Timmons v. Bryson et al

Filing 26

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT 17 Defendants' Motion to Dismiss and DISMISS Plaintiff's 1 Complaint, without prejudice. It is further RECOMMENDED that the Court DENY Plaintiff leave to appea l in forma pauperis and DIRECT the Clerk of Court to CLOSE this case. The Clerk of Court is DIRECTED to update the docket of this case to reflect the proper names of these three Defendants listed in their Motion to Dismiss: Brandon Sellers, Derrick Shuemake, and Otis McIntosh. 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. (Objections to R&R due by 10/04/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 9/20/2016. (csr)

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

TIMOTHY TIMMONS,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-19

v.
BRANDON SELLERS; DERRICK
SHUEMAKE; OTIS MCINTOSH; and
BOOTH CONTROL OFFICER,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff is currently incarcerated at Ware State Prison in Waycross, Georgia. He filed
this cause of action pursuant to 42 U.S.C. § 1983 contesting certain conditions of his
confinement at Rogers State Prison in Reidsville, Georgia. After the requisite frivolity review,
the United States Marshal served Plaintiff’s Complaint on Defendants Brandon Sellers, Derrick
Shuemake, and Otis McIntosh. (Docs. 12–16.) 1 Defendants then filed a Motion to Dismiss
based on Plaintiff’s failure to exhaust his available administrative remedies prior to the filing of
his Complaint. (Doc. 17.) For the reasons which follow, I RECOMMEND that the Court
GRANT Defendants’ Motion to Dismiss and DISMISS Plaintiff’s Complaint, without
prejudice. I further RECOMMEND that the Court DENY Plaintiff leave to appeal in forma
pauperis and DIRECT the Clerk of Court to CLOSE this case.
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The Clerk of Court is DIRECTED to update the docket of this case to reflect the proper names of these
three Defendants listed in their Motion to Dismiss: Brandon Sellers, Derrick Shuemake, and Otis
McIntosh. Defendant “Booth Control Officer” has not yet been identified and has not been served in this
case. Thus, his name shall remain the same on the docket of this case. However, my recommended
ground for dismissal, failure to exhaust administrative remedies, applies equally to claims asserted against
this unidentified Defendant.

BACKGROUND
Plaintiff, who is currently incarcerated at Smith State Prison, filed this cause of action
contesting certain conditions of his confinement at Rogers State Prison. Specifically, Plaintiff
states Defendant Shuemake approached him on April 24, 2015, and asked Plaintiff what he had
in his possession. (Doc. 1, p. 7.) Plaintiff states he tried to explain to Defendant Shuemake he
did not have anything on him, but, as Defendant Shuemake starting coming closer to him,
Plaintiff emptied his pockets to reveal a pen, lip balm, and a compact disc. Plaintiff contends
Defendant Shuemake began twisting his left arm “in an aggressive manner”, pushed Plaintiff
head first into a brick wall, and attempted to throw Plaintiff face first into the concrete floor.
(Id.) Plaintiff asserts Defendant Sellers arrived and immediately began assisting in Defendant
Shuemake’s assault. According to Plaintiff, he was not resisting the officers in any way, but that
the officers continued to assault him. Plaintiff asserts the Booth Control Officer who was
working with Defendant Sellers, whose name he does not know, witnessed this assault, as did
several other inmates. (Id.)
On May 1, 2015, Plaintiff contends he and another inmate were taken before Defendant
McIntosh for a hearing based on disciplinary charges they received as a result of the April 24,
2015, incident. Plaintiff asserts he asked that the hearing not proceed without witnesses being
present or being able to read witness statements. Plaintiff alleges Defendant McIntosh informed
him that there would be no witnesses or evidence presented. Plaintiff was found guilty of the
charged violations, and he received 90 days’ store, visitation, and phone restriction. (Id.)
On March 29, 2016, I conducted a frivolity review of Plaintiff’s Complaint pursuant to 28
U.S.C. § 1915A. (Doc. 7.) I recommended that the Court dismiss a number of Plaintiff’s claims.
Id. However, I concluded that Plaintiff stated plausible claims for relief under 42 U.S.C. § 1983

