Smith v. Co-Horizon

Filing 41

ORDER granting 36 motion to dismiss with respect to the request to dismiss the action pursuant to 42 U.S.C. section 1997e(a), denying without prejudice 36 in all other respects; dismissing without prejudice 35 the third amended complaint and the case for Plaintiff's failure to properly exhaust administrative remedies; instructions to the Clerk. Signed by Judge Brian J. Davis on 8/4/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
EUGENE SMITH,
Plaintiff,
vs.
Case No. 3:15-cv-1020-J-39JBT
CORIZON, LLC, et al.,
Defendants.
ORDER
I.

Status

Plaintiff Eugene Smith is an inmate confined in the Florida
penal system. He is proceeding on a Third Amended Complaint
(Complaint)

(Doc.

35)

represented by counsel.

pursuant

to

42

U.S.C.

§

1983

and

is

Plaintiff filed his original Complaint

(Docs. 1 & 2) pro se on July 24, 2015, pursuant to the mailbox
rule.
Defendant Corizon, LLC's Motion to Dismiss Plaintiff's Third
Amended

Complaint

responded.

(Motion)

(Doc.

36)

is

pending.1

Plaintiff

See Plaintiff's Response in Opposition to Defendant

Corizon, LLC's (hereinafter Corizon) Motion to Dismiss Plaintiff's
Third Amended Complaint (Response) (Doc. 37).
(Doc.

39),

1

Defendant

Corizon

filed

a

With leave of Court

Reply

Memorandum

to

In this opinion, the Court references the document and page
numbers designated by the electronic filing system.

Plaintiff's Response in Opposition to Corizon's Motion to Dismiss
Plaintiff's Third Amended Complaint
II.

(Reply) (Doc. 40).

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.'"

Ashcroft v. Iqbal, 556

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).
III.

Exhaustion of Administrative Remedies

Defendant Corizon contends that Plaintiff failed to exhaust
his administrative remedies prior to filing suit regarding his
claim of deliberate indifference to his serious medical needs and
they seek the dismissal of that claim pursuant to 42 U.S.C. §
1997e(a). Motion at 8-12. More specifically, Corizon asserts that
Plaintiff failed to properly exhaust the issue alleged in this
lawsuit.

See Affidavit of Alan McManus (Affidavit) (Doc. 7-1);

2

Chapter 33-103, Inmate Grievance Procedure (7-2); and Request for
Administrative Remedy or Appeal and Response (Doc. 7-3).
The Prison Litigation Reform Act (PLRA) requires exhaustion of
available administrative remedies before a 42 U.S.C. § 1983 action
with respect to prison conditions by a prisoner may be initiated in
this Court.

Title 42 U.S.C. § 1997e(a) provides: "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."
In this instance, Corizon bears the burden of proving a
failure to exhaust available administrative remedies.

Turner v.

Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008), relying on Jones
v.

Bock,

549

U.S.

199

(2007).

Guidelines

are

provided

for

reviewing a prisoner civil rights action for exhaustion compliance:
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).
3

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th
Cir. 2015).
A number of factors guide the Court.

Initially, the Court

recognizes that exhaustion of available administrative remedies is
"a precondition to an adjudication on the merits" and is mandatory
under the PLRA.

Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.),

cert. denied, 555 U.S. 1074 (2008); Jones, 549 U.S. at 211;
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[.]"
U.S. at 216.

Jones, 549

Although, "the PLRA exhaustion requirement is not

jurisdictional[,]"

Woodford, 548 U.S. at 101, "exhaustion is

mandatory under the PLRA[;]" therefore, "unexhausted claims cannot
be brought."

Pavao v. Sims, No. 15-11790, 2017 WL 540989, at * 3

(11th Cir. Feb. 10, 2017) (per curiam) (citation omitted).
As recognized by this Court,
"The only limit to § 1997e(a)'s mandate is the
one baked into its text: An inmate need
exhaust only such administrative remedies as
are 'available.'" 136 S. Ct. 1850, 1862
(2016). For an administrative remedy to be
available, the "remedy must be 'capable of use
for the accomplishment of [its] purpose.'"
Turner v. Burnside, 541 F.3d 1077, 1084 (11th
Cir. 2008) (quoting Goebert v. Lee Cty., 510
F.3d 1312, 1322–23 (11th Cir. 2007)).

