FEDD v. BRYSON et al

Filing 93

ORDER adopting 88 Report and Recommendations; granting 38 Motion to Dismiss Complaint; and granting 50 Amended Motion to Dismiss. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 9/12/2018 (chc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
LEVI ARTHUR FEDD,
Plaintiff,

CIVIL ACTION NO.
5:17-cv-00070-TES-TQL

v.
HOMER BRYSON, et al.,
Defendants.

ORDER ADOPTING ORDER AND RECOMMENDATION

Currently before the Court is the United States Magistrate Judge’s Order and
Recommendation [Doc. 88] on Defendants’ Motion to Dismiss [Doc. 38] and Amended
Motion to Dismiss [Doc. 50]. Plaintiff filed an objection to the Recommendation [Doc. 92];
therefore, Court conducts the following de novo review of the matters to which Plaintiff
objects. See 28 U.S.C. § 636(b)(1).
FACTUAL BACKGROUND
In his Recast Complaint [Doc. 15], Plaintiff alleges 1 that while he was incarcerated
at Wilcox State Prison in Abbeville, Georgia, he was placed in a shower and forced to sleep
on the shower floor for more than eight to nine hours. [Doc. 15, p. 7]. During that time,
“bugs got all over [his] body” and ate holes in him. [Id.]. Plaintiff claims that he told prison

Plaintiff’s pleadings and other documents are difficult to decipher. Thus, the Court read the documents
as liberally as possible to determine Plaintiff’s claims and arguments.

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staff about the bugs but received no treatment and was left “in lockdown with no out side
[sic] 24 [hours] a day” for 11 to 12 months. [Id. at pp. 7, 13, 14, 17, 18]. In his Objection [Doc.
19] to the Magistrate Judge’s preliminary screening [Doc. 16] of his Recast Complaint,
Plaintiff clarified that he could not go outdoors and had no opportunity to exercise during
the roughly one-year-long lockdown period. [Doc. 19, p. 5].
Plaintiff brought suit against Georgia Department of Corrections (“GDC”)
Commissioner Homer Bryson, former Wilcox State Prison Warden Antoine Caldwell, and
several other Wilcox State Prison staff members, alleging that they knew of his injuries but
failed to provide him with medical care and that they kept him in administrative
segregation “with out [sic] cause.” [Doc. 15, p. 10].
In its Order on the Magistrate Judge’s preliminary screening, the Court determined
that Plaintiff stated claims for deliberate indifference to a serious medical need under the
Eighth Amendment and for due process violations under the Fourteenth Amendment.
[Doc. 42].
Defendants Bryson, Palmer, Cook, Rozier, M. Williams, Caldwell, Hogan, Bray, and
Whittington now move to dismiss Plaintiff’s claims, arguing that Plaintiff failed to exhaust
his administrative remedies. [Docs. 38, 50]. As to Plaintiff’s Eighth Amendment claim, these
Defendants argue that Plaintiff did not wait to receive a decision on his grievance appeal
before filing suit and therefore failed to exhaust prior to bringing this action. Defendants

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also argue that Plaintiff’s Fourteenth Amendment claim is barred because Plaintiff did not
file any grievance relating to his time in administrative segregation.
The Magistrate Judge recommends granting Defendants’ Motions to Dismiss,
finding that Plaintiff did not exhaust his administrative remedies for either of his claims.
Plaintiff objects to these determinations. With regard to his Eighth Amendment claim,
Plaintiff essentially argues that he was not required to wait until he received a final denial
of his grievance before filing suit. With regard to his Fourteenth Amendment claim, he
argues that administrative remedies were unavailable.
DISCUSSION
A.

