Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

RICKY RONNELL WILLIAMS, 

Plaintiff,

vs. Case No.: 4:10cv290-RH/WCS

CHIEF HEALTH OFFICER DRATLER,

Defendant.

 /

REPORT AND RECOMMENDATION

Dr. Stanley Dratler has filed a motion to dismiss, doc. 26, in response to Plaintiff's

third amended civil rights complaint, doc. 12. Defendant contends that Plaintiff failed to

exhaust administrative remedies prior to filing this case as required by federal law. 

Defendant notes the complaint was filed in July, 2010, but Plaintiff did not begin the

process of exhausting administrative remedies until November, 2010. Doc. 26, pp.3-5. 

Plaintiff was directed to submit his response to the motion, doc. 27, and he has filed a

response, doc. 28, which he titled as a "motion not to dismiss" his case, and an

addendum, doc. 29, to that response, which is also titled as a motion not to dismiss this

case. Defendant's motion to dismiss is ready for a ruling.

Case 4:10-cv-00290-RH-WCS Document 31 Filed 06/21/11 Page 1 of 5
Page 2 of 5

Plaintiff's complaint alleges that Defendant Dratler, the former Chief Health

Officer at Taylor Correctional Institution, was deliberately indifferent to Plaintiff's serious

medical needs. Doc. 12. Plaintiff alleges that on February 26, 2010, the Defendant

should have given Plaintiff a restriction pass so Plaintiff would not have "further injured

himself by pushing laundry carts . . ." Id., at 5. Plaintiff contends that after Dr. Dratler

examined him, "something should have been done." Id. Plaintiff contends he was in

excruciating pain, and he "should have received the necessary medical treatment . . . ." 

Id., at 5-6. Plaintiff states that he must now depend on a hernia support belt, and

Ibuprofen, which gives him temporary relief. Id. Plaintiff contends that he was

subjected to "improper denial or delay of treatment, without" justification and Defendant

was deliberately indifferent to his health needs. 

Defendant notes in the motion to dismiss that Plaintiff filed the complaint on July

7, 2010, when he provided it to prison officials for mailing. Doc. 26, p. 3. The complaint

was entered on the docket on July 12, 2010. Docs. 1, 2. Defendant identifies the first

informal grievance that Plaintiff filed about not receiving medical restriction passes on

November 1, 2010. Doc. 26, p. 3. The informal grievance was denied a few days later. 

Plaintiff filed a formal grievance on November 16, 2010, in which he alleged that Dr.

Dratler would not give him passes for his hernia. Id., at 4. The formal grievance was

denied on November 29, 2010. Id. Plaintiff filed a grievance appeal on December 8,

2010. Id., at 4. Defendant states that the December, 2010, grievance appeal is the

only one "in the Department's records concerning Plaintiff's hernia." Id., at 5. Because

those grievances were submitted after the initiation of this lawsuit, Defendant contends

dismissal is appropriate.

Case No. 4:10cv290-RH/WCS

Case 4:10-cv-00290-RH-WCS Document 31 Filed 06/21/11 Page 2 of 5
Page 3 of 5

Plaintiff states in his first response, doc. 28, that he "had no knowledge that he

had to do an institution remedy." Id., at 2. Plaintiff argues that Defendant Dratler

should have known that Plaintiff needed restricted medical passes to prevent further

injury. Id., at 2-3. Plaintiff contends that the grievances "are irrelevant to this litigation." 

Id., at 4.

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). The exhaustion requirement of § 1997e(a) is not

jurisdictional, however. Bryant v. Rich, 530 F.3d 1368, 1374 n.10 (11th Cir.), cert.

denied, 129 S.Ct. 733 (2008) (citing Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378,

2392, 165 L.Ed.2d 368 (2006)). 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."). Essentially, the exhaustion requirement acts as a "pre-condition to suit"

which may not be waived. Alexander, 159 F.3d at 1326. Even where an inmate seeks

only monetary damages in a civil rights case, he must complete the prison

Case No. 4:10cv290-RH/WCS

Case 4:10-cv-00290-RH-WCS Document 31 Filed 06/21/11 Page 3 of 5
Page 4 of 5

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).

Defendants "bear the burden of proving that the plaintiff has failed to exhaust his

available administrative remedies." Turner v. Burnside, 541 F.3d 1077, 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."). 

Defendants have carried that burden in this case, and Plaintiff's response

acknowledges that he did not exhaust administrative remedies. Ignorance of that

requirement is irrelevant since the court cannot waive the requirement. Moreover, the

complaint form advises all litigants that a case is subject to dismissal if the prisoner did

not exhaust administrative remedies prior to filing the case. Doc. 1, p. 3, ¶ III. There is

Case No. 4:10cv290-RH/WCS

Case 4:10-cv-00290-RH-WCS Document 31 Filed 06/21/11 Page 4 of 5
Page 5 of 5

no dispute here that Plaintiff failed to exhaust his claim prior to filing. Thus, there is no

option and the Defendant's motion to dismiss, doc. 26, must be granted. 

Accordingly, it is RECOMMENDED that Defendant's motion to dismiss, doc. 26,

be GRANTED, that Plaintiff's motions not to dismiss this case, docs. 28 and 29, be

DENIED, that this case 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 June 21, 2011.

 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.

Case No. 4:10cv290-RH/WCS

Case 4:10-cv-00290-RH-WCS Document 31 Filed 06/21/11 Page 5 of 5