).
Accordingly, it is recommended that the claims in Plaintiff’s amended complaint be
dismissed as frivolous.
D. Motion for Judgment
Plaintiff has also filed a motion seeking “judgment against [Defendants] in this
action.” Mot. for J. 1, ECF No. 22. However, he included no substantive argument in
support of this request and no support for them exists in the record. Plaintiff’s Motion for
Judgment is therefore denied.
CONCLUSION
For the reasons explained above, Plaintiff’s motions for discovery, (ECF No. 19)
judgment, (ECF No. 22) and appointment of counsel (ECF No. 33) are denied. His motion
for leave to amend (ECF No. 29) is granted. It is recommended that Defendants’ motions
to dismiss (ECF Nos. 27, 30) be granted and Plaintiff’s original and amended complaints
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be dismissed.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections
to this Recommendation, or seek an extension of time to file objections, within fourteen
(14) days after being served with a copy hereof. The district judge shall make a de novo
determination of those portions of the Recommendation to which objection is made. All
other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party
failing to object to a magistrate judge’s findings or recommendations contained in a report
and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives
the right to challenge on appeal the district court’s order based on unobjected-to factual
and legal conclusions if the party was informed of the time period for objecting and the
consequences on appeal for failing to object. In the absence of a proper objection, however,
the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED AND RECOMMENDED, this 13th day July, 2018.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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