Opinion
5:19-cv-00236-MTT-CHW
07-14-2021
YUSUFU KUUMBA BEY, Plaintiff, v. GEORGIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
ORDER AND RECOMMENDATION
Charles H. Weigle United States Magistrate Judge
Presently pending before the Court are Defendants' motions for summary judgment. (Docs. 62, 79). Also pending before the Court are Plaintiff's motion to cease and desist retaliation (Doc. 64), Plaintiff's motion for summary judgment (Doc. 65), and Plaintiff's motion to compel discovery (Doc. 69). For the reasons discussed herein, it is RECOMMENDED that Plaintiff's motions (Docs. 64, 65) be DENIED, and that Defendants' motions for summary judgment (Docs. 62, 79) be GRANTED in part and DENIED in part. Additionally, Plaintiff's motion to compel (Doc. 69) is DENIED.
BACKGROUND
Plaintiff Yusufu Kuumba Bey, an inmate at Macon State Prison, filed this 42 U.S.C. § 1983 complaint, raising claims that Defendants violated his religious rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by refusing to allow Plaintiff to wear his hair in dreadlocks and by forcibly cutting off his dreadlocks. (Doc. 1, pp. 3- 5). Plaintiff also alleges that his transfer to Macon State Prison, and continued incarceration there, violated his due process rights under the Fourteenth Amendment, as well as the Eighth Amendment's protection from cruel and unusual punishment. (Id.). The relevant facts are as follows.
Plaintiff filed an amended complaint on November 25, 2019. (Doc. 34). Plaintiff's amended complaint “specifically refers to” his original complaint in accordance with Eleventh Circuit case law. See Varnes v. Local 91, 674 F.2d 1365, 1370 n.6 (11th Cir. 1982).
On September 4, 2018, a riot began at Autry State Prison where Plaintiff was incarcerated at the time. (Doc. 79-7, ¶ 7). Upon investigation, the warden found Plaintiff to be “a major participant in” the riot and deemed him “a threat to the safe and secure operation of the facility[.]” (Doc. 79-2, pp. 19-20). Plaintiff contests his involvement in the disturbance at Autry State Prison. By Plaintiff's account, he was not housed in the building where the riot occurred. (Plaintiff's Dep., Doc. 79-1, pp. 10-12). Nevertheless, it was recommended that Plaintiff be placed in Tier II Administrative Segregation. (Doc. 79-2, p. 21). Plaintiff received a disciplinary report for his involvement in the riot and was transferred to Macon State Prison for Tier II placement on September 12, 2018. (Id. at 19, 22). Plaintiff denies having received this disciplinary report. (Doc. 79-1, p. 86).
Once Plaintiff arrived at Macon State Prison, Defendants Eadie, Jefferson, and the unknown CERT Officers forced a fellow inmate to shave off Plaintiff's dreadlocks. (Doc. 1, p. 3; Doc. 79-1, pp. 51-53). When Plaintiff attempted to pick his “locks up off the floor because they[ are] not supposed to be on the ground[, ]” Defendants stopped him. (Doc. 79-1, p. 53). Plaintiff was then placed in a cell in Tier I, pending Tier II availability. (Doc. 79-3, p. 46). Plaintiff received the assignment memo for this placement on September 12, 2018, and made no comment during the hearing. (Id.) On September 14, 2018, Plaintiff moved to Tier II. (Id. at 49). Plaintiff again received the assignment memo for this placement and made no statement at the hearing review. (Id. at 49-50). Plaintiff appealed his placement on September 18, 2018, but his appeal was denied on September 24, 2018. (Id. at 51).
Plaintiff submitted a grievance on October 16, 2018, complaining that the forcible cutting off of his dreadlocks violated his religious rights as a Rastafarian. (Doc. 62-1, p. 41). On November 5, 2018, this grievance was denied based on the GDC's three-inch hair length policy. (Id. at 43). Although Defendants contend that Plaintiff failed to appeal, the grievance form indicates an appeal was received on December 6, 2018. (Id. at 41).
Plaintiff also filed a grievance on December 12, 2018, claiming that he had been unlawfully placed in twenty-four-hour lockdown without access to outdoor recreation. (Id. at 50). On January 4, 2019, Plaintiff's grievance was denied because it contained more than one issue and was not the proper mechanism for challenging administrative segregation placement. (Id. at 51). Plaintiff appealed on January 14, 2019, and that appeal was denied on February 21, 2019. (Id. at 48-49).
On December 14, 2018, Plaintiff received his first 90-day assignment review hearing. (Doc. 79-3, p. 55). It was recommended that Plaintiff move “to a higher phase, Phase 2, due to improved behavior.” (Id.) Even so, Plaintiff appealed, again contesting his assignment in Tier II as unwarranted. (Id. at 56). The warden agreed with the recommendation to move Plaintiff to Phase 2, and denied Plaintiff's appeal. (Id.) On March 21, 2019, at his next 90-day review hearing, Plaintiff was recommended for transfer to Phase 3, based on his good behavior. (Doc. 79-3, p. 64). Plaintiff made no comment at the hearing, but rather appealed the recommendation. (Id. at 62). The warden upheld the recommendation to move Plaintiff to Phase 3. (Id.)
On June 17, 2019, Plaintiff filed a grievance complaining that his Tier II placement was unlawful and violated his due process rights. (Doc. 62-1, p. 55). This grievance was denied on July 15, 2019, because Plaintiff did not follow the correct procedure for challenging housing assignments. (Id. at 56). Plaintiff filed an appeal on July 29, 2019, but that appeal was denied. (Id. at 53-54). Plaintiff submitted another grievance on June 21, 2019, complaining about the unsanitary conditions in the Tier II showers. (Id. at 60). Plaintiff's grievance was denied on July 17, 2019. (Id. at 61). Plaintiff appealed, but that appeal was denied. (Id. at 58-59).
On August 16, 2019, it was recommended that Plaintiff move to Tier I, to be monitored for thirty days, and then to the general population. (Doc. 79-3, p. 61). Plaintiff made no comment regarding this recommendation at the 90-day review hearing. (Id.) On October 2, 2019, Plaintiff returned to general population. (Doc. 79-1, pp. 119-20; Doc. 79-7, ¶ 77).
The parties have now filed cross motions for summary judgment. Defendants first moved for summary judgment based on exhaustion and Eleventh Amendment immunity. (Doc. 62). Plaintiff responded and moved for summary judgment against all Defendants. (Doc. 65). Defendants responded to Plaintiff's motion and further moved for summary judgment based on qualified immunity. (Doc. 79). Plaintiff timely responded to Defendants' motion for summary judgment. (Doc. 82). Plaintiff has also filed a motion to cease and desist (Doc. 64), and a motion to compel. (Doc. 69). Defendants have responded to both of Plaintiff's motions. (Docs. 72, 76).
