Smith v. Korey, et al.
Filing
59
ORDER granting 36 motion to dismiss for failure to exhaust administrative remedies; denying without prejudice as moot 39 Motion for summary judgment; dismissing without prejudice Defendants Sgt. Korey and Sgt. Barton; dismissing the case without prejudice, with instructions to the Clerk Signed by Judge Brian J. Davis on 5/10/2016. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TYRONE L. SMITH,
Plaintiff,
vs.
Case No. 3:15-cv-523-J-39JBT
SERGEANT KOREY, et al.,
Defendants.
ORDER
I.
Status
Plaintiff is an inmate confined in the Florida penal system.
He is proceeding pro se on an Amended Civil Rights Complaint
(Amended Complaint) (Doc. 9) pursuant to 42 U.S.C. § 1983.
He
filed his original Complaint (Doc. 1) on April 16, 2015, pursuant
to the mailbox rule. This cause is before the Court on Defendants'
Motion to Dismiss for Failure to Exhaust Administrative Remedies
(Motion) (Doc. 36).1
See Order (Doc. 14).
Plaintiff responded.
See Plaintiff's Response to the Defendants' Motion to Dismiss for
Failure to Exhaust Administrative Remedies (Response) (Doc. 49).
II.
Motion to Dismiss
"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'"
1
Ashcroft v. Iqbal, 556
In this opinion, the Court references the document and page
numbers designated by the electronic filing system.
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
"A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
that
the
defendant
is
liable
for
the
misconduct alleged."
Id. (citing Twombly, 550 U.S. at 556).
"[T]he
court
tenet
that
a
must
accept
as
true
all
of
the
allegations contained in a complaint is inapplicable to legal
conclusions.
Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice."
Id. (citing Twombly, 550 U.S. at 555).
Defendants
contend
that
Plaintiff
failed
to
exhaust
his
administrative remedies prior to filing suit, and they ask that his
Amended Complaint be dismissed.
Motion at 2.
On November 25,
2015, pursuant to the mailbox rule, Plaintiff filed a Motion for
Rule 56 Summary Judgment (Doc. 39), and Defendants submitted their
Response to Plaintiff's Motion for Summary Judgment (Doc. 47) on
December 22, 2015.
Because the Motion to Dismiss for Failure to
Exhaust Administrative Remedies, a matter in abatement, is due to
be granted, Plaintiff's Motion for Rule 56 Summary Judgment will be
denied without prejudice as moot.
III.
Exhaustion of Administrative Remedies
Defendants move to dismiss the Amended Complaint pursuant to
42 U.S.C. § 1997e(a).
Motion at 5-10.
Defendants assert that
Plaintiff failed to raise the issues alleged in this lawsuit in any
2
grievances and did not avail himself of the grievance process with
regard to his claims. See Defendants' Exhibits A and B (Docs. 36-1
and 36-2).
Of import, exhaustion of available administrative remedies is
required before a 42 U.S.C. § 1983 action with respect to prison
conditions by a prisoner may be initiated in this Court.
Eleventh
Circuit
has
set
forth
guidelines
for
The
reviewing
a
prisoner's civil rights claims:
Before
a
prisoner
may
bring
a
prison-conditions suit under § 1983, the
Prison Litigation Reform Act of 1995 requires
that he exhaust all available administrative
remedies. 42 U.S.C. § 1997e(a); see also Booth
v. Churner, 532 U.S. 731, 736, 121 S.Ct. 1819,
1822, 149 L.Ed.2d 958 (2001). The purpose of
the PLRA's exhaustion requirement is to
"afford
corrections
officials
time
and
opportunity to address complaints internally
before allowing the initiation of a federal
case." Woodford v. Ngo, 548 U.S. 81, 93, 126
S.Ct. 2378, 2387, 165 L.Ed.2d 368 (2006)
(quotation omitted). To properly exhaust, a
prisoner
must
"[c]ompl[y]
with
prison
grievance procedures." Jones v. Bock, 549 U.S.
