Stringer v. Ryan et al

Filing 157

ORDER denying 151 Motion for Reconsideration. Signed by Judge Marcia G. Cooke on 7/27/2011. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE No. 08-21877-Civ-COOKE/WHITE
THOMAS B. STRINGER,
Plaintiff
vs.
CORPORAL CYNTHYA KENDRICK, et al.,
Defendants.
/
ORDER DENYING PLAINTIFF THOMAS STRINGER’S MOTION FOR
RECONSIDERATION OR IN THE ALTERNATIVE MOTION AND
ORDER FOR LEAVE TO FILE AN OUT OF TIME GRIEVANCE
THIS MATTER is before me on Plaintiff Thomas Stringer’s Motion for Reconsideration
or in the Alternative Motion and Order for Leave to File an Out of Time Grievance. (ECF No.
151). For the reasons explained below, the motion is denied.
BACKGROUND
On or about December 30, 2007, Defendants Corporal Kendrick (“Kendrick”) and
Officer Franklin Jones (“Jones”) allegedly retaliated against Plaintiff Thomas B. Stringer
(“Stringer”) because he filed a grievance with the Miami-Dade Corrections and Rehabilitation
Department (“MDCR”) after he was refused a razor. Stringer also filed a grievance to address
his denial of access to the law library. Stringer filed a complaint under the Civil Rights Act, 42
U.S.C. § 1983 claiming that Kendrick and Jones threatened to take away his cell privileges,
attempted to “incite and agitate” other inmates into attacking him, and refused to transfer him
from the unit after another inmate threatened his life. (ECF No. 1). On February 4, 2011,
Stringer’s claims were dismissed without prejudice for failure to exhaust administrative
remedies.

(Order Granting Mot. to Dismiss Without Prejudice, ECF No. 147).

On

reconsideration, Stringer contends that he attempted to comply with the administrative
procedures but that the MDCR “refused to process the grievance.” (Mot. for Reconsideration,
ECF No. 151).
DISCUSSION
The Prison Litigation Reform Act (“PLRA”) states that “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983] . . . by a prisoner . . . until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1977e(a). A prisoner must
comply with the procedural rules and deadlines of the institution’s grievance system to properly
exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007). In Florida, the
mandatory administrative procedure requires a State prisoner to: (1) file an informal grievance
with the staff member who is responsible in the area of the particular problem; (2) file a formal
grievance with the warden; and then (3) submit an appeal to the Secretary of the Florida
Department of Corrections. Chandler v. Crosby, 379 F.3d 1278, 1288 (11th Cir. 2004); Fla.
Admin. Code §§ 33-103.005 - .007.

Courts have no discretion to waive the mandatory

requirement. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005) (the PLRA eliminates
judicial discretion and mandates strict exhaustion of administrative remedies).
Where there is an issue regarding the exhaustion of administrative remedies, “it is proper
for a judge to consider facts outside of the pleadings and to resolve factual disputes so long as the
factual disputes do not decide the merits and the parties have sufficient opportunity to develop a
record.” Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008). In Bryant, the prisoner claimed
that he was denied access to the requisite grievance forms. Id. at 1373. The Eleventh Circuit
found that the prisoner’s claims lacked credibility because the prisoner filed a different
grievance, thus evidencing that he had access to the forms. Id. at 1377. The factual issues

regarding whether Stringer exhausted administrative remedies do not decide the merits of the
retaliation claim. Second, Stringer had several years after the incident to sufficiently develop the
record. As in Bryant, Stringer managed to file another grievance during the time period during
which he claims the MDCR refused to process his grievance. Thus, it is not unreasonable to
infer that Stringer had access to the administrative process. See id. at 1377-78
In the alternative, Stringer requests that this Court order that the MDCR accept an out-oftime grievance from Stringer. It is, however, within the sole discretion of the MDCR to
determine whether to accept the out-of-time grievance. Moreover, as a factual consideration,
Stringer was relocated to the Metropolitan Correctional Center in New York in or about June
2010.

While I recognize that a grievance filed after Stringer’s transfer would have been

untimely, Stringer has had ample opportunity to request consideration of an untimely grievance
for good cause. Because Stringer has not sought leave to file an out-of-time grievance, he cannot
be considered to have exhausted his administrative remedies.
CONCLUSION
For the foregoing reasons, I hereby ORDER and ADJUDGE that Stringer’s Motion for
Reconsideration or in the Alternative Motion and Order for Leave to File an Out of Time
Grievance (ECF No. 151) is DENIED.
DONE and ORDERED in chambers, at Miami, Florida, this 27th day of July 2011.