Opinion
3:20-cv-00055-CAR-CHW
07-15-2022
SANTARIO LAWRENCE, Plaintiff, v. Captain SCOTT PECORE, et al., Defendants.
Proceedings Under 42 U.S.C. §1983
REPORT AND RECOMMENDATION
Charles H. Weigle United States Magistrate Judge
Before the Court are two motions filed by the Defendants. In one motion, the Defendants seek the dismissal of three of Plaintiff's four claims for relief based upon his failure to exhaust the prison grievance process. (Doc. 49). In the other motion, the Defendants seek summary judgment on Plaintiff's remaining claim. (Doc. 50). Based on the analysis below, it is RECOMMENDED that both the Defendants' motions be GRANTED.
BACKGROUND
Plaintiff Santario Lawrence is a pretrial detainee who has been held primarily at the Walton County Detention Center since June 2019. Plaintiff commenced this Section 1983 action in May 2020, to complain of a broad range of asserted constitutional harms suffered during his detention.
On screening under 28 U.S.C. § 1915A, the Court construed Plaintiff's claims to fall into four categories. First, Plaintiff complains of his conditions of disciplinary confinement, specifically that he only receives three fifteen-minute periods of out-of-cell time each week for showers, exercise, and visitation with family members or religious officials. Second, Plaintiff complains that he has been denied access to religious texts and services and that he is barred from praying at certain times. Regarding these first two claim categories, the Court understood Plaintiff's complaint to bring claims only against Defendant Captain Scott Pecore, “the man in charge of the day to day jail life activities.” (Doc. 14-1, p. 1).
Plaintiff's third category of claims, first advanced in his recast complaint filed in January 2021, arises from an alleged use of excessive force that occurred on August 4, 2020, after the commencement of this action. Plaintiff alleges that Defendants Pecore and Mouton “slammed me to the ground,” handcuffed Plaintiff, and then “rammed my head into the railing” while escorting Plaintiff back to his cell. (Doc. 14, p. 5; Doc. 14-1, p. 3). Plaintiff also alleges that Defendant Pecore discharged pepper spray into a helmet, placed that helmet onto Plaintiff's head, and then left Plaintiff sitting for around 45 minutes. (Doc. 14-1, p. 3). The Court additionally construed these and other excessive force allegations by Plaintiff to support a fourth, related claim of retaliation because Plaintiff contends that the excessive force incident was “done in retaliation for his filing grievances and court complaints.” (Doc. 16, p. 11).
As discussed below, the Prison Litigation Reform Act or PLRA requires prisoners to exhaust available administrative remedies prior to commencing a federal lawsuit. See Pavao v. Sims, 679 Fed.Appx. 819, 825 (11th Cir. 2017) (“efforts to exhaust after filing a complaint are not relevant”). Necessarily, therefore, Plaintiff did not exhaust that process regarding his excessive force and retaliation claims, claims three and four, which did not arise until after Plaintiff commenced this action. Additionally, the record shows that Plaintiff also failed to exhaust his claim two, which relates to burdens upon his free exercise of religion. Accordingly, Plaintiff's claims two, three and four should be dismissed for failure to exhaust.
Plaintiff exhausted his first claim relating to inadequate out-of-cell time, but as discussed below, that claim fails on the merits, and additionally, qualified immunity shields Defendant Pecore, the only defendant to Plaintiff's first claim, from liability.
I. MOTION TO DISMISS (CM/ECF Docket No. 49)
The Defendants move for a dismissal of Plaintiff's claims two, three and four for failure to exhaust. When considering a motion to dismiss, the Court must accept as true all of the facts set forth in the complaint. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). Additional rules, discussed below, govern the review of motions to dismiss for failure to exhaust under the PLRA. Based upon these rules, along with a review of the grievance exhibits provided by the Defendants, it is recommended that Plaintiff's claims two, three, and four be dismissed for failure to exhaust.