4

In Ross,[2] the Supreme Court identified
three circumstances in which administrative
remedies would be considered unavailable.
First,
"an
administrative
procedure
is
unavailable when (despite what regulations or
guidance materials may promise) it operates as
a simple dead end—with officers unable or
consistently unwilling to provide any relief
to aggrieved inmates." 136 S. Ct. at 1859.
Second, "an administrative scheme might be so
opaque that it becomes, practically speaking,
incapable of use. In this situation, some
mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it."
Id. Third, an administrative remedy is
unavailable "when prison administrators thwart
inmates from taking advantage of a grievance
process
through
machination,
misrepresentation, or intimidation." Id. at
1860.
Davis v. Sec'y, Dept. of Corr., No. 3:15-CV-649-J-34JRK, 2017 WL
1885366, at *3–4 (M.D. Fla. May 9, 2017).
In reviewing the question of exhaustion, "[t]he 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) (citing Harris v. Garner, 216 F.3d 970, 981
(11th Cir. 2000) (en banc)).

Indeed, "[t]he time the [PLRA] 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."

Wheeler v. Davis, No.

5:14CV271/WS/CJK, 2017 WL 1029119, at *3 (N.D. Fla. Feb. 6, 2017)

2

Ross v. Blake, 136 S.Ct. 1850 (2016).
5

(report and recommendation) (quoting Goebert v. Lee Cty., 510 F.3d
1312, 1324 (11th Cir. 2007)) (emphasis in Wheeler), report and
recommendation adopted by No. 5:14CV271-WS/CJK, 2017 WL 1027035
(N.D. Fla. Mar. 16, 2017). Thus, the relevant question before this
Court

is

whether

Plaintiff

properly

exhausted

his

available

administrative remedies as of July 24, 2015.
As noted by Corizon in the Reply, Plaintiff was required to
exhaust his administrative remedies prior to filing his lawsuit.
Reply at 3.

The question of availability of the procedure goes to

whether the administrative procedure was available before July 24,
2015, prior to the filing of the initial complaint.

To construe

the exhaustion requirement otherwise would render the PLRA "a
toothless scheme."

Woodford, 548 U.S. at 95.

Plaintiff asserts that administrative remedies are no longer
available to him because Corizon is no longer the medical provider
for the Florida Department of Corrections (FDOC), and Plaintiff's
failure

to

exhaust

administrative

remedies

should

because his failure to exhaust cannot be cured.
This contention does not win the day.

be

excused

Response at 4.

A sister federal court,

discussing proper exhaustion of administrative remedies, imparted
the following rationale for rejecting any attempt to bypass the
administrative process by waiting until the grievance procedure is
unavailable

or

simply

failing

to

properly

administrative relief in a timely fashion:

6

seek

internal

The Supreme 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." Id. at 83–84;
Bryant, 530 F.3d at 1378 (holding that
prisoners must "properly take each step within
the
administrative
process"
to
exhaust
administrative remedies in accordance with the
PLRA); Johnson v. Meadows, 418 F.3d 1152, 1157
(11th Cir. 2005) (holding that an 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);
Higginbottom v. Carter, 223 F.3d 1259, 1261
(11th Cir. 2000) (holding that inmate's belief
that administrative procedures are futile or
needless does not excuse the exhaustion
requirement). "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 Fed. Appx. 81,
83 (11th Cir. 2012).
Kashuba v. Corizon Operations, No. 2:14-CV-642-MHT-GMB, 2017 WL
1854693,

at

*5

recommendation),

(M.D.
report

Ala.
and

Apr.

18,

2017)

recommendation

(report

adopted

by

and
No.

