Scotton v. Johns

Filing 28

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Scotton's 18 , 12 , 9 , and 7 MOTIONS for Protective Order. I further RECOMMEND the Court DISMISS Scotton's 1 Petition for Writ of Habeas Corpus, DIRECT the Clerk to CLOSE this case, and DENY Scotton in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 1/26/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/12/2017. (ca)

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

ROGERIO CHAVES SCOTTON,
Petitioner,

CIVIL ACTION NO.: 5:16-cv-40

v.
WARDEN TRACY JOHNS,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Rogerio Chaves Scotton (“Scotton”), who is currently detained at D. Ray
James Correctional Facility in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. (Doc. 1.) Scotton also filed four Motions for Protective Order,
(docs. 7, 9, 12, 18), and a Motion to Compel Respondent to Respond to Petitioner’s Section 2241
Petition, (doc. 22). Respondent filed a Response to Scotton’s Petition, (doc. 17), and Scotton
filed a Reply to Respondent’s Response, (doc. 26).

For the reasons which follow, I

RECOMMEND the Court DENY Scotton’s Motions for Protective Order, (doc. 7, 9, 12, 18). I
further RECOMMEND the Court DISMISS Scotton’s Petition, DIRECT the Clerk of Court to
CLOSE this case, and DENY Scotton in forma pauperis status on appeal.

The Court

DISMISSES as moot Scotton’s Motion to Compel Respondent to Respond, (doc. 22).
BACKGROUND
Scotton was convicted in the Southern District of Florida, after a jury trial, of mail fraud
and making a false statement, in violation of 18 U.S.C. §§ 1341 and 1001(a)(2). J., United States
v. Scotton, No. 0:12-cr-60049 (S.D. Fla. May 12, 2014), ECF No. 413. He was sentenced to 108

1

months’ imprisonment on May 9, 2014. Id. Scotton has a projected release date of March 18,
2020, via good conduct time release, to be followed by three years’ supervised release.
(Doc. 17-1, p. 2.)
DISCUSSION
Scotton makes several allegations throughout this Petition concerning his custody at D.
Ray James Correctional Facility. First, Scotton alleges that that he is entitled to 54 days of good
conduct time (“GCT”) per year instead of the 42 days’ GCT he is receiving. 1 Second, Scotton
alleges that he has not received proper medical care at D. Ray James Correctional Facility, which
has caused permanent damage to his left leg and constant back pain. (Doc. 1, pp. 7–8.) Third,
Scotton contends that D. Ray James staff subjected him to cruel and unusual punishment in
retaliation for exercising his constitutional rights. 2 (Id. at p. 8.) Finally, Scotton contends that he
should be transferred to a safer facility closer to his family in Florida. (Id. at p. 7.)
Respondent contends that Scotton did not properly exhaust his administrative remedies as
to his claim that he is entitled to 54 days of GCT, and therefore, cannot pursue that claim in this
action. (Doc. 17, p. 6.) Respondent next argues that Scotton’s medical care claims, cruel and
unusual punishment claims, and request for transfer are not cognizable under 28 U.S.C. § 2241.
(Id.)

1

Pursuant to 18 U.S.C. § 3624(b)(1), the literacy program allows inmates to receive 54 days’ credit for
each year served if the inmate has earned or is making satisfactory progress toward earning a GED
credential or high school diploma. However, if the inmate has not earned or is not making satisfactory
progress toward earning a GED credential or high school diploma, the inmate is eligible for only 42 days’
credit for each year served. 28 C.F.R. § 523.20(c). Respondent avers that Scotton has been awarded only
42 days’ credit for each year served because he withdrew from the literacy program. Scotton concedes
that he is not making satisfactory progress toward earning a GED credential or high school diploma but
contends that he need not obtain a GED because he is a graduate of Florida Atlantic University, as well as
a Brazilian university. (Doc. 26, p. 2.)