Plaintiff's brief reads more as a response to Defendants' first summary judgment motion, due to the arguments Plaintiff has asserted challenging the failure to exhaust defense. (See Doc. 65-1, pp. 1-3). Thus, for purposes of this Recommendation, Plaintiff's arguments regarding exhaustion are considered as responses to Defendants' first motion for summary judgment, and the arguments on the merits as Plaintiff's cross-summary judgment motion.
Plaintiff's motion for summary judgment is deficient in two ways. First, Plaintiff failed to attach a separate and concise statement of numbered material facts to his motion for summary judgment, as required by Local Rule 56. Plaintiff's failure in this regard constitutes an independent ground for denying his motion. See, e.g., White v. Dep't of Human Res., 2013 WL 3816606 at *1 (M.D.Ga. July 22, 2013). Second, Plaintiff's filings were not made under oath. “Although pro se litigants are not held to the same standards of compliance with formal or technical pleading rules applied to attorneys, [the courts] have never allowed such litigants to oppose summary judgments by the use of unsworn materials.” Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980) (emphasis added). Plaintiff attempts to justify his failure in this regard by stating that “he does sign all documents under 28 U.S.C. [§] 1746(1) with his signature which is supposed to put the document under oath.” (Doc. 91, p. 1). This is insufficient. “Federal law does provide an alternative to making sworn statement, but requires that the statement include a handwritten averment, signed and dated, that the statement is true under the penalties of perjury.” Slaughter v. Dooly County, 2007 WL 2908648, at *10 (M.D.Ga. Sep. 28, 2007) (citing Gordon, 633 F.2d at 123). Nevertheless, because Plaintiff corroborated many of his arguments in his deposition, there is no need to require Plaintiff “to correct the deficiencies[.]” Gordon, 622 F.2d at 123; see also Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir. 2019).
PLAINTIFF'S MOTION TO CEASE AND DESIST
Plaintiff has filed a motion to cease and desist, seeking to halt the alleged ongoing violations to his rights under the First Amendment, RLUIPA, due process clause, and Fourteenth Amendment. (Doc. 64, p. 1). To the extent the Court construes this motion as a request for a preliminary injunction, it is RECOMMENDED that Plaintiff's motion be DENIED.
To obtain a preliminary injunction, Plaintiff must show: “(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003). “The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant ‘clearly carries the burden of persuasion' as to the four prerequisites.” U.S. v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting Canal Authority v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974)). Plaintiff has failed to analyze the relevant legal standard. In denying his first preliminary injunction motion, the Court specifically advised Plaintiff to support a renewed “motion with specific citations to relevant evidence.” (Doc. 57, p. 2). Plaintiff's current motion fails to do so, and thus, he has failed to meet his burden under the preliminary injunction standard.
PLAINTIFF'S MOTION TO COMPEL
Plaintiff has also filed a motion to compel Defendants to (1) answer his second set of interrogatories, (2) produce documents relating to Plaintiff's involvement in the disturbance on September 4, 2018, and relating to Plaintiff's religious accommodation requests, and (3) pay Plaintiff the expenses incurred in moving to compel. (Doc. 69, p. 1). For three reasons, Plaintiff's motion is DENIED.
First, Plaintiff's motion to compel discovery is untimely. In accordance with the Court's scheduling order, the discovery period expired on October 5, 2020. (Doc. 57, p. 1). Plaintiff filed his motion to compel on October 7, 2020. (Doc. 69, p. 1). Plaintiff has provided no explanation for missing the Court's deadline and no explanation as to why he did not request an extension of the discovery period. Therefore, Plaintiff's motion is untimely. See El-Saba v. Univ. of S. Alabama, 738 Fed.Appx. 640, 645 (11th Cir. 2018) (“The district court was well within its discretion to deny El-Saba's motion to compel as untimely”), cert. denied, 139 S.Ct. 942 (2019).
Second, this Court does not entertain motions to compel absent a certificate that the movant first attempted to confer, in good faith, with the opposing parties to seek the requested information without court action. Fed.R.Civ.P. 37; Local Rule 37. Plaintiff's motion is unaccompanied by such a certificate. The failure to do so provides the Court with another reason to deny Plaintiff's motion to compel. See Samadi v. Bank of America, N.A., 476 Fed.Appx. 819, 821 (11th Cir. 2012) (“The district court was not required to grant Samadi's motion to compel when he failed to certify that he had conferred in good faith with counsel for the Bank”) (citation omitted).
Finally, Defendants assert that Plaintiff has received the requested discovery. (Doc. 76, p. 1). According to Defendants, during the transition into working remotely due to the pandemic, the requested discovery responses “were misplaced.” (Id.) Upon learning of this oversight, Defendants promptly responded to Plaintiff's requests. (See Doc. 76-1, pp. 2-16). Accordingly, no compulsive discovery relief is warranted.
SUMMARY JUDGMENT STANDARD
A party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue of fact is ‘material' if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case.” Allen v. Tyson foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party; however, “the mere existence of a scintilla of evidence in support of the position will be insufficient.” Johnson v. Bd. of Regents of Univ. of Georgia, 263 F.3d 1234, 1243 (11th Cir. 2001) (quoting City of Delray Beach v. Agricultural Ins. Co., 85 F.3d 1527, 1530 (11th Cir. 1996)).
The party moving for summary judgment bears the burden of informing the Court of the basis for its motion, and of citing “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). In resolving motions for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party, which requires the Court to believe the evidence provided by the nonmovant and draw all justifiable inferences in the nonmovant's favor. Tolan v. Cotton, 572 U.S. 650, 657 (2014); Anderson, 477 U.S. at 255. “Inferences based on speculation, ” however, “will not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016) (citation and internal quotations omitted).
“The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion.” Benning v. Georgia, 845 F.Supp.2d 1372, 1375 (M.D.Ga. Jan 13, 2012) (citing Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005)). “Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984). The Court “consider[s] each motion on its own merits, resoling all reasonable inferences against the party whose motion is under consideration.” Benning, 845 F.Supp.2d at 1375-76 (citation omitted); see also Anderson, 477 U.S. at 255.
ANALYSIS
I. Religious Freedom Claims
Plaintiff seeks relief under RLUIPA and the First Amendment's Free Exercise Clause. Both sources of law protect the exercise of sincerely held religious beliefs from being “substantially burdened” by state action. See Robbins v. Robertson, 782 Fed.Appx. 794, 802 n.5 (11th Cir. 2019) (citing Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1226 (11th Cir. 2004). Plaintiff is a Rastafarian Nazarene-a category of the Rastafarian faith. (Doc. 1, p. 3; Doc. 79-1, p. 27). Traditionally, Rastafarians are forbidden from cutting their hair and must grow it into natural dreadlocks. (Doc. 79-1, pp. 29-33). According to Plaintiff, “[t]he longer the dreadlocks [the] more dedication that you are showing to the creator.” (Id. at 29). Plaintiff has attempted to conform to this religious tenet while incarcerated at GDC; however, by Plaintiff's account, Defendants have forcibly cut off his dreadlocks due to the GDC's grooming policy. (Doc. 1, p. 3). Defendants do not argue that Plaintiff's religious beliefs are not sincerely held or were not substantially burdened by the grooming policy. (See Doc. 79, p. 12). Thus, for purposes of summary judgment, Plaintiff has established that his Rastafarian belief to grow his hair into dreadlocks is sincerely held and has been substantially burdened by Defendants' three-inch hair length policy.
