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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

SAMMY LEE DONTON,

Plaintiff,

vs. Case No. 5:03cv295-RH/WCS

DR. JULIA BERRIOS,

PHYSICIAN'S ASSISTANT MORALES,

and DR. SEYMOUR ROSEN, et al.,

Defendants.

 /

SECOND REPORT AND RECOMMENDATION

This case has been remanded to me following the denial in part of Defendant

Rosen's motion to dismiss. Docs. 46, 48. Defendant Rosen has now filed an answer to

the fourth amended complaint. Doc. 50. The federal claims against Defendant Rosen

remain, but the state law claims have been dismissed. Doc. 48. 

This report and recommendation is concerned only with the second motion to

dismiss, doc. 41, filed by Defendants Berrios and Morales. A scheduling order will not

be entered until this motion to dismiss has been resolved. Plaintiff was given until

March 18, 2005, in which to respond to the motion to dismiss. Doc. 44. Plaintiff has not

responded. At issue are claims as raised in the Fourth Amended Complaint. Doc. 14.

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Case No. 5:03cv295-RH/WCS

Standard of Review

Dismissal of a complaint, or a portion thereof, pursuant to Fed.R.Civ.P. 12(b)(6)

for failure to state a claim upon which relief can be granted should not be ordered

unless it appears beyond doubt that Plaintiff can prove no set of facts in support of his

claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.

99, 102, 2 L.Ed.2d 80 (1957). A court must accept as true the allegations of the

complaint when ruling upon such a motion. Oladeinde v. City of Birmingham, 963 F.2d

1481, 1485 (11th Cir. 1992)(citation omitted), cert. denied, 113 S. Ct. 1586 (1993). Pro

se complaints should be held to less stringent standards than those drafted by an

attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986), citing Haines v.

Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972).

Federal Rule of Civil Procedure 8(a)(2) . . . provides that a complaint must

include only "a short and plain statement of the claim showing that the

pleader is entitled to relief." Such a statement must simply "give the

defendant fair notice of what the plaintiff's claim is and the grounds upon

which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d

80 (1957). 

Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) ("Rule

8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions.").

If a pleading fails to specify the allegations in a manner that provides

sufficient notice, a defendant can move for a more definite statement

under Rule 12(e) before responding. Moreover, claims lacking merit may

be dealt with through summary judgment under Rule 56.

122 S.Ct. at 998-999.

"In reviewing a motion to dismiss based on qualified immunity, the district court is

required to accept the factual allegations in the plaintiff's complaint as true and draw all

reasonable inferences in favor of the plaintiff." Wilson v. Strong, 156 F.3d 1131, 1133

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Case No. 5:03cv295-RH/WCS

(11th Cir. 1998), citing Nolan v. Jackson, 102 F.3d 1187, 1190 (11th Cir. 1997). The

only issue, therefore, is whether "plaintiff's allegations set forth a violation of a clearly

established constitutional right." Wilson, 156 F.3d at 1133.

Allegations of the Fourth Amended Complaint

Plaintiff alleges that Dr. Julia Barrios was advised that Plaintiff's left eye had been

damaged and failed to "immediately recommend that Plaintiff be taken to another

op[h]thalmologist for evaluation and treatment." Doc. 14, p. 8. He alleges that Dr.

Barrios should have referred him for further treatment on January 9, 2002, the day after

the eye surgery, because he was then blind in that eye, but instead waited until April,

2002. Id., p. 9A. Likewise, Plaintiff alleges that Defendant Morales waited 18 days to

refer him to Dr. Rosen and by then it was too late. Id., p. 8B. He alleges that Morales

should have referred Plaintiff for treatment as early as January 9, 2002, but did not do

so until April, 2002. Id. and p. 9C.

Exhaustion

Defendants Berrios and Morales have argued that Plaintiff failed to exhaust

administrative remedies concerning his claims against them. Doc. 41, pp. 3-6. In

particular, Defendants note that although Plaintiff adequately presented his complaints

about the surgery conducted by Defendant Rosen, and sought to have his left eye

repaired, Plaintiff did not specifically "complain about the post surgical care that was

provided by defendants Berrios or Morales." Id., at 5. Defendants acknowledge that

Plaintiff's appeal complained about the " 'gross negligence' perpetrated by Dr. Rosen

and FCI Marianna's Medical Department, but [Plaintiff] does not state anything with

specificity about defendants Berrios and Morales." Id., at 5-6. Defendants also

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Case No. 5:03cv295-RH/WCS

acknowledge that Plaintiff complained in the final appeal that " 'Dr. Rosen & Company

waited too long to do said eye surgery, then was grossly negligent, failed to correct said

problem caused, let an infection set in, and thus subsequently caused the vision in

[Plaintiff's] left eye to be gone.' " Id., at 6. Defendants argue that because Plaintiff did

not allege in his grievances that Defendants Berrios and Morales failed to treat Plaintiff

or refer him for post-operative treatment, the complaint against them should be

dismissed. Id., at 6.

