WALLACE CAPEL, Jr., Magistrate Judge.
This 42 U.S.C. § 1983 action is pending before the court on a complaint filed by Cleveland Berry ("Berry"), a former inmate, on July 17, 2016.
The defendants filed a special report and supporting evidentiary materials addressing Berry's claims for relief. In these filings, the defendants argue that this case is due to be dismissed because prior to filing this cause of action Berry failed to properly exhaust an administrative remedy available to him at the Houston County Jail with respect to the claim presented in the complaint. Defendants' Special Report—Doc. No. 32 at 17-19. Specifically, the defendants maintain that Berry failed to submit grievances regarding his claims challenging an hour of standing while officers processed him into the jail, his family being placed on hold each time they called the jail, the taking of his toilet paper and interference with his receipt of mail. Id. at 18-19. The defendants further argue that with respect to the grievances Berry did file, he "did not file one single appeal to the any of [the responses to] his grievances." Id. at 19. A review of the grievances filed by Berry also indicates that he did not file these grievances in accordance with the directives of the jail's grievance procedure. It is likewise clear that the time for filing a grievance (three days from the date of the incident made the basis of the grievance) and the time for filing an appeal of the responses to his grievances (three days from the date Berry received each response), expired either prior to initiation of this case or soon after the filing of this case and, therefore, Berry failed to exhaust his remedies and cannot now undertake any action which would permit him to do so.
Upon receipt of the defendants' special report, the court issued an order providing Berry an opportunity to file a response to the report in which the court specifically directed Berry to address "the defendants' argument[] 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. Order of October 20, 2016—Doc. No. 33 at 1 (footnote omitted). The order also advised Berry that his response should be supported by affidavits or statements made under penalty of perjury and/or other appropriate evidentiary materials. Id. at 3. In addition, the order cautioned Berry that unless "
Pursuant to the aforementioned order, the court deems it appropriate to treat the special report filed by the defendants as a motion to dismiss with respect to the exhaustion defense. Thus, this case is now pending on the defendants' 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. Florida Dept. of Corrections, 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 as to exhaustion, the Eleventh Circuit has
Leal v. Georgia Dept. of Corrections, 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. Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004). Because exhaustion is mandated by the statute, [a federal court has] no discretion to waive this requirement. Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir. 1998)." Myles v. Miami-Dade County Correctional and Rehabilitation Dept., 476 F. App'x 364, 366 (11th Cir. 2012). The court will therefore "resolve this issue first." Id.
"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 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 (citing Turner, 541 F.3d at 1082; Bryant, 530 F.3d at 1376). Based on the foregoing, the Eleventh Circuit specifically rejected the argument that "disputed facts as to exhaustion should be decided" only after a trial either by a jury or judge. Trias, 587 at 534.
Upon review of the complaint, the amendment thereto, the defendant's special report and the undisputed evidentiary materials filed in support thereof, the court concludes that the defendants' motion to dismiss is due to be granted.
Berry challenges actions which occurred during his incarceration at the Houston County Jail in mid-2016. In response to the complaint, the defendants assert that this case is subject to dismissal because Berry failed to properly exhaust the administrative remedy provided at the jail prior to filing the instant 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, 126 S.Ct. 2378 (2006). Moreover, "the PLRA exhaustion requirement requires
"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. 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. 548 U.S. at 83-84; Bryant, 530 F3d at 1378 (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) (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 (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) (per curiam).
It is undisputed that at all times relevant to this case the Houston County Jail provided an administrative remedy for inmate complaints in the form of an inmate grievance procedure. The grievance procedure in effect at the time of Berry's incarceration allows an inmate to submit grievances to jail personnel with respect to matters/conditions occurring at the detention facility. The grievance procedure provides as follows:
Defs.' Exh. E—Doc. No. 32-6 at 8.
Based on the undisputed evidence, the court finds that Berry failed to properly exhaust the administrative grievance procedure available at the Houston County Jail prior to filing this case. Specifically, Berry did not file grievances regarding some issues and did not appeal the responses to grievances which he did file. Moreover, with respect to several grievances, Berry failed to follow the directives of the grievance procedure as he did not state the date of the event made the basis of the grievance or sufficient details such that the grievance officer could properly respond to the grievance. It is likewise undisputed that the jail's administrative remedy is no longer available to Berry because the applicable time limits to both filing a grievance and appealing responses has expired. Berry does not dispute his failure to exhaust the administrative remedy provided to him by the defendants while such remedy was available to him. Under these circumstances, dismissal with prejudice is 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) (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 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 previously available to him at the Houston 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 before seeking relief from this court.
3. No costs be taxed herein.
The parties may file objections to this Recommendation on or before December 21, 2016. A party must specifically identify the factual findings and legal conclusions in the Recommendation to which the objection is made. The parties are cautioned that frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's findings and recommendations in accordance with the provisions of 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the District Court of legal and factual issues covered in the Recommendation and waives the right of the party to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. 11TH Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