A. First Amendment
The First Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. Prisoners “retain protections afforded by the First Amendment, ” but such protections may be limited “from the fact of incarceration and from valid penological objectives[.]” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). When an inmate challenges a prison regulation under the First Amendment's Free Exercise clause, the Court must “afford appropriate deference to prison officials” such that “the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 349 (citation and internal quotations omitted). To determine the reasonableness of a prison regulation, the Court must consider the four factors: “(1) whether there is a valid, rational connection between the regulation and a legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the asserted constitutional right that remain open to the inmates; (3) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, inmates, and the allocation of prison resources generally; and (4) whether the regulation represents an exaggerated response to prison concerns.” Hakim v. Hicks, 223 F.3d 1244, 1247-28 (11th Cir. 2000) (citations and internal quotations omitted).
1. Motions for Summary Judgment
Plaintiff argues that he should be granted summary judgment on his First Amendment claim because “the prison's grooming regulation interfered with the free exercise of his religion's heritage.” (Doc. 65-1, p. 4). Defendants on the other hand move for summary judgment on Plaintiff's First Amendment claim based on Plaintiff's failure to challenge the grooming policy as unrelated to legitimate prison concerns. (Doc. 79-6, pp. 19-20). Even when the facts are construed in Plaintiff's favor, Defendants have demonstrated no genuine issue of material fact exists with respect to Plaintiff's First Amendment claim.
Defendants assert that the three-inch grooming policy is reasonably related to the penological interests of “hygiene and operational needs[, ]” “budgetary and staffing realities[, ]” and “safety and security needs” such as identifying inmates both inside and outside of the prison and preventing the concealment of contraband or weapons. (Doc. 79-7, ¶¶ 9-10, 35-40, 50-53). Not only does Defendant Holt's declaration confirm such penological interests, (see Doc. 79-2, ¶¶ 14-15, 40-45, 55-58), but the Eleventh Circuit has previously upheld such interests as legitimate. See Knight v. Thompson, 797 F.3d 934, 945 (11th Cir. 2015); Martinelli v. Dugger, 817 F.2d 1499, 1506-07 (11th Cir. 1987) (superseded by statute); Harris v. Chapman, 97 F.2d 499, 501 (11th Cir. 1996); Shabazz v. Barnauskas, 790 F.2d 1536, 1538 (11th Cir. 1986); Maimon v. Wainwright, 792 F.2d 133 (11th Cir. 2007); Brunskill v. Boyd, 141 Fed.Appx. 771, 774-75 (11th Cir. 2005). Without providing evidence to the contrary, Plaintiff has failed to demonstrate a dispute of material fact regarding the legitimate penological interests underlying the ban on hair longer than three inches.
B. RLUIPA
RLUIPA “protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). RLUIPA affords prisoners “greater protection for religious exercise than is available under the First Amendment.” Holt v. Hobbs, 135 S.Ct. 853, 859-860 (2015). To achieve this greater protection, RLUIPA requires the government to justify any substantial burden on a prisoner's religious exercise by demonstrating that it is (1) in furtherance of a compelling governmental interest and (2) the least restrictive means of furthering said interest. Id. at 860.
1. Plaintiff's Motion for Summary Judgment
Plaintiff has moved for summary judgment on his RLUIPA claim, arguing that the GDC's grooming policy fails to provide the least restrictive means of furthering the State's interests. (Doc. 65-1, p. 4). Construing all evidence in Defendants' favor, a reasonable jury could find that Defendants have provided the least restrictive means of furthering their prison interests through the grooming policy.
Plaintiff argues that GDC could further their penological interests by requiring inmates to wear their hair in ponytails, rather than a mandating a maximum hair length. (Doc. 65-1, p. 7). Plaintiff cites Benjamin v. Coughlin, 905 F.2d 571 (2d Cir. 1990) in support thereof. In Benjamin, the plaintiffs adhered to the Rastafarian religion and followed the belief to grow their hair in dreadlocks. Benjamin, 905 F.2d at 573. They argued that the prison's policy that “all newly admitted males submit to a haircut” violated their right to the free exercise of religion. Id. The prison defendants “maintained that the haircut highlights an inmate's facial and cranial features in the photograph, and thus facilitates recapture in the event of an escape.” Id. at 575. The Second Circuit disagreed and held that “tying plaintiffs' hair in pony tails adequately accommodates the interests of prison authorities in revealing an inmate's cranial and facial features.” Id. at 577. As persuasive authority, the Second Circuit's opinion is distinguishable for two reasons.
First, the prison defendants in Benjamin were not concerned with the same penological interests as Defendants are here. The prison defendants in Benjamin were solely concerned with identifying prisoners should they escape, whereas Defendants in this case have implemented the three-inch hair length policy to control contraband, violence, hygiene, and costs. Second, the Eleventh Circuit's opinion in Knight is instructive in that it “suggests that the practice of identifying prisoners within the prison context by cross-referencing a portfolio of photographs is unworkable.” Gholston, 2019 WL 5067201 at *7 (citing Knight, 797 F.3d at 945-46). As the court found in Knight, Plaintiff's suggestion that putting hair in a ponytail for identification photo purposes does not negate the remaining security and hygienic concerns associated with long hair. See Knight, 797 F.3d at 945 (“[E]ven assuming that the proposed alternative could eliminate the ADOC's concerns as to concealment of weapons and contraband and inmate identification, Plaintiffs' proposed alternative does nothing to assuage the ADOC's concerns about gang-formation and hair-pulling during fights, or the concealment of infections and infestations.”).
To the extent that Plaintiff argues that other jurisdictions' decisions to allow dreadlocks should require Defendants to do so as well, the record at summary judgment indicates a dispute of material fact regarding Plaintiff's claims. First, Plaintiff states that he was permitted at Autry State Prison and Augusta State Medical Prison to wear his dreadlocks and grow them to whatever length he desired. (Doc. 91, p. 2). The evidence, however, suggests otherwise. Both prisons are within the GDC, and thus follow the GDC's Standard Operating Procedures-including the three-inch hair length policy. Plaintiff even admits to receiving a haircut at both prisons. (Doc. 79-1, pp. 7, 11). There is also evidence in the record that Plaintiff has attempted to be exempted from the grooming policy since 2009. (See Doc. 87-3, p. 3-24). All of this suggests that Plaintiff was not allowed to grow his hair longer than the three-inch required length while incarcerated at Autry State Prison or Augusta State Medical Prison.
2. Defendant's Motion for Summary Judgment
Because there are genuine issues of material fact, a reasonable jury could also conclude that GDC's grooming policy is not the least restrictive means of furthering Defendants' compelling state interests.