Since passage of the Prison Litigation Reform Act, 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); 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

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he could not yet identify those persons). 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). 

A prisoner must, however, comply with the process set forth and established by

the grievance procedures. See Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999). 

Even if a grievance is initially denied as untimely, a prisoner must appeal the denial of

his grievance. See Harper v. Jenkin, 179 F.3d 1311 (11th Cir. 1999) (noting Georgia's

inmate grievance procedures allow "the grievance coordinator to waive the time period

for filing a grievance if 'good cause' is shown"). Failure to exhaust available

administrative remedies is the functional equivalent of failing to state a claim, and thus

should be counted as a strike under 28 U.S.C. § 1915(g). See Rivera v. Allin, 144 F.3d

719, 731 (11th Cir.), cert. denied 524 U.S. 978 (1998) (stating that "[a] claim that fails to

allege the requisite exhaustion of remedies is tantamount to one that fails to state a

claim upon which relief may be granted."). If one claim is unexhausted, the Court may

separate that claim out and proceed on only those claims that have been exhausted. 

Brown, 212 F.3d at 1206, n.1.

Plaintiff is a federal inmate, housed within the Bureau of Prisons. The Bureau

requires inmates to exhaust claims through the Administrative Remedy Program which

is set forth in 28 C.F.R. § 542.10, et seq. The program generally consists of one

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1

 The process begins with an informal initial request to staff at the institution. 28

C.F.R. § 542.13(a). Doc. 41, p.4; exhibit, p. 1.

Case No. 5:03cv295-RH/WCS

informal step and three formal steps:1 a formal written grievance complaint to warden at

the local institution; an appeal to the Regional Director; and an appeal to the Office of

the General Counsel. 28 C.F.R. § 542.14(a), § 542.15(a). The rules require inmates to

include only "a single complaint or a reasonable number of closely related issues on the

form." 28 C.F.R. § 542.(c)(2). If an inmate submits one form containing "multiple

unrelated issues, the submission shall be rejected and returned without response . . . ." 

28 C.F.R. § 542.(c)(2). Furthermore, an "inmate may not raise in an Appeal issues not

raised in the lower level filings." 28 C.F.R. § 542.15(b)(2). 

Plaintiff submitted with his fourth amended complaint a document titled "attempt

at informal resolution," which was dated May 1, 2002. Doc. 14, ex. A. Plaintiff stated

that he had surgery on his left eye in January of 2002 and his eye was severely

damaged. Id. Plaintiff reported that he wanted to have his eye repaired, but he did not

believe that was possible, and was holding "all those responsible for damages incurred

to include BOP Medical Staff & Consultants." Id. The response indicated that Plaintiff

was seen by an optometrist on May 10, 2002, who referred Plaintiff to an

ophthalmologist, but Plaintiff was a "no show." Id. The appointment was rescheduled

and, thus, the response noted the problem was not resolved and Plaintiff was permitted

to continue to the formal procedure. Id. 

Plaintiff filed a request for administrative remedy (BP 9) on June 10, 2002. Doc.

14, ex. B. Plaintiff stated that he had had cataract surgery on his left eye in January of

2002 that damaged his sight. Id. Plaintiff alleged that Dr. Rosen committed gross

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negligence and damaged the lens beyond repair. Id. Plaintiff also said he "complained

about this post surgical damage, but to no avail." Id. "The end result was that [Plaintiff]

was transferred to FMC Butner where there has been difficulty . . . in actually scheduling

a proper appointment." Id. Plaintiff concluded his grievance by stating that he was

holding "Dr. Rosen, the FCI Marianna Medical Dept. and the BOP responsible for the

damages." Id. The response read the grievance as complaining only about the lack of

care during the cataract surgery on January 8, 2002, that is, that the surgeon had

"damaged your lens beyond repair." Id. The grievance was granted. The response

indicated that Plaintiff had arrived at FMC, Butner, on April 16, 2002, had been

examined, and on June 10, 2002, after another examination, the ophthalmologist had

referred Plaintiff for a fluorescein angiogram procedure; they were currently waiting on

an appointment for Plaintiff. Id. 

Plaintiff sent a Regional Administrative Remedy Appeal (BP 10), dated July 10,

2002, and said that granting his administrative remedy request was only partial success

in being "referred to an ophthalmologist for possible treatment." Doc. 14, ex. D. Plaintiff

indicated his doubt that the treatment would actually happen, but said that "the main

issue is that irrepairable [sic] damage has been caused, and unless some new magical

technique has been developed; then BOP's attempts are futile and only meant to try to

conceal the Gross Negligence perpetrated by Dr. Rosen & FCI Marianna's Medical

Dept." Id. Plaintiff further stated: "Thus, for the damage by Dr. Rosen's Gross

negligence on 1/8/02 causation; I hold him, FCI Marianna and the BOP responsible for

this irrepairable [sic] damage to my left eye and the accompany[ing] pain and suffering." 

