Griggs v. Davis et al

Filing 78

ORDER granting in part and denying in part 29 Motion to Dismiss. Plaintiff Christopher Varner's claims are dismissed with prejudice, while Plaintiffs Eugene Griggs and Cameron Maddox's claims shall proceed; denying without prejudice Defe ndants' 33 Motion to Sever; granting Defendant Justin Washington's 38 and 58 Motions to Dismiss. The stay of discovery is lifted. Parties shall confer and submit a Rule 26(f) Report with proposed case deadlines within seven days pursuant to the Court's 43 Order. Signed by Chief Judge J. Randal Hall on 10/24/2018. (jlh)

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

EUGENE GRIGGS, CHRISTOPHER

VARNER, and CAMERON MADDOX,
Plaintiffs,
CV 117-089

V.

AHMED HOLT, in his official

capacity as Assistant Regional
Director, Georgia Department
of Corrections; EDWARD PHILBIN,

in his official capacity as
Warden, Augusta State Medical
Prison;! STAN SHEPARD, in his
individual capacity; VERNEAL
EVANS, ANTONIO BINNS,
JUSTIN WASHINGTON, LENON
BUTLER, RODGERICK NABORS,

JULIAN GREENAWAY, and JERRY
BEARD, Former Correctional

Officers, Augusta State Medical
Prison, in their individual
capacities; TREI BLUITT, JANSON
CREAGOR, and JOHN DOE,

Correctional Officers, Augusta
State Medical Prison, in their

individual capacities.
Defendants.

ORDER

Before the Court are two motions to dismiss and a motion to

sever.

The first motion to dismiss is filed by Defendants Jerry

Beard, Lenon

Butler,

Julian

Shepard, and Scott Wilkes.

Greenaway,
(Doc. 29.)

Rodgerick

Nabors,

Stan

The other is filed by

1 The Clerk is DIRECTED to add Defendants Holt and Philbin as parties to the
case as discussed, infra, at 9-10.

Justin Washington, who is proceeding pro se.

Washington's

motion

and

brief

are

(Docs. 38, 58.)

identical

to

his

fellow

Defendants' filings, and, therefore, the Court will address them

together.

Plaintiffs filed a response in opposition to the motions

to dismiss and

Defendants submitted a reply brief in support.

(Docs. 68, 77.)

For the reasons stated below. Defendants' motion

to dismiss (doc. 29) is GRANTED IN PART AND DENIED IN PART and

Defendant

Washington's

motions

to

dismiss

(docs.

38,

58)

are

GRANTED.

The motion to sever is filed by Defendants Jerry Beard, Trei
Bluitt,

Lenon

Greenaway,

Butler,

Rodgerick

Plaintiffs filed

a

Janson

Nabors,

response

Creagor,

Stan
in

Verneal

Shepard,

opposition

Evans,

and
to

Defendants submitted a reply brief in support.

Scott

the

Julian

Wilkes.

motion,

and

(Docs. 69, 76.)

For the reasons given below. Defendants' motion to sever (doc. 33)
is DENIED.

I.

BACKGROUND

This case began with a complaint filed by Christopher Varner,
Eugene. Griggs, and Cameron Maddox, all inmates or former inmates
at the Augusta State Medical Prison ('"ASMP"); each man alleges he

was the subject of an excessive force assault by correctional
officers

at

Amendments.

ASMP

in

violation

of

the

Eighth

and

Fourteenth

A. Christopher Varner's Excessive Force Allegations

On February 13, 2014, Varner was standing in the medication
line at ASMP with other inmates.
Defendants

Antonio

Binns,

Justin

(Am. Compl., Doc. 7, SI 58.)
Washington,

Lenon

Butler,

Rodgerick Nabors, and Julian Greenaway, all correctional officers,
entered the hallway and began shouting epithets at the inmates.
(Id. SI 59.)

Varner verbally responded to the officers leading

Sergeant John Williams to grab Varner and attempt to handcuff him.
(Id. SI 60.)

In response, Varner turned and struck Sgt. Williams

in the head.

(Id.)

This prompted the officers to attack Varner

by placing him in a chokehold until he lost consciousness. (Id. SI
61.)

When

Varner

regained

awareness,

he

was

handcuffed

and

bleeding in a small vestibule off the hallway while the officers
stood around him.

(Id. SI 62.)

The officers continued to punch,

kick, and stomp Varner while he was handcuffed on the floor.

(Id.)

Next, the officers escorted Varner to an elevator, and, upon

entering it, they resumed assaulting Varner despite the fact that
he was handcuffed and otherwise compliant.

(Id. SISI 64, 66.)

The

officers continued to use force against Varner while riding up and
down the elevator four times.

(Id. SI 67.)

One officer used pepper

spray on Varner's face, and Defendant Butler employed a metal baton
to beat Varner.
officers

took

continued.

(Id.

Varner

(Id.)

SI 68.)

to

ASMP's

Upon exiting the elevator, the
medical

unit

where

the

attacks

A nurse in the medical unit pleaded with the

officers to stop, but they persisted in attacking Varner with kicks
to the face, pepper spray, and a metal baton.

(Id. SISI 68-69.)

After the assault ended, Varner needed to be transferred to

a civilian hospital for treatment of a broken eye socket, jaw,
nose, and extensive bruising on his face and torso.

(Id. SI 71.)

Varner alleges that he continues to suffer pain in his jaw and

feet; frequent headaches; and an exacerbation of his pre-existing
mental illnesses, schizophrenia and bipolar disorder.
71.)

(Id. SISI 34,

In April 2017, Defendants Binns and Washington as well as

Sgt. Williams were convicted and sentenced in this Court for their
role in assaulting Varner.

