1

 Plaintiff also named Paul Burg as a defendant, but service upon him was

returned unexecuted because there was no one by that name employed at the Leon

County Jail. (Doc. 12).

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KELVIN WIGGINS,

Plaintiff,

vs. 4:04CV16-MMP/AK

Dr. WILLIAM PRIMAS, 

Defendant .

 /

REPORT AND RECOMMENDATION

Plaintiff brings this cause pursuant to 42 U.S.C. §1983, and is proceeding pro se

and in forma pauperis. He alleges that while he was incarcerated at the Leon County

Jail he was injured and subsequently denied medical care by Defendant Dr. William

Primas.1

 (Doc.8). Defendant has moved to dismiss his complaint for failure to exhaust

administrative remedies (doc. 24), which included evidentiary material and was

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2

therefore construed as a motion for summary judgment. (Doc. 27). Plaintiff was

advised of his obligation to respond and filed two responses. (Docs. 25 and 26). 

I. Allegations of the complaint (Doc. 1)

Plaintiff claims that on July 13, 2003, he slipped on a bar of soap and fell 17

flights of stairs. He claims that although he was taken to medical, Defendant Primas

and Paul Burg refused to give him x-rays. He remained in medical for three days, then

was returned three days later where he stayed until July 24, 2003, but never got x-rays. 

Plaintiff claims that when he was transferred to Lake Butler CI he was told that he had

slipped discs in his back, which causes him continued pain and causes him to walk with

a limp.

Plaintiff’s response to the question about grievances was that the jail did not

have a grievance procedure, and then he stated that he filed 3 medical requests, but

never got them back. (Doc. 8, p. 4).

II. Standard of Review

A district court should grant summary judgment when, “after an adequate time for

discovery, a party fails to make a showing sufficient to establish the existence of an

essential element of that party’s case.” Nolen v. Boca Raton Community Hospital, Inc.,

373 F.3d 1151, 1154 (11th Cr. 2004), citing Celotex Corporation v. Catrett, 477 U.S. 317,

322 (1986). All issues of material fact should be resolved in favor of the Plaintiff or nonmoving party before the Court determines the legal question of whether the defendant is

entitled to judgment as a matter of law under that version of the facts. Durruthy v.

Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003); Skrtich v. Thornton, 280 F.3d 1295, 1299

Case 4:04-cv-00016-MP-AK Document 28 Filed 07/12/05 Page 2 of 9
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(11th Cir. 2002). The Plaintiff has the burden to come forward with evidentiary material

demonstrating a genuine issue of fact for trial. Celotex, 477 U.S. at 322-23. Plaintiff

must show more than the existence of a "metaphysical doubt" regarding the material

facts, Matsushita Electric Industrial Co., LTD. v. Zenith Radio Corporation, 475 U.S.

574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), and a "scintilla" of evidence is

insufficient. There must be such evidence that a jury could reasonably return a verdict

for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. 242,

251, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). “For factual issues to be

considered genuine, they must have a real basis in the record.” Mize v. Jefferson City

Board of Education, 93 F.3d 739, 742 (11th Cir. 1996).

"Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by

his own affidavits, or by the 'depositions, answers to interrogatories, and admissions on

file,' designate 'specific facts showing that there is a genuine issue for trial.' " Owen v.

Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998), quoting

Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (quoting Fed. R. Civ. P. 56(c), (e)). The

nonmoving party need not produce evidence in a form that would be admissible as Rule

56(e) permits opposition to a summary judgment motion by any of the kinds of

evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477

U.S. at 324, 106 S. Ct. at 2553.

While a moving party is not required to support his motion for summary judgment

with affidavits, Celotex, supra at 323, the facts stated in uncontradicted affidavits or

other evidentiary materials must be accepted as true for purposes of summary

judgment. Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir. 1965).

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III. Defendant’s Rule 56(e) evidence

Defendant has provided a copy of the Leon County Jail Handbook, which clearly

sets forth a grievance procedure. (Doc. 24, Exhibit A). The handbook states that the

Note from Prisoner form may be used to file an informal grievance, which should be

given to the pod officer who will deliver it to the staff member to respond. This same

form may be used to file a formal grievance, which will be given to the jail director. Tish

Wright, Health Services Administrator, with the Leon County Jail, submitted her affidavit

wherein she attests that she reviewed Plaintiff’s file and found three medical grievances,

but none involving a fall or a denial of medical care. (Doc. 24, Exhibit B). The

grievances she found were dated August 1, 2004, November 19, 2004, and November

22, 2004, and concerned requests for stronger pain medication for his back. Each

issue was addressed immediately and new medication prescribed. (Doc. 24, Exhibit B1). 

IV. Plaintiff’s Rule 56(e) evidence

Plaintiff has provided copies of a grievance to Jail Administrator Carl Bennett

dated May 24, 2004, (doc. 26) which states:

I am writing to you about the grievance I filled out on July 14, (year

indecipherable) on the medical department and the jail. July 13 I slipped

and fell down the stairs on a bar of soap, and hurt my lower back. Medical

told me that I would get an x-ray the next day, but they did not give me

one I stayed in medical for ten days and they still didn’t give me an x-ray.

Now my back is damaged for the rest of my life. My number 5 disc is

sitting on my number 6 disc. I’ve been asking for my accident report that

Officer Underwood and Sergant [sic] McCary made out on July 13, 2002,

so now I’m asking you Major Bennett to assist me in obtaining my accident

report.

The response is made by D. Davis, RN, and states:

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You were placed in the hosp. infirmary 7/24-7/31 for this injury. Lumbar

spine x-ray was ordered. You were given Flexeril and Motrin. Medical

does not have the accident report.

