THOMAS Q. LANGSTAFF, Magistrate Judge.
Presently pending in this action brought pursuant to 42 U.S.C. § 1983 are a Motion to Dismiss filed on behalf of the Defendants, and various motions filed by the Plaintiff. (Docs. 16, 20, 24-26, 35, 39). The Court notified the Plaintiff of the filing of the Defendants' Motion to Dismiss and directed him to respond thereto within thirty (30) days of the Court's order. (Doc. 18).
Plaintiff filed this action in August 2012, raising allegations of deliberate indifference to his serious medical conditions while housed at Valdosta State Prison. (Doc. 1). Plaintiff claims that Defendants Danforth and Orr assigned Plaintiff to a top bunk when they were aware of his history of seizures. (Doc. 1). Plaintiff asserts that he subsequently fell off the top bunk during a seizure and injured his eye. Id.
Defendants Danforth and Orr have filed a Motion to Dismiss, asserting in part that the Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit. (Doc. 16). 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).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556, 570). The key to proper consideration of a motion to dismiss after Twombly is plausibility, as the "well-pled allegations must nudge the claim across the line from conceivable to plausible." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009). Although the Court must accept as true all of the factual allegations in the Complaint, this standard does not apply to legal conclusions in the Complaint. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
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
Turner v. Burnside, 541 F.3d 1077, 1082 (11
The Plaintiff does not refute the Defendants' showing that the grievance filed by the Plaintiff regarding the claims underlying this lawsuit was still pending at the time he filed his original Complaint. (Doc. 1). Moreover, in support of his proposed Amended Complaint, Plaintiff submitted the Grievance Appeal Response he received regarding his claims, which was dated October 16, 2012 and therefore not issued until more than two (2) months after Plaintiff executed his original Complaint. (Doc. 20-2, p. 5). Plaintiff's claims therefore are subject to dismissal pursuant to the first step of the Turner analysis.
The Defendants establish, by means of the affidavit testimony of Shawn Emmons, Chief Coounselor at Valdosta State Prison, that a grievance system was in place at Valdosta State Prison at the time of the incident underlying this lawsuit. (Doc. 16-2). The Defendants further establish, supported by the affidavit testimony of Emmons, that during Plaintiff's incarceration at Valdosta State Prison and prior to the filing of this lawsuit, Plaintiff had filed informal and formal grievances, but had not completed the grievance process as to the underlying claims herein before filing this lawsuit. Id. at ¶¶ 12-15. Specifically, the Plaintiff's appeal of the response to his formal grievance, filed July 31, 2012, was still pending when Plaintiff filed this lawsuit in August 2012. Id.
The Court finds that the Plaintiff has not exhausted the claims underlying this lawsuit, in that, he has not utilized all available remedies to grieve the alleged offenses of the Defendants. The affidavit testimony in support of the Defendants' Motion to Dismiss establishes the presence of a grievance system at Valdosta State Prison and establishes that the Plaintiff did not complete the grievance process regarding his claim prior to filing this lawsuit.
The evidence before the Court shows that Plaintiff did not properly pursue and exhaust the grievance procedure, leaving administrative remedies unexhausted. The PLRA "requires proper exhaustion". Woodford, 548 U.S. at 92. In order to properly exhaust his claims, a prisoner must "us[e] all steps" in the administrative process; he must comply with any administrative "deadlines and other critical procedural rules" in place. Id. Exhaustion of the grievance system by means of filing some form of proper grievance is required. Parzyck v. Prison Health Services, Inc., 627 F.3d 1215, 1218 (11th Cir. 2010) (citing Jones v. Bock, 549 U.S. 199, 219 (2007)). The Court finds that the Defendants have met their burden to establish that the Plaintiff failed to exhaust his administrative remedies as to the claims underlying this lawsuit.
The Court notes that there is no indication that Plaintiff's use of the grievance process was 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 grievance process. Miller v. Tanner, 196 F.3d 1190, 1194 (11
Inasmuch as the Plaintiff has failed to fully exhaust administrative remedies as to his claims brought against the Defendants, it is the recommendation of the undersigned that the Defendants' Motion to Dismiss be
In support of his Motion to Amend, the Plaintiff has submitted an Amended Complaint wherein he attempts to provide additional details as to his claims and his exhaustion of the prison grievance process. (Docs. 20 and attachments). Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure,
Plaintiff executed his Motion to Amend on December 4, 2012, twenty-five (25) days after the Defendants filed their Motion to Dismiss. (Docs.16, 20). Thus, Plaintiff may not amend his Complaint as of right, but seeks to add to his Complaint by leave of court.
The decision whether to grant leave to amend a pleading is within the sound discretion of the district court and is not automatic. Nat'l. Service Industries, Inc. v. Vafla Corp, 694 F.2d 246, 249 (11
The Court notes that the Plaintiff does not provide any explanation for his failure to include additional alleged
The Court finds that Plaintiff proceeded with
In a motion filed on January 31, 2013, the Plaintiff seeks a Court Order directing his transfer to another prison. In order to obtain injunctive relief, the Plaintiff must prove that: (1) there is a substantial likelihood that he will prevail on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985); Snook v. Trust Co. of Georgia Bank of Savannah, N.A., 909 F.2d 480, 483 (11th Cir. 1990). Injunctive relief will not issue unless the conduct at issue is imminent and no other relief or compensation is available. Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987).
A review of the Plaintiff's motion reveals an inadequate basis for the issuance of an injunctive order. Plaintiff has not established that he is entitled to injunctive relief in regard to his requests, i.e., that there is a substantial likelihood of success on the merits or resulting irreparable harm, or that no other relief is available to address his alleged injuries.
Plaintiff has petitioned this Court to appoint legal counsel to represent him in this proceeding. Generally speaking, no right to counsel exists in §1983 actions. Wahl v. McIver, 773 F.2d 1169, 1174 (11
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
In light of the rulings and recommendations issued herein, Plaintiff's Motion to Stay has been rendered moot and is hereby
Pursuant to 28 U.S.C. § 636(b)(1), the parties may file written objections to the recommendations herein with the Honorable Hugh Lawson, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation.