2

Specifically, Scotton contends that D. Ray James staff abuses him physically and mentally, threatens to
place him in solitary confinement, and attempts to force him into slave labor. (Doc. 1, p. 8.)
2

Scotton replies that exhaustion of his claims is futile because “any grievance against [D.
Ray James Correctional Facility] [is] never responded [to] or is ignored.” (Doc. 26, p. 6.)
Scotton further avers that the Court should waive the exhaustion requirement because “there is
no[ ] requirement of exhausting remedies [for violations of due process] by a for-profit private
company.” (Id.)
I.

Petitioner’s Motion to Compel, (Doc. 22)
Scotton filed a Motion to Compel Respondent to Respond to Petitioner’s Section 2241

Petition on September 6, 2016.

(Doc. 22.)

Within that Motion, Scotton concedes that

Respondent filed a Response to his Petition on July 28, 2016, (doc. 17), but contends that he
never received a copy of that Response. However, Scotton filed a Reply to Respondent’s
Response to his Section 2241 Petition on October 14, 2016. (Doc. 26.) Accordingly, despite his
contentions to the contrary, it is evident that Respondent filed a Response to Scotton’s Petition
and Scotton received that Response. Therefore, the Court DISMISSES as moot Scotton’s
Motion to Compel.
II.

Petitioner’s Motions for Protective Order, (docs. 7, 9, 12, 18)
Scotton also filed, in addition to his Section 2241 Petition, four motions labeled as

“Motions for Protective Order,” (docs. 7, 9, 12, 18), which the Court construes as Motions for a
Preliminary Injunction. 3 Within those Motions, Scotton avers that staff at D. Ray James issued

3

“Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a different legal category.” Retic v. United States,
215 F. App’x 962, 964 (11th Cir. 2007) (quoting Castro v. United States, 540 U.S. 375, 381 (2003)).
Federal courts “may do so in order to avoid an unnecessary dismissal, to avoid inappropriately stringent
application of formal labeling requirements, or to create a better correspondence between the substance of
a pro se motion’s claim and its underlying legal basis.” Id. (quoting Castro, 540 U.S. at 381–82).
Although Scotton labels his motions as “motions for protective order,” a review of those pleadings reveals
that he is requesting that the Court enjoin Respondent from retaliating against Scotton for filing
grievances and a civil action. (Doc. 7, p. 1.) Accordingly, Scotton’s motions are properly classified as
Motions for a Preliminary Injunction, as opposed to Motions for a Protective Order.
3

him false disciplinary reports and punished him for offenses he did not commit in response to his
filing of grievances and this civil action. (Doc. 7, p. 2.) Scotton further alleges that D. Ray
James staff violated his due process rights during the disciplinary hearings regarding his alleged
infractions and that he received punishment, in contravention of the Eighth Amendment’s
proscription against cruel and unusual punishment. 4 Scotton requests that this Court enjoin
Defendants from retaliating against him and requests that the Court issue an order transferring
him to another facility closer to his family. (Doc. 7, p. 1; Doc. 18, p. 4.)
To be entitled to a preliminary injunction, the movant must show: (1) a substantial
likelihood of ultimate success on the merits; (2) an injunction or protective order is necessary to
prevent irreparable injury; (3) the threatened injury outweighs the harm the injunction or
protective order would inflict on the non-movant; and (4) the injunction or protective order
would not be adverse to the public interest. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223,
1225–26 (11th Cir. 2005). In this Circuit, an “injunction is an extraordinary and drastic remedy
not to be granted unless the movant clearly established the ‘burden of persuasion’ as to the four
requisites.” Horton v. City of Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001).
If a petitioner succeeds in making such a showing, then “the court may grant injunctive
relief, but the relief must be no broader than necessary to remedy the constitutional violation.”
Newman v. Alabama., 683 F.2d 1312, 1319 (11th Cir. 1982). Accordingly, where there is a
constitutional violation in the prison context, courts traditionally are reluctant to interfere with
prison administration, unless there is a clear abuse of discretion. See Procunier v. Martinez, 416
U.S. 396, 404–05 (1974) (“Traditionally, federal courts have adopted a broad hands-off attitude
toward problems of prison administration [because] . . . courts are ill equipped to deal with the
4

