Opinion
5:20-cv-00005-MTT-MSH
12-29-2020
ERIC MILLER, Plaintiff, v. SGT PHILIP WILLIAMSON, et al., Defendants.
ORDER AND RECOMMMENDATION
Stephen Hyles UNITED STATES MAGISTRATE JUDGE
Plaintiff, an inmate currently confined in Georgia State Prison in Reidsville, Georgia, filed a complaint (ECF No. 1) and amendment thereto (ECF No. 22) raising claims pursuant to 42 U.S.C. § 1983. Pending before the Court are Defendants' motion to dismiss (ECF No. 19) and Plaintiff's motion to amend (ECF No. 25). Plaintiff's motion to amend is granted, and the Court recommends that Defendants' motion to dismiss be denied.
BACKGROUND
Plaintiff's claims arise from his confinement in Macon State Prison (“MSP”) in Oglethorpe, Georgia. According to Plaintiff, on February 23, 2018, he was confined in an MSP administrative segregation cell under the custody of Defendants Williamson and Eaddie. Compl. 5, ECF No. 1. Defendant Williamson skipped Plaintiff's cell while sending inmates to the showers, Plaintiff asked Defendant Williamson why he skipped him, and Defendant Williamson answered that Plaintiff would shower last because Plaintiff continued to flood his cell with water which had leaked into Defendant Williamson's office. Id. Plaintiff responded that he flooded his cell because inmate orderlies had thrown feces into his cell. Id. Once the other inmates finished showering, Defendant Williamson returned to Plaintiff's cell and escorted Plaintiff to the WSP barbershop for a shave and haircut before his shower. Id. While Plaintiff was in the barbershop, several inmate orderlies stood outside the barbershop door, and at that time, Defendant Williamson announced he would take his lunch break while Plaintiff showered. Id. at 5-6.
Plaintiff lists two different dates for the same incidents. Initially, he states that the events underlying his claims occurred on February 28, 2018. Compl. 5. Elsewhere, however, he indicates that they occurred on February 23, 2018. Id. at 8. The latter is more consistent with Plaintiff's claims because he also alleges that he spoke with Defendant Williamson about the incident on February 26, 2018. Id.
After his shave and haircut, Defendant Williamson escorted Plaintiff to the shower, uncuffed him, and closed and locked the shower door with a deadbolt. Id. at 6. While showering, Plaintiff looked through the shower door window and observed Defendant Williamson talking with several inmate orderlies before leaving the area. Compl. 6. When Defendant Williamson left, one of the inmate orderlies rushed to the shower, unlocked the deadbolt, and attacked Plaintiff with a homemade knife. Id. Plaintiff fought back, three more orderlies also began attacking him with homemade knives, and Plaintiff ran and continued fighting to try to avoid being repeatedly stabbed. Id. After the altercation, Plaintiff was taken to the MSP medical unit, and physicians determined he suffered seven stab wounds. Id.
While Plaintiff was in medical, Defendant Eaddie entered and excused the medical staff so that he could talk to Plaintiff alone. Id. at 7. Plaintiff told Defendant Eaddie that he intended to expose “every operation” that Defendant Eaddie and other officers had run through MSP. Id. Defendant Eaddie told Plaintiff to “think about what Plaintiff is getting [himself] into, ” and left the room. Compl. 7. Plaintiff was transported to another facility for medical treatment, and when he returned to MSP, he discovered his cell had been covered in feces, so officers placed him in a vacant cell. Id. On February 26, 2018, Defendant Williamson asked Plaintiff whether he wanted to make a statement about the incident, and Plaintiff said that he wanted a grievance form and to speak with internal affairs. Id. at 7-8. Defendant Williamson then left, and another officer later served Plaintiff with a disciplinary report. Id. at 8.
It appears Plaintiff alleges Defendant Eaddie, other MSP officers, and inmates smuggled contraband into MSP. See Compl. 8-9; Attach. to Compl. 11-15, ECF No. 1
On the same day, Defendant Eaddie and another officer photographed the dead bolt on the shower door where Plaintiff was attacked. Id. An officer also interviewed Plaintiff about his attack, but Plaintiff ended the interview when the officer informed him that the MSP warden intended to press criminal charges against Plaintiff and the four orderlies who attacked him. Id. On May 7, 2018, officers informed Plaintiff he would be transferred to a different prison and escorted him to a van for transport. Compl. 8. One of Plaintiff's attackers was also in the van, and he escaped from his waist chain and again attacked Plaintiff during the drive. Id. Plaintiff suffered minor injuries, and Defendant Eaddie placed Plaintiff in a different van to complete the trip. Id.
