WALLACE CAPEL, Jr., Magistrate Judge.
In this 42 U.S.C. § 1983 action, Tyrus Jones ("Jones"), a state inmate, challenges the adequacy of medical treatment provided to him for urinary tract and kidney infections resulting from his use of an indwelling catheter while incarcerated at the Kilby Correctional Facility ("Kilby"). Jones names Corizon, the contract medical care provider for the Alabama prison system, and Dallas Diaz, Kevin Brown, and Desiree Neal, identified by Jones as Ms. Neil, all nurses at Kilby during the time period relevant to the complaint, as defendants in this cause of action.
The defendants filed a special report and supporting evidentiary materials addressing Jones' claims for relief. In these documents, the defendants assert that the complaint is due to be dismissed because Jones failed to exhaust an administrative remedy available to him through Corizon prior to initiation of this case. Defendants' Special Report — Doc. No. 31 at 6-8, 19-21. The defendants base their exhaustion defense on the plaintiff's failure to appeal responses to grievances filed regarding the claims pending before this court as allowed by Corizon's grievance procedure before seeking relief from this court. In addition, the defendants maintain and the medical records compiled contemporaneously with the treatment provided to Jones indicate that the defendants did not act with deliberate indifference to Jones' medical needs. Id. at 8-18, 22-27.
"[A]n exhaustion defense . . . is not ordinarily the proper subject for a summary judgment; instead it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment." Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (internal quotations omitted). Therefore, the court will treat the defendants' report as a motion to dismiss. Id.; Order of September 18, 2014 — Doc. No. 34.
The Eleventh Circuit has determined that "the question of exhaustion under the PLRA [is] a `threshold matter' that [federal courts must] address before considering the merits of the case. Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004). Because exhaustion is mandated by the statute, [a court has] no discretion to waive this requirement. Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir. 1998)." Myles v. Miami-Dade Cnty. Corr. & Rehab. Dep't, 476 F. App'x 364, 366 (11th Cir. 2012). Based on the foregoing, the court will "resolve this issue first." Id.
Myles, 476 F. App'x at 366.
Upon review of the undisputed facts of this case as evidenced by the evidentiary materials filed by the defendants, the court concludes that the defendants' motion to dismiss is due to be granted.
Jones challenges the constitutionality of medical treatment he received for infections resulting from his use of catheters to void urine. In response to the complaint, the defendants deny Jones' allegations and further argue that this case is subject to dismissal because Jones failed to properly exhaust the administrative remedy supplied via the medical care provider prior to filing this complaint as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
The Prison Litigation Reform Act compels exhaustion of available administrative remedies before a prisoner can seek relief in federal court on a § 1983 complaint. Specifically, 42 U.S.C. § 1997e(a) states 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." "Congress has provided in § 1997(e)(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative remedies." Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). "[T]he PLRA's exhaustion requirement 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). Exhaustion of all available administrative remedies is a precondition to litigation and a federal court cannot waive the exhaustion requirement. Booth, 532 U.S. at 741; Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir. 1998); Woodford v. Ngo, 548 U.S. 81 (2006). Moreover, "the PLRA exhaustion requirement requires
Id. The Court reasoned that because proper exhaustion of administrative remedies is necessary an inmate cannot "satisfy the Prison Litigation Reform Act's exhaustion requirement . . . by filing an untimely or otherwise procedurally defective administrative grievance or appeal[,]" or by effectively bypassing the administrative process simply by waiting until the grievance procedure is no longer available to her. 548 U.S. at 83-84; Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005) (inmate who files an untimely grievance or simply spurns the administrative process until it is no longer available fails to satisfy the exhaustion requirement of the PLRA). "
The record in this case is undisputed that the health care provider for the Alabama Department of Corrections provides a grievance procedure for inmate complaints related to the provision of medical treatment. This procedure, as it relates to the claims presented by Jones, is described as follows:
Defendant's Exhibit 4 (Aff. of Marianne Baker, CRNP) — Doc. No. 31-4 at 5-6 (citations to medial records and paragraph numbering omitted).
Upon review of the arguments set forth by the defendants, the court entered an order which provided Jones an opportunity to file a response to the arguments set forth by the defendants in which he was advised to "specifically address the defendants' assertion[] that. . . [h]is claims are due to be dismissed because he failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act" prior to filing this federal civil action. Order of September 18, 2014 — Doc. No. 34 at 1. The time allowed Jones to file his response expired on October 8, 2014. As of the present date, Jones has filed no response to this order.
The evidentiary materials filed by the defendants demonstrate that Jones failed to file the requisite grievance appeal(s) prior to initiation of this federal civil action. Jones does not dispute his failure to fully exhaust the administrative remedy available in the prison system prior to filing this case. In addition, there is nothing before the court which justifies Jones' failure to exhaust the grievance procedure provided by Corizon. Consequently, the court concludes that this case is subject to dismissal without prejudice as Jones failed to properly exhaust an administrative remedy available to him which is a precondition to proceeding in this court on such claim. Woodford, 548 U.S. at 87-94; Bryant, 530 F.3d at 1374-75 (dismissal for failure to exhaust an administrative remedy when the remedy remains available is not an adjudication of the merits and is without prejudice).
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
1. The defendants' motion to dismiss be GRANTED to the extent the defendants seek dismissal of this case due to the plaintiff's failure to properly exhaust an administrative remedy available to him prior to filing this federal civil action.
2. This case be dismissed without prejudice in accordance with the provisions of 42 U.S.C. § 1997e(a) for the plaintiff's failure to properly exhaust an available administrative remedy.
It is further
ORDERED that the parties are DIRECTED to file any objections to the said Recommendation on or before
Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981).