(Id. SI 72.)

B. Investigations Regarding the Assault on Varner

On the same day that Varner was assaulted, an inmate called
Varner's father,

Thomas

medical condition.

Starkey, to inform

him about Varner's

(Decl. of Thomas Starkey, Doc. 68-12, SI 8.)^

Starkey and Varner's mother telephoned the Warden's office to
express concerns over the incident.
Davis, Doc. 68-13, SISI 7-9.)

(Id. SI 9; Decl. of Trade

An incident report was generated in

which the Warden recommended turning the investigation over to an
internal affairs unit.

1.)

(Incident Report No. 142128, Doc. 68-8, at

An investigation was then conducted by the Georgia Department

of Correction's (""GDC") Internal Investigations Unit (^"IIU").

The

2 Although evidence contained outside the pleadings is generally not considered
in a motion to dismiss, outside evidence not bearing on the merits of the case
may be considered by the Court when analyzing whether a prisoner exhausted his
administrative remedies, as required by the Prison Litigation Reform Act.
Bryant v. Rich, 530 F.Sd 1368, 1374-75 (11th Cir. 2008).
4

investigator interviewed Defendants Binns and Washington as well
as Sgt. Williams.

(Doc. 11-3, at 2-3.)

The investigation report

noted that after the February 13th incident, each man resigned in
lieu of termination.

(Id. at 3-4.)

On July 24, 2015, seventeen months after the assault, Varner
filed

a

grievance

about

the

incident

alleging

Washington,

Greenaway, Butler, and Sgt. Williams broke his jaw, nose, and eye
socket.

(Grievance

No.

201318,

Doc.

68-11,

at

3.)

The

ASMP

Grievance Coordinator and Warden both rejected the grievance as
untimely.

(Id.)

Nearly a year later, on June 24, 2016, Varner filed a second
grievance regarding the February 13th incident.
222227, Doc. 68-11, at 4.)

(Grievance No.

In that submission, Varner requested

leave to file out of time because he is ''mental health with brain

damage" and stated, "I had no clue to grieve for [sic] I can sue
in the name of the law."

(Id.)

This grievance was also rejected

by the Grievance Coordinator and Warden for being untimely; both
also noted that the staff members named by Varner were no longer

employed at ASMP.

(Id.)

After rejection of the grievance, Varner

filed a Central Office Appeal.

77-1, ^ 15.)

(Decl. of Shareka Browman, Doc.

On appeal, the decision to reject the grievance as

untimely was upheld.

(Id.)

Finally, on June 21, 2017, Varner filed a third grievance
about the incident and again requested leave to file out of time.
(Grievance

No.

247024,

Doc.

68-11,
5

at

6.)

Varner

cited

his

inability to comprehend civil law and the limiting effect of his
injuries following the
filing.

(Id.)

assault

as justification for the

late

The grievance was again rejected as untimely by

administrators without comment on whether Varner had shown good
cause for his untimeliness.

(Id.)

C. Cameron Maddox's Excessive Force Allegations

Plaintiff Cameron Maddox also alleges he was assaulted with

excessive force by correctional officers at ASMP.

On September

27, 2016, Maddox was handcuffed and removed from his cell because

an officer suspected Maddox of fighting with his cellmate.

Compl., 5 90.)

(Am.

Maddox was examined at the medical unit for signs

of any injuries sustained during the suspected fight; none were
found.

(Id. 5 92.)

Defendants Janson Creagor and Trei Bluitt,

both correctional officers, then escorted the handcuffed Maddox to

an administrative segregation cell.

(Id. ^ 96.)

While riding in

the elevator, Bluitt began punching Maddox in the thigh while

Creagor kneed Maddox in the torso. (Id. 1 95.)

Next, Bluitt used

a baton to strike him while both officers criticized Maddox for

attacking his cellmate.

(Id.)

Throughout this attack, Maddox

maintains he was handcuffed and compliant.

(Id. SI 93.)

Once inside the segregation cell the officers continued their
assault of Maddox.
Maddox's
forehead.

head

(Id. SISI 96-97.)

into the

(Id. SI 97.)

cell

At one point, Creagor pushed

wall causing

a

laceration

on

his

Before leaving the cell, the officers

instructed Maddox to clean up the blood from his head.
6

(Id. SISI

98-99.)

The next day, before Maddox was allowed to meet with his

visiting mother, he was taken to the medical unit to receive
treatment for the cut on his head and change into a uniform without
blood

stains.

(Id.

SISI 100-01.)

In

addition

laceration, Maddox sustained bruises on his leg.

to

the

head

(Id. 5 102.)

D. Eugene Griggs's Excessive Force Allegations

On July 27, 2015, Plaintiff Eugene Griggs attempted to visit
his mental health counselor.

(Am. Compl., 5 79.)

While Griggs

was waiting in line. Defendant Verneal Evans ordered Griggs and
other prisoners to clear the hallway where they were lined up and
to wait outside a door at the end of the hallway.

(Id. f 80.)

Griggs complied with the instruction and began walking to the
doorway.

(Id. SI 81.)

Following after Griggs, Evans began to walk

through the doorway, but he was distracted by giving orders to
other inmates.

(Id. SI 82.)

This distraction caused Griggs and

Evans to inadvertently bump into one another.

(Id.)

In response,

Evans grabbed Griggs by the throat and pushed him against the wall
before slamming Griggs to the ground.

(Id. SI 83.)

As a result of the incident, Griggs suffered bruising on his
shoulder

blades

shoulders.

and

experienced

(Id. SI 85.)

pain

in

his

head,

neck,

and

Upon examination in the medical unit, a

physician's assistant determined that Griggs suffered no visible
injuries.
with

a

(Id. SI 88.)

taser

on

two

Griggs further alleges he has been stunned
separate

occasions

after

the

July

27th

incident,

both

times

without

sufficient

provocation.

