W. HAROLD ALBRITTON, Senior District Judge.
The Prison Litigation Reform Act ("PLRA") requires prisoners to completely exhaust administrative remedies before seeking relief under 42 U.S.C. § 1983. William Lamar Lolley ("Lolley"), an indigent inmate incarcerated at the Houston County Jail,
The defendants filed a special report, a supplement to the report and supporting evidentiary materials addressing Lolley's claims for relief. (Doc. # 25). Among other defenses, the defendants assert that Lolley's complaint is due to be dismissed because prior to filing this action Lolley failed to properly exhaust an administrative remedy available to him at the Houston County Jail with respect to his claims. The defendants base their exhaustion defense on the plaintiff's failure to file grievances regarding his claims or to complete the grievance appeal process as allowed by the jail's grievance procedure. Attached to the defendants' special report are copies of various grievance forms which Lolley did file; however, the undisputed facts show that Lolley did not complete the appeal process for any adverse grievance determination. The court provided Lolley an opportunity to file a response to the defendants' reports 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) . . . prior to filing this federal civil action." (Doc. # 31 at 1 (footnote omitted)). In response, Lolley filed an amended complaint to which he attached forms indicating that in fact he had filed, on August 18, 2011, an appeal of a grievance decision as well as a grievance on August 20, 1011, about dental treatment. In a supplemental response, the defendants acknowledge that in completing their initial special report they overlooked some documents relating to Lolley's grievances. But, the defendants also show nonetheless that Lolley did not complete the available appeal process with regard to any of the grievances which he did file. Thus, it remains the defendants' position that, with respect to the claims raised in this case, Lolley did not properly exhaust his available administrative remedies.
"[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, 1374-1375 (11th Cir. 2008). Therefore, the court will cumulatively treat the defendants' reports as a motion to dismiss.
Myles v. Miami-Dade County Corr. & Rehab. Dep't, 476 Fed. Appx. 364, 366 (11th Cir. 2012)
"When deciding whether a prisoner has exhausted his remedies, the court should first consider the plaintiff's and the defendants' versions of the facts, and if they conflict, take the plaintiff's version of the facts as true. `If in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed.'" Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (citing Bryant, 530 F.3d at 1373-74). "If the complaint is not subject to dismissal at this step, then the court should make `specific findings in order to resolve the disputed factual issues related to exhaustion.' Id. (citing Bryant, 530 F.3d at 1373-74, 1376)." Myles, 476 Fed. Appx. at 366. Upon review of the undisputed facts of this case as evidenced by the amended complaint, the evidentiary materials filed by the defendants and the plaintiff's response, the court concludes that the defendants' motion to dismiss is due to be granted.
The undisputed facts in this case show that, with respect to the claims raised in this case, Lolley either did not file a grievance or did not complete the appeal process available to him. The PLRA 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; Woodford v. Ngo, 548 U.S. 81 (2006); Alexander, 159 F.3d at 1325. Moreover, "the PLRA exhaustion requirement requires
Id. at 90-91, 93. 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 him. Id. at 83-84. See also 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 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 Fed. Appx. 81, 83 (11th Cir. 2012) (per curiam).
The defendants have established without dispute that the Houston County Jail provides an administrative remedy for inmate complaints in the form of an inmate grievance procedure. (Doc. # 25-2 at 7).
(Doc. # 25-1 at 1, Aff. of Commander-Jail Operations).
The record before the court demonstrates that Lolley failed to properly or completely exhaust administrative remedies available to him during his confinement in the Houston County jail prior to seeking federal relief, a precondition to proceeding in this court on his claims. While Lolley did file several grievances, he did not complete the appeal process on any of them. The one first notice of appeal that he did file (Doc. #36-1, p.11) was not directed to any specific grievance decision and no further appeal was taken as required after that was denied. In short, the court finds that Lolley did not follow the requirements of the grievance procedure concerning the claims raised in this case.
The time for utilizing the grievance procedure with respect to the claims raised by Lolley expired prior to the filing of this case.
Under these circumstances the court finds that dismissal with prejudice is appropriate. Bryant, 530 F.3d at 1375 n.1 (acknowledging that where administrative remedies are clearly time barred or otherwise infeasible inmate's failure to exhaust may "correctly result in a dismissal with prejudice."); 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."); Johnson, 418 F.3d at 1157 (same); Berry v. Kerik, 366 F.3d 85, 88 (2nd Cir. 2004) (footnotes omitted) (indicating inmate's "federal lawsuits . . . properly dismissed with prejudice" where previously available "administrative remedies have become unavailable after prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust.").
Accordingly, it is ORDERED and ADJUDGED that the defendants' motion to dismiss be GRANTED with prejudice as the plaintiff failed to properly exhaust administrative remedies available to him at the Houston County Jail and as these remedies are no longer available to him.
A separate final judgment will be entered.
