Moody v. Williams et al

Filing 32

REPORT AND RECOMMENDATIONS of the Magistrate Judge that Plaintiff's 1 Complaint should be dismissed, without prejudice, based on his failure to exhaust his administrative remedies, and this case should be closed. It is my RECOMMENDAITON that Defendants' 15 MOTION to Dismiss be GRANTED and that Plaintiff be DENIED leave to appeal in forma pauperis. Any party seeking to object to this Report and Recommendation is ORDERED to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge.( Objections to R&R due by 7/27/2015). Signed by Magistrate Judge R. Stan Baker on 7/9/2015. (ca)

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

DE’ANDRE MOODY,
Plaintiff,

CIVIL ACTION NO.: 6:14-cv-108

v.
WARDEN STANLEY WILLIAMS; DEPUTY
WARDEN JAMES DEAL; CPT. ANDREW
MCFARLANE; ERIC SMOKES; and LT.
JOHNNY DAVIS,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at the Georgia Diagnostic Center in Jackson,
Georgia, filed a cause of action contesting certain conditions of his confinement while he was
housed at Smith State Prison in Glennville, Georgia. (Doc. 1.) Defendants Stanley Williams,
James Deal, Andrew McFarlane, Eric Smokes, and Johnny Davis (“Defendants”) filed a Motion
to Dismiss. (Doc. 15.) Plaintiff filed a Response, (doc. 20), and Defendants filed a Reply.
(Doc. 23.) Plaintiff filed several Surreplies. (Docs. 28, 29, 30.) 1 For the reasons which follow,
Defendants’ Motion should be GRANTED, and Plaintiff’s Complaint should be DISMISSED,
without prejudice. Additionally, Plaintiff should be DENIED leave to appeal in forma pauperis.

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Plaintiff filed a Notice of Amended Claim in Original Complaint, (doc. 29.) As this pleading does not actually
amend Plaintiff’s original Complaint, Defendants’ Motion to Dismiss need not be dismissed as moot. Instead, this
pleading provides further factual details of Plaintiff’s allegations against Defendants. Plaintiff also filed a Motion to
Explain his Late Response to Defendants’ Motion to Dismiss. (Doc. 31.) As Plaintiff’s responses to Defendants’
Motion were not late, to the extent this pleading can be construed as a motion, Plaintiff’s Motion is DISMISSED as
moot.

BACKGROUND2
Plaintiff claims he informed an officer and Defendant Smokes upon his arrival at Smith
State Prison that his “affiliation” was wrong. (Doc. 1, p. 5.) Plaintiff contends he was placed in
a single man cell in administrative segregation because of the violent assaults between rival gang
members at the prison. Plaintiff states Defendant McFarlane instructed him to pack his things
and move to a two man cell about a month after his arrival at the prison. Plaintiff asserts he was
later given a cell mate who is a member of a rival gang, even though there was no one else in the
cell with him initially. Plaintiff also asserts he informed all Defendants on a daily basis that they
needed to move Plaintiff out of that cell because he and his cell mate were members of rival
gangs.
By example, Plaintiff maintains Defendant McFarlane “assured” Plaintiff that things
would be fine and told Plaintiff if he had any problems to notify the floor officer and “they will
be handled.” (Id. at p. 6.) Additionally, Plaintiff asserts he told Defendant Davis he and his cell
mate were having problems since they were not of the same gang affiliation, and Defendant
Davis told Plaintiff to give him a few days to have the two inmates separated. Further, Plaintiff
asserts he informed Defendants Smokes, Deal, Williams, and Davis on August 28, 2013, of the
severity of the problems between him and his roommate because he was trying to avoid an
altercation. However, Plaintiff maintains, Defendants Smokes, Deal, Williams, and Davis left
this area and forgot all about Plaintiff and his concern for his safety. (Id. at p. 8.) Plaintiff
alleges he was not moved, and his cell mate stabbed him in the face, hands, left arm, and left leg
while he was sleeping on August 31, 2013. (Id. at pp. 12, 14.) Plaintiff contends he sustained
several injuries as a result of this stabbing.

2

The recited allegations are taken from Plaintiff’s Complaint and are viewed, as they must be at this stage, in the
light most favorable to Plaintiff.