(Id.

SISl 127-28.)

E. Allegations of ASMP's Ongoing Practice of Using Excessive Force

Plaintiffs allege the above described assaults and multiple
others

mentioned

in

the

Amended

Complaint^

represent

ASMP's

''longstanding pattern and practice" of correctional officers using
excessive force on prisoners solely to inflict pain on inmates,
many

of

whom

illnesses.

suffer

(Id.

from

debilitative

104, 107.)

physical

and

mental

Correctional officers use secluded

areas, such as elevators, to conduct these attacks because those
areas are not under video surveillance.

(Id. 5 106.)

Plaintiffs

allege prison administrators, namely Defendants Stan Shepard and
Scott Wilkes, have failed to correct these practices and routinely

downplay

or

ignore

credible

inmates.

(Id. 55 117-21.)

complaints

of

excessive

force

by

Finally, because Maddox and Griggs are

still housed at ASMP, they face an ongoing risk of being harmed by
correctional officers using excessive force.

(Id. 55 126, 132.)

Based on the foregoing facts, each Plaintiff brings a claim
for damages against their attackers.
Defendants

Washington,

Binns,

In Count I, Varner alleges

Butler,

Nabors,

and

Greenaway

violated his Eighth and Fourteenth Amendment rights during the
February 13th incident.

(Id. 55 143-46.)

Griggs alleges Defendant

Evans violated his Eighth and Fourteenth Amendment rights during

3 (See Am. Compl., If 109-14.)

the July 27th incident.

(Id. SISI 139-42.)

Lastly, Maddox alleges

Defendant Bluitt and Creagor violated his Eighth and Fourteenth

Amendment

rights

during

the

September

27th

incident.

(Id.

147-50.)

In

Count

Defendants

capacities,

II,

Stan

Varner

Shepard

under

a

brings

and

theory

a

Jerry

of

claim

for

Beard,

in

supervisor

damages
their

(Id. SISI 151-59.)

individual

liability for

failure to take reasonable steps to prevent the

assault.

against

their

February 13th

Varner specifically alleges Beard ^'had

personally ordered, authorized, or condoned the use of excessive
force against prisoners" at ASMP.

(Id. 5 155.)

Finally, in Count III, Maddox and Griggs bring a claim for
declaratory and injunctive relief against Defendant Stan Shepard,
Assistant Regional Director for the North Region of the GDC, and
Defendant Scott Wilkes, Warden of ASMP.

(Id. SlSl 160-63.)

This

claim is brought against Wilkes and Shepard, in their official
capacities, to prevent further violations of Griggs and Maddox's
rights under the Eighth and Fourteenth Amendments.

Since filing the Amended Complaint, both Shepard and Wilkes
have been replaced in their respective positions.

(Docs. 62, 65.)

Under Federal Rule of Civil Procedure 25(d), when a party sued in
his official capacity resigns his position, the party's successor
is

automatically

substituted

ORDERED that ASMP's new

into

the

case.

IT

IS

THEREFORE

Warden Edward Philbin is substituted for

Defendant Scott Wilkes and GDC s new Assistant Regional Director
9

Ahmed Holt is substituted for Stan Shepard.^

Both Holt and Philbin

are Defendants only in their official capacities.

II.

Defendants'

motion

to

DISCUSSION

dismiss

raises

two

issues.

First,

Defendants that are the subject of Varner's claims argue that
Varner failed to exhaust his administrative remedies through the

GDC grievance procedure, as required by the Prison Litigation
Reform Act, and therefore Varner is barred from bringing this

action.

Second,

Defendants Shepard

and

Wilkes,

now

Holt and

Philbin, contend Plaintiffs' claims for declaratory and injunctive
relief should be dismissed for failure to state a claim.

will first address

Defendants'

position that

The Court

Varner failed to

exhaust his administrative remedies.
A. Varner's Exhaustion of Administrative Remedies

1. Georgia Department of Correction^s Grievance Procedure
To

start,

it

is

important

procedure that applied to Varner.

to

outline

the

GDC

grievance

The process commences with an

inmate filing a grievance, which must be submitted within ten
calendar days from the ^Mate the offender knew, or should have
known, of the facts giving rise to the grievance." (GDC's Standard

Operating Procedure C'SOP") IIB05-0001, Doc. 29-2, Attach. A, at
7.)

The prison's Grievance Coordinator screens the complaint to

^ The Clerk is DIRECTED to terminate Defendants Wilkes and Shepard as parties.
10

recommend whether the Warden should accept or reject the grievance.

(Id.)

The SOP gives four situations in which the Warden should

reject a grievance.

(Id. at 7-8.)

Relevant here is rejection for

the grievance not being filed within the ten-day deadline.
at 7.)

for

(Id.

However, the Grievance Coordinator may waive the time limit

^'good

cause."

(Id.)

The

SOP

defines

good

cause

as ''a

legitimate reason involving unusual circumstances that prevented
the offender from timely filing a grievance or an appeal.

Examples

include: serious illness [or] being housed away from a facility
covered by this procedure."

(Id. at 2.)

An inmate can file an

appeal with the Central Office where the Grievance Coordinator
rejects the grievance, once the Warden responds to the grievance,
or after the forty-day period allowed for the Warden's response
expires without a decision.

(Id. at 8-11.)

Special rules apply to grievances that allege the

use of

physical force involving non-compliance with GDC policies.
grievances

are

^'automatically

forwarded

through

the

Such
Scribe

application to [the] Internal Investigation Unit' and/or the PREA
Coordinator for review and whatever action is deemed appropriate."
(Id. at 10) (emphasis omitted).