(a) The Exhaustion Requirement
The PLRA mandates dismissal when prisoners fail to exhaust their claims through available administrative remedies, typically a prison grievance process. 42 U.S.C. § 1997e(a). In assessing exhaustion arguments, courts employ a two-step analytical process established by the Eleventh Circuit in Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008). A reviewing court first:
[L]ooks 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.Second, if the complaint is not dismissed under step one, the court:
[P]roceeds 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.
(b) The Grievance Process
To exhaust the grievance procedure at the Walton County Detention Center, detainees must complete a two-step process. First, a detainee must submit a written grievance to jail officials describing “the factual basis and circumstances of the alleged incident or situation,” along with “a specific complaint.” (Doc. 49-1, p. 5). The filing of this written grievance triggers a fifteen-day response period in which a grievance deputy is to provide a written answer. (Id.).
Upon receipt of an answer to an initial written grievance, the detainee then “has three (3) calendar days to accept the findings and action taken, and so acknowledge by signature, or appeal to the Detention Commander or his/her designee.” (Id.). This grievance appellate procedure may also constitute the initial procedure for disciplinary actions. (Id.) (“Disciplinary actions are not to be handled under the grievance system; rather disciplinary charges are to be filed under appeal procedures”). If a detainee wishes to appeal, he must “provide written reasons on the grievance form and return it to the grievance deputy.” (Id.). It is not clear that the Walton County Detention Center grievance procedure contemplates any specified appellate answer period.
(c) Analysis
The record shows that during his confinement at the Walton County Detention Center, Plaintiff has fully litigated only two grievances. One of those grievances addressed the inadvertent opening, by detention officers, of Plaintiff's legal mail (Doc. 49-1, pp. 73-76), but Plaintiff did not file an appeal of that grievance until June 2020, after the commencement of this action. The other grievance addressed Plaintiff's restriction to “only ... 15 min” of out-of-cell time. See (Doc. 49-1, pp. 8-10, 14). Through this grievance, designated grievance number “2020Feb45,” Plaintiff appears to have exhausted his first claim of unlawful conditions of confinement, which is addressed below in relation to the Defendants' summary judgment motion.
Plaintiff's remaining claims two, three, and four are subject to dismissal for failure to exhaust. Claims three and four both relate to an alleged excessive force incident that occurred on August 4, 2020, after the commencement of this action. Although the record indicates that Plaintiff filed an initial, written grievance regarding the excessive force incident (Doc. 49-1, p. 26), there is no indication that Plaintiff proceeded to the second step of the Walton County Detention Center's grievance process by filing an appeal. More importantly, Plaintiff plainly could not have properly completed - or even have begun - the exhaustion process regarding the August 2020 excessive force incident before Plaintiff commenced this action by filing his initial complaint in May 2020. See Pavao v. Sims, 679 Fed.Appx. 819, 825 (11th Cir. 2017) (citing Goebert v. Lee Cnty., 510 F.3d 1312, 1324 (11th Cir. 2007)) (“efforts to exhaust after filing a complaint are not relevant to the question of whether [a prisoner] exhausted his administrative remedies as required by the PLRA”). Accordingly, regarding his excessive force and retaliation claims (claims three and four), a dismissal for failure to exhaust is warranted under both of Turner's steps of review.
A dismissal of Plaintiff's second claim, relating to asserted burdens upon Plaintiff's free exercise of religion, is also warranted under Turner's second step of review. The record shows that Plaintiff filed an initial grievance on March 3, 2020, which related to the lack of “jumah service or tileem,” along with a lack of “access to any reading material or prayer rugs or [a] kufi.” (Doc. 49-1, p. 20). The record indicates that Plaintiff received a response to this initial grievance on March 6, 2020 (Doc. 49-1, p. 21), but there is no indication in the evidentiary record that Plaintiff ever filed an appeal regarding this grievance. Nevertheless, under Turner's first step of review, the Court must accept as true Plaintiff's arguments that he could not appeal because the grievance system was not available. See Ross v. Blake, 578 U.S. 632, 642 (“the exhaustion requirement hinges on the ‘availability' of administrative remedies”) (internal brackets omitted).
