HINES v. NAZAIRE et al
ORDER ADOPTING as amended 29 Report and Recommendations and GRANTING 23 Motion to Dismiss for failure to exhaust administrative remedies. Hines's 6 Recast Complaint is DISMISSED without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/28/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Dr. Yvon Nazaire,
CIVIL ACTION NO. 5:15-CV-421 (MTT)
Magistrate Judge Stephen Hyles recommends dismissing Plaintiff Hines’s Recast
Complaint (Doc. 6) because Hines failed to exhaust her administrative remedies. Doc.
29 at 3-4. Hines objects. Doc. 30. 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.
On April 15, 2014, Plaintiff Hines filed civil action 5:14-cv-147 asserting an Eighth
Amendment deliberate indifference claim against Defendant Nazaire for prescribing
thyroid medication even though Hines had a healthy thyroid and then abruptly
discontinuing it, causing significant injuries. Hines v. Nazaire, 5:14-cv-147-MTT-CHW,
ECF Doc. 1 at 5. Nazaire filed a motion to dismiss asserting that Hines had not
exhausted her administrative remedies. Id., ECF Doc. 20. After considering Hines’s
numerous and voluminous responsive filings (see id., ECF Docs. 23, 33, 35-38, 40) and
her related amendments to her complaint (see id., ECF Doc. 29, 32), the Magistrate
Judge recommended that Hines’s claims against Nazaire be dismissed for failure to
exhaust her administrative remedies. See id., ECF Doc. 42. On August 8, 2015, the
Court, after considering Hines’s two objections (see id., ECF Docs. 44, 46), a reply
supporting her objections (Doc. 48), and her supplemental complaint (see id., ECF Doc.
53), adopted the Magistrate Judge’s recommendation that Hines’s claims against
Nazaire be dismissed for failure to exhaust administrative remedies (the “First Nazaire
Order”). See id., ECF Doc. 55. This ruling is now on appeal. See id., ECF Doc. 103.1
On November 10, 2015, Hines filed this action, making allegations nearly
identical to those in her first action. See Doc. 1, rescast, Doc. 6. Nazaire moved for
dismissal of Hines’s complaint, asserting the statute of limitations, failure to exhaust
administrative remedies, collateral estoppel, res judicata, and failure to state a claim
under the Eighth Amendment.2 Doc. 23 at 1. Hines filed a fifteen-page response and a
fourteen-page supplemental response. Docs. 25; 27. The Magistrate Judge
recommends dismissal of Hines’s claim because her allegations of exhaustion here are
“almost identical to her previous description of her efforts to exhaust.” Doc. 29 at 3 n.2.
The Magistrate Judge noted:
Plaintiff puts forth no allegation, evidence, or argument to
suggest that there has been a change in the exhaustion
issue such that would change the Court’s finding. Plaintiff
had a full opportunity to present her case—she, in fact, had
ample opportunity to develop the record on exhaustion,
covering the same assertions she makes in the instant
action. See Hines v. Nazaire, 5:14-cv-147-MTT-CHW, ECF
Hines filed a notice of appeal after the Court dismissed her claims against the two remaining
Defendants and entered final judgment against her. See 5:14-cv-147, ECF Docs. 101 (order dismissing
Dr. Billy Nichols and Georgia Correctional Healthcare for failure to exhaust administrative remedies); 102
(entry of judgment); 103 (notice of appeal). Hines previously filed a notice of appeal after the Court
dismissed Nazaire. Id., ECF Doc. 60. But that appeal was dismissed for lack of jurisdiction, as the
Court’s order dismissing Nazaire was not a final judgment. See id., ECF Doc. 79 at 2; cf. Fed. R. Civ. P.
Nazaire did not argue that 5:14-cv-147 was a prior pending action requiring the dismissal of this
action. The prior pending action doctrine is implicated because: (1) Hines brought this case while 5:14cv-147 was pending; and (2) the issues in these cases are virtually identical (importantly, Hines makes no
claim that she exhausted her administrative remedies in the period intervening the filing of her complaint
in 5:14-cv-147 and her complaint here (cf. supra note 5)). Cf. Oliney v. Gardner, 771 F.2d 856, 859 (5th
Cir. 1985) (“When a plaintiff files a second complaint alleging the same cause of action as a prior,
pending, related action, the second complaint may be dismissed.”); Holliday v. City of Newington, No.
