FAISON v. GEORGIA DEPARTMENT OF CORRECTIONS et al
ORDER GRANTING 32 and 33 Motions to Dismiss. This case is DISMISSED without prejudice. Ordered by US DISTRICT JUDGE TILMAN E. SELF, III on 10/10/2019. (ech)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
TIMOTHY ELIJAH FAISON,
GEORGIA DEPARTMENT OF
CORRECTIONS, et al.,
CIVIL ACTION NO.
ORDER GRANTING MOTIONS TO DISMISS
Nine plaintiffs filed virtually identical complaints following an incident
involving the June 13, 2017, murder of two Georgia Department of Corrections officers,
Sgt. Christopher Monica and Sgt. Curtis Billue. [Doc. 1 at ¶¶ 3, 6, 34]. Plaintiff Timothy
Elijah Faison filed the eighth of those nine cases, and it is now before the Court on
Defendants’ Motions to Dismiss [Docs. 32, 33]. The Georgia Department of Corrections
(“GDC”) 1 filed the first dismissal motion, and the individual GDC employees Plaintiff
named in his Complaint, [Doc. 1], filed the second. As explained below, the Court
GRANTS both Motions.
Baldwin State Prison, Hancock State Prison, and the Georgia Diagnostic and Classification Prison are
not separate legal entities but are units of the Georgia Department of Corrections, and the Court
consistent with the parties’ language, refers to these Defendants collectively as “GDC.” [Doc. 32-1 at p. 1];
see, e.g., [Doc. 39 at p. 6 (“The GDC has filed a Motion to Dismiss . . . .”)].
The facts of this case are simple. Plaintiff was one of many GDC inmates
allegedly injured on a prison transport bus when Sgt. Monica and Sgt. Billue were
overpowered and shot with their own weapons by inmates Donnie Rowe and Ricky
Dubose. [Doc. 1 at ¶¶ 2, 6–7]. Rowe and Dubose subsequently fled the scene and
escaped. [Id. at ¶¶ 7, 34]. Plaintiff’s Complaint alleges injuries to his head and face when
the prison bus “jarred abruptly and slammed him to the floor as he attempted to run to
the rear of the bus.” [Id. at ¶ 6]. Plaintiff also claims that he “suffered Post Traumatic
Stress Syndrome and other psychiatric maladies yet to be identified” as a result of the
incident itself and his subsequent “unlawful . . . solitary confinement” “in deplorable
conditions” for 120 days. 2 [Id. at ¶¶ 6, 45].
Generally speaking, Plaintiff casts his factual allegations as violations of the
Eighth Amendment of the United States Constitution, Georgia law, and GDC rules and
regulations. [Doc. 1 at ¶ 45]. However, after a broad reading of Plaintiff’s Complaint,
Defendants refined Plaintiff’s claims as state-law tort claims and claims under 42 U.S.C.
§ 1983, and Plaintiff never contends otherwise. [Doc. 32-1 at p. 2]; [Doc. 33-1 at p. 2].
Based on his purported injuries, Plaintiff seeks at least $250,000 in damages for
negligence, deliberate indifference, and Defendants’ alleged failure to follow GDC rules
It is unclear how many days Plaintiff spent in solitary confinement. In paragraph 6 of his Complaint, he
lists 120 days, but elsewhere he alleges that he was in “solitary confinement without cause for 210 days.”
[Doc. 1 at ¶¶ 6, 37].
and regulations. [Doc. 1 at ¶ 45]; see also [id. at p. 27].
Standard of Review
Defendants seek dismissal of Plaintiff’s claims pursuant to Federal Rules of Civil
Procedure 12(b)(1) and (6). With regard to Federal Rule of Civil Procedure 12(b)(1)
jurisdictional motions, attacks on subject-matter jurisdiction come in two forms, “facial”
and “factual” attacks. Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990). Facial
attacks challenge subject-matter jurisdiction based on the allegations in a complaint. Id.
at 1529. District courts take those allegations as true in deciding whether to grant
motions based on a lack of subject-matter jurisdiction. Id. Factual attacks challenge
subject-matter jurisdiction in fact, irrespective of the pleadings. Id. In resolving a factual
attack, courts may consider extrinsic evidence such as testimony and affidavits. Id.
