Nino v. Warden, FCC Coleman - Low
Filing
9
OPINION AND ORDER granting 5 Motion to dismiss. Alternatively, this action is dismissed based on Plaintiff's failure to prosecute and/or for failure to either pay the filing fee or file a complete motion for leave to proceed as a pauper as required by Local Rule 1.03(e) (M.D. Fla. 2009) and the Court's December 16, 2013 and January 14, 2014 Orders. The Clerk of Court shall enter judgment accordingly and close this case. Signed by Judge John E. Steele on 1/28/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
FERNANDO NINO,
Plaintiff,
vs.
Case No.
5:13-cv-594-Oc-29PRL
WARDEN, FCC COLEMAN-LOW,
Defendant.
_________________________________
OPINION AND ORDER
I.
This matter comes before the Court upon review of Defendant’s
motion to dismiss and memorandum of law (Doc. #5, Motion), filed
December 10, 2013.
The Court ordered Plaintiff to file a response to
the Motion on or before January 22, 2014.1
As of the date on this
Initially the Court ordered Plaintiff to respond to
Defendant’s motion on or before December 27, 2013. See Doc. #6.
The order was returned as undeliverable on January 6, 2014.
Plaintiff did not update his current mailing address for the
record. See docket. Instead, upon receiving the order returned as
undeliverable, the Clerk of Court searched to find Plaintiff’s new
mailing address.
See docket.
Thus, the Court issued a second
order on January 14, 2014, directing Plaintiff to file a response
to Defendant’s motion on or before January 22, 2014. The Court
also ordered Plaintiff to show cause why the action should not be
dismissed for failure to prosecute on or before January 22, 2014.
The Clerk mailed this order to the correct address.
As of the date on this Order, Plaintiff has neither responded
to the Court’s Order to Show Cause, nor responded to Defendant’s
motion to dismiss for failure to exhaust administrative remedies.
Alternatively, this action could be dismissed based on Plaintiff’s
failure to prosecute and for failure to either pay the filing fee
or file a complete motion for leave to proceed as a pauper as
required by Local Rule 1.03(e)(M.D. Fla. 2009).
1
Order Plaintiff has not filed a response.
See docket.
This matter is
ripe for review.
II.
Plaintiff Fernando Nino, a federal prisoner incarcerated in the
Bureau of Prisons (“BOP”), initiated this action proceeding pro se by
filing a Civil Rights Complaint (Doc. #1, “Complaint”) on December 5,
2013.2
The Complaint alleged that BOP officials were planning on
transferring Plaintiff to another federal correctional institution and
his transfer would result in no treatment for his progressive cancer.
See Complaint.
Upon review, the Court directed Defendant to file an
expedited response to the emergency Complaint.
Defendant filed a
response, incorporating a motion to dismiss for failure to exhaust the
claim before the BOP.
See Motion at 5.
On December 16, 2013, the Court entered an order (Doc. #6,
“Order”)
finding
treatment.
that
the
Complaint
See generally Order.
did
not
warrant
emergency
The Court further noted that to the
extent Plaintiff wished to pursue an Eighth Amendment claim related to
the medical treatment provided for his medical condition, Plaintiff
must file a response to Defendant’s motion addressing whether he
exhausted his administrative remedies with the BOP prior to filing the
Plaintiff actually filed the action on the “FORM TO BE USED
BY FEDERAL PRISONERS IN FILING A PETITION FOR WRIT OF HABEAS CORPUS
UNDER 28 SECTION 2241.” Upon review, the Court found Plaintiff
really meant to file an action pursuant Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and
directed the Clerk to correct the docket accordingly. See Doc. #3.
2
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action.
Id. at 4.
Plaintiff did not file a response and his time to
do so has expired.
III.
The Prison Litigation Reform Act, which amended The Civil Rights
of Institutionalized Persons Act, provides as follows:
(a) Applicability of administrative remedies. 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)(emphasis added).
Although prisoners are not
required to plead exhaustion, Jones v. Bock, 549 U.S. 199, 216 (2007),
"[t]here is no question that exhaustion is mandatory under the PLRA,
and that unexhausted claims cannot be brought in court."
Id. at 211;
see also Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).
To “properly exhaust” administrative remedies a prisoner must
complete the administrative review process, as set forth in the
applicable prison grievance process.
Jones, 549 U.S. at 218.
A
prisoner cannot satisfy the exhaustion requirement by filing an
untimely or otherwise procedurally defective administrative grievance
or appeal.
Woodford, 548 U.S. at 92-103.
Whether an inmate has exhausted his available administrative
remedies is a factual issue that is properly made by the court.
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008).
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Thus, “[e]ven
though a failure-to-exhaust defense is non-jurisdictional, it is like
a defense for lack of jurisdiction in one important sense: Exhaustion
of administrative remedies is a matter in abatement, and ordinarily
does not deal with the merits.”
and citations omitted).
Id. (footnote, internal quotations,
The defense of exhaustion is properly raised
in a motion to dismiss as a “matter of judicial administration.”
at 1375.
Id.
Thus, the court is permitted to look beyond the pleadings to
decide disputed issues of fact in connection with the exhaustion
defense.
Id. at 1377, n.16.
The Bureau of Prisons provides a three-level administrative
grievance procedure for inmate complaints (institutional, regional,
and national).
28 C.F.R. § 542.10-§ 542.16.
Initially, an inmate may
seek resolution of the issues by seeking an informal resolution with
staff.
Id. at § 542.13(a).
If unsuccessful, an inmate may then file
a formal written complaint with the institution.
Id. at § 543.13(b).
The informal request must be completed, and the formal request filed,
within “20 calendar days following the date on which the basis for the
Request occurred.” § 542.14(a).
Regional Director.
An appeal must then be taken to the
Id. at § 542.15.
Finally, an inmate should appeal
the Regional Director’s response to the General Counsel for the BOP.
Id. at § 542.14(a).
Upon issuance of a response from the General
Counsel, an inmate’s available administrative remedies are deemed
exhausted.
Each of these steps is generally required to satisfy the
-4-
exhaustion prerequisite.
However, at any of these steps, if a
grievance is filed outside the parameters established by the BOP, the
BOP will reject and return the grievance to the inmate.
Id. § 542.17.
Defendant asserts that Plaintiff did not properly exhaust these
remedies.
Motion at 5.
show otherwise.
Plaintiff does not respond to the Motion to
See docket.
Accordingly, the Court finds that
Plaintiff failed to properly exhaust his administrative remedies prior
to filing this action.
ACCORDINGLY, it is hereby
ORDERED:
1.
Defendant’s motion to dismiss (Doc. #5) is GRANTED.
2.
Alternatively, this action is dismissed based on Plaintiff’s
failure to prosecute and/or for failure to either pay the filing fee
or file a complete motion for leave to proceed as a pauper as required
by Local Rule 1.03(e)(M.D. Fla. 2009) and the Court’s December 16,
2013 and January 14, 2014 Orders.
3. The Clerk of Court shall terminate any pending motions, enter
judgment accordingly, and close this case.
DONE AND ORDERED in Fort Myers, Florida, on this
January, 2014.
SA: ALJ
Copies: All Parties of Record
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28th
day of
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