Standard of Review

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, states that “No action
shall be brought with respect to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
The word “shall” indicates that “[e]xhaustion is mandatory under the PLRA, and
unexhausted claims cannot be brought in court.” Bracero v. Secretary, Fla. Dep’t of Corr., ___
F. App’x ___, No. 17-14278, 2018 WL 3861351, at *1 (11th Cir. Aug. 14, 2018) (citing Jones v.
Bock, 549 U.S. 199, 211 (2007)).
In order to properly exhaust his administrative remedies, “a prisoner must complete
the administrative process in accordance with the applicable grievance procedures
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established by the prison.” Id. (citing Jones, 549 U.S. at 218). In this case, the GDC Standard
Operating Procedure in effect at the time of the incidents giving rise to this action required
a prisoner to complete an “Original Grievance” related to a single issue or incident and
present it to a prison counselor within ten days of the date he “knew, or should have
known, of the facts giving rise to the grievance.” [Doc. 38-3, p. 9]. The prison counselor
would then forward it to the prison Grievance Coordinator. [Id.]. Once a grievance was
dealt with at the prison level, the prisoner could file a “Central Office Appeal,” and the
GDC Commissioner was required to make a determination within 100 days of receipt of
the appeal. [Id. at pp. 14-15].
Although exhaustion is generally mandatory, a prisoner is not required to exhaust
remedies that are not “available” to him. Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir.
2008). A grievance process is unavailable when (1) “it operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to aggrieved inmates,” (2) it
is “so opaque that it becomes, practically speaking, incapable of use,” or (3) “prison
administrators thwart inmates from taking advantage of [it] through machination,
misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016).
When a motion to dismiss is based on the plaintiff’s failure to exhaust administrative
remedies, the Court first considers “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 version
of the facts as true.” Turner, 541 F.3d at 1082 (11th Cir. 2008). If in doing so the Court finds
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that Plaintiff failed to exhaust his administrative remedies, then the complaint must be
dismissed. Id. If, on the other hand, Plaintiff’s complaint cannot be dismissed at this stage,
the Court must “make specific findings in order to resolve the disputed factual issues
related to exhaustion.” Id. At this stage, Defendants “bear the burden of proving that
[Plaintiff] has failed to exhaust his available administrative remedies.” Id.
B.

Plaintiff’s Eighth Amendment Claims

Defendants argue that Plaintiff failed to exhaust his administrative remedies as to
his Eighth Amendment claims because he filed suit before receiving a decision on his
Central Office Appeal relating to the lack of treatment for his bug bites. In his response,
Plaintiff does not deny that he filed suit prior to receiving a response to his grievance
appeal. Instead, he briefly relies on Whitington v. Ortiz, 472 F.3d 804 (10th Cir. 2007), for the
proposition that “dismissal for failure to exhaust administrative remedies [was] improper
though inmate did not wait until receiving final grievance response before filing complaint
becaus[e] prison officials failed to respond in a timely manner.” [Doc. 57, p. 5].
Whitington is inapposite for two reasons. First, Whitington is a decision from the
Tenth Circuit Court of Appeals and is not binding precedent for this Court. Second, the
factual differences between Whitington and this case render it unpersuasive. In Whitington,
the plaintiff filed an appeal for which the Colorado Department of Corrections had 45 days
to respond. 472 F.3d at 807. After waiting 196 days for a response, the plaintiff filed suit. Id.
In finding that the plaintiff properly exhausted his administrative remedies, the court
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stressed that “a prisoner cannot be required to wait indefinitely for a response to his final
grievance before he may seek judicial review. That is, when prison officials fail to timely
respond to a grievance, the prisoner has exhausted ‘available’ administrative remedies
under the PLRA.” Id. at 807-08.
In this case, the GDC Commissioner was required to respond to Plaintiff’s Central
Office Appeal within 100 days of receipt; however, Plaintiff waited a mere 21 days before
filing the instant lawsuit. Thus, Plaintiff failed to complete the grievance process, and his
Eighth Amendment claim must be dismissed at the first stage of the Turner analysis.
Therefore, the Court ADOPTS the Magistrate Judge’s recommendations as they apply to
Plaintiff’s Eighth Amendment claims.
C.

Plaintiff’s Fourteenth Amendment Claims

Defendants also move to dismiss Plaintiff’s Fourteenth Amendment claims, arguing
that Plaintiff did not file any grievances relating to his year-long administrative
segregation, despite the grievance process being available to him. In response, Plaintiff
agrees that he failed to file a grievance for this issue but argues that the grievance process
was not available to him because prison staff refused to provide him with a grievance form.
Given these conflicting allegations, the Court cannot dismiss Plaintiff’s claim at the first
Turner stage and must “make specific findings in order to resolve the disputed factual
issues related to exhaustion.” Turner, 541 F.3d at 1082.

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Defendants argue that the grievance process was clearly available to Plaintiff given
that he filed seven grievances in the eight months following his shower lockdown. [See
Doc. 38-4]. Plaintiff, on the other hand, states only that Defendant Caldwell and other
Wilcox State Prison officials refused to give him a grievance form.
Plaintiff appears to allege that he was kept in administrative segregation for ten to
twelve months following his shower incident, which apparently occurred sometime
between September 30 and November 16, 2016. 2 Plaintiff filed three grievances with Wilcox
State Prison staff following the shower incident. [Docs. 38-4]. Plaintiff withdrew the first
grievance (dated December 16, 2016), pushed the second grievance (dated December 28,
2016) through the entire grievance process, and filed a third grievance (dated February 14,
2017) unrelated to the shower incident or his due process claim that was denied but not
appealed. [See id.; Doc. 38-5].
The Court interprets Plaintiff’s objection to allege that Defendant Caldwell refused
him grievance forms in the two months between his second and third grievances. [Doc. 91.,

