Thompson v. Georgia Deparment of Corrections et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice the claims of the three (3) other inmates listed on the Complaint form. It is also RECOMMENDED that the Court DISMISS without prejudice Plaintiff's 1 Complaint based on his failure to exhaust his administrative remedies, 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 6/27/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 6/13/2018. (csr)

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

JAMES AARON THOMPSON,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-128

v.
GEORGIA DEPARTMENT OF
CORRECTIONS; CORECIVIC, INC.;
WARDEN ROBERT ADAMS, JR.; and
COMMISSIONER GREGORY DOZIER,
Defendants.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Long Unit in Ludowici, Georgia, filed a Complaint
pursuant to 42 U.S.C. § 1983 contesting certain events which allegedly occurred at Jenkins
Correctional Facility in Millen, Georgia. (Doc. 1.) Plaintiff attempts to bring this cause of
action on behalf of three (3) other inmates. For the reasons set forth below, I RECOMMEND
the Court DISMISS without prejudice the claims of the three (3) other inmates listed on the
Complaint form. I also RECOMMEND the Court DISMISS without prejudice Plaintiff’s
Complaint based on his failure to exhaust his administrative remedies, 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. 1

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A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations marks omitted). A magistrate judge’s report and recommendation
provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers Local Union
349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a district court’s
intent to sua sponte grant summary judgment where a magistrate judge issues a report recommending the
sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678 F. Supp. 2d 1280,

PLAINTIFF’S ALLEGATIONS
In his Complaint, Plaintiff contends he was told on June 13, 2017, that he could “not
offer congregational prayer[]” and that this had been the policy since December 2016. (Doc. 1,
p. 5.) Plaintiff states he received a copy of this policy bearing Defendant Robert Adams’
signature.

According to Plaintiff, he is a practicing Muslim who must perform the

congregational prayer five (5) times a day and must face east. (Id.) Plaintiff contends “their”
resolution is to allow Muslim adherents to pray parallel to their bunks, which prevents him from
facing east during his prayers and from praying in congregation, as the Quran prescribes. (Id.)
Plaintiff avers that, if he prays parallel to his bunk, it will prevent his cellmate from accessing his
bunk, which is a violation of the policy that religious practices should not impose on another
inmate.
Additionally, Plaintiff alleges fourteen (14) Muslim inmates were caught praying in
congregation across three (3) dormitories. Plaintiff contends he and the other inmates were taken
to the segregation unit and placed on pending investigation status for seven (7) days. (Id.)
Plaintiff maintains the Georgia Department of Corrections is responsible for “oppressing” his
right to religious exercise through this policy against congregational prayer, and CoreCivic, Inc.
is responsible for this “oppression” because it enforces this policy.

(Id.)

Plaintiff seeks

1296 (N.D. Ga. 2009) (noting that report and recommendation served as notice that claims would be sua
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is due
to be dismissed. As indicated below, Plaintiff will have the opportunity to present his objections to this
finding, and the presiding district judge will review de novo properly submitted objections. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK, 2012 WL
5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and recommendation
constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable
opportunity to respond). Additionally, Plaintiff has an opportunity to amend his Complaint to correct the
deficiencies noted in this Report and Recommendation. See Fed. R. Civ. P. 15. Should Plaintiff seek to
amend his Complaint, he must file any desired amendment within fourteen (14) days from the date of
this Report and Recommendation.
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compensatory damages and requests that the Georgia Department of Corrections terminate this
policy immediately. (Id. at p. 6.)
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his assets, shows an inability to pay the
filing fee, and also includes a statement of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is
frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a governmental entity. Upon such screening,
the Court must dismiss a complaint, or any portion thereof, that is frivolous, malicious, or fails to
state a claim upon which relief may be granted or which seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a complaint on an application to proceed in forma pauperis. See Fed.
R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . . a
short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

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Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys . . . .”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”).

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DISCUSSION
I.

Plaintiff’s Efforts to Bring Suit on Behalf of Other Inmates
Plaintiff attempts to file a single action on behalf of three (3) other inmates, ostensibly to

circumvent or pro-rate payment of the filing fee. The Prison Litigation Reform Act of 1996
(“PLRA”) provides that a prisoner bringing a civil action in forma pauperis must pay the full
filing fee. See 28 U.S.C. § 1915(b). The Eleventh Circuit Court of Appeals has determined that
the language of the PLRA requires each prisoner to pay the full amount of the filing fee or face
dismissal of his case. Hubbard v. Haley, 262 F.3d 1194, 1197–98 (11th Cir. 2001). Further,
“[a]n individual unquestionably has the right to litigate his own claims in federal court, before
both the district and appellate courts . . . . The right to litigate for oneself, however, does not
create a coordinate right to litigate for others.” Walker v. Brown, No. CV 112-105, 2012 WL
4049438, at *1 (S.D. Ga. Aug.14, 2012) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th
Cir. 1975) (holding that a pro se prisoner may not litigate the interests of other prisoners in class
action)), report and recommendation adopted by 2012 WL 4052038 (S.D. Ga. Sept.13, 2012);
see also Wallace v. Smith, 145 F. App’x 300, 302 (11th Cir. 2005) (per curiam) (same).
As Plaintiff Thompson moved to proceed in forma pauperis and was granted that status,
the Court should DISMISS without prejudice the claims of the other three (3) inmates listed on
the Complaint form.