"Once a grievance is referred to

[the] Internal Investigation Unit and/or the PREA Coordinator,
then this is the final action that will be taken on the Grievance

and

terminates

the

grievance

procedure."

omitted).

11

(Id.)

(emphasis

2. PLRA Administrative Exhaustion Standard

The

Prison

Litigation

Reform

Act

C'PLRA")

provides:

^'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 a jail, prison, or other correctional facility until
such

administrative

remedies

42 U.S.C. § 1997e(a).

to

administrative

to

internally
record

are

available

are

exhausted."

The purpose of the exhaustion requirement

is, among other things,

opportunity

as

that

filter out frivolous claims.

allow

an institution

address

complaints,

clarifies

the

the time

to

build

controversy,

and

and

an
to

Porter v. Nussle, 534 U.S. 516, 525

(2002).
Because exhaustion of administrative remedies is a matter of

abatement

and

not

an

adjudication

on

the

merits,

issues

of

exhaustion under the PLRA are to be decided on a motion to dismiss.

Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008).

Although

analyzed as a motion to dismiss, ''it is proper for a judge to
consider

facts

outside

the

pleadings

and

to

resolve

factual

disputes so long as the factual disputes do not decide the merits."
Id. at 1376.

The Eleventh Circuit uses a two-step process for analyzing
exhaustion.

First, the court compares the factual allegations in

the defendant's motion to dismiss with those in the plaintiff's
response,

and,

where

a

conflict

exists,

plaintiff's version of the facts as true.
12

the

court

takes

the

Turner v. Burnside, 541

F.3d 1077, 1082 (11th Cir. 2008).

If, under that light, the

defendant is entitled to dismissal for the plaintiff's failure to
exhaust

administrative

dismissed.

remedies,

the

complaint

should

be

Id.

Where dismissal is inappropriate at the first step, the court

must make specific factual findings to resolve disputed issues
related to exhaustion.
an

affirmative

Id.

defense

At this stage, because exhaustion is

and

not

a

pleading

requirement,

the

defendant has the burden of proving the plaintiff failed to exhaust
his available administrative remedies.

Id. (citing Jones v. Bock,

549 U.S. 199, 216 (2007)).

In this case, the parties make diverging allegations over
whether

an

administrative

remedy

was

available

to

Varner

and

whether the grievances Varner did file about the February 13th
incident properly exhausted his remedies under the PLRA.

As such,

the Court must take Varner's version of the facts as true and finds

Defendants are not entitled to dismissal because Varner alleges

the GDC grievance procedure did not provide an available remedy to
him.

Accordingly, the Court must move to the second Turner step

and make specific findings to resolve the parties' factual disputes
regarding exhaustion.
issues:

(1)

whether

Broadly speaking, the parties dispute three
an

administrative

remedy

was

available

to

Varner, (2) whether the IIU's internal investigation satisfies
Varner's

exhaustion

requirement,
13

and

(3)

whether

the

three

grievances Varner submitted regarding the February 13th incident
properly exhausted his administrative remedies.

The Court will

address each issue in turn.

3. Availability of Administrative Remedies

Varner's principal argument is that GDC s grievance procedure
does not provide him a remedy.

In Ross v. Blake, 578 U.S.

,

136 S. Ct. 1850 (2016), the United States Supreme Court announced

three situations where an administrative remedy is unavailable to

a prisoner.

Id. at 1859-60.

First, an administrative procedure

is unavailable when prison officials refuse to follow established

grievance policy or are ''consistently unwilling" to provide relief
to inmates.

Id. at 1859.

Second, the administrative process might

be so confusing or vague that it is "essentially unknowable."

Importantly, the

Supreme

Court

imposes an

objective

Id.

standard,

requiring the rules to be so confusing that "no ordinary prisoner
can discern or navigate it . . . no reasonable prisoner can use
them." Id. (emphasis added).

Finally, a remedy may be unavailable

where prison administrators prevent inmates from filing grievances

through "machination, misrepresentation, or intimidation." Id. at
1860.

Varner makes no allegations or arguments under the third

situation, but does address the other two.

To

the

extent

Varner

argues

that

his

mental

condition

prevented him from understanding the grievance process and the
need to complain about the February 13th incident, that argument
must

fail.

In

Ross,

the

Supreme
14

Court

rejected

the

Fourth

Circuit's ^^special circumstances" test and held the PLRA does not

permit any discretionary
requirement.

judge-made exceptions" to the exhaustion

136 S. Ct. at 1856.

As noted above, the second

availability exception requires the court to apply an objective
standard, not a subjective standard that considers an inmate's

special circumstances.
is given

Here, the evidence shows that each inmate

an oral explanation of the

grievance

procedure

upon

entering the custody of the GDC and a copy of the Orientation
Handbook for Offenders.

inmates

can

access

a

(Decl. of Shareka Browman, 5 4.)

copy of the

facility or law library.

grievance

Further,

procedure

at the

(Id.)

To hold, as Varner would have the Court do, that his inability

to know that he needed to file a grievance about the incident makes
a remedy unavailable to him would carve out a special circumstance
for

a

particular

plaintiff,

unequivocally rejected in Ross.

a

practice

the

Supreme

Court

Indeed, "in construing the PLRA's

exhaustion provision [the Supreme Court] reject[ed] every attempt
to deviate . . . from its textual mandate." Id. at 1857.

Although

the

by

application

of

the

objective

standard

mandated

Ross

unavoidably leads to the harsh result that an administrative remedy
was available to Varner despite his mental illnesses, the Court is
bound to follow Supreme Court precedent.