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for excessive force against Defendants Shuemake and Sellers, failure to intervene against
Defendant Booth Control Officer, and procedural due process against Defendant McIntosh. Id.
Accordingly, the United States Marshal served these Defendants with Plaintiff’s Complaint.
Following service, Defendants filed the instant Motion to Dismiss Plaintiff’s Complaint.
(Doc. 17.) In that Motion, Defendants argue that Plaintiff failed to properly pursue his due
process and excessive force claims through the Georgia Department of Corrections’ (“DOC”)
grievance system. Id. Thus, they contend, Plaintiff did not exhaust his administrative remedies
before filing this lawsuit. Id. Defendants also claim that Plaintiff fails to state a claim a
plausible due process violation and that qualified immunity shields Defendant McIntosh.
Plaintiff filed a Response opposing Defendants’ Motion. (Doc. 21.) In addition, Plaintiff filed
an Affidavit which he titled “Response to Magistrate Judge’s Report and Recommendation” but
which addresses Defendants’ arguments regarding exhaustion. (Doc. 22.)
DISCUSSION
I.

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

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). “Because exhaustion
of administrative remedies is a matter in abatement and not generally an adjudication on the
merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment;
instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for
summary judgment.” Id. at 1374–75 (internal citation omitted). “Even though a failure-toexhaust defense is non-jurisdictional, it is like” a jurisdictional defense because such a

3

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.
In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit set forth a
“two-step process” that lower courts must employ when examining the issue of exhaustion of
administrative remedies. First, the court is to take the plaintiff’s version of the facts regarding
exhaustion as true. Turner, 541 F.3d 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 the plaintiff’s facts as true. Id. Rather, “the court then proceeds to make specific findings
in order to resolve the disputed factual issues[.]” Id. “Once the court makes findings on the
disputed issues of fact, it then decides whether under those findings the prisoner has exhausted
his available administrative remedies.” Id. at 1083. The Eleventh Circuit has held that a district
court may consider materials outside of the pleadings and resolve factual disputes regarding
exhaustion in 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.
B.

Legal Requirements for Exhaustion

Where Congress explicitly mandates, prisoners seeking relief for alleged constitutional
violations must first exhaust inmate grievance procedures before filing suit in federal court. See
Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) of Title 42 of the United States

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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; see also O’Brien v. United
States, 137 F. App’x 295, 301–02 (11th Cir. 2005) (finding lack of exhaustion where prisoner
“prematurely filed his civil complaint . . . and . . . ‘failed to heed that clear statutory command’
requiring that his administrative remedies be exhausted before bringing suit”).
The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y
for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)).

Furthermore, requiring

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

Id. at 92.

“Proper

exhaustion demands compliance with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.” Id. at 90–91. In other words, an institution’s requirements
define what is considered exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007).
Thus, under the law, prisoners must do more than simply initiate grievances; they must
also appeal any denial of relief through all levels of review that comprise the administrative

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grievance process. Bryant, 530 F.3d at1378 (“To exhaust administrative remedies in accordance
with the PLRA [Prison Litigation Reform Act], prisoners must ‘properly take each step within
the administrative process.’”) (quoting Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir.
2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27, 2007) (finding
that a plaintiff who is still awaiting a response from the warden regarding his grievance is still in
the process of exhausting his administrative remedies).
Furthermore, an inmate who files an untimely grievance or simply spurns the
administrative process until it is no longer available fails to satisfy the exhaustion requirement of
the PLRA. Johnson, 418 F.3d at 1157–59; Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th
Cir. 2000) (inmate’s belief that administrative procedures are futile or needless does not excuse
the exhaustion requirement). Additionally, “[t]he only facts pertinent to determining whether a
prisoner has satisfied the PLRA’s exhaustion requirement are those that existed when he filed his
original complaint.” Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012).
“However, ‘while [Section] 1997e(a) requires that a prisoner provide as much relevant
information as he reasonably can in the administrative grievance process, it does not require
more.’” Id. (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000)). The purpose of
Section 1997e(a) is not that “fact-intensive litigation” result over whether every fact relevant to
the cause of action was included in the grievance. Hooks v. Rich, CV605-65, 2006 WL 565909,
at *5 (S.D. Ga. Mar. 7, 2006) (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