Scotton claims that, as part of their campaign of retaliation, D. Ray James prison staff also denied him
medical care for sciatic nerve pain and back pain, causing “permanent injury [to] his left leg . . . [and
causing] excruciating pain 24 hours [per] day.” (Doc. 7, p. 10.)
4

increasingly urgent problems of prison administration and reform.”), overruled on other grounds
by Thornburgh v. Abbott, 490 U.S. 401 (1989). In such cases, “[d]eference to prison authorities
is especially appropriate.” Newman, 683 F.2d at 1320–21 (reversing district court’s injunction
requiring release of prisoners on probation because it “involved the court in the operation of the
State’s system of criminal justice to a greater extent than necessary” and less intrusive equitable
remedy was available).
Scotton has not shown that he has satisfied the prerequisites in order to be entitled to a
preliminary injunction. Specifically, Scotton has not shown the likelihood of success on the
merits of his claims or that injunctive relief is necessary to prevent irreparable injury. For
example, Scotton has vigorously pursued this legal action, despite his contention that prison staff
is retaliating against him for doing so. Furthermore, because Scotton requests that the Court
order his transfer to another facility—a matter squarely within the realm of prison
administration—an order or injunction granting such relief on this record would be broader and
more intrusive than necessary to remedy any potential constitutional violation. Therefore, I
RECOMMEND the Court DENY Scotton’s Motions for a Preliminary Injunction. (Docs. 7, 9,
12, 18.)
III.

Whether Scotton Presents Claims Which can be Addressed by a Writ of Habeas
Corpus
Despite Scotton’s characterization of his pleading as one made pursuant to 28 U.S.C.

§ 2241, several of the claims he sets forth fall outside the purview of that statute. Specifically,
his claims that he has not received proper medical care and that he was subjected to cruel and
unusual punishment in retaliation for exercising his constitutional rights would ordinarily be
brought pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). The distinction between claims which may be
5

brought under Bivens and those which must be brought as habeas petitions is reasonably wellsettled. Claims in which federal prisoners assert that they are being subjected to unconstitutional
punishment not imposed as part of their sentence are Bivens actions, not habeas actions. See,
e.g., Farmer v. Brennan, 511 U.S. 825 (1994). Habeas actions, in contrast, explicitly or by
necessary implication challenge a prisoner’s conviction or the sentence imposed on him by a
court (or under the administrative system implementing the judgment). Thus, for example, when
a prisoner makes a claim that, if successful, could shorten or invalidate his term of imprisonment,
the claim must be brought as a habeas petition, not as a Bivens claim. See, e.g., Edwards v.
Balisok, 520 U.S. 641 (1997); Heck v. Humphrey, 512 U.S. 477 (1994).
Scotton cannot bring several claims he asserts via a habeas petition. Specifically, his
claims concerning deliberate indifference to his serious medical needs and cruel and unusual
punishment under the Eighth Amendment, as well as his claims of retaliation under the First
Amendment, are not cognizable pursuant to 28 U.S.C. § 2241. Moreover, as to these claims, he
does not seek to challenge his sentence or conviction or the duration of his confinement.
Accordingly, the Court should DISMISS these portions of Scotton’s Petition without prejudice.
IV.

Whether the Court Should Recharacterize Scotton’s Claims
As noted above, “[f]ederal courts sometimes will ignore the legal label that a pro se

litigant attaches to a motion and recharacterize the motion in order to place it within a different
legal category.” Retic v. United States, 215 F. App’x at 964 (quoting Castro, 540 U.S. at 381).
This Court may “recharacterize a pro se litigant’s motion to create a better correspondence
between the substance of the motion and its underlying legal basis.” Rameses v. United States
District Court, 523 F. App’x at 694. Federal courts “may do so in order to avoid an unnecessary
dismissal, to avoid inappropriately stringent application of formal labeling requirements, or to

