Davies v. Bryson et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint without prejudice, DIRECT the Clerk to CLOSE this case, and DENY Plaintiff leave to proceed in forma pauperis on appeal. The Court ORDERS any pa rty 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 5/23/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 5/9/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DALE SCOTT DAVIES,
CIVIL ACTION NO.: 5:16-cv-103
HOMER BRYSON; THOMAS GRAMIAK;
and SANDRA CREWS,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Valdosta State Prison in Valdosta, Georgia,
submitted a Complaint pursuant to 42 U.S.C. § 1983 contesting certain conditions of his
confinement while housed at Ware State Prison in Waycross, Georgia. (Doc. 1.) For the reasons
set forth below, I RECOMMEND that the Court DISMISS Plaintiff’s Complaint, DIRECT the
Clerk of Court to CLOSE this case, and DENY Plaintiff leave to proceed in forma pauperis on
A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations marks omitted). A Magistrate Judge’s Report and Recommendation
provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers Local Union
349, 262 F. App’x 121, 125, 127 (11th Cir. Jan. 8, 2008) (indicating that a party has notice of a district
court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report
recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678
F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that report and recommendation served as notice that
claims would be sua sponte dismissed). This Report and Recommendation constitutes fair notice to
Plaintiff that his suit is barred and due to be dismissed. As indicated below, Plaintiff will have the
opportunity to present his objections to this finding, and the District Court will conduct a de novo review
of properly submitted objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v.
Williams, No. 1:12-CV-3562-TWT-JFK, 2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining
that magistrate judge’s report and recommendation constituted adequate notice and petitioner’s
opportunity to file objections provided a reasonable opportunity to respond).
Plaintiff filed his Complaint on November 18, 2016, alleging that Defendants violated his
constitutional rights by housing him in administrative segregation. (Doc. 1, pp. 3–4.) On
December 30, 2016, Plaintiff filed a Motion to Amend/Correct his Complaint to indicate that the
warden had since responded to his grievance. (Doc. 7, p. 1.) The Court granted the Motion to
Amend on January 13, 2017. (Doc. 10.)
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his assets, shows an inability to pay the
filing fee, and also includes a statement of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is
frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a governmental entity. Upon such screening,
the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails
to state a claim upon which relief may be granted or which seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a Complaint on an application to proceed in forma pauperis. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).
Dismissal for Failure to Exhaust Administrative Remedies
Where Congress explicitly mandates, prisoners seeking relief for alleged constitutional
violations must first exhaust inmate grievance procedures before filing suit in federal court. See
Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) of Title 42 of the United States
Code states, “No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law . . . until such administrative remedies as are available are
In Porter, the United States Supreme Court held that exhaustion of available
administrative remedies is mandatory. Porter, 534 U.S. at 523; see also O’Brien v. United
States, 137 F. App’x 295, 301–02 (11th Cir. 2005) (finding lack of exhaustion where prisoner
“prematurely filed his civil complaint . . . and . . . ‘failed to heed that clear statutory command’
requiring that his administrative remedies be exhausted before bringing suit”).
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)).
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).
The Supreme Court has noted exhaustion must be “proper.”
Id. at 92.
exhaustion demands compliance with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.” Id. at 90–91. In other words, an institution’s requirements
define what is considered exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007).
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 administrative
Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (“To exhaust
administrative remedies in accordance with the PLRA [Prison Litigation Reform Act], 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).
Furthermore, an inmate who files an untimely grievance or simply spurns the
administrative process until it is no longer available fails to satisfy the exhaustion requirement of
Johnson, 418 F.3d at 1157–59; Higginbottom v. Carter, 223 F.3d 1259, 1261
(11th Cir. 2000) (inmate’s belief that administrative procedures are futile or needless does not
excuse the exhaustion requirement). Additionally, “[t]he only facts pertinent to determining
whether a prisoner has satisfied the PLRA’s exhaustion requirement are those that existed when
he filed his original complaint.” Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012).
Within the Georgia Department of Corrections, the grievance procedure is a two-step
See Shaw v. Toole, No. 6:14-CV-48, 2015 WL 4529817, at *5 (S.D. Ga.
July 27, 2015), report and recommendation adopted, No. CV 614-048, 2015 WL 5025478 (S.D.