3:03CV1824 (SRU), 2004 WL 717160, at *1 (D. Conn.) (“Because “[a] district court enjoys substantial
discretion to manage its docket efficiently to avoid duplicate litigation. . . . a court may dismiss an action
when a prior pending action has been filed as long as the ‘controlling issues in the dismissed action will
be determined in the other lawsuit.’” (quoting Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
5C Federal Practice and Procedure § 1360 (3d ed.))).
Nos. 1, 23, 37, 38, 46, and 48. The Court found that Plaintiff
had not exhausted the claims she asserts here. Plaintiff has
presented no new evidence or differing claims. Plaintiff’s
disagreement with the outcome of her initial lawsuit does not
entitle her to another opportunity to litigate. For these
reasons, the Court recommends granting Defendant’s
motion to dismiss for failure to exhaust.
Id. at 3-4.
As Hines points out, in the First Nazaire Order, the Court found that Hines had
filed at least one informal grievance and an appeal, but found “no evidence [Hines]
[f]iled a formal grievance.” Doc. 25 at 7. Hines disagrees with the Court’s conclusion
that this means that she failed to exhaust. Hines argues:
As I explain in every one of my complaints, after not getting
a response, I assume after more than 30 days of no answer
my grievance was rejected or denied, so I appealed still no
answer. The district court erred in finding Plaintiff Hines did
not comply with G.D.C. grievance policy because she fail to
appeal. It was undisputed that neither of the grievances had
resulted in a decision by the warden.
Id. at 7. Hines goes on to argue that no grievance appeal is required when prison
officials do not respond to a grievance. Of course, these arguments miss the point of
the Court’s reasoning in the First Nazaire Order—that the then-applicable three-step
grievance process required a formal grievance, and it does not appear that Hines filed
such a formal grievance. See Doc. 55 at 4.3 Accordingly, the Court’s reasoning in the
As noted in the First Nazaire Order:
[I]f the Plaintiff began the grievance process in August 2012, then the
applicable GDC grievance procedure . . . was the former GDC three-step
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
First Nazaire Order applies with full force here. Moreover, Hines is clearly collaterally
estopped from relitigating these arguments. Cf. Hamze v. Cummings, 652 F. App’x
876, 879 (11th Cir. 2016) (“[T]he district court did not err in applying collateral estoppel
to conclude that [42 U.S.C. § 1983 plaintiff] failed to exhaust his administrative remedies
as to these claims.”); see also Wood v. Kesler, 323 F.3d 872, 879 (11th Cir. 2003)
(applying collateral estoppel in § 1983 suit).4
Hines asserts arguments not addressed in First Nazaire Order, the most salient
of which rely on an alleged settlement offer from the prison system. See Docs. 27 at
11-13; 30 at 2-6 (reasserting that the settlement letter evidences exhaustion and
reasserting that “Nurse Rogers,” the administrator who allegedly signed the settlement
letter, retaliated against her by destroying her grievance); see also 5:14-cv-147, ECF
Doc. 87 at 12 (settlement offer letter). But Hines is estopped from asserting these
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 respond.
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.
5:14-cv-147, ECF Doc. 55 at 4.
As noted above (see supra note 1 and accompanying text), the Court’s ruling in 5:14-cv-147 is on
appeal. It is well established, despite scattered authority to the contrary, that a federal order subject to a
pending appeal precludes subsequent relitigation of the issues dealt with therein. See Coleman v.
Tollefson, 135 S. Ct. 1759, 1764 (2015) (noting that “a judgment’s preclusive effect is generally
immediate, notwithstanding any appeal.”); Clay v. United States, 537 U.S. 522, 527 (2003) (“Typically, a
federal judgment becomes final for appellate review and claim preclusion purposes when the district court
disassociates itself from the case, leaving nothing to be done at the court of first instance save execution
of the judgment.” (citing Restatement (Second) of Judgments § 13, cmt. b (Am. Law Inst. 1982))); Jaffree
v. Wallace, 837 F.2d 1461, 1466-67 (11th Cir. 1988) (holding district court’s judgment precluded
subsequent claim even though the judgment was then on appeal and was subsequently reversed
because “[t]he established rule in the federal courts is that a final judgment retains all of its res judicata
consequences pending decision of the appeal[,]” and “[a] judgment merely voidable because based upon
an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review
and not by bringing another action upon the same cause [of action].” (alterations in original) (citations
omitted)). Preclusion is even more certainly appropriate here because the Court is applying issue
preclusion (collateral estoppel) based on its own prior orders rather than claim preclusion (res judicata).
