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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WILLIE MAE STUART,

Plaintiff,

v. CASE NO. 4:10-cv-96-SPM-GRJ

CARBONELLY, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Pending before the Court is the Motion To Dismiss filed by the Defendants

Officer Hattan and Dr. Carbonelle based upon Plaintiff’s failure to exhaust her

administrative remedies. (Doc. 45.) Plaintiff has filed a response to the motion. (Doc.

46.) For the following reasons, it is RECOMMENDED that the motion to dismiss be

GRANTED.

I. Background

According to the factual allegations in the Second Amended Complaint, Plaintiff

suffered a serious shoulder injury while incarcerated at Federal Correctional Institution

Tallahassee (“FCI Tallahassee). (Doc. 20.) Prior to her shoulder injury, Plaintiff

previously had suffered a severe stroke and also was partially crippled as a result of

two aneurysms. 

According to Plaintiff, on November 26, 2008, while Defendant Officer Hatten

was escorting her to the shower at FCI Tallahassee, Hattan placed Plaintiff’s hands

behind Plaintiff’s back and then forced Plaintiff to push her walker, allegedly causing 

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Plaintiff excruciating pain. At the request of the Warden of FCI Tallahassee, Defendant

Dr. Carbonelle examined Plaintiff after this incident. Dr. Carbonelle provided Plaintiff

with a cream to be used on her shoulder but did not take any X-rays or MRI’s of

Plaintiff’s shoulder. Plaintiff alleges the failure to take X-rays or MRI’s led to a delay in

discovering the extent of her shoulder injuries. Plaintiff later had X-rays and MRI’s

performed on her shoulder when she was transferred to the Federal Medical Center

Carswell in Texas. These assessments, performed by a bone specialist, determined

Plaintiff’s shoulder had grown incorrectly after the incident with Officer Hattan and was

irreparably damaged and could never be surgically repaired. As a result of these

injuries, Plaintiff states she is in constant pain and cannot dress herself. Plaintiff seeks

$2,000,000 in damages and immediate release from prison.

II. Defendant’s Motion to Dismiss and Plaintiff’s Response

Defendants filed a limited notice of appearance and motion to dismiss (Doc. 45),

seeking dismissal of Plaintiff’s second amended complaint. (Doc. 20.) Defendants

argue Plaintiff failed to exhaust her administrative remedies as required by the Prison

Litigation Reform Act (PLRA), 42, U.S.C. § 1997e(a) and therefore because Plaintiff

failed to exhaust the second amended complaint must be dismissed for lack of

jurisdiction and for failure to state a claim upon which relief may be granted. Attached

to the motion to dismiss is an affidavit of Mary Kiwanuka, an attorney with the Federal

Bureau of Prisons (“BOP”) at its Consolidated Legal Center in Miami. (Doc. 45 Exh 1.) 

Kiwanuka attests that her review of the BOP’s administrative remedy records discloses

that Plaintiff filed an administrative claim to the Warden of FCI Tallahassee on Form

BP-9 and an appeal to the BOP’s Regional Director on Form BP-10. (Id.) Plaintiff,

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however, failed to follow the third and final step in the BOP’s administrative process by

filing an appeal to the General Counsel’s National Inmate Appeals Office on Form BP11. (Id.)

In her response to Defendant’s motion to dismiss, Plaintiff alleges she was

instructed not to file a Form BP-11 and was instead instructed to file a tort claim by an

unidentified BOP official. Plaintiff states she was told that it was futile to file any further

requests for administrative remedies because monetary compensation is not available

through the administrative remedy process. Plaintiff asks the Court not to dismiss her

lawsuit because she was specifically instructed by BOP officials to file a tort claim after

she already had filed her Form BP-10 with the applicable Regional Director.

III. Discussion

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires a prisoner to

exhaust all available administrative remedies before filing an action challenging prison

conditions. “This requirement is a ‘pre-condition to suit’ that must be enforced even if

the available administrative remedies are ‘futile or inadequate.’” Logue v. Pearson, No.

CV410-240, 2011 U.S. Dist. LEXIS 66950, at *2-3 (S.D. Ga. 2011)(citing Harris v.

