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                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-13844
                             Non-Argument Calendar
                           ________________________

                         D.C. Docket No. 1:11-cv-24003-UU



HUMBERTO TRIAS,
a.k.a. Humberto Toras,

                                                                Plaintiff-Appellant,

                                      versus

FLORIDA DEPARTMENT OF CORRECTIONS,

                                                                         Defendant,

NURSE BERNICE TERRELL,
individual,

                                                              Defendant-Appellee.

                           ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                               (September 23, 2014)

Before TJOFLAT, JORDAN, and FAY, Circuit Judges.
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PER CURIAM:

       Humberto Trias, a Florida inmate proceeding pro se, appeals the district

judge’s dismissal without prejudice of his 42 U.S.C. § 1983 civil rights complaint

for failure to exhaust administrative remedies. We affirm.

                                   I. BACKGROUND

       Trias’s complaint states, on the morning of February 18, 2010, while Trias,

an insulin-dependent diabetic, was housed at the South Florida Reception Center

(“SFRC”), Nurse Bernice Terrell, whom Trias knew only as “Nurse B.” at the

time, injected Trias with an overdose of insulin. Later that morning, Trias fainted

and hit his head on the corner of a steel locker, as a result of which he suffered

several serious injuries.

       Trias alleged, on February 20, 2010, he filed an inmate request form

concerning the February 18 incident, and, on February 26, 2010, he filed an

informal grievance, but received no response to either submission. Because

inmates were not given copies of filed forms, Trias had to draft additional

handwritten copies for his files. Trias then filed informal grievances with the

SFRC and Calhoun Correctional Institution (“Calhoun CI”) assistant wardens, on

July 12 and August 24, 2010, respectively. 1 He received responses to both

submissions. On September 4 and October 1, 2010, Trias filed formal grievances,

       1
         Trias was transferred to Calhoun CI in March 2010. He later was transferred to Liberty
Correctional Institution.
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but did not receive a response to either filing. Trias also alleged his Medication

and Treatment Record for February 18, 2010, was missing from his file.

        In November 2011, Trias filed a pro se § 1983 complaint against Nurse

Bernice Terrell, of the SFRC, asserting various Eighth Amendment claims, as well

as a state-law personal-injury claim. 2 Trias attached several exhibits to his

complaint. Trias’s inmate request forms dated February 20 and 26, 2010,

contained no entries in the sections designated for responses. A July 12, 2010,

informal grievance addressed to the SFRC assistant warden indicated it was being

returned to Trias, because it had been filed at a location to which he was not

currently assigned. An informal grievance addressed to the Calhoun CI assistant

warden, dated August 24, 2010, was denied, because no documentation in Trias’s

medical records substantiated his claim of an insulin overdose on February 18,

2010.

        In a September 4, 2010, Request for Administrative Remedy or Appeal

addressed to the Calhoun CI assistant warden, Trias indicated he was appealing an

informal grievance concerning the February 18 incident. In a Request for

Administrative Remedy or Appeal addressed to the Secretary of the Florida

Department of Corrections (“FDOC”), dated October 10, 2010, Trias stated the

time for responding to his September 4 request had expired, and he was seeking to

        2
         Trias also named as a defendant Ken Tucker, the Secretary of the Florida Department of
Corrections. Tucker was dismissed from the case and is not a party to this appeal.
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further exhaust his administrative remedies. No response or acknowledgement of

receipt appeared on the September 4 or October 10 forms.

      Trias also submitted an affidavit sworn to by FDOC inmate Jessie Milton.

Milton attested he had filed several grievances for which he had received no

response. He explained that inmates previously had received signed receipts upon

the submission of grievances. Under the current procedures, however, inmates had

to wait for receipts, which sometimes never were given. In such situations,

inmates were unable to substantiate the filing of grievances.

      In addition, Trias attached several document requests and informal

grievances he had submitted to the medical departments at Liberty Correctional

Institution and the SFRC between July and September 2011, as well as several of

Trias’s medical records. A response to Trias’s July 8, 2011, request for “Mrs.

B.[’s]” full name identified her as “Beatriz Terrel.” ROA at 34.

      Following discovery, Nurse Terrell moved for summary judgment on several

grounds, including that Trias had failed to exhaust his administrative remedies

under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Nurse

Terrell argued Trias did not file a formal grievance or an appeal to the FDOC

Secretary, as required by state grievance procedures. Nurse Terrell submitted

several documents in support of her summary judgment motion, including an

affidavit sworn to by Rebecca Padgham, a Correctional Services Assistant


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Consultant employed by the FDOC Bureau of Policy Management and Inmate

Appeals (“BPMIA”). Padgham attested she was the records custodian for all

inmate grievance appeals to the FDOC Secretary. After reviewing Trias’s

grievance file, Padgham determined Trias did not file any appeals to the FDOC

Secretary regarding Nurse Terrell and an alleged insulin overdose on February 18,

2010.

        Trias testified in his deposition that, after the February 18, 2010, incident, he

had difficulty obtaining grievance forms, which are kept behind a glass wall by an

officers’ station. Several times, Trias was told no request forms were available.

