TERRELL v. DAVIS

Filing 35

ORDER ADOPTING in part 29 Report and Recommendations; DENYING 12 Motion for TRO/Motion for Preliminary Injunction; DENYING 17 Motion to Dismiss Complaint; and DENYING 24 Motion for Preliminary Injunction. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/20/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WILLIE JAMES TERRELL, JR.,
Plaintiff,
v.
PATRICIA DENIESE DAVIS, et al.,
Defendants.

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CIVIL ACTION NO. 5:17-CV-441(MTT)

ORDER
United States Magistrate Judge Charles H. Weigle recommends that Plaintiff
Terrell’s motions for a temporary restraining order and preliminary injunctions be
denied. Doc. 29. The Plaintiff does not appear to have objected to those
recommendations. See Doc. 33. Even reviewing the motions de novo pursuant to 28
U.S.C. § 636(b)(1) in an abundance of caution, the Court adopts the findings,
conclusions, and recommendations of the Magistrate Judge as to the Plaintiff’s motions
for a TRO and preliminary injunction. That Recommendation (Doc. 29) is ADOPTED
and made the order of the Court, and accordingly, the Plaintiff’s motions (Docs. 12; 24)
are DENIED.
The Magistrate Judge also recommends that Defendants Corporal Dixon and
Corporal Kitchens’s motion to dismiss (Doc. 17) be granted. Doc. 29. The Plaintiff has
objected, reiterating his claim that he was told the issue was non-grievable and claiming
that exhaustion is an issue of fact for trial. Doc. 33 at 3-4. Pursuant to 28 U.S.C. §
636(b)(1), the Court has reviewed that portion of the Report and Recommendation de

novo, and for the following reasons, the Recommendation as to the Defendants’ motion
to dismiss is REJECTED, and that motion (Doc. 17) is DENIED.
Terrell brought this suit as an inmate pro se under 42 U.S.C. § 1983. The only
remaining claim is against Defendants Dixon and Kitchen, officers at Washington State
Prison, for deliberate indifference to medical needs in violation of Terrell’s Eighth
Amendment rights. Doc. 22. Allegedly, the Plaintiff needed urgent medical care and
was transported to the hospital on July 22, 2017. Doc. 29 at 4-5. The Defendants, who
had accompanied Terrell to the hospital, “prevented the medical professionals from
performing the recommended x-rays and CT-Scans” in order to “‘protect the state’s
budget.’” Doc. 29 at 5.
The Defendants move to dismiss for failure to exhaust prison grievance
procedures, as required by the PLRA. Docs. 17, 17-1. The Plaintiff does not contend
that he filed a grievance, but he claims instead that administrative remedies were
unavailable. Doc. 27 at 3, 8. As the Recommendation notes, there are three
circumstances in which administrative remedies might be unavailable:
(1) the procedure is a “dead end” and incapable of providing relief, (2) the
procedure if it is so opaque that it is unknown or unknowable to the inmates, and
(3) prison employees prevent inmates from taking advantage of grievance
procedures through “machination, misrepresentation, or intimidation[.]”
Doc. 29 at 7; Ross v. Blake, 136 S. Ct. 1850, 1859-1860 (2016). Here, the Plaintiff
argues in his response that he had been told by multiple prison officers, including the
chief counselor, that
“any incident occurring at an outside facility is beyond the agencies [sic] control
therefore, it is non-grievable or not a grievable issue, but a civil matter that must
be pursued outside of the agency, because it was beyond the control of the
agency.”

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Doc. 29 at 6; Doc. 27 at 3. The Defendants maintain the incident was actually grievable
under the prison’s SOP, and the Court sees no reason, for the purposes of this motion,
to doubt that. Doc. 17-1 at 3-7. But the Plaintiff’s allegation, which is uncontradicted
(Defendants did not file a reply), implicates Ross v. Blake’s third category, where the
inmate is thwarted from filing a grievance by the prison employees’ misrepresentation.
While Ross itself recognizes this category of unavailability, 136 S. Ct. at 1860, its
discussion is fairly brief. It recognizes, however, that “appellate courts have addressed
a variety of instances in which officials misled or threatened officials” to prevent their
use of procedures, citing, as one of several examples, Davis v. Hernandez, 798 F.3d
290, 295 (5th Cir. 2015). Ross, 136 S.Ct. at 1860, 1860 n.3.
Davis recognized two complementary principles: first, that a prisoner’s mere
ignorance of grievance procedures will not make exhaustion unavailable, so long as the
inmate had a fair and reasonable opportunity to learn about those procedures. Davis,
798 F.3d at 295. The Defendants present evidence that Terrell had a fair and
reasonable opportunity to learn about those procedures. The second principle,
however, is that “[g]rievance procedures are unavailable to an inmate if the correctional
facility's staff misled the inmate as to the existence or rules of the grievance process so
as to cause the inmate to fail to exhaust such process.” Davis v. Fernandez, 798 F.3d
290, 295 (5th Cir. 2015). In that case, the court applied that rule by reversing the trial
court’s grant of summary judgment for the defendant based on the plaintiff’s failure to
appeal a grievance within the prison’s grievance system. Id. at 296. The failure to
exhaust defense failed because the “jail staff” had told the plaintiff that the grievance
process included only a single step, not an appeal. Id. So even though the plaintiff

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there, like Terrell, could have learned the truth of the grievance procedures from
materials available at the prison, he was still “entitled to rely on the representations of
his jailers.” Id. Terrell was likewise entitled to rely on the representations of the officers
at his prison.
Although Davis is not controlling precedent, the Eleventh Circuit does not appear
to have ruled on unavailability due to misrepresentation under Ross. Because the
Supreme Court references Davis as an example of what it means by misrepresentation
(and because the Defendants do not cite any authority of their own on the issue), the
Court takes Davis as persuasive here.
Accordingly, the Recommendation erred by finding the Plaintiff failed to exhaust
all available remedies under Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).
Taking the Plaintiff’s version of events as true, the Court finds the grievance procedure
was clearly “unavailable” to Terrell, due to staff misrepresentation, under Ross v. Blake.
Terrell did not, therefore, fail to exhaust his available administrative remedies. Moving
on to Turner’s second step, the Defendants have not produced any evidence disputing
the Plaintiff’s claim that prison officials told him the hospital incident was non-grievable.
See Doc. 27 at 3, 8. And the Defendants do not appear to address that issue in their
filings.1 The Court therefore finds, for the purposes of resolving this motion, that
Plaintiff’s claim regarding the prison employees’ misrepresentation is true. Additionally,
the Defendants’ affidavit and exhibits go to show three things: first, that the Plaintiff did
not file a grievance for the hospital incident; second, that the incident was actually
grievable; and third, that the Plaintiff had a reasonable opportunity to learn that it was

1

As noted, the Defendants did not file a reply.

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grievable from the SOP. See generally docs. 17-1, 17-2, 17-3, 17-4, 17-5. The Court
accepts those three statements as true for the purposes of resolving this motion.
However, it still finds that the prison’s misrepresentation rendered the grievance
procedure unavailable under Ross.
Accordingly, the Magistrate’s Recommendation that the Defendants’ motion to
dismiss (Doc. 17) be granted is REJECTED, and that motion is DENIED. The
Magistrate’s Recommendation concerning the Plaintiff’s motions for a TRO and
preliminary injunctions is ADOPTED, and those motions (Docs. 12; 24) are DENIED.
SO ORDERED, this 20th day of September, 2018.
s/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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