ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER DISMISSING WITHOUT PREJUDICE CLAIMS AGAINST DEFENDANTS MATHURIN AND SMYTHE

FEDERICO A. MORENO, District Judge.

Plaintiff Harry A. Nail commenced this lawsuit on August 13, 2015 alleging Defendants Esther Mathurin and Cephianne Smythe were deliberately indifferent to Plaintiff's serious medical needs by ignoring Plaintiff's self-inflicted arm lacerations instead of providing medical assistance, in violation of his constitutional rights.

The matter was referred to the Honorable Patrick A. White, United States Magistrate Judge, for a Report and Recommendation on Defendants' Motion for Summary Judgment (D.E. 81), filed on August 9, 2016, and Plaintiff's Response to Defendants' Summary Judgment Motion (D.E. 102), filed on September 13, 2016. The Magistrate Judge filed a Report and Recommendation (D.E. 137) on December 26, 2018. The Court has reviewed the entire file and made a de novo review of the issues presented by Plaintiff's objections to the Report and Recommendation. Being otherwise fully advised in the premises, it is

ADJUDGED that the Magistrate Judge's Report and Recommendation is AFFIRMED and ADOPTED. The Court agrees with the Magistrate Judge that Plaintiff failed to exhaust his administrative remedies and therefore the Complaint must be dismissed. The Court writes separately to address Plaintiff's objections to the Report and Recommendation.1

I. STANDARD OF REVIEW

When reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1).

II. LEGAL STANDARD

Defendants raise a failure to exhaust administrative remedies defense in their motion for summary judgment. But an 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." Wright v. Langford, 562 F. App'x 769, 775 (11th Cir. 2014) (quoting Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008)). In the Eleventh Circuit, district courts must "decid[e] a motion to dismiss for failure to exhaust administrative remedies [by following] a two-step process." See Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)). In the first step, the Court must look "to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, take[] the plaintiff's version of the facts as true." Id. "If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed. Id. (citing Bryant, 530 F.3d at 1374; Lawrence, 919 F.2d at 1529). But, "[i]f the complaint is not subject to dismissal at the first step, where the plaintiff's allegations are assumed to be true, the court then proceeds [to the second step] to make specific findings in order to resolve the disputed factual issues related to exhaustion." Id. "Once the court makes findings on the disputed issues of fact, it then decides whether under those findings the prisoner has exhausted his available administrative remedies." Id. at 1083.

As always, the Court reads Plaintiff's pro se allegations liberally. Haines v. Kerner, 404 U.S. 519 (1972). And ultimately, Defendants "bear the burden of proving that the [P]laintiff has failed to exhaust his available administrative remedies." Turner, 541 F.3d at 1082 (citing Jones v. Bock, 549 U.S. 199 (2007)).

III. DISCUSSION

The Magistrate Judge found Plaintiff failed to exhaust his administrative remedies before commencing this lawsuit, as required by the Prison Litigation Reform Act. Consequently, the Magistrate Judge recommends the Court dismiss the Complaint without prejudice. Plaintiff objects that the Magistrate Judge made three errors: (1) refusing to accept Plaintiff's affidavit as true; (2) concluding it was "not plausible" that Plaintiff filed a formal grievance concerning Defendants; and (3) finding lack of exhaustion in part because Plaintiff "provide[d] no copies of the[] purported grievances, despite being given an opportunity to do so" (D.E. 137 at 22). For the following reasons, Plaintiff's objections are OVERRULED.

The Prison Litigation Reform Act requires that Plaintiff exhaust available administrative remedies before commencing a lawsuit under 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001) ("[W]e think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.") (citing McCarthy v. Madigan, 503 U.S. 140, 144 (1992) ("Where Congress specifically mandates, exhaustion is required")). Plaintiff cannot satisfy Section 1997e(a)'s exhaustion requirement if he files an untimely or otherwise procedurally defective administrative grievance or appeal. See Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). Moreover, the Prison Litigation Reform Act eliminates judicial discretion and instead mandates strict exhaustion "irrespective of the forms of relief sought and offered through administrative avenues." Booth, 532 U.S. at 739, 741 n.6. This is because Congress intended to give "corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. 516, 525 (2002). Upon this statutory framework, the Court addresses Plaintiff's objections in turn.