Defendants’ Motions under Rule 12(b)(1) are based upon a lack of subject-matter
jurisdiction, and Defendants argue that they are entitled to immunity under the
Eleventh Amendment and Georgia law.
When deciding a 12(b)(6)-based motion, district courts must accept the facts set
forth in a complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S. at 555 (2007). A
complaint survives a motion to dismiss only if it alleges sufficient factual matter
(accepted as true) that states a claim for relief that is plausible on its face. McCullough v.
Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009)). Although Federal Rule of Civil Procedure 8 does not require detailed factual
allegations, it does require “more than [ ] unadorned, the-defendant-unlawfullyharmed-me accusation[s].” McCullough, 907 F.3d at 1333 (citation omitted).
Ultimately, the issue to be decided when considering a motion to dismiss is not
whether the claimant will ultimately prevail, but “whether the claimant is entitled to
offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
overruled on other grounds by Davis v. Scheuer, 468 U.S. 183 (1984). A complaint tendering
“‘naked assertion[s]’ devoid of ‘further factual enhancement’” will not survive against a
motion to dismiss; it must allege enough facts “to raise a reasonable expectation that
discovery will reveal evidence” supporting a claim. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557) (alteration in original); see also Twombly, 550 U.S. at 556.
Finally, “if [a] complaint contains a claim that is facially subject to an affirmative
defense, that claim may be dismissed under Rule 12(b)(6). LeFrere v. Quezada, 582 F.3d
1260, 1263 (11th Cir. 2009). In applying the foregoing standard, and taking the facts
asserted in Plaintiff’s Complaint as true, the Court rules on Defendants’ Motions to
GDC’s Motion to Dismiss
As previously stated, Defendant GDC sets forth two main bases for dismissal: (1)
that it is immune from suit in this Court under both the United States and Georgia
Constitutions, and (2) that Plaintiff’s state-law claims are further barred by the Georgia
Tort Claims Act (“GTCA”). [Doc. 32-1 at pp. 4–13]. Given that GDC is undeniably
immune from suit on Plaintiff’s claims the Court need not discuss GDC’s proceduralrelated arguments under the GTCA.
Rather than address GDC’s specific arguments related to its immunity, Plaintiff
argued that he should be permitted to take 90–150 days for discovery, the results of
which, he asserts, would enable him “to substantiate his claims,” to determine “the real
party of interest,” and “to properly present his position [in] response to [Defendants’]
Motion to Dismiss.” [Doc. 39 at pp. 4–5]. Plaintiff’s argument that GDC “has offered no
evidence as to the real party of interest,” appears to reference the Eleventh
Amendment’s bar to suits where the state is “the real party in interest or when any
monetary recovery would be paid from state funds.” [Doc. 41 at p. 2 (quoting Kentucky
v. Graham, 473 U.S. 159, 169 (1985))]; [Doc. 39 at p. 5]. Interpreted broadly, Plaintiff’s
argument is perhaps an assertion that discovery would determine whether the State of
Georgia is the real party in interest regarding suits against GDC.
However, as GDC states, that question is “well-settled in this circuit.” [Doc. 41 at
p. 2]. In Stevens v. Gay, the Eleventh Circuit Court of Appeals unequivocally determined
that Section 1983 claims cannot proceed against GDC. 864 F.2d 113, 115 (11th Cir. 1989)
(finding in a Section 1983 lawsuit that “[t]he Eleventh Amendment bars this action
against the Georgia Department of Corrections”). Accordingly, Plaintiff’s Section 1983
claims against GDC are barred.
Plaintiff’s state-law claims against GDC are also barred by state sovereign
immunity. The State of Georgia has waived sovereign immunity for certain claims
against it but not for assault and battery. O.C.G.A § 50-21-24(7) (“The state shall have no
liability for losses resulting from assault [or] battery . . . .”). Thus, to the extent Plaintiff
asserts assault and battery claims, they are barred by state sovereign immunity.
