Daker v. Head et al
Filing
260
ORDER denying as moot 139 Motion to Sever and 164 Motion for Sanctions. Signed by Magistrate Judge Benjamin W. Cheesbro on 2/22/2021. (csr)
Case 6:14-cv-00047-RSB-BWC Document 260 Filed 02/22/21 Page 1 of FILED
40
John E. Triplett, Acting Clerk
United States District Court
By Crobinson at 2:29 pm, Feb 22, 2021
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WASEEM DAKER,
Plaintiff,
CIVIL ACTION NO.: 6:14-cv-47
v.
BRIAN OWENS, et al.,
Defendants.
ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Presently before the Court are the Motion to Dismiss of Defendants Owens, Ward, Toole,
Kilgore, DeLoach, Milton Smith, Warren, Salgado, Shuemake, Todman, Davis, and Bailey-Dean
(“Movants”), pursuant to 42 U.S.C. § 1997e(a), (e), and Federal Rule of Civil Procedure
12(b)(6), doc. 148, Plaintiff’s Response, doc. 161, Movants’ Reply, doc. 182, Plaintiff’s
Surreply, doc. 204, and Plaintiff’s Citation of Supplemental Authority in Support of Surreply,
doc. 241. 1 For the following reasons, I RECOMMEND the Court GRANT the portion of
Movants’ Motion seeking dismissal of claims for failure to exhaust under 42 U.S.C.§1997e(a)
and DISMISS the following Georgia State Prison (“GSP”) claims: 2
1
As with many of his other filings, Plaintiff’s Response and Surreply both exceed this District’s
Local Rule regarding page limits. While the Court considered Plaintiff’s briefs in ruling on the Motion to
Dismiss, Plaintiff must comply with the Local Rule governing page limits, and the Court will not consider
non-compliant briefs in the future unless Plaintiff receives express permission in advance to exceed the
26-page limit. See Local R. 7.1(a) (“Absent prior permission of the Court, no brief shall exceed twentysix (26) pages in length, inclusive of the certificate of service required by LR 5.1.”).
2
The Court incorporates herein the description of the GSP claims, as laid out in this Court’s
December 20, 2019 Order and Magistrate Judge’s Report and Recommendation. Doc. 99 at 9–18
(adopted in part by doc. 235). In this Report and Recommendation, I did not consider the viability of any
of Plaintiff’s Georgia Diagnostic & Classification Prison (“GDCP”) claims or the viability of the Cobb
County claims raised in Plaintiff’s Complaint and Supplemental Complaint, which were severed and
transferred to other Districts. Doc. 235 at 25.
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(1)
All of Plaintiff’s First Amendment GSP claims raised in his Complaint
and Supplemental Complaint (i.e., Plaintiff’s claims of denial of access to
the courts (photocopies and postage) and claims of violations of rights to
religious exercise);
(2)
All of Plaintiff’s Eighth Amendment GSP claims raised in his Complaint
and Supplemental Complaint (i.e., Plaintiff’s claims of deliberate
indifference to his serious medical needs (including claims related to
dental care), claims involving conditions of confinement, claims of
deliberate indifference to his health and safety, and claims of excessive
use of force); and
(3)
All of Plaintiff’s deprivation of property GSP claims raised in his
Complaint and Supplemental Complaint (i.e., Plaintiff’s deprivation of
property claims against Defendants Toole, Jacobs, Shuemake, Todman,
and Davis).
I also RECOMMEND the Court GRANT the portion of Movants’ Motion seeking dismissal of
Plaintiff’s claims for certain categories of damages pursuant to 42 U.S.C. § 1997e(e) and
DISMISS Plaintiff’s remaining claims for compensatory and punitive damages. I also
RECOMMEND the Court DENY as moot the portion of Movants’ Motion seeking dismissal of
Plaintiff’s forced shaving claim for failure to state a claim. Doc. 148.
If this Recommendation regarding Movants’ Motion to Dismiss is adopted, then the only
remaining claims in this lawsuit will be Plaintiff’s GSP procedural due process claims
concerning his placement in Tier II/segregation against Defendants DeLoach, Owens, Toole,
Bailey-Dean, and Jacobs, 3 see doc. 235 at 26–27, and, for these claims, Plaintiff will be limited
to recovering only nominal damages and shall not be able to recover compensatory or punitive
3
The Court refers the parties to the undersigned’s December 20, 2019 Order and Report and
Recommendation for a description of the scope of the remaining GSP procedural due process claims
against Defendants DeLoach, Owens, Toole, Bailey-Dean, and Jacobs. Doc. 99 at 10–12, 30–31, 43
(outlining, analyzing, and ordering service of Plaintiff’s procedural due process claims concerning his
placement in Tier II/segregation against Defendants DeLoach, Owens, Toole, Bailey-Dean, and Jacobs),
adopted in part by Doc. 235.
2
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damages. Therefore, I RECOMMEND the Court DISMISS all other Defendants from this
action and TERMINATE them from the docket in this case.
I also RECOMMEND the Court DENY Plaintiff’s Supplemental Motions for
Preliminary Injunction or Temporary Restraining Order regarding forced shaving, docs. 166,
195. Finally, through this Order, the Court DENIES as moot Defendants’ Motion to Sever,
doc. 139, and DENIES Plaintiff’s Motion for Sanctions, doc. 164.
BACKGROUND
Plaintiff brought this 42 U.S.C. § 1983 suit alleging various claims against Defendants,
mainly concerning his confinement at GSP in 2014. Docs. 1, 9. After a frivolity screening under
28 U.S.C. § 1915A, the Court severed and transferred and dismissed many of Plaintiff’s claims.
Docs. 99, 235. The Court, however, permitted Plaintiff to proceed on certain claims identified as
GSP claims, including Eighth Amendment claims, a First Amendment claim, a deprivation of
property claim, and his procedural due process claim based on his placement in Tier
II/segregation. 4 Id. The Court also provided Plaintiff the opportunity to clarify which
Defendants should be named in his Eighth Amendment GSP claims based on conditions of
confinement and his First Amendment GSP claims based on denial of access to courts
(photocopies) and violation of religious exercise rights. 5 Doc. 99 at 26, 28–29, 34, 43–44.
Movants now ask this Court to dismiss all of Plaintiff’s claims currently pending in this
action (except Plaintiff’s procedural due process GSP claims regarding his placement in Tier
4
A full description of the surviving claims can be found in the undersigned’s Report and
Recommendation, doc. 99, and the Court’s Order considering that Report and Recommendation, doc.
235.
5
While Plaintiff provided a supplement in an attempt to clarify the Defendants who should be
named in these claims, doc. 105, the undersigned finds there is no need to perform a further screening of
these claims in light of Plaintiff’s failure to exhaust his administrative remedies.
3
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II/segregation) based on Plaintiff’s failure to exhaust administrative remedies. Doc. 148-1 at 1,
n.1. Movants also seek dismissal of Plaintiff’s claims for compensatory and punitive damages
on all pending claims (except two Eighth Amendment deliberate indifference claims) based on
Plaintiff’s failure to allege more than a de minimis injury. Id. at 8–10. Finally, Movants seek
dismissal of Plaintiff’s claims of forced shaving claim due to his failure to state a claim. Id. at
10–11.
Plaintiff styles his Response as a “Partial Response” and requests the Court allow him the
opportunity to supplement his Response upon receiving access to all the authorities listed in the
Movants’ Motion to Dismiss. Doc. 161 at 1. Plaintiff’s “Partial Response” is comprehensive
and supported by extensive citations to legal authority. Simultaneous with the filing of his
Response, Plaintiff filed a motion for access to case authorities, doc. 163, and Plaintiff later filed
a second motion for access to case authorities in connection with Movants’ Reply brief for their
Motion to Dismiss, doc. 202. 6 The Court has denied Plaintiff’s motions for access to case
authorities, doc. 251, and the Court now also DENIES Plaintiff’s request to supplement his
Response to Movants’ Motion to Dismiss upon access to the requested authorities. Because
Plaintiff’s time for filing his Response has passed and his Response on file is comprehensive and
6
A sizeable portion of the parties’ briefs concerns the issue of Plaintiff’s access to case law and the
law library at Valdosta State Prison during the timeframe he was responding to this Motion. Doc. 161 at
1–5; Doc.182 at 1–2; Doc. 204 at 7–25. The issue of Plaintiff’s law library access at Valdosta State
Prison in 2020 is not properly before this Court. Moreover, Plaintiff’s briefing in his Response and
Surreply is supported by numerous citations of authority, including opinions issued as recently as
September 2020. Docs. 161, 204, 241. Any limitation on Plaintiff’s access to cases or the law library has
not significantly frustrated his ability to fully respond to Movants’ Motion to Dismiss.
4
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fully supported with citations to authority, the Court treats his “Partial” Response to Movants’
Motion to Dismiss as Plaintiff’s complete and final Response. 7
DISCUSSION
I.
Motion to Dismiss for Failure to Exhaust Administrative Remedies, Doc. 148
As explained below, it is undisputed Plaintiff did not exhaust his administrative remedies
before bringing this suit. Instead, Plaintiff alleges administrative remedies were unavailable for
various reasons, and, alternatively, the Georgia Department of Corrections’ two-active-grievance
limitation is unconstitutional. Plaintiff’s arguments are unavailing. Administrative remedies for
the currently pending claims were available to Plaintiff; he simply elected not to exhaust those
remedies. Plaintiff’s constitutional challenge to the Georgia Department of Corrections’ twoactive-grievance rule is also unavailing, as the rule serves a legitimate penological need.
Because Plaintiff failed to exhaust administrative remedies as to all of his pending GSP claims
(excluding his procedural due process claims based on Tier II/segregation placement) before
bringing this suit, I recommend the Court dismiss those claims.
