Opinion
4:21-cv-00164-CDL-MSH
10-13-2022
ISHMAEL K. WHITAKER, Plaintiff, v. JACQUELINE WHITE, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Jacqueline White's motion for summary judgment (ECF No. 28). For the reasons explained below, it is recommended that White's motion be granted.
PROCEDURAL BACKGROUND
Plaintiff Ishmael K. Whitaker's claims arise from his previous confinement as a pretrial detainee in the Muscogee County Jail (“MCJ” or “jail”). In his amended complaint, Whitaker asserts that, on May 18, 2021, he submitted a grievance on the jail kiosk directed to mental health, explaining that his medications were not working. Am. Compl. 5, ECF No. 11. The grievance stated that he was hearing voices, hallucinating, and having homicidal and suicidal thoughts. Id. Whitaker also submitted a mental health request on May 21, 2021, again stating his medications were not working, that he was hearing voices and seeing things, and that they were making him “feel homicidal and suicidal.” Id. at 6. Defendant White-a mental health therapist-responded to Whitaker's May 18 grievance on May 24, 2021, at 8:33 a.m., saying that Whitaker would be scheduled to see a doctor soon, but she did not immediately put Whitaker in an “H.S.P. [High Suicide Prevention] safety cell.” Id. at 6. Thereafter, on May 25, 2021, Whitaker seriously injured himself by cutting a five-inch gash into his left forearm with a piece of metal. Id. at 5-6. As a result of his self-harm, Whitaker had to be taken to the hospital, where he received stitches. Id. at 6. At some point, White responded to Whitaker's May 21 mental health request by stating he could speak to his doctor about his medications at his next appointment. Am. Compl. at 6-7.
The Court received Whitaker's original complaint (ECF No. 1) on September 20, 2021, and his amended complaint (ECF No. 11) on December 27, 2021. In his amended complaint, Whitaker alleges White was deliberately indifferent to his serious medical need by failing to move him to a safety cell in response to his reports of homicidal and suicidal thoughts. Am. Compl. 6. Although Whitaker asserted claims against both White and MCJ's mental health supervisor, Dr. Patillo, following preliminary screening, only Whitaker's deliberate indifference to a serious medical need claim against White was allowed to proceed for further factual development. & R. 7, Jan. 6, 2022, ECF No. 12; Order, Mar. 11, 2022, ECF No. 23 (adopting recommendation).
White answered the complaint on March 11, 2022 (ECF No. 22). Afterward, White's attorney mailed requests for admission to Whitaker at the various addresses he provided to the Court. Helmick Decl. ¶ 2, ECF No. 28-4. One of these requests asked Whitaker to admit that he “did not file a grievance with the jail regarding the allegations of deliberate indifference that [he makes] against Defendant in this case.” White Ex. C, at 8, ECF No. 28-5. Another asked him to admit that he “did not file an appeal from a grievance decision, regarding the allegations of deliberate indifference that [he makes] against Defendant in this case.” Id. Defense counsel never received a response to the requests for admission.Helmick Decl. ¶ 3.
On May 26, 2022, Whitaker filed a motion asking for an extension of time to respond to White's interrogatories to him. Pl's Mot. for Extension of Time 1, ECF No. 25. According to defense counsel, the requests for admission were included with these interrogatories, so, presumably, Whitaker received them also. Helmick Decl. ¶¶ 2-3; Def.'s Resp. to Pl.'s Mot. for Extension of Time 1-2, ECF No. 26.