First, Plaintiff objects that his affidavit "must be taken by law as true." (D.E. 141 at 1.) It is generally true that district courts must take allegations as true at the dismissal stage. But, as Plaintiff is aware,2 in the context of an exhaustion of remedies defense under the Prison Litigation Reform Act, binding Eleventh Circuit precedent requires the Court to "decid[e] a motion to dismiss for failure to exhaust administrative remedies [by following] a two-step process." See Turner, 541 F.3d at 1082 (citing Lawrence, 919 F.2d at 1528-29). In the first step, the Court must look "to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, take[] the plaintiff's version of the facts as true." Id. "If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed." Id. (citing Bryant, 530 F.3d at 1374; Lawrence, 919 F.2d at 1529). But, "[i]f the complaint is not subject to dismissal at the first step, where the plaintiff's allegations are assumed to be true, the court then proceeds [to the second step] to make specific findings in order to resolve the disputed factual issues related to exhaustion." Id. (emphasis added).

Here, the Parties' allegations clash. Plaintiff advances affidavit testimony that on February 5, 2013 he submitted two formal grievances—one alleging deliberate indifference by four correctional officers3 and a separate grievance alleging the same against the two medical Defendants, Mathurin and Smythe—and that on February 28, 2013 he filed two appeal grievances (which mirrored the two initial grievances) to the Office of the Department of Corrections Grievance Appeals. (See D.E. 102 at 20, ¶¶ 11-12.) Plaintiff asserts that in both instances, he received a receipt from the Department of Corrections concerning the correctional officers grievances, but did not receive receipts regarding the alleged medical Defendants grievances. Id. Aside from affidavit testimony, Plaintiff does not provide the Court any documentary evidence.

Defendants submit rebutting affidavit testimony by Alan McManus, the Chief of Policy Management and Inmate Appeals for the Florida Department of Corrections. McManus is the "custodian of the database that catalogues all formal grievances and grievance appeals for the FDOC." (D.E. 80-3 at ¶¶ 2, 5.) McManus testifies his "search of records contained in the grievance and grievance appeal database between July 1, 2012, [and] December 31, 2013" reveals that Plaintiff "did not file a grievance concerning inadequate medical treatment by medical providers on January 8, 2013, which he appealed to the Secretary." Id. at ¶ 16.

Because the Parties' exhaustion allegations conflict, and the Plaintiff's allegations taken as true do not require dismissal, the Magistrate Judge was compelled under Turner to proceed to the second step to "`make specific findings' and `decide[] whether under those findings the [Plaintiff] ha[d]' procedurally defaulted." (D.E. 137 at 21-22 (citing Turner, 541 F.3d at 1082-83; Bryant, 530 F.3d at 1376).) Therefore, the Court OVERRULES Plaintiffs objection that his affidavit "must be taken by law as true." (D.E. 141 at 1.)4

Second, Plaintiff objects to the Magistrate Judge's factual finding under Turner that Plaintiff did not formally grieve Defendants' alleged conduct. Specifically, Plaintiff attacks the McManus declaration on the grounds that McManus was in no position to know if Plaintiff's grievance was "thrown away shre[d]ded or otherwise disposed of because McManus "does not collect grievances at the institution so his affidavit does nothing but state there are no grievances about the nurses in the data base which is because they never made it that far." (D.E. 141 at 2.)5

As discussed above—and without supporting documentary evidence—Plaintiff presents affidavit testimony that he filed a formal grievance and appeal grievance alleging deliberate indifference by Defendants. (See D.E. 102 at 20, ¶¶ 11-12.) Upon this testimony, Plaintiff asks the Court to overrule the Report and Recommendation. Defendants, however, present rebutting testimonial and documentary evidence showing Plaintiff did not grieve the January 8, 2013 incident as to the Defendants' conduct. McManus testifies his "search of records contained in the grievance and grievance appeal database between July 1, 2012, [and] December 31, 2013" shows Plaintiff "did not file a grievance concerning inadequate medical treatment by medical providers on January 8, 2013, which he appealed to the Secretary." (D.E. 80-3 at ¶ 16.) McManus also attaches to his declaration documentary evidence comprising copies of the grievance and appeal grievance Plaintiff filed against the correctional officers. See id. at 8-11. These forms do not reference Defendants at all, which, notably, is consistent with Plaintiff's testimony that he "submitted two formal grievances" and "[t]he second grievance was about the nurses." (D.E. 102 at 20, ¶¶ 11-12.) So, Plaintiff's objection to the Magistrate Judge's factual finding boils down to his conclusory assertion that "the only way the grievance about Nurses Smythe and Mathurin could reach the data base would be if the officials at Dade C.I. file them which they did not which is beyond [Plaintiff's] control." (D.E. 141 at 2.)