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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.
Nonetheless, the United States Supreme Court recently held that “the PLRA’s text
suggests no limits on an inmate’s obligation to exhaust—irrespective of any ‘special
circumstances.’

And that mandatory language means a court may not excuse a failure to

exhaust, even to take such circumstances into account.” Ross v. Blake, ___ U.S. ___, 2016 WL
3128839, at *5 (June 6, 2016).
C.

Whether Plaintiff Exhausted his Administrative Remedies as to his Excessive
Force Claims
1.

The Georgia Department of Corrections’ Grievance Procedure

The Georgia Department of Corrections’ grievance procedure is set forth in Standard
Operating Procedure (“SOP”) IIB05-0001. (Doc. 17-7.) This SOP does not require an inmate to
attempt an informal resolution of his complaint before filing a formal grievance. (Id. at 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. Grievance forms must be
available in the control rooms of all living units and must be provided upon request by an
offender. (Id. at p. 4.) 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).) A “calendar day” is “a 24 hour time period from midnight to
midnight Monday through Sunday.” (Id. at p. 2.) The inmate must use the prison’s grievance
form when filing the original grievance, and he must sign the grievance form and give it to any
counselor. (Id. at pp. 7–8.) The counselor then gives the inmate the bottom portion of the
grievance form as a receipt and forwards the grievance to the Grievance Coordinator. (Id. at
p. 8.)

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The Grievance Coordinator is to screen the grievance to determine whether the warden
should accept the grievance or reject it. (Id.) The warden has a period of forty (40) calendar
days from the date the inmate gave his grievance to the counselor to respond. An extension of
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 pp. 10–11.) 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.)
2.

Whether Plaintiff Properly Exhausted GDOC’s Administrative Remedies
as to his Excessive Force Claims

In his Complaint, Plaintiff states that he filed a grievance regarding the April 24, 2015,
use of force on May 5, 2015, while he was at Rogers State Prison before he was transferred to
Smith State Prison on May 7, 2015. (Doc. 1, p. 3.) He contends that he received no response to
the May 5, 2015, grievance while he was at Rogers State Prison or Smith State Prison. Id. Thus,
he alleges, he filed another grievance, Grievance Number 208837, on November 16, 2015. Id.
On January 21, 2016, he received a response to that grievance stating that he filed the grievance
out of time and the grievance improperly raised more than one issue. (Id. at p. 4.) He states that,
while Warden Tatum signed this response on December 2, 2015, Plaintiff did not receive it until
January 21, 2016. Id. Plaintiff states that he then filed an appeal of that denial on January 25,
2016. Id. He goes on to explain that Ms. Washington, apparently a prison employee, required
him to provide his copy of his November 16, 2015, grievance as well as Warden Tatum’s
response. Id.

