Lofton v. Wiliams et al

Filing 25

ORDER granting 19 Motion to Stay Discovery. Signed by Magistrate Judge G. R. Smith on 8/3/2016. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
SCOURTERRIOUS LOFTON,
Plaintiff,
V.

Case No. CV415-146
WARDEN STANLEY WILLIAMS;
and CERT OFFICER SANTIAGO,
Defendants.

REPORT AND RECOMMNEDATION
After preliminary screening under 28 U.S.C. § 1915A and a
Complaint amendment by Scourterrious Lofton (doe. 9), the court
recommended that four claims proceed.' Does. 7, 10. The district judge
agreed (doe. 13), and defendants then moved to dismiss (doe. 18) and to
stay discovery pending resolution of that motion. Doc. 19.
I. BACKGROUND
From the Court's § 1915A recommendation: 2

1

Those are: a religious discrimination (equal protection) claim against Warden
Williams, and equal protection, bodily privacy, and unreasonable search claims
against Officer Santiago. Doc. 7 at 14; doe. 10 at 3.
2

At the motion to dismiss stage, as on preliminary review, the Court accepts as true
the allegations in Owens' Complaint. See Smith v. Owens, 625 F. App'x 924, 926

"On Nov[ember] 16, 2014, an altercation occurred . . . at Macon
State Prison [MSP] between a group of Bloods (known gang
members) and Muslims." Doc. 1 at 5. Lofton abstained from
fisticuffs, but two of his "Muslim brothers ran into [his] cell" to
escape the melee. Id. During a post-fight "round-up," prison guards
detained him because they found the two inmates in his cell
without authorization and because he "was a known Muslim." Id.
After the round-up, "CERT officers -- under orders from
[defendant] Tracy Mclntryre. . . -- made [Lofton] submit to a strip
search," and transported him to a new dorm. Doc. 1 at 5. McIntyre
took Loftons property to search it, but failed to return it until his
transfer to SSP [Smith State Prison]. Id. By that point, "a lot of
[his] personal property was missing, particularly [his] electronic
items." Id.
During the transfer, Lofton "was served with a !disciplinary report"
for "participating in a disturbance," and "allowing two other
inmates to seek safety in [his] assigned cell." Doc. 1 at 6. He later
complained to an investigator at SSP, who "agreed [with Lofton]
and recommended dismissal" of the report. Id. at 6. "[A]nother
document was [then] forged to correct the discrepancy," id. at 7,
and ensure Lofton remained a "disciplinary transfer classification."
Id. at 6.
Upon arrival at SSP, "CERT officers, particularly [defendant]
Santiago," "berated, and harassed, and humiliated" Lofton. Doc. 1
at 5. Allegedly because of his disciplinary classification and "the
presence of Islamic materials (prayer rug, books, Quran, etc.),"
Santiago "forced [him] to submit to a malicious and degrading strip
search attempting to provoke [him] in order to give [prison staff] a
treasont to use force on [him]." Id. at 6. Santiago made Lofton
"stand naked for a prolonged period of time," during which he
ransacked Lofton's property. Id. He randomly broke personal, non(11th Cir. 2015) (on § 1915A review, courts "view the complaint in the light most
favorable to the plaintiff, accepting all of the plaintiffs well-pleaded facts as true")
(citing Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056-57 (11th Cir.

2007)).
2

contraband items in an attempt to provoke Lofton, and when
Lofton complained, Santiago confiscated everything. Id. Lofton
later filed a grievance "but was not afforded any relief." Id.
He also complained to defendant Stanley Williams, SSP's warden,
about his disciplinary report and mistreatment by the CERT team
officers. Doc. 1 at 7. In response, Williams told Lofton "I run the
show around here, y'all Muslims think you're smart -- let's see how
smart you are when I put you over in my Tier II program." Doc. 1
at 7. That program, he says, is "designed for clinical and
psychological need[s]," not for those guilty of practicing Islam. Id.
What's more, says Lofton, the program lacks any certified medical
professionals and exists solely to "goose" occupancy numbers and
justify the prison's continued receipt of program funding. Id. at 8.
Lofton remains there today, in his view "based upon his religious
affiliation," and without "a means of completing the program." Id.
He claims that, prior to filing this lawsuit, "[a]ll administrative
remedies have been exhausted." Id. at 7.

