Gill v. Deal et al

Filing 5

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 Complaint, DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case, and DENY Plaintiff leave to appeal in forma pauperis. 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 8/15/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/1/2018. (ca)

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

AHMAD RASHAD GILL,
Plaintiff,

CIVIL ACTION NO.: 5:18-cv-50

v.
JAMES DEAL; EDWINA JOHNSON;
TARAN TODMAN; AUSTIN ADAMS; and
WICKER,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is incarcerated at Ware State Prison in Waycross, Georgia, filed this cause
of action pursuant to 42 U.S.C. § 1983, contesting certain conditions of his confinement.
(Doc. 1.) Plaintiff also filed a Motion for Leave to Proceed in Forma Pauperis. (Doc. 2.) For
the reasons that follow, the Court DENIES Plaintiff’s Motion. Furthermore, I RECOMMEND
the Court DISMISS without prejudice Plaintiff’s Complaint, DIRECT the Clerk of Court to
enter the appropriate judgment of dismissal and to CLOSE this case, and DENY Plaintiff leave
to appeal in forma pauperis. 1
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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
(“R&R”) 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. 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 an R&R served as notice that claims would be sua
sponte dismissed). This R&R 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 review de novo 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

PLAINTIFF’S ALLEGATIONS 2
Plaintiff contends Defendants failed to protect him from “closed security inmates.”
(Doc. 1, p. 5.) Plaintiff states that two unnamed inmates stabbed him six times due to a breach in
security where Defendants failed to properly cordon off these inmates.

Plaintiff alleges

Defendants left a security loop unlocked and unsupervised, which allowed these inmates to
commit the subject attack. (Id.) Plaintiff states he filed a grievance regarding these allegations
but did not appeal. (Id. at pp. 3–4.) As relief, Plaintiff seeks $1.5 million. (Id. at p. 6.)
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. 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 and 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

5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that a magistrate judge’s R&R constituted adequate
notice and petitioner’s opportunity to file objections provided a reasonable opportunity to respond).
Additionally, this R&R provides Plaintiff the opportunity to amend his Complaint to correct the
deficiencies noted herein. See Fed. R. Civ. P. 15. Should Plaintiff seek to amend his Complaint, he must
file the amendment within fourteen (14) days from the date of this R&R.
2

The below recited facts are taken from Plaintiff’s Complaint and are accepted as true, as they must be at
this stage.

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or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. 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)).

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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 . . . .”) (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.”).
DISCUSSION
I.

Dismissal for Plaintiff’s Failure to Exhaust Available Administrative Remedies
Before Filing Suit
A.

Exhaustion at Frivolity Review Stage

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). 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.

“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 v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (citation and
internal punctuation omitted). Thus, when a prisoner admits in his complaint that he has not
exhausted the grievance process, the Court should dismiss the lawsuit during the frivolity
screening. See Okpala v. Drew, 248 F. App’x 72 (11th Cir. 2007) (per curiam); Cole v. Ellis,

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No. 5:10-CV-00316-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.”)
B.

Legal Requirements for Exhaustion

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
exhausted.”

In Porter, the United States Supreme Court held that exhaustion of available

administrative remedies is mandatory. 534 U.S. at 523; see also Ross v. Blake, 578 U.S. ___,
___, 136 S.Ct. 1850, 1858 (2016) (“An inmate, that is, must exhaust available remedies, but need
not exhaust unavailable ones.”); 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) (per curiam) (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

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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.