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In his Affidavit following Defendants’ Motion, Plaintiff states that he did not receive a
grievance form to fill out until May 1, 2015. (Doc. 22, p. 2.) 2 He contends that he was not able
to turn the grievance in until May 5, 2015, “because the floor officers, et al., stated that they
couldn’t take it.” Id. He says that no one “made themselves available” to accept the grievance
until May 5, 2015. Id. Plaintiff further maintains that his grievance was dated May 3, 2015, and
that he was ready to turn it in on May 4, 2015. Id.
Even under the first Turner step, Plaintiff’s account of his May 5, 2015, grievance reveals
that he did not properly exhaust. Plaintiff had ten calendar days from the date of the incident on
April 24, 2015, to file an initial grievance. (Doc. 17-7, p. 8.) Thus, his deadline for filing the
grievance was May 4, 2015. Under Plaintiff’s version of events, he did not file the grievance
until a day later. 3 Thus, he failed to properly grieve his claims. Again, an inmate must comply
with the institution’s procedural rules in order to effectuate proper exhaustion. Jones, 549 U.S.
at 218; Woodford, 541 U.S. at 90–92; Singleton v. Johnson, No. CV406-75, 2008 WL 3887633,
at *1 (S.D. Ga. Aug. 18, 2008) (dismissing inmate’s case for failure to properly exhaust where
appeal of grievance denial was filed one day after SOP’s deadline).
Moreover, even if Plaintiff’s May 5, 2015, grievance was timely, Plaintiff failed to
pursue all available steps regarding that grievance. If Plaintiff filed this grievance on May 5,
2015, as Plaintiff alleges, the Warden had forty days to respond to that grievance. (Doc. 21-3,
pp. 10–11.) When the Warden failed to respond, Plaintiff could not simply rely upon that lack of
response to constitute exhaustion.

Rather, Plaintiff still had to complete each step of the

2

Plaintiff also baldly states that a “properly formulated section 1983 suit does not require a claimat [sic]
to exhaust available state judicial or administrative remedies before seeking judicial relief.” (Doc. 22,
p. 1.) As explained above, Plaintiff is mistaken. See 42 U.S.C. § 1997e(a); Porter, 534 U.S. at 523.

3

Of course, Plaintiff’s Grievance Number 208837, filed on November 16, 2015, could not constitute
proper exhaustion, as it was untimely by more than six months. Hence, Plaintiff attempts to establish that
he filed a grievance in May of 2015.

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grievance process. Bryant, 530 F.3d at1378 (“To exhaust administrative remedies in accordance
with the PLRA, prisoners must ‘properly take each step within the administrative process.’”)
(quoting Johnson, 418 F.3d at 1157, and Sewell v. Ramsey, No. CV406-159, 2007 WL 201269
(S.D. Ga. Jan. 27, 2007) (finding that a plaintiff who is still awaiting a response from the warden
regarding his grievance is still in the process of exhausting his administrative remedies). Thus, if
the Warden failed to respond within forty days of Plaintiff filing the grievance, Plaintiff’s next
step would be to file an appeal with the Commissioner’s Office within seven days. (Doc. 17-7,
p. 12.) However, Plaintiff does not allege that he ever filed an appeal.
Even if Plaintiff’s attempt to rely upon a grievance allegedly filed on May 5, 2015,
survives the first Turner step, that attempt readily withers when subjected to the crucible of
examination required by the second Turner step. Defendants offer more credible information
indicating that Plaintiff never filed a grievance in May of 2015. Specifically, Defendants offer
the affidavit of Tammy Stankowitz, the Grievance Coordinator at Rogers State Prison. (Doc. 176.) Stankowitz explains that the prison keeps records of every grievance filed by an inmate, and
those records do not reflect that Plaintiff filed a grievance in May of 2015 regarding the April 24,
2015, use of force. (Id. at pp. 7–8.) According to Stankowitz, the only grievance that Plaintiff
filed regarding the April 24, 2015, incident was Grievance Number 208837, which Plaintiff filed
on November 16, 2015, while he was housed at Smith State Prison. Id. That grievance was
rejected because it was untimely and raised more than one issue. Id. Stankowitz attached to her
affidavit GDOC records summarizing Plaintiff’s grievance history. (Doc. 17-9.) That document
confirms that Plaintiff did not file any grievance regarding the April 24, 2015, incident until
November 16, 2015. Id. Furthermore, Stankowitz also attached documents relating to Plaintiff’s
grievance of the incident. (Doc. 17-11.) These documents confirm that Plaintiff did not grieve

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the incident until filing Grievance Number 208837. Id. Furthermore, GDOC officials rejected
Plaintiff’s grievance as untimely at every level of the grievance process.