White moved for summary judgment on July 1, 2022 (ECF No. 28). On July 5, 2022, the Court notified Whitaker of his right to respond to the motion within thirty days, warning him that if he did not respond, the Court could “accept Defendant's factual assertions as true” and that judgment could “then be entered in Defendant's favor without a trial.” Order 3, ECF No. 29. On August 29, 2022, the Court ordered White to supplement the record regarding her exhaustion defense, and gave Whitaker fourteen days to respond to White's supplemental filing. Order 2, ECF No. 30. The copy of the order sent to Whitaker was returned as undeliverable due to there being no mail receptacle at the address Whitaker provided the Court. Mail Returned, Sept. 7, 2022, ECF No. 31. The Court previously advised Whitaker of his duty to keep the Court informed of his current address.Order & R. 8, Jan. 6, 2022. White filed a supplement to her motion for summary judgment on September 16, 2022 (ECF No. 32). Whitaker did not respond to White's motion for summary judgment or her supplement. White's motion is ripe for review.
Whitaker has filed several complaints in this district, and his failure to keep the Court and parties apprised of his current address is a common theme. It is not the Court's responsibility to track litigants down to determine their current location for service.
DISCUSSION
White argues that Whitaker failed to exhaust his administrative remedies. Def.'s Br. in Supp. of Mot. for Summ. J. 12-13, ECF No. 28-1. Although she also argues other grounds for summary judgment, the Court must first address exhaustion as it is “threshold matter” that must be decided prior to considering the merits of the case. Chandley v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004). Because the Court agrees that Whitaker failed to exhaust his administrative remedies, it recommends his complaint be dismissed and declines to address White's other grounds.
I. 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). When a grievance procedure is provided for prisoners, “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) (internal citation and quotation marks omitted). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The critical function of the grievance process is that it provides the institution with notice of a problem such that they have an opportunity to address the problem internally.” Toenniges v. Ga. Dep't of Corr., 600 Fed.Appx. 645, 649 (11th Cir. 2015) (per curiam).
“Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.” Bryant, 530 F.3d at 1374-75 (internal quotation marks omitted). 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. In resolving the factual dispute, a Court is authorized to make credibility determinations. See Bryant, 530 F.3d at 1377-78 (finding that district court did not clearly err in determining that plaintiff's allegation that he was denied access to grievance forms was not credible); see also Whatley v. Smith, 898 F.3d 1072, 1082-83 (11th Cir. 2018) (upholding district court finding that one of inmate's grievances was not filed).
Such is the case here. Therefore, although White argues exhaustion in a summary judgment motion, it will be treated as a motion to dismiss. White specifically raised exhaustion as a defense in her answer, so it is not waived. Def.'s Answer 2, ECF No. 22; see Black v. Camon, No. 7:06-cv-75-HL, 2008 WL 2119914, at *2 (M.D. Ga. May 19, 2008) (finding exhaustion was not waived and could be asserted in a motion for summary judgment because defendants raised it as a defense in their answer); see also Gomez v. Jackson, No. 1:18-cv-963, 2020 WL 4048061, at *9 n.9 (N.D.Ga. July 20, 2020) (citing cases to illustrate that “the Eleventh Circuit routinely affirms orders granting post-answer motions to dismiss (styled as motions for summary judgment) for lack of exhaustion”).
A prisoner need only exhaust administrative remedies that are available. Ross v. Blake, 578 U.S. 632, 642 (2016). In Ross, 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.” Id. at 643-44. For a remedy to be available, it “must be capable of use for the accomplishment of its purpose.” Turner, 541 F.3d at 1084 (quotation marks omitted). The burden is on the defendant to show that an administrative remedy is available, but “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) (internal quotation marks omitted) (citing Turner, 541 F.3d at 1085).
II. MCJ Administrative Procedures
White has submitted the declaration of Lieutenant Tammy Foster, who is the MCJ grievance officer. Foster 2d Decl. ¶ 2, ECF No. 32-1. Foster is familiar with MCJ's grievance policies and procedures. Id. According to Foster, the jail provided Whitaker a form at his intake and orientation entitled “Inmate Kiosks,” which explained that the jail maintained a grievance process through the kiosks. Id. ¶ 4; Foster Ex. A., ECF No. 32-2. The form noted that a grievance could be filed on incidents the jail or staff had control over. Id. It stated that grievances would be reviewed by a grievance investigator and that if the inmate was not satisfied with the outcome, he or she could appeal the findings, first to a grievance lieutenant and then to the Captain. Id. Whitaker signed the form, acknowledging that he read and understood it. Id.