At this stage, only Plaintiff deliberate indifference to safety claims against Defendants Williamson and Eaddie remain. Order 7-9, Mar. 20, 2020, ECF No. 6. Defendants filed their motion to dismiss (ECF No. 19) on June 12, 2020. The Court received Plaintiff's response (ECF No. 21) on June 22, 2020, and his first amended complaint (ECF No. 22) on June 24, 2020. The Court received Plaintiff's motion to amend (ECF No. 25) on July 6, 2020. Defendants filed a response to Plaintiff's motion to amend and reply in support of their motion to dismiss as a single document (ECF No. 27) on July 24, 2020. The Court received Plaintiff's unauthorized surreply (ECF No. 29) to Defendants' motion to dismiss on August 5, 2020. Defendants moved for leave to file a surreply (ECF No. 33), and the Court granted Defendants' motion on September 14, 2020. Order 1-2, Sept. 14, 2020, ECF No. 40. Defendants filed their surreply (ECF No. 41) on September 28, 2020. Defendants' motion to dismiss and Plaintiff's motion to amend are ripe for review.
DISCUSSION
Plaintiff's motion to amend is granted, and the Court considers Plaintiff's new allegations in ruling on Defendants' motion to dismiss. The Court recommends that Defendants' motion to dismiss be denied.
I. Plaintiff's Motion to Amend
The Court received Plaintiff's amended complaint (ECF No. 22) on June 24, 2020, and his motion to amend (ECF No. 25) on July 6, 2020. Plaintiff seeks to supplement his complaint (ECF No. 1) by adding information concerning his litigation history. Am. Compl. 3-4, ECF No. 22; Mot. to Amend 1, ECF No. 25. Defendants argue Plaintiff's motion to amend should be denied. Reply 1-3, ECF No. 27. The Court disagrees and grants Plaintiff's motion.
Federal Rule of Civil Procedure 15(a)(1) provides that
[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.After the window for amendment as a matter of course has closed, a party may still amend its pleading with either the opposing party's written consent or “the court's leave.” Fed.R.Civ.P. 15(a)(2). Courts should “freely give leave when justice so requires.” Id.
Here, Defendants filed their motion to dismiss (ECF No. 19) on June 12, 2020, arguing, inter alia, that the Court should dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 11 because he failed to disclose his full litigation history. Br. in Supp. of Mot. to Dismiss 6-10, ECF No. 19-1. Less than twenty-one days later, the Court received Plaintiff's amended complaint (ECF No. 22) on June 24, 2020, wherein he discloses additional information about his litigation history. Am. Compl. 3-4. Plaintiff's amended complaint appears to be an amendment as a matter of course under Rule 15(a)(1) because he had not previously amended his complaint and he filed his amended complaint less than twenty-one days after Defendants filed their motion to dismiss. In his motion to amend, however, Plaintiff requests that the Court accept his previously filed amended complaint pursuant to Rule 15(a)(2). Mot. to Amend 1. Relying in part on Plaintiff's citation of Rule 15(a)(2), Defendants argue that the Court should deny Plaintiff leave to amend pursuant to Rule 15(a)(2). Reply 1-3. Plaintiff responds that he misunderstood Rule 15 and assumed he had to seek leave to amend under Rule 15(a)(2). Pl.'s Surreply 1, ECF No. 29. Contrary to Defendants' argument, the Eleventh Circuit has held that a pro se inmate plaintiff does “not waive his right to amend as a matter of course merely because he filed a motion to amend instead of amending as a matter of course.” Toenniges v. Georgia Dep't of Corr., 502 Fed.Appx. 888, 889 (11th Cir. 2012). By contrast, the denial of a proper amendment as a matter of course under Rule 15(a)(1) simply because the plaintiff mistakenly invokes Rule 15(a)(2) constitutes an abuse of discretion. Id. at 889-90.