Defendants have moved for summary judgment on Plaintiff's RLUIPA claim based on arguments rooted in “broadly formulated interest[s.]” Holt v. Hobbs, 135 S.Ct. 853, 863 (2015) (internal punctuation omitted). Specifically, Defendants argue that the alternative proposed by Plaintiff to wear lengthy, unshorn dreadlocks s inconsistent with the compelling state interests of security, hygiene, costs, and violence. (Doc. 79-6, p. 17). As Defendants point out and the Court has acknowledged, these interests have been upheld time and again by the Eleventh Circuit. See Knight, 797 F.3d at 944. Although “security and safety, and perhaps even hygiene, are compelling government interests, ” in the context of RLUIPA, “the Defendants must do more than simply offer conclusory statements that a limitation on religious freedom is required for security, health, or safety in order to satisfy their burden.” Benning v. Georgia, 845 F.Supp.2d 1372, 1382 (M.D.Ga. 2012) (citing Cutter, 544 U.S. at 722-23). “RLUIPA, like RFRA, contemplates a more focused inquiry and requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person-the particular claimant whose sincere exercise of religion is being substantially burdened.” Holt v. Hobbs, 574 U.S. 352, 362-63 (2015) (citations and internal quotations omitted). Thus, the Court must proceed to the second prong of the RLUIPA analysis-whether refusing Plaintiff an exemption based on GDC's three-inch hair length policy is the least restrictive means of furthering the compelling state interests of security, violence, hygiene, and costs.
Two arguments asserted by Defendants are unavailing. First, Defendants argue that they need only refute the alternatives proposed by Plaintiff to meet the least restrictive means burden. (Doc. 79-6, pp. 14-17). This is not entirely correct. See Ray v. Commissioner, Alabama Department of Corrections, 915 F.3d 689, 701 (11th Cir. 2019) (finding the district court erred when it “improperly shifted the burdens surrounding compelling interest and least restrictive means onto” the plaintiff). The United States Supreme Court has made clear that “[t]he least-restrictive-means standard is exceptionally demanding[.]” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728 (2014). It is the government's burden-not Plaintiff's-to “show[] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y.]” Id. “In deciding whether a policy is the least restrictive means, courts must inquire into ‘whether efficacious less restrictive measures actually exist.'” Smith v. Commissioner, Alabama Department of Corrections, 844 Fed.Appx. 286, 292 (11th Cir. 2021) (quoting Knight, 797 F.3d at 946-47) (emphasis in original).
Second, to the extent Defendants argue that Knight instructs the Court to grant their summary judgment motion, the Court disagrees. According to Defendants, Plaintiff raises the same exemption asserted by the claimant in Knight. As in Knight, Plaintiff seeks to grow his hair longer than the grooming policy permits. In this case, however, he also requests an exemption to grow lengthy dreadlocks. Defendants assert that this exacerbates the situation, but Plaintiff responds that in fact “nothing can fit in a lock[.]” (Doc. 79-1, p. 22). Moreover, Knight was decided after a bench trial at which the District Court was able to weigh the evidence and make credibility findings in order to reach a decision. Thus, it is not clear that the decision in Knight mandates summary judgment in this case.
Turning to the crux of Defendants' argument that the grooming policy is the only manner in which to further the asserted interests, Defendants contend that the three-inch hair length policy helps prevents two security risks-contraband and identification issues upon escape. Defendants assert that “[t]he ability to change one's appearance by shaving the head hair could make escapes easier and could allow inmates to commit disciplinary infractions without being discovered.” (Doc. 79-7, ¶ 52). By Plaintiff's own account of his religion, he should never cut his hair, not for his “mother, father, sister, nor [ ] brother.” (Doc. 79-1, p. 30). The only time Plaintiff admits he may cut his hair in accordance with the tenets of his faith is when he attends a funeral. (Id.) Thus, a reasonable jury could find Defendants' identification concerns immaterial as applied to Plaintiff, due to his sincerely held beliefs.
Regarding the control of contraband, Defendants assert that “[s]ince March 2019, Plaintiff has had seven separate formal disciplinary charges” and was found guilty of five, including “being under the influence of drugs, refusing a drug test and possession of a cell phone (illegal contraband).” (Doc. 79-7, ¶ 7). According to Defendants, this record shows that Plaintiff “is willing to violate GDC policy, ” and that “[i]f he were allowed to maintain hair longer than three inches, or grow ‘natural' dreadlocks . . . it would be far easier to conceal contraband like cell phones.” (Id. at ¶ 14). Plaintiff contends that these allegations are false and used to “make [him] look bad or like [he] is a threat.” (Doc. 91, p. 2, 5).
Defendants have not provided supporting evidence to their allegations of Plaintiff's disciplinary history, such as the disciplinary reports. By their own account of Plaintiff's time in Tier II, Defendants' allegations are further unsupported. Defendants state that “Plaintiff moved through the different phases of the Tier II program on a regular schedule, was never left back in a same phase after any periodic evidentiary review, and was returned to general population on October 2, 2019-approximately 13 months after entering the program.” (Doc. 79-6, p. 11). The recommendations for Plaintiff to move to a higher phase were consistently based on his “improved behavior.” (Doc. 79-3, pp. 55-64). Notably, one of these recommendations occurred in March 2019, when Defendants assert that Plaintiff received his first of the seven alleged disciplinary reports. (Id. at 62-64). Thus, a reasonable jury could conclude that a dispute of material fact exists regarding the security threat Plaintiff posed and his potential to conceal contraband should he be permitted to grow dreadlocks.
Defendants also argue that Plaintiff is a security threat due to his role in the major disturbance that resulted in his transfer to Tier II. This argument fails for the same reason as above. Defendants' own report of Plaintiff's time in Tier II contradicts the risk that Plaintiff poses. To the extent that Defendants seek to use evidence related to the disturbance which led to Plaintiff's Tier II assignment to suggest Plaintiff could be a gang member, Defendants have failed to demonstrate this possibility. Plaintiff testified to not being a part of any gangs within GDC. (Doc. 79-1, p. 33). Thus, a dispute of fact exists regarding the security threat that Plaintiff poses.
Additionally, Plaintiff contends that while incarcerated at Augusta State Medical Prison and Autry State Prison he was permitted to grow dreadlocks and was never deemed a security threat. (Doc. 91, p. 2). Although RLUIPA “does not pit institutions against one another in a race to the top of the risk-tolerance or cost-absorption ladder, ” Knight, 797 F.3d at 947, the United States Supreme Court has made clear that “the policies followed at other well-run institutions [are] relevant to a determination of the need for a particular type of restriction.” Holt, 135 S.Ct. at 866. Therefore, to overcome summary judgment, Defendants “must, at a minimum, offer persuasive reasons why it believes that it must take a different course[.]” Id.
