Bostic v. Chatham Cnty. Jail

MICHAEL LAVON BOSTIC, Plaintiff, v. THE CHATHAM COUNTY JAIL, Defendant.

Case No. CV415-117

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

December 21, 2015

REPORT AND RECOMMENDATION

Proceeding pro se, Michael Lavon Bostic has filed a 42 U.S.C. § 1983 complaint against the Chatham County, Georgia Jail for defaming him and failing to prevent rumors that caused other inmates to try to extort him. Doc. 1 at 2-4. He seeks $2.5 million. Id. at 4. Upon preliminary review,¹ his complaint must be DISMISSED because he failed to exhaust available administrative remedies.

Under the Prison Litigation Reform Act ("PLRA"), a prisoner must exhaust all available administrative remedies before filing an action that challenges the conditions of his confinement. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail . . . until such administrative remedies as are available are exhausted."). It is a "pre-condition to suit" that must be enforced even if the available administrative remedies are either "futile or inadequate." Harris v. Garner, 190 F.3d 1279, 1285-86 (11th Cir. 1999); see also Jones v. Bock, 549 U.S. 199, 199-200 (2007) ("There is no question that exhaustion is mandatory under the PLRA."); Goebert v. Lee Cty., 510 F.3d 1312, 1322 (11th Cir. 2007) (it "seeks to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case") (quotes, alteration and cite omitted).

Georgia has a prison grievance procedure available to inmates. Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th Cir. 2015) ("Georgia's prison grievance procedures are set out in a standard operating procedure. See Turner v. Burnside, 541 F.3d 1077, 1080-81 (11th Cir.2008) (describing the relevant SOP)"); Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005) ("[W]hen a state provides a grievance procedure for its prisoners, as Georgia does here, 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.") (quotes and cite omitted). Georgia "prisoners are required to complete a three (3) step grievance process, consisting of an informal grievance, a formal grievance, and an appeal, before filing suit in federal court." Helton v. Burks, 2012 WL 6097036 at * 2 (M.D. Ga. May 4, 2012) (citing GA. DEP'T OF CORR. SOP IIB05-001 § VI); accord, Whatley, 802 F.3d at 1208.²

Finally, not only does the PLRA require exhaustion, it "requires proper exhaustion," Woodford v. Ngo, 548 U.S. 81, 93 (2006), which 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). Thus, if an inmate has filed an "untimely or otherwise procedurally defective administrative grievance or appeal," he 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 grievance "under the terms of and according to the time set by" prison officials).³ And 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, 418 F.3d at 1159; see also Whatley, 802 F.3d at 1216-17 (concurrence noting importation of habeas corpus procedural default doctrine into this area of law).

Bostic admits in his own Complaint that "a grievance procedure is in [his] institution," doc. 1 at 1, yet he never invoked it. His excuse? "This was not a jail house issue." Id. at 2. Of course it was. Indeed, he sues the jail⁴ about the way things were run there (i.e., mismanaging the manner in which it housed him, which led others to believe he was wealthy enough to be extorted). Doc. 1 at 3-4. "[T]he PLRA's exhaustion requirement," it must be remembered, "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002); Davis v. West, 2015 WL 7577065 at * 2 (M.D. Ala. Oct. 19, 2015); see also id. (an "inmate's belief that administrative procedures are futile or needless does not excuse the exhaustion requirement"). Other harassed inmates were required to exhaust.⁵ So must Bostic.

"However, failure to exhaust is an affirmative defense under the PLRA, and inmates are not required to specially plead or demonstrate exhaustion in their complaints." Hernandez v. Fla. Dep't of Corr., 281 F. App'x 862, 867 (11th Cir. 2008) (quotes, alteration and cite omitted). Yet, a district court may sua sponte dismiss a prisoner's 42 U.S.C. § 1983 complaint if it shows that he failed to exhaust his administrative remedies. Anderson v. Donald, 261 F. App'x 254, 256 (11th Cir. 2008), applied in Johnson v. McLaughlin, 2014 WL 7662517 at * 8 (M.D.Ga. Dec. 9, 2014) ("Plaintiff has failed to show that he fully complied with Georgia's three-step grievance procedure as he did not produce evidence that he filed either a formal grievance or an appeal.").