2:14CV642-MHT, 2017 WL 1843713 (M.D. Ala. May 8, 2017).
Exhaustion is considered mandatory and review is no longer
left to the discretion of the district court. Therefore, an inmate
should not expect that the merits of his claim will be reached if
he has spurned the procedural rules or attempted to bypass the
procedural requirements of exhaustion of administrative remedies.
7

In this case, the Court finds the grievance procedure was available
to Plaintiff prior to the filing of his Complaint, and he simply
did not follow or complete the procedure.
In

undertaking

a

review

An explanation follows.

concerning

the

exhaustion

of

administrative remedies, the Court must employ a two-step process:
After a prisoner has exhausted the
grievance procedures, he may file suit under §
1983. In response to a prisoner suit,
defendants may bring a motion to dismiss and
raise as a defense the prisoner's failure to
exhaust these administrative remedies. See
Turner, 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.
Additionally,

not

only

is

there

a

recognized

exhaustion

requirement, "the PLRA exhaustion requirement requires proper
exhaustion."

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
8

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
so properly (so that the agency addresses the
issues on the merits)." Pozo,[3] 286 F.3d, at
1024. . . .
Id. at 90 (emphasis added).

As such, "[p]roper exhaustion demands

compliance with an agency's deadlines and other critical procedural
rules[.]"

Id.

Of import, Plaintiff was not required to plead exhaustion. As
a result, the Complaint, Amended Complaint, and Second Amended
Complaint were not dismissed sua sponte, and Plaintiff was given
the opportunity to file a Third Amended Complaint after appointment
of counsel to represent him.

See Order (Doc. 34).

Looking at the

factual allegations in the Motion and those in the Response and
Reply, they simply do not conflict. Plaintiff does not assert that
he properly exhausted his administrative remedies.

Response at 4.

Although Plaintiff avers that the PLRA does not preclude this
action, Reply at 4, upon consideration, it clearly does.
First, it is quite apparent that Plaintiff "had an 'available'
administrative remedy to exhaust" prior to the filing of his
Complaint. Ross, 136 S.Ct. at 1860. The FDOC provides an internal
grievance procedure for inmates, and it is set forth in Chapter 33103,

Florida

Administrative

Code.

3

Generally,

the

procedure

Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.), cert. denied,
537 U.S. 949 (2002).
9

provides a three-step grievance process.
succinctly

described

this

available

The Eleventh Circuit

administrative

grievance

procedure, including the specialized process adopted for grievances
of a medical nature:
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.
Medical
grievances
require
only
a
two-step procedure: the inmate must file a
formal grievance at the institutional level
with the chief health officer. If the inmate
is unsuccessful, he may file an appeal with
the Secretary. Id. § 33–103.008.
Kozuh v. Nichols, 185 F. App'x 874, 877 (11th Cir. 2006) (per
curiam), cert. denied, 549 U.S. 1222 (2007).
In

2015

(and

before),

Plaintiff

had

an

available

administrative remedy of filing a formal grievance of a medical
nature

at

the

institutional

level.

Fla.

Admin.

Code

§

33-

103.008(1), Grievances of Medical Nature (Doc. 7-2 at 12).

If

denied, he could appeal to the Office of the Secretary.
Admin. Code § 33-103.007(1) (Doc. 7-2 at 10).

Fla.

Upon review, the

inmate is required to attach a copy of his formal grievance and
response, except under specified circumstances, to the appeal.
Fla. Admin. Code § 33-103-007(5)(a) (Doc. 7-2 at 10).
10

Affiant

Alan

McManus

attests

that

grievance regarding his hormone therapy.

Plaintiff

filed

one

Affidavit (Doc. 7-1 at

7). Plaintiff does not dispute this fact. Upon consideration, the
record

demonstrates

that

Plaintiff

submitted

one

grievance

concerning his medical claim on May 28, 2015, and he filed it
directly

with

the

Office

of

the

Secretary.