6

create a better correspondence between the substance of the motion and its underlying legal
basis.” Id. (quoting Castro, 540 U.S. at 381–82).
However, it would be futile, and thus, improper to recharacterize Scotton’s non-habeas
claims as a Bivens action. The United States Supreme Court has held that a federal prisoner
cannot bring a Bivens claim against employees of a privately operated federal prison when state
law authorizes adequate alternative actions. 5 Minneci v. Pollard, ___ U.S. ___, 132 S. Ct. 617
(2012). The Court stated that “in the case of a privately employed defendant, state tort law
provides an ‘alternative, existing process’ capable of protecting the constitutional interests at
stake.” Id., 132 S. Ct. at 623 (quoting Wilkie v. Robbins, 551 U.S. 537, 559 (2007)) (declining
to extend Bivens liability to allow a landowner to pursue a private action against employees of
the Bureau of Land Development); Goia v. CitiFinancial Auto, 499 F. App’x 930, 936 (11th Cir.
2012) (“[T]he Supreme Court has declined to expand Bivens to encompass a suit against private
corporations acting under color of federal law.”) (citing Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 71, 74 (2001)). The Court can only recognize a Bivens action if: (1) there are no adequate
alternative remedies under state or federal law; and (2) no “special factors” counsel against
implying a cause of action. Robles v. Kane, 550 F. App’x 784, 787 (11th Cir. 2013). State tort
law remedies are adequate when they provide roughly similar incentives for defendants to
comply with the constitutional right at issue while also providing roughly similar compensation
to victims of violations. Minneci, 132 S. Ct. at 625. The Eleventh Circuit Court of Appeals has
held that, at least as to some claims, Georgia tort law provides federal prisoners held in privatelyrun facilities “arguably better remedies than a Bivens claim.” Robles, 550 F. App’x at 788.
5

In the Eleventh Circuit such a claim has been foreclosed since 2008. See Alba v. Montford, 517 F.3d
1249 (11th Cir. 2008) (declining to extend Bivens to cover a claim for deliberate indifference to medical
needs against Corrections Corporation of America, a private facility under contract with the Bureau of
Prisons, and its employees).
7

D. Ray James is a private entity that operates under a contract with the Bureau of Prisons.
The employees of D. Ray James are employees of The GEO Group, Inc., a private entity. Thus,
like the plaintiffs in Minneci and Alba, so long as Scotton has adequate state law remedies
available to him, he may not maintain a cause of action pursuant to Bivens against The GEO
Group, Inc., or its employees.
Georgia tort law provides Scotton such alternative remedies. For instance, he may pursue
his claims that he was denied medical care in state court through a claim of medical malpractice.
See O.C.G.A. § 9-3-70 ( “medical malpractice” includes all claims “arising out of” “[h]ealth,
medical, dental, or surgical service, diagnosis, prescription, treatment, or care”); O.C.G.A. § 511-27 (“A person professing to practice surgery or the administering of medicine for
compensation must bring to the exercise of his profession a reasonable degree of care and skill.
Any injury resulting from a want of such care and skill shall be a tort for which a recovery may
be had.”) In fact, Scotton possesses an “arguably superior” cause of action in state court,
because, unlike in a Bivens action, he can pursue state remedies under a theory of respondeat
superior. See O.C.G.A. § 51-2-2; Alba, 517 F.3d at 1256, n.7.
Moreover, Scotton’s other claims can be addressed through state law. As Magistrate
Judge Brian K. Epps of this Court explained in the face of claims brought by a prisoner in a
private facility,
To the extent Plaintiff’s claims do not fall under the traditional rubric of medical
malpractice, Plaintiff could also bring his claims under Georgia negligence law.
Georgia negligence law provides that a plaintiff may recover for emotional
distress without a showing of physical injury if the defendant’s conduct was
malicious, willful, or wanton and directed toward the plaintiff. Jordan v. Atlanta
Affordable Hous. Fund, Ltd., 498 S.E.2d 104, 106 (Ga. Ct. App. 1998). This
standard requires conscious indifference to the consequences of one’s actions.
Brooks v. Gray, 585 S.E.2d 188, 189 (Ga. Ct. App. 2003). This is remarkably
similar to the standard for deliberate indifference under the Eighth Amendment
which requires subjective recklessness on the part of prison officials. Farmer v.
8