Id.

All of the

documents provided by Defendants contain no indication that Plaintiff filed a grievance in May
of 2015 other than Plaintiff’s unsubstantiated statement to that effect. Given the consistency
behind these records and Stankowitz’s statements and the complete absence of any record (from
Plaintiff or Defendants) to support Plaintiff’s claims that he filed a grievance in May of 2015, the
Court should reject Plaintiff’s claims that he filed a grievance in May of 2015.
In short, even under Plaintiff’s version of events and accepting that he filed an initial
grievance on May 5, 2015, he failed to properly exhaust his administrative remedies through that
grievance. Moreover, Defendants have presented far more credible facts revealing that Plaintiff
did not file a grievance on May 5, 2015. Consequently, Plaintiff did not properly exhaust
GDOC’s administrative remedies regarding his excessive force claims before filing this lawsuit.
3.

Whether GDOC’s Administrative Remedies Were Available to Plaintiff

Having found that Plaintiff failed to exhaust GDOC’s administrative remedies, the Court
must assess whether those remedies were available to Plaintiff. Though the Supreme Court
rejected a “special circumstances” exception to exhaustion in Ross, it reiterated that a prisoner
need only exhaust those remedies which were available to him.

___ U.S. ___ 2016 WL

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

The Court recognized “three kinds of circumstances in which an

administrative remedy, although officially on the books, is not capable of use to obtain relief.”
Id. First, the Court stated that, in some instances, the administrative procedure “operates as a
simple dead end—with officers unable or consistently unwilling to provide any relief to
aggrieved inmates.” Id. Thus, if the administrative procedure lacks authority or if the officials

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with apparent authority “decline ever to exercise it,” the inmate has no obligation to exhaust the
remedy. Id. Second, when administrative remedies are so confusing that they are “essentially
‘unknowable,’” exhaustion is not required. Id. at *8 (citing Goebert v. Lee Cty., 510 F.3d 1312,
1323 (11th Cir. 2007), and Turner, 541 F.3d at 1084). Lastly, exhaustion is not required “when
prison administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. However, the Supreme Court recognized
that, “[g]iven prisons’ own incentives to maintain functioning remedial processes, we expect that
these circumstances will not often arise.” Id. at *7.
Though his Response to the Motion to Dismiss is unclear, Plaintiff arguably contends that
the administrative remedies officially on the books at Rogers State Prison were not made
available to him. Plaintiff states that he could not file his grievance by May 4, 2015, because he
could not get a grievance form until May 1, 2015, and no one was available to accept his
grievance until May 5, 2015. (Doc. 22, p. 2.) However, under the SOP, Plaintiff could have
requested to file his grievance out of time. Moreover, as explained above, after the time for the
Warden to respond to the alleged May 5, 2015, expired, Plaintiff had the ability to file an appeal
to the Central Office, but he never did so. Plaintiff does not make any argument of unavailability
as to the appeal process.
Even accepting all of Plaintiff’s allegations as true, he fails to establish that the
administrative remedies at Smith State Prison and Rogers State Prison were not capable of use.
An inmate must comply with the institution’s procedural rules in order to effectuate proper
exhaustion. Jones, 549 U.S. at 218; Woodford, 541 U.S. at 90–92. Plaintiff cannot argue, after
the fact, that, if he had requested leave to file his grievance out of time or appealed to the Central
Office, those efforts would have been rejected. Higginbottom v. Carter, 223 F.3d 1259, 1261

