Fedd
v.
Bryson

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISIONJul 26, 2018
5 : 17-CV-70 (TES) (M.D. Ga. Jul. 26, 2018)

5 : 17-CV-70 (TES)

07-26-2018

LEVI ARTHUR FEDD, Plaintiff, v. HOMER BRYSON, et al., Defendants.


ORDER and RECOMMENDATION

Presently pending in this action brought pursuant to 42 U.S.C. § 1983 are motions to dismiss filed on behalf of Defendants Bryson, Palmer, Cook, Rozier, Michael Williams, Caldwell, Hogan, Bray, and Whittinton, as well as motions for the appointment of counsel and a motion regarding imminent danger filed by Plaintiff. (Docs. 36, 38, 50, 58, 62). The Court notified the Plaintiff of the filing of the pending motions to dismiss and directed him to respond thereto within thirty (30) days of the Court's Order. (Docs. 41, 56). The Plaintiff has filed a response to Defendants' motions. (Doc. 57).

Plaintiff brought this action in February 2017, raising claims of deliberate indifference and due process violations while confined at Wilcox State Prison. (Doc. 1). At the Court's direction, Plaintiff filed a recast Complaint on September 26, 2017. (Doc. 15). Plaintiff alleges that he was placed in lockdown for eight to nine hours, and allegedly "bugs got all over [his] body" that started "eating holdes in [his] body." Id. Despite informing Defendants about this insect infestation, Plaintiff alleges that Defendants denied him medical treatment for nearly a year. Id. Plaintiff also alleges that he was placed in administrative segregation "without cause". Id. These claims were ultimately allowed to go forward. (Doc. 42).

Motions to Dismiss

Defendants Bryson, Palmer, Cook, Rozier, Michael Williams, Caldwell, Hogan, Bray, and Whittinton have filed a Motion to Dismiss and an Amended Motion to Dismiss. (Docs. 38, 50). The Amended Motion to Dismiss addresses Plaintiff's due process claim that was allowed to go forward by Order of the District Court dated March 14, 2018. (Docs. 50, 42). Defendants assert that the Plaintiff has failed to exhaust his administrative remedies prior to filing this lawsuit as to all of his claims. (Docs. 38, 50). A motion to dismiss can be granted only if Plaintiff's Complaint, with all factual allegations accepted as true, fails to "raise a right to relief above the speculative level". Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.


Ashcroft v
. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556, 570).

In regard to exhaustion of administrative remedies, the Prison Litigation Reform Act ("PLRA") mandates that all prisoners wishing to bring suits pursuant to § 1983 based on conditions of confinement violations must exhaust all available administrative remedies prior to filing a federal action. The Act provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, 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). In order to satisfy the exhaustion requirement, an inmate must fully pursue all available administrative remedies, including pursuing and completing all levels of appeal. Moore v. Smith, 18 F. Supp. 2d 1360, 1363 (N.D.Ga. 1998); Harper v. Jenkin, 179 F.3d 1311 (11th Cir. 1999) (inmate who failed to seek leave to file an out-of-time grievance failed to exhaust his administrative remedies as required by the PLRA). "An inmate must use all steps in the administrative process and comply with any administrative deadlines and other critical procedural rules before exhaustion is proper. Thus, if an inmate has filed an 'untimely or otherwise procedurally defective administrative grievance or appeal', he has not properly exhausted his administrative remedies." Woodford v. Ngo, 548 U.S. 81, 89-92 (2006).

The Eleventh Circuit has held that

deciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process. 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 version of 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. . . . If the complaint is not subject to dismissal at the first step, where the plaintiff's allegations are assumed to be true, the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.


Turner v
. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).

In response to the motions to dismiss filed by the identified Defendants, Plaintiff asserts that he tried to exhaust his claims but that Defendant Warden Caldwell blocked his grievances and that he was refused grievance forms. (Doc. 57). Plaintiff's claims therefore are not subject to dismissal pursuant to the first step of the Turner analysis. See Whatley v. Warden, Ware State Prison, -- F.3d --, 2015 WL 5568465 *5 (11th Cir. 2015) (under Turner analysis, court must accept plaintiff's facts as true and ask whether, given those facts, the alleged grievances exhausted administrative remedies; court must make specific findings to resolve disputed factual issues related to exhaustion).