Additionally, Defendants confusingly maintain that Plaintiff is not entitled to amend as a matter of course because his amended complaint responds to portions of their motion to dismiss filed pursuant to Rule 11-not Rule 12(b). Reply 2 (citing Fed.R.Civ.P. 15(a)(1)(B) (allowing amendment as a matter of course, inter alia, “21 days after service of a motion under Rule 12(b), (e), or (f).”)). Specifically, Defendants state that while they moved to dismiss for Plaintiff's failure to exhaust under Rule 12(b), they moved to dismiss for his failure to disclose his litigation history under Rule 11. Reply 2; see Br. in Supp. of Mot. to Dismiss 2-10. Because Plaintiff's amended complaint concerns the subject of their Rule 11 ground for dismissal-his litigation history-rather than their Rule 12(b) ground for dismissal, Defendants argue that Plaintiff is not entitled to amend under Rule 15(a)(1) and that the Court should deny him leave to amend under Rule 15(a)(2).
Defendants miss the mark entirely. Rule 15(a) does not require the Court to parse and pre-judge a plaintiff's amended complaint to determine whether each portion is responsive to a Rule 12(b) ground for dismissal. Rather, as applied here, Rule 15(a) requires only that the Court determine (1) whether this is Plaintiff's first amendment under Rule 15(a)(1), (2) whether Defendants have filed a motion to dismiss under Rule 12(b), (e), or (f), and (3) whether Plaintiff filed his amended complaint within twenty-one days after service of Defendants' motion to dismiss. Plaintiff has satisfied all three requirements, and he may amend as a matter of course regardless of what he includes in his amended complaint. Defendants would have the Court deny Plaintiff's right to amend based on the particular merits of his amended complaint. “Because [Plaintiff] had the right to amend as a matter of course, however, the merits of his amendment, at that stage, were irrelevant.” Toenniges, 502 Fed.Appx. at 890. The Court has no discretion to reject an amended complaint submitted as a matter of course under Rule 15(a). Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1292 n.6 (11th Cir. 2007). To the extent Plaintiff requests that the Court consider his amended complaint-which he has filed as a matter of course under Rule 15(a)(1)-his motion to amend is GRANTED.
II. Defendants' Motion to Dismiss
In their motion to dismiss, Defendants contend (1) Plaintiff's claims should be dismissed for failure to exhaust administrative remedies, and (2) Plaintiff's complaint should be dismissed because he failed to disclose his litigation history. Br. in Supp. of Mot. to Dismiss 2-10. The Court disagrees as to both grounds and recommends that Defendants' motion be denied.
A. Exhaustion
Defendants argue Plaintiff's claims should be dismissed because Plaintiff failed to exhaust administrative remedies by failing to file a prison grievance concerning his claims. Br. in Supp. of Mot. to Dismiss 2-6. Defendants fail to show that Plaintiff failed to exhaust administrative remedies, and the Court recommends that Defendants' motion be denied on this ground.
1. Exhaustion Standard
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[W]hen a state provides a grievance procedure for its prisoners, as Georgia does here, an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added). “To exhaust administrative remedies in accordance with the PLRA, prisoners must properly take each step within the administrative process. If their initial grievance is denied, prisoners must then file a timely appeal.” Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (citation and punctuation omitted).
The argument that a plaintiff has failed to satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant, 530 F.3d at 1375 (“[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]”). Further, since dismissal for failure to exhaust is not an adjudication on the merits, the Court can resolve factual disputes using evidence from outside the pleadings. Id. at 1376. “[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the court 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 versions of the facts as true.” Id. If, taking plaintiff's facts as being true, the defendant is entitled to dismissal for failure to exhaust, then the complaint should be dismissed. Id. “If the complaint is not subject to dismissal at the first step . . ., the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.” Id. The defendant bears the burden of proof during this second step. Id.
