Timmons v. Reid et al

Filing 30

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Defendants' 15 Motion to Dismiss and DISMISS without prejudice Plaintiff's 1 Complaint for his failure to exhaust his administrative remedies. It is also RECOMME NDED that the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Plaintiff in forma pauperis status on appeal. 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 11/3/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/20/2017. (csr)

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

TIMOTHY TIMMONS,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-58

v.
OFFICER REID; and OFFICER SANDERS,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Ware State Prison in Waycross, Georgia, filed a
cause of action pursuant to 42 U.S.C. § 1983 contesting certain events while he was housed at
Rogers State Prison in Reidsville, Georgia. (Doc. 1.) Defendants filed a Motion to Dismiss,
(doc. 15), to which Plaintiff filed a Response, (doc. 20). Defendants filed a Reply, and Plaintiff
filed a Surreply. (Docs. 21, 22.) For the reasons which follow, I RECOMMEND the Court
GRANT Defendants’ Motion to Dismiss and DISMISS without prejudice Plaintiff’s
Complaint for his failure to exhaust his administrative remedies. I also RECOMMEND the
Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal and DENY Plaintiff in forma pauperis status on appeal.
BACKGROUND
Plaintiff filed this action on May 24, 2016, regarding events that occurred on May 6,
2015. (Doc. 1.) On that date, Defendants Reid and Sanders transferred Plaintiff to the Tattnall
County Jail to be charged with assault on a corrections officer. (Id. at p. 6.) Plaintiff attempted
to step into the transport van unassisted by the officers. However, the milk crate that he used as

a step to get into the van gave way, and Plaintiff fell backwards onto the ground on his left side.
Plaintiff then asked Defendants Reid and Sanders to assist him as he was on the ground in “tears,
agony, and in excruciating pain.” (Id.) Plaintiff also asked Defendants to call an ambulance or
take him to a hospital. However, Defendants refused to assist Plaintiff, ordered him to get into
the transport van, and then “yanked [Plaintiff] up aggressively” and forced him into the van.
(Id.)
Defendants Reid and Sanders then transferred Plaintiff to the Tattnall County Magistrate
Court. Plaintiff states that he asked for medical attention throughout the trip to the courthouse,
but Defendants told him to “shut up” and that he “wasn’t getting any.” (Id. at p. 7.) Plaintiff was
required to walk to the hearing room and stand during the hearing, which caused him great pain.
After the hearing in Tattnall County Magistrate Court, Defendants Reid and Sanders transferred
Plaintiff back to Rogers State Prison. (Id.) Plaintiff states Defendants forced him to walk a long
distance and up two flights of stairs while handcuffed, which caused him great pain. He states
that, while he had to pass medical to get to his unit, Defendants Reid and Sanders refused to take
him to the medical unit and that they laughed at and threatened him. (Id.) Plaintiff states that he
later learned that he suffered a herniated disc, as well as pinched nerves, from the fall.
The Court directed service of Plaintiff’s Complaint on Defendants by Order dated August
23, 2016. (Doc. 10.) Defendants then filed their Motion to Dismiss on November 7, 2016.
(Doc. 15.)
DISCUSSION
In their Motion, Defendants assert Plaintiff failed to exhaust his available administrative
remedies prior to the filing of his Complaint. In response, Plaintiff contends he exhausted his

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administrative remedies as to the assertions he made in his Complaint, to the extent those
remedies were made available to him.
As set forth below, I agree that Plaintiff failed to exhaust his administrative remedies
prior to the filing of his Complaint, and Defendants’ Motion is due to be granted on this basis.
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). “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
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 Court of
Appeals 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. Id. at 1082. If, even under the plaintiff’s version of the facts,

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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. “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.
II.

Exhaustion Requirements
A.

Legal Requirements for Exhaustion

Where Congress explicitly mandates, prisoners seeking relief for alleged constitutional
violations must first exhaust inmate grievance procedures before filing suit in federal court. See
Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) of Title 42 of the United States
Code states, “No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law . . . until such administrative remedies as are available are
exhausted.”