This Court's recent opinion in Gholston v. Powell, 2019 WL 5067201 (M.D.Ga. July 23, 2019), is instructive. Though no judgment has been entered, in declining to grant summary judgment, the Court pointed out “that long beards pose greater risks than long hair, because beard searches are conducted face-to-face, permitting prisoners ‘to punch, bite, knee, and kick the [searching] officers.'” Gholston, 2019 WL 5067201 at *10 (citations omitted). The Court decided that “the Defendants provide[d] little rationale as to why the GDC is unable to further its security interests while also maintaining a less restrictive beard-length policy, as numerous other jurisdictions do.” Id.
Similarly, Defendants have failed to explain their rationale in maintaining such a restrictive hair length policy compared to other institutions. Defendants, themselves, admit that beard searches are more dangerous, yet GDC's beard policy is less restrictive. (Doc. 79-7, ¶ 45; Doc. 79-3, pp. 28-29). Plaintiff states that while incarcerated at Autry State Prison his dreadlocks were searched by “tak[ing] [his] hand and shak[ing] out [his] hair so that they can properly search it to make sure that there is no contraband in [his] hair.” (Doc. 79-1, p. 7). At the summary judgment stage, this contradicts Defendants' allegation that Plaintiff could manipulate a search of his dreadlocks. (Doc. 79-7, ¶ 46). Moreover, even when Plaintiff admittedly received haircuts at other facilities, the barber did not cut his dreadlocks more than necessary to meet the three-inch policy. (Doc. 79-1, p. 7). While incarcerated at Macon State Prison, however, Plaintiff's hair was forcibly shaved off in its entirety. (Doc. 1, p. 3). Defendants appear to rationalize such actions by claiming that dreadlocks are prohibited at GDC (Doc. 79-7, ¶ 14), although there is no such prohibition in the GDC's Standard Operating Procedures. (See Doc. 79-2, p. 28). Based on this evidence, a reasonable factfinder could conclude that Defendants' grooming policy is not the least restrictive means of furthering their interest in security.
Finally, Defendants argue that Plaintiff's proposed alternative of growing his dreadlocks as long as he would like does not further their compelling state interests in “prison . . . operational needs, including budgetary and staffing realities.” (Doc. 79-6, p. 17). Defendants have suggested “[s]earches of hair longer than three inches and/or dreadlocks would slow the normal operation of the prisons, as these searches would be tedious and time consuming” and “would require additional staff to make up for the additional time needed to conduct these searches and to make up for the dangerous nature of face to face searches.” (Doc. 79-7, ¶¶ 43, 45). RLUIPA expressly contemplates cost by stating that compliance “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on [a prisoner's] religious exercise.” 42 U.S.C. § 2000cc-2(c). Simply listing the costs potentially associated with a religious exemption to GDC's grooming policy-i.e., “budgetary and staffing realities”-is not an adequate basis to deny Plaintiff's request for an exemption. Moreover, this argument is rooted in a premise struck down in Holt: “If I make an exception for you, I'll have to make one for everybody, so no exceptions.” 135 S.Ct. at 866 (quotation omitted).
3. Available Relief
In relief Plaintiff seeks compensatory and punitive damages, as well as injunctive relief. (Doc. 1, p. 10). In Smith v. Allen, the Eleventh Circuit interpreted RLUIPA's provisions to preclude a private cause of action against a defendant sued in his or her individual capacity for damages. 502 F.3d 1255, 1273-75 (11th Cir. 2007). The Supreme Court in Sossamon v. Texas, 563 U.S. 277, 283 (2011), abrogated Smith's holding that plaintiffs may “pursue a RLUIPA action for ‘appropriate relief' against [defendants] in their official capacities.” Smith, 502 F.3d at 1276 (emphasis added). The Court, however, left untouched Smith's holding that RLUIPA “cannot be construed as creating a private action against individual defendants for money damages[.]” 502 F.3d at 1275 (emphasis added). As monetary damages are not available in an individual-capacity suit under RLUIPA, Plaintiff is barred from seeking damages from Defendants in their individual capacities and may only proceed on his claims for injunctive relief.
II. Due Process
The transfer of a prisoner to conditions imposing an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life” may give rise to a protected liberty interest. Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). In turn, the due process clause of the Fourteenth Amendment demands that any infringement upon such a liberty interest be accompanied by certain minimum “procedural protections.” Id. at 224. The required procedural protections may be “flexible, ” but the opportunity to be heard is integral to the “central meaning of procedural due process.” Id. at 224, 226. Moreover, the opportunity to be heard “must be meaningful; it cannot be a sham or a pretext.” Quintanilla v. Bryson, 730 Fed.Appx. 738, 744 (11th Cir. 2018).
A. Motions for Summary Judgment
Defendants move for summary judgment on Plaintiff's due process claim on two grounds: (1) Plaintiff's incarceration within Tier II was not an “atypical and significant hardship” and (2) “Plaintiff received proper notices, hearings and evidentiary reviews throughout his time in [the] Tier II program.” (Doc. 79-6, p. 3). Plaintiff, on the other hand, moves for summary judgment arguing that “he was placed in the restricted Tier II Unit without due process” and without justification. (Doc. 65-1, p. 10; Doc. 91, pp. 7-8). Plaintiff also alleges that his 24-hour a day lockdown “constitutes a deprivation which imposes atypical and significant hardship[.]” (Doc. 91, p. 7).
Even when construing the evidence in Plaintiff's favor, no dispute of material fact exists regarding Plaintiff's due process claim. This Court has repeatedly held “that the conditions within Macon State Prison's Tier II facility do not rise to the level of an atypical and significant hardship.” Bradford v. Dozier, 2018 WL 10534319 at *4 (M.D.Ga. Nov. 28, 2018) (citing Maddox v. Owens, 2018 WL 1513671 at *8 (M.D.Ga. Mar. 27, 2018)). Therefore, Plaintiff cannot maintain a due process claim resulting from his incarceration within Tier II at Macon State Prison.
Plaintiff alleges his confinement within Tier II for thirteen months poses a “significant hardship” due to lack of recreation time, inadequate access to showers, deprivation of property, inadequate sanitation, inability to gain parole, and placement based on unlawful considerations. (Doc. 1, pp. 3-5). The Court has previously addressed similar allegations with respect to Tier II at Macon State Prison. See Maddox, 2018 WL 1513671 at *6. There, the Court compared the alleged conditions imposed by Tier II with the conditions imposed within the general population, and determined that the differences did “not rise to a level sufficient to create a liberty interest pursuant to the due process clause.” Id. at *7-8. Plaintiff has not alleged any new conditions the Court has yet to consider, and therefore, Plaintiff has failed to demonstrate a material dispute of fact as to whether the conditions at Macon State Prison impose a significant and atypical hardship.
Any detriment caused to Plaintiff's parole eligibility due to his placement within Tier II is immaterial to this due process claim. See Sultenfuss v. Snow, 35 F.3d 1494, 1501 (11th Cir. 1994) (“Viewing Georgia's parole system in its entirety, we conclude that no protected liberty interest in parole is created.”).