A.
Standard of Review
Movants allege Plaintiff failed to comply with the exhaustion requirements of the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), as to all but one of his claims. Section
1997e(a) states: “No action shall be brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). “[W]hen a state provides a grievance procedure for its prisoners, . . . an
7
Plaintiff frequently files what he calls “partial” responses and objections. He has done so eight
times in this case. Docs. 110, 161, 225, 236, 237, 238, 239, 244. In each instance, the responses and
objections were comprehensive and fully supported by legal citations.
5
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inmate alleging harm suffered from prison conditions must file a grievance and exhaust the
remedies available under that procedure before pursuing a § 1983 lawsuit.” Brown v. Sikes, 212
F.3d 1205, 1207 (11th Cir. 2000). “The plain language of the statute makes exhaustion a
precondition to filing an action in federal court.” Higginbottom v. Carter, 223 F.3d 1259, 1261
(11th Cir. 2000) (citation omitted).
The determination of whether an inmate exhausted his available administrative remedies
prior to bringing a cause of action in federal court is a matter of abatement and should be raised
in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1374–75 (11th Cir. 2008). “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. Id. 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. 8
To evaluate the exhaustion of administrative remedies, first, the court looks to the parties’
factual allegations, and if they conflict, the court takes the plaintiff’s version as true. Turner v.
Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). If, per the plaintiff’s account, the
8
Plaintiff, in his Response, challenges the Court’s ability to consider motions to dismiss for failure
to exhaust as matters of abatement and to resolve factual disputes. Doc. 161 at 20–21. This argument
lacks merit and is contradicted by well-established controlling authority. While the undersigned finds no
need to proceed to step two of Turner in the instant case or to engage in any credibility determinations,
the Eleventh Circuit Court of Appeals has made it clear “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.” Bryant, 530 F.3d at 1374–76. Here, the
relative merits of Plaintiff’s claims have not been decided. Furthermore, Plaintiff had ample opportunity
to develop the record, submitting over 100 pages of sworn allegations for this Court’s consideration on
the issue of exhaustion. See Docs. 1, 9, 153, 161, 204.
6
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administrative remedies have been exhausted, then the court proceeds to step two. At step two,
the defendants bear the burden of proving the plaintiff did not exhaust his available
administrative remedies. Id. At this stage, the court makes factual findings on whether the
plaintiff exhausted the available remedies. Id. To the extent the factual findings lead to
procedural dismissal as opposed to dismissal on the merits, the district court is free to make any
findings necessary to resolve the issue. Bryant, 530 F.3d at 1376–77. If the remedies are not
found to be exhausted, then dismissal is appropriate. Turner, 541 F.3d at 1083.
B.
Whether Plaintiff Exhausted Available Administrative Remedies
In their Motion to Dismiss, Movants argue Plaintiff failed to file any grievances at GSP
prior to bringing the GSP claims in this case. Doc. 148-1 at 4. Movants point out Plaintiff
originally brought this lawsuit, asserting his GSP claims, on May 11, 2014, doc. 1 at 33, but
Plaintiff did not file his first grievances at GSP until June 23, 2014—more than a month after
signing his initial Complaint. 9 Doc. 148-1 at 6; Doc. 148-5 at 4. Aside from the two June 23,
2014 grievances, Plaintiff filed no other grievances at GSP between June 23, 2014, and when the
Plaintiff signed his Supplemental Complaint on July 31, 2014. Docs. 148-2, 148-5. Regarding
the two June 23, 2014 grievances, Movants further note that even for those grievances, Plaintiff
had not completed the requisite appeal step for either grievance at the time he signed the
9
While the present case was filed with the Clerk of Court on May 19, 2014, the applicable date for
exhaustion purposes under § 1997e(a) is the date Plaintiff signed the Complaint, May 11, 2014. Doc. 1.
Similarly, when considering any new claims raised in the Supplemental Complaint, the applicable date for
exhaustion purposes is the date Plaintiff signed the Supplemental Complaint, July 31, 2014, and not the
August 19, 2014 filing date. Doc. 9; see Merilien v. Caldwell, No. 3:18-CV-056, 2020 WL 5763609, at
*2 (S.D. Ga. Sept. 28, 2020) (“Concluding a prisoner ‘brings’ a civil action when he signs the complaint
instead of when the clerk files the complaint is consistent with the purpose of § 1997e(a), which is to
require exhaustion before a prisoner initiates litigation to avoid premature interruption of the
administrative process.”).
7
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Supplemental Complaint. 10 Doc. 148-2 at 5; Docs. 148-5, 148-6, 148-7. Plaintiff’s next
grievance was filed on September 2, 2014, weeks after he filed both the Complaint and
Supplemental Complaint. Doc. 148-5 at 4. In short, according to Movants, Plaintiff’s grievance
history indicates he had not completed the requisite two-step process for any of the grievances
submitted at GSP prior to the time he brought the claims in this action.
In his Response, Plaintiff does not directly dispute the reported grievance history; instead,
Plaintiff claims he made multiple attempts to file grievances prior to bringing this suit, but the
attempts were improperly impeded or rejected by prison officials, including his counselor,
former Defendant Muriel Jackson. 11 Doc. 161 at 9. In other words, Plaintiff argues
administrative remedies were not available to him at GSP during the relevant period.
Specifically, Plaintiff claims he was not provided with proper grievance forms, and he alleges
prison officials lost and destroyed grievances. Id. at 13–16. Additionally, Plaintiff argues
administrative remedies were unavailable as a practical matter, because of the Georgia
Department of Corrections’ two-active-grievance rule. Doc. 204 at 29. Finally, he challenges
10
One of Plaintiff’s two June 23, 2014 grievances addressed Plaintiff’s medical concerns and a
request for a special, increased-calorie diet at a sick-call visit on June 18, 2014 (Grievance Number
175847, doc. 148-6), and the other addressed alleged threats by a CERT officer named Cauley (Grievance
Number 175848, doc. 148-7). The second grievance, Number 175848, does not relate to any of the
currently pending GSP claims. The first, Number 175847, references some medical issues discussed in
Plaintiff’s Supplemental Complaint, as well as other unrelated issues. Regardless of the content of
Grievance Number 175847, Plaintiff signed his Supplemental Complaint while that grievance was still
pending and long before the appeal process was complete. Doc. 148-6.
11
In support of this argument, Plaintiff identifies 19 grievances with their assigned grievance
numbers. Doc. 161 at 9. Plaintiff contends these grievances were denied or ignored. Id. However, a
review of Plaintiff’s grievance history, doc. 148-5, reveals all 19 of the grievances he identified by
grievance number were actually filed at GDCP prior to his transfer to GSP on April 7, 2014. See Doc. 1
at 15. As all of Plaintiff’s GDCP claims have been severed from this action and transferred to another
District, doc. 235 at 25, these GDCP grievances do not show Plaintiff properly grieved the GSP claims
remaining in this case, nor do they persuade the Court the grievance procedure was unavailable to
Plaintiff at GSP during the relevant time period.
8
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the constitutionality of the two-active-grievance rule and the availability of the grievance
procedures in general. Docs. 161, 204. Plaintiff focuses his arguments on his attempts to file
grievances on April 18, May 6, May 9, and May 13, 2014. The circumstances of these attempts
are addressed herein. 12
To reiterate, there is no dispute over whether Plaintiff actually exhausted his
administrative remedies for the GSP claims (with the exception of his remaining procedural due
process claims based on Tier II/segregation placement) prior to bringing this action. Plaintiff
essentially concedes he did not do so, and the record plainly shows administrative remedies as to
these claims were not exhausted. Rather, Plaintiff argues he was not required to exhaust his
administrative remedies because they were not available to him.
“To exhaust administrative remedies in accordance with the PLRA, prisoners must
properly take each step within the administrative process.” Bryant, 530 F.3d at 1378 (citation
and quotation marks omitted). “Proper exhaustion demands compliance with an agency’s
12
Plaintiff also states once, in passing, GSP prison officials refused to accept his grievances on
April 11, April 25, and May 2, 2014. Doc. 161 at 16. Plaintiff’s allegations concerning these three dates
are conclusory with no details whatsoever. This is in stark contrast to Plaintiff’s detailed allegations
regarding all other attempts to file grievances. Movants submitted the sworn declaration of counselor
Jackson, in which he expressly denies failing to process grievances (including any grievances Plaintiff
alleges he attempted to submit on April 11, April 25, and May 2, 2014) for any reason other than the twoactive-grievance limitation. Doc. 182-2 at 4. Plaintiff’s one passing, unsupported reference to April 11,
April 25, and May 2, 2014, does not change the analysis, even under Turner step one. This reference
merely states Plaintiff attempted to file grievances on these dates, but prison officials failed to accept
them. Without some explanation, this allegation does nothing to support Plaintiff’s argument that
administrative remedies were unavailable. To the extent this allegation would change the analysis and the
Court needed to proceed to Turner step two, I would explicitly find as a factual matter Plaintiff either did
not attempt to file grievances on April 11, April 25, and May 2, 2014, or, if he did, the grievances were
rejected only because of the two-active-grievance limitation. Under either scenario, these three instances
would have no bearing on the Court’s analysis. If not submitted at all, Plaintiff’s allegation is immaterial;
if submitted but rejected under the two-active-grievance limitation, then these instances are simply
cumulative of other rejections for the same reasons around the same time. Therefore, the Court will not
address these allegations concerning Plaintiff’s attempts to submit grievances on April 11, April 25, and
May 2, 2014, further in its analysis, and will, instead, focus on Plaintiff’s other supported and detailed
allegations.
9
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deadlines and other critical procedural rules because no adjudicative system can function
effectively without imposing some orderly structure on the course of its proceedings.”