Plaintiff's specific availability arguments are: (a) that John Minton, grievance coordinator, was not the appropriate recipient of appeals, and Plaintiff had no access to the appropriate recipient, the detention commander (Doc. 63, p. 1); (b) that Plaintiff filed no appeal because he had no way to request a hearing (id.); (c) that the Walton County grievance policy does not account for technological updates in that it contemplates handwritten grievances, but inmates are in fact instructed to use electronic kiosks to file grievances (Doc. 1, p. 11); and (d) that Plaintiff was unable to write and file handwritten grievances or appeals given his restriction to “15 minutes outside of my cell,” three times each week. (id.).
Plaintiff's availability arguments are not credible under Turner's second step of review. Regarding (a) the proper recipient of Plaintiff's initial grievances and appeals, the Walton County grievance policy expressly provides that appeals may be submitted to “the Detention Commander or his/her designee,” in this case, Officer Minton. (Doc. 49-1, p. 5) (emphasis added). Regarding (b) Plaintiff's desire for a grievance hearing, the Walton County grievance procedure does not contemplate a hearing at any stage of review, and none is constitutionally required.0F Regarding (c) grievance kiosks, the Walton County grievance policy specifies that grievances must be “written,” but the procedure does not require handwritten grievances, meaning that electronic submissions suffice even by the policy's own terms. Finally, regarding (d) Plaintiff's cell restrictions, Plaintiff's grievance history shows that he filed numerous initial grievances in January, February, March, April, May, June, July, and August of 2020. (Doc. 49-1, pp. 8, 10, 20, 22, 24, 26, 27, 43, 46, 49, 52, 55, 58, 61, 64, 67, 69, 71, 73, 75, 77, 79, 81, 84, 87, 89). These filings by Plaintiff discredit his assertion that the grievance process was not available.
See, e.g., Moore v. McLaughlin, 569 Fed.Appx. 656, 659 (11th Cir. 2014) (“An inmate has no constitutionally-protected liberty interest in access to prison grievance proedures”).
In summary, Plaintiff could not have exhausted his excessive force (claim three) and retaliation (claim four) claims prior to the commencement of this action, and the record supports the conclusion, at Turner's second step of review, that Plaintiff did not appeal from the denial of his initially grievance relating to religious burdens (claim two). As a result, Plaintiff did not properly exhaust his claims two, three and four, and accordingly, those claims should be dismissed.
II. MOTION FOR SUMMARY JUDGMENT (CM/ECF Docket No. 50)
Plaintiff's sole remaining claim, his first claim, challenges the conditions of his confinement within a solitary cell at all times apart from three, fifteen-minute periods each week. Regarding this claim, and as discussed below, no reasonable jury could find for Plaintiff on the present record. Additionally, qualified immunity shields Defendant Pecore, the only defendant to Plaintiff's conditions of confinement claim, from liability. Accordingly, it is recommended that the Defendants' motion for summary judgment (Doc. 50) be granted.
(a) Legal Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). 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, 32224 (1986). In resolving motions for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014).
(b) Analysis
Defendant Pecore is entitled to summary judgment both on the merits and on the basis of qualified immunity.1F
Qualified immunity is not a defense to a request for injunctive relief, but (a) it is not clear that Plaintiff remains in disciplinary segregation quarters, see (Pecore Decl., Doc. 50-1, ¶ 3), (b) Plaintiff's operative complaint did not request injunctive relief (Doc. 14, p. 6), and (c) it is not clear that Plaintiff could recover a release from disciplinary segregation in a Section 1983 action, as opposed to a habeas action, under Eleventh Circuit precedent. See Daker v. Warden, 805 Fed.Appx. 648, 650-51 (11th Cir. 2020).
To make out a conditions of confinement claim, Plaintiff must show both (1) a sufficiently “serious” or “extreme” condition, Quintanilla v. Bryson, 730 Fed.Appx. 738, 746 (11th Cir. 2018), and (2) that jail officials responded to that condition with “deliberate indifference,” meaning in part that jail officials were “subjectively aware of the risk” posed by the offending condition. Farmer v. Brennan, 511 U.S. 825, 828 (1994).