The Court considers Plaintiff Thompson to be the only Plaintiff for

purposes of this cause of action.
II.

Dismissal for Failure to Exhaust Administrative Remedies
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 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)
(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).
Within the Georgia Department of Corrections, the grievance procedure is a two-step
process.

See Shaw v. Toole, No. 6:14-CV-48, 2015 WL 4529817, at *5 (S.D. Ga.

July 27, 2015), report and recommendation adopted, 2015 WL 5025478 (S.D. Ga. Aug. 24,
2015) (citing Georgia Department of Corrections’ Standard Operating Procedure IIB05-0001).
The process commences with the filing of a grievance, which must be filed within ten (10)
calendar days from “the date the offender knew, or should have known, of the facts giving rise to
the grievance.” Id. The Grievance Coordinator is to screen the grievance to determine whether
the warden should accept the grievance or reject it. Id. The warden has a period of forty (40)
calendar days from the date the inmate gave his grievance to the counselor to respond. An
extension of ten (10) calendar days can be granted once, provided the inmate is advised in

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writing of the extension before the original forty (40) calendar days have expired. Id. 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. The Commissioner has 100 calendar days after receipt to
render a decision. These time limits may be waived for good cause. Id.
Failure to exhaust administrative remedies is an affirmative defense, and inmates are not
required to specially plead or demonstrate exhaustion in their complaint. Jones, 549 U.S. at 216.
However, the normal pleading rules still apply, and when an affirmative defense appears on the
face of a complaint making it clear that a prisoner cannot state a claim for relief, dismissal is
warranted under the screening process set out in 28 U.S.C. § 1915A. Id. at 214–15. Thus, when
a prisoner admits in his complaint that he has not exhausted the grievance process, dismissal is
warranted. See Okpala v. Drew, 248 F. App’x 72 (11th Cir. 2007); Cole v. Ellis, No. 5:10-CV00316-RS-GRJ, 2010 WL 5564632, at *3 (N.D. Fla. Dec. 28, 2010); Rashid v. Liberty Cty. Jail,
CV410-092, 2010 WL 3239241 at *1 n.1 (S.D. Ga. May 3, 2010) (“Nothing in Jones . . . forbids
the Court from dismissing a complaint pursuant to § 1997e(a) if it is clear from the face of the
complaint that the prisoner has not exhausted all administrative remedies available to him.”).
It is apparent from the face of Plaintiff’s Complaint that he did not exhaust his available
administrative remedies prior to filing this lawsuit. Plaintiff admits in his Complaint that he had
not yet received a response to his appeal with the Georgia Department of Corrections concerning
the denial of his grievance at the institutional level. (Doc. 1, p. 4.) The PLRA’s exhaustion
requirement demands that a prisoner “properly take each step within the administrative process.”
Bryant, 530 F.3d at 1378. Plaintiff asserts he submitted his appeal on June 23, 2017. His

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Complaint is dated September 20, 2017, and was filed on September 25, 2017.

The

Commissioner had 100 days from receipt of Plaintiff’s appeal to issue a response, or no earlier
than October 2, 2017. Instead of waiting for the Commissioner’s response or for the time for
response to elapse to fully and properly exhaust his administrative remedies, Plaintiff filed the
instant case.
Accordingly, I RECOMMEND that the Court DISMISS without prejudice Plaintiff’s
Complaint for failure to exhaust administrative remedies.
III.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. County of Volusia, 189 F.R.D. 687,
691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a
frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim
or argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous, and thus,
not brought in good faith, if it is “without arguable merit either in law or fact.” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085,
403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
2

A certificate of appealability is not required in this Section 1983 action.
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Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND the Court DISMISS without prejudice the
claims of the other three (3) inmates listed as plaintiffs on the Complaint form.

I also

RECOMMEND the Court DISMISS without prejudice Plaintiff Thompson’s Complaint based
on his failure to exhaust his administrative remedies, 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
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action.
However, Plaintiff may amend the Complaint to cure any deficiencies noted in this
Report and Recommendation. See Fed. R. Civ. P. 15. Should Plaintiff seek to amend the
Complaint, Plaintiff must file the amended complaint within fourteen (14) days from the date of
this Report and Recommendation.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed

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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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 13th day of June,
2018.

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

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