Brennan, 511 U.S. 825, 839 (1994). Given the similar alignment of the Eighth
Amendment standard and Georgia’s negligence law for nonphysical injuries,
Georgia tort law provides similar incentives for defendants to comply with the
Eighth Amendment in addition to superior compensation in the form of
respondeat superior.
Galloway v. CCA Mcrae Corr. Facility, No. CV 314-067, 2016 WL 4197588, at *3 (S.D. Ga.
Aug. 8, 2016), report and recommendation adopted, No. CV 314-067, 2016 WL 4535372 (S.D.
Ga. Aug. 30, 2016); see also Cottrell v. Smith, 788 S.E.2d 772, 780 (Ga. 2016) (Georgia
recognizes claim for intentional infliction of emotional distress where: (1) defendant’s conduct
was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there was a causal
connection between the wrongful conduct and the emotional distress; and (4) the emotional
distress was severe.); Robles, 550 F. App’x at 787–88 (Georgia law provides adequate remedy
for interference with prisoner’s legal mail); Poole v. Streiff, No. CIV. A. 07-0749-KD-C, 2008
WL 2699420, at *3 (S.D. Ala. June 30, 2008) (Plaintiff had adequate state law remedies under
Alabama law for negligence and wantonness for claims he was sent to solitary confinement);
Robles v. Bureau of Prisons, No. CV511-120, 2012 WL 488080, at *2 (S.D. Ga. Jan. 23, 2012),
report and recommendation adopted, No. CV 511-120, 2012 WL 484076 (S.D. Ga. Feb. 14,
2012) (dismissing claims food was nutritionally inadequate, citing Alba).
Scotton cannot bring a Bivens action against defendants such as Warden Tracy Johns.
Rather, Plaintiff’s remedy, if any, against Defendant lies in state court. For all of these reasons,
the Court should DISMISS Scotton’s claims that he has not received proper medical care and
that he was subjected to cruel and unusual punishment in retaliation for exercising his
constitutional rights.

9

V.

Whether Scotton Exhausted his Administrative Remedies
Because Scotton’s claims arising under the First and Eighth Amendments are not

cognizable under 28 U.S.C. § 2241, Plaintiff’s only remaining claim is his entitlement to 54 days
of GCT. However, for the reasons discussed below, Scotton failed to exhaust his administrative
remedies as to that claim. Accordingly, the Court should dismiss Scotton’s 28 U.S.C. § 2241
Petition.
A.

Legal Requirements for Exhaustion

The Eleventh Circuit has held that a Section 2241 petitioner’s failure to exhaust
administrative remedies is not a jurisdictional defect. Santiago-Lugo v. Warden, 785 F.3d 467,
474 (11th Cir. 2015); see also Fleming v. Warden of FCI Tallahassee, 631 F. App’x 840, 842
(11th Cir. 2015) (“[Section] 2241’s exhaustion requirement was judicially imposed, not
congressionally mandated, and . . . nothing in the statute itself support[s] the conclusion that the
requirement [is] jurisdictional.”).

Nevertheless, the Eleventh Circuit has noted “that the

exhaustion requirement is still a requirement and that courts cannot ‘disregard a failure to
exhaust . . . if the respondent properly asserts the defense.’” Id. (citing Santiago-Lugo, 785 F.3d
at 475). Failure to exhaust administrative remedies is an affirmative defense, and inmates are not
required to specially plead or demonstrate exhaustion in their complaint. Jones v. Bock, 549
U.S. 199, 216 (2007). Additionally, the Supreme Court recently “held that the PLRA’s [“Prison
Litigation Reform Act’s”] text suggests no limits on an inmate’s obligation to exhaust—
irrespective of any ‘special circumstances.’ And that mandatory language means a court may not
excuse a failure to exhaust, even to take such circumstances into account.” Ross v. Blake, ___
U.S. ___, 2016 WL 3128839, at *5 (June 6, 2016).

