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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

FRANK X. VINCI,

Plaintiff,

vs. Case No.: 3:10cv173/MCR/EMT

WARDEN CULPEPPER, et al.,

Defendants.

_______________________________/

REPORT AND RECOMMENDATION

This prisoner civil rights case is before the court upon Defendants’ motion to dismiss for

Plaintiff’s failure to exhaust administrative remedies (doc. 69). Plaintiff has not responded to the

motion, despite the court’s directing him to do so (see doc. 72).

The case was referred to the undersigned for the issuance of all preliminary orders and any

recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see

also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After careful consideration, the undersigned

concludes that Defendants’ motion should be granted and this case dismissed.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, proceeding pro se, commenced this action on or about May 21, 2010, by filing a civil

rights complaint under 42 U.S.C. § 1983 (doc. 1). Now pending is Plaintiff’s Fourth Amended

Complaint (doc. 51). Plaintiff originally sued ten officials and employees of the Florida Department

of Corrections (“DOC”): Doctor Cherry, River Junction Work Camp (“RJWC”); Lieutenant Barbara

Smith, RJWC; Lieutenant McClamma, RJWC; Correctional Officer John Doe (unidentified) #1,

RJWC; Lieutenant John Doe (unidentified) #2, RJWC; Nurse Cowherd, Sr., RJWC; Sergeant Sims,

Apalachee Correctional Institution (“ACI”); Correctional Officer John Doe (unidentified) #3, ACI;

Nurse Cowherd, Jr., ACI; and Warden Samuel Culpepper, formerly at RJWC and presently at Walton

Correctional Institution (“WCI”) (id. at 1–3). Plaintiff sued Defendants in their individual capacities

for allegedly violating his First and Eighth Amendment rights (id. at 6–13).

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On February 6, 2012, the district court entered an order dismissing some of Plaintiff’s claims

against some Defendants (doc. 56). The court allowed the following claims to survive: (1) Plaintiff’s

First Amendment retaliation claims against Lieutenant McClamma, Sergeant Sims, and Officer John

Doe #3, (2) Plaintiff’s Eighth Amendment claims against Sergeant Sims and Officer John Doe #3 for

excessive force, and (3) Plaintiff’s Eighth Amendment claims for deliberate indifference to serious

medical needs against Warden Culpepper, Dr. Cherry, Nurse Cowherd, Sr., Nurse Cowherd, Jr.,

Lieutenant John Doe #2, Sergeant Sims, and Officer John Doe #3 (id.).

The court directed service of the process upon the six identified Defendants, and advised

Plaintiff that it was his responsibility to utilize the discovery process to identify the three “John Doe”

Defendants (see doc. 58). Five identified Defendants have now been served, Warden Culpepper, 

Lieutenant McClamma, Dr. Cherry, Nurse Cowherd, Jr. (Scarlett Cowherd Varn), and Nurse

Cowherd, Sr. (Charlotte Cowherd) (see docs. 64, 65, 74, 76, 77).1

On May 29, 2012, Defendants Culpepper and McClamma filed a joint motion to dismiss under

Rule 12(b)(6) of the Federal Rules of Civil Procedure and 42 U.S.C. § 1997(e)(a), arguing that

Plaintiff failed to exhaust his administrative remedies before filing this lawsuit (doc. 69). Defendants’

motion is accompanied by supporting affidavits (id., Exs. A, B). Plaintiff was given an opportunity

to develop a record by obtaining affidavits, documents and any other materials and submitting them

with his response to the motion to dismiss (see doc. 72). As previously noted, Plaintiff did not file

a response.

II. ANALYSIS

A. Procedure for Ruling on Motion to Dismiss for Failure to Exhaust Administrative

Remedies

In Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008), the Eleventh Circuit outlined the procedure

district courts should follow when presented with a motion to dismiss for failure to exhaust

administrative remedies under the Prison Litigation Reform Act (“PLRA”). The court held that the

defense of failure to exhaust should be treated as a matter in abatement. Id. at 1374. “This means that

1

 Service upon Sergeant Sims was returned unexecuted by the special process server at Apalachee Correctional

Institution (the institution where Plaintiff indicated this Defendant was employed) with a notation, “There is no Sgt.

Sims employed at Apalachee C.I.” (doc. 63).

