G. R. SMITH, Magistrate Judge.
After preliminary screening under 28 U.S.C. § 1915A and a Complaint amendment by Scourterrious Lofton (doe. 9), the court recommended that four claims proceed.
From the Court's § 1915A recommendation:
Lofton v. Williams, 2016 WL 126408 at * 1 (S.D. Ga. Jan. 11, 2016).
In their motion to dismiss, defendants argue the opposite—that Lofton in fact failed to exhaust available remedies. Doc. 18-1 at 3. They also contend that (1) his post-Complaint transfer to another prison moots his request for injunctive relief (id. at 9); (2) the Eleventh Amendment bars recovery of damages from defendants in their official capacities (id. at 10); and (3) he fails to state a claim for compensatory or punitive damages. Id. at 13.
Defendants first argue that Lofton failed to properly exhaust available administrative remedies. Citing to his grievance record and the two grievances Lofton attached to his Complaint, they contend that, despite filing "nine grievances since his transfer to SSP," he never grieved "any of the issues forming the basis of the claims in this . . . action." Doc. 18-1 at 5. That, says defendants, is not the proper exhaustion that § 1997e(a) requires.
In response, Lofton points to his attached grievances and concludes "that all administrative remedies were exhausted." Doc. 21. Elaborating, he notes that disciplinary hearings or administrative segregation assignments are non-grievable (true, see doe. 18-3 at 23) and concludes that "even though [he] addressed the grievance complaint there is no cognizable recourse for such administrative relief." Id. at 2. Lofton in effect argues that his claims involve non-grievable issues, and thus the grievances he actually submitted suffice for § 1997e(a)'s purposes.
Under that provision, "[n1 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
PLRA exhaustion also must be "proper." Woodford v. Ngo, 548 U.S. 81, 93 (2006). That means an inmate must "us[e] all steps" in the administrative process, and comply with any administrative "deadlines and other critical procedural rules," before filing a complaint about prison conditions in federal court. Id. at 89-91 (citation omitted). If an inmate files an "untimely or otherwise procedurally defective administrative grievance or appeal," he therefore has not properly exhausted his administrative remedies. Id. at 83-84; see also Lambert v. United States, 198 F. App'x. 835, 840 (11th Cir. 2006) (proper exhaustion requires filing a grievance "under the terms of and according to the time set by" prison officials). If a prisoner fails to complete the administrative process or falls short of compliance with procedural rules governing prisoner grievances, he procedurally defaults his claims. Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005).
Exhaustion, however, is an affirmative defense and "defendants bear the burden of proving that the plaintiff has failed to exhaust." Turner, 541 F.3d at 1082 (quoting Jones, 549 U.S. at 216). "[T]reated as a matter in abatement," exhaustion defenses are "like a defense for lack of jurisdiction." Id. Deciding them thus involves a "two-step process." Id.
Id. at 1082-83 (cites omitted); see also Bryant v. Rich, 530 F.3d 1368, 1376-77 (11th Cir. 2008) ("[W]here a factual issue arises in connection with a jurisdictional or related type of motion, the general view is that there is no right of jury trial as to that issue . . . and that the court has a broad discretion as to the method to be used in resolving the factual dispute.").
Even taking Lofton's allegations as true,
Lofton simply never grieved any of the issues that he plies here. He complained about the process provided in a disciplinary hearing (doe. 1 at 11), and sought the return of property lost during his transfer from MSP to SSP (id.; doe. 1-1 at 2), but never mentioned religious discrimination (or religion at all, for that matter) or any illegal search, much less a degrading strip search.
A failure to exhaust typically justifies dismissal without prejudice. See Howard v. Kraus, 2016 WL 471387 at * 2 (11th Cir. Feb. 8, 2016) ("[D]ismissal for failure to exhaust administrative remedies is not an adjudication on the merits. . . ."); Prickett v. Lawson, 2008 WL 5046063 at 3 (S.D. Ga. Nov. 24, 2008) ("Normally, the failure to exhaust warrants dismissal without prejudice."). That's true here. If Lofton wishes to refile (without prejudice means he can do that) before the two year statute of limitations expires,
Two of defendants' remaining arguments, though not necessary to deciding this case, require a few words should Lofton indeed refile. First, he cannot recover monetary damages from state officials sued in their official capacities (i.e., if he sues the Warden qua Warden instead of the Warden as an individual, he cannot recover money). See Kentucky v. Graham, 473 U.S. 159, 169 (1985) ("[A]bsent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against . . . State officials . . . sued . . . in their official capacity."). He may sue Williams and Santiago, but only in their individual capacities, and not in their capacities as officers of the state.
Second, he may not recover anything more than nominal damages for "mental or emotional injury suffered while in custody" unless he can show "physical injury" as well. 42 U.S.C. § 1997e(e); Brooks v. Powell, 800 F.3d 1295, 1307 (11th Cir. 2015) ("Under the statute and our caselaw, an incarcerated plaintiff cannot recover either compensatory or punitive damages for constitutional violations unless he can demonstrate a (more than de minimis) physical injury."). His current Complaint makes no such allegation. Nevertheless, even absent physical injury, aggrieved prisoners may recover nominal damages (which can, in certain circumstances, support an award of attorney's fees should Lofton ever obtain counsel).
Because Scourterrious Lofton failed to exhaust available administrative remedies, his Complaint should be
Id. at 1858-59.
"[T]hree kinds of circumstances [exist] in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Id. at 1859. "First," a procedure "is unavailable when. . . it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id.; see also Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008) ("Remedies that rational inmates cannot be expected to use are not capable of accomplishing their purposes and so are not available."). And finally, grievance processes need not be exhausted "when prison administrators thwart inmates from taking advantage of [it] through machination, misrepresentation, or intimidation." Ross, 136 S. Ct. at 1860.
Alexander v. Hawk, 159 F.3d 1321, 1327 (11th Cir. 1998) (quotes omitted); see also Woodford, 545 U.S. at 89; Porter v. Nussie, 534 U.S. 516, 528 (2002) (PLRA's primary concerns are "to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court").
The current procedure gives SSP forty days to respond to grievances (fifty with a one-time ten day extension). Doc. 18-3 at 10. Lofton then would have seven days to file an appeal of any adverse decision, which the Commissioner of the Department of Corrections has 100 days to decide. Id. at 11-12. Assuming an initial grievance is denied, Lofton appeals, and the prison uses all available decision time, the grievance process may not be completed until after the statute of limitations expires (157 days well exceeds the 90 or so days until Lofton runs out of time to file suit). That limitations period, however, may toll during a prisoner's attempt to exhaust his available remedies. See Watkins v. Haynes, 2013 WL 1289312 at * 8 (S.D. Ga. Mar. 27, 2013) ("Applying the rationale from [relevant Georgia] cases . . . this Court holds that the statute of limitations was tolled while Plaintiff complied with the PLRA by pursuing possible administrative remedies prior to filing suit."). At this juncture, tolling's application here is speculative and thus not an issue the Court need decide.