Woodford v. Ngo, 548 U.S. 81, 90–91 (2006). “[A] court may not excuse a failure to exhaust.”
Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). In this case, the Georgia Department of
Corrections’ Statewide Grievance Procedure has two steps, the Original Grievance and the
Central Office Appeal. Doc. 148-3 at 8. As outlined above, it is undisputed Plaintiff failed to
complete the two-step exhaustion process laid out in the grievance policy prior to bringing his
claims. The issue in this case, however, turns on the availability of the administrative remedies.
The United States Supreme Court has made it clear “[a] prisoner need not exhaust
remedies if they are not ‘available.’” Ross v. Blake, 136 S. Ct. at 1855. In Ross v. Blake, the
Supreme Court explained administrative remedies are unavailable for the purposes of PLRA in
three circumstances:
(1) when the administrative procedure “operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to aggrieved
inmates”; (2) where the administrative scheme is “so opaque that it becomes . .
. incapable of use . . . [and] no ordinary prisoner can discern or navigate it”;
and (3) when “prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.”
Geter v. Baldwin State Prison, 974 F.3d 1348, 1355 (11th Cir. 2020) (citing Ross, 136 S. Ct. at
1859–60). The Ross Court further stated, “Courts may not engraft an unwritten ‘special
circumstances’ exception onto the PLRA’s exhaustion requirement. The only limit to
§ 1997e(a)’s mandate is the one baked into its text: An inmate need exhaust only such
administrative remedies as are ‘available.’” 136 S. Ct. at 1862.
This Court, in applying Ross and Turner, must determine whether Plaintiff has
sufficiently demonstrated unavailability. “[A] proper Turner analysis of exhaustion after Ross
requires the plaintiff to allege a grievance procedure is unavailable to him in response to the
10
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defendant’s affirmative defense of failure to exhaust.” Geter, 974 F.3d at 1356. “While the
burden is on the defendant to show an available administrative remedy, once that burden has
been met, the burden of going forward shifts to the plaintiff, who, pursuant to Turner, must
demonstrate that the grievance procedure was ‘subjectively’ and ‘objectively’ unavailable to
him.” Id. In terms of a defendant’s initial showing, Turner only requires a defendant to show a
remedy is “generally available.” See Wright v. Ga. Dep’t of Corr., 820 F. App’x 841, 845 (11th
Cir. 2020) (“Turner mandates that ‘defendants bear the burden of proving that the plaintiff has
failed to exhaust his available administrative remedies,’ which includes showing that a remedy is
generally available.”). The defendant is not required to show whether the remedy was practically
available to the particular plaintiff. Id.
1.
Movants’ burden to show administrative remedies were
“generally available.”
Applying the Turner analysis, the Court first determines whether Movants meet their
burden of showing administrative remedies were generally available. Wright, 820 F. App’x at
845. The Court, reviewing the undisputed evidence before it, concludes Movants have met their
burden regarding the general availability of the grievance process. Specifically, Movants have
presented evidence in the form of an authenticated copy of the Georgia Department of
Corrections’ Statewide Grievance Procedure (“SOP”) in effect at the time of the events giving
rise to Plaintiff’s Complaint and Supplemental Complaint, doc. 148-3 (effective 12/10/2012), as
well as two Declarations from Deidra Edwards, chief counselor at GSP, outlining the applicable
grievance policy and describing Plaintiff’s active grievance history, docs. 148-2, 182-1.
The grievance policy at issue states, “No inmate may be denied access to this procedure,”
doc. 148-3 at 5, and provides the procedures through which inmates in Georgia can file
grievances. The grievance policy limits an inmate to pursuing only two active grievances at any
11
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given time but includes a number of exceptions to this rule. Id. at 7. The policy allows an
offender who has reached the two-active-grievance limit and seeks to file another grievance the
option of dropping one of the outstanding active grievances which is being processed. Id.
Additionally, the policy provides for the filing of an emergency grievance for “[a]n unexpected
situation involving a significant threat to the health, safety or welfare of an offender that requires
prompt action.” Id. at 3. Such a grievance, if determined by the Grievance Coordinator to be an
emergency, does not count toward the two-active-grievance limit. Id. at 8. Also, grievances
involving allegations of physical abuse with significant injury and sexual assault and grievances
the Grievance Coordinator determines “involv[e] an important issue of prison security or
administration, such as a serious threat to life, health, or safety of any person” do not count
toward the two-active-grievance limit. Id.
The grievance policy also outlines certain limitations concerning the format and content
of grievances (e.g., prohibiting profanity) that must be complied with prior to a grievance being
accepted. Id. at 6–9, 25. Additionally, it provides time limitations stating: “The offender must
submit the Grievance Form no later than 10 calendar days from the date the offender knew, or
should have known, of the facts giving rise to the grievances.” Id. at 9. However, the policy
allows the Grievance Coordinator to waive the time limit for good cause (defining “good cause”
as a “legitimate reason involving unusual circumstances that prevented the offender from timely
filing a grievance or appeal.”) Id. at 3, 9.
While the policy provides a grievance should be rejected if the offender “already has two
active grievances,” it also permits an offender to appeal a rejection decision to the Central
Office. Id. at 9–10. An inmate may file a Central Office Appeal either after receiving the
Grievance Coordinator’s rejection, after receiving the Warden’s decision on the original
12
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grievance, or once the time for the Warden’s decision has expired. Id. at 13. The Warden has 40
calendar days from the date the offender gave the Grievance Form to the Counselor to deliver the
decision to the offender. Id. at 11. Once appealed, the Commissioner or his/her designee then
has 100 calendar days after receipt of the Grievance Appeal to deliver a decision to the offender.
Id. at 14.
Movants have the initial burden to demonstrate administrative remedies were “generally
available” to Plaintiff during the relevant time period at GSP. Wright, 820 F. App’x at 845. The
Court concludes Movants, through their submission of the applicable grievance policy and the
March 24, 2020 Declaration of Deidra Edwards, have met their initial burden of showing
administrative remedies were generally available. 13
2. Plaintiff’s burden to prove administrative remedies were subjectively and
objectively “unavailable” to him.
Once Movants meet their burden, as they have here, Plaintiff must demonstrate the
grievance procedure was “subjectively” and “objectively” unavailable to him. Geter, 974 F.3d at
1356. At this point in the Turner analysis, the Court will accept as true Plaintiff’s version of
events regarding the availability of the administrative remedies. 14 Plaintiff makes various
13
As noted, Defendants are not required to demonstrate administrative remedies were actually
available to Plaintiff in making their initial showing that remedies were “generally available.” However,
Movants did submit Plaintiff’s grievance history as an attachment to Deidra Edwards’ March 24, 2020
Declaration. Docs. 148-2, 148-5. The history shows from the date Plaintiff arrived at GSP (April 7,
2014) to the date Plaintiff was transferred to Macon State Prison (April 19, 2018), he submitted
approximately 60 grievances that were considered at GSP, many of which were appealed to Central
Office, and some of which were partially granted. Doc. 148-4; Doc. 148-5 at 3–4. This further supports
the conclusion administrative remedies were “generally” available.
14
Plaintiff, in his Response and Surreply, claims he needs access to photocopying so he can submit
corroborating evidence in the form of copies of grievances he gave to Jackson in April and May 2014.
Doc. 161 at 21; Doc. 204 at 25–29. The Court, for purposes of this Motion, has taken as true Plaintiff’s
sworn allegations concerning the content and dates of these particular grievances, and, therefore, does not
find it necessary at this point for Plaintiff to submit actual copies of these grievances. Accordingly, there
is no need for the Court to order photocopying.
13
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arguments regarding the purported unavailability of administrative remedies, which the Court
addresses in turn.
(a)
Unavailability based on prison officials’ refusal to provide
grievance forms.
Plaintiff first argues administrative remedies were unavailable because he was not
provided with necessary grievance forms upon request. As evidence, Plaintiff points to his
sworn Complaint, in which he states, “Plaintiff has repeatedly requested grievance forms from
his counselor, Muriel Jackson, on 4/8/14, 4/18/14, 5/6/14, and 5/9/14. On each occasion Mr.
Jackson refused to provide any, saying Plaintiff has to get some from the dorm officer.” Doc. 1
at 24. Plaintiff also states, “Plaintiff has also asked nearly every officer on nearly every shift on
nearly every day for a grievance. They have all said the same thing: officers don’t have
grievances. Prisoners are supposed to get some from the counselor.” Id.
Even if the Court takes all these allegations as true, it cannot conclude Plaintiff met his
burden in showing the administrative remedies were unavailable based on denial of forms. As to
the allegations he was denied forms on April 8 and 18, 2014, Plaintiff also states under oath he
was able to submit three grievances to Jackson on April 18, 2014, on forms he had from another
facility. Doc. 1 at 24. Plaintiff, in his Complaint, alleges these three grievances were rejected on
May 6, 2014, based on the two-grievance limitation, not due to improper forms. Id. Thus, it is
clear—based on Plaintiff’s own allegations—as of April 18, 2014, Plaintiff was not precluded
from filing grievances due to a lack of forms.
Plaintiff states he attempted to file more grievances on May 6 and 9, 2014, again using
forms he had from the previous facility, but those grievances were rejected—not because of the
forms, but because of the two-grievance limitation. Doc. 1 at 19, 24. Further, after signing his
Complaint on May 11, 2014, Plaintiff claims he filed two grievances with Jackson on May 13,
14
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2014, again on forms from a prior facility. Doc. 161 at 15. The filing of grievances on May 13,
2014, shows Plaintiff was able to continue submitting grievances throughout April and May
2014 on forms he had from the prior institution. Plaintiff has never alleged any of his grievances
in April and May 2014 were denied solely on the basis of the particular form he used. 15 This
evidence, supplied by Plaintiff, demonstrates he had adequate access to grievance forms in the
time leading up to the date Plaintiff signed his Complaint, and the lack of facility-specific forms
did not render administrative remedies subjectively or objectively unavailable at this time.
