HINES v. NAZAIRE et al
ORDER ADOPTING as modified 97 Report and Recommendations and GRANTING 83 Motion to Dismiss Complaint. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 12/21/2016. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Dr. Billy Nichols, et al.
CIVIL ACTION NO. 5:14-CV-147 (MTT)
Defendants Georgia Correctional Healthcare (“GCHC”) and Dr. Billy Nichols filed
a joint Motion to Dismiss, asserting that Plaintiff Deborah Hines failed to exhaust her
administrative remedies, Hines’s Amended Complaint (Doc. 29) fails to state a claim
upon which relief can be granted, and, in the alternative, the Defendants are entitled to
qualified immunity. Doc. 83. United States Magistrate Judge Charles H. Weigle
recommends granting the motion to dismiss on all these grounds. Doc. 97. Hines filed
an objection to the Recommendation and supporting documents. Docs. 98; 99. The
Court has reviewed the Recommendation and has made a de novo determination that
the Magistrate Judge correctly concluded that Hines failed to demonstrate exhaustion of
her administrative remedies as to the Defendants.
Hines’s claims against GCHC and Nichols are related to Hines’s claims against
Dr. Yvon Nazaire regarding medical treatment, which the Court dismissed for failure to
exhaust administrative remedies (the “Nazaire Order”). Doc. 55 at 5-6. As noted by the
Magistrate Judge, the analysis employed in the Nazaire Order is, with a few additions,
applicable here. Doc. 97 at 4.
Hines argues the Magistrate Judge erred in determining she did not exhaust her
administrative remedies as to her claims against GCHC and Nichols. As noted in the
Recommendation, the Court conducts a two-step analysis in determining whether a
prisoner exhausted her administrative remedies. At step one, the Court must take the
plaintiff’s version of the facts as true and determine whether the defendant is
nonetheless entitled to have the complaint dismissed for failure to exhaust
administrative remedies. Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). If
the complaint is not subject to dismissal at step one, the Court continues to the second
step of the analysis. Id. At step two, the Court makes specific factual findings to
resolve disputed issues related to exhaustion. Id. The defendant bears the burden of
The Magistrate Judge concluded that GCHC and Nichols are not entitled to
dismissal at step one based on the allegations of exhaustion in Hines’s Amended
Complaint. Doc. 97 at 4. However, he concluded that dismissal is warranted at step
two due to the affirmative evidence of non-exhaustion offered by the GCHC and
Nichols.1 Id. at 2. The Magistrate Judge reasoned that, as with Nazaire, Hines never
filed any formal grievance before filing her claims against GCHC and Nichols. Id. at 3-4.
Additionally, the Magistrate Judge considered a “settlement letter” allegedly
written and signed by Betty Rogers, who was the Pulaski State Prison Health Services
Administrator during the relevant period. Id. at 5. This letter purports to acknowledge
that Hines filed formal grievances in August and September of 2012 and offers Hines
$250,000.00 to cease pursuing her claims. Id. at 5-6. The Magistrate Judge also
The evidence offered by the Defendants includes: (1) a copy of Hines’s grievance history, (2) the
affidavit of Ramika Christian, Deputy Warden of Care and Treatment, (3) a copy of the Georgia
Department of Corrections (“GDC”) Standard Operating Procedure (“SOP”) for Statewide Grievances, (4)
the declaration of Betty Rogers, Pulaski State Prison Health Services Administrator, and (5) a copy of the
GDC SOP for Inmate/Probationer Health Concerns and Complaints. Docs. 20-1; 20-2. According to the
SOP, the health complaints “complement” the formal grievance process. Doc. 20-3 at 6.
considered a second declaration from Rogers, submitted by GCHC and Nichols in
response to the settlement letter, in which Rogers testifies that she did not write or sign
the document and that it is a forgery. Doc. 91-1 ¶¶ 5-6.
The Magistrate Judge found that the letter from “Rogers is either edited, forged,
or entirely fake, and does not show that [Hines] filed a formal grievance.” Doc. 97 at 6.