MCJ's grievance procedure are set forth in the inmate handbook, which is made available to inmates through the jails kiosk messaging system. Foster Ex. C, at 1, ECF No. 32-4; Foster Ex. B., ECF No. 32-3. The grievance procedures are also set forth under MCJ “policy identifier” 9-88. Foster Ex. C, at 2. Under MCJ's grievance procedures, a grievance must be submitted within five days of the incident at issue and must provide the time and date of the incident, the names of the jail officers or medical staff involved, and a narrative of the incident. Foster Ex. B, at 26; Foster Ex. C, at 2. An inmate who cannot complete the grievance form on the kiosk system may obtain assistance from another inmate or jail officer. Foster Ex. B, at 26; Foster Ex. C, at 3. The grievance officer has fifteen days to provide a written response to the grievance. Id. If the inmate disagrees with the response, he or she may appeal to the jail commander or designee within three days. Id. The jail commander has ten days to respond. Foster Ex. B, at 26-27; Foster Ex. C, at 3. Upon the jail commander's response, the grievance system is deemed terminated and the inmate has exhausted all available administrative remedies. Foster Ex. B, at 27; Foster Ex. C, at 3.
The jail's grievance procedures are poorly written and at times contradictory. The inmate kiosk form refers to a three-level grievance process involving a “grievance investigator,” “grievance lieutenant,” and “the Captain.” Foster Ex. A. The inmate handbook and jail grievance policy refer only to a two-level process involving the grievance officer and jail commander. Foster Ex. B, at 26-27; Foster Ex. C, at 3. Neither the inmate kiosk form nor inmate handbook specify the time limit for appeals, but the jail grievance policy provides for three days. Foster Ex. A; Foster Ex. B, at 25-27; Foster Ex. C, at 3. Further, the inmate handbook suggests an informal grievance process is available for a civil rights violation prior to referral to the formal grievance system, but the grievance policy states a civil rights violation is to be referred to the formal grievance system without attempting informal resolution. Foster Ex. B, at 25; Foster Ex. C, at 2. Because Whitaker failed to file a grievance for the conduct at issue in this case, however, these inconsistencies are immaterial.
III. Whitaker's Grievances
Consistent with Whitaker's amended complaint, Foster states Whitaker filed a mental health grievance on May 18, 2021, at 4:27 p.m., and she has attached the grievance to her declaration. Foster 2d Decl. ¶ 6; Foster Ex. D, ECF No. 32-5. The entirety of the grievance states:
the medication that [I] am receiving is not working [I] have been prescribed haldol 10 milligrams twice a day aritaine [sic] 5 milligrams twice a day wellbutron [sic] 150 milligrams twice a day and remron [sic] 20 milligrams once a day for several years new herizon [sic] and every where [I]'ve been prescribes me the same prescription [I] am hearing voices and haluscinating [sic] constantly now and having homicidal and suicidal thoughts can [I] please see a doctor immediately so that we can get my medication prescription straiten [sic] out please your help would be appreciated thank you very much ishmael whitaker
Foster Ex. D. White responded to the grievance via the kiosk on May 24, 2021, at 8:33 a.m., stating, “Mr. Whitaker, you will be scheduled to see the doctor soon. Thank you, Mrs. White.” Id. According to Foster, Whitaker did not appeal the grievance response. Foster 2d Decl. ¶ 6.
