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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JERRY McCANTS,

Plaintiff,

vs. Case No. 4:09cv298-SPM/WCS

CAPTAIN ROUSE, and

CORRECTIONAL OFFICER DURHAM,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, a prisoner proceeding pro se and in forma pauperis, has now filed a third

amended complaint. Doc. 28. Plaintiff's complaint does not comply with Rule 8's

requirement to submit "short and plain statement of the claim showing that the pleader

is entitled to relief." FED. R. CIV. P. 8(a)(2), quoted in Dura Pharmaceuticals, Inc. v.

Broudo, 544 U.S. 336, 125 S.Ct. 1627, 1634, 171 L.Ed.2d 577 (2005). Plaintiff's third

amended complaint continues to be repetitive, conclusory, and too lengthy. 

The allegations of a complaint need only give a defendant "fair notice of what the

plaintiff's claim is and the grounds upon which it rests." Id., at 1634, quoting Conley v.

Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A lengthy recitations of
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Case No. 4:09cv298-SPM/WCS

details is unnecessary at this stage of litigation, although Plaintiff's complaint must

provide sufficient information so that a Defendant can know what he or she is alleged to

have done, and be able to respond to those allegations. Here, Plaintiff's third amended

complaint does not comply with Rule 8, as it is some thirty-nine pages of repetitive

allegations. 

There is no need, however, to provide Plaintiff with another opportunity to submit

a fourth amended complaint, as the grievances which Plaintiff submitted with his

complaint demonstrate Plaintiff failed to properly exhaust administrative remedies. 

When the Prison Litigation Reform Act was enacted, Congress mandated that

"[n]o 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). 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."); 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
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1

 The Court further rejected the view of the Sixth Circuit when it concluded that

"nothing in the statute [§ 1997e(a)] imposes a 'name all defendants' requirement."

Jones v. Bock, 549 U.S. at 217-219, 127 S.Ct. at 922-923 (concluding "that exhaustion

is not per se inadequate simply because an individual later sued was not named in the

grievances."). 

Case No. 4:09cv298-SPM/WCS

when 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). "Requiring exhaustion allows prison officials an opportunity to

resolve disputes concerning the exercise of their responsibilities before being haled into

court." Jones v. Bock, 549 U.S. 199, 204-209, 127 S.Ct. 910, 914, 166 L.Ed.2d 798

(2007)1

.

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

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

other words, not only must a prisoner exhaust a claim under § 1997e(a), the "PLRA

exhaustion requirement requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81,

93, 126 S.Ct. 2378, 2387 (2006) (concluding that "proper exhaustion" means complying

with the specific prison grievance requirements, not judicially imposed requirements). 

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

the 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"); Bryant v. Rich, 530 F.3d at 1373. 

It is true that Defendants "bear the burden of proving that the plaintiff has failed

to exhaust his available administrative remedies." Turner v. Burnside, 541 F.3d 1077,
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Case No. 4:09cv298-SPM/WCS

1082-83 (11th Cir. 2008), relying on Jones v. Bock, 549 U.S. 199, 127 S.Ct. at 910, 921,

166 L.Ed.2d 798 (2007) ("We conclude that failure to exhaust is an affirmative defense

under the PLRA, and that inmates are not required to specially plead or demonstrate

exhaustion in their complaints."); Dixon v. United States, 548 U.S. 1, 8, 126 S.Ct. 2437,

2443, 165 L.Ed.2d 299 (2006) (stating that, as a "general evidentiary rule," the burdens

of production and persuasion are given to the same party); Roberts v. Barreras, 484

F.3d 1236, 1240 (10th Cir. 2007) ("Jones does not spell out the proper burden of proof

to use in evaluating exhaustion claims, but circuits that treated exhaustion as an

affirmative defense prior to Jones have all put the burden of proof on defendants, to the

extent that they addressed the issue."). Nevertheless, where it is clear on the face of

the complaint that the prisoner failed to properly exhaust administrative remedies, a

district court may dismiss the action under § 1915A even though a prisoner has no

obligation to affirmatively show exhaustion. Cf. Jones v. Bock, 549 U.S. 199, 127 S.Ct.

at 920-21, 166 L.Ed.2d 798 (2007) (holding that the PLRA's exhaustion requirement is

an affirmative defense, but reiterating that the normal pleading rules remain unchanged,

and thus, "[w]hether a particular ground for opposing a claim may be the basis for

dismissal for failure to state a claim depends on whether the allegations in the complaint

suffice to establish that ground, not on the nature of the ground in the abstract.");

Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008) ("[a] complaint is subject to

dismissal for failure to state a claim 'when its allegations, on their face, show that an

affirmative defense bars recovery on the claim.' "), quoting Cottone v. Jenne, 326 F.3d

1352, 1357 (11th Cir. 2003). Where, as here, an affirmative defense appears on the
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Case No. 4:09cv298-SPM/WCS

face of a prisoner's complaint, thereby revealing that the prisoner cannot state a claim,

the court may dismiss the complaint.

