Fulmore v. Pond et al
Filing
32
ORDER granting 20 Motion to Dismiss with respect to the request to dismiss the action pursuant to 42 U.S.C. section 1997e(a); dismissing Defendants Pond, Moore, and Burgess; dismissing the case without prejudice; instructions to the Clerk. Signed by Judge Brian J. Davis on 11/16/2016. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KEVIN FULMORE, SR.,
Plaintiff,
vs.
Case No. 3:16-cv-114-J-39PDB
SRGT. POND, 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. 16) pursuant to 42 U.S.C. § 1983.
He
filed his original Complaint (Doc. 1) on February 2, 2016, pursuant
to the mailbox rule. This cause is before the Court on Defendants'
Motion to Dismiss (Motion) (Doc. 12).1
Plaintiff responded.
See Order (Doc. 5).
See Plaintiff's Opposition to Defendants'
Motion to Dismiss (Response) (Doc. 25).
and adopted the Motion.
Defendants Burgess joined
See Notice of Compliance (Doc. 30).
The
Court gave Plaintiff the opportunity to separately respond to
Burgess's motion to dismiss by October 20, 2016.
Order (Doc. 31).
Plaintiff did not elect to file a separate response.
Thus, the
case is ripe for review.
1
In this opinion, the Court references the document and page
numbers designated by the electronic filing system.
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
Ashcroft v. Iqbal, 556
relief that is plausible on its face.'"
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 seek the
dismissal of the Amended Complaint.
the
motion
to
dismiss
for
failure
Motion at 2-6.
to
exhaust
Upon review,
administrative
remedies, a matter in abatement, is due to be granted.
An
explanation follows.
III.
Exhaustion of Administrative Remedies
Defendants move to dismiss the Amended Complaint pursuant to
42 U.S.C. § 1997e(a).
Motion at 2-6.
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' Exhibit, Declaration of
Debbie Pittman (Doc. 12-1) and Defendants' Exhibit, Declaration of
Justin Davis (12-2).
The
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. There are
guidelines for reviewing a prisoner civil rights action:
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 order to undertake a review, the Court must employ a twostep 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.
There are certain factors which guide this Court.
first
recognizes
that
exhaustion
of
available
The Court
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[.]"
at
216.
2
However,
"the
PLRA
Jones v. Bock, 549 U.S.
exhaustion
requirement
Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
4
is
not
jurisdictional[.]"
Woodford v. Ngo, 548 U.S. at 101.
See Turner
v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (recognizing that
the defense "is not a jurisdictional matter").
Second, a prisoner must completely exhaust his remedies prior
to initiating a suit in federal court.
If a prisoner fails to
complete the process, 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. Rodiguez-Mateo, 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).
Third, 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
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
so properly (so that the agency addresses the
issues on the merits)." Pozo,[3] 286 F.3d, at
1024. . . .
Id. at 90.
In fact, "[p]roper exhaustion demands compliance with
an agency's deadlines and other critical procedural rules."
Id.
In employing the two-step 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 exhausted all administrative remedies by filing informal
and formal grievances to the institution and Secretary of the
Florida Department of Corrections (FDOC), as well as an emergency
grievance to the Secretary, but he received no responses.4
Complaint at 7.
Amended
He reiterates this position in his Response at 1-
2.
There are disputed issues of fact as to whether Plaintiff
exhausted all available administrative remedies.
Thus, the Court
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
must now make findings on the disputed issues of fact to decide
whether he properly exhausted his administrative remedies.5
The FDOC provides an internal grievance procedure.
Chapter 33-103, Florida Administrative Code (F.A.C.).
See
Thus, to
determine whether Plaintiff exhausted his administrative remedies,
this Court must examine 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.
Generally, the FDOC provides a three-step grievance procedure.
The
Eleventh
Circuit
succinctly
described
the
administrative
grievance procedure available to the inmates confined in the
Florida
penal
system,
including
the
procedure
for
medical
grievances:
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
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
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).
Therefore, if
Plaintiff elected to submit a medical grievance, he should have
submitted a medical grievance "to the medical department followed
by an appeal to the Secretary."
Kozuh v. Nichols, 185 F. App'x at
877.
Plaintiff has not demonstrated that he has exhausted his
administrative remedies with respect to his claims.
to submit any documents showing exhaustion.
He has failed
On the other hand,
Defendants' submitted supporting documents demonstrating complete
lack of exhaustion.
The Declaration of Debbie Pittman states that
she, a Correctional Sentence Specialist and custodian of records,
undertook a review of the grievance records, and she found no
formal and informal grievances filed by Plaintiff regarding a use
of force or allegations of abuse occurring on December 31, 2013 or
the denial of medical care thereafter.
Davis,
an
Administrative
Assistant
(Doc. 12-1).
of
the
FDOC
Also, Justin
and
records
custodian, undertook a review of the grievance records kept by the
Central Office of the FDOC, and he found no grievance appeals
8
submitted by Plaintiff concerning allegations of abuse or use of
force
on
December
thereafter.
31,
2013
or
the
denial
of
medical
care
(Doc. 12-2).
Although Plaintiff states that he submitted grievances, he has
failed to provide the Court with copies of any grievances or
grievance responses or other information demonstrating exhaustion
of his administrative remedies.
He has not provided reference log
numbers of his alleged grievances and the dates his grievances were
allegedly submitted to the prison officials/medical authorities.
He has failed to provide the Court with any helpful identifying
information. In stark contrast, Defendants provided Declarations
from the records custodians of the FDOC stating that there is no
record evidence of Plaintiff ever grieving the December 31, 2013
incident or a related denial of medical care.
Based on all
reasonable inferences, Plaintiff has not shown that he properly
filed grievances concerning the events that occurred at Columbia
Correctional Institution 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 the Motion should be
granted for Plaintiff's failure to exhaust his administrative
remedies.
9
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
be initiated in this Court, and Plaintiff failed to avail himself
of this process.
Therefore, it is now
ORDERED:
1.
Defendants' [Pond, Moore, and Burgess] Motion to Dismiss
(Doc. 20) is GRANTED with respect to the request to dismiss the
action pursuant to 42 U.S.C. § 1997e(a).
2.
Defendants Pond, Moore, and Burgess are Dismissed without
prejudice.
3.
This
case
is
DISMISSED
without
prejudice
so
that
Plaintiff may exhaust his available administrative remedies prior
to initiating a new action in this Court.
4.
The Clerk shall close this case.
DONE AND ORDERED at Jacksonville, Florida, this 16th day of
November, 2016.
10
sa 11/15
c:
Kevin Fulmore, Sr.
Counsel of Record
11
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