“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.
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
grievance process. Bryant, 530 F.3d at1378 (“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
the PLRA. 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

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original complaint.” Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012) (per curiam) (citing
Harris v. Garner, 216 F.3d 970, 981 (11th Cir. 2000)).
“However, ‘while [Section] 1997e(a) requires that a prisoner provide as much relevant
information as he reasonably can in the administrative grievance process, it does not require
more.’” Id. (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000)). The purpose of
Section 1997e(a) is not that “fact-intensive litigation” result over whether every fact relevant to
the cause of action was included in the grievance. Hooks v. Rich, CV605-65, 2006 WL 565909,
at *5 (S.D. Ga. Mar. 7, 2006) (citation omitted). “‘As long as the basic purposes of exhaustion
are fulfilled, there does not appear to be any reason to require a prisoner plaintiff to present fully
developed legal and factual claims at the administrative level.’” Id. (quoting Irvin v. Zamora,
161 F. Supp. 2d 1125, 1135 (S.D. Cal. 2001)). Rather, Section 1997e(a) is intended to force
inmates to give state prison authorities a chance to correct constitutional violations in their
prisons before resorting to federal suit and to prevent patently frivolous lawsuits. Id.
C.

Georgia Department of Corrections’ Grievance Process

Within the Georgia Department of Corrections, the grievance procedure is a two-step
process. See Shaw v. Toole, No. 6:14-cv-48, 2015 WL 4529817, at *5 (S.D. Ga. July 27, 2015)
(citing Georgia Department of Corrections’ Standard Operating Procedure IIB05-0001 (“SOP
IIB05-0001”)), report and recommendation adopted, 2015 WL 5025478 (S.D. Ga. Aug. 24,
2015). 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.

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An extension of ten (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 Central 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. Id. (emphasis added). The inmate
has seven (7) calendar days in which to file this appeal, and the Commissioner has 100 calendar
days after receipt to render a decision. These time limits may be waived for good cause. Id.
Notably, SOP IIB05-0001 applies to all inmates in Georgia Department of Corrections’
facilities, which includes Ware State Prison. Grievance forms must be available in the control
rooms of all living units and must be provided to inmates upon request. Simpson v. Allen, No.
6:15-cv-118, 2016 WL 5024226, at *4 (S.D. Ga. Sept. 16, 2016) (citing SOP IIB05-0001), report
and recommendation adopted, 2016 WL 6609195 (S.D. Ga. Nov. 7, 2016). Further, inmates are
permitted to pursue grievances at their present facility of incarceration concerning events that
occurred at a different facility. Johnson v. Holt, No. 5:14-CV-380 (MTT), 2015 WL 6453151, at
*1 n.1 (M.D. Ga. Oct. 23, 2015).
D.

Plaintiff’s Failure to Exhaust

It is apparent from the face of Plaintiff’s Complaint that he did not exhaust his available
administrative remedies prior to filing this lawsuit. By stating that he did not file an appeal,
Plaintiff plainly admits that he did not utilize the full grievance process.

(Doc. 1, p. 4.)

Moreover, Plaintiff does not show that his grievance was granted. (Id. at p. 3.) Thus, Plaintiff
makes clear that he did not avail himself of each step of the grievance process before filing suit,
as required by Section 1997e(a). Finally, Plaintiff makes no arguments that the grievance

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process was unavailable to him at Ware State Prison. Indeed, he shows he initially filed a
grievance and was given a copy in return. (Id. at pp. 3–4.)
Therefore, it is clear from the face of his Complaint that Plaintiff failed to exhaust his
administrative remedies as to the grievance he filed before commencing this case. Accordingly,
the Court should DISMISS without prejudice Plaintiff’s Complaint for his failure to exhaust.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 3

Though

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”).
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. County 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). 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).

3

A certificate of appealability is not required in this Section 1983 action.
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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.
CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis. (Doc. 2.) Furthermore, I RECOMMEND the Court DISMISS
without prejudice Plaintiff’s Complaint, DIRECT the Clerk of Court to enter the appropriate
judgment of dismissal and to CLOSE this case, and DENY Plaintiff leave to appeal in forma
pauperis.
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. However, Plaintiff may amend the Complaint to cure
any deficiencies noted in this Report and Recommendation. See Fed. R. Civ. P. 15. Should
Plaintiff seek to amend the Complaint, Plaintiff must file the amended complaint within fourteen
(14) days from the date of this Report and Recommendation.
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

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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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 1st day of August,
2018.

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

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