Moreover, an exception for Varner would be especially hard to

justify considering he filed two unrelated grievances about his
health

care

on

March

12,

2014.
15

(Doc.

29-2,

Attachs.

C,

D.)

Although these grievances were filed just beyond the ten-day window
for filing a complaint about the February 13th incident, they are

close enough in proximity to show Varner understood how to utilize
the grievance procedure.

As such, the Court finds that ASMP's

grievance procedure provided an available remedy to Varner for the
February 13th incident.
Next, Varner contends that the GDC grievance procedure for
excessive force complaints operates as a dead end that cannot

provide relief because such grievances are automatically forwarded
to the IIU, which terminates the grievance procedure.

The filing

of an excessive force grievance is not a dead end, rather it is

the one action that would satisfy Varner's duty to exhaust his
administrative remedies.

In White v. Staten, 672 F. App'x 919

(11th Cir. 2016) (per curiam), the court interpreted the same

grievance procedure that is at issue in this case.

Id. at 921-22.

The court found that timely filing an excessive force grievance
was all a prisoner needed to do to exhaust his administrative

remedies because such grievances are automatically forwarded to
the IIU, at which point the grievance process terminates.

Id. at

923.

Further,

filing

an

excessive

force

grievance

that

is

automatically forwarded to the IIU does provide some prospect of
relief to prisoners, contrary to Varner's position.

Here, the IIU

investigation initiated by ASMP's Warden led to Sgt. Williams and

Defendants Washington and Binns resigning from ASMP in lieu of
16

termination.

(Report of Investigation, Doc. 77-3, at 3-4.)

In

addition, the investigation was responsible for the three officers
being prosecuted under 18 U.S.C. § 242 for deprivation of rights
under

color

of

state

law.

See

United

States

of

America

Williams, et al., l:16-CR-024 (S.D. Ga. April 7, 2016).

v.

These

facts show that an IIU investigation, whether requested on the

Warden's own initiative or by an inmate grievance, can provide

relief to a prisoner.^

The question then becomes whether an IIU

investigation

commenced

that

is

without

a

prisoner

filing

a

grievance can satisfy the PLRA's exhaustion requirement.
4. The IIU^s Investigation

Varner
ASMP's

contends

Warden

remedies.

that

satisfied

the
his

IIU
duty

investigation
to

exhaust

initiated

by

administrative

This argument confuses the role of the IIU with Varner's

independent duty to exhaust administrative remedies available to
him.

It

appears

that

the

Eleventh

Circuit

has

not

directly

addressed whether an internal investigation satisfies a prisoner's

exhaustion requirement. Every other Circuit to consider the issue,
however, has decided it does not.

The Sixth, Seventh, and Ninth

Circuits have all concluded that a related internal investigation
does not, by itself, satisfy the PLRA's exhaustion requirement.

5 The Court emphasizes these facts are used for the sole purpose of resolving
whether an IIU investigation can provide relief to an aggrieved prisoner and
should not be construed as deciding the merits of Varner's claims. See Bryant,
530 F.3d at 1374-75.

17

Pavey v. Cooley, 663 F.Sd 899, 905 (7th Cir. 2011); Panero v. City
of North Las Vegas, 432 F.3d 949, 953 (9th Cir. 2005); Thomas v.

Woolum, 337 F.3d 720, 734 (6th Cir. 2003), abrogated on

grounds by Woodford v. Nqo, 541 U.S. 81, 87 (2006).

other

Even the

prisoner's direct involvement and cooperation with an internal
investigation will not satisfy the exhaustion requirement.

Id.

To determine whether a prisoner exhausted his administrative
remedies, the court must ^'look to the inmate's grievance, not to
other information compiled in other investigations."
F.3d at 953.

Panero, 432

After all, § 1997e(a) is directed at the prisoner's

administrative remedies, not other related investigations.

Id.

(citing Thomas, 337 F.3d at 734).

Varner correctly emphasizes that the GDC grievance procedure

requires an inmate's excessive force grievance to be automatically
forwarded

to

the

IIU

grievance

process.

for

investigation,

However,

Varner's

thereby

ending

contention

the

that

the

commencement of an IIU investigation by a prison official serves
the same

purpose

as an inmate's grievance

being automatically

forwarded to the IIU goes too far.

As shown above, the

exhaustion

prisoner

requirement

requires

the

to

exhaust

PLRA
the

remedies that are available to him, not separate and independent
administrative processes.
Thus, Varner was required to use the GDC grievance procedure
to exhaust his administrative remedies.

Under that procedure,

Varner needed to timely file a grievance about the February 13th
18

incident within ten days to satisfy the exhaustion requirement.
See White, 672 F. App'x at 923 (finding, under the same SOP as

applies in this case, prisoner alleging use of excessive force
need only file a timely grievance to exhaust his administrative
remedies).

However, that did not happen.

Varner failed to submit

a grievance about the February 13th incident until July 24, 2015,
more than seventeen months later.

(Doc. 68-11, at 3.)

Contrary

to Varner's position, the Court finds that the IIU investigation
into the February 13th incident cannot serve as a stand-in for his
duty to exhaust his administrative remedies through the GDC's
grievance procedure.
5. Varner's Three Grievances

Finally, Varner argues that he did file three

grievances

complaining of the February 13th incident, at least one of which
was arbitrarily rejected by administrators at ASMP.
true

that

seventeen

Varner

months

filed

past

these

the

grievances,

deadline.

each

These

While it is

was

at

grievances

least

cannot

satisfy Varner's obligation to exhaust his administrative remedies
because they were not "proper."
Supreme

Court

has

made

clear

Woodford, 541 U.S. at 92.
that

proper

exhaustion

The

requires

compliance with the prison's administrative deadlines and critical
procedural rules.