Id. Plaintiff did not mention Dr. Barrios or P.A. Morales, and did not allege any postCase 5:03-cv-00295-RH-WCS Document 51 Filed 04/25/05 Page 7 of 10
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surgical lack of care by anyone. The response to Plaintiff's regional appeal, which was

denied, again noted that Plaintiff was "scheduled to be evaluated by an ophthalmologist

and vitreous specialist as you request." Id. "These specialists will evaluate your current

condition and recommend appropriate treatment." Id. Plaintiff was advised that if he

was dissatisfied, he could appeal to the General Counsel. Id. 

On August 26, 2002, Plaintiff submitted a grievance appeal (BP 11) to Central

Office (General Counsel). Doc. 14, ex. C. Plaintiff began the appeal by stating that

"[t]he facts surrounding the irrepairable [sic] eye (left) damage perpetrated by Dr. Rosen

and FCI Marianna's Medical Department have already been presented in the

accompanying BP9 & BP10." Id. Plaintiff complained that it was "quite obvious to other

'blind' men that Dr. Rosen & Company waited too long to do said eye surgery, then was

grossly negligent, failed to correct said problem caused, let an infection set in, and thus

subsequently caused the vision in my left eye to be gone." Id. Plaintiff stated that he

was holding "Dr. Rosen, FCI Marianna, and the BOP responsible [for] this Medical

Gross Negligence that constitutes Deliberate Indifference as well [as] for the 1/8/02

causation and for the constant pain and suffering that I'm currently enduring." Id. The

allegation that the health care providers "let an infection set in" is the first allegation of a

lack of care after the surgery, and this allegation came at the last stage of the grievance

process. Again, there is no mention of Dr. Barrios or P.A. Morales. 

The response to that grievance appeal again read the grievance as only

complaining about a lack of care leading to and during the surgery, and stated:

This is in response to your Central Office Administrative Remedy Appeal in which

you contend that FCI Marianna's physician was negligent in not providing you

surgery in a timely manner, which has caused the loss of vision in your left eye. 

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You request FMC Butner reduce your pain and suffering, and make every effort

to save the vision in your eye.

Review of your medical record reveals on October 3, 2002, the consultant

ophthalmologist performed chronic vitrectomy surgery on your eye. You will

receive follow-up evaluations by the consultant ophthalmologist and any further

recommendations will be reviewed and approved by medical staff at FMC Butner.

This response has been provided for informational purposes only.

Doc. 14, ex. C.

Thus, Plaintiff did not specifically indicate in these grievances that he was

complaining about actions by Defendants Berrios and Morales after the surgery on

January 8, 2002. Plaintiff did not clearly indicate in any of the grievances that those

Defendants failed to refer Plaintiff for evaluation or treatment and, in doing so, denied

Plaintiff appropriate medical attention as he has alleged in this civil rights action. 

Plaintiff's grievances certainly argue that Defendant Rosen was negligent, but Plaintiff

failed to put the Bureau of Prisons on notice that he was also claiming that medical staff,

in particular Defendants Berrios and Morales, failed to properly provide care to Plaintiff

after the operation and acted with deliberate indifference in not referring him for

treatment. Those are distinct and separate claims from Plaintiff's claims against

Defendant Rosen. Even a generous and liberal reading of Plaintiff's administrative

grievances fails to provide the notice to the Bureau of Plaintiff's complaints against

those medical providers, as is evidenced in the Bureau's response and summation of

Plaintiff's complaint in the General Counsel's response.

The conclusion that must be reached after review of Plaintiff's grievances is that

Plaintiff failed to exhaust available administrative remedies prior to filing this cause of

action against Defendants Morales and Berrios. Plaintiff simply did not allege enough

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facts to put prison officials on notice that he was complaining about the alleged lack of

medical care by prison staff (Defendants Morales and Berrios) following the surgery. 

Plaintiff's failure to exhaust those claims mandates dismissal of the complaint against

Defendants Morales and Berrios without prejudice. The claims against Defendant

Rosen should proceed.

In light of the foregoing, it is respectfully RECOMMENDED that the motion to

dismiss filed by Defendants Berrios and Morales, doc. 41, be GRANTED, because

Plaintiff failed to exhaust administrative remedies pursuant to 42 U.S.C. § 1997(e)

concerning his claims against them, that Defendants Berrios and Morales be

DISMISSED from this action, and this case be REMANDED for further proceedings. 

IN CHAMBERS at Tallahassee, Florida, on April 25, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

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 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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