R. DAVID PROCTOR, District Judge.
On November 15, 2017, the Magistrate Judge's Report and Recommendation was entered and the parties were allowed therein fourteen days in which to file objections to the recommendations made by the Magistrate Judge. (Doc. #35). In his Report and Recommendation, the Magistrate Judge recommended that the court (1) dismiss without prejudice Warden Patricia Bradley ("Bradley") from this action; (2) dismiss without prejudice the Federal Bureau of Prisons FCI ("BOP"); and (3) deny without prejudice Defendants' Motion to Dismiss Plaintiff's Federal Tort Claims Act ("FTCA") and Bivens
After careful consideration of the record in this case, the Magistrate Judge's Report and Recommendation, and Defendants' objections thereto, the court hereby
Defendants assert that application of the prison mailbox rule to the presentment requirement of 28 U.S.C. § 2675(a) is inconsistent with the United States' limited waiver of sovereign immunity under the FTCA. (Doc. #40 at 5-20). More specifically, Defendants argue that the court does not have subject matter jurisdiction over Plaintiff's claims because first, as a matter of law, she did not present her claims to the agency because the agency did not obtain "actual receipt" of her administrative appeal and, second, as a factual matter, Plaintiff does not sustain her burden of demonstrating presentment of the administrative appeal. (Id.). Defendants falter on both fronts.
"The FTCA is a specific, congressional exception to the general rule of sovereign immunity [in that it] allows the government to be sued by certain parties under certain circumstances for particular tortious acts committed by employees of the government." Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994). Title 28 U.S.C. § 2675(a) sets forth one condition of the government's waiver of sovereign immunity under the FTCA:
28 U.S.C. § 2675(a). "A claim is deemed to be presented `when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 ["SF95"] or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the accident.'" Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1236-37 (11th Cir. 2002) (quoting 28 C.F.R. § 14.2(a)).
In order to satisfy the presentment requirement in 28 U.S.C. § 2675(a), a plaintiff is not necessarily required to present affirmative evidence of actual receipt by the agency. Id. at 1239 ("While we agree with the fundamental premise that a claim is presented upon its receipt, we cannot go so far as to say that affirmative evidence of such receipt is required."). A plaintiff creates a presumption that the agency received her SF95 when she demonstrates that her completed SF95 was (1) properly addressed, (2) stamped, and (3) mailed. Id. at 1240. However, a plaintiff need not achieve this high level of proof to create such a presumption. Id. at 1238-40. For instance, in Barnett v. Okeechobee Hospital, a plaintiff's statement that he mailed a completed SF95 to the relevant agency, along with copies of his accompanying cover letter and the prepaid postage reply envelope in which he allegedly mailed it, raised an inference — although not conclusive proof — that the plaintiff mailed a completed SF95 to the relevant agency. Id. Declarations from agency employees that the agency did not receive the plaintiff's SF95 do not rebut the presumption of receipt because the "court c[an] not rely on the bare assertion of one member of the office that the mail was not received, since the mail might have been received by another." Id. at 1241-42.
In Garvey v. Vaughn, the Eleventh Circuit extended the prison mailbox rule articulated in Houston v. Lack
Garvey, 993 F.2d at 780 (quoting Houston, 487 U.S. at 271-72); cf. Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) ("Since, with regard to the difficulties inherent in being a pro se prisoner litigant, we see no difference between the filing of a court action and the filing of an administrative claim, we hold that [our prior ruling
As an alternative to its argument that the prison mailbox rule does not apply to the FTCA, Defendants assert that the Report and Recommendation does not include a factual finding that Plaintiff sent the SF95 through the legal mail system or the prison's regular mail system. (Doc. #40 at 14). However, in the Report and Recommendation, the Magistrate Judge stated, "[U]nless the defendants establish otherwise, the plaintiff's FTCA form is deemed filed on May 24, 2016." (Doc. #35 at 12). In considering the merits of Defendants' Motion to Dismiss, the Magistrate Judge relied on Plaintiff's Amended Complaint, which was submitted under oath, and accepted Plaintiff's statement that "[o]n June 10th, 2016, [she] submitted Standard Form 95 Claim for Damages, Injury or Death to South East Regional Office [of the Bureau of Prisons]." (Doc. #27 at 3). Defendants did not provide the court with sufficient evidence
The Prison Litigation Reform Act ("PLRA") requires a prisoner to exhaust her available administrative remedies prior to bringing a suit regarding prison conditions. See 42 U.S.C. § 1997e(a). In deciding a motion to dismiss for failure to exhaust administrative remedies, the court follows the following process:
Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008).
A prisoner's exhaustion requirement "hinges on the `availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones." Ross v. Blake, 136 S.Ct. 1850, 1858 (2016) (emphasis added). "[A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end — with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. Similarly, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Administrative remedies are also considered "unavailable" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
Defendants (1) challenge the Magistrate Judge's conclusion that the BOP remedy process was "unavailable" to Plaintiff and (2) assert that the Magistrate Judge incorrectly applied the two-step process in Turner, 541 F.3d 1077. (Doc. #40 at 27-33). Those arguments miss the mark. To begin, the current record demonstrates that the BOP unilaterally and randomly assigned Plaintiff's grievances — which all focused on the same medical problems — to one of three remedy series. Officials gave some grievances new remedy series numbers and deemed others appeals and rejected them for filing at the wrong level, regardless of how Plaintiff attempted to label the grievances.
Furthermore, the Magistrate Judge considered every administrative remedy submitted by Plaintiff, the date of the submission, the assignment of the submission to one of three remedy series, the content of the submission, and the stated reason(s) for rejection. (Id. at 24-28). After a detailed review of the parties' respective factual assertions, the Magistrate Judge concluded that Defendants "limit[ed] access to a procedure and then protect[ed] themselves from suit by alleging the prisoner failed to use that specific procedure." (Id. at 29 (citing Presley v. Scott, 679 F. App'x 910, 912 (11th Cir. 2017) (reversing district court dismissal for lack of exhaustion, because administrative procedures were unavailable when not listed on law library computer)). Ultimately, after rendering specific factual findings to resolve disputed factual issues as required by Turner, 541 F.3d 1077, the Magistrate Judge recommended denial of Defendants' Motion to Dismiss for failure to exhaust administrative remedies. The court agrees that Defendants did not uphold their burden "of proving that the plaintiff has failed to exhaust [her] available administrative remedies." Turner, 541 F.3d at 1082. Accordingly, the court adopts the Magistrate Judge's rulings.
For the reasons explained above, the court
In arguing that Plaintiff's FTCA claims are barred for failure to exhaust administrative remedies, Defendants have presented a factual attack to the court's subject matter jurisdiction over Plaintiff's claims. When a court is confronted with a factual attack, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897 (1981)).
Upon this court's referral of the remaining claims in this case to the Magistrate Judge for further proceedings, the Magistrate Judge should allow limited discovery on subject matter jurisdiction and whether Plaintiff submitted the SF95 as she alleges.