In reaching this conclusion, the Magistrate Judge noted that that the letter mirrored
paragraphs of Rogers’s first declaration. Id.; Compare Doc. 87 at 12 with Doc. 20-3 at
3. The Magistrate Judge further noted that the “language is disjointed and poorly
worded, and the letter is undated” and the idea of an offer of a $250,000 private
settlement agreement is not credible in light of the Court’s experience of settlement
offers from the Department of Corrections. Doc. 97 at 6.2 Lastly, the Magistrate Judge
examined Hines’s “numerous conflicting accounts of exhaustion, and constantly
changing narrative.” Id. For these reasons, the purported letter from Rogers did not
alter the Magistrate Judge’s analysis at step two of Turner. Id.
In Section C of Hines’s Objection, she argues that she exhausted her
administrative remedies. Doc. 98 at 11. Hines offers several responses to the
Magistrate Judge’s conclusion that the settlement letter is a forgery.
Hines argues that Rogers’s declaration regarding the forgery is not credible
because Rogers’s previous affidavit (Doc. 20-3) states that Hines filed only one health
complaint during the relevant period (1/12/11 to 2/4/14), but no grievances were filed in
relation to the adequacy of medical care. Doc. 98 at 14. Hines is correct that Rogers’s
original declaration states that Hines filed only one health complaint during the relevant
period (1/12/11 to 2/4/14). Doc. 20-3 ¶ 7. Though not in the words used by Hines,
Rogers affidavit did indicate that no grievances were filed in relation to the adequacy of
medical care, as she stated that the only signed grievance filed by Hines was a
The signature is undated, but, typed in the top right‐hand corner, the letter bears the date: “September 6,
2012.” Doc. 87 at 12.
complaint regarding a co-pay charge. Doc. 20-3 ¶ 8. As noted by the Court in the
[Hines] also filed health complaints she allegedly sent to
Rogers and an infirmary pass. (Docs. 45; 45-1; 45-2; 45-3).
One of the health complaints contains a response at the
bottom, purportedly written by Rogers and dated August 23,
2012, that reads: “You cannot grieve this per SOP.” (Doc.
45-2 at 1). This particular health complaint does not pertain
to the Plaintiff’s co-pay but instead appears to concern the
allegedly deliberately indifferent medical treatment that is the
subject of her lawsuit.
Doc. 55 at 3. Though unclear, it seems that Hines is marshaling these comments by
the Court in her support. Hines is right—these are grounds to question Rogers’s
credibility. Hines also states that she has three inmates who will testify that they read
the settlement letter from Rogers at mail call when Hines first received it, as well as the
testimony of the mail officer who handed her the letter. Id. at 14. Hines requests a DNA
sample to prove that Rogers sent the settlement letter, offering other documents from
Rogers for comparison. Id. at 13.
Although Hines offers to corroborate her account of her receipt of the settlement
letter, she failed to support this offer with any affidavit or declaration from her witnesses.
Notwithstanding legitimate questions about Rogers’s credibility, the Court, after
examining all of the reasons offered by the Magistrate Judge, agrees that the settlement
letter is not a genuine document authorized by the Georgia Department of Corrections.3
Hines’s requests regarding forensic evidence are not warranted.
Importantly, Hines still offers no explanation why she cannot produce the receipts
for her alleged August and September 2012 formal grievances. Rather, she continues
to assert that the documents she has already sent the Court evidence a formal
The Court adds the following to the Magistrate Judge’s observations: The settlement letter is dated
September 6, 2012, but awkwardly references a grievance filed in “Sept. 2012,” without any specificity of the date
of the grievance. Doc. 87 at 12. The Court also notes, without drawing any conclusion from this point, that the
letter is addressed to “Debra” Hines, the spelling employed by the prison system. See Doc. 98‐1. Hines, however,
sometimes spells her name “Deborah” (Doc. 98‐2) and other times “Debra” (Doc. 98‐1 at 2).
grievance, rehashing arguments that the Court already rejected in the Naziare Order.
See Doc. 55 at 2-4. In this vein, Hines speculates that the health grievance mentioned
by Rogers in her original affidavit is “the first grievance I filed it’s the same one I appeal
to the warden + central office. I sent the formal receipt to the Court.” 4 Doc. 98 at 1516. She notes that she sent a “receipt to the Court last year. Doc. 55. Along with the
letter ‘ante litem.’” Doc. 98 at 11. The Court has already explained why the
Defendant’s informal grievances failed to satisfy the exhaustion requirement as to
Nazaire, and the analysis applies with equal force to GCHC and Nichols.