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

administrative remedies is mandatory. 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”). Additionally, the
Supreme Court has “held that the PLRA’s [Prison Litigation Reform Act’s] text suggests no
limits on an inmate’s obligation to exhaust—irrespective of any ‘special circumstances.’ And

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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. ___, 136 S. Ct. 1850, 1856 (June 6, 2016).
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.” 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).
Thus, under the law, prisoners must do more than simply initiate grievances; they must
also appeal any denial of relief through all levels of review that comprise the administrative
grievance process.

Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (“To exhaust

administrative remedies in accordance with the PLRA, 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)

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(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)). 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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B.

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. 15-2, pp. 5–29.) This SOP does not require an
inmate to attempt an informal resolution of his complaint before filing a formal grievance. (Id. at
p. 8.) 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. 9.) 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. 8.) 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. 6.) 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 p. 11.)

A grievance “must” pertain to “a single

issue/incident.” (Id.) 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.)
The Grievance Coordinator is to screen the grievance to determine whether the warden
should accept the grievance or reject it. (Id.) The Warden “should reject the grievance if it . . .
[i]s not filed timely.” (Id.) The warden has a period of forty (40) calendar days from the date the
inmate gave his grievance to the counselor to deliver a decision to the inmate. 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. 14.) 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

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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. 15.) The Commissioner has 100 calendar days after receipt to
render a decision. (Id. at p. 16.) These time limits may be waived for good cause. (Id. at pp. 11,
15.)

Good cause is defined as a “legitimate reason involving unusual circumstances that

prevented the offender from timely filing a grievance or an appeal[,]” such as having a serious
illness or being housed away from a facility covered by this SOP. 1 (Id. at p. 6.) “Where a
[g]rievance is filed in reference to a different facility, the Grievance Coordinator at the
offender’s current facility will retain a copy of the [g]rievance and will forward the [o]riginal
[g]rievance to the Grievance Coordinator at the named facility for processing.” (Id. at p. 18.)
C.

Plaintiff’s Efforts at Exhaustion

Defendants assert that, in order to properly grieve about the events underlying this cause
of action, Plaintiff had to describe the misconduct he complains about and name each person
responsible for the alleged misconduct. (Doc. 15-1, p. 6.) Defendants contend Plaintiff failed to
file any grievances naming either of the Defendants or concerning their alleged behavior.
Rather, Defendants assert Plaintiff claims he filed a grievance on May 5, 2015, and this
grievance could not possibly concern the events giving rise to this cause of action, as those
events allegedly occurred on May 6, 2015, a day later. Defendants also assert Plaintiff filed
Grievance Number 208837 at Smith State Prison on November 16, 2015, which was rejected as
being untimely and for containing more than one issue. Further, Defendants assert Plaintiff
complained about events occurring on April 24, 2015, in that grievance.
1

(Id. at p. 2.)

Under the SOP, all grievances and related documents are to be retained for four (4) years after the final
disposition of the grievance. (Doc. 15-2, p. 19.) The parties failed to submit any documentation relating
to the grievances Plaintiff filed—save a printout of his grievance history and receipts from certain of
Plaintiff’s grievances. Nevertheless, the Court has enough information before it to analyze whether
Plaintiff exhausted his available administrative remedies prior to the filing of his Complaint. Moreover,
Plaintiff does not rebut Defendants’ specific contentions regarding his lack of exhaustion. Rather,
Plaintiff only speaks to whether he had any administrative remedies “available” to him.
8