On May 21, 2021, at 8:44 p.m., Whitaker submitted a mental health request through the kiosk system. Foster 2d Decl. ¶ 6; Foster Ex. E, ECF No. 32-5. This request was not submitted as a grievance. Foster 2d Decl. ¶ 6. The entirety of the request states:
the medication that [I] am receiving is not working [I] am hearing voices and seeing things that are making me feel homicidal and sucidal [sic] [I] am not in good shape [I] need my medication that [I] normally receive at new herizon [sic] 10 milligrams haldol twice a day 5 milligrams aritaine [sic] twice a day 150 milligrams wellbutron [sic] twice a day 20 milligrams remron [sic] twice a day please help me before [I] have a episode and hurt somebody and or hurt myself help help help help
Foster Ex. E. White responded to the request on May 25, 2021, at 7:47 a.m., outlining Whitaker's current medications and explaining that his understanding of his current prescriptions was incorrect. Id. She stated he “may talk with the doctor about [his] medication concerns at [his] next appointment. Thank you, Mrs. White.” Id. According to Foster, Whitaker did not attempt to appeal the decision on the request. Foster 2d Decl. ¶ 6.
On May 29, 2021, Whitaker filed a grievance complaining he was being denied the right to appeal grievances. Foster 2d Decl. ¶ 8; Foster Ex. H, ECF No. 32-9. Whitaker's grievance stated, “[T]his kios[k] does not have a way for me to appeal my grievances to the next or highest level.” Foster Ex. H. The grievance did not mention denial of medication or a failure of staff to respond to his report of suicidal and homicidal thoughts. Id. Lieutenant Holloway found the grievance “unsustained” and responded to Whitaker:
I looked at your history, and first you haven't written a grievance that was not resolved. The last I spoke to you on the floor, I wrote you back saying that you yourself explained that the matter regarding your meds was resolved. Since then what area are you speaking of that you need to appeal? You need to provide more detail as to what or who didn't allow you to appeal, and what was it you were needing to appeal?Id.
On June 1, 2021, Whitaker filed another grievance. Foster 2d Decl. ¶ 7; Foster Ex. F, ECF No. 32-7. This grievance stated:
[I] am writting [sic] this greviance [sic] because the mental health doctor lied to me when he said he was gonna give me all the medications that [I] was prescribed at the time before [I] came to jail on this burgurlary [sic] charge that are listed in the computer data base from new herizon [sic] the reason that I have done self injury to my self is that [I] am not receiving [sic] my prescription that [I] normally receive and due to the fact that he lied to me right afther [sic] [I] hurt my self is the reason [I] am writting [sic] this greviance [sic] in which [I] feel like [I] cant [sic] trust him anymore [I] now have a five inch scar on my left forearm do [sic] to deliberate indiffernce [sic] on mental health and staffs behalf and now he has lied to me and [I] am not recieving [sic] my prescription that is a combination of medication that helps
me deal with the voices respectfully submitted ishmael whitaker
Foster Ex. F. Lieutenant Holloway again found the grievance unsustained, noted Whitaker should have filed it as a medical grievance instead of a general grievance, and suggested he request to see a doctor again or file a medical grievance. Id. She also commented, “You told me earlier when I came to the floor that all was taken care of and that you were now receiving your meds, now you saying you are not.” Id. Foster states Whitaker did not appeal the response to this grievance. Foster 2d Decl. ¶ 7.
According to Foster, Whitaker filed several other grievances and appeals in September and October 2021, and she has attached the grievances to her declaration. Foster 2d Decl. ¶¶ 8-9; Foster Ex. G, ECF No. 32-8; Foster Ex. I, ECF No. 32-10; Foster Ex. J, ECF No. 32-11. None of the other grievances relate to the issues in this case.
Whitaker's September grievances complained about overcrowding and conditions in the safety cells, but not the failure of White or staff to place him in a safety cell in response to his expression of suicidal thoughts in May. Further, even if those grievances related to the allegations in Whitaker's amended complaint, they would have been untimely under MCJ's grievance procedures.