See Restatement (Second) of Judgments § 13 cmts. b & g (explaining that a “more pliant view of finality .
. . is appropriate with respect to issue preclusion”).
arguments because she previously raised these arguments in her attempt to avoid an
adverse exhaustion ruling on her related claims in 5:14-cv-147 against Nazaire’s hiring
superior, Dr. Billy Nichols, and Georgia Correctional Healthcare (GCH). See 5:14-cv147, ECF Docs. 87, 93, 94, 96, 98, 99. The Court rejected her arguments there, and
found the settlement letter to be a forgery. Id., ECF Doc. 101 at 4-5. She is accordingly
collaterally estopped from reasserting these arguments here.5 Cf. Hamze, 652 F. App’x
at 879 (“Collateral estoppel . . . is not limited to parties and their privies. A defendant
who was not a party to the original action may invoke collateral estoppel against the
plaintiff.” (quoting Hart v. Yamaha-Parts Distribs., Inc., 787 F.2d 1468, 1473 (11th Cir.
In any event, the Court remains convinced that the settlement letter is a forgery
for the reasons it gave in the order dismissing Nichols and GCH. 6 And, as in that order,
the Court does not find Hines’s related assertions of misconduct by Nurse Rogers to be
credible. Hines had every opportunity to introduce credible evidence of the formal
grievance that she claims to have submitted and claimed to have a receipt for. See
5:14-cv-147, ECF Doc. 55 at 5. But she has still failed to do so. Rather, she has
Grievance 203711, which Hines says is attached to her objection here (see Doc. 30 at 5), deserves
special attention. Though Hines did not attach the grievance in this action, Hines did attach grievance
203711 in her previous action. See 5:14-cv-147, ECF Docs. 98-1; 98-2. The Court found that grievance
203711 was insufficient to exhaust Hines’s administrative remedies in that case because the grievance
was filed August 26, 2015, after Hines filed that lawsuit—April 15, 2014. See id., ECF Doc. 101 at 6.
Though this action was filed later—November 10, 2015—Hines had not completed the grievance process
as to grievance 203711 before filing this action. Rather, grievance 203711 was still in the appeal process
on December 14, 2015. See id. at ECF Docs. 98-1 at 1. Because Hines failed to complete the grievance
process as to grievance 203711 before filing this action, grievance 203711 is insufficient to exhaust
Hines’s administrative remedies here. 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)); see also Williams v. Barrow,
559 F. App’x 979, 985 (11th Cir. 2014) (“To exhaust administrative remedies, a prisoner must complete
the administrative review process according to the rules set forth in the prison grievance process itself.”
Hines’s story about the letter is made even less believable by her statements in this action. For
example, she now asserts that she had to keep the letter in her shoe to keep it from being confiscated by
prison guards. Doc. 25 at 10-11. The letter she submitted to the Court did not look like a copy of a paper
that spent any time in a shoe. See 5:14-cv-147, ECF Doc. 87 at 12.
introduces red herrings, offers contradictory and vague explanations, rehashes old
arguments previously rejected by the Court, or complains about the Court’s past
decisions. See, e.g., Docs. 25 at 11-13; 27 at 8-11; 30 at 5-6. The Court remains
unpersuaded. Hines has failed to demonstrate that she exhausted her administrative
In conclusion, the Recommendation (Doc. 29) is ADOPTED as amended by this
Order, Nazaire’s Motion to Dismiss (Doc. 83) for failure to exhaust administrative
remedies is GRANTED, and Hines’s Recast Complaint (Doc. 6) is DISMISSED without
SO ORDERED, this 28th day of March, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
The Magistrate Judge correctly determined that Hines is not entitled to her requested injunctive relief.
See Doc. 29 at 4.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?