Defendants state that, to the extent Plaintiff possibly filed a grievance regarding the events
underlying his Complaint, that grievance was rejected as untimely. Thus, Defendants maintain
Plaintiff did not properly exhaust his administrative remedies. (Id. at p. 6.)
In response, Plaintiff avers he attempted to turn in a grievance regarding the events of
May 6, 2015, on May 7, 2015, but he was informed there was no counselor available and he
could not give his grievance to an officer. (Doc. 20, p. 1.) Plaintiff maintains he was placed in
the Tier II unit at Smith State Prison upon his transfer from Rogers State Prison on May 7, 2015,
and was denied contact with anyone. Plaintiff also states, however, he asked the chief counselor
if she would take his grievance. When she asked him what the grievance concerned, she
informed him he could not file a grievance at one institution regarding events occurring at
another institution. (Id.) Plaintiff contends this is the reason he did not file a timely grievance
concerning the events giving rise to his Complaint. Additionally, Plaintiff alleges staff at Smith
State Prison created inordinate delays in getting an appeal form to him before it was sent to
Rogers State Prison, thus hindering his ability to fully exhaust his administrative remedies. (Id.
at p. 5.)
Defendants counter that, by Plaintiff’s own admission, he filed two grievances: 1) a
grievance dated May 5, 2015, which could not have concerned events occurring on May 6, 2015;
and 2) a grievance dated November 16, 2015, which was untimely. Thus, Defendants assert
Plaintiff could not have exhausted his administrative remedies at the first Turner step. At the
second Turner step, Defendants state Plaintiff’s assertions cannot be accepted as true, because
either Plaintiff spoke to a counselor who would not accept his grievances or he did not speak to a
counselor or anyone else about filing a grievance upon his arrival at Smith State Prison.
(Doc. 21, p. 3.)

Defendants aver Plaintiff’s exhibits show he attempted to exhaust his

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administrative remedies relating to events that occurred on April 24, 2015, but he failed to
provide any evidence that he attempted to file a grievance regarding the May 6, 2015, events.
Specifically, Defendants note the grievance and appeal form Plaintiff attached to his Response
state there was one (1) unaccounted for grievance—the one Plaintiff alleged was filed on May 5,
2015. Defendants reiterate that the May 5, 2015, grievance could not have pertained to the May
6, 2015, events, and neither the grievance nor the appeal Plaintiff filed mentions Defendants or
the events of May 6, 2015. (Id. at p. 4.)
Plaintiff asserts he filed or attempted to file three (3) grievances: 1) a grievance dated
May 5, 2015, concerning the events of April 24, 2015; 2) a grievance dated November 16, 2015,
in which he stated he had not been seen by medical staff; and 3) a grievance dated January 21,
2016, which was an out-of-time grievance concerning the events of May 6, 2015, and which is
not shown on his grievance history printout. (Doc. 22, pp. 1–2.) Plaintiff contends that, when
the chief counselor told him he could not file a grievance at one institution concerning events
occurring in another, he took her at her word and did not speak to anyone else about the matter.
It was not until he was released from segregation, Plaintiff asserts, that he asked about the
grievance he tried to file on May 5, 2015. Plaintiff contends he later asked another counselor
whether he could file a grievance at one institution regarding another institution. When that
counselor informed Plaintiff he could do so, he then filed a grievance on November 16, 2015.
(Id. at p. 3.) 2

2

In his Complaint, Plaintiff contended he filed a grievance at Rogers State Prison on May 5, 2015,
regarding events alleged to have occurred on April 24, 2015. Plaintiff asserted he filed another grievance
at Smith State Prison on November 16, 2015, based on instructions from Ms. Johnson. (Doc. 1, p. 3.)
Plaintiff also asserted he received a response to this grievance on January 21, 2016, and was informed his
grievance was rejected as untimely and for having raised more than one issue. (Id. at p. 4.) Plaintiff
contended he gave his appeal of that rejection to counselor Washington on January 25, 2016, which was
given back to Plaintiff the next day because he did not attach a copy of the warden’s response. On the
other hand, Plaintiff admitted he did not appeal and that no adverse decision was rendered. (Id. at p. 5.)
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At the first step of the Turner analysis, Plaintiff exhausted the administrative remedies
available to him as to the events of May 6, 2015. According to Plaintiff, he was told at or soon
after his arrival at Smith State Prison that he could not file a grievance at one institution
concerning events which occurred at another institution. However, under the more exacting
crucible of Turner’s second step, Plaintiff’s claim of exhaustion withers.
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.
Ross, ___ U.S. at ___ 136 S. Ct. at 1856–57 (“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 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., ___ U.S. at
___, 136 S. Ct. at 1859 (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.