Even if Plaintiff could demonstrate such hardship, the record indicates that Plaintiff received adequate due process protections during both his initial incarceration and his continued confinement at Macon State Prison. “[T]he requirements of due process are flexible and call for such procedural protections as the particular situation demands.” Wilkinson, 545 U.S. at 244 (internal punctuation omitted). This is particularly true in the prison context because prisoners have a reduced private interest in avoiding confinement and because the state has a strong interest in ensuring prison security. Accordingly, Eleventh Circuit caselaw indicates that prison officials may afford process to prisoners “within a reasonable time after” those prisoners are confined to quarters imposing an atypical and significant hardship. Quintanilla, 730 Fed.Appx. at 744 (citing Hewitt v. Helms, 459 U.S. 460, 474 (1983)). This process may consist of as much as “notice, an opportunity for rebuttal at his initial hearing, and periodic reviews of his status every 30 days.” Morefield v. Smith, 404 Fed.Appx. 443, 446 (11th Cir. 2010).
Although Plaintiff claims he was denied a hearing upon his transfer into Tier II, the record, even when construed in his favor, suggests otherwise. Not only has Plaintiff admitted to receiving the assignment memo prior to his transfer to Macon State Prison, (see Doc. 79-1, p. 15), but Defendants have submitted the numerous records surrounding Plaintiff's transfer into Tier II. (See Doc. 79-3, pp. 43-54). These include Plaintiff's disciplinary report, assignment memos, assignment reviews, and Plaintiff's appeals. (Id.) This evidence demonstrates that Plaintiff was provided an opportunity to rebut his Tier II placement, and that he in fact did so through the appeal process. (Id. at 51-54).
Additionally, Plaintiff argues that his placement is unlawful because he did not receive a disciplinary report prior to this placement. Not only is Plaintiff's argument directly refuted by the evidence submitted by Defendants, (see Doc. 79-3, p. 43), but it is immaterial to Plaintiff's Tier II placement. As Defendants point out, because “the Tier II program is not a punishment measure, an inmate's receipt of a [disciplinary report] is not a prerequisite for entry into the program.” (Doc. 79-6, p. 9). Therefore, Plaintiff has failed to demonstrate a dispute of fact regarding the procedural protections afforded to him upon his initial transfer into Tier II.
With respect to his continued placement within Tier II, the undisputed evidence demonstrates that Plaintiff received periodic reviews to contest his placement, Plaintiff continuously moved to less restrictive phases upon these reviews, and ultimately, Plaintiff was transferred out of Tier II and into general population. (See Doc. 79-1, pp. 119-21; Doc. 79-3, pp. 55-64). Plaintiff has provided no evidence that these 90-day reviews were a sham or “hollow formalities[.]” Quintanilla, 730 Fed.Appx. at 745. As such, Plaintiff has failed to demonstrate a material dispute of fact as to whether he was given adequate due process protections.
III. Conditions of Confinement
The Eighth Amendment, which applies to the states through the Fourteenth Amendment, protects against cruel and unusual punishment. U.S. Const. amend. VIII; Chandler v. Crosby, 379 F.3d 1278, 1288 n.20 (11th Cir. 2004). This protection is violated when the conditions of a prisoner's confinement “involve the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). Stating a viable conditions of confinement claim requires a two-prong showing. “First, under the ‘objective component,' a prisoner must prove that the condition he complains of is sufficiently serious.” Chandler, 379 F.3d at 1289 (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). That is, at a minimum, the prisoner must show that the particular condition presents “an unreasonable risk of serious damage to his future health or safety.” Id. “Second, the prisoner must show that the defendant prison officials ‘acted with a sufficiently culpable state of mind' with regard to the condition at issue.” Id. (quoting Hudson, 503 U.S. at 8). That is, the prisoner must show that the prison official acted with “deliberate indifference.” Id.
“[D]eliberate indifference has three components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.” Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (citations omitted). “[I]mputed or collective knowledge cannot serve as the basis for a claim of deliberate indifference. Each individual Defendant must be judged separately and on the basis of what that person knows.” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008) (citations omitted).
A. Motions for Summary Judgment
Plaintiff asserts two arguments in support of summary judgment. Plaintiff argues that while incarcerated within Tier II, (1) he was denied outside recreation time and forced to live in an unsanitary cell without adequate cleaning supplies, and (2) these serious conditions caused him to suffer skin disorders. (Doc. 65-1, pp. 8, 10). Defendants also move for summary judgment arguing that (1) Plaintiff cannot show a risk to his health or safety stemming from unconstitutional conditions, (2) Defendants had no knowledge of any allegedly unconstitutional conditions, and (3) Plaintiff's claims are false. (Doc. 79-6, pp. 23-24). Even when the evidence is construed in Plaintiff's favor, there is no dispute of material fact as to Plaintiff's conditions of confinement claim.
Plaintiff has put forth no evidence demonstrating that he was either denied yard time or cleaning supplies other than his own statements. There is evidence to the contrary, however. Defendants have submitted the Tier II policies that discuss the privileges afforded to prisoners based on their level in Tier II. (See Doc. 79-4, pp. 8-33). This evidence shows that under GDC policies, prisoners in Tier II are permitted one hour per day of recreational time, cleaning supplies upon request to a prison official, and three showers per week. (Id.) Defendants have submitted into evidence Plaintiff's door sheet which details when he was offered “meals, showers [], exercise [], and cell sanitation[.]” (Doc. 79-2, pp. 41-78; Doc. 79-7, ¶ 88). These door sheets demonstrate that Plaintiff was offered three showers each week, as allowed under the policy, and an hour of recreational time each day. (Doc. 79-2, pp. 41-78). It appears that a majority of the time, Plaintiff himself refused showers and recreation. (Id.) Plaintiff has also admitted in his deposition that he is provided sanitation supplies, but he argues they are inadequate. (Doc. 79-1, p. 102). Thus, Plaintiff has failed to demonstrate that the conditions imposed by Tier II rise to unconstitutional levels. See Bass v. Perrin, 170 F.3d 1312, 1317 (11th Cir. 1999) (finding no Eighth Amendment violation when plaintiff could not exercise outside, but was able to inside within confinement cells and booklets detailing methods of exercise while in confinement were made available); see also Jinks v. Owens, 517 Fed.Appx. 913, 915 (2013) (finding no deliberate indifference where inmate was given soap and water to clean his cell).
Moreover, Plaintiff has not shown that any of these conditions rise to the level of an “excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Plaintiff claims that he contracted a plethora of skin disorders due to being confined in Tier II, including scabies, dry skin, bed sores, peeling skin, rashes and bumps, and skin discoloration. (Doc. 1, p. 5; Doc. 11, p. 4). Plaintiff has submitted his medical records from Macon State Prison from the instances when he sought treatment. (See Doc. 48-4). These records show that Plaintiff was already suffering from eczema when he transferred to Macon State Prison. (Id. at 2). When Plaintiff presented to the medical department in October 2018, he was found to have atopic dermatitis. (Id. at 18). Plaintiff was given a topical ointment as treatment and directed to follow up only as needed. (Id.) In July 2019, Plaintiff was found to have scabies and was provided treatment. (Id. at 14). When he followed up at the end of the month, his scabies had improved, and by his own admission, he is no longer suffering from scabies. (Id. at 13; Doc. 91, p. 6). Based on this evidence, a reasonable jury could conclude that Plaintiff's skin conditions did not pose any such risk to his health. See Dugan v. Warden, FCC Coleman-USP I, 673 Fed.Appx. 940, 946 (11th Cir. 2016).