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(11th Cir. 2000) (“[T]he exhaustion requirement cannot be waived based upon the prisoner’s
belief that pursuing administrative procedures would be futile.”). It is not this Court’s place to
second guess a prison’s grievance rules, and an inmate cannot create unavailability by failing to
abide by those rules.
In sum, under the first Turner step, Plaintiff does not establish that Smith State Prison or
Rogers State Prison officers were “unable or consistently unwilling to provide any relief to
aggrieved inmates,” that the GDOC’s grievance process was so complicated that it was
“essentially unknowable,” or that GDOC officers “thwart[ed] inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.” Ross, ___ U.S. ___,
2016 WL 3128839, at *8. Thus, even if the hurdles to exhaustion existed as Plaintiff claims,
they did not rise to the height of unavailability that the Supreme Court contemplated in Ross.
Plaintiff’s claims of unavailability fail even more easily under the second Turner step.
Again, under that step, the Court resolves any disputed factual issues and then assesses, under
those findings, whether the prisoner has exhausted his available administrative remedies.
Turner, 541 F.3d 1083. Having reviewed all of Plaintiff’s and Defendants’ filings, the Court
finds Grievance Coordinator Stankowitz’s account of availability more credible than Plaintiff’s.
Stankowitz states that, upon admission to GDOC, prison officials provide an orientation to
inmates on the grievance process, and the process is outlined in the inmates’ Orientation
Handbook. (Doc. 17-6, p. 3.) Additionally, inmates may review SOP IIB05-0001in the prison’s
library. Contrary to Plaintiff’s assertions, Stankowitz avers that grievance forms are available in
all living units in the prison and in the counselors’ office during business hours. (Id. at p. 4.)
Prison staff provides grievance forms to inmates in isolation upon their request.

Id.

Additionally, while Plaintiff complains that no officers “made themselves available” to take his

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grievance, he was not required to wait on a specific person to receive his grievance. Rather, SOP
IIB05-0001 explicitly provides that Plaintiff could “give it to any counselor.” (Doc. 17-7, p. 8.)
Moreover, Stankowitz states that, after a counselor receives a grievance from a prisoner, the
counselor must forward the form to the Grievance Coordinator. (Doc. 17-6, p. 5.)
Stankowitz’s account of availability is consistent with the record evidence, including the
prison’s Standard Operating Procedures. In contrast, Plaintiff’s contention that the grievance
system is unavailable is not substantiated by any evidence. Additionally, though Plaintiff’s
Complaint detailed at length his attempt to grieve his claims, he never mentioned any difficulty
with getting a grievance form or finding someone to accept that form at Smith State Prison until
after Defendants’ Motion to Dismiss was filed. (See Doc. 1, pp. 3–4.) Moreover, Plaintiff’s
grievance filing history demonstrates that he was able to file a grievance and appeals when he
chose to do so. (Doc. 17-9.) Accordingly, the Court should find that the GDOC’s grievance
process was available for Plaintiff to grieve Defendants’ use of force against him. See Wright v.
Langford, 562 F. App’x 769, 776 (11th Cir. 2014) (“[I]t was reasonable for the district court to
find that [plaintiff’s] purported ignorance of the five-day grievance filing period was not
credible, given [plaintiff’s] significant prior experiences filing grievances and lawsuits in federal
court, as well as the jail official’s affidavit stating that each [county] inmate is given a copy of
the Inmate Handbook spelling out the grievance procedure.”)
For all of these reasons, Plaintiff did not properly exhaust his available administrative
remedies regarding his excessive force claims. Consequently, the Court should GRANT this
portion of Defendants’ Motion.

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D.