Ga. Aug. 24, 2015) (citing Georgia Department of Corrections’ Standard Operating Procedure
IIB05–0001). The process commences with the filing of a grievance, which must be filed within
ten (10) calendar days from “the date the offender knew, or should have known, of the facts
giving rise to the grievance.” Id. The Grievance Coordinator is to screen the grievance to
determine whether the warden should accept the grievance or reject it. Id. The warden has a
period of forty (40) calendar days from the date the inmate gave his grievance to the counselor to
respond. An extension of 10 calendar days can be granted once, provided the inmate is advised
in writing of the extension before the original 40 calendar days have expired. Id. An inmate can
file an appeal with the Commissioner’s Office in the following instances: if the grievance
coordinator rejects his original grievance; after the warden responds to the original grievance; or
when the time allowed for the warden’s decision has expired. The inmate has seven (7) calendar
days in which to file this appeal. Id. The Commissioner has 100 calendar days after receipt to
render a decision. These time limits may be waived for good cause. Id.
Failure to exhaust administrative remedies is an affirmative defense, and inmates are not
required to specially plead or demonstrate exhaustion in their complaint. Jones, 549 U.S. at 216.
However, the normal pleading rules still apply, and when an affirmative defense appears on the
face of a complaint making it clear that a prisoner cannot state a claim for relief, dismissal is
warranted under the screening process set out in 28 U.S.C. § 1915A. Id. at 214–15. Thus, when
a prisoner admits in his complaint that he has not exhausted the grievance process, dismissal is
warranted. See Okpala v. Drew, 248 F. App’x 72 (11th Cir. 2007); Cole v. Ellis, No. 5:10-CV00316-RS-GRJ, 2010 WL 5564632, at *3 (N.D. Fla. Dec. 28, 2010); Rashid v. Liberty Cty. Jail,
CV410-092, 2010 WL 3239241 at *1 n.1 (S.D. Ga. May 3, 2010) (“Nothing in Jones . . . forbids
the Court from dismissing a complaint pursuant to § 1997e(a) if it is clear from the face of the
complaint that the prisoner has not exhausted all administrative remedies available to him.”).
It is apparent from the face of Plaintiff’s Complaint that he did not exhaust his available
administrative remedies prior to filing this lawsuit. Plaintiff admits in his Complaint that he did
not appeal his grievance even after the time for the warden to respond had expired. (Doc. 1,
p. 5.) The PLRA’s exhaustion requirement demands that a prisoner “properly take each step
within the administrative process.” Bryant, 530 F.3d at 1378. Thus, if the time for the warden to
respond has expired, Plaintiff must file an appeal with the Commissioner’s Office. Shaw, No.
6:14-CV-48, 2015 WL 4529817, at *5 (citing Georgia Department of Corrections’ Standard
Operating Procedure IIB05–0001) (prisoners may file an appeal if the time for the warden to
respond has expired).
Plaintiff did not do so.
Instead of appropriately exhausting the
administrative process by filing an appeal, Plaintiff filed the instant case. Moreover, as further
proof of Plaintiff’s failure to appropriately exhaust prior to filing suit, Plaintiff states in his
Amended Complaint that, since the commencement of this case, the warden has responded to his
grievance and that Plaintiff has appealed the response to the Commissioner’s Office. (Doc. 7.)
However, this post-commencement exhaustion is insufficient to meet the mandates of Section
See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison
conditions under section 1983 . . . until such administrative remedies as are available are
exhausted.” (emphasis added)); see also Porter, 534 U.S. at 524. It is apparent from the face of
Plaintiff’s Complaint that he did not fully exhaust his administrative remedies prior to filing suit.
Accordingly, I RECOMMEND that the Court DISMISS this action WITHOUT
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2
Plaintiff 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. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not taken in good faith “before or after the notice of appeal is filed”).
A certificate of appealability is not required in this Section 1983 action.
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(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).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
For the above stated reasons, I RECOMMEND that the Court DISMISS Plaintiff’s
Complaint WITHOUT PREJUDICE, DIRECT the Clerk of Court to CLOSE this case, and
DENY Plaintiff leave to proceed in forma pauperis 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. 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
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 the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 9th day of May, 2017.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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