GRAY M. BORDEN, Magistrate Judge.
In this 42 U.S.C. § 1983 action, Larry H. Mitchell, an inmate confined at the Elmore County Jail, challenges the handling of mail addressed to his grandmother. Doc. 1 at 2-3. Mitchell seeks declaratory and injunctive relief for the alleged violation of his constitutional rights. Doc. 1 at 4.
The defendant filed a special report and supporting evidentiary materials addressing Mitchell's claim for relief. In these documents, the defendant adamantly denies that he acted in violation of Mitchell's constitutional rights. The defendant further argues that this case is due to be dismissed because Mitchell failed to properly exhaust an administrative remedy available to him at the Elmore County Jail prior to filing this cause of action. Docs. 11 at 4-9 & 11-2 at 3-4. The defendant bases the exhaustion defense on Mitchell's failure to file a grievance pursuant to the jail's grievance procedure regarding the claims raised in the complaint.
On May 25, 2018, the court entered an order providing Mitchell an opportunity to file a response to the defendant's report. Doc. 12. In this order, the court directed Mitchell to address the following arguments set forth by the defendant:
Doc. 12 at 1-2. The order also advised Mitchell that his response should be supported by affidavits or statements made under penalty of perjury or other appropriate evidentiary materials. Doc. 12 at 2. In addition, the order cautioned Mitchell that unless "sufficient legal cause" is shown within 15 days of entry of the order "why such action should not be undertaken, the court may at any time [after expiration of the time for his filing a response] and without further notice to the parties (1) treat the special report and any supporting evidentiary materials as a motion to dismiss and/or motion for summary judgment, whichever is proper, and (2) after considering any response as allowed by this order, rule on the motion in accordance with the law." Doc. 12 at 4 (footnote omitted).
The time allotted to Mitchell to file a response in compliance with the directives of the aforementioned order expired on June 8, 2018. As of the present date, Mitchell has filed no response in opposition to the defendant's special report.
Based on the foregoing, the court deems it appropriate to treat the special report filed by the defendant as a motion to dismiss with respect to the exhaustion defense. Thus, this case is now pending on the defendant's motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (internal quotations omitted) ("[A]n exhaustion defense . . . is not ordinarily the proper subject for a summary judgment [motion]; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment."); Trias v. Fla. Dept. of Corr., 587 F. App'x 531, 534 (11th Cir. 2014) (holding that the district court properly construed Defendant's "motion for summary judgment as a motion to dismiss for failure to exhaust administrative remedies").
In addressing the requirements of 42 U.S.C. § 1997e with respect to exhaustion, the Eleventh Circuit has
Leal v. Ga. Dept. of Corr., 254 F.3d 1276, 1279 (11th Cir. 2001) (emphasis in original). Furthermore, the law is well settled that "the question of exhaustion under the PLRA [is] a `threshold matter' that [federal courts must] address before considering the merits of the case. Because exhaustion is mandated by the statute, [a federal court has] no discretion to waive this requirement." Myles v. Miami-Dade Cnty. Corr. & Rehab. Dept., 476 F. App'x 364, 366 (11th Cir. 2012) (internal citations omitted). The court will therefore "resolve this issue first." Id.
Myles, 476 F. App'x at 366. Consequently, a district court "may resolve disputed factual issues where necessary to the disposition of a motion to dismiss for failure to exhaust [without a hearing]. The judge properly may consider facts outside of the pleadings to resolve a factual dispute as to exhaustion where doing so does not decide the merits, and the parties have a sufficient opportunity to develop the record." Trias, 587 F. App'x at 535 (internal citations omitted). Based on the foregoing, the Eleventh Circuit has specifically rejected the proposition that "disputed facts as to exhaustion should be decided by a jury." Id.
Upon review of the complaint, the defendant's special report, and the undisputed evidentiary materials filed in support thereof, the court finds that the defendant's motion to dismiss is due to be granted.
Mitchell alleges that on February 4, 2018 the defendant mishandled mail addressed to his grandmother. Doc. 1 at 2-3. The defendant denies Mitchell's allegation and further maintains that this case is subject to dismissal because Mitchell failed to exhaust the administrative remedy provided at the Elmore County Jail prior to filing his complaint, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
The PLRA compels proper 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." This means 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). "The PLRA strengthened [the exhaustion] provision [applicable to inmate complaints] in several ways. Exhaustion is no longer left to the discretion of the district court, but is mandatory. Prisoners must now exhaust all `available' remedies, not just those that meet federal standards. Indeed, as [the Supreme Court] held in Booth, a prisoner must now exhaust administrative remedies even where the relief sought—monetary damages—cannot be granted by the administrative remedies." Woodford v. Ngo, 548 U.S. 81, 85 (2006) (internal citation omitted).