10

The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y
for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)).

Furthermore, requiring

exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference with the
administration of prisons” and allows “corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548
U.S. 81, 93 (2006). 6
The Supreme Court has noted exhaustion must be “proper.”

Id. at 92.

“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, 549 U.S. at 218. It is not the role of the court to
consider the adequacy or futility of the administrative remedies afforded to the inmate.
Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). The court’s focus should be on
what remedies are available and whether the inmate pursued these remedies prior to filing suit.
Id.
Thus, under the law, prisoners must do more than simply initiate grievances; they must
also appeal any denial of relief through all levels of review that comprise the agency’s
administrative grievance process. Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (“To
6

Although Woodford was a civil rights suit rather than a habeas petition, the Court “noted that the
requirement of exhaustion is imposed by administrative law in order to ensure that the agency addresses
the issues on the merits.” Fulgengio v. Wells, CV309-26, 2009 WL 3201800, at *4 (S.D. Ga. Oct. 6,
2009) (emphasis in original) (quoting Woodford, 548 U.S. at 90) (internal punctuation omitted). Thus,
exhaustion requirements are applicable to habeas petitions.
11

exhaust administrative remedies in accordance with the PLRA, prisoners must ‘properly take
each step within the administrative process.’”) (quoting Johnson v. Meadows, 418 F.3d 1152,
1157 (11th Cir. 2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27,
2007) (finding that a plaintiff who is still awaiting a response from the warden regarding his
grievance is still in the process of exhausting his administrative remedies).
B.

D. Ray James Correctional Facility’s Grievance Procedure

Inmates at D. Ray James must exhaust administrative remedies, beginning their grievance
process locally with the Warden by using the contractor’s grievance procedures. (Doc. 17-1,
p. 48.) This involves an attempt at informal resolution, which, if unsuccessful, is followed by a
formal complaint via a Step 1 administrative remedy form within twenty (20) days of the
informal resolution request. (Id.) An inmate may appeal the Step 1 administrative remedy to the
Warden via a Step 2 administrative remedy form within five business days after the Step 1
response is returned. (Id. at p. 49.) If the inmate is not satisfied with the resolution of the formal
complaint, the inmate may appeal to the BOP’s Administrator of the Privatization Management
Branch, so long as the appeal involves BOP-related matters. 7 (Id. at p. 50.) If the inmate is not
satisfied with the Privatization Administrator’s response, the inmate may make a final appeal to
the BOP’s Office of General Counsel.

(Id.)

If an inmate files an administrative remedy

concerning a BOP-related matter, the administrative remedies will be recorded in the BOP’s
SENTRY computer database. (Id. at p. 5.)

7

Examples of BOP-related matters which must be appealed through the BOP are: sentence computations,
reduction in sentences, removal or disallowance of good conduct time, participation in certain programs,
and an inmate’s eligibility for early release. Pichardo v. Zenk, CV511-69, 2011 WL 5102814, at *2 n.4
(S.D. Ga. Sept. 27, 2011), adopted by 2011 WL 5103758 (Oct. 26, 2011).
12

C.

Standard of Review for Exhaustion

“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). Further, a
judge “may resolve factual questions” in instances where exhaustion of administrative remedies
is a defense before the court. Id. In these instances, “it is proper for a judge to consider facts
outside of the pleadings and to resolve factual disputes so long as the factual disputes do not
decide the merits and the parties have sufficient opportunity to develop a record.” Id. at 1376.
In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit set forth a
“two-step process” that lower courts must employ when examining the issue of exhaustion of
administrative remedies. 8 First, the court is to take the plaintiff’s version of the facts regarding
exhaustion as true. Id. at 1082. If, even under the plaintiff’s version of the facts, the 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 plaintiff’s
facts as true. Id. Rather, “the court then proceeds to make specific findings in order to resolve
the disputed factual issues[.]” Id. “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 Eleventh Circuit has held that a district court may
consider materials outside of the pleadings and resolve factual disputes regarding exhaustion in