Finally, Plaintiff has failed to prove that any Defendant had the requisite knowledge of the confinement conditions or the skin disorders that resulted. At most, Plaintiff has alleged that Defendants are aware of the unconstitutional conditions causing his skin disorders because they conduct weekly inspections, he has complained in grievances, some were present for the violations, and some were made aware of it. (Doc. 1, p. 2, 5; Doc. 11, p. 5). Plaintiff has pointed to no evidence, suggesting that any individual Defendant was made aware of the skin conditions from which Plaintiff was suffering. Nor is it apparent that any Defendant was aware that these alleged injuries resulted from extreme conditions in Tier II. Plaintiff has discussed the medical staff's knowledge of his skin rashes, and their theories of how these occurred, (see Doc. 79-1, p. 30), but he has failed to demonstrate when, if ever, Defendants were informed of the alleged health risks from these skin disorders. See Ivory v. Warden, Governor of Alabama, 600 Fed.Appx. 670, 677-78 (11th Cir. 2015) (rejecting the plaintiff's “contention that the conditions were so obvious that the defendants had to have known about them”).
IV. Qualified Immunity
Defendants have also moved for summary judgment based on qualified immunity as to Plaintiff's claims of constitutional violations. (Doc. 79-6, pp. 25-26). “Qualified immunity protects government officials performing discretionary functions from civil trial (and other burdens of litigation, including discovery) and from liability if their conduct violates no ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Lassiter v. Alabama A & M Univ., 28 F.3d 1146, ___(11th Cir. 1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, ___(1991)) The qualified immunity inquiry involves three steps. Vinyard v.Wilson, 311 F.3d 1340, ___(11th Cir. 2002). First, the burden is on the defendant to prove that he was acting within the scope of his discretionary authority. Id. If the defendant meets this burden, then the Court must determine whether the plaintiff has suffered a constitutional violation. Id. Finally, if the facts prove the violation of a constitutional right, the inquiry is whether the law with respect to that right was clearly established. Id.
The clearly established law must provide a defendant with “fair warning” that his or her conduct deprived the plaintiff of a constitutional right. Hope v. Pelzer, 536 U.S. 730, 739-41 (2002). A plaintiff “can demonstrate that the contours of the right were clearly established in several ways.” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012). First, a plaintiff can show that “a materially similar case has already been decided.” Id. (citations and internal quotation marks omitted). Second, a plaintiff can point to a “broader, clearly established principle [that] should control the novel facts [of the] situation.” Id. (citation and internal quotation marks omitted). “Finally, the conduct involved in the case may ‘so obviously violate the constitution that prior case law is unnecessary.'” Id. (alterations adopted) (citations omitted). Clearly established precedent in this Circuit means decisions of the United States Supreme Court, the Eleventh Circuit, and the highest court of the pertinent state. McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007).
The first inquiry of the qualified immunity standard is unquestionably met-Defendants were acting within the scope of their discretionary functions as government employees with respect to the actions at issue in this case. With respect to the second inquiry of qualified immunity, this Recommendation explains above that Plaintiff has failed to present genuine issues of material fact with respect to his First Amendment, due process, and conditions of confinement claims. Thus, qualified immunity protects Defendants from such claims.
V. Eleventh Amendment Immunity
Defendant GDC has also moved for summary judgment on the grounds that Eleventh Amendment immunity bars Plaintiff from holding GDC liable. “Under the Eleventh Amendment, a nonconsenting state may not be sued for damages in federal court unless the state voluntarily waives its immunity or Congress clearly abrogates it.” McCurdy v. Alabama Disability Determination Service, 753 Fed.Appx. 784, 789 (11th Cir. 2018) (citations omitted). Section 1983 is not a “Congressional abrogation of the state's immunity from damages suits, ” Gamble v. Fl. Dep't of Health & Rehab. Servs., 779 F.2d 1509, 1512 (11th Cir. 1986), and Georgia has not otherwise waived its right to assert an Eleventh Amendment immunity defense against § 1983 claims. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1301-02 (11th Cir. 2007). Accordingly, “[t]he Eleventh Amendment bars this action against the Georgia Department of Corrections[.]” Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989) (citing Alabama v. Pugh, 438 U.S. 781, 782 (1987) (per curiam)).
Additionally, to the extent that Plaintiff is suing Defendants in their official capacity, sovereign immunity also bars his claims against them. A government official sued in his official capacity is effectively a suit against the government entity itself, which in this case is the State of Georgia. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”). As the State has not expressly waived sovereign immunity, Plaintiff is barred from seeking money damages against Defendants in their official capacity.
VI. Exhaustion
Alternatively, Defendants argue that Plaintiff's claims are subject to dismissal for failure to exhaust administrative remedies. Because exhaustion 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 dismissed, or be treated as such if raised in a motion for summary judgment.” Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008). Thus, Defendants' summary judgment motion should be treated as a motion to dismiss with respect to the issue of exhaustion. As with other matters in abatement, the Court may consider facts outside of the pleadings when determining whether a prisoner properly exhausted his administrative remedies. Id. at 1376.
A. The Exhaustion Requirement
The PLRA requires prisoners to exhaust available administrative remedies before bringing an action with respect to prison conditions under 42 U.S.C. § 1983, or any other federal law. 42 U.S.C. § 1997e(a). Exhaustion in this context means proper exhaustion: prisoners must “complete the administrative review process in accordance with the applicable rules, including deadlines as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). The exhaustion requirement is “designed to eliminate unwarranted federal-court interference with the administration of prisons” by “seek[ing] to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008) (citation and internal quotation marks omitted).
The Eleventh Circuit's Turner opinion establishes a two-step process for reviewing motions to dismiss based on a prisoner's failure to exhaust. A reviewing court first “looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the plaintiff's version of the facts as true. If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed.” Turner, 541 F.3d at 1082. Second, if the complaint is not dismissed under step one, the court “proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion . . . 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 1082-83.
B. Grievance Procedure
The grievance procedure applicable in this case is set by the Georgia Department of Corrections Standard Operating Procedure No. 227.02 (Doc. 62-1, p. 9). Under that procedure, prisoners must follow a two-step process by first filing an “original grievance” within ten days of the grievable issue. (Id. at 15). The original grievance is then screened by prison staff, and typically either rejected or accepted for processing. (Id. at 15-16). The grievance procedure further provides that a response of some kind is due within forty days of the date of a grievance's submission, with the possibility of a ten-day extension on written notice. (Id. at 18). On either expiration of the response period or on the prisoner's receipt of a response, the prisoner must proceed to step two by filing a “central office appeal” within seven days. (Id. at 19). The grievance procedure then contemplates a 120-day period in which the Warden may give a response. (Id. at 20).
