CHARLES J. KAHN, Jr., Magistrate Judge.
This prisoner civil rights case is before the court upon defendants' motion to dismiss with prejudice for plaintiff's failure to properly exhaust his administrative remedies. (Doc. 20). Plaintiff has responded in opposition to the motion. (Doc. 26). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(C). Upon careful consideration of the record, the parties' submissions and the relevant law, the court concludes that defendants' motion to dismiss should be granted and this case dismissed, but without prejudice.
Plaintiff is an inmate of the Florida penal system currently confined at Blackwater River Correctional Facility. Plaintiff initiated this lawsuit on December 17, 2013, by filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. 1). Plaintiff filed a second amended complaint on July 23, 2014. (Doc. 11). Plaintiff's second amended complaint names as defendants Nurse C. Blackmon and Captain J. Langford, both prison officials at Blackwater River CF. (Doc. 11, p. 1). Plaintiff alleges that on September 17, 2013, he "suffered an injury to his right ankle/foot" while playing basketball. (Id., p. 5). Plaintiff's foot became swollen and painful, and Nurse Blackmon provided plaintiff a bag of ice, an ace bandage, crutches, a medical pass for crutches, and a referral for an x-ray. During the consultation, plaintiff informed Blackmon that he was housed in an upper-tier top bunk and requested a medical pass for a bottom-tier lower bunk. (Id.). Blackmon refused the medical pass. (Id., pp. 5-6). After plaintiff arrived at his dormitory, he informed the officer in charge (Sergeant Lageer) of his injury and requested a bottom bunk on a low tier. (Id., p. 6). Plaintiff states he was "directed to Captain J. Langford, who stated he was not doing any moves, but to confinement, `cause in order to move he would have to contact the warden." (Id., p. 6 continuation page). Plaintiff alleges that the following morning (September 18, 2013), while descending the stairs from his upper-tier cell, he "lost balance while on crutches and fell down the entire sixteen steps to the floor." (Id., p. 6). The fall "caus[ed] further injuries that consist of lower back pain, severe headaches, more swelling to his right foot/ankle as well as torn tissues." (Id.). Plaintiff seeks to hold the defendants liable on the theory that they were deliberately indifferent to his health and safety when Blackmon refused to issue plaintiff a low-tier low-bunk pass the day of his injury, and when Langford refused to reassign plaintiff to a low-tier cell the day of his injury. (Id., pp. 5, 6 continuation page). As relief, plaintiff seeks monetary damages. (Id., p. 7).
The court directed service of plaintiff's second amended complaint on November 5, 2014. (Doc. 15). Due to plaintiff's proceeding pro se, the United States Marshals Service effected service of process. Service was effected by sending each defendant a request for waiver of service on November 18, 2014. (Docs. 15, 17, 18).
On January 12, 2015, defendants filed their motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that plaintiff failed to properly exhaust his administrative remedies because he did not timely pursue them and cannot now cure the deficiency. (Doc. 20; Doc. 21 (supporting exhibits)). The certificate of service attached to defendants' motion certified that "this document is being filed electronically and service shall be through the Court's transmission facilities on all persons appearing before this Court." (Doc. 20, p. 8). On January 28, 2015, defendants filed an amended certificate of service stating that the original certificate "inaccurately omitted that service was also made that day, January 12, 2015, on Plaintiff via U.S. Mail." (Doc. 25).
Plaintiff opposes defendants' motion to dismiss, asserting: (1) the motion is untimely because it was due January 20, 2015, but was not served upon him via institutional mail until January 21, 2015; (2) the grievance coordinator "committed a Giglio violation by providing false information in his affidavit swearing that plaintiff failed to adhere to chapter 33-103.011 Time Frames for Filing Grievances"; (3) contrary to defendants' assertion, plaintiff timely placed an informal and formal grievance in the institution's "locked box" on September 29, 2013; and (4) the exhibits accompanying plaintiff's response demonstrate that he properly exhausted his administrative remedies in a timely manner and that each grievance was addressed on the merits and not rejected as untimely. (Doc. 26 and Attach. (supporting exhibits)).
The court will first address whether defendants' motion to dismiss is timely. Rule 12 of the Federal Rules of Civil Procedure requires a defendant who has timely waived service to serve a responsive pleading within 60 days after the request for waiver of service was sent. Fed. R. Civ. P. 12(a). Plaintiff asserts defendants' motion is untimely, because defendants were required to serve their motion by January 20, 2015, but plaintiff did not receive the motion until January 21, 2015, when it was "served on plaintiff via institutional legal mail." (Doc. 26, pp. 1). In support of this assertion, plaintiff attached a copy of the institutional "Legal Mail Call Outs" log for January 20, 2015, which indicates plaintiff was not called out for delivery of legal mail on that date. (Doc. 26, Ex. E). Plaintiff also submitted a copy of the envelope in which defendants' motion to dismiss arrived. (Doc. 26, Ex. F). There is no date of mailing indicated on the envelope. (Id.).