8

Although Turner involved exhaustion requirements within the context of a 42 U.S.C. § 1983 action, it
appears the two-step process set forth in Turner would be no less applicable to a Section 2241 proceeding.
See McCoy v. Glidewell, No. 4:11-cv-1683-JFA-TER, 2012 WL 3716872, at *5 (D.S.C. June 18, 2012)
(noting Section 2241’s exhaustion requirements and Turner’s application of exhaustion standards to a
Section 2241 petition).
13

conjunction with a Rule 12(b)(6) motion to dismiss so long as the factual disputes do not decide
the merits of the case. See Bryant, 530 F.3d at 1376–77.
D.

Analysis of Scotton’s Efforts at Exhaustion

In his Reply to Respondent’s Response, Scotton implicitly concedes that he failed to
exhaust administrative remedies, contending that “there is no[ ] requirement [to exhaust
administrative remedies] w[h]ere [the claim concerns a violation of due process] by a for profit
private company,” the claim concerns an illegally modified sentence, and “the administrative
body is show[n] to be biased.” (Doc. 26, p. 6.) Thus, accepting Plaintiff’s version of facts as
true, under the first Turner step, he failed to exhaust D. Ray James Correctional Facility’s
administrative remedies.
However, Scotton further argues that he was prevented from properly exhausting
administrative remedies, through no fault of his own, due to D. Ray James staff’s failure to
respond to his administrative remedy requests.

(Id.)

Nevertheless, Plaintiff’s claims of

unavailability wither when subjected to the crucible of examination the second Turner step
requires. Again, under that step, the Court resolves any disputed factual issues and then assesses,
under those findings, whether the prisoner has exhausted his available administrative remedies.
Turner, 541 F.3d 1083.
Though the Supreme Court rejected a “special circumstances” exception to exhaustion in
Ross v. Blake, ___ U.S. ___, 2016 WL 3128839, at *5 (June 6, 2016), it reiterated that a prisoner
need only exhaust those remedies which were available to him.

___ U.S. ___ 2016 WL

3128839, at *7 (“An inmate, that is, must exhaust available remedies, but need not exhaust
unavailable ones.”)

The Court recognized “three kinds of circumstances in which an

administrative remedy, although officially on the books, is not capable of use to obtain relief.”

14

Id. First, the Court stated that, in some instances, the administrative procedure “operates as a
simple dead end—with officers unable or consistently unwilling to provide any relief to
aggrieved inmates.” Id. Thus, if the administrative procedure lacks authority or if the officials
with apparent authority “decline ever to exercise it,” the inmate has no obligation to exhaust the
remedy. Id. Second, when administrative remedies are so confusing that they are “essentially
‘unknowable,’” exhaustion is not required. Id., ___ U.S. ___, 2016 WL 3128839, at *8 (citing
Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007), and Turner, 541 F.3d at 1084).
Lastly, exhaustion is not required “when prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or intimidation.” Id.
However, the Supreme Court recognized that, “[g]iven prisons’ own incentives to maintain
functioning remedial processes, we expect that these circumstances will not often arise.” Id., ___
U.S. ___, 2016 WL 3128839, at *7.
Construing Scotton’s claims liberally, he arguably alleges that D. Ray James Correctional
Facility officers were “unable or consistently unwilling to provide any relief to aggrieved
inmates.” Ross, ___ U.S. ___, 2016 WL 3128839, at *8. In support of Scotton’s claim that he
exhausted the administrative remedies available to him, but was prevented from properly
exhausting administrative remedies, Scotton submitted what appear to be Step 2 Administrative
Remedy forms dated October 30, 2015, and November 15, 2015. (Doc. 26-1, pp. 12–13.)
However, nothing on these forms indicates staff received them or that Scotton otherwise pursued
the administrative remedies process beyond his drafting of these forms. Moreover, the Court
doubts the authenticity of the administrative remedy records submitted by Scotton. For example,
although Scotton dated his “Inmate Request to Staff” form October 12, 2015, the staff member
signature line, dated January 13, 2015, predates Scotton’s signature. (Id. at p. 14.)