Lofton v. Williams, 2016 WL 126408 at * 1 (S.D. Ga. Jan. 11, 2016).
In their motion to dismiss, defendants argue the opposite -- that
Lofton in fact failed to exhaust available remedies. Doc. 18-1 at 3. They
also contend that (1) his post-Complaint transfer to another prison moots
his request for injunctive relief (id. at 9); (2) the Eleventh Amendment
bars recovery of damages from defendants in their official capacities (id.
at 10); and (3) he fails to state a claim for compensatory or punitive
damages. Id. at 13.

3

III. ANALYSIS
A. Exhaustion
Defendants first argue that Lofton failed to properly exhaust
available administrative remedies. Citing to his grievance record and the
two grievances Lofton attached to his Complaint, they contend that,
despite filing "nine grievances since his transfer to SSP," he never
grieved "any of the issues forming the basis of the claims in this .
action." Doc. 18-1 at 5. That, says defendants, is not the proper
exhaustion that § 1997e(a) requires.
In response, Lofton points to his attached grievances and concludes
"that all administrative remedies were exhausted." Doc. 21.
Elaborating, he notes that disciplinary hearings or administrative
segregation assignments are non-grievable (true, see doe. 18-3 at 23) and
concludes that "even though [he] addressed the grievance complaint
there is no cognizable recourse for such administrative relief."

Id. at 2.

Lofton in effect argues that his claims involve non-grievable issues, and
thus the grievances he actually submitted suffice for § 1997e(a)'s
purposes.

4

Under that provision, "[n1 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). Exhaustion is a "pre-condition to
suit" that must be enforced even if the available administrative remedies
are either "futile or inadequate." Harris v. Garner, 190 F.3c1 1279, 1285-

See also Ross v. Blake,
U.S.
, 136 S. Ct. 1850, 1856 (2016) (§ 1997e(a)'s
"edict contains one significant qualifier: the remedies must indeed be 'available' to
the prisoner").
An inmate, that is, must exhaust available remedies, but need not exhaust
unavailable ones. And that limitation on an inmate's duty to exhaust . . . has
real content. As we explained in Booth [v. Churner], the ordinary meaning of
the word 'available' is 'capable of use for the accomplishment of a purpose,'
and that which 'is accessible or may be obtained.' 532 U.S., at 737-738, 121
S.Ct. 1819 (quoting Webster's Third New International Dictionary 150 (1993)).
Accordingly, an inmate is required to exhaust those, but only those, grievance
procedures that are 'capable of use' to obtain 'some relief for the action
complained of.' Booth, 532 U.S., at 738, 121 S.Ct. 1819.

Id. at 1858-59.
"[T]hree kinds of circumstances [exist] in which an administrative remedy,
although officially on the books, is not capable of use to obtain relief." Id. at 1859.
"First," a 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. "Next, an administrative scheme might be so opaque that it becomes, practically
speaking, incapable of use." Id.; see also Turner v. Burnside, 541 F.3d 1077, 1084
(11th Cir. 2008) ("Remedies that rational inmates cannot be expected to use are not
capable of accomplishing their purposes and so are not available."). And finally,
grievance processes need not be exhausted "when prison administrators thwart
inmates from taking advantage of [it] through machination, misrepresentation, or
intimidation." Ross, 136 S. Ct. at 1860.
5

86 (11th Cir.1999), vacated on other grounds by Harris v. Garner, 216
F.3d 970 (11th Cir. 2000) (en bane) (footnote added); see also Jones v.

Bock, 549 U.S. 199 1 199-200 (2007) ("There is no question that
exhaustion is mandatory under the PLRA."). 4
PLRA exhaustion also must be "proper."

Woodford v. Ngo, 548

U.S. 81, 93 (2006). That means an inmate must "us[e] all steps" in the
administrative process, and comply with any administrative "deadlines
and other critical procedural rules," before filing a complaint about
prison conditions in federal court. Id. at 89-91 (citation omitted). If an
inmate files an "untimely or otherwise procedurally defective
administrative grievance or appeal," he therefore has not properly

Exhaustion furthers seven policy aims:
(1) to avoid premature interruption of the administrative process; (2) to let the
agency develop the necessary factual background upon which decisions should
be based; (3) to permit the agency to exercise its discretion or apply its
expertise; (4) to improve the efficiency of the administrative process; (5) to
conserve scarce judicial resources, since the complaining party may be
successful in vindicating rights in the administrative process and the courts
may never have to intervene; (6) to give the agency a chance to discover and
correct its own errors; and (7) to avoid the possibility that frequent and
deliberate flouting of the administrative processes could weaken the
effectiveness of an agency by encouraging people to ignore its procedures.
Alexander v. Hawk, 159 F.3d 1321, 1327 (11th Cir. 1998) (quotes omitted); see also
Woodford, 545 U.S. at 89; Porter v. Nussie, 534 U.S. 516, 528 (2002) (PLRA's primary
concerns are "to promote administrative redress, filter out groundless claims, and
foster better prepared litigation of claims aired in court").

exhausted his administrative remedies. Id. at 83-84; see also Lambert v.