Plaintiff was not actually deterred from filing grievances due to the absence of facility-specific
forms, and a reasonable inmate in such circumstances would not be deterred either. Further, just
a short time later, Plaintiff successfully filed two grievances on June 23, 2014, again indicating
that he had access to grievance forms. Doc. 148-2 at 5; Docs. 148-6, 148-7. Plaintiff’s argument
that lack of facility-specific forms rendered administrative remedies unavailable is a red herring.
By Plaintiff’s own allegations, he was never actually precluded from filing a grievance based on
the type of form he used.
Plaintiff also states that on May 6, 2014 Jackson returned the three grievances Plaintiff
submitted on April 18, 2014, with notes attached explaining the grievances were being rejected
due to the two-active-grievance limit. Doc. 1 at 24; Doc. 161 at 14–15. According to Plaintiff,
he sought to appeal the rejections, but Jackson refused to give Plaintiff appeal forms and told
him he could not appeal “because they’ve been rejected,” further stating, “You can’t appeal until
15
Plaintiff states Jackson agreed to accept grievances on April 18, 2014 and May 13, 2014, even
though not on GSP’s green grievance forms. Doc. 161 at 14. While Plaintiff alleges Jackson complained
about the color of the forms Plaintiff used on May 6 and May 9, 2014, Plaintiff also alleges these
grievances were rejected based on the two-active-grievance limitation. Id. at 15. Even accepting
Plaintiff’s version of these events as true, Plaintiff has not shown administrative remedies were
unavailable on May 6 and May 9, 2014, due to the unavailability of forms; the two-active-grievance limit
plainly precluded Plaintiff from submitting additional grievances which did not fit into one of the
enumerated exceptions at that time, regardless of the color of the form he used.
15
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it’s processed and denied.” Doc. 1 at 24. Thus, Plaintiff essentially argues administrative
remedies were unavailable on this occasion because he was denied appeal forms.
Under the grievance policy, an inmate may file a Central Office Appeal either after
receiving the Grievance Coordinator’s rejection, after receiving the Warden’s decision on the
original grievance, or once the time for the Warden’s decision has expired. Doc. 148-3 at 13 (“If
the offender’s Original Grievance was rejected, the offender may file a Central Office Appeal.”).
Based on this, the purported statement by Jackson regarding Plaintiff’s ability to appeal was an
incorrect summary of the procedure. 16 However, the Eleventh Circuit has determined a plaintiff
still has a duty to attempt full exhaustion, even after a prison official provides him with the
wrong information regarding the correct procedures for exhaustion and even after prison officials
fail to provide appeal forms in a timely manner. Bryant, 530 F.3d at 1378–79 (finding plaintiff
still had an obligation to seek good cause waiver to pursue out-of-time appeal after grievance
counselor told him wrong date for appealing and delayed providing him with appeal form);
see also Brown v. Drew, 452 F. App’x 906, 907 (11th Cir. 2012) (“Even if an appeal is untimely
because the prisoner counselor incorrectly informed the prisoner of the date the appeal was due,
the prisoner still fails to exhaust his administrative remedies if he does not seek a waiver for
good cause in filing an untimely appeal.”); Schlicher v. Fla. Dep’t of Corr., 399 F. App’x 538,
539 (11th Cir. 2010) (“When a prisoner alleges that he did not have timely access to the required
grievance forms, he still fails to exhaust his administrative remedies if he does not request
consideration of an untimely grievance.”).
16
Jackson denies all allegations he refused to provide forms to Plaintiff or refused to process
grievance requests. Doc. 182-1 at 4–5. The Court need not resolve this factual dispute because even
taking Plaintiff’s version of the facts as true, Plaintiff has not shown administrative remedies were
unavailable.
16
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As a result, taking Plaintiff’s allegations as true, even if Jackson incorrectly told Plaintiff
he could not appeal his rejected grievances and did not immediately provide him with appeal
forms, Plaintiff still had an obligation to pursue his appeal as allowed by the grievance
procedure. Under the policy, Plaintiff had seven days after receiving a rejection to file a Central
Office Appeal. Doc. 148-3 at 13. Even after the expiration of seven days, Plaintiff still had the
right to request an out-of-time appeal for good cause. Id. Here, Plaintiff waited only five days
after receiving rejections on May 6, 2014, before unilaterally concluding the procedures were
unavailable and bringing his Complaint on May 11, 2014. Plaintiff’s rush to the courthouse must
be viewed in the light of Plaintiff’s grievance history, which demonstrates he was consistently
able to file and appeal grievances at GDCP and at GSP, docs. 148-5, 182-1. See Kozuh v.
Nichols, 185 F. App’x 874, 878 (11th Cir. 2006) (determining district court properly held
plaintiff failed to exhaust administrative remedies, where, despite plaintiff’s contentions,
evidence showed he was able to file numerous complaints).
Accordingly, even taking Plaintiff’s version of events as true under step one of Turner,
(and thus, not considering Jackson’s testimony he never refused to provide Plaintiff with any
grievance forms, doc. 182-2), the Court concludes Plaintiff has failed in his burden to show the
grievance procedure was subjectively and objectively unavailable to him based on the alleged
denial of grievance forms and appeal forms.
(b)
Unavailability based on prison officials losing or destroying
grievances.
Plaintiff also argues administrative remedies were unavailable because prison officials
lost or destroyed his grievances, and Plaintiff points to two grievances he attempted to file on
May 13, 2014, as support. Doc. 161 at 16. Plaintiff alleges counselor Jackson accepted the two
grievances on May 13, 2014, but contends these grievances were never submitted for processing
17
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and also states he never received a receipt or a response for these two grievances. Doc. 161 at
15–16. Without citing to any evidence, other than the fact the May 13, 2014 grievances were
never returned to him, Plaintiff claims these two grievances were lost or destroyed by prison
officials. Id. at 16. Plaintiff does not allege any other grievances germane to the issues before
the Court were lost or destroyed.
Regardless of what ultimately happened to these grievances, these grievances have no
bearing on exhaustion or unavailability of remedies for any of the claims alleged in the
Complaint because they were submitted after Plaintiff brought this action on May 11, 2014. See
Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012) (explaining the only pertinent facts to
determining whether a prisoner satisfied PLRA’s exhaustion requirement are those facts that
existed when the claims were brought). Further, even under Plaintiff’s version of the facts, the
May 13, 2014 grievances do not concern claims raised for the first time in the Supplemental
Complaint. 17
Even if these May 13, 2014 grievances were relevant and were truly lost or destroyed, the
Grievance Procedure still allows an inmate to file a Central Office Appeal once the time for
receiving a decision on the grievance (40 days) has expired Doc. 148-3 at 11, 13. There is no
evidence Plaintiff ever attempted to file appeals for the May 13, 2014 grievances, and he has not
17
Plaintiff alleges his two May 13, 2014 grievances concerned the April 7, 2014 denial of medical
care and the denial of a television in his cell. Doc. 161 at 15. The grievance involving the television is
not related to any of the claims alleged in Plaintiff’s initial Complaint or his Supplemental Complaint.
The grievance concerning the April 7, 2014 denial of medical care could have been related to claims in
this action, but Plaintiff first brought those medical claims in his May 11, 2014 Complaint, doc. 1 at 17.
In other words, Plaintiff could not properly exhaust by grieving claims on May 13 that he raised in his
May 11 Complaint. And Plaintiff’s filing of his Supplemental Complaint cannot cure his failure to
exhaust a claim he raised in his original Complaint. See Smith, 491 F. App’x at 83 (holding plaintiff
cannot cure exhaustion defect in original complaint by later seeking to amend or supplement his
complaint).
18
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alleged the grievance appeal process was unavailable during the relevant timeframe. In fact,
Plaintiff filed appeals for at least two other grievances in June 2014. Doc. 182-1 at 3, 5, 7.
For these reasons, the Court finds no merit in Plaintiff’s contention he was unable to
exhaust his available remedies in this case due to prison officials “losing or destroying”
grievances. See Turner, 541 F.3d at 1083–84 (finding plaintiff still needed to pursue any
available appeal remedies, even after alleging warden tore up his properly filed grievance). 18
(c)
Unavailability due to the two-active-grievance limitation.
Plaintiff also contends the prison officials’ implementation of the two-active-grievance
limitation rendered administrative remedies unavailable. As support, he claims he attempted to
file several grievances in April and May 2014 in the weeks prior to bringing the Complaint, but
the grievances were rejected or otherwise not accepted or processed due to the two-activegrievance limitation.
Plaintiff states he attempted to submit three grievances to Jackson on April 18, 2014, but
the three grievances were rejected due to the two-active-grievance limitation. 19 Doc. 1 at 24;
Doc. 161 at 14–15. Specifically, Plaintiff states the three grievances were returned on May 6,
2014, to him with a Post-It note stating, “I/M [Inmate] has (2) [grievances pending] already.”
18
The Court also notes the two-active-grievance limitation would have likely prevented the
processing of the two May 13, 2014 grievances. Plaintiff does not dispute he still had two pending, active
grievances at the time he submitted the May 13, 2014 grievances, and he does not allege the May 13,
2014 grievances fit into one of the enumerated exceptions to the two-active-grievance limitation. The
Court addresses at length Plaintiff’s arguments concerning availability and the two-active-grievance
limitation in the following sections.
19
Plaintiff alleges the three April 18, 2014 grievances concerned (1) denial of access to his legal
materials, (2) forcible shaving with unsanitized clippers, and (3) denial of mail. Doc 161 at 14. Plaintiff
claims he attempted to submit one of these as an emergency grievance. As noted above, Plaintiff also
states he attempted to submit grievances on April 11, April 25, and May 2, 2014, but the Court has
determined either those grievances were never submitted, or, if they were, the grievances were also
rejected due to the two-active-grievance limitation.