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Plaintiff alleges that he was taken to the hospital for medical treatment and, upon his
return to the prison, he was placed in a single man cell. Plaintiff asserts he noticed several single
man cells which were empty where he could have been placed before he was stabbed. (Id. at
p. 14.) Plaintiff also asserts he was once again placed in a two man cell about a week later and
was placed in a cell with a member of a rival gang. Plaintiff contends he voiced his concerns
about this arrangement, he was not moved, and his cell mate attacked him with a knife. Plaintiff
asserts he was able to take the knife away from his cellmate before he was stabbed. (Id. at p. 16.)
After the requisite frivolity review, Plaintiff’s Complaint was served upon Defendants on
the basis of Plaintiff’s allegations that they were deliberately indifferent to his safety, in violation
of the Eighth Amendment. (Doc. 8.)
DISCUSSION
Defendants set forth several grounds for dismissal of Plaintiff’s Complaint in their
Motion. First, Defendants aver Plaintiff failed to exhaust his available administrative remedies
prior to the filing of his Complaint. Defendants note Plaintiff fails to state a claim against them
in their official capacities.

Defendants also note Plaintiff fails to state a viable Eighth

Amendment claim against them in their individual capacities. Finally, Defendants maintain they
are entitled to qualified immunity. As set forth below, the undersigned agrees Plaintiff failed to
exhaust his administrative remedies prior to the filing of his Complaint, and his Complaint is due
to be dismissed on this ground.
I.

Standard of Review
The determination of whether an inmate exhausted his available administrative remedies

prior to filing 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 (11th Cir. 2008). “Even though a

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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.
(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.
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. Porter, 534 U.S. at 523. The Supreme Court has noted
exhaustion must be “proper.” Woodford v. Ngo, 541 U.S. 81, 92 (2006). “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 v. Bock, 549 U.S. 199, 218 (2007).
In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit clarified how
the lower courts are to examine the issue of exhaustion of administrative remedies. First, the
court is to take the plaintiff’s version of the facts regarding exhaustion as true. Id. at 1082. If,
even under the plaintiff’s version of the facts, the plaintiff has not exhausted, the complaint must
be dismissed. Id. However, if the parties’ conflicting facts leave a dispute as to whether plaintiff
has exhausted, the court need not accept all of plaintiff’s facts as true. Id. Rather, “the court
then proceeds to make specific findings in order to resolve the disputed factual issues[.]” Id.

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“Once the court makes findings on the disputed issues of fact, it then decides whether under
those findings the prisoner has exhausted his available administrative remedies.” Id. at 1083.
The Eleventh Circuit has held that a district court may consider materials outside of the
pleadings and resolve factual disputes regarding exhaustion in conjunction with a Rule 12(b)(6)
motion to dismiss so long as the factual disputes do not decide the merits of the case. See
Bryant, 530 F.3d at 1376–77.
The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y
for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)). “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)). Nevertheless, 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) (internal 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.

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The Georgia Department of Corrections’ grievance procedure is set forth in Standard
Operating Procedure (“SOP”) IIB05-0001. This SOP does not require an inmate to attempt to
informally resolve his complaint before filing a formal grievance. (Doc. No. 15-3, p. 5.) An
inmate can file, with a few exceptions, “a grievance about any condition, policy, procedure, or
action or lack thereof that affects the [inmate] personally.” (Id. at p. 6.) An inmate must submit
a grievance form “no later than 10 calendar days from the date the [inmate] knew, or should have
known, of the facts giving rise to the grievance.” (Id. at p. 8) (emphasis in original.) The
Grievance Coordinator is to screen the grievance to determine whether the warden should accept
the grievance or reject it. The warden has a period of forty (40) calendar days from the date the
inmate gave his grievance to the counselor to respond. An extension of 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. at p. 10.) An inmate can file an appeal with the
Commissioner’s Office in the following instances: if the grievance coordinator rejects his
original grievance; after the warden responds to the original grievance; or when the time allowed
for the warden’s decision has expired. The inmate has seven (7) calendar days in which to file
this appeal. (Id. at p. 12.) The Commissioner has 100 calendar days after receipt to render a
decision. (Id.) These time limits may be waived for good cause. (Id.)
With these standards and procedures in mind, the Court now addresses Defendants’
argument that Plaintiff did not exhaust his administrative remedies as to his claims against them.
II.