Another inmate provided a request form to Trias on the evening of February 20.

Trias testified, on that date, he asked Nurse Terrell for her name, which she refused

to provide. A response to a later grievance indicated Nurse Terrell’s first name

was “Beatrice” and included an incorrect spelling of her last name. ROA at 355.

A relative of Trias eventually learned Nurse Terrell’s name.

        In his opposition to Nurse Terrell’s summary judgment motion, Trias argued

he had complied with the grievance procedures, including filing an administrative

appeal to the FDOC Secretary, but he had no power to force a response to a

grievance. He further argued prison officials should not be allowed to take unfair

advantage of the PLRA exhaustion requirements.




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      The district judge sua sponte ordered Trias to file a supplemental response as

to exhaustion. The judge explained she would resolve any factual disputes

concerning exhaustion without a hearing. The judge further explained Trias could

not rely solely on his complaint or unsworn response, but was required to submit a

sworn statement including all information bearing on his satisfaction of the

grievance procedures and his credibility on that issue.

      In response, Trias filed an affidavit in which he attested he had to rely on

handwritten copies of his submissions, because carbon copies were not provided

for the Request for Administrative Remedy or Appeal forms. Trias further attested

the SFRC, where the February 18, 2010, incident occurred, did not have a locked

grievance box, as required by administrative rules. He contended this lapse, along

with authorities’ inability to locate his medical records concerning the February 18

incident and their failures to respond to several of his grievances, gave rise to

issues of fact as to the mishandling of grievance records and implied the existence

of an institutional conspiracy. Trias asserted his credibility was supported by:

(1) his July and August 2010 informal grievances; (2) his persistent efforts to

exhaust his administrative remedies; and (3) the response to his July 8, 2011,

informal grievance, which contained incorrect information.

      The district judge construed Nurse Terrell’s motion for summary judgment

as a motion to dismiss for failure to exhaust administrative remedies, dismissed


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Trias’s § 1983 claim on that ground, and declined to exercise supplemental

jurisdiction over Trias’s state-law claim. The judge found Trias had not appealed

to the FDOC Secretary and therefore had not exhausted his administrative

remedies. The judge stated she had considered all of the evidence, but notably was

persuaded by the affidavit of FDOC records custodian Rebecca Padgham. The

judge noted the FDOC’s procedures, under which a grievance may pass through

the hands of multiple staff members and offices before a receipt is issued to the

inmate, “invite[d] this very factual dispute.” ROA at 509-10.

      Nevertheless, the judge found the following facts diminished the credibility

of Trias’s exhaustion claim: (1) his pursuit of the administrative procedures had

been erratic and often failed to comply with the procedural requirements; (2) he did

not follow through when his original informal grievance went unacknowledged in

February 2010; (3) he waited over five months before filing a second informal

grievance in the wrong institution; and (4) his third informal grievance was

untimely, even though it was denied on the merits. The judge concluded Nurse

Terrell had met her burden of showing Trias had not exhausted his administrative

remedies, and the judge dismissed Trias’s complaint without prejudice on that

ground.

      On appeal, Trias argues the district judge erroneously dismissed his

complaint and disputed facts as to exhaustion should be decided by a jury.


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According to Trias, the FDOC repeatedly interfered with his attempts to pursue his

administrative remedies by failing to comply with its own rules and to provide

receipts and responses. Trias further argues, when his August 24, 2010, informal

grievance was denied on the merits, his prior grievances became moot, and the

district judge abused her discretion by considering them in the dismissal of his

complaint. Trias claims he properly filed an appeal with the FDOC Secretary after

he did not receive a timely receipt of the formal grievance he filed with the

Calhoun CI assistant warden, and he was not required to grieve a breakdown in the

grievance process.

      Trias argues “summary judgment” was not appropriate in light of the district

judge’s finding that FDOC procedures invited the current factual dispute. Terrell’s

Br. at 12. Trias contends, because state personnel lost his appeal to the FDOC, his

case falls within an exception to the PLRA’s exhaustion requirements. Trias also

asserts prison authorities’ inability to locate his medical records from the day in

question suggests intentional interference. According to Terrell, because of

changes to grievance procedures, it is impossible for an inmate to substantiate the

filing of any grievance other than by making his own handwritten copies of filings.

Trias contends a system whereby the FDOC can raise an exhaustion defense




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simply by “purporting” it never received a grievance appeal is fundamentally

unfair.3 Trias Reply Br. at 2.

                                      II. DISCUSSION

       We review de novo the district judge’s application of 42 U.S.C. § 1997e(a),

the PLRA’s exhaustion requirement. Higginbottom v. Carter, 

, 1260

(11th Cir. 2000) (per curiam). We review for clear error the district judge’s

findings of fact, including credibility determinations, underlying a determination as

to exhaustion. See Bryant v. Rich, 

, 1378-79 (11th Cir. 2008). If the

judge’s assessment of the evidence is plausible in light of the record viewed in its

entirety, we may not reverse even if convinced we would have weighed the

evidence differently. Anderson v. Bessemer City, 

, 573-74, 

, 1511 (1985).