Id.

Put differently, it is the institution

itself, not the PLRA, that "define[s] the boundaries of proper
exhaustion."

untimely

Jones v. Bock, 549 U.S. at 218.

grievances

cannot

satisfy
19

his

duty

Thus, Varner's

to

exhaust,

particularly because the grievances were filed far past the tenday deadline.

See Johnson v. Meadows, 418 F.3d 1152, 1159 (11th

Cir. 2005) (^'Allowing [a plaintiff's] untimely grievances to meet

the exhaustion requirement runs counter to the understanding that
§ 1997e(a) requires prisoners to invoke and fully exhaust all
available administrative grievance processes.").

Alternatively, Varner contends that the untimeliness of his
grievances should have been excused for good cause under the GDC's

grievance policy definition, which includes excusal for serious
illness.
the

Each grievance was explicitly rejected as untimely by

Grievance

Coordinator

at

ASMP

and,

again,

by

the

Warden,

neither of whom addressed the merits of Varner's allegations.®
(Doc. 68-11, at 4-7.)

Further, each of the rejections made no

mention of why Varner did not qualify for excusal for good cause.
(Id.)

Varner's first grievance, filed in 2015, did not specify a
reason as to why it should be accepted as untimely, as required by

GDC's policy.

Thus, the rejection of that grievance cannot be

considered arbitrary.

When Varner filed his next grievance a year

later, he did, contrary to Defendant's assertion, specify a reason
as to why the grievance was late, namely that Varner has '^mental
health [issues] with brain damage."

ASMP's Grievance Coordinator

® See Whatley v. Smith, 898 F.3d 1072, 1083-84 (11th Cir. 2018) (when prison
administrators consider the merits of a procedurally flawed grievance, the
prison waives its exhaustion defense).
20

concluded this did not provide good cause, presumably because the

grievance was filed almost two and half years late and after Varner
had filed at least six unrelated grievances since the February
13th incident.

(Doc. 29-2, Attach. B.)

As such, it cannot be

said that the grievance was arbitrarily rejected.

Finally, Varner

submitted his third grievance in 2017, which more clearly states
his

reasons

for

the

late

submission.

Varner

notes

that

his

injuries, isolated status, and inability to comprehend civil law
prevented him from filing a timely grievance.

This grievance was,

predictably, rejected as untimely as it had missed the filing
deadline by three and a half years.

Moreover,

Varner's

first

and

third

grievances

appealed as required by the GDC grievance procedure.
grievance,

even

if

arbitrarily

exhaustion requirement.

rejected,

can

were

not

Thus, neither
satisfy

the

See Woodford, 541 U.S. at 92; see also

Bryant, 530 F.3d at 1378-79 (prisoner must follow institution's

grievance
remedies).

appeal

procedure

to

exhaust

his

administrative

In sum, the Court finds that Varner's grievances were

not ^'proper" because of the significant delay in filing them and
that ASMP administrators did not arbitrarily decide Varner failed
to show good cause for his untimeliness.
foregoing.

Defendants'

motion

to

In accordance with the

dismiss

Plaintiff

Varner's

complaint for failure to exhaust administrative remedies under the
PLRA is granted and Varner's claims are dismissed.

21

B. Plaintiffs' Claims for Declaratory and Injunctive Relief
The Court now turns to Defendants' second argument, which

asks

the

Court

declaratory

and

to

dismiss

injunctive

Griggs

relief

and

Maddox's

against

Holt

request

and

for

Philbin.

Defendants contend Griggs and Maddox fail to state a claim because

their request for declaratory relief is barred by the Eleventh
Amendment and their request for injunctive relief is barred by the
PLRA.

1. Legal Standard for Motion to Dismiss Under Rule 12(b)(6)
A

motion

12(b)(6)

to

does

dismiss

not

under

test

Federal

whether

the

prevail on the merits of the case.
sufficiency of the complaint.

Rule

of

plaintiff

Civil

will

Procedure

ultimately

Rather, it tests the legal

Swierkiewicz v. Sorema N.A., 534

U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)).

Therefore, the

court

must

accept

as true

all facts

alleged in the complaint and construe all reasonable inferences in
the light most favorable to the plaintiff.

See Hoffman-Pugh v.

Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002).

The court, however, need not accept the complaint's legal
conclusions as true, only its well-pled facts.

556 U.S. 662 (2009).

Ashcroft v. Iqbal,

A complaint also must '^contain sufficient

factual matter, accepted as true, ^to state a claim to relief that
is plausible on its face.'"

Id. at 678 (quoting Bell Atl. Corp.

V. Twombly, 550 U.S. 544, 570 (2007)).
to

plead

""factual

content

that
22

The plaintiff is required

allows

the

court

to

draw

the

reasonable

inference

misconduct

that

the

alleged."

defendant

Although

is

there

liable

is

no

for

the

probability

requirement at the pleading stage, ''something beyond . . . mere
possibility . . . must be alleged."

Twombly, 550 U.S. at 556-57

(citing Durma Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005)).
2. The Eleventh Amendment

In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court

created an exception to the Eleventh Amendment, which limits the
power of federal courts to hear suits against a state, in holding
that a suit challenging the constitutionality of a state official's

action in enforcing state law is not an action against the state.
Id. at 159-60.

the

Supreme

However, the Eleventh Amendment, as interpreted by

Court,

still

bars

actions

against

states

for

retroactive relief, whether that relief be in the form of damages

or a declaration that a state officer violated a plaintiff's rights

in the past.