Plaintiff has attached his grievances to the third amended complaint. Doc. 28,

pp. 26-39. Plaintiff filed a "grievance of sensitive nature" to the warden on December

17, 2008, complaining about the July 10, 2008, event when the officers used chemical

agents on Plaintiff. Id., at 26. Those are the events at issue in this case. The

response, dated January of 2009, first advised that the grievance was "not accepted as

a grievance of a sensitive nature." Id., at 27. The response, nevertheless, stated that

Officer Durham and Captain Rouse were contacted and explained the use of force was

necessary because Plaintiff did not cease being disruptive. Id. The grievance response

then concluded by stating, "based on the above information your request for

Administrative Remedy or Appeal is denied." Id. This was a proper grievance because,

although it was rejected as a grievance of a sensitive nature, a response on the merits

was provided.

The problem is, Plaintiff did not properly appeal this denial to the Secretary. 

On January 14, 2009, Plaintiff filed a "request for administrative remedy or appeal"

again to the warden, complaining about the use of force and asserting that his medical

condition should have precluded the use of chemical agents. Id., at 28. Plaintiff stated

the grievance was "to asked [sic] (or want to know) the full names of the confinement

staff who was [sic] involved in this incident, and to know the full name of the medical

personell [sic] who gave the authorization for chemical agents to be used on" Plaintiff. 

Id. The response, dated January 16, 2009, advised that "the grievance process is not to

be utilized to ask questions, seek information, guidance, or assistance" and denied
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2

 It was frivolous as well. Plaintiff was provided the names of the officers

involved, who are the named Defendants in this case, when his grievance of a sensitive

nature was denied. Doc. 28, p. 27.

Case No. 4:09cv298-SPM/WCS

Plaintiff's request. Id., at 29. Plaintiff was directed to submit an inmate request to

security and medical to seek the information requested. Id. 

On January 20, 2009, Plaintiff sent to the Secretary an Appeal, stating that it was

a "response to a formal grievance filed on 1-16-09" and again "requested to know the

names of Taylor Annex Confinement Officers who was [sic] involved in a 'use of force'

incident that resulted in chemical agents being used on" Plaintiff. Id., at 30. Plaintiff

stated that he was told he could not ask question or seek information, and he added

that the incident occurred while he was in administrative confinement in July, 2008. Id.

He again requested to know the names of the officers involved and the medical staff

who authorized the use of force. Id. Plaintiff's appeal was deemed to be "in noncompliance: with the Rules, just as his institutional grievance was "determined to be in

non-compliance with the requirements of the rule." Id., at 31. The appeal was "returned

without action" and dated January 27, 2009. Id. This was not an appeal from the

December 17, 2008, grievance to the warden. Instead, Plaintiff went off on a tangent,

trying to obtain names, which he had been told he could not do in a grievance.2

Plaintiff filed another appeal to the Secretary's office on February 2, 2009,

complaining that the response he received was "inadequate." Id., at 32. Plaintiff

argued the conclusions were wrong and, among other things, that his grievance should

not have been denied based on the denials of Officer Durham when questioned about

the incident. Id. This was an attempt to lodge a proper appeal, but it was untimely. 

The response, dated February 17, 2009, advised Plaintiff that his appeal was "in non-
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compliance with Chapter 33-103.014(i), which states that the appeal must be received

in the office of the Secretary within fifteen calendar days of the institutional response." 

Id., at 33. Plaintiff's grievance was "returned without action." Id. 

As inmates are required to properly exhaust administrative remedies, and

because it is clear on the face of the complaint that Plaintiff failed to do so, there is no

need to continue this litigation in an effort for Plaintiff to submit a complaint in

compliance with Rule 8. This case should be dismissed for failure to state a claim.

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's third

amended complaint, doc. 28, be DISMISSED for failure to exhaust administrative

remedies pursuant to 42 U.S.C. § 1997(e) and for failure to state a claim upon which

relief may be granted pursuant to 28 U.S.C. § 1915(e)(2), and that the order adopting

this report and recommendation direct the Clerk of Court to note on the docket that this

cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

IN CHAMBERS at Tallahassee, Florida, on August 31, 2010.

 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 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

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

scope of review of proposed factual findings and recommendations.