An Inmate Medical Request form (doc. 25, exhibit A) dated June 4, 2004, states: 

I would [sic] you to continue to give me medication for my back and I

would like to no [sic] what is gone [sic] on with my grievance I filed on 5-7-

7074 and 5-10-04.

The response is: “referred to s/c nurse.”

A grievance to Major Carl Bennett dated June 7, 2004, (doc. 26) states:

I am and [sic] pain I fell down the stair and [sic] this jail July 13, 2003 I am

back [indecipherable] they have my medication down and [sic] my

property can you get me some help need something for pain and I all so.

The response from an unidentified person was:

Please use PHS medical forms in Pod for medical

issues/requests/complaints.

An Inmate Medical Request form (doc. 25, exhibit A) dated June 7, 2004, states:

I need something for my back the medication that you had me on is not

helping me with my pain I have not had no med for 3 day I need

something for my low back.

The response is: “referred to sick call.”

An Inmate Medical Request form (doc. 25, exhibit A) dated June 17, 2004, 

states:

I am still having pain and my low back I need something stronger and so I

would like to no what is going on with my grievance and I would like to

know what date did you x-ray me when I felled down the stair.

The response was: “referred to NSC.”

A grievance dated June 22, 2004, (doc. 25, exhibit A), states:

Only July 13, 2003, I fell down the steps in K-pod. I was placed in the

infirmary for a few days w/a severe back injury. At that time I repeatedly

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requested more medical attention and to be xrayed. I didn’t receive

neither so I filed numerous grievances. I received no relief or response to

any. I now need a copy of those grievances. They would have been filed

from 7-13-03 -7-24-03. It’s important I get those copies for my records. 

Most of those grievances I filed was specifically to be x-rayed. On May

24, 2004, I filed a grievance trying to a get a copy of the incident report

from 7-13-04. Nurse D. Davis RN responded. In her response she stated

an x-ray was ordered for me. If she is implying I was x-rayed I’d like to

know what date her records show I was supposedly x-rayed. I am also

grieving to have my current dosage of Motrin increased. After numerous

requests, your dept. still won’t increase it. The current dosage is not

relieving the pain.

The form shows it was received on June 23, 2004, by D. Stafford, RMA, but 

there is no further response.

II. Analysis

Since passage of the PLRA, 42 U.S.C. § 1997e(a) now 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." (Emphasis added.) 

The exhaustion requirement of § 1997e(a) is mandatory, whether the claim is brought

pursuant to § 1983 or Bivens. Alexander v. Hawk, 159 F.3d 1321, 1324-26 (11th Cir.

1998). There is no discretion to waive this requirement or provide continuances of

prisoner litigation in the event that a claim has not been exhausted prior to filing. 

Alexander, 159 F.3d at 1325; see also Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983,

152 L.Ed.2d 12 (2002) (holding that "the PLRA's exhaustion requirement applies to all

inmate suits about prison life, whether they involve general circumstances or particular

episodes, and whether they allege excessive force or some other wrong.");

Higginbottom v. Carter, 223 F.3d 1259, 1260-61 (11th Cir. 2000) (holding that an

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excessive force claim is subject to the exhaustion requirement); Brown v. Sikes, 212

F.3d 1205, 1207-08 (11th Cir. 2000) (finding that an inmate must "provide with his

grievance all relevant information reasonably available to him" but he cannot be

required to name individuals responsible for challenged conduct when he could not yet

identify those persons). Furthermore, this Court may not consider the adequacy or

futility of administrative remedies, but only the availability of such. Higginbottom, 223

F.3d at 1261, citing Alexander, 159 F.3d at 1323. Even where an inmate seeks only

monetary damages in a civil rights case, he must complete the prison administrative

process if it could provide some sort of relief on the complaint although no money could

be given administratively. Booth v. Churner, 531 U.S. 956, 121 S. Ct. 1819, 1821, 149

L. Ed. 2d 958 (2001). An inmate must not only commence the grievance process, he

must perfect his appeal to the highest administrative level in the process. Alexander,

159 F.3d at 1323.

Although Plaintiff has provided the Court with a number of grievances and

medical request forms, all of them were filed after the complaint was filed and

nearly one year after Plaintiff allegedly fell down the stairs and was denied

treatment. It is curious that most of these papers were not submitted with the

Defendant’s motion as part of Plaintiff’s file. Defendant’s motion was filed in

February 2005, and these papers should have been included in the file that Trish

Wright reviewed and discussed in her affidavit. Nonetheless, Plaintiff has offered

nothing that convinces this Court that he did in fact file other more timely

grievances that addressed the issues raised in the complaint. He states in the

complaint that the Leon County Jail had no such procedure, and then states he

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filed three medical requests which were ignored. (See Doc. 8, p. 4). Plaintiff does

not explain this discrepancy nor does he provide more detail about these requests

such as when he filed them, who he gave them to, or what they said. Such

specificity would add some credibility to his allegation. Nor does Plaintiff explain

how the Defendant obtained his signed receipt showing he had received the

handbook that advises inmates of the procedure for lodging complaints with the

jail, but he was unaware of it. (Doc. 24, Exhibit C). The law set forth both

establishes that exhaustion is mandatory, cannot be waived, and the only question

before the Court is whether it was available to the inmate. Defendant’s materials

show that the procedure was in fact available.

In light of the foregoing, it is respectfully RECOMMENDED that Defendant’s

motion for summary judgment (doc. 24) be GRANTED, and Plaintiff’s amended

complaint (doc.8) be DISMISSED for failure to exhaust administrative remedies

pursuant to 42 U.S.C. § 1997(e). 

IN CHAMBERS at Gainesville, Florida, this 12th day of July, 2005.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 10 days after

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being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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