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procedurally the defense is treated ‘like a defense for lack of jurisdiction,’ although it is not a

jurisdictional matter.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (quoting Bryant, 530

F.3d at 1374). Because exhaustion is a matter in abatement, “it should be raised in a motion to

dismiss, or be treated as such if raised in a motion for summary judgment.” Bryant, 530 F.3d at

1374–75 (citation and internal quotation omitted).

Deciding a motion to dismiss for failure to exhaust administrative remedies involves two

steps. Turner, 541 F.3d at 1082. First, the court looks to the factual allegations in Defendants’

motion, and those in Plaintiff’s response, if any. Id. If they conflict, the court accepts Plaintiff’s

version as true. “If, in that light, the defendant is entitled to have the complaint dismissed for failure

to exhaust administrative remedies, it must be dismissed.” Id.; see also Bryant, 530 F.3d at 1373–74. 

If the complaint is not subject to dismissal at the first step, “the court proceeds to make

specific findings in order to resolve the disputed factual issues related to exhaustion.” Turner, 541

F.3d at 1082 (citing Bryant, 530 F.3d at 1373–74, 1376). “The defendants bear the burden of proving

that the plaintiff has failed to exhaust his available administrative remedies.” Id. Upon making

findings on the disputed issues of fact, the court then decides whether, under those findings, Plaintiff

has exhausted his available administrative remedies.

B. Exhaustion Requirement 

Title 42 U.S.C. § 1997e provides, in relevant part: “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). Exhaustion of all available administrative remedies is a

mandatory pre-condition to suit. See Booth v. Churner, 532 U.S. 731, 739, 121 S. Ct. 1819, 149 L.

Ed. 2d 958 (2001); see also Porter v. Nussle, 534 U.S. 516, 524–25, 122 S. Ct. 983, 988, 152 L. Ed.

2d 12 (2002) (“Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the

quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity

to address complaints internally before allowing the initiation of a federal case.”); Parzyck v. Prison

Health Serv., Inc., 627 F.3d 1215, 1217 (11th Cir. 2010). The 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. See Porter, 534 U.S. at 524. Exhaustion

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is required whether the plaintiff seeks declaratory and injunctive relief, monetary damages, or both. 

See Booth, supra at 734. The requirement is not subject to waiver by a court, or futility or inadequacy

exceptions. Id. at 741 n.6; McCarthy v. Madigan, 503 U.S. 140, 112 S. Ct. 1081, 117 L. Ed. 2d 291

(1992) (“Where Congress specifically mandates, exhaustion is required.”); Alexander v. Hawk, 159

F.3d 1321 (11th Cir. 1998). Moreover, the PLRA requires “proper exhaustion,” so that the agency

has an opportunity to address the issues on the merits. Woodford v. Ngo, 548 U.S. 81, 126 S. Ct.

2378, 165 L. Ed. 2d 368 (2006); see also id., 548 U.S. at 95 (“The benefits of exhaustion can be

realized only if the prison grievance system is given a fair opportunity to consider the grievance. The

prison grievance system will not have such an opportunity unless the grievant complies with the

system’s critical procedural rules.”). A court must dismiss an action if satisfied that the plaintiff

failed to properly exhaust his available administrative remedies prior to filing suit. See Higginbottom

v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000); Alexander, 159 F.3d at 1325–26. 

The grievance procedures promulgated by the Florida DOC require an inmate to: (1) file an

informal grievance with a designated prison staff member, (2) file a formal grievance with the

warden’s office, and then (3) submit an appeal to the Office of the Secretary (“Central Office”). See

Fla. Admin. Code r. 33-103.005 to 33-103.007 (2008); see also Parzyck, 627 F.3d at 1218. If an

inmate is filing a medical grievance, he may bypass use of an initial informal grievance and begin his

medical complaint with a formal grievance at the institution. See Fla. Admin. Code r. 33-

103.006(3)(e). This is known as a formal “Grievance of a Medical Nature.” Id. at r. 33-103.008. 

If the inmate is dissatisfied with the result of the medical formal grievance (for example, if it is

denied), the inmate is authorized to appeal to the Central Office. Id. at r. 33-103.007(1). If an inmate

is filing a grievance of retaliation, known as a “Grievance of Reprisal,” he may bypass use of informal

and formal grievances and begin his complaint with a direct grievance to the Central Office. Id. at

r. 33-103.007(6). 