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In his pleadings, Plaintiff maintains he attempted to exhaust his administrative remedies
regarding the events underlying this cause of action but was told he could not give his grievance
to an officer at Rogers State Prison before he was transferred to Smith State Prison. Plaintiff also
maintains he was told at Smith State Prison that he could not file a grievance at one institution to
complain about events occurring at another institution. (Doc. 20, p. 1.) However, by Plaintiff’s
own admissions and the parties’ submissions to the Court, it is evident Plaintiff did not properly
or fully exhaust his available administrative remedies pertaining to the events of May 6, 2015,
prior to filing his Complaint. While the Court must accept Plaintiff’s assertions regarding
exhaustion as true at the first step of the Turner analysis, it is under no duty to do so at the
second Turner step. Instead, the Court must resolve any factual dispute between the parties to
determine whether Plaintiff exhausted his available administrative remedies.
In this regard, Defendants submitted the Affidavit of Lee Clark, the Deputy Warden of
Care and Treatment and overseer of the grievance procedures at Smith State Prison. (Doc. 15-2.)
Deputy Warden Clark declares every offender is given an oral explanation of the grievance
procedures and a copy of the orientation handbook, which includes a copy of the grievance
procedures, upon his or her entry into the Georgia Department of Corrections’ system. (Id. at
p. 2.)

Deputy Warden Clark also declares Plaintiff filed four (4) grievances after he was

transferred to Smith State Prison, but he failed to file a grievance concerning the events of May
6, 2015, involving the Defendants in this case. (Id. at pp. 3–4.)
The Court notes Plaintiff’s contentions that he attempted to file a grievance regarding the
events of May 6, 2015, and was told at Rogers State Prison he could not give his grievance to an
officer and was told at Smith State Prison he could not file a grievance while at Smith State
Prison regarding events which occurred at Rogers State Prison.

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Nevertheless, Plaintiff’s

contentions are contradicted by his own assertions and by the evidence of record. Plaintiff
maintains he was placed in segregation upon his arrival at Smith State Prison and was denied
contact with anyone. In almost the same breath, however, Plaintiff asserts he was able to speak
with Chief Counselor Cooke, who told him he could not file a grievance at one institution to
grieve about conditions at another institution. (Doc. 20, p. 1.) Plaintiff offers his alleged
inability to file his grievance at Smith State Prison concerning events occurring while he was
housed at Rogers State Prison on May 6, 2015, as the reason he did not file a timely grievance as
to these events. (Id.) However, Plaintiff also contends he asked another counselor whether it
was true that he could not file a grievance at one institution regarding events at another
institution upon his release from segregation. Upon learning this statement was not true, Plaintiff
filed Grievance Number 208837 on November 16, 2015, which concerns claims of excessive
force and the denial of medical care occurring on April 24, 2015, and which Plaintiff asserts he
attempted to file on May 5, 2015.

(Doc. 22, p. 3.)

This grievance was rejected at the

institutional level as being untimely and for raising more than one issue. Plaintiff appealed this
rejection. (Doc. 15-2, pp. 3–4.)
The filing of Grievance Number 208837 cannot be considered to fulfill the exhaustion
requirements as to the events of May 6, 2015, for several reasons. First and foremost, Grievance
Number 208837 concerns events occurring on April 24, 2015, and Plaintiff admits these events
are what he tried to file a grievance about on May 5, 2015. Plaintiff’s purportedly failed attempt
at filing a grievance on May 5, 2015, relates to events which occurred a day before the events
giving rise to this cause of action. Secondly, Grievance Number 208837 was rejected as being
untimely and for raising more than one issue, in contravention of the applicable SOP. Plaintiff’s
appeal of this rejection was denied. (Doc. 20-1, p. 2.) A rejection of a grievance for violation of