Whether Plaintiff Exhausted his Administrative Remedies as to his Due
Process Claims

In addition to his excessive force claims, Plaintiff asserts claims arising out of the May 1,
2015, disciplinary hearing regarding the April 24, 2015, incident and resulting punishment he
received at the hearing. The Court sanctioned these claims as plausible due process claims.
Defendants now argue that Plaintiff failed to exhaust his administrative remedies as to these
claims. In support of this argument, Defendants do not contend that Plaintiff should have used
SOP IIB05-0001 to grieve his claims. 4 Rather, Defendants point to SOP IIB02-001, which sets
forth the guidelines and procedures for the GDOC’s disciplinary proceedings. 5
1. SOP IIB02-001’s Disciplinary Hearing Procedures
SOP IIB02-001 provides inmates who are charged with infractions of GDOC rules have a
right to a disciplinary hearing and certain procedural rights and safeguards. (Docs. 17-3; 17-4.)
At a disciplinary hearing, a disciplinary hearing officer presides over the proceedings and makes
a determination as to whether the inmate is guilty of the charged offenses or a lesser included
offense. (Docs. 17-3, pp. 17–24; Doc. 17-4, pp. 18–25.) At the conclusion of the disciplinary
hearing, the disciplinary hearing officer must announce his decision and recommend the
appropriate sanction. (Doc. 17-3, pp. 23–24; Doc. 17-4, pp. 24–25.) After the hearing, the
disciplinary hearing officer must inform the inmate that he or she has a right to appeal the
findings, and the fact that notice was given to the inmate of his right to appeal must be noted on

4

SOP IIB05-0001 specifically provides that an inmate may not use the SOP to file a grievance regarding
disciplinary actions.

5

Defendants filed the version of SOP IIB02-001 that was in effect from September 16, 2009, to April 29,
2015, at Docket Number 17-3. The version in effect from April 30, 2015, to the present is filed at Docket
Number 17-4. Plaintiff’s disciplinary issue arose on May 24, 2015, before the change in the relevant
SOP, but his hearing took place on May 1, 2015, after the revisions. Defendants do not explain which
version of the SOP would have applied to Plaintiff’s disciplinary hearing. However, the Court need not
resolve this issue, as Plaintiff had a right to appeal under either version of the SOP.

15

the disciplinary report. Id. The disciplinary hearing officer must also provide the inmate with a
disciplinary appeal form, (attachment 7 to SOP IIB02-0001), to the inmate at the conclusion of
the disciplinary hearing. (Doc. 17-3, p. 26; Doc. 17-4, p. 25.)
If an inmate seeks to appeal the decision of the disciplinary hearing officer, he must file a
disciplinary appeal form in which he lists his grounds for appeal within the time allowed by
policy (15 days of the date of adjudication by the disciplinary hearing officer under the prior
policy; 5 business days of the date of adjudication by the disciplinary hearing officer under the
revised policy). (Doc. 17-3, p. 27; Doc. 17-4, pp. 25–27.) The Warden or the Warden’s
designee shall make the first appellate decision regarding the inmate’s appeal. (Doc. 17-3,
pp. 26–27; Doc. 17-4, pp. 26–27.) If the inmate is unsatisfied with the first appeal decision, the
inmate may then file a second appeal by mailing the appeal to the Inmate Affairs Unit within the
time allowed by policy (15 days from the date of the first appellate decision under the earlier
version of the SOP; 5 business days of the date of the first appellate decision under the revised
version of the SOP). (Doc. 17-3, pp. 27–28; Doc. 17-4, pp. 27–28.)
2. Plaintiff’s Disciplinary Hearing Procedures and Whether he Exhausted his
Remedies
In line with these procedures, on April 24, 2015, Plaintiff received Disciplinary Report
Number 555580. (Doc. 17-5.) This Report charged Plaintiff with assault on an officer with
injury, failure to follow instructions, and obstructing the duty of staff. (Id. at pp. 1, 7.) The
Report alleged that Plaintiff punched Defendant Shuemake in the torso. Id. Disciplinary Report
555580 and the charges were served on Plaintiff on April 25, 2015. (Id. at p. 1.) On April 30,
2015, Rogers State Prison Correctional Officer Collins completed the Investigative Report. (Id.
at p. 3.)

On May 1, 2015, Rogers State Prison Lieutenant Otis McIntosh served as the

Disciplinary Hearing Officer and conducted a hearing on Disciplinary Report Number 555580.