C. Plaintiff's Grievance History
Under Turner's first step, Defendants allege that Plaintiff commenced this lawsuit before fully exhausting his administrative remedies with respect to some of his claims. (Doc. 62-2, p. 1). Plaintiff responds that he did in fact exhaust each relevant grievance to the fullest extent. (Doc. 65-1, pp. 2-3). Given the conflict between the parties' versions of the facts, under Turner's first step, the Court must accept Plaintiff's version as true.
Next, at Turner's second step of review, the evidence shows that Plaintiff properly exhausted his religious freedom claim, but failed to exhaust his conditions of confinement claims. Of the numerous grievances Plaintiff filed while incarcerated at GDC, grievance numbers 276887, 280227, and 291116, are relevant to Plaintiff's current federal lawsuit. On October 16, 2018, Plaintiff filed grievance number 276887, claiming Defendants violated his religious rights by forcibly cutting his hair. (Doc. 62-1, p. 41). This grievance was denied on November 5, 2018, and Plaintiff was notified of such denial on November 8, 2018. (Id. at 42-43). Defendants contend that Plaintiff failed to appeal this grievance. (Doc. 62-2, p. 2). Plaintiff responds that he attempted to do so by mailing an appeal form “to the Counseling Department in good faith that it would be properly filed[.]” (Doc. 65-1, p. 2). When he received no response or receipt, Plaintiff presumed his appeal was in fact filed. (Id.) The evidence supports Plaintiff's version of the facts.
At the top of each grievance form provided by GDC there is a section where a staff member writes the offender's name and number, the institution, the applicable grievance number, the date the form is received and what staff member receives it, and-most relevant here-the date the appeal is received. (See, e.g., Doc. 62-1, p. 25). Grievance number 276887 clearly shows that GDC received an appeal from Plaintiff on December 6, 2018. (Id. at 41). Thus, there is evidence to show that Plaintiff properly appealed grievance number 276887, as he has argued. There is no evidence in the record demonstrating whether this appeal was denied on its merits or on procedural issues. As far as the record indicates, Plaintiff received no response whatsoever. Thus, in accordance with the grievance procedure, GDC had 120 days from December 6, 2018-or until April 5, 2019-to decide Plaintiff's appeal.
At this point the record becomes ambiguous. As Defendants note, Plaintiff signed his complaint on February 7, 2019. (See Doc. 1, p. 10). “Under the prison mailbox rule, a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing . . . Absent evidence to the contrary, [the Court] assume[s] that a prisoner delivered a filing to prison authorities on the date that he signed it.” Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014) (citations and internal quotation marks omitted). Defendants have provided no evidence to show that Plaintiff's filing was delivered later than February 7, 2019. The Court did not receive Plaintiff's complaint, however, until June 14, 2019-more than four months after it was signed. (See, generally, Doc. 1).
The prison mailbox rule was designed to afford incarcerated individuals assistance in litigating from inside of the prison system. See Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993) (finding that the prison mailbox rule “sought to place pro se prisoners on equal footing with other litigants who are not impeded by the practical difficulties encountered by incarcerated petitioners in meeting filing requirements.”) (emphasis added). Yet the Defendants are using it here as a sword against Plaintiff's claim for relief. As the Eleventh Circuit held, the United States Supreme Court “place[d] the burden of proof for the pro se prisoner's date of delivering his document to be filed in court on the prison authorities, who have the ability to establish the correct date through their logs.” Id. at 781 (citation omitted) (emphases added).
Defendants have failed to meet their burden. Defendants have provided no evidence that Plaintiff delivered his complaint to be mailed on a date earlier than June 2019. Although Plaintiff's signature date-February 7, 2019-is presumably the filing date, this is “the earliest date on which [the complaint] could be considered filed.” Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999). It is conceivable that Plaintiff began drafting his complaint in February 2019, but did not deliver it to prison authorities to be mailed until June 2019. Given the significant gap between the two dates and the Defendants failure to demonstrate that Plaintiff handed his complaint to prison authorities in February 2019, the prison mailbox rule should not apply. Therefore, Plaintiff's filing date is June 14, 2019, and as such, Plaintiff's grievance number 276887 was fully exhausted prior to the commencement of this lawsuit.
This is far more conceivable than Plaintiff's complaint taking four months to process through the United States Postal Service as Defendants suggest.
Next, grievance number 280227 was filed on December 19, 2018. (Doc. 62-1, p. 50). Plaintiff complained of his placement at Macon State Prison in Tier II, as well as the conditions imposed at the prison and the medical treatment he required as a result. (Id.) This grievance was denied on January 4, 2019, and Plaintiff appealed on January 14, 2019. (Id. at 49, 51). Plaintiff's appeal was denied on February 22, 2019. (Id. at 48). Although Plaintiff completed the grievance process prior to initiating this action in June 2019, this grievance remains unexhausted. As Defendants argue, the merits of Plaintiff's grievance were never reached as Plaintiff failed to abide by the applicable procedures. (Doc. 62-2, pp. 7-8). “[N]one of the aims of § 1997e(a) has been achieved [ ] because prison officials did not review of merits of [the plaintiff's] complaint-his grievance did not spur the corrective action that might have obviated the need for litigation, there was no filtering of potential frivolous claims, and no development of an administrative record to assist the courts in deciding the controversy.” Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005) (citing Porter v. Nussle, 534 U.S. 516, 525 (2002)). Plaintiff's grievance was denied for procedural reasons, thus GDC did not have the opportunity to address the issues raised by Plaintiff.
Finally, grievance number 291116 is unexhausted. Plaintiff did not file this grievance until June 25, 2019. (Doc. 65-1, p. 60). Even with the benefit of the later filing date, Plaintiff filed this grievance after commencing this action. As full and proper exhaustion requires exhausting remedies before filing a Section 1983 lawsuit, Plaintiff has failed to exhaust this grievance. Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000).
CONCLUSION
For the reasons stated herein, it is RECOMMENDED that Plaintiff's motion for summary judgment (Doc. 65) and motion for a cease and desist (Doc. 64) be DENIED. Plaintiff's motion to compel (Doc. 69) is DENIED. Additionally, it is RECOMMENDED that Defendants' motions for summary judgment (Docs. 62, 79) be GRANTED in part and DENIED in part and that the Court enter judgment as a matter of law as to Plaintiff's First Amendment, due process, and Eighth Amendment claims. In the alternative, Plaintiff's First Amendment and Eighth Amendment claims are subject to dismissal without prejudice for failure to exhaust. Accordingly, it is RECOMMENDED that Plaintiff be permitted to proceed to a bench trial on his claims for injunctive relief under RLUIPA.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.