19
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Doc. 161 at 14–15. Plaintiff also complains about prison officials’ failure to process grievances
he attempted to submit on May 6 and May 9, 2014. Id. at 15. On these two occasions, Plaintiff
attempted to submit grievances as emergency grievances in order to avoid the effect of the twoactive-grievance limitation, but prison officials refused to accept the grievances on an emergency
basis. Id. at 15. 20
As to all instances where grievances were purportedly rejected or otherwise not accepted
or processed, Plaintiff does not dispute the grievance policy’s two-active-grievance limitation
barred him from filing additional grievances which did not fit into one of the enumerated
exceptions in the grievance policy. Plaintiff also does not dispute he had two active grievances
during this period of time and up until at least June 9, 2014. 21 See Doc. 182-1 (May 11, 2020
Suppl. Decl. of Deidra Edwards and attached Grievances Numbered 169966 and 169844).
Rather, Plaintiff contends the implementation of the two-active-grievance limitation rendered
20
Plaintiff attempted to submit grievances on April 18, May 6, and May 9, 2014, as “emergency”
grievances in order to circumvent the two-active-grievance limitation, but prison officials declined to
accept those grievances on an emergency basis. Doc. 1 at 16, 19. Under the SOP, a prisoner may submit
a grievance on an emergency basis and avoid the two-active-grievance limitation if the grievance
concerns “[a]n unexpected situation involving a significant threat to the health, safety or welfare of an
offender that requires prompt action.” Doc. 148-3 at 3, 14. Plaintiff fails to show any of the grievances
he sought to file as “emergency” grievances should have been processed as such under the SOP.
According to Plaintiff, these grievances were related to his deliberate indifference and forced shaving
claims. Doc. 1 at 16, 19. The facts giving rise to these grievances simply did not satisfy the definition of
“emergency” set forth in the SOP, as they did not concern unexpected circumstances or a significant
threat. Although in a different context, this Court already determined the facts giving rise to Plaintiff’s
deliberate indifference and forced shaving claims did not constitute an “imminent danger of serious
physical injury.” Doc. 12 at 4–5. Additionally, under the SOP, when a prison official declines to accept a
grievance on an emergency basis, the grievance “will be returned to the offender” and the offender “has 7
calendar days from receipt to file it as an Original Grievance.” Doc. 148-3 at 3, 14. Here, when Plaintiff
brought his Complaint, the time to resubmit the “emergency” grievances as original grievances had not
expired. Therefore, any complaints Plaintiff raises regarding his attempts to submit grievances on an
emergency basis are unavailing and do not impact the Court’s analysis on exhaustion of administrative
remedies.
21
Plaintiff, in his Response, acknowledges his grievances were rejected in May 2014 as a result of
the existence of other pending grievances and states, “Presumably the two (2) pending grievances were
# 169844 and 169966 filed at GDCP on 3/5/2014 and 3/13/2014.” Doc. 161 at 14–15 n.3.
20
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administrative remedies unavailable, and thus, he was permitted to bypass § 1997e(a)’s
exhaustion requirements.
The Eleventh Circuit has concluded the “two grievance limit” aspect of Georgia’s
grievance policy does not “render the grievance process unavailable for purposes of the PLRA.”
Pearson v. Taylor, 665 F. App’x 858, 868 (11th Cir. 2016); see also Phillips v. Deal, No. 5:15cv-00249, 2016 WL 5539772, at *5 (M.D. Ga., July 25, 2016) (“Contrary to Plaintiff’s
argument, the [Georgia] Department of Corrections’ grievance limit does not render
administrative remedies unavailable.”), adopted by 2016 WL 5660450 (M.D. Ga. Sept. 28,
2016). As noted in Pearson, “to properly exhaust administrative remedies prisoners must
complete the administrative review process in accordance with the applicable procedural rules—
rules that are defined not by the PLRA, but by the prison grievance process itself.” 665 F. App’x
at 868 (citing Jones v. Bock, 549 U.S. 199, 218 (2007)).
Like in Pearson, the two-grievance limitation Plaintiff challenges is defined by the prison
grievance process itself. While Plaintiff was limited to two active grievances at any one time,
the evidence reflects he was allowed to withdraw a pending grievance and file a new one. Thus,
Plaintiff “had an available route to exhaust his claims . . . according to the applicable procedural
rules, even if it would have required him to prioritize his grievances.” Pearson, 665 F. App’x at
868.
Furthermore, Plaintiff could have waited until his pending grievances were no longer
“active” and then sought to file an out-of-time grievance for good cause. According to the
Supplemental Declaration of Deidra Edwards, Plaintiff’s two “active” grievances were no longer
active on June 9 and 11, 2014, doc. 182-1 at 3, so Plaintiff could have started filing grievances
again at that time. Additionally, Plaintiff could have sought appeals of any grievances that were
21
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rejected as a result of the two-active-grievance limitation. If Plaintiff was hindered in getting the
proper appeal forms, he could have sought out-of-time appeals when the forms became available.
Plaintiff has not demonstrated he did any of these things. “[T]he exhaustion requirement cannot
be waived based upon the prisoner’s belief that pursuing administrative procedures would be
futile.” Higginbottom, 223 F.3d at 1261; see also Simpson v. Allen, No. 6:15-cv-118, 2016 WL
5024226, at *7 (S.D. Ga. Sept. 16, 2016) (“Plaintiff could not simply disregard the grievance
process and then argue, after the fact, that if he had filed a grievance, it would have been
rejected.”).
The Court rejects Plaintiff’s arguments under the second and third prongs of Ross
concerning the two-active-grievance limitation. Doc. 204 at 29–30. Plaintiff first argues the
two-active-grievance limitation renders administrative remedies unavailable because the
administrative scheme is “so opaque that it becomes, practically speaking, incapable of use” (i.e.,
Ross’s second prong). Doc. 204 at 30. The Court, in reviewing the applicable grievance policy,
finds it is well-written, straightforward, and certainly capable of use by the average inmate. The
inclusion of a two-active-grievance limitation is not confusing. The policy clearly lays out the
limitation and provides the offender the opportunity to withdraw a pending grievance or pursue
one of the enumerated exceptions. Doc. 148-3 at 7–8. Furthermore, Plaintiff has managed to file
and appeal dozens of grievances over the years, in spite of the two-active-grievance limitation,
demonstrating the limitation did not render administrative remedies subjective or objectively
unavailable. Plaintiff’s argument on this prong of Ross is without merit.
Plaintiff also contends the two-active-grievance limitation renders administrative
remedies unavailable because prison officials are thwarting “inmates’ access to the grievance
procedure by machination” (i.e., Ross’s third prong). Doc. 204 at 30. Plaintiff claims the two-
22
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active-grievance limitation “is clearly a crafty action intended to accomplish an evil end by
forcing a prisoner to surrender his ability to challenge one constitutional violation in order to
assert another.” Id. at 31. The Court disagrees. The grievance policy outlines a number of
exceptions to the two-active-grievance limitation, indicating an intent to preserve the right to
grieve in instances of physical abuse with significant injury, sexual assault, and other serious or
significant threats to the health, safety, and welfare of inmates, while also placing reasonable
limitations on the number of grievances an inmate can pursue, in order to conserve prison
resources. Doc. 148-3 at 8; see also Sullivan v. Powell, No. CV 317-17, 2018 WL 3765373, at
*1 (S.D. Ga. Aug. 8, 2018) (concluding plaintiff’s attempt to file a third grievance while having
two pending grievances “was not ‘thwarted with misrepresentation’ or intimidation. Indeed, by
not allowing Plaintiff to file a third grievance without dropping one of his active grievances,
prison officials were merely following GDC grievance procedure.”). Accordingly, Plaintiff’s
argument under the third Ross prong fails.
Instead of attempting to fully grieve and appeal all the issues raised in his Complaint,
Plaintiff brought this action within days of having a handful of his grievances rejected or
otherwise not accepted under the two-active-grievance limitation. The prison officials’
application of the two-active-grievance limitation did not render administrative remedies
subjectively or objectively unavailable during the relevant timeframe. Plaintiff was not actually
deterred from filing grievances due to the two-active-grievance limitation. Indeed, he elected to
pursue other grievances almost immediately once he was able to under the two-active-grievance
limitation. Rather, for the claims in this case, Plaintiff voluntarily elected to discontinue the
grievance process and prematurely file suit. Moreover, a reasonable inmate in these
circumstances would not be deterred by the two-active-grievance limitation from pursuing
23
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grievances in accordance with the policy. As such, the Court rejects Plaintiff’s arguments he
was not required to fully exhaust his administrative remedies prior to bringing the claims in this
case.
(d)
Plaintiff’s argument challenging the constitutionality of twogrievance limitation.
Plaintiff also challenges the constitutionality of the two-active-grievance limitation,
arguing the limitation forces him to sacrifice some claims in order to pursue others and citing to
a principle articulated in Simmons v. United States, 390 U.S. 377 (1967). 22 Doc. 161 at 17–19;
Doc. 204 at 33. In Simmons, the Supreme Court discussed whether a criminal defendant who
testifies in support of a Fourth Amendment suppression issue waives his Fifth Amendment right
against self-incrimination during later proceedings. The Supreme Court determined it
“intolerable” for one constitutional right to be surrendered for the sake of another and held, “that
when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment
grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt
unless he makes no objection.” Simmons, 390 U.S. at 394.