Plaintiff fails on both prongs of this inquiry. On the present record, no reasonable jury could find that Plaintiff's confinement to disciplinary segregation quarters for repeated disciplinary violations, see (Pecore Decl., Doc. 50-1, ¶ 6), was sufficiently “serious” or “extreme” so as to offend the constitution.2F The Eleventh Circuit Court of Appeals has concluded, in an analogous case, that the denial of all out-of-cell exercise time for a prisoner (inmate Bean) from October 1989 to May 1992, “although harsh, did not violate the Eighth Amendment.” Bass v. Perrin, 170 F.3d 1312, 1317 (11th Cir. 1999) (affirming summary judgment). The record indicates that Plaintiff's confinement lasted for considerably less time, and “length of time is significant.” Quintanilla v. Bryson, 730 Fed.Appx. 738, 746 (11th Cir. 2018). Additionally, Plaintiff acknowledges that unlike the plaintiffs in Bass, he received three fifteen-minute periods for outdoor exercise or other out-of-cell activities each week, and “there is .. a significant difference between some time outside- even a minimal amount-and none at all.” Bass v. Perrin, 170 F.3d 1312, 1316 (11th Cir. 1999). Accordingly, in light of both the available record and binding Eleventh Circuit precedent, Defendant Pecore is entitled to judgment as a mater of law based purely on objective factors.
Because Plaintiff is a detainee rather than the prisoner, the Fourteenth Amendment affords him protection. Under prevailing precedent, Courts apply “the same standard as ... under the Eighth Amendment” to detainees' claims of deliberate indifference. See Nam Dang by and through Vina Dang v. Sheriff, Seminole Cnty., Fla., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017).
Defendant Pecore is also entitled to summary judgment because Plaintiff has presented no evidence to suggest that Pecore acted with a sufficiently culpable mental state. Even if Plaintiff's conditions in disciplinary segregation had been unconstitutionally “extreme,” there is no indication that Defendant Pecore was subjectively aware of those conditions. Plaintiff's theory of liability against Defendant Pecore has always been that Pecore was a mere supervisor or policymaker. As Plaintiff puts it, Pecore is “the man in charge of the day to day jail life activities.” (Doc. 14-1, p. 1). The standard for supervisor or policymaker liability under Section 1983, however, is “extremely rigorous,” Hendrix v. Tucker, 535 Fed.Appx. 803, 805 (11th Cir. 2013), and Plaintiff has adduced no evidence to satisfy this rigorous standard or otherwise to show that Pecore acted with “something more than mere negligence.” Farmer v. Brennan, 511 U.S. 825, 835 (1994). Accordingly, Defendant Pecore is also entitled to summary judgment based on the subjective component of the deliberate indifference inquiry.
Finally, even if Plaintiff could make out a claim on the merits, qualified immunity would bar Plaintiff's recovery against Defendant Pecore. The defense of qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Although “[confinement in ... an isolation cell is a form of punishment subject to scrutiny under [constitutional] standards,” Hutto v. Finney, 437 U.S. 678, 685 (1978), those standards are continuing to develop, and they are not yet “clearly established.” See, e.g., Davis v. Ayala, 576 U.S. 257, 288 (2015) (Kennedy, J., concurring) (decrying a lack of “sufficient public inquiry or interest” in solitary confinement). No case holding or broad statement of principle gave Defendant Pecore sufficient notice of the wrongfulness of Plaintiff's confinement to disciplinary segregation quarters, and that confinement was not “so egregious that a constitutional right was clearly violated, even in the total absence of case law.” Lewis v. West Palm Beach, Fla., 561 F.3d 1288, 1291-92 (11th Cir. 2009) (explaining how a right may be “clearly established” under Eleventh Circuit precedent). Accordingly, even if Plaintiff had established a constitutional violation on the merits, Defendant Pecore would alternatively be entitled to summary judgment on grounds of qualified immunity.
CONCLUSION
For the reasons discussed herein, it is RECOMMENDED that the Defendants' motion to dismiss (Doc. 49) and motion for summary judgment (Doc. 50) both be GRANTED.
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. Objections are limited in length to twenty pages. Local Rule 7.4 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,