2. First Step: Defendants' Motion to Dismiss
In their motion to dismiss, Defendants argue the Georgia Department of Corrections (“GDC”) maintains a grievance procedure allowing inmates to raise issues at the administrative level, but Plaintiff failed to file a grievance concerning the incidents underlying his complaint. Br. in Supp. of Mot. to Dismiss 5-6. Plaintiff, however, contends (1) he filed and appealed a grievance concerning these events, and (2) the grievance procedures were unavailable because MSP officials refused to accept or respond to his grievances. Mem. in Supp. of Resp. to Mot. to Dismiss 3-4, ECF No. 21-1; Pl.'s Surreply 2-4. Because at the first stage of the exhaustion analysis the Court must accept Plaintiff's version of the facts as true, Plaintiff's complaint cannot be dismissed for failure to exhaust at this first step. Turner, 541 F.3d at 1082; see also Dollar v. Coweta Cty. Sheriff Office, 446 Fed.Appx. 248, 251-52 (11th Cir. 2011) (per curiam).
3. Second Step: Factual Findings
Since Plaintiff's complaint was not dismissed at the first step, the Court can make factual findings relating to exhaustion. Turner, 541 F.3d at 1082. A defendant bears the burden of establishing a lack of exhaustion at the second step of the inquiry. Id. at 108283. The Court finds that Defendants have failed to meet their burden and recommends that their motion be denied on this ground.
GDC has promulgated Standard Operating Procedures (“SOPs”) regarding grievances which apply to all inmates in GDC custody. Streeter Decl. ¶¶ 3-4, Ex. 1, at 7. The SOPs mandate that an inmate must follow a two-step process in order to exhaust his remedies: (1) file an original grievance no later than ten days from the date of the incident giving rise to the grievance; and (2) file an appeal to the Central Office. Id. ¶¶ 6-7, Ex. 1, at 14-20. A grievance can only address a “single issue/incident.” Id. Ex. 1, at 14. If a grievance is rejected by the warden without processing, a notice of that rejection must be provided to the inmate. Id. Ex. 1, at 15-16. The inmate may then appeal the rejection to the central office within seven days. Id. ¶ 9, Ex. 1, at 16, 19. If a grievance is processed, “[t]he Warden has 40 calendar days from the date the [inmate] gave the Grievance Form to the Counselor to deliver the decision to the [inmate].” Id. ¶ 8, Ex. 1, at 16-17. An inmate may file an appeal after the warden issues a decision or after the time allowed for the warden to make his decision expires. Streeter Decl. ¶ 9, Ex. 1, at 19.
Here, Defendants argue Plaintiff failed to file a grievance concerning the incidents underlying his complaint. Br. in Supp. of Mot. to Dismiss 5-6. In support, they have attached the declaration of MSP Grievance Coordinator Lewana Streeter, Plaintiff's grievance history, and documents related to Plaintiff's grievances. See Streeter Decl., ECF No. 19-2. As explained above, Plaintiff claims Defendants Williamson and Eaddie were deliberately indifferent to his safety during his confinement at MSP between February 23, 2018, and May 7, 2018. Compl. 5-8. Plaintiff's grievance history shows he filed three grievances concerning MSP in 2018. Streeter Decl. Ex 2, at 56. First, on May 2, 2018, Plaintiff filed grievance 265558, complaining that his cell sink leaked hot water and caused him to sweat. Id. at 59. Second, on July 10, 2018, Plaintiff filed grievance 270794, complaining about the handling of an earlier grievance filed in 2016. Id. Third, on October 17, 2018, Plaintiff filed grievance 277450, complaining about the handling of two earlier grievances filed in 2016 and 2018. Id. at 70. None of these three grievances mention an assault by inmate orderlies or Defendants Williamson and Eaddie. Because these grievances concern events unrelated to the allegations of Plaintiff's complaint, and a grievance may only address a “single issue/incident” under the SOPs, Plaintiff's filing of these three grievances fails to show he exhausted administrative remedies. Id. Ex. 1, at 14.