Assessment of Plaintiff’s Exhaustion
Defendants maintain Plaintiff filed four (4) grievances while he was housed at Smith

State Prison, two (2) of which are not related to the issues set forth in his Complaint. (Doc. 15-1,
p. 6.) Defendants note that Plaintiff’s remaining two (2) grievances do concern his contentions

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regarding the first stabbing, but he only mentions three (3) of the Defendants in these
grievances—Defendants McFarlane, Smokes, and Davis—as ignoring his concerns for his
safety. Defendants state Plaintiff fails to mention either Defendants Williams or Deal in these
grievances, which gave no indication Plaintiff intended to hold Defendants Williams and Deal
responsible for the alleged deliberate indifference. Defendants also state Plaintiff did not file an
appeal on the denials of these two (2) grievances regarding the first stabbing, and thus, he failed
to fully exhaust the grievance process. Defendants assert Plaintiff failed to file any grievance
concerning the second stabbing on September 23, 2013. (Id. at p. 7.)
Plaintiff responds he “personally and verbily (sic) exhausted his delimma (sic)” to all of
the Defendants on the day he arrived at Smith State Prison. 3 (Doc. 30, p. 1.) Plaintiff avers he
informed Defendant McFarlane of his dilemma when he was moved from a one-man cell to a
two-man cell in administrative segregation.

Plaintiff states he “exhausted this problem” to

Defendant Davis “when a rival gang member was place[d] in his cell[.]” (Id. at p. 2.) Plaintiff
also states he exhausted his remedies with all Defendants while they were doing different
inspections.

Finally, Plaintiff notes he was forced to file a written grievance after he made

numerous attempts to fix his dilemma “with verbal exhausting to all said [D]efendants.” (Id.).
Despite Plaintiff’s seeming admission that he failed to follow the dictates of SOP IIB050001 and therefore did not exhaust his administrative remedies prior to the filing of his
Complaint, the Court nevertheless will review the documentary evidence Defendants submitted.

3

Plaintiff filed an opposition to Defendants’ Motion to Dismiss, (doc. 20), as well as an Amended Motion in
Response to Defendants’ Motion to Dismiss, (doc. 28), and Notice of Amended Claim, (doc. 29). However,
Plaintiff does not respond to Defendants’ assertion that he failed to exhaust his administrative remedies until he filed
his second Amended Motion in Response to Defendants’ Motion to Dismiss, (doc. 30).

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A.

Grievance Number 156365

In Grievance Number 156365, which is dated September 2, 2013, Plaintiff stated he was
stabbed on August 31, 2013. (Doc. 15-4, p. 4.) Plaintiff asserted he told Defendant Davis that
he and his roommate were having problems a week before the stabbing. Plaintiff also asserted
Defendant Davis called Defendant Smokes and told him about Plaintiff’s complaint, yet
Defendants Davis and Smokes did not move Plaintiff from the cell he shared. Plaintiff stated he
personally informed Defendant Smokes of this issue when he made his rounds that week. (Id.)
This grievance was denied on the merits. (Id. at p. 5.)
While Plaintiff filed this grievance within the time designated under SOP II05-0001 as to
the first stabbing incident, he did not properly exhaust his administrative remedies by the filing
of Grievance Number 156365.

Plaintiff only names Defendants Davis and Smokes in this

grievance, and there is nothing in this grievance which would have placed the remaining
Defendants on notice Plaintiff intended to complain about them and their actions or inaction.
Further, Plaintiff failed to file an appeal of the denial of this grievance. Plaintiff did not exhaust
his administrative remedies as to his claim that Defendants were deliberately indifferent to his
safety prior to the August 31, 2013, stabbing at the hands of his roommate by filing Grievance
Number 156365.
B.

Grievance Number 156363

Plaintiff also filed Grievance Number 156363 on September 2, 2013. (Doc. 15-4, p. 8.)
Plaintiff stated he was stabbed on August 31, 2013, and that he advised the captain on more than
one occasion that he and his roommate were having problems. Plaintiff also stated the captain
(Defendant McFarlane) ignored his concerns, which led to him getting stabbed five times. (Id.)
Plaintiff’s grievance was denied on the merits. (Id. at p. 3.)