In Crampton v. Ohio and its companion case, McGautha v. California, the Supreme Court
stated:
While we have no occasion to question the soundness of the result in Simmons
and do not do so, to the extent that its rationale was based on a ‘tension’
between constitutional rights and the policies behind them, the validity of that
reasoning must now be regarded as open to question, and it certainly cannot be
given the broad thrust which is attributed to it by [petitioner] in the present
case.
22
This Court previously dismissed Plaintiff’s free-standing claim the policy allowing a prisoner to
only have two pending grievances at any time violates his constitutional rights. Doc. 99 at 40; Doc. 235
at 14–15 (noting “the proper way to address denial of access to the grievance procedure is to argue the
administrative remedies were unavailable if and when the issue of exhaustion under 42 U.S.C. § 1997e(a)
arises”). Plaintiff has correctly raised that issue here, in response to Movants’ Motion to Dismiss.
24
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402 U.S. 183, 212–13 (1971), reh’g granted, vacated on other grounds, 408 U.S. 941 (1972).
The Supreme Court, in Crampton, explained that, “[a]lthough a defendant may have a right, even
of constitutional dimensions, to follow whichever course he chooses, the Constitution does not
by that token always forbid requiring him to choose.” Id. at 213. The Eleventh Circuit has noted
that, “Simmons, although never explicitly overruled by the Supreme Court, has been
considerably narrowed and its reasoning questioned.” In re Federal Grand Jury Proceedings
(FGJ 91-9), Cohen, 975 F.2d 1488, 1492 (11th Cir. 1992); see also United States v. Snipes, 611
F.3d 855, 866 (11th Cir. 2010) (“Simmons has never been extended beyond its context.”). Given
the limited viability of Simmons, and because Plaintiff has offered no binding precedent holding
the principle expressed in that case should be applied in this particular context, Plaintiff’s
contention the two-grievance limitation is unconstitutional under the “Simmons principle” has no
merit. Furthermore, the two-active-grievance limitation does not force an inmate to pick
between two constitutional protections in a criminal prosecution, as in Simmons; rather, the
limitation requires an inmate to elect which constitutional claim he will pursue in civil litigation,
and, even then, will typically only limit the sequence and timing of those claims.
Moreover, a prison regulation passes constitutional muster if it is reasonably related to
legitimate penological interests, and the two-grievance limitation plainly is. In Lewis v. Casey,
the Supreme Court recognized a prison regulation impinging on inmates’ constitutional rights “is
valid if it is reasonably related to legitimate penological interests,” and determined that issues of
court access resulting from prison regulations reasonably related to legitimate penological
interests “are not of constitutional significance, even where they result in actual injury.” 518
U.S. 343, 361–62 (1996) (upholding restrictions on lockdown prisoners’ access to legal
assistance and materials). Here, limiting the number of grievances is reasonably related to
25
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legitimate penological interests, as processing inmate grievances requires prison officials’
limited time and resources. Plaintiff is a prime example of the interests served by such
restrictions. Plaintiff acknowledges he is highly litigious. Were it not for the two-grievance
limitation, Plaintiff would be able to—and almost certainly would—pursue exponentially more
grievances, which would necessarily occupy enormous time and resources from prison officials.
Accordingly, there is no merit to Plaintiff’s argument the two-active-grievance limitation is
unconstitutional.
(e)
Additional arguments concerning unavailability of administrative
remedies under the grievance procedure.
As a final attempt to argue unavailability, Plaintiff, in his Surreply, raises several vague
and generalized allegations concerning the unavailability of Georgia’s grievance procedure under
Ross. Doc. 204 at 47–54. Plaintiff contends prison officials are “unable or consistently
unwilling to provide any relief to aggrieved inmates” and relies on his own lengthy experience
with the prison grievance system, claiming he never received his requested relief despite filing
numerous grievances. Id. at 48. Plaintiff also generally alleges the grievance procedure is
“incapable of use” and “prison administrators thwart inmates from taking advantage of [it]
through machination, misrepresentation, or intimidation.” Id. at 53–54.
Plaintiff, in making these arguments under Ross, relies heavily on a 39-page declaration
and “Proffer on Unavailability of Administrative Remedies” he previously submitted to the
Court, doc. 153. Plaintiff executed this declaration on March 16, 2020, prior to the filing of
Movants’ Motion to Dismiss. Id. This declaration sheds no light on whether the administrative
remedies at issue in this case were unavailable to Plaintiff during the relevant timeframe. The
declaration contains a litany of unsupported, conclusory complaints about Georgia’s prison
26
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grievance procedures, including generalizations like “no attempt is made to actually investigate,”
“grievance officials do not interview witnesses,” and “I have never received any relief.” Id. at 4.
Plaintiff, in his declaration, also makes general complaints about the time limits for filing
grievances, the two-active-grievance limitation, the one-page-form requirement, and the oneissue-per-grievance limitation. Id. at 7–18. While Plaintiff provides examples of how these
rules were applied in certain circumstances, the examples often involve grievances which were
raised years after the relevant time frame at issue in Movants’ Motion to Dismiss. In fact, much
of the declaration concerns Plaintiff’s complaints about the implementation of a different version
of the grievance policy at Valdosta State Prison in 2018 and later. Such evidence has no bearing
on the availability of administrative remedies for claims Plaintiff asserted in his 2014 Complaint
and Supplemental Complaint. Plaintiff’s declaration does not offer any additional support to
Plaintiff’s claims administrative remedies were unavailable regarding the pending claims in this
case. 23 Plaintiff must present “some evidence beyond [his] own self-serving statements showing
that administrative remedies were not available.” Womack v. Sikes, No. CV 307-42, 2008 WL
4104148, at *8 (S.D. Ga. Sept. 4, 2008). Here, the statements contained in Plaintiff’s declaration
fail to convince the Court the grievance procedure was objectively or subjectively unavailable
under any of the three prongs of Ross. Plaintiff also invites the Court to go beyond the three
Ross prongs and find unavailability based on some other ground. Doc. 204 at 31. However, as
Plaintiff fails to articulate any compelling reason to recognize an additional basis for
unavailability, the Court rejects this invitation.
23
In this declaration, Plaintiff alleges Jackson “never once provided [Plaintiff] a grievance form”
and also claims Jackson “often refused to accept the [grievance forms from other facilities] . . . because
they were on the ‘wrong-colored form.’” Doc. 153 at 22. The Court, however, addressed and rejected
these particular allegations in a preceding Section.
27
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In conclusion, the undersigned finds Plaintiff failed to meet his burden of demonstrating
the grievance procedure was “subjectively” and “objectively” unavailable to him. Geter, 974
F.3d at 1356. To the extent any factual allegations of the parties conflicted, the undersigned took
Plaintiff’s allegations as true, and as a result, found no need to proceed to step two of the Turner
analysis. Because Plaintiff failed to demonstrate unavailability of the grievance procedures and
because the evidence reveals he failed to complete the required two steps of Georgia’s Statewide
Grievance Procedure prior to bringing any of the claims in this action (with the exception of his
GSP procedural due process claims based on Tier II/segregation placement), the undersigned
determines Plaintiff failed to exhaust his available administrative remedies, as § 1997e(a)
requires.
The undersigned has closely reviewed Plaintiff’s claimed efforts at exhaustion of
administrative remedies and Movants’ arguments concerning those efforts. While the analysis
on these points is lengthy, the conclusion is simple: Plaintiff rushed to bring the claims in his
Complaint and Supplemental Complaint before exhausting his available administrative remedies.
Plaintiff’s claims in this action largely arose in April 2014, but Plaintiff brought his claims just a
few short weeks later, well before the administrative remedies process could have possibly been
completed. While Plaintiff raises a number of different arguments related to the unavailability of
administrative remedies, almost all of those challenges boil down to criticisms of the two-activegrievance limitation. As explained above, that limitation does not equate to unavailability, either
generally or as applied to Plaintiff, and the limitation is not unconstitutional.
Exhaustion of administrative remedies is not a technical or meaningless endeavor; it
serves a legitimate goal of affording prison officials an opportunity to address and resolve
grievances before defending a lawsuit. And, while the complexity and duration of subsequent
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litigation have no bearing on the Court’s exhaustion analysis, the consequences of Plaintiff’s
failures in this case highlight the importance of the exhaustion requirement in § 1997e(a). Had
Plaintiff fully exhausted his administrative remedies before bringing the claims in this action,
some of the sprawling litigation which has transpired over the last seven years could have been
avoided.
Accordingly, I RECOMMEND the Court GRANT this portion of Movants’ Motion to
Dismiss and DISMISS the following GSP claims for Plaintiff’s failure to exhaust his
administrative remedies prior to bringing the claims:
(1)
(2)
All of Plaintiff’s Eighth Amendment GSP claims raised in his Complaint
and Supplemental Complaint (i.e., Plaintiff’s claims of deliberate
indifference to his serious medical needs (including claims related to
dental care), claims involving conditions of confinement, claims of
deliberate indifference to his health and safety, and claims of excessive
use of force).
(3)
II.
All of Plaintiff’s First Amendment GSP claims raised in his Complaint
and Supplemental Complaint (i.e., Plaintiff’s claims of denial of access to
the courts (photocopies and postage) and claims of violations of rights to
religious exercise).
All of Plaintiff’s GSP deprivation of property claims raised in his
Complaint and Supplemental Complaint (i.e., Plaintiff’s deprivation of
property claims alleged against Defendants Toole, Jacobs, Shuemake,
Todman, and Davis).
Motion to Dismiss Plaintiff’s Claims for Compensatory and Punitive Damages,
Doc. 148
Movants contend Plaintiff is not entitled to recover compensatory and punitive damages
for any claims where he did not suffer more than a de minimis injury, and Plaintiff has not
alleged a greater than de minimis injury in connection with any of his claims, with the exception
of Plaintiff’s deliberate indifference claims. Doc. 148-1 at 8–10. As support, Movants cite
42 U.S.C. § 1997e(e), which provides: “No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered
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while in custody without a prior showing of physical injury or the commission of a sexual act.”