Green v. Mansour, 474 U.S. 64, 73 (1985) (prohibiting

declaratory relief when there is no allegation of ongoing violation
of federal law); Edelman v. Jordan, 415 U.S. 651, 667-68 (1974)

(prohibiting retroactive award of monetary relief).

To decide

whether the rule of Ex Parte Young avoids an Eleventh Amendment

bar to suit, "a court need only conduct a 'straightforward inquiry
into whether the complaint alleges an ongoing violation of federal
law

and

seeks

relief

properly

characterized

as

prospective.'"

Verizon Maryland, Inc. v. Public Serv. Comm'n of Maryland, 535

23

U.S. 635, 645 (2002) (quoting Idaho v. Coeur d^Alene Tribe of
Idaho, 521 U.S. 261, 296 (1997)).

Here, the Amended Complaint alleges Griggs, Maddox, and other

prisoners

at

ASMP 'Viii

be

subjected

to

excessive

force

by

correctional officers" and prison officials have failed to reduce

the risk that prisoners
of their rights.

be subjected" to further violations

(Am. Compl., H 162 (emphasis added).)

Although

Plaintiffs' prayer for relief asks the Court to declare Defendants

''violated Plaintiffs' rights," both their brief and complaint show
that Plaintiffs are seeking a prospective declaration that Holt

and Philbin are presently violating Plaintiffs' rights.

(Pis.'

Resp. in Opp'n to Mot. to Dismiss, Doc. 68, at 23 n.l6; Am. Compl.
SISI

162-63.)

As

such,

the

Eleventh

Amendment

does

not

bar

Plaintiffs' claims for prospective declaratory relief.
Defendants also contend the Eleventh Amendment bars Griggs

and

Maddox

from

pursuing

damages

against

Holt

and

Philbin.

However, Griggs and Maddox are not seeking damages from either,
only prospective declaratory and injunctive relief against those
Defendants in their official capacities, as allowed under Ex Parte
Young.

Moreover, should an expenditure of state funds eventually

prove to be necessary as a result of any prospective relief the
Court may grant, the Supreme Court has explicitly allowed such

While Count II of the Amended Complaint does seek damages against Philbin's
predecessor Stan Shepard, it does so only in Shepard's individual capacity.
Further, only Varner, not Griggs and Maddox, seeks damages, and, as noted above,
Varner's claims are dismissed.

24

expenditures, noting they are an ^^inevitable consequence of the
principle announced in Ex Parte Young.

Edelman, 415 U.S. at 668.

3. Declaratory and Injunctive Relief

Defendants

claim

Griggs

and

Maddox

are

not

entitled

to

declaratory relief because they have an adequate remedy available
to them, i.e., this lawsuit.

Ignoring the circular nature of this

argument. Federal Rule of Civil Procedure 57 explicitly provides:
"The existence of another adequate remedy does not preclude a

declaratory judgment that is otherwise appropriate."

Thus, the

availability of other remedies does not require the Court to
dismiss Plaintiffs' claim for declaratory relief.
Next, Defendants cite Federal Rule of Civil Procedure 65(d)

and § 3626(a)(1) of the PLRA to argue that Plaintiffs' request for

an injunction fails to state a claim because it is too vague and
amounts to a request that Defendants simply obey the law.

Rule

65(d), however, governs the required specificity of an "order

granting an injunction," not a pleading.
(emphasis added).

See Fed. R. Civ. P. 65(d)

Moreover, Plaintiffs specifically mention in

their prayer for relief that particular injunctive provisions will
be determined after conducting discovery.

(Am. Compl., at 51.)

Likewise, the PLRA's limitations on prospective relief under
§

3626(a)(l)'s

limitation

stage,

not

"need-narrowness-intrusiveness"

test

is

"a

on judicial authority over prisons at the remedial

a

heightened

pleading

requirement

imposed

on

the

plaintiffs." Henderson v. Thomas, 891 F. Supp. 2d 1296, 1312 (M.D.
25

Ala. 2012); see also Williams v. Edwards^ 87 F.3d 126, 133 (5th

Cir. 1996) C'The district court has fashioned no prospective relief

and the provisions of [§ 3626] have yet to be triggered in this
case.").

If the Court later concludes that injunctive relief is

appropriate, the Court will then rely on § 3626(a)(1) to craft
that

relief.

Plaintiffs'

Accordingly,

claims

for

Defendants'

declaratory

and

motion

to

injunctive

dismiss

relief

is

denied.
C. Defendants' Motion to Sever

Defendants

move

to

sever

Rule of Civil Procedure 20.
arise

out

of

the

same

Plaintiffs'

claims

under

Federal

They argue that such claims do not

transaction

or

occurrence

because

each

Plaintiff's excessive force allegations involve separate incidents
with

different

defendants.

Defendants

further

contend

that

although Plaintiffs bring the same type of claims, each involves
the resolution of unrelated factual disputes.

In response. Plaintiffs argue that their claims arise out of
the same series of transactions or occurrences, namely that each

Plaintiff was assaulted as part of a "pattern and practice" at
ASMP of using excessive force solely to inflict pain on inmates.
(See Am. Compl. SI 104.)
Federal Rule of Civil Procedure 20(a)(1) governs the joinder

of plaintiffs in a lawsuit and uses a flexible standard that
requires

the

plaintiffs

to

"assert

any

right

to

relief . . . arising out of the same transaction, occurrence, or
26

series of transactions or occurrences" and there be a ''question of

law or fact common to all plaintiffs."
(B).

Fed. R. Civ. P. 20(a)(1)(A),

In the Eleventh Circuit, "joinder is 'strongly encouraged'

and the rules are construed generously 'toward entertaining the
broadest possible scope of action consistent with fairness to the

parties.'"

