Carter v. Peasant et al (INMATE 1)
MEMORANDUM OPINION AND ORDER: it is ORDERED and ADJUDGED that: 1) The dfts' 12 motion to dismiss is GRANTED to the extent the dfts seek dismissal of this case due to the plf's failure to properly exhaust an administrative remedy available to him prior to filing this federal civil action; 2) This case is DISMISSED without prejudice in accordance with the provisions of 42 USC § 1997e(a) for the plf's failure to properly exhaust an administrative remedy available to him in the Alabama prison system. Signed by Honorable Judge Wallace Capel, Jr on 4/29/2015. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
DESINEY DEON CARTER, #192639,
DR. PEASANT, et al.,
CIVIL ACTION NO. 2:14-CV-1182-WC
MEMORANDUM OPINION AND ORDER
In this 42 U.S.C. § 1983 action, Desiney Deon Carter (“Carter”), a state inmate,
challenges the adequacy of medical treatment provided to him for itchy skin, which he selfdiagnosed as scabies, during his incarceration at the Ventress Correctional Facility
(“Ventress”). Carter names Dr. Peasant, former correctional commissioner Kim Thomas, the
State of Alabama, Warden Christopher Gordy and Nurse Walker as defendants in this cause
The defendants filed a special report and supporting evidentiary materials addressing
Carter’s claim for relief. In these documents, the defendants adamantly deny that they acted
with deliberate indifference to Carter’s skin condition, a condition diagnosed by Dr. Peasant
as merely dry skin, and, instead, assert that they provided appropriate treatment for his minor
skin irritation. Defendants’ Exhibit 3 - Doc. No. 12-3 at 3. The defendants further assert that
the complaint is due to be dismissed because Carter failed to exhaust an administrative
remedy available to him through contract medical provider, Corizon Medical Services, Inc.
(“Corizon”), prior to initiation of this case. Defendants’ Special Report - Doc. No. 12 at 6-7.
The defendants base their exhaustion defense on Carter’s failure to file a grievance regarding
the medical treatment challenged in the instant complaint as allowed by Corizon’s grievance
procedure before seeking relief from this court. Id. at 7.
“[A]n 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.” Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir.
2008) (internal quotations omitted); Trias v. Fla. Dep’t of Corr., 587 F. App’x 531, 534 (11th
Cir. 2014) (District court properly construed defendant’s “motion for summary judgment as
a motion to dismiss for failure to exhaust administrative remedies”). The court will therefore
treat the defendants’ report as a motion to dismiss. Bryant, 530 F.3d at 1375; Order of
February 5, 2015 - Doc. No. 14 (advising Carter that the defendants’ report will be treated
as a dispositive motion and explaining the manner in which to respond to such a motion).
II. STANDARD OF REVIEW
The Eleventh Circuit has determined 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 court has] no discretion to waive this
requirement. Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir. 1998).
Myles v. Miami-Dade Cnty. Corr. and Rehab. Dep’t, 476 F. App’x 364, 366 (11th Cir. 2012).
Based on the foregoing, the court will “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]. See [Turner, 541
F.3d at 1082]. The judge properly may consider facts outside of the pleadings
[i.e., evidentiary materials submitted in support of the special report] 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. Bryant,
530 F.3d at 1376.
Trias, 587 F. App’x at 535.
Upon review of the undisputed facts of this case as evidenced by the evidentiary
materials filed by the defendants, the court concludes that the defendants’ motion to dismiss
is due to be granted.
Carter challenges the constitutionality of medical treatment he received for a minor
skin condition. In response to the complaint, the defendants deny Carter’s allegations and
further argue that this case is subject to dismissal because Carter failed to properly exhaust
the administrative remedy supplied via the medical care provider prior to filing this
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
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 (2006). Moreover, “the PLRA exhaustion
requirement requires proper exhaustion.” Woodford, 548 U.S. at 93 (emphasis added).
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.
548 U.S. at 90-91, 93. The 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; 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). “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) (emphasis added).
The record in this case is undisputed that the health care provider for the Alabama
Department of Corrections provides a grievance procedure for inmate complaints related to
the provision of medical treatment. The defendants explain the procedure and relevant facts
. . . [Upon his arrival at Ventress in February of 2014,] Mr. Carter
signed an “ACCESS TO HEALTHCARE SERVICES” form, acknowledging
his understanding of the grievance, pill and sick call processes as well as the
manner in which he accesse[s] health care. . . .
