G. R. SMITH, Magistrate Judge.
After preliminary screening under 28 U.S.C. § 1915A, the Court ordered responses to Dantonius Owens' 42 U.S.C. § 1983 Complaint. Docs. 16, 24. Defendants then moved to dismiss for lack of exhaustion of administrative remedies (doc. 26) and to stay discovery pending resolution of that motion. Doc. 27.
From the Court's § 1915A Order, which reproduced plaintiff's allegations in raw, unedited form:
Owens v. Prince, 2015 WL 5168474 at * 1 (S.D. Ga. Sept. 2, 2015).
As alluded to above, on December 17, 2009, "Mr. Owens filed a complaint of sexual abuse with PRLA.
Thereafter "Owens `continued to push for some justice.' Id. In response, `the warden of Coastal [Jack Koon] . . . told Mr. Owens that he was going to insure that Mr. Owens would die in prison because Mr. Owens filed his complaint of sexual abuse.' Id. After being transferred to the Chatham County jail for a court date, Owens complained to that facility's investigator about his treatment at Coastal. Id." Owens, 2015 WL 5168474 at * 2. He gave a written statement and recorded interview and was informed that a full investigation "would be done." Doc. 15 at 8. Owens says that investigation never happened. Id. at 9. Instead, upon his return to state prison, he "was placed on lockdown and was physical[ly] assaulted . . . for filing his complaint to the Chatham County Jail." Id.
Owens claims to have filed "over eight (8) complaints concerning the harassment and assault against him," yet allegedly nothing has been done. Doc. 15 at 9. Some of those complaints consisted of inquiries by his family regarding progress into investigating his sexual assault complaint. See, e.g., doc. 30 at 13. Those began in at least February 2011, and occurred again in April 2011, May 2011, and May 2013. Id. at 13-16. In between family inquiries, on May 10, 2012, Owens consented to a mental health "evaluation following allegation of suspected sexual abuse." Doc. 30 at 17.
Owens' Complaint in a April 2014 Middle District of Georgia case, in which he sought to have the court order the issuance of arrest warrants against Briddell, Manker, and Prince, provides more detail. There he said that he complained thirteen times between December 17, 2009 and March 29, 2014, including by filing "a complaint to the Ombudsman department." Owens v. Head, No. 5:14-cv-164, doc. 1 at 3 (M.D. Ga. April 28, 2014) ("Head"). Consistent with his allegations in this case, Owens stated that those complaints went unanswered and resulted in reprisals from Warden Koon. Id. at 5. Finally, on April 3, 2014, Owens says the PREA mental health counselor told him that "no paperwork complaint, or investigation has ever been filed concerning [his] sexual assault." Id. At no point in either this case or Head does Owens allege that he filed an informal grievance, formal grievance, or appealed denials of either.
Under 42 U.S.C. § 1997e(a), "[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
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.").
Defendants primarily argue that Owens failed to properly exhaust available administrative remedies. Doc. 26-1 at 7-11. Citing to his grievance record, they say he originally grieved the alleged sexual assault on May 20, 2013, well beyond the ten day window for filing a grievance after a grievable incident (not to mention beyond the two year statute of limitations for § 1983 claims; more on that later). Doc. 26-1 at 9. That, says defendants, isn't proper exhaustion and thus precludes Owens' bodily privacy claim. Id. Regarding his retaliation and excessive force claims, defendants contend that Owens to this day has never submitted a grievance about those incidents and thus failed to exhaust. Id. at 8.
Owens points out that the Georgia DOC has a "standard operating procedure (SOP) . . . that informs inmates . . . on how to report or handle a sexual assault/harassment claim." Doc. 30 at 3. That SOP, promulgated pursuant to PREA,
Pointing to his own declarations and emails from a relative, Owens says he and his family "notified prison staff and filed [] complaint[s] with the [DOC]." Doc. 30 at 4. Doing so, he contends, satisfied the DOC's PREA policy and, in turn, the exhaustion requirement as to his sexual assault claim. Id.; id. at 6 ("The PLRA provides that no action shall be brought by any prisoner until his/her administrative remedies that are available are exhausted. The PLRA does not say any prisoner wishing to seek action must use one way only to exhaust their administrative remedies.").