United States, 198 F. App'x. 835, 840 (11th Cir. 2006) (proper exhaustion
requires filing a grievance "under the terms of and according to the time
set by" prison officials). If a prisoner fails to complete the administrative
process or falls short of compliance with procedural rules governing
prisoner grievances, he procedurally defaults his claims.

Johnson v.

Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005).
Exhaustion, however, is an affirmative defense and "defendants
bear the burden of proving that the plaintiff has failed to exhaust."

Turner, 541 F.3d at 1082 (quoting Jones, 549 U.S. at 216). "[T]reated as
a matter in abatement," exhaustion defenses are "like a defense for lack
of jurisdiction." Id. Deciding them thus involves a "two-step process."

Id.
First, the court looks to the factual allegations in the defendant's
motion to dismiss and those in the plaintiffs response, and if they
conflict, takes the plaintiffs version of the facts as true. If, in that
light, the defendant is entitled to have the complaint dismissed for
failure to exhaust administrative remedies, it must be dismissed.
If the complaint is not subject to dismissal at the first step, where
the plaintiffs allegations are assumed to be true, the court then
proceeds to make specific findings in order to resolve the disputed
factual issues related to exhaustion. . . . Once the court makes
findings on the disputed issues of fact, it then decides whether

7

under those findings the prisoner has exhausted his available
administrative remedies.

Id. at 1082-83 (cites omitted); see also Bryant v. Rich, 530 F.3d 1368,
1376-77 (11th Cir. 2008) ("[W]here a factual issue arises in connection
with a jurisdictional or related type of motion, the general view is that
there is no right of jury trial as to that issue . . . and that the court has a
broad discretion as to the method to be used in resolving the factual
dispute.").
Even taking Lofton's allegations as true, 5 he still failed to exhaust
available administrative remedies. Again, Lofton presses religious
discrimination, unreasonable search, and bodily privacy claims.

See

supra n. 1. None of those involve a disciplinary proceeding. Even if they
did, and though his discrimination claim against Williams surrounds his
transfer to the Tier II program (possibly a non-grievable issue), a
remedy's futility does not excuse a failure to exhaust. See Alexander, 159
F.3d at 1326 ("Since exhaustion is now a pre-condition to suit, the courts
cannot simply waive those requirements where they determine they are
futile or inadequate."); Ates v. Terry, 2012 WL 3096065 at * 2 (M.D. Ga.
Recall that Turner step one instructs courts to do just that. See Turner, 541 F.3d
at 1082.

June 29, 2012) (non-grievability of issue cannot excuse a failure to
exhaust) (citing Alexander).
Lofton simply never grieved any of the issues that he plies here.
He complained about the process provided in a disciplinary hearing (doe.
1 at 11), and sought the return of property lost during his transfer from
MSP to SSP (id.; doe. 1-1 at 2), but never mentioned religious
discrimination (or religion at all, for that matter) or any illegal search,
much less a degrading strip search.' Lofton failed to do so despite
intimate familiarity with the system (he's filed 92 grievances during his
incarceration, doe. 18-2 at 3), and its clear availability (he filed nine
grievances after his transfer to SSP, two of which he pursued all the
through the appeals process, id. at 4-5) at the time of the events
underlying his Complaint. He thus failed to exhaust and § 1997e(a) thus
requires dismissal.
A failure to exhaust typically justifies dismissal without prejudice.

See Howard v. Kraus, 2016 WL 471387 at * 2 (11th Cir. Feb. 8, 2016)
("[D]ismissal for failure to exhaust administrative remedies is not an
6

Indeed, Officer Santiago's only mention in either of the grievances Lofton attached
to his Complaint -- the grievances he claims prove he exhausted administrative
remedies -- comes when Lofton says Santiago gave him a property disposal form.
Doe. 1-1 at 2.

adjudication on the merits. . . ."); Prickett v. Lawson, 2008 WL 5046063
at 3 (S.D. Ga. Nov. 24, 2008) ("Normally, the failure to exhaust
warrants dismissal without prejudice."). That's true here. If Lofton
wishes to refile (without prejudice means he can do that) before the two
year statute of limitations expires, 7 he must first attempt to grieve
defendants' alleged unconstitutional actions (the untimeliness of his
grievances does not erase the need to grieve, see Alexander, 159 F.3d at
1326).