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, 159 F.3d at 1325. "[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion." Ross v. Blake, 136 S.Ct. 1850, 1857 (2016). However, "[a] prisoner need not exhaust remedies if they are not `available.'" Id. at 1855. Generally, a remedy is "available" when it has "sufficient power or force to achieve an end sought [or has] sufficient power or force to achieve an end, capable of use for the accomplishment of a purpose[.]" Booth, 532 U.S. at 737 (internal quotation marks and citations omitted). Moreover, "the PLRA exhaustion requirement requires proper exhaustion." Woodford, 548 U.S. at 93. "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules [as a precondition to filing suit in federal court] because no adjudicative system can function effectively without imposing some orderly structure on the courts of its proceedings. . . . Construing § 1997e(a) to require proper exhaustion . . . fits with the general scheme of the PLRA, whereas [a contrary] interpretation [allowing an inmate to bring suit in federal court once administrative remedies are no longer available] would turn that provision into a largely useless appendage." Woodford, 548 U.S. at 90-91 & 93 (footnote omitted). The Supreme 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 him. Id. at 83-84; Bryant, 530 F.3d at 1378 (holding that to exhaust administrative remedies in accordance with the PLRA, prisoners must "properly take each step within the administrative process"); Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005) (holding that 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); Higginbottom, 223 F.3d at 1261 (holding that inmate's belief that administrative procedures are futile or needless does not excuse the exhaustion requirement). "The only facts pertinent to determining whether a prisoner has satisfied the PLRA's exhaustion requirement are those that existed when he filed his original complaint." Smith v. Terry, 491 F. App'x 81, 83 (11th Cir. 2012).
It is undisputed that the Elmore County Jail provides an administrative remedy for inmate complaints in the form of an inmate grievance procedure. Doc. 11-5 at 36-39. The undisputed evidentiary materials filed by the defendant demonstrate that Mitchell had access to the grievance procedure at all times while confined in the Elmore County Jail. The grievance procedure allows an inmate to submit grievances to jail personnel with respect to matters occurring during their incarceration at the jail. Doc. 11-8 at 36 ("[A]ll inmates have the individual ability to bring complaints, concerns, and other issues to the attention of the jail staff."). The relevant portion of the grievance procedure reads as follows:
Doc. 17-8 at 36-38.
The record before the court, including the undisputed evidentiary materials filed by the defendant, demonstrates that an administrative remedy was available to Mitchell during his confinement the Elmore County Jail. These materials further establish that Mitchell failed to properly exhaust the remedy prior to filing this federal civil action. Specifically, despite the availability of a grievance procedure, Mitchell did not submit a grievance in accordance with the jail's grievance procedure addressing the claim now presented for relief. It is likewise clear that Mitchell failed to follow the applicable time constraints set forth in the grievance procedure, and, due to this failure, the time allowed for filing a grievance expired prior to this court's receipt of the instant complaint. Dismissal with prejudice is therefore appropriate. Bryant, 530 F.3d at 1375 n.1; Johnson, 418 F.3d at 1157; Marsh v. Jones, 53 F.3d 707, 710 (5th Cir. 1995) ("Without the prospect of a dismissal with prejudice, a prisoner could evade the exhaustion requirement by filing no administrative grievance or by intentionally filing an untimely one, thereby foreclosing administrative remedies and gaining access to a federal forum without exhausting administrative remedies."); Berry v. Kerik, 366 F.3d 85, 88 (2nd Cir. 2004) (footnotes omitted) (holding that inmate's "federal lawsuits . . . properly dismissed with prejudice" where previously available administrative remedies had become unavailable).
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
1. The defendant's motion to dismiss be GRANTED to the extent the defendant seeks dismissal of this case due to the plaintiff's failure to exhaust an administrative remedy available to him during his confinement at the Elmore County Jail prior to initiating this cause of action.
2. This case be dismissed with prejudice in accordance with the provisions of 42 U.S.C. § 1997e(a) for the plaintiff's failure to properly exhaust an administrative remedy previously available to him at the Elmore County Jail.
3. No costs be taxed herein.
The parties may file objections to the Recommendation on or before