Priester v. Rich

• Citation: 457 F.Supp.2d 1369
• Decision Date: 03 April 2006
• Docket Number: No. 605CV071.,605CV071.
• Parties: Andrew PRIESTER, Plaintiff, v. Glen RICH, Warden, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

457 F.Supp.2d 1369

Andrew PRIESTER, Plaintiff, v. Glen RICH, Warden, et al., Defendants.

No. 605CV071.

United States District Court, S.D. Georgia, Statesboro Division.

April 3, 2006.

COPYRIGHT MATERIAL OMITTED

Bobby Lee Cook, L. Branch Connelly, Cook & Connelly, Summerville, GA, McNeill Stokes, Atlanta, GA, for Plaintiff.

Andrea S. Hirsch, Freeman, Mathis & Gary, LLP, Devon Orland, John C. Jones, Atlanta, GA, David R. Smith, Brannen, Searcy & Smith, Savannah, GA, for Defendants.

ORDER

B. AVANT EDENFIELD, Judge.

I INTRODUCTION

In this Eighth Amendment, prisonerbeating case¹ brought under 42 U.S.C. § 1983, inmate/plaintiff Andrew Priester objects to the Magistrate Judge's (MJ's) Report and Recommendation (R&R) which advised this Court to dismiss without prejudice Priester's case against prison officials because he failed, as required by 42 U.S.C. § 1997e(a), to exhaust his prison's administrative remedies. Under that statute, "[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) (emphasis added).

But an inmate need only exhaust "available" administrative procedures. Priester argues that he should be excused from the exhaustion requirement because prison officials prevented him from fulfilling it. Doc. # 37. The MJ disbelieves him. Doc. # 35 at 9. Such fact finding violates F.R.Civ.P. 56, plaintiff contends. Doc. # 37 at 16. Two issues—whether the exhaustion requirement here should be excused, and whether credibility choices can be made on that score—thus arise here.

II. BACKGROUND

Priester alleges that Rogers State Prison (RSP) guards abusively beat him four separate times, and he adds that when he attempted to pursue administrative remedies, prison officials denied him access to grievance forms. Doc. # 35 at 2. He claims that this denial continued even after the DOC transferred him to Georgia State Prison (GSP). Id.

By way of summary judgment, defendants submitted evidence showing that RSP grievance forms are routinely availed to inmates like Priester, who simply never filed one. They point out that, once at GSP, he could have pleaded good cause in filing an out-of-time grievance, see Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999), but did not. Id. at 3; doc. # 4 at 17-18; # 3 at 22-26 (Page Aff.); # 17 at 2.

To support his contention that he should be excused from the administration exhaustion requirement outright, Priester countered (with his own 28 U.S.C. § 1746compliant declarations) that RSP officials would not provide him with grievance forms. And, after he arrived at GSP, its medical officials insisted that he was delusional and thus prevented him from grieving the RSP abuse. Doc. # 37 at 4; # 14 (attached 7/14/05 Priester Statement).

Priester also tendered the § 1746-compliant statement of ex-RSP corrections officer Tommy Cardell (employed at RSP from 3/02-8/05, but placed on leave of absence in 5/03), who described guard-inmate beatings, cover-ups, retaliatory beatings, and efforts to deter prisoners from filing grievances. Doc. # 14 Exh. C. As mentioned above, the MJ disbelieves Priester, most notably because he filed an unrelated grievance once at GSP; hence, the MJ found, it is reasonable to conclude that nothing prevented him from filing an RSP grievance from GSP. Doc. #35 at 9-10.

III. ANALYSIS

A. Exhaustion—General Standards

A prisoner must comply with his prison's grievance procedures. Miller v. Tanner 196 F.3d 1190, 1193 (11th Cir. 1999). He therefore must "provide with his grievance all relevant information reasonably available to him" such as the "identity of any officials he thinks have wronged him and any witnesses." Brown v. Sikes, 212 F.3d 1205, 1207-08 (11th Cir. 2000).

An inmate plaintiff obviously cannot provide information that he does not know at the time (e.g., an allegedly liable guard's or supervisor's identity), but he must "provide as much relevant information as he reasonably can" so that officials passing on the grievance can make an informed and reasonable investigation and respond to the grievance. Id. at 1207. Thus he need only present the "noticepleading" level core of his case to administrators. Hooks v. Rich, 2006 WL 565909 at *6 (S.D.Ga. March 7, 2006) (unpublished).

Administrative grievance procedures must be exhausted prior to suit. For that matter,

[e]xhaustion is mandatory, even if the process is futile or inadequate. This mandatory exhaustion requirement applies "irrespective of the forms of relief sought and offered through the administrative avenues." Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).