Plaintiff, however, appears to contend he attempted to file a grievance and exhaust administrative remedies while confined at both MSP and Georgia State Prison (“GSP”), but prison officials prevented him from doing so, rendering administrative remedies unavailable. Mem. in Supp. of Resp. to Mot. to Dismiss 3-4. An inmate is required to exhaust those administrative remedies which are “available.” Booth v. Churner, 532 U.S. 731, 738-39 (2001). In Ross v. Blake, -- U.S. --, 136 S.Ct. 1850 (2016), the Supreme Court held that an administrative procedure is unavailable under the PLRA when either (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates, ” (2) it is “so opaque that it becomes, practically speaking, incapable of use, ” or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S.Ct. at 1859-60. “While the burden is on the defendant to show an available administrative remedy, once that burden has been met, the burden of going forward shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was ‘subjectively' and ‘objectively' unavailable to him.” Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020) (citation omitted). Defendants maintain that administrative remedies were available at both MSP and GSP and that Plaintiff simply failed to follow the grievance SOPs. Reply 3-5. The Court addresses Plaintiff's allegations as to each prison separately.
i. MSP
In his complaint, Plaintiff indicates he filed a grievance at MSP concerning the incidents underlying his claims, but the grievance “was sabotaged.” Compl. 2. He asserts prison officials had an incentive to sabotage his grievance because he was “blackmail[ing] [and] extorting prison officials and correctional officers at” MSP by threatening to reveal their alleged smuggling ring. Mem. in Supp. of Resp. to Mot. To Dismiss 2, ECF No 21-1. In support, Plaintiff attached to his complaint a witness statement form dated February 23, 2018, wherein he accuses Defendant Williamson of leaving him in the shower to be assaulted by inmate orderlies. Attach. to Compl. 3-4, ECF No. 1-1. Plaintiff contends that on February 26, 2018, he sent this statement to MSP Deputy Warden of Care and Treatment LaChaka McKenzie through the prison mail system and intended it to be filed as a grievance. Mem. in Supp. of Resp. to Mot. to Dismiss 3. However, when Plaintiff asked Deputy Warden Mckenzie about the statement on February 28, 2018, she denied receiving it. Id. Plaintiff alleges he then hand delivered a new grievance to Deputy Warden McKenzie, and she told Plaintiff she would send him a receipt through the prison mail system. Id. Plaintiff never received the receipt, and when he asked Deputy Warden McKenzie about it on March 9, 2018, she stated merely that she sent the receipt through the prison mail system. Id. at 3-4.
Plaintiff states that on March 11, 2018, he sent Deputy Warden McKenzie a “missive” written “under ‘mafia terms'” through the prison mail system. Id. at 4. Although the letter is difficult to follow, Plaintiff mentions therein that he sent Deputy Warden McKenzie a grievance. Attach. to Compl. 15. At the bottom of the letter, Deputy Warden McKenzie responded by ordering him not to write her inappropriate letters. Id. Plaintiff argues that because Deputy Warden McKenzie received and responded to this letter sent through the prison mail system, she had to have also received his grievance but failed to properly submit it. Mem. in Supp. of Resp. to Mot. to Dismiss 4. He maintains she thwarted his efforts to exhaust administrative remedies, and, therefore, those remedies were unavailable at MSP. Id. at 2-4.
Defendants argue that Plaintiff did not provide a grievance to Deputy Warden Mckenzie. Reply 3-4. In support, they have attached an affidavit from Deputy Warden McKenzie, wherein she states in general terms that she “did not receive any grievances from” Plaintiff. McKenzie Decl. ¶ 6, ECF No. 27-1 (emphasis supplied). Plaintiff, however, asserts Deputy Warden McKenzie's broad statement that she has never received a grievance from him is false because she has previously accepted grievances from him. Pl.'s Surreply 2. In support, he has filed a grievance receipt dated March 13, 2017, which appears to be signed by Deputy Warden McKenzie and indicates she accepted a grievance from him. Attach. to Pl.'s Surreply 1, ECF No. 29-2. Plaintiff's grievance history, indeed, shows that he filed a grievance on this date, indicating that Deputy Warden McKenzie has previously accepted and filed a grievance from Plaintiff and provided him a grievance receipt. Streeter Decl. Ex. 2, at 56.
Plaintiff maintains that Deputy Warden McKenzie received his February 28, 2018, grievance-as she received his previous grievances-and failed to file it or provide him a receipt. Pl.'s Surreply 2; see Attach. to Compl. 3-4 (Plaintiff's alleged grievance). Deputy Warden McKenzie's blanket statement that she has never “receive[d] any grievances from” Plaintiff is Defendants' only evidence to the contrary. Deputy Warden McKenzie has not particularized her statement by stating that she did not receive a grievance concerning Plaintiff's alleged assault on February 28, 2018. Thus, by submitting his March 3, 2017, grievance receipt which is signed by Deputy Warden McKenzie, Plaintiff has proven that Deputy Warden McKenzie's generalized statement is false.