       Before a prisoner may file a § 1983 suit in federal district court challenging

the conditions of his confinement, he must first exhaust all administrative remedies

as a precondition. 42 U.S.C. § 1997e(a); Leal v. Ga. Dep’t of Corr., 

, 1279 (11th Cir. 2001) (per curiam). To exhaust administrative remedies as

required by the PLRA, prisoners properly must take each step in the administrative

process. 

. An assertion that available administrative

       3
         While Trias also attempts to raise a new argument and assert the doctor who prescribed
insulin to him is not licensed in Florida, we find this argument does not warrant discussion.
Regardless of whether Trias’s contentions regarding the licensing status of his prescribing doctor
are properly before us, they have no bearing on the question of exhaustion.
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procedures are futile does not excuse the exhaustion requirement. 

.

      A defendant bears the burden of proving the plaintiff has failed to exhaust

available administrative remedies. Turner v. Burnside, 

, 1082 (11th

Cir. 2008). A district judge may resolve disputed factual issues where necessary to

the disposition of a motion to dismiss for failure to exhaust. See 

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. 

.

      To exhaust administrative remedies, a Florida inmate generally must submit:

(1) an informal grievance to the staff member responsible for the particular area of

the problem, (2) a formal grievance with the warden, and (3) an appeal to the

Office of the Secretary of the FDOC. See Fla. Admin. Code Ann. rr. 33-

103.005(1)(a)-(b), 33-103.006(1), 33-103.007(1); Chandler v. Crosby, 

, 1288 (11th Cir. 2004). When filing a medical grievance, an inmate may

begin the process with a formal grievance, which may be followed by an appeal to

the FDOC Secretary. See Fla. Admin. Code Ann. rr. 33-103.005(1), 33-

103.007(1).

      The reviewing authority has 10 days to respond to informal grievances and

20 days to respond to formal grievances. 

Unless the


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inmate has agreed to an extension in writing, expiration of these time limits at any

step in the grievance process entitles the inmate to proceed to the next step. 

Where an informal grievance was filed, a formal grievance must

be received no later than 15 days after a response to the informal grievance was

given. 

An appeal to the FDOC Secretary likewise must

be received no later than 15 days from the date the response to a formal grievance

was provided to an inmate. 

      The district judge did not err when she concluded Trias had not exhausted

his administrative remedies. The evidence was sufficient for the judge reasonably

to determine Nurse Terrell met her burden of showing Trias did not file an appeal

to the FDOC Secretary, as required by the PLRA in conjunction with the Florida

inmate grievance procedures. See 42 U.S.C. § 1997e(a); Fla. Admin. Code Ann. r.

33-103.007(1); 

; 

.

      Trias has cited no authority for his contention that the district judge, in

making a credibility assessment, could not consider all of Trias’s various

information requests and grievances related to the February 18, 2010, incident.

Regardless of whether the FDOC interfered with his attempts to pursue his

administrative remedies, provided an incorrect spelling of Nurse Terrell’s name, or

failed to follow its own rules, Trias was not relieved of his obligation to file an

appeal to the FDOC Secretary. Cf. 

(explaining


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that a claim that administrative procedures are futile does not excuse the

exhaustion requirement).

      Trias’s challenge to the district judge’s improper grant of “summary

judgment” is belied by the record. The judge explicitly explained she was treating

Nurse Terrell’s assertion of Trias’s failure to exhaust administrative remedies “as if

it were raised on a motion for dismissal.” ROA at 503. Because the parties had a

sufficient opportunity to develop the factual record, the judge was empowered to

resolve factual disputes as to this issue. See 

; 

.

      Trias’s argument, that he was not required to grieve a breakdown in the

grievance process, misreads the basis for the district judge’s dismissal. The judge

did not fault Trias’s failure to grieve a breakdown in the process. Rather, the judge

faulted Trias’s failure to comply with the available procedures as to his substantive

grievance. Trias has provided no evidence to support his contention that FDOC

personnel lost his appeal, other than his own testimony, which the district judge

was entitled to find was outweighed by other record evidence. See 

; 

.

      Contrary to Trias’s contention, Nurse Terrell was not entitled to a dismissal

simply by “purporting” the FDOC never received his appeal. Nurse Terrell

submitted evidence in support of this assertion in the form of an affidavit sworn to


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by an FDOC records custodian. The district judge properly determined a factual

dispute existed as to this issue and did not clearly err when she found in favor of

Nurse Terrell. 4 See 

; 

.

       AFFIRMED.




       4
          Trias has abandoned, by failing to brief, any argument as to the district judge’s decision
not to exercise jurisdiction over his state-law claims. See Timson v. Sampson, 

, 874
(11th Cir. 2008) (recognizing, although pro se briefs are to be construed liberally, a pro se
litigant who offers no substantive argument on an issue in his initial brief abandons that issue on
appeal).
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