Turning to his retaliation and excessive force claims, Owens argues those are derivative of his sexual assault allegation and thus properly included in his PREA complaints. Doc. 30 at 5. Per the DOC's own policy, he says, inmates may "allege all the allegations and claims" related to a sexual assault incident "in one complaint instead of individual [complaints] as the Georgia Grievance Process would have an inmate do." Id. at 6. He did that and thus contends he exhausted those claims as well. Id.
Even taking all of Owens' allegations as true,
Even assuming those issues were resolved in plaintiff's favor, his claims nevertheless fail. PLRA requires exhaustion of "such administrative remedies as are available." 42 U.S.C. § 1997e(a) (emphasis added); Ross, 136 S. Ct. at 1856 (§ 1997e(a)'s "edict contains one significant qualifier: the remedies must indeed be `available' to the prisoner"). And the PREA regulations mandating the procedures Owens claims to have invoked only became effective on June 20, 2012 — over two years after Owens' alleged sexual assault.
The record reflects that the only administrative remedy available to Owens in December 2009 was SOP IIB05-0001's grievance procedure. Doc. 26-3. That required prisoners to complete a three step process, consisting of an informal grievance (which had to be filed within 10 days of an incident), a formal grievance, and an appeal, before filing suit in federal court. See Toenninges v. Ga. Dep't of Corrections, 600 F. App'x 645, 647 (11th Cir. 2015) (citing Ga. Dep't of Corr. SOP IIB05-001 § VI). Importantly, it allowed inmates to grieve "[a]ny condition, policy, or procedure, action or lack thereof that affects inmates and is in the control of the [GDOC]." Doc. 26-3 at 3. Although certain matters qualified as "non-grievable," "any grievance alleging retaliation, misconduct, or harassment [was] grievable regardless of the form." Id.
Owens failed to file any grievance relating to his alleged sexual assault until May 20, 2013, over two years after it occurred, see doc. 26-2 at 3-4; doc. 26-4 at 1, despite his clear knowledge of how to use the grievance process, having invoked it many times over the years (sometimes quite successfully). See doc. 26-4. That failure to timely grieve the assault (not to mention Koon's alleged retaliation, and Manker's alleged use of excessive force) constitutes improper exhaustion, see Woodford, 548 U.S. at 90-91 ("Proper exhaustion demands compliance with an agency's deadlines. . . ."), and thus fails to satisfy § 1997e(a). See Johnson, 418 F.3d at 1157 (inmates who untimely file grievances or simply spurn the administrative process until it is no longer available fail to satisfy PLRA's exhaustion requirement). That failure, in turn, precludes this action.
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."). Owens' untimely filing of this case,
Accordingly, Dantonius Owens' 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. Nussle, 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 Georgia Department of Corrections (GDOC) promulgated SOP IIA21-0001 to support PREA's goals. See doc. 30 at 19. It provides advice on how to avoid sexual assault, how to preserve evidence post-assault, and informs inmates that they can report sexual assaults (1) in writing (either by a "sick call, counselor request form, grievance, or on any kind of paper"); (2) in person to any staff member, including chaplains, mental health staff, and the "PREA coordinator;" (3) by declaring a medical emergency; and (4) by calling a special hotline from inmate phones. Id. After an inmate reports "an allegation in good faith, the reporter has a right to be free from retaliation. If the allegation is unfounded, disciplinary action will be taken. If a PREA allegation is substantiated, it is a criminal act that merits prosecution." Id. Nowhere does the PREA policy assert that its procedures comprise the only avenue by which inmates can complain about sexual assault. Indeed, it explicitly recognizes that the grievance system may be utilized to report such incidents. Doc. 30 at 18-19.
On preliminary review, the Court, construing the Complaint in the light most favorable to Owens, found that he alleged sufficient facts to suggest equitable tolling of the limitations period. Doc. 16 at 6 n. 3 (tolling "arguably . . . occurs if," as Owens appeared to allege, "the state, by purposefully ignoring or delaying decision on administrative applications for redress, causes the limitations period to expire"). In the brighter light of defendants' motion to dismiss facts, however, tolling is inappropriate. Owens never tried to file a grievance (he instead tried to complain via other avenues that PREA later legitimized) until two and half years after the incident. See doc. 26-2 at 3-4. Even if prison officials then dragged their feet in addressing his grievance (nothing beyond Owens' allegations suggests they did), the time for him to grieve the assault had already passed. Put differently, by the time he invoked available administrative remedies, no limitations period was left to toll. He therefore failed to timely file his Complaint.