199, 218, 127 S.Ct. 910, 922–23, 166 L.Ed.2d
798 (2007).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th
Cir. 2015).
In this vein, there is a two-step process for resolving
motions to dismiss relying on assertions of failure to exhaust
administrative remedies:
After a prisoner has exhausted the
grievance procedures, he may file suit under §
1983. In response to a prisoner suit,
3
defendants may bring a motion to dismiss and
raise as a defense the prisoner's failure to
exhaust these administrative remedies. See
Turner,[2] 541 F.3d at 1081. In Turner v.
Burnside we established a two-step process for
resolving motions to dismiss prisoner lawsuits
for failure to exhaust. 541 F.3d at 1082.
First, district courts look to the factual
allegations in the motion to dismiss and those
in the prisoner's response and accept the
prisoner's view of the facts as true. The
court should dismiss if the facts as stated by
the prisoner show a failure to exhaust. Id.
Second, if dismissal is not warranted on the
prisoner's view of the facts, the court makes
specific findings to resolve disputes of fact,
and should dismiss if, based on those
findings, defendants have shown a failure to
exhaust. Id. at 1082–83; see also id. at 1082
(explaining that defendants bear the burden of
showing a failure to exhaust).
Whatley, 802 F.3d at 1209.
Defendants move to dismiss based on Plaintiff's failure to
exhaust his administrative remedies.
The Court recognizes that
exhaustion of available administrative remedies is "a precondition
to an adjudication on the merits" and is mandatory under the Prison
Litigation Reform Act.
Bryant v. Rich, 530 F.3d 1368, 1374 (11th
Cir.), cert. denied, 555 U.S. 1074 (2008); Jones v. Bock, 549 U.S.
199,
211
(2007);
Woodford
v.
Ngo,
548
U.S.
81,
85
(2006)
("Exhaustion is no longer left to the discretion of the district
court, but is mandatory.") (citation omitted).
The Supreme Court
has stated that "failure to exhaust is an affirmative defense under
the PLRA[.]"
2
Jones v. Bock, 549 U.S. at 216.
However, "the PLRA
Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
4
exhaustion requirement is not jurisdictional[.]"
548 U.S. at 101.
Woodford v. Ngo,
See Turner v. Burnside, 541 F.3d 1077, 1082 (11th
Cir. 2008) (recognizing that the defense "is not a jurisdictional
matter").
Indeed, if a prisoner does not completely exhaust his remedies
prior to initiating a suit in federal court, the civil rights
complaint must be dismissed.
This is true even if the inmate
thereafter exhausts his administrative remedies after initiating
his action in federal court.
See Oriakhi v. United States, 165 F.
App'x 991, 993 (3d Cir. 2006) (per curiam); Johnson v. Jones, 340
F.3d 624, 627 (8th Cir. 2003); McKinney v. Carey, 311 F.3d 1198,
1200-01 (9th Cir. 2002) (per curiam); Medina-Claudio v. RodiguezMateo, 292 F.3d 31, 36 (1st Cir. 2002); Jackson v. Dist. of
Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Freeman v. Francis,
196 F.3d 641, 645 (6th Cir. 1999); Perez v. Wisconsin Dep't of
Corr., 182 F.3d 532, 538 (7th Cir. 1999).
Not
only
is
there
an
exhaustion
requirement,
exhaustion requirement requires proper exhaustion."
PLRA
Woodford, 548
U.S at 93.
Because exhaustion requirements are designed
to deal with parties who do not want to
exhaust,
administrative
law
creates
an
incentive for these parties to do what they
would otherwise prefer not to do, namely, to
give the agency a fair and full opportunity to
adjudicate their claims. Administrative law
does this by requiring proper exhaustion of
administrative remedies, which "means using
all steps that the agency holds out, and doing
5
"the
so properly (so that the agency addresses the
issues on the merits)." Pozo,[3] 286 F.3d, at
1024. . . .
Id. at 90 (emphasis added).