Vanover v. NCO Fin. Servs. Inc., 857 F.3d 833, 839

(11th Cir. 2017) (quoting United Mine Workers of Am. v. Gibbs, 383
U.S.

715,

724

(1966)).

District

courts

are

granted

discretion" when considering matters of joinder.

"broad

Id.

Under the first part of Rule 20's test, transaction "is a
word of flexible meaning.

It may comprehend a series of many

occurrences, depending not so much upon the immediateness of their
connection as upon their logical relationship."

Alexander v.

Fulton Cnty., 207 F.3d 1303, 1323 (11th Cir. 2000), overruled on

other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).
Thus, events that

are "logically

related" to

one

another

are

"generally regarded as comprising a transaction or occurrence."
Id. (internal quotations omitted).
In

Alexander,

the

Eleventh

Circuit

concluded

that

an

allegation "of a pattern or practice of discrimination may describe
such logically related events and satisfy the same transaction
requirement."
discrimination

practices

at a

Id.
by

a

Although
state

that

employer

and

case

concerned

race

not

excessive

force

prison, the salient point is that an

unlawful

pattern or practice can satisfy the same transaction requirement.
27

other courts have agreed.
(N.D.

Okla.

2014),

the

In Revilla v. Glanz, 7 F. Supp. 3d 1207
court

permitted

the

joinder

of

four

prisoners who alleged Tulsa County Jail's health services had a

policy or practice of providing constitutionally deficient medical
care.

Id. at 1213.

Although each plaintiff's injury or death was

caused by different ailments, involved different medical staff,
and occurred over the span of eighteen months, the court found

there was ''a logical relationship between circumstances underlying
the claims" that permitted joinder of the plaintiffs.

Id.

Here, the Amended Complaint alleges a pattern or practice at

ASMP of using excessive force solely to harm inmates.

While each

incident of excessive force occurred separately. Plaintiffs create

a "logical relationship" between each event in their allegations
that the use of excessive force is a routine practice at ASMP and

prison administrators are aware of this practice but refuse to
take reasonable steps to prevent further assaults.

Indeed, beyond

the Plaintiffs' individual incidents, the complaint alleges in
detail

at

inmates.

least

six

other

assaults

(Am. Compl. SISI 109-15.)

by

officers

on

non-party

Many of these incidents involve

the same correctional officers now joined as Defendants.

Finally,

while it is true each Plaintiff brings a damages claim against the

officers alleged to have

assaulted

him,®

the

gravamen

of the

complaint is to seek an end to this ongoing practice at ASMP.

® Only Varner brings a claim for supervisory liability. Because his claims are
barred by the PLRA's exhaustion requirement, the only remaining damages claims
28

The second part of Rule 20's test ''does not require that all

question of law and fact raised by the dispute be common, but only

that some question of law or fact be common to all parties."
Alexander,

207

F.3d

at

1324

(emphasis

in

original).

While

Defendants correctly point out that an Eighth Amendment analysis
of each of Plaintiff's individual incidents will present different
facts, the determination of all other claims requires answers to

overlapping
knowledge

questions

of

prison

of

policies

and

administrators

practices

regarding

at ASMP,

the

pattern

the
of

incidents, and the preventative measures those administrators did
or did not take to address excessive force incidents.

are at least some shared questions of law and fact.
the

dismissal

of

Varner

from

the

suit

reduces

Thus, there

Furthermore,

the

number

of

different factual questions and the potential for prejudice to
Defendants.

Accordingly, the Court finds that Plaintiffs satisfy

Rule 20's requirements for joinder.

This holding, however, does not foreclose the possibility of
severance at a later time.

It may be, upon development of the

evidence during discovery. Plaintiffs' claims should be severed
for trial.

If necessary, the Court has the ability under Federal

Rule of Civil Procedure 42 to do so.

Fed. R. Civ. P. 42(b).

At

this stage of the case, however, judicial economy is best served
by joinder, rather than proceedings in duplicative suits.

In fact.

are the ones brought by Griggs and Maddox against Defendants Evans, Creagor,
and Bluitt respectively.
29

Defendants themselves do not object to conducting joint discovery.
Therefore,

Defendants'

motion

to

sever

is

denied

without

prejudice.

Ill.

CONCLUSION

For the above reasons, Defendants' motion to dismiss (doc.
29) is GRANTED IN PART AND DENIED IN PART.

Further, Defendant

Justin Washington's motions to dismiss (doc. 38, 58) are GRANTED.

Plaintiff

Christopher

PREJUDICE,

while

Varner's

claims

are

DISMISSED

WITH

Plaintiffs Eugene Griggs and Cameron Maddox's

claims shall proceed.

The Clerk is to TERMINATE Defendants Antonio

Binns, Justin Washington, Lenon Butler, Rodgerick Nabors, Julian

Greenaway, John Doe, Jerry Beard, Scott Wilkes, and Stan Shepard
from the case.

The Clerk is further DIRECTED to add Ahmed Holt,

in his official capacity as Assistant Regional Director, Georgia

Department of Corrections, and Edward Philbin, in his official
capacity as Warden, Augusta State Medical Prison.

Also, as stated

above. Defendants' motion to sever (doc. 33) is DENIED WITHOUT
PREJUDICE.

Finally,

the

stay

of

discovery

in

the

case

is

LIFTED.

Pursuant to this Court's Order of December 4, 2017 (doc. 43), the

parties shall confer and submit a Rule 26(f) Report, with proposed
case deadlines, within seven days.

30

ORDER ENTERED at

Augusta, Georgia, this

of October,

2018.

J. RAiiD3Ii,J4ALL, ZHIEF JUDGE
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

31