42 U.S.C. § 1997e(e). Under § 1997e(e), “an incarcerated plaintiff cannot recover either
compensatory or punitive damages for constitutional violations unless he can demonstrate a
(more than de minimis) physical injury.” Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir.
2015). Movants discuss each of the injuries Plaintiff claims to have suffered as a result of his
surviving claims (aside from the deliberate indifference claims) and assert each of these injuries
is not more than de minimis. Doc. 148-1 at 9.
In his Response, Plaintiff does not dispute, and essentially concedes, he has not alleged
more than a de minimis injury for any of his surviving claims. Doc. 161 at 21–38. Instead,
Plaintiff argues the Eleventh Circuit’s interpretation of § 1997e(e) should not apply here because
he is seeking damages resulting from violations of his “intangible” constitutional rights, which
he contends are a “separate categor[y] of damages” from the injuries covered by § 1997e(e).
Doc. 161 at 23. Plaintiff also argues it is premature to consider damages on a Rule 12(b)(6)
motion and § 1997e(e) is unconstitutional. 24 Id. at 21–23.
Plaintiff is incorrect that § 1997e(e) does not apply to his claims in this case. Controlling
Eleventh Circuit precedent makes it clear a plaintiff must show a more than de minimis physical
injury to recover compensatory and punitive damages in a § 1983 suit, regardless of the
characterization of the claim as one for a violation of an intangible right. The Eleventh Circuit
has explained the limitation on damages outlined in § 1997e(e) applies “equally to all
24
Plaintiff also asserts § 1997e(e) does not bar claims for nominal damages or declaratory or
injunctive relief. Doc. 161 at 21–22. Plaintiff is correct, but this issue is not in dispute and requires no
further consideration. See 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.”); Harris v. Garner, 190 F.3d 1279, 1288 (11th Cir. 1999) (holding “section 1997e(e) only
precludes some actions for money damages, and does not materially thwart actions for declaratory and
injunctive relief”), reh’g en banc granted and opinion vacated, 197 F.3d 1059 (11th Cir.1999), opinion
reinstated in relevant part, 216 F.3d 970 (11th Cir. 2000).
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constitutional claims,” including “those rarely accompanied by physical injury (e.g., First
Amendment violations).” Al-Amin v. Smith, 637 F.3d 1192, 1197 (11th Cir. 2011). Conversely,
the Eleventh Circuit has specifically recognized the ability of prisoners to recover nominal
damages, which “serve to ‘vindicate[] deprivations of certain “absolute” rights that are not
shown to have caused actual injury.’” Brooks, 800 F.3d at 1308 (citing Carey v. Piphus, 435
U.S. 247, 266 (1978)).
Thus, nominal damages are the only form of monetary relief that can be recovered for a
constitutional injury where there is not more than a de minimis physical injury. In the case of
Brooks v. Warden, the prisoner-plaintiff was denied the ability to use the bathroom or clean
himself for two days while restrained by waist chains in a hospital bed, resulting in him
defecating in his jumpsuit while the defendant laughed at him. 800 F.3d 1295. The court
recognized the plaintiff stated a viable Eighth Amendment constitutional claim; however, it
found no physical injury, and thus, only allowed plaintiff to proceed on his claim for nominal
damages and not his claims for compensatory and punitive damages. Id.
Here, similarly, even if Plaintiff is able to show a viable constitutional claim, binding
precedent only allows him to recover compensatory and punitive damages upon a showing he
suffered more than a de minimis physical injury. As the undersigned, in the preceding section,
has recommended dismissal of all but Plaintiff’s GSP procedural due process claims based on his
Tier II/segregation placement, the only issue for the Court to consider is whether Plaintiff alleges
a more than de minimis physical injury for his remaining procedural due process claims, and
Plaintiff plainly has not. Therefore, the Court cannot allow him to proceed with any claims for
compensatory or punitive damages.
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Plaintiff contends it is premature for the Court to consider the damages issue at this stage
of the litigation, doc. 161 at 22, but there is nothing to prevent its consideration of the damages
issue now. In fact, in Harris v. Garner, the Eleventh Circuit affirmed the district court’s
dismissal of punitive and compensatory damage claims under § 1997e(e) in response to
defendants’ 12(b)(6) motion. 190 F.3d at 1283. It is apparent the Court can and should consider
this issue at this point in the litigation.
Plaintiff also argues § 1997e(e) is unconstitutional as applied. However, the Eleventh
Circuit concluded in Harris v. Garner, “Congress has left open avenues of declaratory and
injunctive relief that are ample for constitutional purposes,” and held “section 1997e(e) does not
violate the Due Process Clause of the Fifth Amendment” or equal protection. 190 F.3d at 1289–
90. While Plaintiff claims the Harris decision regarding the constitutionality of § 1997e(e) did
not consider the outcomes of Smith v. Allen, 502 F.3d 1255 (11th Cir. 2007), and Al-Amin v.
Smith, doc. 161 at 35–37, this Court finds nothing in Smith or Al-Amin that changes the
reasoning in Harris regarding the constitutionality of § 1997e(e). Indeed, the Al-Amin opinion
cited with approval the Harris court’s conclusions regarding the constitutionality of § 1997e(e),
stating, “The Harris Court ultimately upheld the constitutionality of § 1997e(e).” Al-Amin, 637
F.3d at 1196.
In Plaintiff’s final argument, he contends § 1997e(e) is unconstitutional because its
application could eliminate his right to a jury trial under the Seventh Amendment. Doc. 161 at
37–38; Doc. 204 at 55–57. As support, Plaintiff relies on Atlanta Oculoplastic Surgery, P.C. v.
Nestlehutt, 691 S.E.2d 218 (Ga. 2010), which concerns the right to a jury trial as laid out in the
Georgia Constitution. Here, however, Plaintiff is challenging his Seventh Amendment rights,
not his rights under the Georgia Constitution. The Seventh Amendment of the United States
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Constitution specifically provides: “In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved.” U.S. Const. amend. VII.
Plaintiff is correct that, by limiting his recovery to nominal damages, the application of
§ 1997e(e) may eliminate his right to a jury trial. See Carey, 435 U.S. at 266–67 (holding if
plaintiffs were entitled to nominal damages for a procedural due process violation, the damages
should not exceed one dollar). However, this does not in any way violate the Constitution.
Rather, the Seventh Amendment is clear the right to a jury trial only applies in cases where the
value in controversy shall exceed $20. See Van Wie v. Pataki, 267 F.3d 109, 115 n.4 (2d Cir.
2001) (“[G]enerally . . . in nominal damages cases, when such damage requests are below twenty
dollars, there is no right to a jury trial.”). In short, the Constitution does not require a jury trial
for all § 1983 cases; it only requires a jury trial where the amount in controversy “exceeds
twenty dollars.” As a result, the Court finds no conflict between its application of § 1997e(e)
and Plaintiff’s rights under the Seventh Amendment.
For these reasons, I RECOMMEND the Court GRANT Movants’ Motion to Dismiss
Plaintiff’s claims for compensatory and punitive damages as they relate to his remaining GSP
procedural due process claims concerning his placement in Tier II/segregation against
Defendants DeLoach, Owens, Toole, Bailey-Dean, and Jacobs. Doc. 148.
III.
Motion to Dismiss Plaintiff’s Forced Shaving Claim for Failure to State a
Claim, Doc. 148
Movants also ask the Court to dismiss Plaintiff’s forced shaving claim for failure to state
a claim. Doc. 148-1. In their brief, they argue Plaintiff’s forced shaving claim should be
dismissed, as he only alleges a de minimis use of force and no physical injury as to this claim.
Id. at 10-11. In light of my recommendation the Court should dismiss Plaintiff’s stand-alone
Eighth Amendment claims of excessive force and deliberate indifference to his health and safety
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(i.e., Plaintiff’s forced-shaving claims) due to Plaintiff’s failure to exhaust his administrative
remedies, the Court need not reach Movants’ request to dismiss Plaintiff’s forced shaving claims
based on failure to state a claim. I, therefore, RECOMMEND the Court DENY as moot the
portion of Movants’ Motion to Dismiss seeking dismissal of Plaintiff’s forced shaving claim due
to failure to state a claim, doc. 148.
IV.
Plaintiff’s Supplemental Motions for Preliminary Injunction or Temporary
Restraining Order, Docs. 166, 195
Also before the Court are Plaintiff’s Supplemental Motions for Preliminary Injunction or
Temporary Restraining Order, docs. 166, 195, Defendants’ Responses thereto, docs. 186, 210,
and Plaintiff’s Reply, doc. 197. In these Motions, Plaintiff moves the Court for a preliminary
injunction or temporary restraining order to prevent Defendants from forcibly shaving him,
pending final disposition of this case.
The decision to grant or deny a preliminary injunction “is within the sound discretion of
the district court.” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002). To be entitled to a
preliminary injunction or temporary restraining order (“TRO”), a plaintiff must demonstrate:
(a) there is a substantial likelihood of success on the merits; (b) the TRO or
preliminary injunction is necessary to prevent irreparable injury; (c) the
threatened injury outweighs the harm that the TRO or preliminary injunction
would cause to the non-movant; and (d) the TRO or preliminary injunction
would not be averse to the public interest.
Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001). “[A]
preliminary injunction is an extraordinary and drastic remedy not to be granted unless the
movant clearly established the ‘burden of persuasion’ as to all four elements.” Horton v. City of
St. Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001) (citation and quotation marks omitted).
Further, in a civil action concerning prison conditions, “[p]reliminary injunctive relief must be
narrowly drawn, extend no further than necessary to correct the harm the court finds requires
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preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C.