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In

comparison,

Administrative

Remedy

evidence

submitted

Generalized

Retrieval

by

Respondent—specifically,

history—indicates

Scotton

Scotton’s
has

filed

administrative remedy requests regarding only his inadequate medical assistance claim and
claims regarding legal mail and discriminatory housing since he has been incarcerated based on
his federal sentence. (Doc. 17-1, pp. 21, 22.) Absent from Scotton’s administrative grievance
filing history is any record that he submitted grievances concerning his entitlement to 54 days of
GCT.

In addition, Vincent Shaw, Senior Litigation Counsel with the Bureau of Prisons’

Southeast Regional Office, confirms that Scotton’s “Administrative Remedy Generalized
Retrieval indicates that [he] has not filed any administrative remedies concerning [the GCT
claims in his Petition].” (Id. at p. 7.) Furthermore, contrary to Scotton’s claim that D. Ray
James staff ignores his grievances, his administrative remedy history reveals that the BOP
rejected the remedy regarding his inadequate medical assistance claim for incompleteness. (Id.
at p. 6.)

Scotton never refiled the remedy regarding that claim, nor did he pursue an

administrative remedy to the Office of General Counsel. (Id. at p. 6.) In general, Scotton’s
history of filing grievances reveals that D. Ray James administrative remedies were available to
him but that he simply failed to pursue those remedies as to his claim of GCT.
The Court finds this evidence more credible than Scotton’s unsupported and conclusory
allegations that D. Ray James staff ignored his GCT claims. Thus, Scotton failed to file an
administrative remedy as to his claims that he is entitled to 54 days of GCT. As set forth in
footnote 7 of this Report, Scotton’s claims concern BOP-related matters which must be appealed
through the above-described process, which Scotton failed to do.

Additionally, based on

Respondent’s submissions, it appears that the BOP’s administrative remedies are available to
Scotton, despite any contentions he may raise to the contrary.

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In sum, Plaintiff filed this lawsuit without ever alerting prison officials to the facts
underlying his claims that he is entitled to 54 days of GCT. An inmate must do more to resolve
his dispute within the literal walls, or at least the figurative walls, of the prison system before
seeking relief in the halls of the courthouse.

Consequently, the Court should DISMISS

Scotton’s claims regarding his award of GCT for failure to exhaust.
VI.

Leave to Appeal in Forma Pauperis
The Court should also deny Scotton leave to appeal in forma pauperis. Though Scotton

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. See Fed. R. App. R. 24(a)(1)(A) (“A party who was permitted to
proceed in forma pauperis in the district-court action, . . . may proceed on appeal in forma
pauperis without further authorization, unless the district court—before or after the notice of
appeal is filed—certifies that the appeal is not taken in good faith[.]”) (italics supplied). An
appeal cannot be taken in forma pauperis if the trial court certifies, either before or after the
notice of appeal is filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3). Good
faith in this context must be judged by an objective standard. Busch v. Cty. of Volusia, 189
F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to
advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the factual allegations are clearly
baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327
(1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma
pauperis action is frivolous and, thus, not brought in good faith, if it is “without arguable merit
either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v.
United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).

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Based on the above analysis of the Scotton’s Petition, the Court should DENY Scotton in
forma pauperis status on appeal, as there are no non-frivolous issues to raise on appeal, and any
appeal would not be taken in good faith.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court DENY Scotton’s Motions for
Protective Order, (doc. 7, 9, 12, 18). I further RECOMMEND the Court DISMISS Scotton’s
Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Scotton in forma
pauperis status on appeal.

The Court DISMISSES as moot Scotton’s Motion to Compel

Respondent to Respond, (doc. 22).
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United States
District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United

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States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Scotton and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 12th day of January,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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