On this evidentiary record, the Court agrees with the Magistrate Judge's factual finding that Plaintiff did not file any grievance concerning the Defendants' alleged conduct. The Court also agrees with the Magistrate Judge that it is "not plausible" that on February 5, 2013 Plaintiff filed a grievance against the correctional officers and a separate grievance against Defendants, but that only the correctional officers grievance was logged into the database, while the grievance against Defendants was inexplicably discarded without being logged into the database—and that this same result occurred again to Plaintiff's mirroring appeal grievances. Id.

Plaintiff suggested at summary judgment that Dade Correctional officials had a motive to eliminate the allegedly filed grievance against Defendants. (D.E. 102 at 4 ("The Officials at Dade C.I. knew that the Plaintiff [planned] to sue over the events of January 8, 2013.").) But neither Plaintiff's opposition to summary judgment nor his objections to the Report and Recommendation attempt to explain why officials would have a motive to prevent a lawsuit by discarding the grievances concerning the Defendants, while at the same time logging the grievances against the corrections officers, thereby forging a path to litigation over the same incident. Moreover, Plaintiff readily admits he "[cannot] state what happened to the institutional grievance and Central Office appeal about the conduct of the Nurses." Id. Instead, in a conclusory statement, Plaintiff asserts "he did file them in accordance" with Florida law. Id. As discussed infra, conclusory assertions do not stand up to demonstrable evidence.

Now, the Court must determine whether, under this factual finding, the Plaintiff "exhausted his available administrative remedies." Turner, 541 F.3d at 1083. The grievance process applicable to Florida prisoners is set out in Section 33-103 of the Florida Administrative Code. Under this process, a prisoner "must: (1) file an informal grievance with a designated prison staff member; (2) file a formal grievance with the institution's warden; and then (3) submit an appeal to the Secretary of the [Florida Department of Corrections ("FDOC")]." Bracero v. Sec'y, Fla. Dep't of Corr., 748 F. App'x 200 (11th Cir. 2018) (citing Dimanche v. Brown, 783 F.3d 1204, 1211 (11th Cir. 2015); Fla. Admin. Code §§ 33-103.005-33-103.007). "These steps must be completed in order and within certain time frames." Id. (citing § 33-103.011(4)). Where, as here, Defendants present credible testimonial and supporting documentary evidence that rebut Plaintiff's conclusory assertions concerning exhaustion, the Court finds Defendants satisfy their burden of showing Plaintiff failed to exhaust the administrative remedies provided to him under Florida law,6 as required by the Prison Litigation Reform Act. Turner, 541 F.3d at 1082.

The weight of authority in the Eleventh Circuit confirms this result. See, e.g., Williams v. Dep't of Corr., 678 F. App'x 877, 881-83 (11th Cir. 2017) (affirming dismissal where "Florida Department of Corrections' grievance log confirm[ed] that [plaintiff] did not submit any grievance appeals" about the defendants based on Bureau of Inmate Grievance Appeals employee testimony that plaintiff "filed no appeals" during relevant time period, and where only appeal filed "had nothing to do with any of the issues underlying any of [plaintiff's] § 1983 claims"); Bracero, 748 F. App'x 200 (affirming dismissal and rejecting plaintiff's "claims that the prison's lack of response to certain grievances prevented him from going forward with the three-step process" because "[t]he grievance procedure permitted [plaintiff] to correct and refile the grievances"); Gipson v. Renninger, No. 17-14364, 2018 WL 5734582, at *4-5 (11th Cir. Nov. 1, 2018) ("The district court properly concluded that [plaintiff] did not submit evidence showing that he filed any other proper administrative grievances relating to the incident on May 29, 2015" and thus "the district court correctly concluded that he failed to exhaust them"); see also Lyons v. Trinity Servs. Grp., Inc., 401 F.Supp.2d 1290, 1295-98 (S.D. Fla. 2005) (dismissing complaint on exhaustion grounds where records custodian in an affidavit "certif[ied] that there [was] no record of any appeals to the Department of Corrections having been filed by [Plaintiff] during that period of time" and "[a]side from his own conclusory statements, Plaintiff . . . produced no evidence whatsoever to support his claim that he has exhausted administrative remedies").