Defendants establish, by means of the affidavit testimony of KaSann Mahogany, Grievance Coordinator at Wilcox State Prison, that a statewide grievance process was in place at the Georgia Department of Corrections, and specifically at Wilcox State Prison, at the time of the incident underlying this lawsuit. (Doc. 38-2, ¶¶ 2, 5). According to Mahogany's affidavit testimony, the grievance process available to Plaintiff includes two (2) steps, the filing of an original Grievance and a Central Office Appeal. Id. at ¶¶ 8, 17. The inmate must provide a completed formal grievance form to a counselor no later than ten (10) days from the date the inmate knew, or should have known, of the facts giving rise to the grievance. Id. at ¶ 10. The original grievance is screened by the Grievance Coordinator, who makes a recommendation to the Warden to either reject or accept the grievance for further consideration and investigation. Id. at ¶ 12. If the grievance is rejected, the inmate may appeal the Warden's rejection decision to the Central Office, either within 7 days of receipt of the response, or after the expiration of the 40-day time period for the Warden's decision. Id. at ¶¶ 16-18.

According to Mahogany's affidavit testimony, Plaintiff filed four (4) grievances while he was confined at Wilcox State Prison. Id. at ¶ 21. Two (2) of these grievances pertained to medical treatment for bug bites. Id. at ¶¶ 22, 23. The remaining two (2) grievances pertained to mail issues and the disciplinary report process. Id., n.1. Plaintiff dropped the first grievance, and the second grievance was denied by the warden on January 24, 2017 because it was "incoherent and not clearly legible". Id. at ¶ 23. Plaintiff filed an appeal on January 26, 2017, and the appeal was denied on September 13, 2017. Id. Plaintiff's initial Complaint was filed with the Court on February 16, 2017. (Doc. 1). Plaintiff appears to have signed his initial Complaint on February 2, 2017. Id. at p. 1.

Plaintiff contends that he did all he could to exhaust his claims, but that Warden Caldwell "stop ALL GRIEVANCE FORM" . . . and "stop [sic] all [form] as [well] as medical [forms]." (Doc. 57, p. 2). Plaintiff asserts that he was confined in administrative segregation for over one (1) year and was not provided grievance forms. Id. at p. 3. Plaintiff maintains that grievance forms were not "available" during this period of confinement, although he does not specify the dates of this confinement. Id. at 4; Doc. 15.

"[W]hen a state provides a grievance procedure for its 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). "[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules - rules that are defined not by the PLRA, but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007); see also Toenniges v. Georgia Dept. of Corrections, 600 F. A'ppx 645, 648 (2015) (prisoner must complete review process according to rules set forth in prison grievance system itself).

The Court finds that the Plaintiff has not exhausted his claims, in that, he has not utilized all available remedies to grieve the alleged offenses. The affidavit testimony in support of the Defendants' motions to dismiss establishes the presence of a grievance process at Wilcox State Prison, which was made known to Plaintiff, and establishes that the Plaintiff did not complete the process regarding his claims prior to filing this lawsuit. The record reveals no grievances filed regarding Plaintiff's due process claim, and an incomplete grievance process regarding his deliberate indifference claim as of the time Plaintiff filed his initial Complaint in February 2017.

Plaintiff maintains that he tried to file grievances regarding the claims underlying this lawsuit, but that he was blocked from doing so. However, Plaintiff did in fact file grievances during the time period in question. The filing of grievances evidences Plaintiff's awareness and utilization of the grievance procedure at the jail. See Gould v. Donald, 2009 WL 1606520 *5 (M.D.Ga) (CDL) (plaintiff was well aware of prison grievance policy as he had filed multiple grievances while imprisoned in the Georgia prison system).

Grievance no. 233626 was dropped by Plaintiff prior to any review or action by corrections officials. In regard to Grievance no. 234024, filed by Plaintiff on December 28, 2016, the response time on Plaintiff's appeal had not run prior to his execution of his Complaint on February 2, 2017. (Doc. 1; Doc. 38-2, ¶¶ 20, 23; Doc. 38-4; Doc. 38-5). In order to properly exhaust, Plaintiff must use all steps of the available exhaustion procedure. Woodford, 548 U.S. at 93. Plaintiff was required to complete the entire grievance procedure before filing suit. Higginbotham v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000).