In fact, "[p]roper exhaustion demands
compliance with an agency's deadlines and other critical procedural
rules."
Id.
In the first step of the analysis, the Court recognizes that
Plaintiff is not required to plead exhaustion; therefore, the
Amended Complaint was not dismissed on its face, but, the Court
notes that Plaintiff, in his verified Amended Complaint, states
that he did not file an informal grievance, noting that he was
transferred from camp before he could initiate the grievance
process, and then he was without writing utensils at the new camp.4
Amended Complaint at 3.
formal
grievance
process.
Id.
as
he
He also states that he did not submit a
never
initiated
the
formal
grievance
Finally, he writes that he did not submit an appeal
to the Office of the Secretary, again claiming that the grievance
process was never initiated due to his transfer and lack of writing
materials.
Id.
3
Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.), cert. denied,
537 U.S. 949 (2002).
4
See Stallworth v. Tyson, 578 F. App'x 948, 950 (11th Cir.
2014) (per curiam) (citations omitted) ("The factual assertions
that [Plaintiff] made in his amended complaint should have been
given the same weight as an affidavit, because [Plaintiff] verified
his complaint with an unsworn written declaration, made under
penalty of perjury, and his complaint meets Rule 56's requirements
for affidavits and sworn declarations.").
6
Plaintiff
contends
that
his
administrative
remedies
should
failure
be
to
exhaust
excused
because
he
his
was
transferred from one institution to another, and he claims that he
did not have writing utensils at his new institution.
There are
disputed issues of fact as to whether administrative remedies were
available
to
Plaintiff
and
whether
Plaintiff
exhausted
all
available administrative remedies.
Thus, the Court must now make
findings
of
on
the
disputed
issues
fact
to
decide
whether
administrative remedies were available to Plaintiff, and if so,
whether he properly exhausted his administrative remedies.5
The Florida Department of Corrections provides an internal
grievance procedure.
Code (F.A.C.).
See Chapter 33-103, Florida Administrative
Thus, to determine whether Plaintiff exhausted his
administrative remedies, this Court must examine the relevant
documents to determine whether the incidents in question were
grieved.
If these incidents were grieved and the documents
complied with the deadlines and other procedural rules as set forth
in the F.A.C., the issues raised therein are exhausted.
5
Since the parties have not requested an evidentiary hearing
on this issue and they have submitted evidence for the Court's
consideration, the Court proceeds to resolve the material questions
of fact based on the documents before the Court. Bryant, 530 F.3d
1377 n.16 (recognizing that a district court may resolve material
questions of fact on the submitted papers when addressing the
Prison Litigation Reform Act's exhaustion of remedies requirement).
7
Generally, the Florida Department of Corrections (hereinafter
DOC) provides a three-step grievance procedure. First, an inmate
must submit an informal grievance.
F.A.C.
See Chapter 33-103.005(1),
If the issue is not resolved, the inmate is directed to
file a formal grievance at the institutional level.
See Chapter
33-103.006, F.A.C.; Chapter 33-103.011(4), F.A.C. If the matter is
not resolved at the institutional level, the inmate is directed to
file an appeal to the Office of the Secretary of the DOC.
See
Chapter 33-103.007, F.A.C.; Chapter 33-103.011, F.A.C.
An informal grievance must be received within twenty days of
when the incident or action occurred.
F.A.C.
Chapter 33-103.011(1)(a),
A formal grievance must be received no later than fifteen
calendar days from the date "on which the informal grievance was
responded to" or a different period for select types of grievances.
Chapter 33-103.011(1)(b), F.A.C.
An appeal to the Office of the
Secretary must be received no later than fifteen calendar days from
the date of the response to the formal grievance is returned to the
inmate.
Chapter 33-103.011(1)(c), F.A.C.
In his response to Defendants' Motion, Plaintiff contends that
the Defendants are attempting to avoid or evade Plaintiff's demand
for recovery of damages for his established injuries.
4.