The Court afforded Defendants the opportunity to contest Plaintiff's evidence by granting their motion to file a surreply. Apparently ignoring Plaintiff's March 13, 2017, grievance receipt which directly contradicts Deputy Warden McKenzie's statement, Defendants state merely that the Court “should . . . disregard the factual allegations contained in Plaintiff's surreply because they are not supported by admissible evidence.” Defs.' Surreply 1, ECF No. 41. To the contrary, as explained above, Plaintiff's allegation is supported by admissible evidence-which disproves Defendants' key evidence. The Court will not simply “disregard” it.
Plaintiff has alleged that he gave a grievance concerning his assault to Deputy Warden McKenzie on both February 26 and February 28, 2018, and disproven Defendants' evidence to the contrary. Mem. in Supp. of Resp. to Mot. to Dismiss 3. If proven, his assertion that Deputy Warden McKenzie misled him by telling him that she would file his grievance and send him a grievance receipt but failing to do so would constitute an instance of a “prison administrator[] [ing] inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S.Ct. at 1859-60. Moreover, assuming Plaintiff's allegation is true, he could not further appeal his grievance under the SOPs once the Warden's forty-day response time expired because he did not receive a grievance receipt showing the date he filed the grievance. See Streeter Decl. Ex. 1, at 16-17, 19 (affording the prison forty days to respond to a grievance and allowing an inmate to appeal his grievance if the prison fails to timely respond). Without this receipt, the Central Office would be unable to determine (1) whether Plaintiff previously afforded the prison a chance to respond to his grievance, or (2) whether his appeal was timely under the SOPs. Thus, accepting Plaintiff's allegations as true-as the Court must at the dismissal stage-Plaintiff's allegation that Deputy Warden McKenzie failed to process his grievance or provide him a grievance receipt prevented Plaintiff from pursuing his grievance remedy, rendering the grievance remedy unavailable. Defendants fail to show that Plaintiff failed to exhaust his administrative remedies.
ii. GSP
Plaintiff also contends he later attempted to file a grievance concerning his alleged assault while confined at GSP. Mem. in Supp. of Resp. to Mot. to Dismiss 4. He has filed a grievance receipt signed by GSP Counselor Haley Chester dated November 7, 2019, and contends this is a receipt for his grievance concerning his assault at MSP. Id. at 4; see Pl.'s Ex. B-1, at 1, ECF No. 21-3. Plaintiff alleges he never received a response to this grievance and appealed the grievance when the Warden's time for response had expired. Mem. in Supp. of Resp. to Mot. to Dismiss 4. He has attached a signed grievance appeal receipt, showing he appealed a grievance on February 6, 2020. Pl.'s Ex. B-2, at 1, ECF No. 21-4. On this receipt, Plaintiff lists grievance 2282018 as the grievance he seeks to appeal. Id. This appeal was returned to Plaintiff with a note requesting the grievance number he would like to appeal. Mem. in Supp. of Resp. to Mot. to Dismiss 4; Pl.'s Ex. B-3B, at 1, ECF No. 21-5. The document also lists the grievance number as 110719. Id. Plaintiff responded by attaching a new witness statement, dated January 25, 2020, describing his alleged assault at MSP. Mem. in Supp. of Resp. to Mot. to Dismiss 4; Pl.'s Ex. B-3A, at 1-2, ECF No. 21-7. Plaintiff states this document was returned to him with a note stating “[t]here is no grievance [with] this [number] and MSP will not accept it.” Mem. in Supp. of Resp. to Mot. to Dismiss 4; Pl.'s Ex. B-3C, at 1, ECF No. 21-6. Plaintiff argues this shows that MSP and GSP officials colluded to prevent him from filing a grievance. Mem. in Supp. of Resp. to Mot. to Dismiss 4.