C. Application of the Law to the Facts of this Case

Defendants contend, and Plaintiff has not disputed, that Plaintiff did not utilize the prison

grievance system to exhaust his claims prior to filing this lawsuit (doc. 69 at 4–8). In support of their

contention, they submitted declarations of Elizabeth Wilson and Ashley Stokes, both of which were

signed as true and correct under penalty of perjury (doc. 69, Exs. A, B). Ms. Wilson states she is

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employed by the DOC as a Secretary Specialist at Walton Correctional Institution and has been since

April 13, 1990 (Wilson Declaration ¶ 1). Ms. Wilson states all formal grievances filed by inmates

in the DOC are logged into a statewide database (id., ¶ 2). She states she reviewed the formal

grievance database records for Plaintiff, and there is no record of his ever filing any formal grievances

while in the custody of the DOC (id., ¶ 3). Ms. Stokes states she is employed as an Operations

Analyst I by the DOC, Bureau of Inmate Grievance Appeals in Tallahassee, Florida, and as such is

the records custodian for the Bureau (doc. 69, Ex. B, ¶ 1). Ms. Stokes states she reviewed the

available grievance appeal records for Plaintiff kept in the DOC’s Central Office (id. ¶ 2). Ms.

Stokes states there is no record of Plaintiff’s having filed a grievance in the Central Office while in

the custody of the DOC (id., ¶ 3). 

The law of the Eleventh Circuit is clear that the PLRA’s exhaustion requirement requires

proper exhaustion through the administrative grievance procedure created by the agency (the Florida

DOC), including compliance with the agency’s deadlines and other critical procedural rules. See

Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (holding that “when a state provides a

grievance procedure for its prisoners, . . . an inmate alleging harm suffered from prison conditions

must file a grievance and exhaust the remedies available under that procedure before pursuing a

§ 1983 lawsuit”); accord Woodford, 548 U.S. at 94 (“Requiring proper exhaustion . . . gives prisoners

an effective incentive to make full use of the prison grievance process and accordingly provides

prisons with a fair opportunity to correct their own errors. This is particularly important in relation

to state corrections systems because it is “difficult to imagine an activity in which a State has a

stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures,

than the administration of its prisons.”); Woodford, 548 U.S. at 90–91 (“Proper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules because no adjudicative

system can function effectively without imposing some orderly structure on the course of its

proceedings).

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In the instant case, Plaintiff has not disputed Defendants’ assertion that he did not properly

exhaust his administrative remedies prior to filing the instant federal action.2

 Therefore, Defendants

are entitled to dismissal of this action, pursuant to 42 U.S.C. 1997e(a).

III. CONCLUSION

 Plaintiff failed to exhaust available administrative remedies under § 1997e(a) as to all of the

claims presented in this lawsuit. All of the Defendants are therefore entitled to dismissal of this case. 

Accordingly, it is respectfully RECOMMENDED:

1. That Defendants Culpepper and McClamma’s motion to dismiss (doc. 69) be

GRANTED.

2. That this case be DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to

exhaust available administrative remedies.

3. That the clerk be directed to enter judgment accordingly and close the file. 

At Pensacola, Florida this 13th day of July 2012.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. Any different deadline that may appear

on the electronic docket is for the court's internal use only, and does not control. A copy of any

objections shall be served upon any other parties. Failure to object may limit the scope of

appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

2

 In Plaintiff’s Fourth Amended Complaint, the operative pleading, he alleges he verbally asked Lieutenant

McClamma why he had not seen a doctor or received stitches, a CAT scan, or an x-ray for his head injury (doc. 51 at

8). He also alleges his wife constantly complained that he had received no medical treatment for his injury (id. at

9–10). However, Plaintiff’s verbal complaints and the complaints of his wife are insufficient to satisfy the exhaustion

requirement. See, e.g., Schlicher v. Fla. Dep’t of Corr., 399 F. App’x 538 (11th Cir. 2010) (rejecting prisoner’s

arguments that the efforts he made, including writing letters to the Secretary of the FDOC, a federal judge, and the

inspector general, and making verbal complaints to various prison officials, were sufficient to satisfy the exhaustion

requirement). 

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