MICHAEL J. FRANK, Magistrate Judge.
Plaintiff Michael Quincy Sanders (DC #E16705), a prisoner represented by counsel, has filed a sixth amended civil rights complaint under 42 U.S.C. § 1983. (Doc. 53). Defendants Williams, Johns, and Crawford move to dismiss the complaint for failure to exhaust administrative remedies and for failure to state a claim against Johns and Crawford. (Doc. 67 (motion); Docs. 68, 72 (supporting materials)). Sanders opposes dismissal of the claims against Williams and Crawford, but agrees to dismissal of the claim against Johns. (Doc. 70). The undersigned recommends that Sanders's claims against Williams and Crawford be dismissed for failure to exhaust administrative remedies, and that Sanders's claim against Johns be dismissed pursuant to Sanders's voluntary dismissal.
Sanders initiated this action, pro se, on or about October 19, 2017, by filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. 1).
Sanders's sixth amended complaint names as Defendants three prison officials at Blackwater Correctional Facility—Chief Williams, Lieutenant Johns, and Officer Crawford. Sanders claims that the Defendants violated his constitutional rights when: (1) Williams and Crawford intentionally introduced five gang members into his dormitory on July 10, 2017, knowing that they would attack Sanders; (2) Williams was deliberately indifferent to Sanders's serious medical needs following the July 10, 2017, attack; and (3) Williams and Johns subsequently housed one of Sanders's attackers (Inmate Brownlee) in a two-man cell with Sanders on August 15, 2017, while he was in administrative confinement. (Doc. 53 at 4-13). Sanders seeks declaratory and injunctive relief, damages, attorney's fees and costs. (Id. at 13-14).
The Defendants move to dismiss Sanders's claims under Rule 8 and Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that: (1) Sanders failed to exhaust available administrative remedies as required by 42 U.S.C. § 1997e(a); (2) Sanders's allegations fail to state a facially plausible Eighth Amendment claim against Johns; and (3) Sanders's allegations fail to state a facially plausible Eighth Amendment claim against Crawford. (Doc. 67).
Sanders responds that dismissal of his claim against Johns is appropriate, but that his remaining claims should not be dismissed, because Defendants' proof that he failed to exhaust administrative remedies is insufficient, and his complaint states plausible Eighth Amendment claims against Williams and Crawford. (Doc. 70).
Defendants move to dismiss Sanders's claim against Defendant Johns for failure to state a claim upon which relief can be granted. (Doc. 67 at 2, 12-13). Sanders responds:
(Doc. 70 at 6). Sanders's claim against Johns should be dismissed pursuant to Sanders's waiver and voluntary dismissal. See Fed. R. Civ. P. 41(a).
Defendants assert that Sanders failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). (Doc. 67 at 2-11). In addition, Defendant Crawford contends that Sanders's sixth amended complaint fails to state a facially plausible Eighth Amendment claim against him concerning the July 10, 2017, attack. (Doc. 67 at 2, 13-14). Because the exhaustion issue is dispositive, the remainder of this Report and Recommendation is confined to that issue.
The PLRA 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). This exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, whether they allege excessive force or some other wrong, and whether they seek injunctive relief, monetary damages, or both. See Porter v. Nussle, 534 U.S. 516, 524 (2002).
Exhaustion of available administrative remedies is a mandatory pre-condition to suit. See Booth v. Churner, 532 U.S. 731, 739 (2001) ("The `available' `remed[y]' must be `exhausted'
"[T]he PLRA exhaustion requirement requires
The FDC's grievance procedure requires an inmate to: (1) file an informal grievance with a designated prison staff member, (2) file a formal grievance at the institutional level with the Warden's office, and (3) submit an appeal to the Office of the Secretary (through the Bureau of Policy Management and Inmate Appeals in the FDC's Central Office). See 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). Appeals and direct grievances to the Office of the Secretary are processed through the institution. Fla. Admin. Code r. 33-103.007(5). Each institution has a designated office through which grievances and appeals are processed. (Id.). That designated office has a logging and tracking system that records and documents receipt and mailing of inmate grievances and appeals. (Id.).
A failure to exhaust administrative remedies is an affirmative defense that the defendant bears the burden of proving. See Jones v. Bock, 549 U.S. 199, 216 (2007) ("We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints."). 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 PLRA. The defense of failure to exhaust should be treated as a matter in abatement. See 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. See Turner, 541 F.3d at 1082. First, the court looks to the factual allegations in the defendant's motion, and those in the plaintiff's response. See 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. See, e.g., Singleton v. Dep't of Corr., 323 F. App'x 783, 785 (11th Cir. 2009) ("A district court may properly consider facts outside of the pleadings to resolve a factual dispute regarding exhaustion where the factual dispute does not decide the merits and the parties have a sufficient opportunity to develop the record.") (citing Bryant, 530 F.3d at 1376).
Sanders's sixth amended complaint asserts the following within its jurisdictional allegations: "SANDERS has fully exhausted his administrative remedies." (Doc. 53 at 2 ¶ 3). Sanders's Statement of Facts supports this assertion with the following factual allegations:
(Doc. 53 at 7-8, ¶ 25). Thus, according to Sanders's allegations, his exhaustion efforts consisted of two grievances filed with the Warden's office in August 2017: an informal grievance and a formal grievance, the latter of which was returned without action. (Id.).