Defendants argue that Plaintiff did not provide Counselor Chester a grievance concerning the events underlying his complaint, and even if he did, his grievance was untimely. Reply 4-5. They have attached an affidavit from Counselor Chester, wherein she states that “whenever a prisoner gives [her] a grievance, [she] give[s] the prisoner the receipt from the bottom of the grievance form and then [she] give[s] the grievance to the Grievance Coordinator and the grievance is logged into a GDC database.” Chester Decl. ¶ 4, ECF No. 27-2. However, she denies “receiv[ing] any grievance from [Plaintiff] regarding events from February 2018 at” MSP. Id. ¶ 5. Although Plaintiff has filed a grievance receipt signed by Counselor Chester on November 7, 2019, Defendants contend this grievance receipt relates to a grievance Plaintiff filed in November 2019 which was unrelated to the facts underlying his claims. Indeed, Counselor Chester avers that Plaintiff submitted grievance 299915 on November 14, 2019, but this grievance concerned “his medical care at” GSP; not the alleged assault at MSP. Chester Decl. ¶ 6. Plaintiff's grievance history shows he filed a grievance on this date. Streeter Decl. Ex. 2, at 55.
Plaintiff disputes Defendants' contention and argues that the November 7, 2019, grievance receipt did not relate to grievance 299915. Pl.'s Surreply 3. In support, he has attached a grievance receipt dated November 13, 2019. Attach. to Pl.'s Surreply 1. He asserts that this November 13, 2019, receipt concerned grievance 299915, while his November 7, 2019, receipt concerned his MSP grievance. Pl.'s Surreply 3. He maintains that Counselor Chester failed to file the grievance or provide him a grievance receipt in order to prevent him from exhausting his grievance remedy. Id. at. Indeed, Plaintiff has provided two signed grievance receipts-one from November 7, 2019, and one from November 13, 2019-but his grievance history lists only one grievance filed in November 2019. Pl.'s Ex. B-1, at 1; Attach. to Pl.'s Surreply 1; Streeter Decl. Ex. 2, at 55.
An inmate is only required to exhaust those administrative remedies which are “available.” Booth, 532 U.S. at 738-39. Because Plaintiff has shown that he was unable to timely exhaust his administrative remedies under GDC's grievance SOPs while confined at MSP, he has shown that his grievance remedy was unavailable. For this reason, the Court declines to consider whether GDC would accept his otherwise untimely attempt to exhaust his administrative remedies at GSP or whether administrative remedies were available at GSP. Defendants' motion to dismiss should be denied on this ground.
Indeed, Defendants argue that Plaintiff could not exhaust administrative remedies while incarcerated at GSP because any grievance would be untimely under the grievance SOPs. Reply 4 n.2; see also Streeter Decl. ¶ 7, Ex. 1, at 15 (mandating that an inmate file a grievance ten days after the incident at issue).
B. Failure to Disclose Litigation History
Defendants argue the Court should dismiss Plaintiff's complaint under Federal Rule of Civil Procedure 11 because he failed to disclose his full litigation history. Br. in Supp. of Mot. to Dismiss 6-10. The Court disagrees and recommends that Defendants' motion be denied on this ground.
Plaintiff drafted his complaint (ECF No. 1) on a standard § 1983 complaint form which requires a pro se plaintiff to make a number of disclosures. The form complaint asks, “[o]ther than the appeal of your conviction or sentence, have you ever submitted a lawsuit for filing in any federal or state court dealing with the SAME FACTS involved in this lawsuit or otherwise related to your imprisonment?” Compl. 2, ECF No. 1. The form also requires plaintiffs to provide the dispositions of their lawsuits, if any. Id. Plaintiff indicated he had filed two lawsuits, which had both been dismissed: (1) Miller v. Primus, No. 5:18-cv-93-TES-MSH (M.D. Ga. Mar. 15, 2018), and (2) Miller v. Howard, No. 1:18-cv-2006-CC (N.D.Ga. May 7, 2018). Id. at 2-3.