Fripp v. Laird, 179 Fed.Appx. 563, 564-65 (11th Cir.2006) (unpublished) (cite omitted); Pri-Har v. Corrections Corp. of America, Inc., 154 Fed.Appx. 886, 888-89 (11th Cir.2005); Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir.2005) (exhaustion requirement applies to inmate's prisonconditions suit even when prisoner seeks relief not available in grievance proceedings, e.g. money damages).

Some courts place the burden on the inmate to show that he has satisfied the PLRA's exhaustion requirement. See, e.g., Jones v. Bock, 135 Fed.Appx. 837 (6th Cir.2005) (dismissal of state prisoner's § 1983 deliberate indifference claim against prison officials was warranted, where he failed to show that he exhausted his administrative remedies, by either attaching the grievance forms to his complaint or describing the remedies he pursued administratively and the outcome), cert, granted, ___ U.S. ___, 126 S.Ct. 1462, 164 L.Ed.2d 246 (2006). But see Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006) ("Exhaustion is an affirmative defense, and the burden of proof is on the defendants").

B. Excusing Exhaustion

Federal courts

have only excused inmates from complying with [such] procedures when officials have prevented prisoners from utilizing the procedures, or when officials themselves have failed to comply with the grievance procedures. An inmate's subjective belief that the procedures were not applicable to [particular] grievances does not matter and is not determinative.

Gibson v. Weber, 431 F.3d 339, 341 (8th Cir.2005) (quotes and cites omitted); Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir.2005) (delay in responding to a grievance, particularly a time-sensitive one, may demonstrate that no administrative process is in fact available, for purpose of exhaustion requirement); Braham v. Clancy, 425 F.3d 177, 181-82 (2d Cir.2005); Rodriguez Ramos v. Smith, 2005 WL 3054291 at * 5 (E.D.Pa. Nov. 14, 2005) (unpublished) (collecting exhaustion-exception cases).

C. Factfinding

Determining whether prison officials here prevented Priester from grieving his claims is problematic because no party cites authority on whether a judge can engage in factfinding, as the MJ did, in disbelieving Priester's assertions on that score. There is a good argument for such authority.²

One idea would be to require Priester to exhaust his claims now and direct GSP officials to accept them without hindrance, thus avoiding this issue. That, of course, would involve the presentation of an untimely claim. GSP officials have been authorized to waive timeliness requirements. See Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir.2005) ("the [GSP] Inmate Grievance Procedure allows the grievance coordinator to waive the time period for filing a grievance if good cause is shown" (quotes and cite omitted)).³

But the Johnson panel concluded that the failure to exhaust before filing an action can be an irreversible misstep. It essentially imported the procedural default doctrine from habeas law and engrafted it onto PLRA's exhaustion framework. Johnson, 418 F.3d at 1156-57 (PLRA's exhaustion requirement contains a procedural default component which required state prison inmate bringing § 1983 action against prison officials over alleged prison conditions to have timely met the deadlines or the good cause standard of his state's administrative grievance procedures before filing a federal claim, and therefore barred his action when he filed his grievance out-of-time and without good cause); accord Ross v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir.2004) (prisoner's action of submitting a time-barred grievance is insufficient to satisfy PLRA's exhaustion requirement; thus, regardless of whether a prisoner goes through the formality of submitting a time-barred grievance, he may not successfully argue that he had exhausted his administrative remedies by, in essence, failing to employ them).

Under Johnson, then, Priester's failure to exhaust cannot be excused without good cause. See also Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir.2004) (holding dismissal with prejudice appropriate where "administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust").

Johnson has been criticized,⁴ and figures into an inter-circuit split. Compare Ngo v Woodford, 403 F.3d 620, 622 (9th Cir.) (prisoner's time-barred grievance satisfied exhaustion requirement when prisoner completed highest level of appeal available), cert, granted, ___ U.S. ___, 126 S.Ct. 647, 163 L.Ed.2d 525 (2005) and argued 3/22/06, with Tauer v. Werholtz, 168 Fed.Appx. 312, 314-15 (10th Cir.2006) (unpublished) ("In this circuit, however, a time-barred grievance is not considered exhausted").

For the moment, then, the rule in this circuit is clear from Johnson: an inmate must—prior to filing suit—exhaust his administrative claims, even if untimely. Fripp, 179 Fed.Appx. at 564-65 ("[T]he fact that a grievance would be untimely does not render the exhaustion process complete. The prisoner still must file the untimely grievance and go through the process in order to exhaust...