It does not appear that this is a situation where administrative procedures were unavailable to Plaintiff based on officers being "unable or consistently unwilling to provide any relief to aggrieved inmates" or based on an administrative scheme "no ordinary prisoner can discern or navigate". Ross v. Blake, 2016 WL 3128839, *7-8, ___ U.S. ___ (2016).

The Court also notes that there is no indication that Plaintiff's use of the grievance process was actually prohibited by prison officials, by means of threat or otherwise. In order to demonstrate that administrative remedies were unavailable, the Plaintiff must point to specific facts showing that officials prohibited or blocked his use of the appeals process. Miller v. Tanner, 196 F.3d 1190, 1194 (11th Cir. 1999) (inmate was not required to file an appeal after being told unequivocally, and in writing, that appeal was precluded; plaintiff produced memorandum denying grievance and informing plaintiff that no appeal was available); Turner, 541 F.3d at 1085 (prison official's serious threats of retaliation against an inmate for pursuing a grievance render administrative remedies unavailable). Plaintiff provides only conclusory allegations that Defendant Caldwell blocked grievances and/or did not make grievance forms available during Plaintiff's undefined period of confinement in segregation. These conclusory allegations are insufficient to support the allegation that prison officials blocked Plaintiff's grievances. See Williams v. Barrow, 559 F. A'ppx 979, 988 (11th Cir. 2014) (inmate's conclusory allegations regarding exhaustion did not establish deterrence by defendant officials); Maclary v. Carroll, 142 F. A'ppx 618, 620 (3rd Cir. 2005) (inmate's unsupported conclusory allegations that he filed grievances but defendants failed to answer or process grievances were insufficient to overcome defendants' showing); Lyons v. Trinity Serv. Grp., Inc., 401 F. Supp. 2d 1290, 1297-98 (S.D.Fla. 2005) (plaintiff produced only his own conclusory statements that he had exhausted administrative remedies, failing to overcome defendants' showing that there was no record of particular grievance plaintiff claimed to have filed).

The affidavit testimony in support of Defendants' motions to dismiss establishes the presence of a grievance system at Wilcox State Prison, and establishes that the Plaintiff did not complete the grievance process regarding his claims prior to filing this lawsuit.

Conclusion

Inasmuch as the Plaintiff has failed to fully exhaust administrative remedies as to his claims, it is the recommendation of the undersigned that the Defendants' motions to dismiss be GRANTED, and that Plaintiff's Complaint be dismissed without prejudice as to all of the remaining Defendants.

Objections

Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to the recommendations herein, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the District Judge 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."

Plaintiff's motions for appointment of counsel

Pending are two (2) motions for appointment of counsel filed by Plaintiff. (Docs. 36, 58). Generally speaking, no right to counsel exists in §1983 actions. Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985); Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975); Mekdeci v. Merrel Nat'l. Lab., 711 F.2d 1510, 1522 n.19 (11th Cir. 1983). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982); Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982); Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982).

In deciding whether legal counsel should be provided, the Court typically considers, among other factors, the merits of the Plaintiff's claim and the complexity of the issues presented. See Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989). Applying the standards set forth in Holt, it appears that at the present time, the essential facts and legal doctrines in this case are ascertainable by the Plaintiff without the assistance of court-appointed legal counsel and that the existence of exceptional circumstances has not been shown by the Plaintiff. The Court on its own motion will consider assisting Plaintiff in securing legal counsel if and when it becomes apparent that legal assistance is required. Accordingly, Plaintiff's motions for appointment of counsel are DENIED. (Docs. 36, 58).

Plaintiff's Motion regarding imminent danger

In a motion filed on May 4, 2018, Plaintiff provides notice regarding alleged imminent danger and notes his address change. (Doc. 62). To the extent that this motion seeks relief from the Court, it is DENIED as moot.

SO ORDERED and RECOMMENDED, this 26th day of July, 2018.

s/ THOMAS Q. LANGSTAFF


UNITED STATES MAGISTRATE JUDGE asb