Hines states that she will send to the Court a letter from the “inmate Grievance
Coordinator Mr. Leach,” “explaining to the court that I did file a Formal.” Id. at 11. The
Court has received no such letter.5
Hines also argues about the structure of the then‐current grievance procedures, stating that a formal
grievance is what is filed “after the counselor level is rejected or denied, and that she sent that receipt to the
Court. Doc. 98 at 11. As noted in the Naziare order:
[I]f the Plaintiff began the grievance process in August 2012, then the
applicable GDC grievance procedure is not the two‐step process cited in his
motion or relied on by the Magistrate Judge. Rather, it was the former GDC
three‐step grievance procedure:
First, an inmate must file an informal grievance “no later than
10 calendar days from the date” the inmate was aware “of
the facts giving rise to the grievance.” An inmate is to be
given a written response to his informal grievance within ten
(10) calendar days of the counselor’s receipt of the inmate’s
informal grievance. If the inmate is dissatisfied with the
resolution of his informal grievance, he is to file a formal
grievance within five (5) days of his receipt of the written
resolution of his informal grievance. Once an inmate receives
the Warden’s response to his formal grievance and is
dissatisfied with that response, he has five (5) business days
to file an appeal with the Commissioner. The Commissioner’s
Office has 90 calendar days after receipt of the appeal to
Maloch v. Pollard, 2012 WL 780380, at *9 (N.D. Ga.) (record citations omitted)
(quoting Faircloth v. Ferrell, 2011 WL 7004207, at *2 (S.D. Ga.)).
Doc. 55 at 4.
Hines also states that she “just learned” that she “filed a grievance in May 2013 when I return from court.” Id.
at 12. The Court does not know what Hines is talking about.
More importantly, however, all of these arguments rehash the Court’s decision as
to Nazaire, while the Motion to Dismiss and, accordingly, the Recommendation and this
Order address not whether Hines filed any formal grievance as to her medical
complaints, but whether she has exhausted her administrative remedies as to GCHC
and Nichols. If Hines wanted the Court to consider the settlement letter and the other
documents she has mentioned as to exhaustion of her claims against Nazaire, she
should have introduced them when that issue was before the Court.6 But, again, the
issue here is whether Hines has exhausted her administrative remedies as to GCHC
and Nichols, and the answer to that question is quite clearly “no.” Hines herself appears
to recognize that she did not exhaust her administrative remedies as to GCHC and
Nichols before filing this lawsuit. Hines states that she has enclosed copies of formal
grievances she “filed on Dr. Nichols and G.H.D.C.” Id. at 11-12. The enclosed
documents relate to Grievance 203711, which Hines filed August 26, 2015. Doc. 98-2
at 2. Grievance 203711 states that Hines, within the last ten days, had learned that
GCHC and Nichols were responsible for her injury, and that she therefore “must file a
grievance on” Nichols and GCHC. Id. at 2 (emphasis added).7 Grievance 203711 was
filed August 26, 2015, over a year after this case was filed (April 15, 2014); accordingly,
it does not satisfy the PLRA’s exhaustion requirement for this action. Cf. Johnson v.
Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (“[W]hen a state provides a grievance
procedure for its prisoners, . . . 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) (citations omitted)).
Indeed, the fact that Hines did not introduce or even mention the settlement letter when the Court was
considering exhaustion as to Nazaire, and offers it now, without any credible explanation of why she did not
submit it previously, casts further suspicion on the letter’s authenticity.
Although Hines frames this as a “reinstatement” of her August 2012 grievance, she does not offer any
evidence that grievances can be “reinstated.” This is the only indication in the grievance that Hines may contend
that she previously exhausted as to GCHC and Nichols.
Hines has not offered any evidence of a pre-suit formal grievance regarding her
deliberate indifference claims against GCHC and Nichols, thus the Magistrate Judge
correctly concluded that Hines’s Amended Complaint against GCHC and Nichols should
be dismissed. Because the Court concludes that Hines has not exhausted her
administrative remedies, the Court need not address the Magistrate Judge’s
determination that Hines has failed to state a claim under § 1983 and that Nichols and
GCHC are entitled to qualified immunity (Doc. 97 at 7-11). In conclusion, the
Recommendation is ADOPTED except as modified by this Order, Defendants GCHC’s
and Nichols’s Motion to Dismiss (Doc. 83) for failure to exhaust administrative remedies
is GRANTED, and the Plaintiff’s Amended Complaint is DISMISSED without
SO ORDERED, this 21st day of December, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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