Some courts discuss a second-chance pleading option here:

While a plaintiffs failure to exhaust administrative remedies is considered an affirmative defense and not a jurisdictional infirmity, Jones v. Bock, 549 U.S. 199 (2007), if the lack of exhaustion is apparent from the face of the prisoner's complaint sua sponte dismissal prior to service of the complaint is appropriate. See Corey v. Daniels, No. 15-6707, 2015 WL 5812918, at *1 (4th Cir. Oct. 6, 2015) ("A district court is permitted to address the issue of exhaustion sua sponte, however, and may dismiss the complaint without input from the defendant, if the 'failure to exhaust is apparent from the face of the complaint,' and the inmate is provided an opportunity to respond on the exhaustion issue.") (quoting Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir.2005)); see also Moore v. Bennette, 517 F.3d 717, 725 (4th Cir.2008); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655-56 (4th Cir.2006).

McCrea v. S.C. Dep't of Corr., 2015 WL 6913740 at * 3 (D.S.C. Nov. 9, 2015) (emphasis added).

Others say no second-chance amendment is required if the lack of exhaustion is clear from the face of the Complaint. Byrd v. Stirling, ___ F. Supp. 3d ___, 2015 WL 7251268 at * 2 (D.S.C. Nov. 5, 2015) ("Nonetheless, a district court may raise the issue of exhaustion of remedies on its own motion, and it may dismiss the complaint sua sponte for failure to exhaust (a) where failure to exhaust is apparent from the face of the complaint or (b) if the failure is not apparent from the complaint's face, after giving the inmate an opportunity to address the exhaustion issue.") (quotes and cite omitted; emphasis added); Stephany v. Miles, 2015 WL 7292772 at * 3 (M.D. Pa. Oct. 15, 2015) (a court has the inherent power to sua sponte dismiss an action where failure to exhaust available administrative remedies is abundantly clear from the face of the complaint."). As noted, that fact is clearly demonstrated here, and this Court agrees with the Byrd court because Bostic is free to re-plead within his 14-day, Fed. R. Civ. P. 72(b)(2) Objection period to this Report and Recommendation. His case therefore must be dismissed on those grounds alone.

Additionally, Bostic's defamation claim fails as a matter of law. "Defamation, by itself, is a tort actionable under the law of most States, but not a constitutional deprivation." Siegert v. Gilley, 500 U.S. 226, 233 (1991). Accordingly, a simple defamation claim against a state official, unaccompanied by the denial of some other legal right or status, is not actionable under § 1983. Paul v. Davis, 424 U.S. 693, 711-12 (1976) (injury to reputation alone does not deprive the defamed party of any right safeguarded by the Constitution); Von Stein v. Brescher, 904 F.2d 572 (1990) (sheriff's defamatory comments following plaintiff's arrest did not deprive plaintiff of any constitutionally protected interest); Walker v. Atlanta Police Dep't Public Affairs Unit, 322 F. App'x. 809, 810 (11th Cir. 2009) ("a claim of being defamed by a police officer is not actionable under 42 U.S.C. § 1983").

Given the sheer frivolity of Bostic's complaint, it must be DISMISSED WITH PREJUDICE and a re-pleading option is not warranted. Dysart v. BankTrust, 516 F. App'x 861, 865 (11th Cir. 2013) ("[D]istrict court did not err in denying Dysart's request to amend her complaint because an amendment would have been futile."); Langlois v. Traveler's Ins. Co., 401 F. App'x 425, 426-27 (11th Cir. 2010); Simmons v. Edmondson, 225 F. App'x 787, 788-89 (11th Cir. 2007) (district court did not err in dismissing complaint with prejudice without first giving plaintiff leave to amend because no amendment could have overcome the defendants' immunity). This case should also be recorded as a "strike" under 28 U.S.C. § 1915(g).

Meanwhile, it is time for Bostic to pay his filing fee, which is to be collected in addition to the $350 filing fee in his two other cases (hence, a total of $1050) -- Bostic v. Knoche, CV415-113; Bostic v. C.N.T., CV415-114.⁶ His furnished PLRA paperwork reflects $514.17 in average monthly deposits over the six month period prior to the date of his Prison Account Statement. Doc. 5. He therefore owes a $102.83 initial partial filing fee. See 28 U.S.C. § 1915(b) (1) (requiring an initial fee assessment "when funds exist," under a specific 20 percent formula). Plaintiff's custodian (or designee) therefore shall remit the $102.83 initial partial filing fee and shall set aside 20 percent of all future deposits to his account, then forward those funds to the Clerk...