. . . The initial orientation process with the ADOC correctional system
includes educating inmates as to the availability of the grievance process. The
existence of this grievance procedure is well-known among the prison
population, as indicated by the fact that the medical staff at Ventress receives
inmate requests and/or inmate grievances on a daily basis. The physicians,
nurse practitioners, nurses and other medical personnel at Ventress attempt to
resolve all inmate concerns prior to an “inmate grievance” being submitted.
The grievance process is initiated when an inmate submits an informal
Inmate Grievance form to the HSA through the institutional mail system. After
reviewing the Inmate Grievance, the HSA [or her designee] then provides a
written response [to the grievance] within approximately five (5) days of
receipt of the Inmate Grievance. The written response to an Inmate
Grievance is included on the bottom portion of the same form containing an
inmate’s Inmate Grievance. Below the portion of the form designated for the
“Response,” the following notation appears:
IF YOU WISH TO APPEAL THIS REVIEW
YOU MAY REQUEST A
APPEAL FORM FROM THE HEALTH
SERVICES ADMINISTRATOR. RETURN THE
COMPLETED FORM TO THE ATTENTION
ADMINISTRATOR. YOU MAY PLACE THE
FORM IN THE SICK CALL REQUEST BOX
OR GIVE IT TO THE SEGREGATION SICK
CALL NURSE ON ROUNDS.
As stated in the Inmate Grievance forms, the second step of the grievance
process involves the submission of a formal Grievance Appeal, at which time
the inmate may be brought in for one-on-one communication with the medical
staff, Health Services Administrator and/or the Director of Nursing. A written
response to a formal Grievance Appeal is provided within approximately five
(5) days of receipt. Inmate Grievance and Grievance Appeal forms are
available from the correctional shift commander office at Ventress. Inmates
are instructed to place completed Inmate Grievance and Inmate Grievance
Appeal forms in the sick call boxes located [in the facility]. The HSA reviews
the Grievances daily, provides a written response within approximately five (5)
days at the bottom of the form and returns a copy of the completed forms to the
inmate. The HSA encourages inmates who have complaints about the medical
care they have sought or received at Ventress to utilize this grievance process.
Mr. Carter did not submit a single grievance [prior to initiation of this
case] during his incarceration at Ventress.
. . . Upon examining Mr. Cater [on October 27, 2014] and asking about
the nature of his complaints and the prior treatment received, I concluded that
Mr. Cater did not, in fact, have scabies. Moreover, it appeared to me that his
complaints of skin irritation were not life-threatening or associated with any
particular medical condition, but were likely the result of simply dry skin.
Therefore, I encouraged Mr. Carter to continue to rely upon the existing
treatment regimen provided to him, which included antihistamine medication
and a topical hydrocortisone cream. I also told Mr. Carter that, if his
symptoms should change . . . in any way, that he should notify the medical
Defendants’ Exhibit 1 (Aff. of Courtney Walker, R.N.) - Doc. No. 12-1 at 2, 5-7 (citations to
medial records and paragraph numbering omitted).
Upon review of the arguments set forth by the defendants, the court entered an order
which provided Carter an opportunity to file a response to the arguments set forth by the
defendants in which he was advised to “specifically address the defendants’ assertion 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) of the Prison Litigation Reform
Act (‘PLRA’)” prior to filing this federal civil action. Order of February 5, 2015 - Doc. No.
14 at 1. The time allowed Carter to file his response expired on February 26, 2015. As of
the present date, Carter has filed no response to this order.
The evidentiary materials filed by the defendants demonstrate that Carter failed to file
the requisite grievance prior to initiation of this federal civil action. Carter does not dispute
his failure to exhaust the administrative remedy available to him in the prison system prior
to filing this case. In addition, there is nothing before the court which justifies Carter’s
failure to exhaust the grievance procedure provided by Corizon. Consequently, the court
concludes that this case is subject to dismissal without prejudice as Carter failed to properly
exhaust an administrative remedy available to him which is a precondition to proceeding in
this court on such claim. Woodford, 548 U.S. at 87-94; Bryant, 530 F.3d at 1374-75
(dismissal for failure to exhaust an administrative remedy when the remedy remains available
is not an adjudication of the merits and is without prejudice).
For the foregoing reasons, it is ORDERED and ADJUDGED that:
1. The defendants’ motion to dismiss is GRANTED to the extent the defendants seek
dismissal of this case due to the plaintiff’s failure to properly exhaust an administrative
remedy available to him prior to filing this federal civil action.
2. This case is DISMISSED without prejudice in accordance with the provisions of
42 U.S.C. § 1997e(a) for the plaintiff’s failure to properly exhaust an administrative remedy
available to him in the Alabama prison system.
A separate judgment will issue.
Done this 29th day of April, 2015.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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