' "Federal courts look to state law to determine the applicable statute of limitations
for actions brought pursuant to 42 U.S.C. § 1983. Rozar v. Mullis, 85 F.3d 556, 561
(11th Cir.1996). In Georgia, the applicable statute of limitations for personal injury
actions is two years. O.C.G.A. § 9-3-33." Hammonds v. Mark Shelinut, LLC, 399 F.
App'x 540, 540 (11th cir. 2010). Lofton complains about events that occurred in
November 2014. See doe. 1 at 5. He therefore has until November 2016 before the
time to file suit expires. As noted above, however, he must first exhaust available
administrative remedies before knocking on this Court's door again.
The current procedure gives SSP forty days to respond to grievances (fifty with a
one-time ten day extension). Doc. 18-3 at 10. Lofton then would have seven days to
file an appeal of any adverse decision, which the Commissioner of the Department of
Corrections has 100 days to decide. Id. at 11-12. Assuming an initial grievance is
denied, Lofton appeals, and the prison uses all available decision time, the grievance
process may not be completed until after the statute of limitations expires (157 days
well exceeds the 90 or so days until Lofton runs out of time to file suit). That
limitations period, however, may toll during a prisoner's attempt to exhaust his
available remedies. See Watkins v. Haynes, 2013 WL 1289312 at * 8 (S.D. Ga. Mar.
27, 2013) ("Applying the rationale from [relevant Georgia] cases.. . this Court holds
that the statute of limitations was tolled while Plaintiff complied with the PLRA by
pursuing possible administrative remedies prior to filing suit."). At this juncture,
tolling's application here is speculative and thus not an issue the Court need decide.

10

Two of defendants' remaining arguments, though not necessary to
deciding this case, require a few words should Lofton indeed refile. First,
he cannot recover monetary damages from state officials sued in their
official capacities (i.e., if he sues the Warden qua Warden instead of the
Warden as an individual, he cannot recover money).

See Kentucky v.

Graham, 473 U.S. 159 1 169 (1985) ("EA]bsent waiver by the State or valid
congressional override, the Eleventh Amendment bars a damages action
against . . . State officials . . . sued . . . in their official capacity."). He
may sue Williams and Santiago, but only in their individual capacities,
and not in their capacities as officers of the state.
Second, he may not recover anything more than nominal damages
for "mental or emotional injury suffered while in custody" unless he can
show "physical injury" as well. 42 U.S.C. § 1997e(e); Brooks v. Powell,
800 F.3d 1295, 1307 (11th Cir. 2015) ("Under the statute and our
caselaw, an incarcerated plaintiff cannot recover either compensatory or
punitive damages for constitutional violations unless he can demonstrate
a (more than de minimis) physical injury."). His current Complaint
makes no such allegation. Nevertheless, even absent physical injury,
aggrieved prisoners may recover nominal damages (which can, in certain

11

circumstances, support an award of attorney's fees should Lofton ever
obtain counsel).' Brooks, 800 F.3d at 1307-08 ("[W]e hold that nothing
in § 1997e(e) prevents a prisoner from recovering nominal damages for a
constitutional violation without a showing of physical injury.").' That, in
turn, will support his recovery of costs under Fed. R. Civ. P. 54(d)(1) 1
which includes any filing fees that he has paid.
IV. CONCLUSION
Because Scourterrious Lofton failed to exhaust available
administrative remedies, his Complaint should be DISMISSED
WITHOUT PREJUDICE. Given that recommendation, defendants'
motion to stay is GRANTED. Doc. 19.

8

See Gray ex rel. Alexander v. Bostic, 613 F.3d 1035, 1040 (11th Cir. 2010) ("Only
the 'prevailing party' is eligible for attorney's fees under 42 U.S.C. § 1988, and a
plaintiff prevails 'when actual relief on the merits of his claim materially alters the
legal relationship between the parties by modifying the defendant's behavior in a way
that directly benefits the plaintiff.' Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct.
566, 573, 121 L.Ed.2d 494 (1992). A 'plaintiff who wins nominal damages is a
prevailing party under § 1988.' Id. at 112, 113 S.Ct. at 573.").
Defendants also argue that his May 19, 2016 transfer to general population mooted
Lofton's request for injunctive relief. Doc. 18-1 at 10 (citing doc. 18-2 at 6). Because
this case must be dismissed for failure to exhaust, the Court need not decide that
issue.
12

SO REPORTED AND RECOMMENDED, this 3rd day of
August, 2016.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

13