Garner, 190 F.3d 1279, 1285-86 (11 Cir. 2005)). Exhaustion is mandatory under the th

PLRA, and unexhausted claims are not permitted. See Jones v. Bock, 549 U.S. 199,

211 (2002). Proper exhaustion requires completion of the grievance process as

established by BOP regulations. See Lambert v. United States, 198 F. App’x 835, 840

(11 Cir. 2006). 

th

In the Eleventh Circuit, the defense of failure to exhaust under the PLRA is

considered a matter in abatement under Fed. R. Civ. P. 12 and thus is treated like a

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defense of lack of jurisdiction. Bryant v. Rich, 530 F.3d 1368, 1374, 1376 (11 Cir. th

2008). Deciding a motion to dismiss for failure to exhaust administrative remedies

requires a two-step process as established in Turner v. Burnside, 541 F.3d 1077, 1082

(11 Cir. 2008). The Court first “looks to the factual allegations in the defendant’s th

motion to dismiss and those in the plaintiff’s response, and if they conflict, takes

plaintiff’s version of the facts 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. at 1082. If the complaint is not subject to dismissal through the first

step, the Court “proceeds to make specific findings in order to resolve the disputed

factual issues related to exhaustion.” Id.

To exhaust her administrative remedies, the Plaintiff in this case was required to

file a form BP-9 with the warden of the institution within 20 days of the date of the

incident. 28 C.F.R. 542.14(a); Okpala v. Drew, 248 Fed. App’x 72 (11 Cir. 2007);

th

Martin v. Zenk, 244 Fed. App’x 974 (11 Cir. 2007). An appeal to the applicable th

Regional Director using the Form BP-10 is also required within 20 days of the date the

Warden signs the response to the Form BP-9. 28 C.F.R. 542.15(a). An inmate who is

not satisfied with the Regional Director’s response may then submit an appeal on Form

BP-11 to the General Counsel within 30 days of the date the Regional Director signed

the response, which is the final step in the administrative process. Id.

Defendant contends that Plaintiff did not complete the administrative remedy

process as described above. Plaintiff does not challenge the assertion that she failed

to follow the final step in the administrative process but instead alleges that an

unidentified BOP official at Tallahassee FCI told her to file a tort claim instead of filing a

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Form BP-11 with the BOP’s General Counsel after she had filed a Form BP-10 with the

Regional Director. According to Plaintiff, she was given instructions to do so because

she “was made aware of the fact that it was futile to file any further request for

Administrative Remedy because monetary compensation is not available through the

Administrative Remedy program.” (Doc. 46 at 1.) Even taking Plaintiff’s allegations as

true that she did not pursue administrative remedies because she thought it would be

futile based on a statement from an unidentified BOP official at FCI Tallahassee, is

insufficient to overcome the failure to exhaust because reliance on subjective feelings is

not enough to overcome the exhaustion requirement. “[I]n an exhaustion analysis,

Plaintiff may not rely on such subjective feelings to demonstrate unavailability of

administrative remedies.” Boxer X v. Harris, No. CV 603-147, 2009 U.S. Dist. LEXIS

125208, at *24 (S.D. Ga. 2009)(rejecting a plaintiff’s claims that administrative remedies

were unavailable because a grievance counselor informed him that a complaint would

not do any good, and granting summary judgment in favor of defendant because claims

about counselor’s statements were inadmissible hearsay). 

Prisoners cannot subvert the PLRA’s exhaustion requirement merely by alleging

prison officials told them an administrative process was futile or unnecessary because

the prisoner sought monetary compensation unavailable through the administrative

process. Hayes v. Rutherman, No. 10-23089-CIV-SEITZ, 2011 WL 3843932, at *5 n.3

(S.D. Fla. July 22, 2011)(“This means that an inmate who is seeking money damages

as relief from defendants in a lawsuit must exhaust all of his administrative remedies

before filing suit, even if money damages are not available as relief through the jail or

prison grievance procedure.”). Therefore, even under Plaintiff’s version of the facts,

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despite her subjective feelings of futility and her request for monetary compensation,

Plaintiff is still required to have exhausted her administrative remedies. To allow

Plaintiff’s case to proceed, based on the facts alleged, would contravene the purpose of

the PLRA and would establish a procedure for prisoners to easily circumvent the

available administrative grievance procedures simply by asserting that a prison official

told the prisoner the administrative process was futile or by seeking monetary damages.

In accordance with the two-step Turner analysis, the Court finds that Plaintiff

failed to exhaust her administrative remedies with regard to her claims against

Defendants Officer Hattan and Dr. Carbonelle and, therefore, Plaintiff’s claims should

be DISMISSED.

IV. Conclusion

For the foregoing reasons it is respectfully RECOMMENDED that the Motion To

Dismiss (Doc. 45) should be GRANTED.

IN CHAMBERS this 3 day of November 2011. 

rd

 s/Gary R. Jones 

GARY R. JONES

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.

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