Response at
Plaintiff argues that his claims are meritorious, he has
established injury, and the merits of his claims should be reached
by the Court.
Id. at 2-4.
8
Defendants, in their Motion, first address the question of the
availability of writing utensils and available grievance materials
at Plaintiff's new institution, Lake Correctional Institution
(LCI).
Although Plaintiff claims he had no access to writing
materials at LCI, the exhibits show otherwise. Defendants' Exhibit
2-A at 8-9 (Doc. 36-1) is a copy of Plaintiff's grievance Request
to Lieutenant Akron dated August 8, 2013.
It was submitted by
Plaintiff sixteen days after the July 23, 2013 incident at Union
Correctional Institution (UCI).
Under the applicable Florida
Administrative Code regulations, an informal grievance concerning
an event must be received within twenty days of the incident in
question.
Chapter 33-103.011(1)(a), F.A.C.
Therefore, the Court finds that Plaintiff had access to
writing utensils and grievance materials by August 8, 2013, well
within the twenty-day time period to grieve the incident at UCI.
Although Plaintiff's grievance does not actually grieve the matters
addressed in his Amended Complaint, it does mention in passing that
Plaintiff recently arrived at LCI after his chin was opened by
officers at UCI.
The content of the grievance, however, concerns
Plaintiff's complaints about the conditions of his confinement at
LCI, not UCI.
Even if the grievance did actually constitute a
grievance concerning the July 23, 2013 incident at UCI, the
grievance was returned without action as being in non-compliance
with the grievance procedure for Plaintiff's use of multiple copies
9
of inmate request forms rather than attachments as continuation
sheets. Defendants' Exhibit 2-A at 9. The regulations provide for
the return of a grievance without a response if "[t]he inmate has
used multiple copies of grievance forms rather than attachments as
continuation
sheets."
Chapter
33-103.014(1)(l).
Therefore,
Plaintiff's grievance was deemed not properly filed and returned
without action.
Plaintiff skipped the formal grievance step and filed an
appeal with the Office of the Secretary.
at 7.
Defendants' Exhibit 2-A
In his appeal, Plaintiff makes no mention of any events
occurring at UCI.
compliance
with
Id.
the
The Secretary found the appeal in non-
grievance
procedure
because
Plaintiff's
grievance at the institutional level was in non-compliance with the
requirements of the rules.
Id. at 6.
The appeal was returned
without action and found to be overly broad, general, and vague.
Id.
Given these facts, the August 8, 2013 informal grievance and
the August 29, 2013 grievance appeal to the Secretary did not
exhaust Plaintiff's claims because these documents do not include
the claims raised in the Amended Complaint regarding the alleged
excessive use of force at UCI.
August
8,
2013
grievance
Additionally, even assuming the
constituted
an
attempt
to
exhaust
administrative remedies with regard to the July 23, 2013 incident
at UCI, Plaintiff failed to comply with critical procedural rules
10
to exhaust his available administrative remedies.
As such, there
was not proper exhaustion.
Plaintiff has not demonstrated that he has exhausted his
administrative remedies with respect to his claims.
Indeed, upon
review, Defendants' supporting documents demonstrate otherwise.
The
question
remains
whether
Plaintiff
administrative remedies in other ways.
has
exhausted
his
Defendants assert that
Plaintiff never properly grieved his claims and urge this Court to
find that the institutional records demonstrate that Plaintiff
never properly and completely grieved his claims by complying with
the critical procedural rules.
Defendants note that Plaintiff filed other appeals between
July 23, 2013 and November 4, 2013; however, none of them concern
the issues raised in the Amended Complaint.
Exhibit
A,
the
Declaration
attachments (Doc. 36-1).
of
Ashley
See Defendants'
Stokes
and
supporting
Also of record, Plaintiff filed informal
and formal grievances in the months of August and September, 2013,
but again, they did not concern the issues raised in the Amended
Complaint.
See Defendants' Exhibit B, Declaration of Ashley Davis
and supporting attachments (Doc. 36-2).