Furthermore, even if Plaintiff attempted to assert a negligence claim arising from
injuries he received as a result of some assault or battery, state sovereign immunity also
bars such a claim. The Georgia courts have explained that where “a plaintiff’s injury
was caused by an assault and battery committed by a third party, the state is immune
from suit even if the assault and battery was facilitated by or resulted from the prior
negligent performance of a state officer or employee.” Pelham v. Bd. of Regents of Univ.
Sys. of Ga., 743 S.E.2d 469, 473 (Ga. Ct. App. 2013) (citing Youngblood v. Gwinnett Rockdale
Newton Comm. Serv. Bd., 545 S.E.2d 875, 878 (Ga. 2001)). Therefore, Plaintiff’s claims
against GDC cannot proceed and GDC’s Motion to Dismiss [Doc. 32] is GRANTED.
Individual Defendants’ Motion to Dismiss
In their Motion, Defendants Gregory C. Dozier, Ricky Myrick, Clay Nix, Timothy
C. Ward, Jack Randall Sauls, Trevonza Bobbitt, Eric Sellers, Annettia Toby, and Jay
Sanders (collectively, the “Individual Defendants”) argue that Plaintiff failed to exhaust
his administrative remedies under the Prison Litigation Reform Act of 1995, 42 U.S.C. §
1997e(a) (“PLRA”). 3 In response, Plaintiff does not argue that he did in fact exhaust his
administrative remedies. Instead, he simply argues that his failure to exhaust should be
excused by his post-traumatic stress. [Doc. 40 at p. 10 (“At the time of being placed in
solitary [confinement], Plaintiff Faison was unaware of his surroundings[ ] and was not
in his right mind to file any grievances or to request[ ] regulations on how to file same
due to PTSD.”)].
Irrespective of whether Plaintiff’s claims against the Individual Defendants are
barred by various immunities, the PLRA clearly mandates that an inmate must exhaust
“such administrative remedies as are available” before bringing suit. Ross v. Blake, 136 S.
Ct. 1850, 1854–55 (2016). According to the Supreme Court, the mandatory language
embedded within the PLRA “means [that] a court may not excuse a failure to exhaust,
even to take special circumstances into account.” Id. at 1856. Only when administrative
remedies are unavailable or “not capable of use to obtain relief,” can an inmate’s failure
to exhaust be excused. Id. at 1853. “First, an administrative procedure is unavailable
when it operates as a simple dead end—with officers unable or consistently unwilling
to provide any relief to aggrieved inmates.” Id. Second, “an administrative scheme
might be so opaque that it becomes, practically speaking, incapable of use—i.e., some
The Individual Defendants also argue that the claims against them are subject to dismissal based on:
state sovereign immunity; failure to state an Eighth Amendment claim under Section 1983; and qualified
immunity. However, because the Court finds that Plaintiff in fact failed to exhaust his administrative
remedies under the PLRA it does not address these arguments.
mechanism exists to provide relief, but no ordinary prisoner can navigate it.” Id. at
1853–54. And third, “a grievance process is rendered unavailable when prison
administrators thwart inmates from taking advantage of it through machination,
misrepresentation, or intimidation.” Id. at 1854.
Here, Plaintiff’s excuse that “he was not in his right mind” does not fall within
any of these three exceptions to exhaustion under the PLRA. [Doc. 40 at p. 10]. Given
that Plaintiff has failed to demonstrate that the grievance process was unavailable to
him, he failed to exhaust his administrative remedies, and such failure cannot be
excused. Consequently, the Court must dismiss his claims against the Individual
Defendants, and their Motion to Dismiss [Doc. 33] is GRANTED.
Based on the foregoing, the Court GRANTS Defendants’ Motions to Dismiss
[Docs. 32, 33]. This case is DISMISSED without prejudice.
SO ORDERED, this 10th day of October 2019.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
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