IV. Analysis
White contends Whitaker failed to exhaust his available administrative remedies because he did not file a grievance related to Ms. White's conduct that is at issue in this case or file an appeal of the May 18 grievance. Def's Br. in Supp. of Mot. for Summ. J. 13. White also argues that by failing to respond to her requests for admission, Whitaker has admitted that he failed to file a grievance related to his deliberate indifference claim or appeal the denial of a grievance. Id. As previously noted, Whitaker did not respond to White's motion for summary judgment or her supplemental filing. However, in his amended complaint, he states that he filed a grievance and White responded. Am. Compl. 3-5. He also alleges “[t]here is no higher level” for appeal of a grievance. Id. at 4.
Normally, the Court would take Whitaker's version of the facts in the amended complaint as being true and proceed to the second step of the Turner analysis. In this case, however, Whitaker failed to respond to White's requests for admission that he “did not file a grievance with the jail regarding the allegations of deliberate indifference that [he makes] against Defendant in this case” and he “did not file an appeal from a grievance decision, regarding the allegations of deliberate indifference that [he makes] against Defendant in this case.” White Ex. C, at 8. “A matter is admitted unless . . . the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Fed R. Civ. P. 36(a)(3). Further “[a] matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.” Fed R. Civ. P. 36(b). Finally, “[s]ince Rule 36 admissions, whether express or by default, are conclusive as to the matters admitted, they cannot be overcome at the summary judgement stage by contradictory affidavit testimony or other evidence in the summary judgment record.” In re Carney, 258 F.3d 415, 420 (5th Cir. 2001). Therefore, the Court recommends dismissal of Whitaker's complaint at the first step of the Turner analysis. Nevertheless, in an abundance of caution, the Court will proceed to the second step of the Turner analysis and make specific findings of fact.
The Court concludes that even without consideration of Whitaker's failure to respond to the requests for admission, the complaint should still be dismissed. First, the Court finds administrative remedies were generally available to Whitaker as demonstrated by his numerous grievances and MCJ's responses. Second, the Court finds Whitaker failed to exhaust those remedies. The key consideration in this analysis is Whitaker's allegation of deliberate indifference against White. His allegation is not that she failed to properly adjust his medication-or even that she failed to have him seen immediately by a doctor- but that she failed to place him in a safety cell when made aware of his suicidal thoughts. Am. Compl. 6. None of Whitaker's grievances-or his May 21 request-mention anything about White or any other member of staff failing to move him to a safety cell. The May 18, May 21, and June 1 submissions all complain about his prescriptions and the need for the doctor to change them. The “critical” requirement of a grievance is that it provide an institution with “notice of a problem” so that it can address it internally. See Toenniges, 600 Fed.Appx. at 649. There is nothing in Whitaker's grievances that would notify MCJ of an issue with staff failing to place suicidal inmates in safety cells.
The failure of Whitaker's grievance to specifically identify White is not critical. The “exhaustion requirement is designed to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued.” Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1219 (11th Cir. 2010) (internal quotation marks omitted). The issue with Whitaker's grievances is they failed to notify jail officials of the problem that is the basis for his allegations against White.
As discussed above, Whitaker's grievances and amended complaint allege deficiencies with MCJ's grievance appeal procedures, which could conceivably raise an issue as to whether this aspect of MCJ's administrative remedies were available. See Ross, 578 U.S. at 642-44. However, because Whitaker filed no grievances related to the allegations made against White in his complaint, the Court need not address whether an appeal remedy for denial of grievances was available. Further, the evidence in the record demonstrates that Whitaker was able to utilize MCJ's grievance appeal procedures on other occasions. See Foster Ex. G.
In summary, the Court concludes that due to the matters deemed admitted by Whitaker's failure to respond to White's requests for admission, his complaint should be dismissed for failure to exhaust at the first step of the Turner analysis. In the alternative, the Court recommends dismissal at the second step due to his failure to file a grievance related to his claims in this case.
CONCLUSION
For the reasons explained above, it is recommended that Defendant's motion for summary judgment (ECF No. 28) be granted and that Plaintiff's complaint be dismissed without prejudice for failure to exhaust his administrative remedies. 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. Any objection should be no longer than TWENTY (20) PAGES in length. 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.