§ 3626(a)(2). “The court shall give substantial weight to any adverse impact on public safety or
the operation of a criminal justice system caused by the preliminary relief . . . .” Id.
“A district court should not issue an injunction when the injunction in question is not of
the same character, and deals with a matter lying wholly outside the issues in the suit.”
Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997), opinion amended on other grounds on
reh’g, 131 F.3d 950 (11th Cir. 1997); see also Head v. Gammage, CV 316-039, 2018 WL
1920171, at *2 (S.D. Ga. Apr. 24, 2018) (denying plaintiff’s request for injunctive relief because
the requested relief seeking computer access was essentially an access to courts claim whereas
plaintiff sued defendants for failure to protect him from a substantial risk of serious harm),
adopted by 2018 WL 2303726 (S.D. Ga. May 21, 2018).
In light of my recommendation the Court should dismiss Plaintiff’s stand-alone Eighth
Amendment forced-shaving claims, it would be inappropriate to recommend the issuance of
injunctive relief regarding forced shaving. Furthermore, any claims regarding Plaintiff’s forced
shaving at facilities other than GSP are simply not before this Court, as the present case only
involves Plaintiff’s claims arising from his incarceration at GSP through July 31, 2014 (the date
of his Supplemental Complaint, doc. 9). These claims for injunctive relief are also moot in light
of Plaintiff’s recent transfer to Smith State Prison. Doc. 242; McKinnon v. Talladega County,
745 F.2d 1360, 1363 (11th Cir. 1984) (“The general rule is that a prisoner’s transfer or release
from a jail moots his individual claim for declaratory and injunctive relief.”).
Additionally, “[t]rial courts are afforded broad discretion in determining whether to stay
or dismiss litigation in order to avoid duplicating a proceeding already pending in another federal
court.” I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541, 1551–52 (11th Cir. 1986). The
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Court is aware Plaintiff had at least one other pending case regarding forced shaving, through
which he sought injunctive relief, when he filed his motions for preliminary injunctive relief
regarding forced shaving in the present case. Recast Compl., Daker v. Ward, No. 5:19-cv-126
(M.D. Ga. Sept. 27, 2019), ECF No. 12, pp. 63–64, 68. 25 The duplicative nature of Plaintiff’s
claims for injunctive relief regarding forced shaving provides this Court with yet another reason
to deny them. Plaintiff should not be allowed to simultaneously proceed with his request for
injunctive relief in multiple courts.
Finally, this Court has previously denied Plaintiff’s requests in this case for similar
injunctive relief regarding forced shaving. Docs. 94, 235 (denying Plaintiff’s motions regarding
forced shaving, docs. 8, 72, 78). Plaintiff’s currently pending Motions, docs. 166, 195, fail for
the same reasons—namely, Plaintiff has not shown the requisite likelihood of success on the
merits of his claim.
For all these reasons, I RECOMMEND the Court DENY Plaintiff’s Supplemental
Motions for Preliminary Injunction or Temporary Restraining Order, docs. 166, 195.
V.
Motion to Sever, Doc. 139
Also before the Court is Defendants Owens, Ward, Toole, Fowler, Kilgore, DeLoach,
Milton Smith, Jackson, Warren, Salgado, Shuemake, Todman, Davis, and Bailey-Dean’s Motion
to Sever. 26 Docs. 139, 139-1. Plaintiff filed a Response to the Motion, doc. 155, and Defendants
25
Plaintiff recently filed another case in this district asserting § 1983 claims and outlining his
experience with forced shaving. Compl., Daker v. Ward, No. 6:21-cv-3 (S.D. Ga. Jan. 11, 2021), ECF
No. 1, pp. 47–48. According to the allegations in the complaint in that case, Plaintiff has not been
forcibly shaved since April 3, 2020, though on occasion, he has been threatened with such action. Id. His
current Motions for preliminary injunctive relief in this case regarding this issue were signed on April 8,
2020 and May 12, 2020. Docs. 166, 195.
26
at 25.
One original movant, Defendant Jackson, has already been dismissed from this action. Doc. 235
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filed a Reply, doc. 158. In their Motion and supporting brief, these Defendants ask the Court to
sever Plaintiff’s claims against them, alleging the claims are not sufficiently related and should
not be joined in one action. Specifically, these Defendants ask the Court to allow Plaintiff to
proceed with just one claim in this lawsuit and to dismiss all others. Doc. 139-1 at 6. In light of
the undersigned’s recommendation all but one category of Plaintiff’s claims should be dismissed
for failure to exhaust administrative remedies, leaving only Plaintiff’s procedural due process
claims concerning his placement in Tier II/segregation against Defendants DeLoach, Owens,
Toole, Bailey-Dean, and Jacobs, the undersigned finds the requested relief is no longer at issue.
For this reason, I DENY as moot the Motion to Sever. Doc. 139.
VI.
Plaintiff’s Motion for Sanctions, Doc. 164
Plaintiff’s Motion for Sanctions is also pending before the Court. Doc. 164. Defendants
filed a Response, doc. 184, and Plaintiff filed a Reply, doc. 203. Plaintiff primarily seeks
sanctions based on his contention that Movants’ Motion to Dismiss was filed in bad faith. In
light of the undersigned’s recommendation the Court grant Movants’ Motion to Dismiss for
Plaintiff’s failure to exhaust his administrative remedies, and taking into consideration the
substance of the documents filed by the Movants, there are no grounds for sanctioning
Defendants or their counsel pursuant to Federal Rule of Civil Procedure 11. Plaintiff’s
contention the Motion to Dismiss was filed for the improper purpose of causing delay and in an
attempt to obtain a stay of discovery so as to give Defendants time to destroy or lose evidence
lacks merit. Doc. 161, 12-13. Plaintiff’s allegations are purely speculative, supported by no real
evidence, and do not warrant the imposition of sanctions at this time. The Court also rejects
Plaintiff’s contention the Reply brief Movants filed improperly exceeded the scope of a reply or
was otherwise done with the intent to deny Plaintiff an opportunity to respond. Doc. 203.
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Plaintiff filed a lengthy Surreply, which the Court has considered. Accordingly, the Court
DENIES Plaintiff’s Motion for Sanctions, doc. 164.
CONCLUSION
For the reasons stated above, I RECOMMEND the Court GRANT the portion of
Movants’ Motion to Dismiss seeking dismissal of claims for failure to exhaust under 42
U.S.C.§1997e(a) and DISMISS the following GSP claims:
(1)
All of Plaintiff’s First Amendment GSP claims raised in his Complaint
and Supplemental Complaint (i.e., Plaintiff’s claims of denial of access to
the courts (photocopies and postage) and claims of violations of rights to
religious exercise).
(2)
All of Plaintiff’s Eighth Amendment GSP claims raised in his Complaint
and Supplemental Complaint (i.e., Plaintiff’s claims of deliberate
indifference to his serious medical needs (including claims related to
dental care), claims involving conditions of confinement, claims of
deliberate indifference to his health and safety, and claims of excessive
use of force).
(3)
All of Plaintiff’s deprivation of property GSP claims raised in his
Complaint and Supplemental Complaint (Plaintiff’s deprivation of
property claims alleged against Defendants Toole, Jacobs, Shuemake,
Todman, and Davis).
I also RECOMMEND the Court GRANT the portion of Movants’ Motion to Dismiss seeking
dismissal of Plaintiff’s claims for certain categories of damages pursuant to 42 U.S.C. § 1997e(e)
and DISMISS Plaintiff’s remaining claims for compensatory and punitive damages. I also
RECOMMEND the Court DENY as moot the portion of Movants’ Motion to Dismiss seeking
dismissal of Plaintiff’s forced shaving claim for failure to state a claim. Doc. 148.
If this Recommendation regarding Movants’ Motion to Dismiss is adopted, then the only
remaining claims in this lawsuit will be Plaintiff’s GSP procedural due process claims
concerning his placement in Tier II/segregation against Defendants DeLoach, Owens, Toole,
Bailey-Dean, and Jacobs, see doc. 235 at 26–27, and, for these claims, Plaintiff will be limited to
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recovering only nominal damages and shall not be able to recover compensatory or punitive
damages. Therefore, I RECOMMEND the Court DISMISS all other Defendants from this
action and TERMINATE them from the docket in this case. 27
I also RECOMMEND the Court DENY Plaintiff’s Supplemental Motions for
Preliminary Injunction or Temporary Restraining Order regarding forced shaving, docs. 166,
195. Finally, through this Order, the Court also DENIES as moot Defendants’ Motion to Sever,
doc. 139, and DENIES Plaintiff’s Motion for Sanctions, doc. 164.
Any objections to this Report and Recommendation shall be filed within 14 days of
today’s date. Objections shall be specific and in writing. Any objection that the Magistrate
Judge failed to address a contention raised in the Complaint must be included. Failure to file
timely, written objections will bar any later challenge or review of the Magistrate Judge’s factual
findings and legal conclusions. 28 U.S.C. § 636(b)(1)(C); Harrigan v. Metro Dade Police Dep’t
Station #4, No. 17-11264, 2020 WL 6039905, at *4 (11th Cir. Oct. 13, 2020). To be clear, a
party waives all rights to challenge the Magistrate Judge’s factual findings and legal conclusions
on appeal by failing to file timely, written objections. Harrigan, 2020 WL 6039905, at *4; 11th
Cir. R. 3-1. A copy of the objections must be served upon all other parties to the action.
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
27
The Court again notes this Report and Recommendation does not consider the viability of any of
Plaintiff’s GDCP claims or the viability of the Cobb County claims raised in Plaintiff’s Complaint and
Supplemental Complaint, which have been severed and transferred. Doc. 235 at 25.
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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.
SO ORDERED and REPORTED and RECOMMENDED, this 22nd day of February,
2021.
____________________________________
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
40
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