An
inmate
plaintiff
administrative remedies.
is
required
to
exhaust
42 U.S.C. § 1997e(a).
available
Therefore, the
Court looks to the administrative grievance procedure available to
the inmates confined in the Florida penal system:
11
In
Florida,
the
grievance
process
consists of a three-step procedure. An inmate
must first file an "informal grievance ... to
the staff member who is responsible in the
particular area of the problem." Fla. Admin.
Code Ann. § 33–103.005(1). The second step
requires the inmate file a formal grievance
with the warden. Id. § 33–103.006(1)(a). If
the inmate is unsuccessful at this point, he
may submit an appeal to the Secretary of the
DOC. Id. § 33–103.007.
Kozuh v. Nichols, 185 F. App'x 874, 877 (11th Cir. 2006) (per
curiam), cert. denied, 549 U.S. 1222 (2007).
Of initial significance, if Plaintiff filed a grievance and
attempted to exhaust his administrative remedies, he would have
needed to submit an initial grievance with the appropriate staff,
a formal grievance with the warden, and then an appeal to the
Secretary to properly grieve the matter in compliance with the
procedural requirements of the administrative grievance process.
See Defendants' Exhibit A, Declaration of Ashley Stokes at 2.
Plaintiff has not provided the Court with copies of any
grievances
or
grievance
responses
or
other
information
demonstrating exhaustion of his administrative remedies.
In stark
contrast, the Defendants provided Declarations and record evidence
that Plaintiff did not properly exhaust his administrative remedies
with regard to his claims concerning the alleged excessive use of
force by officers at UCI.
Based on all reasonable inferences, Plaintiff had access to
the grievance process and used the process. Upon review, the Court
12
finds that the administrative process was available to Plaintiff.
Plaintiff's grievance and grievance appeal were rejected for noncompliance with the administrative rules.
Also, the grievance and
grievance appeal concerned the conditions of confinement at LCI,
not the July 2013 incident at UCI.
Plaintiff has not shown that he
properly filed a grievance concerning the events that occurred at
UCI and fully exhausted his administrative remedies in compliance
with the procedural rules.
In light of the above, Plaintiff failed to exhaust his
administrative remedies before filing a lawsuit to seek judicial
redress. Therefore, the Court concludes that Defendants' Motion to
Dismiss should be granted for Plaintiff's failure to exhaust his
administrative remedies.6
In sum, the case should be dismissed without prejudice so that
Plaintiff may exhaust his available administrative remedies prior
to initiating a new action in this Court.
Simply put, exhaustion
of available administrative remedies is required before a 42 U.S.C.
§ 1983 action with respect to prison conditions by a prisoner may
6
Although the Defendants ask that the Court consider
dismissing Plaintiff's Amended Complaint for abuse of the judicial
process, Motion at 2 n.3, the Court will refrain from doing so in
light of the fact that this action is due to be dismissed for
failure to exhaust administrative remedies. Plaintiff is warned
however, that he must submit truthful statements in all pleadings
and materials filed with this Court or he may be subject to
sanctions, including dismissal of a case for abuse of the judicial
process.
13
be initiated in this Court, and Plaintiff failed to avail himself
of this process.
Therefore, it is now
ORDERED:
1.
Defendants' Motion to Dismiss for Failure to Exhaust
Administrative Remedies (Doc. 36) is GRANTED with respect to the
request to dismiss the action pursuant to 42 U.S.C. § 1997e(a).
2.
Plaintiff's Motion for Rule 56 Summary Judgment (Doc. 39)
is DENIED without prejudice as moot.
3.
Defendants Sgt. Korey and Sgt. Barton are DISMISSED
without prejudice from this action.
4.
This
case
is
DISMISSED
without
prejudice
so
that
Plaintiff may exhaust his available administrative remedies prior
to initiating a new action in this Court.
5.
The Clerk shall close this case.
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
May, 2016.
sa 5/3
c:
Tyrone L. Smith
Counsel of Record
14
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