Davila v. Marshall et al

Filing 89

ORDER granting 73 Defendants' Unopposed Motion for Summary Judgment. Plaintiff's Complaint is Dismissed, without prejudice. The Clerk of Court is directed to enter the appropriate judgment of dismissal. Signed by Magistrate Judge James E. Graham on 9/2/2014. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

ANTHONY DAVILA,
Plaintiff,
:

V.

CIVIL ACTION NO.: CVII2-149

LOGAN MARSHALL, Sheriff, and
CHRISTOPHER DURDEN, Captain,
Defendants.

ORDER
Plaintiff, who is currently housed at the Federal Correctional Institution in Jesup,
Georgia, filed a cause of action pursuant to 42 U.S.C. § 1983 and the Religious Land
Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-I,

et seq.

("RLUIPA"), contesting certain conditions of his confinement while he was housed at the
McDuffie County Detention Center in Thomson, Georgia. Defendants filed a Motion for
Summary Judgment on April 21, 2014. The Clerk of Court mailed a Notice to Plaintiff
advising him that Defendants filed a Motion for Summary Judgment and that a response
must be filed by May 15, 2014. (Doc. No. 74). That Notice further advised Plaintiff that:
1. If you do not timely respond to this motion .. ., the consequence may be
that the Court will deem the motion unopposed, and the Court may enter
judgment against you.
2. If your opponent's Statement of Material Facts sets forth facts supported
by evidence, the Court may assume that you admit all such facts unless
you oppose those facts with your own Statement of Material Facts which
also sets forth facts supported by evidence.
3. If a summary judgment motion is properly supported, you may not rest on
the allegations in your [Complaint] alone.

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(j).

Plaintiff filed no Response to Defendants' Motion for Summary Judgment.

However, "the district court cannot base the entry of summary judgment on the mere
fact that the motion [is] unopposed but, rather, must consider the merits of the motion."
United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami

EJ& 363 F.3d 1099, 1101 (11th Cir. 2004) (citation omitted). Specifically, the court
"must still review the movant's citations to the record to determine if there is, indeed, no
genuine issue of material fact." Mann v. Tager Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir.
2009) (citation omitted).
STATEMENT OF THE CASE
Plaintiff contends that Defendants Marshal and Durden did not allow him to have
Santeria beads, cowrie shells, or his bible. Plaintiff asserts that these items are
necessary to the practice of his religion. Plaintiff also asserts that inmates who are of
other faiths are allowed to have their religious items.
Defendants assert that Plaintiff failed to exhaust his administrative remedies prior
to the filing of this cause of action. Defendants allege that Plaintiffs injunctive relief
claim is moot, as he has been transferred to another penal institution. Defendants also
allege that Plaintiff's remaining claims for nominal damages are without merit. Finally,
Defendants allege that they are entitled to qualified immunity.
STANDARD OF REVIEW
The determination of whether an inmate exhausted his available administrative
remedies prior to filing a cause of action in federal court is a matter of abatement and
should be raised in a motion to dismiss, or treated as such if raised in a motion for
summary judgment. Duble v. FedEx Ground Package System, Inc., - F. App'x -,

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No. 13-12749, 2014 WL 3631905, at *3 (11th Cir. July 14, 2014) (citing Bryant v. Rich,
530 F.3d 1368, 1374-75 (11th Cii. 2008)). "Even though a failure-to-exhaust defense is
non-jurisdictional, it is like" a jurisdictional defense because such a determination
"ordinarily does not deal with the merits" of a particular cause of action. Bryant, 530
F.3d at 1374 (internal punctuation and citation omitted). A judge "may resolve factual
questions" in instances where exhaustion of administrative remedies is a defense
before the court. Id.
DISCUSSION AND CITATION TO AUTHORITY
Where Congress explicitly mandates, prisoners seeking relief for alleged
constitutional violations must first exhaust inmate grievance procedures before filing suit
in federal court. See Porter v. Nussle, 534 U.S. 516, 524 (2002). 42 U.S.C. § 1997e(a)
states, "No action shall be brought with respect to prison conditions under section 1983
of this title, or any other Federal law . . . until such administrative remedies as are
available are exhausted." In Porter, the United States Supreme Court held that
exhaustion of available administrative remedies is mandatory. Porter, 534 U.S. at 523.
The Supreme Court has noted exhaustion must be "proper." Woodford v. Nqo, 541
U.S. 81, 92 (2006). "Proper exhaustion demands compliance with an agency's
deadlines and other critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure on the course of its
proceedings." Id. at 90-91. In other words, an institution's requirements define what is
considered exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007).
In Turner v. Burnside, 541 F.3d 1097 (11th Cir. 2008), the Eleventh Circuit
clarified how the lower courts are to examine the issue of exhaustion of administrative

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remedies. First, the court is to take the plaintiffs version of the facts regarding
exhaustion as true. Id. at 1082. If, even under the plaintiffs version of the facts, plaintiff
has not exhausted, the complaint must be dismissed. Id. However, if the parties'
conflicting facts leave a dispute as to whether plaintiff has exhausted, the court need not
accept all of plaintiffs facts as true. Id.. Rather, "the court then proceeds to make
specific findings in order to resolve the disputed factual issues[.]" j "Once the court
makes findings on the disputed issues of fact, it then decides whether under those
findings the prisoner has exhausted his available administrative remedies." Id. at 1083.
The grievance procedure for the McDuffie County Detention Center
provides:
Any inmate shall be entitled to communicate legitimate complaints.
Grievances will be in writing.
Grievances may be given to any staff member for prompt transmittal. All
grievances must fully describe the factual basis and circumstances of the
alleged incident or situation and include a specific complaint and signed
by the staff member when picked up.
(Doc. No. 73-3, p. 7). The jail administrator is to make available a grievance form to all
inmates on request. The jail administrator responds to the grievance in writing. The jail
administrator's decision "may be appealed to the Sheriff within seventy-two (72) hours
of the receipt of the grievance decision." (Doc. No. 73-3, p. 13).
Defendants assert that Plaintiff failed to exhaust his administrative remedies
under the grievance procedure which was in place at the McDuffie County Detention
Center, even though Plaintiff received "clear notice" of the procedure. (Doc. No. 73-5,
p. 7). Defendant Durden, who served as the jail administrator and records custodian
during the time Plaintiff was housed at McDuffie County Detention Center, declares that

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his review of Plaintiff's inmate file showed that Plaintiff failed to file any grievance from
the first day he was housed at McDuffie County Detention Center until the date he filed
this cause of action on October 3, 2012. (Doc. No. 73-3, p. 4, ¶ 12). Defendant Durden
states that all inmate grievance and grievance appeal forms which an inmate filed are
kept in that inmate's file. (kL). Defendant Durden also declares that a copy of the
Inmate Handbook, which includes the grievance procedure, is posted in plain view to all
inmates and is in the inmates' living quarters. Defendant Durden further declares that
inmates are typically given a copy of this handbook during the booking process. (kJ. at
p. 3, ¶ 9).
The evidence before the Court reveals that Plaintiff failed to exhaust his available
administrative remedies prior to the filing of this cause of action. It is unnecessary to
address the remaining portions of Defendants' Motion.

CONCLUSION
Based on the foregoing, Defendants' Unopposed Motion for Summary Judgment
is GRANTED.

Plaintiff's Complaint is DISMISSED, without prejudice, based on his

failure to exhaust his administrative remedies prior to filing this cause of action. The
Clerk of Court is directed to enter the appropriate judgment of dismissal.

SO ORDERED, this

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OW
day of September, 2014.

1ESE. GRAHAM
[TED STATES MAGISTRATE JUDGE

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