The relevant question is not when plaintiff received defendants' motion via institutional mail, but when the defendants mailed it. See Fed. R. Civ. P. 5(b)(2)(C) (providing that when a paper is served by mail, "service is complete upon mailing"). Defendants' amended certificate of service certifies that a copy of the motion was mailed to plaintiff on January 12, 2015. (Doc. 25). Plaintiff's evidence does not rebut this. Absent evidence that defendants' amended certificate of service is inaccurate, the court finds that defendants' counsel mailed the motion to dismiss to plaintiff on January 12, 2015; thus, pursuant to Rule 5, service of the motion was complete on that date. As defendants' motion to dismiss was served within 60 days of November 18, 2014, it is timely.
Title 42 U.S.C. § 1997e provides, in relevant part: "No 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." 42 U.S.C. § 1997e(a). Exhaustion of all available administrative remedies is a mandatory pre-condition to suit. Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 149 L. Ed. 2d 958 (2001); see also Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 988, 152 L. Ed. 2d 12 (2002) ("Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case."). The 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, 534 U.S. at 524, 122 S.Ct. 983. Exhaustion is required whether the plaintiff seeks declaratory and injunctive relief, monetary damages, or both. Booth, 532 U.S. at 734, 121 S. Ct. at 1825.
"[T]he PLRA exhaustion requirement requires
The exhaustion requirement is not subject to waiver by a court, or futility or inadequacy exceptions. Booth, 532 U.S. at 741 n.6; McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L. Ed. 2d 291 (1992) ("Where Congress specifically mandates, exhaustion is required."); Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998). Nor is a court allowed to continue a case pending exhaustion. Alexander, 159 F. 3d at 1324-26 (holding that there is no discretion to waive the exhaustion requirement or provide continuances in the event a claim was not exhausted prior to filing suit).
The grievance procedures promulgated by the FDOC require an inmate to: (1) file an informal grievance with a designated prison staff member, (2) file a formal grievance with the warden's office, and then (3) submit an appeal to the Office of the Secretary. FLA. ADMIN. CODE rr. 33-103.005 to 33-103.007; see also Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218 (11th Cir. 2010). The grievance procedures establish time frames for filing these grievances. Rule 33-103.011 provides:
FLA. ADMIN. CODE r. 33-103.011(1)(a)-(c) (emphasis added).
When submitting a grievance appeal to the Office of the Secretary, the inmate must attach a copy of his formal grievance and response. FLA. ADMIN. CODE r. 33-103.007(5)(a).
The informal grievance, formal grievance, or grievance appeal "may" be returned to the inmate without further processing if, following a review of the grievance, one or more of the conditions enumerated in Rule 33.103.014 are found to exist. FLA. ADMIN. CODE r. 33-103.014(1). One such condition is that the grievance was not received within the time frame provided in Rule 33.103.011. See FLA. ADMIN. CODE r. 33-103.014(1)(d), (e), (i), (u). Another such condition is that the grievance appeal did not have the required attachments (a copy of the inmate's formal grievance and response). FLA. ADMIN. CODE r. 33-103.014(1)(g).
An inmate who has a grievance returned to him for failing to include the requisite attachments may correct the deficiency and refile the grievance if, upon receipt of the notification, the filing is within allowable time frames. Id. r. 33-103.014(2). Rule 33-103.014(2) does not permit the refiling of a grievance that has been returned as untimely. Id.
In Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008), the Eleventh Circuit outlined the procedure district courts should follow when presented with a motion to dismiss for failure to exhaust administrative remedies under the Prison Litigation Reform Act ("PLRA"). The court held that the defense of failure to exhaust should be treated as a matter in abatement. Id. at 1374. "This means that procedurally the defense is treated `like a defense for lack of jurisdiction,' although it is not a jurisdictional matter." Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (quoting Bryant, 530 F.3d at 1374). Because exhaustion is a matter in abatement, "it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment." Bryant, 530 F.3d at 1374-75 (citation and internal quotation omitted).
Deciding a motion to dismiss for failure to exhaust administrative remedies involves two steps. Turner, 541 F.3d at 1082. First, the court looks to the factual allegations in the defendants' motion, and those in the plaintiff's response. Id. If they conflict, the court accepts the plaintiff's version 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." Id.; see also Bryant, 530 F.3d at 1373-74.