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the applicable grievance procedure cannot be deemed “proper” exhaustion. Woodford, 548 U.S.
at 95 (noting that a prisoner whose grievance is rejected as untimely or as otherwise failing to
satisfy the applicable grievance procedures cannot have exhausted, as that would serve to thwart
the administrative processes and render the PLRA’s “exhaustion scheme wholly ineffective[]”).
Further, if November 16, 2015, truly was Plaintiff’s first opportunity to file a grievance
regarding the May 6, 2015, events, he failed to do so and instead chose to file an out-of-time
grievance concerning events alleged to have occurred on April 24, 2015.
Moreover, Plaintiff avers he attempted to file a grievance concerning the events of May
6, 2015, by filing an out-of-time grievance on January 25, 2016. Plaintiff states he filed three
grievances: 1) on May 5, 2015, concerning the events of April 24, 2015; 2) on November 16,
2015, to complain about not being seen in medical; and 3) on January 21, 2016, to grieve about
the events of May 6, 2015. (Doc. 22, p. 1.) As partial support for these averments, Plaintiff
submitted a receipt for a grievance at the counselor’s level dated January 25, 2016. (Doc. 20-1,
p. 1.) However, Plaintiff also contends this grievance “mysteriously disappeared” and is not
listed on his grievance history printout. (Doc. 20, p. 5.) Even accepting as true Plaintiff’s
assertion that he submitted a grievance to a counselor on January 25, 2016, concerning the events
of May 6, 2015, any such grievance would have been rejected as being untimely filed under the
applicable SOP. What is more, Plaintiff fails to explain why he waited more than two (2)
months after he filed Grievance Number 208837 and more than eight (8) months after the events
of May 6, 2015, to file a grievance concerning those events.

Accordingly, this alleged

submission cannot satisfy the exhaustion requirements. Even more telling is Plaintiff’s own
admission that he made no attempt to exhaust his administrative remedies as to the May 6, 2015,
events until January 2016, at which time he claims he submitted a grievance.

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Plaintiff does not present credible evidence that he is entitled to one of the exceptions to
availability the Supreme Court espoused in Ross. Rather, the Court finds Defendants’ account of
the availability of remedies more credible and consistent than Plaintiff’s account. Plaintiff
ostensibly alleges staff at both Rogers and Smith State Prisons frustrated his efforts at
exhaustion, but Plaintiff’s own actions once any putative previously-unavailable remedies
became available undermines his contentions in this regard. As noted above, Plaintiff chose not
to file a grievance regarding the May 6, 2015, events at the first opportunity. Instead, Plaintiff’s
assertions in this regard reveal that he waited more than two (2) months’ time to submit any such
grievance, despite having filed Grievance Number 208837 on November 16, 2015, relating to
events which pre-date the claims in this cause of action. 3 In addition, Plaintiff’s accounts as to
why he did not exhaust his administrative remedies are contradictory, and he sets forth nothing
more that conclusory statements regarding prison staff’s alleged efforts to hinder his attempts at
exhaustion. Thus, Plaintiff failed to exhaust his administrative remedies as to the events giving
rise to Plaintiff’s Complaint. Consequently, the Court should GRANT Defendants’ Motion to
Dismiss and DISMISS without prejudice Plaintiff’s Complaint based on his failure to exhaust
his administrative remedies.
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. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not taken in good faith “before or after the notice of appeal is filed”).

3

Neither Plaintiff nor Defendants assert Plaintiff attempted to have the time limits waived for “good
cause”, which would have been another remedy “available” to Plaintiff. (Doc. 15-2, pp. 6, 11, 15.)
4

A certificate of appealability is not required in this Section 1983 action.
15

An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the foregoing reasons, I RECOMMEND the Court GRANT Defendants’ Motion to
Dismiss and DISMISS without prejudice Plaintiff’s Complaint based on his failure to exhaust
his administrative remedies. I also RECOMMEND the Court DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate judgment of dismissal and DENY Plaintiff leave to
appeal in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address

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any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 20th day of October,
2017.

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

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