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(Id. at pp. 1–2, 14.) At the conclusion of the disciplinary hearing, Lieutenant McIntosh found
Plaintiff guilty of the charges and recommended 90 days of telephone restriction, 90 days of
store restriction, 90 days of visitation restriction, and concurrent time in the Tier program. Id.
The records of Plaintiff’s disciplinary hearing indicate that Plaintiff had an advocate at the
hearing and that Plaintiff was advised of his right to appeal the DHO’s recommended
punishment. (Id. at pp. 1–2, 4.)
Defendants argue that, despite the fact that Plaintiff was notified of his right to appeal, he
never filed an appeal under SOP IIB02-001. In support of this contention, Defendants offer the
affidavit of Hilary McCall, the Administrative Assistant at Rogers State Prison. (Doc. 17-2.)
McCall explains the appeal process within SOP IIB02-001 and the events of Plaintiff’s
disciplinary hearing. Id. She states that she has been the Warden’s Designee for receiving and
processing first level disciplinary hearing appeals since January 16, 2013. (Id. at p. 5.) McCall
testifies that inmates may access SOP IIB02-001, as it is located in the library of all GDOC
facilities. (Id. at p. 2.) She further avers that Plaintiff was notified of his right to appeal the
disciplinary hearing officer’s decision, including any contention that the officer did not permit
Plaintiff to call witnesses or introduce evidence, at the hearing. Id. However, despite this advice
of rights, McCall states that Plaintiff never filed an appeal.
Plaintiff has never indicated that he filed an appeal of his disciplinary hearing. Though
his Complaint laid out facts leading up to the hearing, during the hearing, and after the hearing,
he never mentioned that he appealed the hearing officer’s decision. Moreover, in his Response
to Defendants’ Motion to Dismiss, Plaintiff does not address Defendants’ argument that he failed
to exhaust the remedies available under SOP IIB02-001. While Plaintiff states that he attempted
to file a grievance, he does not make any mention that he attempted to appeal the hearing

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officer’s decision. Thus, under the first Turner step, even under Plaintiff’s version of the facts,
he did not exhaust the remedies available to him under SOP IIB02-001.
Moreover, even if the Court were to construe Plaintiff’s allegations that he had difficulty
filing a grievance as also pertaining to an appeal under SOP IIB02-001, that argument would fail
under the second Turner step. As laid out above, Defendants have offered credible evidence that
the procedures of SOP IIB02-001 were available to Plaintiff, but he failed to exhaust them.
Defendants presented documentation, including an advice of rights form signed by Plaintiff,
demonstrating that he was advised of his right to appeal the hearing officer’s decision, but he
failed to do so. (Doc. 17-5, p. 4.)
For all of these reasons, Plaintiff did not exhaust his available administrative remedies
regarding his due process claims, and the Court should GRANT this portion of Defendants’
Motion to Dismiss.
In sum, Plaintiff filed this lawsuit without properly submitting his claims against
Defendants to the prison’s grievance system. An inmate must do more to resolve his dispute
within the literal walls of the prison or at least the figurative walls of the prison system before
seeking relief in the halls of the courthouse. Thus, the Court should DISMISS Plaintiff’s
Complaint for failure to exhaust his administrative remedies.

In light of this ground for

dismissal, the Court need not 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. 6 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
6

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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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. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Defendants’ Motion to Dismiss and Plaintiff’s Response
thereto, there are no non-frivolous issues to raise on appeal, and any appeal would not be taken
in good faith. Thus, the Court should DENY Plaintiff in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Defendants’ Motion
to Dismiss, (doc. 17), DISMISS Plaintiff’s Complaint, without prejudice, based on Plaintiff’s
failure to exhaust his available administrative remedies prior to the filing of his Complaint, and
DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND that the Court
DENY Plaintiff leave to appeal in forma pauperis.

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The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 20th day of September,
2016.

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

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