In their motion to dismiss, Defendants argue Plaintiff failed to disclose a third federal lawsuit in his complaint. Br. in Supp. of Mot. to Dismiss 7-8. Specifically, they have attached a copy of Plaintiff's complaint in Miller v. Winchell, No. 6:19-cv-121 (S.D. Ga. Dec. 20, 2019). See Mot. to Dismiss Ex. 2, at 1-11, ECF No. 19-3. Plaintiff signed this complaint on December 13, 2019-seventeen days before he signed his complaint in this case on December 30, 2019. Id. at 10; Compl. 9. Defendants argue that because Plaintiff failed to disclose that he had filed this third lawsuit, his complaint should be dismissed in this case for failing to fully disclose his litigation history as instructed by the Court's standard § 1983 complaint form. Br. in Supp. of Mot. to Dismiss 8-10. Defendants contend dismissal under Federal Rule of Civil Procedure 11 is appropriate because Plaintiff failed to disclose information related to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1). Id..
A prisoner's “failure to comply with court rules requiring disclosures about his previous litigation” may constitute “an abuse of the judicial process warranting dismissal” of the party's pleading as frivolous or malicious under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1). Sears v. Haas, 509 Fed.Appx. 935, 936 (11th Cir. 2013) (per curiam); see also Shelton v. Rohrs, 406 Fed.Appx. 340, 340-41 (11th Cir. 2010) (per curiam) (affirming dismissal of prisoner's complaint where prisoner “checked ‘no' to the question on the complaint form asking whether he had filed any other actions in state or federal court” but case management system revealed at least four other actions filed in federal court). “Although pro se pleadings are held to a less stringent standard, a plaintiff's pro se status does not excuse mistakes regarding procedural rules.” Sears, 509 Fed.Appx. at 936 (citing McNeil v. United States, 508 U.S. 106, 113 (1993)). Dismissal is also proper under 28 U.S.C. § 1915 where a plaintiff engages in bad faith litigiousness or manipulative tactics. Redmon v. Lake Cty. Sheriff's Office, 414 Fed.Appx. 221, 225 (11th Cir. 2011) (per curiam).
Information about a Plaintiff's litigation history is highly relevant where, as Plaintiff did here, a prisoner seeks to proceed without prepayment of the filing fee, as the Court has a duty to enforce the statutory three strikes bar, 28 U.S.C. § 1915(g). See Greyer v. Ill. Dep't Corr., 933 F.3d 871, 880 (7th Cir. 2019) (“If an undisclosed past case was dismissed as frivolous, malicious, or failed to state a claim (i.e., it was or should have been a strike), then omission of that case is material.”). This information is also necessary for the court to determine, prior to service, whether a prisoner's claims are related to (or should be considered in connection with) another pending action and-more importantly-whether any claims or issues in the current complaint have already been decided. Williams v. Wiggins, No. 6:09-cv-943, 2010 WL 4983665, at *2 (M.D. Fla. Dec. 2, 2010).
Here, Defendants argue Plaintiff abused judicial process warranting dismissal by failing to disclose a complaint he filed in the Southern District of Georgia only seventeen days before he filed his complaint in this case. Br. in Supp. of Mot. to Dismiss 7-8. Plaintiff responds that he could not disclose his Southern District complaint because when he mailed his complaint in this case, he had not received any notice that the Southern District had docketed his complaint or even received it. Mem. in Supp. of Resp. to Mot. to Dismiss 5. He states he did not intend to deviate from the Court's instructions, and he simply lacked sufficient information to disclose to this Court concerning his Southern District complaint. Id. Assuming Plaintiff's assertions are true, as the Court must at the motion-to-dismiss stage, he, indeed, lacked almost all of the information about his Southern District case requested by the Court's standard complaint form, including the docket number, date of filing, and name of the assigned judge. See Compl. 2. Consequently, it is not clear that Plaintiff violated the instructions on the complaint form in a manner amounting to abuse of judicial process or bad faith litigiousness. Moreover, even assuming Plaintiff had disclosed his Southern District complaint, it would not have affected the Court's enforcement of the three strikes rule because that case had not been dismissed-or even filed-at the time he filed his complaint in this case. Therefore, under the particular and narrow factual circumstances presented here, the Court finds that dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1) is not warranted. The Court RECOMMENDS that Defendants' motion to dismiss be DENIED.
CONCLUSION
For the foregoing reasons, the Court recommends that Defendants' motion to dismiss (ECF No. 19) be denied. Plaintiff's motion to amend (ECF No. 25) is 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 hereof. The district judge shall 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 hereby 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