Request

for

Administrative Remedy or Appeal Dated May 28, 2015 (Doc. 7-3 at 1).
In Response, the Secretary's Representative, on June 18, 2015,
wrote, in pertinent part:
Your request for Administrative Remedy or
Appeal has not been filed in compliance with
Chapter
33-103.008,
Inmate
Grievance
Procedure.
You did not provide this office
with a copy of the formal grievance filed at
the institutional level as required by rule or
the reason you provided for by-passing that
level of the grievance procedure is not
acceptable.
Rule requires that Complaint of this nature,
as the one stated in your appeal, be initiated
at the formal level to Medical Staff.
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 with
Chapter 33-103, Inmate Grievance Procedure.
Based on the foregoing information,
appeal is returned without action.

your

Response Dated June 18, 2015 (Doc. 7-3 at 2).
Plaintiff failed to comply with proper grievance procedures.
He failed to provide the Secretary with a copy of a formal
grievance filed at the institutional level, since he never filed
11

one at that level, and he failed to provide an acceptable reason
for bypassing the institutional level, as required by the rules.4
See Motion at 10.
Also of import, Plaintiff failed to properly complete the twostep process with respect to his medical claim of denial of hormone
therapy.

He does not deny this fact.

As such, "[t]here is no

material conflict in the factual allegations in Defendant's motion
and those in Plaintiff's response insofar as concerns whether
Plaintiff correctly completed the [two-step] grievance process."
Pavao v. Sims, No. 5:13-cv233-WS, 2015 WL 1458161, at *5 (N.D. Fla.
Mar. 30, 2015).

Also, the record shows that the prison officials

informed Plaintiff of the proper steps needed to correctly grieve
his claim of deprivation of medical care, and Plaintiff simply
failed to follow these recommended steps to comply with the
grievance process.
In exhausting a medical grievance, an inmate is required to
submit a grievance of a medical nature to the medical department,
and if unsuccessful in gaining relief at the institutional level,
he must follow it with an appeal to the Secretary.

4

Kozuh, 185 F.

Direct grievances to the Office of the Secretary are
permitted in very limited circumstances, as set forth in Fla.
Admin. Code § 33-103.007(6)(a), Direct Grievances. If improperly
submitted to the Secretary, the grievance is returned to the
inmate, providing the reason for return and informing the inmate to
resubmit his grievance at the appropriate level.
Id. at 33103.007(6)(d). It is returned without further processing. Id. at
33-103.014(1)(f).
12

App'x at 877.

In this case, there is only one grievance appeal to

the Secretary of record, and that grievance appeal, improperly
filed directly with the Office of the Secretary, was returned to
Plaintiff without action for Plaintiff's failure to properly follow
the administrative grievance procedure.
Based

on

the

above,

the

Court

concludes

that

the

administrative grievance process was available to Plaintiff in
2015, and before.

The grievance Response (Doc. 7-3 at 2), dated

June 18, 2015 and filed with the Agency Clerk on June 24, 2015,
referred Plaintiff to the appropriate administrative process to
properly exhaust his medical claim and seek administrative relief.
Instead of heeding this advice, Plaintiff completed a Complaint
(Docs. 1 & 2) and provided it to the prison authorities for mailing
on June 24, 2015.
Plaintiff simply failed to use that process and properly file
a medical grievance and fully exhaust his administrative remedies
in compliance with the procedural rules.

Thus, he failed to

exhaust his administrative remedies prior to filing a lawsuit to
seek

judicial

Plaintiff

redress.

failed

to

Therefore,

exhaust

his

the

Court

concludes

administrative

compliance with the procedural rules.

that

remedies

in

Thus, Corizon's Motion To

Dismiss for failure to exhaust administrative remedies, a matter in
abatement, is due to be granted.
ORDERED:

13

1.

Defendant Corizon LLC's Motion to Dismiss Plaintiff's

Third Amended Complaint (Doc. 36) is GRANTED with respect to the
request to dismiss the action pursuant to 42 U.S.C. § 1997e(a). In
all other respects, the Motion is DENIED without prejudice.
2.

The Third Amended Complaint (Doc. 35) and this case are

DISMISSED without prejudice in accordance with the provisions of 42
U.S.C. 1997e(a) for the Plaintiff's failure to properly exhaust
administrative remedies.
3.
all

The Clerk shall enter judgment stating that the case and

claims

are

dismissed

for

failure

to

properly

exhaust

administrative remedies.
4.

The Clerk shall close this case.

5.

The Court appreciates the service of pro bono counsel.

DONE AND ORDERED at Jacksonville, Florida, this 4th day of
August, 2017.

sa 7/28
c:
Counsel of Record

14