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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JUDY ANN LINDER

Plaintiff,

v. CASE NO. 4:10-cv-00189-MP-GRJ

BLANCA,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

Physician’s assistant Blanca, Defendant in this Bivens deficient medical care

case, has filed a motion to dismiss Plaintiff’s complaint based upon her failure to

exhaust administrative remedies. (Doc. 33). For the following reasons, it is

recommended that the motion to dismiss be GRANTED.

I. Background

Plaintiff alleges that due to poorly maintained sidewalks at Tallahassee FCI, she

fell and injured her foot and knee in January 2010. Plaintiff alleges that Defendant

would not allow Plaintiff to use the elevator to get an x-ray of her fractured foot, forcing

her to take the stairs instead and thereby aggravating her injury. Plaintiff also alleges

that she did not receive sufficient pain medication, and that an MRI was ordered for her

knee but never performed. Plaintiff seeks $500,000 in damages. (Doc. 21).

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

Defendant filed a limited notice of appearance and motion for judgment as a

matter of law (Doc. 33), seeking dismissal of Plaintiff’s first amended complaint (Doc.

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21). Defendant argues that Plaintiff failed to exhaust her administrative remedies as

required by the Prisoner Litigation Reform Act (PLRA), 42, U.S.C. § 1997e(a). 

Defendant argues that because there is a failure to exhaust, the amended complaint

must be dismissed due to lack of jurisdiction and for failure to state a claim upon which

relief may be granted. (Doc. 33). Attached to the motion to dismiss is an affidavit of

Tallahassee FCI Acting Administrative Remedy Clerk Cassandra Thomas. Thomas

attests that her review of the Federal Bureau of Prisons’ administrative remedy records

reveals that Plaintiff has not filed any remedies since she has been incarcerated. (Doc.

33, Declaration of Cassandra Thomas).

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

to Mr. Brown, a counselor at Tallahassee FCI, three days after her cast was put on. 

Plaintiff alleges that at that time, she had completed a BP-8.5 and BP-9. Plaintiff

alleges that Mr. Brown “told me that I could not file that because it was only for when

Medical wasn’t doing their job and since I had the cast and wheelchair it was obvious

they were. So it went into his wastebasket.” Plaintiff alleges that Mr. Brown then gave

her the paperwork to file a tort claim. (Doc. 34).

III. Discussion

The Prisoner 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,

2011 U.S. Dist. LEXIS 66950, *2-3 (S.D. Ga. 2011) (citing Harris v. Garner, 190 F.3d

1279, 1285-86 (11 Cir. 2005)). Exhaustion is mandatory under the PLRA, and

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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

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 alleged

insufficient medical treatment. 28 C.F.R. 542.14(a); Okpala v. Drew, 248 Fed. App’x 72

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

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director using the form BP-10 was also required following the warden’s decision. 28

C.F.R. 542.15(a). The final administrative step would have been an appeal to the

general counsel on a form BP-11. Id.

Defendant contends that Plaintiff did not complete the administrative remedy

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process as described above. Plaintiff alleges that Mr. Brown, counselor at Tallahassee

FCI, told her that she could not file the grievances because medical had done its job.

(Doc. 34). Plaintiff has offered no sworn evidence in support of her contention that Mr.

Brown inhibited her from properly exhausting her administrative evidence. 

Furthermore, even if, taking Plaintiff’s allegations as true, she did not pursue

administrative remedies because she thought it would be futile based on Mr. Brown’s

statement, 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,

2009 U.S. Dist. LEXIS 125208, *24 (S.D. Ga. 2009) (rejecting 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)

(internal citations omitted). 

While in some instances it may be appropriate for a defendant to be equitably

estopped from asserting a defense of lack of exhaustion if the Defendant rendered the

remedies unavailable, this doctrine is inapplicable to the instant case. Plaintiff’s

response is ambiguous as to whether Plaintiff or Mr. Brown put the forms in the

wastebasket. (Doc. 34). Even if Plaintiff’s response was construed as alleging that Mr.

Brown threw the forms away, Plaintiff admits that Mr. Brown gave her the paperwork to

initiate a lawsuit against Tallahassee FCI, thus detracting from any inference that Mr.

Brown sought to subvert Plaintiff’s attempts at recourse for the wrongdoing she alleges

in her amended complaint. Under Plaintiff’s version of the facts, despite her subjective

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feelings of futility, 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.

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

Defendant Blanca and, therefore, Plaintiff’s claims should be DISMISSED.

IV. Conclusion

For the foregoing reasons it is respectfully RECOMMENDED:

That Defendant Blanca’s Motion For Judgment As A Matter of Law (Doc. 33)

should be GRANTED.

IN CHAMBERS this 30 day of August 2011. 

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 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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