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Like the filing of Grievance Number 156365, Plaintiff did not properly exhaust his
administrative remedies by the filing of Grievance Number 156363.

Plaintiff only names

Defendant McFarlane in this grievance, and there is nothing in this grievance which would have
placed the remaining Defendants on notice Plaintiff intended to complain about them and their
actions or inaction. Further, Plaintiff failed to file an appeal of the denial of this grievance. In
sum, Plaintiff did not exhaust his administrative remedies as to his claim that Defendants were
deliberately indifferent to his safety prior to the August 31, 2013, stabbing at the hands of his
roommate by filing Grievance Number 156363.
C.

Grievances Numbered 162060 and 162748

Plaintiff filed Grievance Number 162060 on November 26, 2013, and complained about a
lack of proper medical care for his “threatening conditions.” (Doc. 15-4, p. 12.) Plaintiff also
filed Grievance Number 162748 on December 5, 2013, and stated Officer McDaniel slammed
his arm in the tray flap of his cell door. (Id. at p. 15.)
The filing of these two (2) grievances does not constitute proper exhaustion. Plaintiff
does not set forth any information in these grievances revealing his assertion that Defendants
were deliberately indifferent to his safety, nor does he name any of the Defendants from his
Complaint in these grievances.

Plaintiff’s Grievances Number 162060 and 162748, which

contain allegations of deliberate indifference to medical needs and excessive force, respectively,
do not satisfy the exhaustion requirements of SOP IIB05-0001 concerning the facts underlying
the instant cause of action.
In sum, Plaintiff failed to exhaust his administrative remedies concerning the allegations
forming the basis of his cause of action prior to the filing of his Complaint in this Court. The
Court notes Plaintiff’s assertion that he verbally exhausted his administrative remedies as to each

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Defendant, but, even accepting this assertion as true does not allow Plaintiff to overcome
Defendants’ Motion. Pursuant to Georgia Department of Corrections’ policy and the applicable
case law, Plaintiff was required to file a formal grievance and an appeal of any denial of that
grievance before he filed his cause of action. Plaintiff failed to do so; therefore, he failed to
exhaust his administrative remedies prior to the filing of this Complaint.
For these reasons, this portion of Defendants’ Motion to Dismiss should be GRANTED,
and Plaintiff’s Complaint should be DISMISSED, without prejudice.

As a result, it is

unnecessary to address the remaining portions of Defendants’ Motion.
III.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 4

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. See Fed. R. App. R. 24(a)(1)(A) (“A party who was
permitted to proceed in forma pauperis in the district-court action, . . ., may proceed on appeal in
forma pauperis without further authorization, unless the district court—before or after the notice
of appeal is filed—certifies that the appeal is not taken in good faith[.]”). An appeal cannot be
taken in forma pauperis if the trial court certifies, either before or after the notice of appeal is
filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cnty. 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.
4

A Certificate of Appealability (“COA”) is not required to file an appeal in a Section 1983 action. See Fed. R.
App. P. 3 & 4; Morefield v. Smith, No. 607CV010, 2007 WL 1893677, at *1 (S.D. Ga. July 2, 2007) (citing Mathis
v. Smith, No. 05-13123-A (11th Cir. Aug. 29, 2005) (unpublished)).

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Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Defendants’ Motion to Dismiss, Plaintiff’s potential in
forma pauperis status on appeal should be DENIED, as there are no non-frivolous issues to raise
on appeal, and any appeal would not be taken in good faith.
CONCLUSION
Based on the foregoing, it is my RECOMMENDATION that Defendants’ Motion to
Dismiss, (doc. 15), be GRANTED and that Plaintiff be DENIED leave to appeal in forma
pauperis. Plaintiff’s Complaint, (doc. 1), should be DISMISSED, without prejudice, based on
his failure to exhaust his administrative remedies, and this case should be CLOSED.
Any party seeking to object to this Report and Recommendation is ORDERED 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.
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. The
Clerk of Court is DIRECTED to serve a copy of this Report and Recommendation upon the
parties.
SO ORDERED and REPORTED and RECOMMENDED, this 9th day of July,
2015.

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

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