Finally, Plaintiff also argues in his objections that Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001) and Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999) support his exhaustion arguments. The Court disagrees. Not only are these two out-of-circuit cases not binding on this Court; they do not support Plaintiff's position. In Foulk, the defendant correctional officer "established" the prisoner filed an "informal resolution request." Foulk, 262 F.3d at 698. The problem for the defendant was that he also established the Department of Corrections "failed to respond" to the prisoner's informal resolution request. Id. So, the Eighth Circuit reversed the district court's dismissal on exhaustion grounds because the defendant correctional officer "point[ed] to no evidence in the trial record which establishe[d] that [the prisoner] could indeed have filed a grievance despite [the Missouri Department of Corrections's] failure to respond to his [informal resolution request]." Id. Then, in Powe, the prisoner presented evidence that he satisfied the "step 1 and step 2 grievances" and that the government failed to timely respond to his "step 2 grievance." Powe, 177 F.3d at 394. The Fifth Circuit reversed the district court's dismissal on exhaustion grounds, ruling the prisoner had exhausted his administrative remedies because the "state's time for responding . . . expired." Id.

Here—in contrast to Foulk and Powe where evidence established the prisoners completed initial administrative remedy procedures, but were stymied from completing the process because the government failed to respond—the evidentiary record does not establish Plaintiff successfully completed the first step of Florida Department of Corrections administrative remedy procedures (i.e. filing a formal grievance against Defendants). See § 33-103.005(1) ("Inmates may skip [an informal grievance] and initiate the process at the formal institutional level for issues pertaining to . . . medical grievance[s]. . . .") (effective Nov. 7, 2012). Instead, the testimonial and documentary evidence shows Plaintiff did not grieve the January 8, 2013 incident as to Defendants' conduct. Plaintiff's second objection is consequently OVERRULED.

Third, Plaintiff "specifically object[s]" as a "mistake of law" to the Magistrate Judge's finding that Plaintiff "provide[d] no copies of the grievances he purportedly filed against Mathurin and Smythe, and the documents provided by Defendants prove[d] otherwise." (D.E. 141 at 2 (citing § 33-103.015(8)).) Plaintiff argues the Florida Department of Corrections "has an express policy against making copies of DCI-303 forms which are grievance forms." Id. Now, Section 33-103.015(8) did indeed provide "that copying services shall not be provided to make copies of . . . Form DC1-303." § 33-103.015(8) (effective Nov. 7, 2012). But notwithstanding, Florida law and the required grievance forms make clear that Plaintiff was allowed to—and expected to— retain copies of his grievance forms in order to pursue his administrative remedies. For example, Section 33-103.006(1) explicitly required Plaintiff to file his formal grievance against Defendants "by completing Form DC1-303." § 33-103.006(1) (effective Nov. 7, 2012). And the Form DC1-303 Plaintiff filed against the correctional officers7—which was filed the same day Plaintiff alleges he grieved the incident as to the Defendants—explicitly provided that Plaintiff was to receive "2 Copies." (See D.E. 80-3 at 11.) This Form DC1-303 also provided for additional distribution of copies to Plaintiff's "inmate file," the "institutional grievance file," and throughout the Central Office. Id. Furthermore, for Plaintiffs alleged appeal grievance, Sections §§ 33-103.007(5)(a)-(c) required that he "[a]ttach a copy of his formal [or informal] grievance and response" or "[a]ttach any other documentation" Plaintiff had that was "pertinent to the review." §§ 33-103.007(5)(a)-(c) (effective Nov. 7, 2012). Thus, it is clear that Florida law expected Plaintiff to retain copies of filed grievances throughout his administrative remedy process.

Tethering together these statutory expectations with the evidentiary record showing Plaintiff did not formally grieve Defendants' alleged conduct, the Court finds the Magistrate Judge correctly applied Turner to make factual findings regarding exhaustion and did not err in recommending dismissal in part because Plaintiff "provide[d] no copies of the[] purported grievances, despite being given an opportunity to do so." Therefore, Plaintiffs final objection is also OVERRULED.8

Before concluding, the Court notes that the Magistrate Judge proceeded to address Defendants' summary judgment arguments on the merits. At this point, however, the Court need not reach the Magistrate Judge's analysis regarding summary judgment "[b]ecause [Plaintiff] did not exhaust administrative remedies as required by 42 U.S.C. § 1997e(a), and this fact alone is sufficient reason to dismiss the action." See Roach v. SCI Graterford Med. Dep't, 178 F. App'x 181, 183 (3d Cir. 2006).9

IV. CONCLUSION

For the foregoing reasons, it is

ADJUDGED as follows:

DONE AND ORDERED.