If the complaint is not subject to dismissal at the first step, where the plaintiff's allegations are assumed to be true, "the court proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion." Turner, 541 F.3d at 1082 (citing Bryant, 530 F.3d at 1373-74, 1376). "The defendants bear the burden of proving that the plaintiff has failed to exhaust his available administrative remedies." Id. Upon making findings on the disputed issues of fact, the court then decides whether, under those findings, the plaintiff has exhausted his available administrative remedies.
The evidence in the record establishes the following. On September 29, 2013, plaintiff signed an informal grievance complaining of Nurse Blackmon's and Captain Langford's conduct. (Doc. 26, Ex. A). The informal grievance was stamped "Received" on October 30, 2013. (Id.). The informal grievance was "Denied" on October 31, 2013, with the following explanation:
(Doc. 26, Ex. A).
Also on September 29, 2013, plaintiff submitted a formal grievance to the warden's office. (Doc. 20, Ex. B; Doc. 26, Ex. B, p. 2). The formal grievance was stamped "Received" on October 30, 2013. (Id.).
Defendants, through the affidavit of Rolando Bethea, the grievance coordinator and records custodian for grievances filed at Blackwater River CF, assert that because plaintiff's informal and formal grievances were not received until October 30, 2013, which is more than 20 days after the September 17, 2013 foot injury and September 18, 2013 fall, these grievances "would not comply with applicable rules and would be rejected as untimely." (Doc. 20, p. 7; Doc. 21, Ex. A, Bethea Aff. ¶ 11). As support for this contention, defendants have provided one document: a copy of plaintiff's formal grievance to the warden's office. (Doc. 21, Ex. B). Defendants omitted the warden's response, even though the response was issued November 11, 2013, well before defendants filed their motion to dismiss. (See Doc. 26, Ex. B, p. 1).
Plaintiff
(Doc. 26, Ex. B, p. 1).
Plaintiff has also submitted documentation of his grievance appeal to the Office of the Secretary, documentation which, again, was omitted by defendants. (Doc. 26, Exs. C, D). Plaintiff's initial grievance appeal was returned by the Secretary's Office without action for plaintiff's failure to attach a copy of his formal grievance and response. (Doc. 26, Ex. C, p. 2). In returning the grievance, the Secretary provided: "Upon receipt of this response, if you are within the allowable time frames for processing a grievance, you may resubmit your grievance at your current location in compliance with Chapter 33-103, Inmate Grievance Procedure." (Doc. 26, Ex. C, p. 2). Plaintiff timely resubmitted his grievance appeal. (Doc. 26, Ex. D, p. 1). In plaintiff's grievance appeal, he again complained that he was denied a low-tier, low-bunk pass. Plaintiff described his injuries from the fall and requested referral to a specialist. Plaintiff's grievance appeal was denied on the merits on December 27, 2013, as follows:
Appeal Denied:
(Doc. 26, Ex. D, p. 2).
Because plaintiff initiated this lawsuit on December 17, 2013, he was required to properly exhaust his administrative remedies as to any claim brought in this action before December 17, 2013. See Goebert v. Lee Cnty, 510 F.3d 1312, 1324 (11th Cir. 2007) ("The time the statute sets for determining whether exhaustion of administrative remedies has occurred is when the legal action is brought, because it is then that the exhaustion bar is to be applied. . . . Otherwise, the exhaustion requirement would not serve its purposes of permitting corrections officials an opportunity to redress grievances before a lawsuit is initiated, thereby reducing the amount of inmate litigation that is filed.").
Contrary to defendants' argument, the record establishes that plaintiff completed each step of the administrative grievance procedure, and that his grievances were rejected on the merits, not as untimely. This suit is still subject to dismissal, however, because plaintiff failed to await the Secretary's response to his resubmitted grievance appeal before initiating this lawsuit. Plaintiff filed this lawsuit on December 17, 2013, but the Secretary's response on the merits was not issued until December 27, 2013. Plaintiff's initiation of this lawsuit prior to completion of administrative exhaustion requires dismissal of this case. As the Eleventh Circuit explained in Smith v. Terry, 491 F. App'x 81 (11th Cir. 2012):
Id. at 83 (citing Harris v. Garner, 216 F.3d 970 (11th Cir. 2000)). As plaintiff may refile his claims by timely initiating a new lawsuit, this case should be dismissed without prejudice. The dismissal nonetheless counts as a "strike" under 28 U.S.C. § 1915(g).
Accordingly, it is respectfully RECOMMENDED:
1. That defendants' motion to dismiss (doc. 20) be GRANTED and this action DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii) for plaintiff's failure to state a claim upon which relief may be granted (failure to exhaust available administrative remedies), but that the dismissal be WITHOUT PREJUDICE.
2. That the clerk be directed to close the file.
Any objections to these proposed findings and recommendations must be filed within fourteen days after being served a copy thereof.