The Defendants' motion to dismiss acknowledges those grievances, and alleges that they are the
(Doc. 68 at 10) (copy of grievance at Doc. 68-2, Simpson Decl., Ex. 1-A). Prison staff at Blackwater CF received the informal grievance on August 15, 2017, and assigned log number 185-1708-0142. (Id.). The grievance was denied on August 19, 2017, by a prison staff member. The response stated:
(Id.). Sanders was advised: "You may obtain further administrative review of your complaint by obtaining form DC1-303, Request for Administrative Remedy or Appeal, completing the form as required by Rule 33-103.006, F.A.C., attaching a copy of your informal grievance and response, and forwarding your complaint to the warden or assistant warden no later than 15 days after the grievance is responded to." (Id.).
On August 19, 2017, Sanders signed a formal grievance addressed to the Warden stating:
(Doc. 68 at 10-11) (copy of grievance at 68-3, Simpson Decl., Ex. 1-B). The formal grievance was received on August 21, 2017, and assigned log number 1708-185-067. (Id.). Warden Maiorana returned the formal grievance to Sanders without action on September 5, 2017, stating:
(Id.).
The Defendants allege that the above two grievances are the only grievances Sanders filed between July 10, 2017 (the date of the attack), and October 19, 2017 (the date this lawsuit was filed), concerning his confinement at Blackwater CF. (Doc. 67 at 10-11).
Sanders's response to Defendants' motion to dismiss contains no additional factual allegations concerning exhaustion. (Doc. 70). Sanders relies on the allegations of his sixth amended complaint, and argues that his complaint survives dismissal under Turner's first step, because his sixth amended complaint alleged that he fully exhausted administrative remedies, and this court must accept that allegation as true. (Doc. 70 at 3).
Sanders's argument fails for two reasons. First, Sanders's assertion in his jurisdictional allegations that he "fully exhausted his administrative remedies" is a legal conclusion, not a factual allegation. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (distinguishing "labels and conclusions" from factual allegations); Papasan v. Allain, 478 U.S. 265, 286 (1986) (explaining that on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation").
Second, Sanders's factual allegations supporting his conclusion that he "fully exhausted" identify only two grievances: an informal grievance and a formal grievance, both of which were addressed to the Warden. (Doc. 53 at 7-8, ¶ 25). Sanders acknowledges that his formal grievance was returned without action. (Id.). Neither Sanders's sixth amended complaint, nor his response to Defendants' motion to dismiss, alleges any other exhaustion efforts. Although Sanders argues that the Defendants "cannot prove their own self-serving statement that their records do not demonstrate a grievance was timely filed and properly appealed" (Doc. 70 at 3), that is not an allegation that he
Accordingly, as the record stands, there is no factual dispute about the steps Sanders took to administratively exhaust the claims in this lawsuit. Sanders's exhaustion efforts were confined to Informal Grievance log #185-1708-0142 filed on August 15, 2017, and Formal Grievance log #1708-185-067 filed on August 17, 2017. Those grievances fail to satisfy the PLRA's exhaustion requirement.
Sanders's Informal Grievance log #185-1708-0142 filed on August 15, 2017, did not grieve the July 10, 2017, attack; rather, it grieved Sanders's cellmate assignment(s)
Moreover, Sanders did not appeal the denial of his informal grievance. Although Sanders filed Formal Grievance log number 1708-185-067, that grievance did not appeal the issue of Sanders's being housed with cellmates who were members of the Bloods, nor did it not attach a copy of Sanders's informal grievance and response. The direct formal grievance complained of Sanders's placement in administrative confinement and sought release from that confinement to the general population. Sanders's formal grievance cannot be construed, and was not construed, as grieving Williams and Crawford's alleged involvement in the July 10, 2017, attack or Williams's housing Brownlee with Sanders. The grievance was construed, reasonably, as challenging Sanders's placement in administrative confinement upon returning from the hospital on July 10, 2017. (Doc. 53 at 6, ¶ 21 (stating that August 15, 2017, was approximately 36 days after Sanders's placement in administrative confinement)).
Not only did Sanders's formal grievance fail to apprise officials of the claims raised in this lawsuit (Williams and Crawford's alleged involvement in the July 10, 2017, attack and Williams and Johns's housing Brownlee with Sanders on August 15, 2017), the grievance failed to comply with the FDC's grievance procedures in that it was filed more than fifteen days after the incident of which he complained — his placement in administrative confinement.
In addition to the deficiencies noted above, the overarching deficiency in Sanders's exhaustion efforts is that he never completed the grievance process by presenting his claims to the Office of the Secretary. This fact is undisputed, because although Sanders's response to Defendants' motion to dismiss expresses skepticism about the integrity of the FDC's grievance tracking system (see Doc. 70 at 3-4), Sanders does not allege that he filed a direct grievance or grievance appeal with the Office of the Secretary before initiating this lawsuit. The FDC's grievance procedure provides for appeals and direct grievances to the Office of the Secretary. See Fla. Admin. Code r. 33-103.007(1). Sanders never availed himself of this administrative remedy.
In light of the undisputed facts, Defendants Williams and Crawford are entitled to dismissal of Sanders's sixth amended complaint for failure to properly exhaust administrative remedies as required by 42 U.S.C. § 1997e(a).
For the reasons set forth above, the undersigned respectfully
3. The clerk of the court be directed to close this case file.
At Panama City Beach, Florida, this