As an exhibit to his Response to Defendants’ Motion to Dismiss [Doc. 57], Plaintiff filed a grievance dated
December 16, 2016, in which he complains that he “suffer for month under Rule F emergency,” which can
either be construed as suffering for a single month or for several months given the lack of an article before
“month” and the lack of pluralization. [Doc. 57-2]. However, elsewhere in the grievance he complains that
no one has “treat[ed] the open hol[e] in 11-week.” [Id.]. This “open hole” is presumably from the bug bites
Plaintiff allegedly suffered during his confinement in the shower. The shower incident therefore could have
occurred anytime from one month prior to the grievance date (i.e., November 16, 2016) to nearly three
months prior to the grievance date (i.e., around September 30, 2016). If this is the case, Plaintiff filed his
Complaint [Doc. 1] only three to five months into his year-long administrative segregation period. It is
more likely that Plaintiff’s shower confinement occurred in the midst of his alleged year-long
administrative segregation. Regardless, the Court’s decision remains the same.
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p. 21]. Plaintiff further alleges that because of his inability to file grievances for two months,
any grievance filed after that time relating to his due process claim would have been denied
on procedural grounds as untimely. 3 [Doc. 92, p. 19 (“[D]eadlines was up [sic] because
Defendant Warden C[al]dwell blocked Plaintiff[’s] grievances with Defendants[’] help.”)].
Plaintiff’s argument lacks merit in light of the Eleventh Circuit’s decision in Bryant
v. Rich, 530 F.3d 1368 (11th Cir. 2008). In Bryant, the court determined that where an inmate
is allowed to submit an untimely grievance upon a showing of good cause, he has not
exhausted his administrative remedies if he fails to submit the untimely grievance and
await the prison officials’ decision. 530 F.3d at 1373 (“We recognize that a grievance filed
after [the plaintiff’s] transfer to [Georgia State Prison] would have been untimely. But the
relevant grievance procedures provide inmates with the opportunity to request
consideration of untimely grievances for good cause. Thus, [the plaintiff] could have
exhausted his administrative remedies by filing a grievance at [Georgia State Prison] and
then by showing good cause for its tardiness.”). In this case, as in Bryant, the GDC Standard
Operating Procedures allow an inmate to submit an untimely grievance, and the prison
grievance coordinator “may waive the time limit for good cause” and address the
grievance on its merits. [Doc. 38-3, p. 10].

The GDC Standard Operating Procedures require prisoners to file grievances within “10 calendar days
from the date the offender knew, or should have known, of the facts giving rise to the grievance.” [Doc. 383, p. 10]. The Warden is entitled to reject a grievance if it is not timely filed. [Id.].

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In this case, it does not appear that Plaintiff tried to address his due process claim in
a grievance submitted at Wilcox State Prison on February 14, 2017, which apparently
concerned mail and packages. [Doc. 38-4, p. 2]. There is also no evidence that he addressed
the matter in grievances submitted at two other prisons during the 11 to 12 months he was
allegedly kept in administrative segregation following the shower confinement. [Id.].
Although the grievances may have been rejected as time barred, Plaintiff’s contention that
they actually would have been is purely speculative in light of the GDC Standard Operating
Procedures and Bryant. His failure to take advantage of the grievance process and the good
cause exception will not excuse his failure to exhaust. Accordingly, the Court ADOPTS the
Magistrate Judge’s Recommendation on this claim.
CONCLUSION
Having found that Plaintiff failed to exhaust his administrative remedies prior to
bringing the instant lawsuit, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation [Doc. 88] over Plaintiff’s Objections and GRANTS Defendants’ Motion
to Dismiss [Doc. 38] and Amended Motion to Dismiss [Doc. 50]. This case is hereby
DISMISSED without prejudice. 4

See Bryant, 530 F.3d at 1374-75 n.11 (dismissing without prejudice for failure to exhaust administrative
remedies and noting, “We decide the case before us: one where dismissal was without prejudice and where
neither party has evidenced that administrative remedies at [Georgia State Prison] are absolutely time
barred or otherwise clearly infeasible.”). There is no evidence that Plaintiff’s administrative remedies are
absolutely time barred given the good cause exception to the timeliness requirement in the GDC Standard
Operating Procedures. Therefore, the Court dismisses Plaintiff’s claims without prejudice.

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SO ORDERED, this 12th day of September, 2018.

S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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