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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

PATRICK O. HAMPTON,

Plaintiff,

v. CASE NO. 1:10-cv-215-MP-GRJ

P. BUHLER, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Pending before the Court is the Motion To Dismiss filed by Defendants P. Buhler

and Lubin based upon Plaintiff’s failure to exhaust his administrative remedies. (Doc. 1

13.) Plaintiff has filed a response to the motion. (Doc. 16.) For the following reasons,

it is RECOMMENDED that the motion to dismiss be GRANTED.

I. Background

Plaintiff is a prisoner in the custody of the Florida Department of Corrections

(“FDOC”). According to the factual allegations in the Complaint, Plaintiff was working in

a ditch on a construction site at Mayo Correctional Institution (“Mayo CI”) in Mayo,

Florida on December 9, 2009 when the ditch collapsed. (Doc. 1.) The dirt in the ditch

had been restrained only by two pieces of thin plywood at the time it collapsed on

Plaintiff. Plaintiff was covered in dirt up to his chest and was pinned against the ditch’s

Defendants Meyer and Given have not yet been served because they no longer work for the

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Florida Department of Corrections. (Doc. 10.) Because the Court is recommending dismissal of this suit

based upon Plaintiff’s failure to exhaust his administrative remedies, further efforts to serve process upon

Defendants Givens or Meyer are unnecessary.

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wall with his body at an angle and 1800-2000 pounds of dirt pressing against him. This

incident resulted in numbness and pain in Plaintiff’s left knee, leg and toes and his right

foot. The next morning Plaintiff visited medical and was scheduled for X-rays by

Defendant P. Buhler, a Registered Nurse at Mayo CI. Plaintiff states he was examined

by a X-ray technician that same day, but was not informed as to the results of the Xrays and instead he was given crutches to use for a period of 14 days. No follow up

appointment was scheduled at that time.

Over the course of the next several days, Plaintiff reported to medical again

several times, each time reporting he was suffering severe pain in his back. He

received little or no medical treatment in response to these complaints and even his

efforts to enlist the correctional officer in charge of construction projects to assist him in

getting medical treatment failed. Plaintiff was forced to turn in his crutches on

December 22, 2009 and was finally seen by a doctor on December 31, 2009. Three

weeks later, he was examined by a specialist in an undetermined specialty and

diagnosed with a severe back ailment. The specialist recommended Plaintiff be further

examined by a back specialist. Plaintiff alleges the Defendants violated the Eighth

Amendment’s prohibition against cruel and unusual punishment by exhibiting deliberate

indifference to both his serious medical needs as well as to his personal safety. Plaintiff

seeks $20,000 in monetary damages from each Defendant.

II. The Defendants’ Motion to Dismiss and Plaintiff’s Response

Defendants Buhler and Lubin filed a motion to dismiss (Doc. 13), seeking

dismissal of Plaintiff’s Complaint. Defendants Buhler and Lubin argue Plaintiff failed to

exhaust his administrative remedies as required by the Prison Litigation Reform Act

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(PLRA), 42, U.S.C. § 1997e(a) and therefore because Plaintiff failed to exhaust the

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

which relief may be granted.2

Attached to the motion to dismiss is an affidavit of Rebecca Padgham, who is

employed as a Management Analyst I with the FDOC’s Bureau of Inmate Grievance

Appeals. (Doc. 13 Exh. A.) Ms. Padgham attests that her review of the FDOC’s

grievance records reflects Plaintiff has filed four grievance appeals, two in 2011

pertaining to property loss, one in May 2010 relating to medical treatment, and one in

June 2010 relating to his work assignment. In his response to the Defendants’ motion

to dismiss, Plaintiff provided little more than a factual description of the incident

described in the Complaint. (Doc. 16.) Plaintiff did not address the issue of exhaustion

in his response. 

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,

Defendants Buhler and Lubin also contend the Complaint should be dismissed for failure to

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state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and because the Defendants are entitled to

sovereign immunity under the Eleventh Amendment to the extent Plaintiff intended to sue them in their

official capacities. The Court does not need to address either of these grounds, however, because this

case is due to be dismissed for Plaintiff’s failure to exhaust his administrative remedies.

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211 (2002). To exhaust administrative remedies in Florida, a prisoner in FDOC custody

must complete the administrative review process established under regulations

promulgated by the Secretary of the FDOC. FLA. STAT. ANN. § 944.09(1)(d) (“The

department has authority to adopt rules ... to implement its statutory authority. The rules

must include rules relating to ... [g]rievance procedures which shall conform to 42

U.S.C. § 1997e.”). Under the administrative review process established by the

Secretary of the FDOC, a prisoner must: (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 Secretary of the FDOC. Chandler v. Crosby, 379 F.3d 1278,

1288 (11 Cir. 2004)(citing FLA. ADMIN. CODE ANN. §§ 33-103.001 to -103.019). Once a th

prisoner has completed this process, he then has properly exhausted his administrative

remedies. Id.

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

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factual issues related to exhaustion.” Id.

Defendants Lubin and Buhler contend that Plaintiff did not complete the required

administrative remedy process described above. Plaintiff filed a number of informal

grievances related to the events of December 9, 2009, when the ditch collapsed on

him. (Doc. 1 Exhs. 1-11.) However, according to FDOC records Plaintiff only has filed

four grievance appeals during his time in FDOC custody. (Doc. 13 Exh. A.) Two of the

grievance appeals were filed in 2011 but neither of them concerned the events Plaintiff

describes in his Complaint and instead relate to property loss. (Id.) With respect to the

two remaining grievances, one concerned medical treatment and the other concerned a

work assignment. (Id.) 

Plaintiff filed an informal medical grievance on January 18, 2010 in which he

complained about medical co-payments that were taken from his inmate account for

some of the visits he made to medical in the wake of the ditch collapse on December 9,

2009. (Doc. 1 at 16.) The response to this informal grievance was the refund of the copays based upon a correctional officer’s verification of Plaintiff’s involvement in the ditch

collapse. (Id.) Plaintiff filed formal grievance #1001-212-056 on January 28, 2010 to

the Warden of Mayo CI. (Doc. 1 at 32-33. ) He described his grievance as a medical

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grievance, described the December 9, 2009 incident when the ditch collapsed on him

and then complained he had not received appropriate or timely medical treatment. (Id.) 

On February 4, 2010, his grievance was denied by the Warden, who noted a negative

X-ray of Plaintiff’s left knee taken the day after the ditch collapse as well as a future

Plaintiff included Exhibit numbers for the attachments to his Complaint, but did not separately

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number the pages in each Exhibit, so page number references for the Exhibits are to the page of the

Complaint on which the applicable Exhibit appears.

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doctor’s appointment that had been previously scheduled for Plaintiff. (Doc. 1 at 34.) 

Plaintiff filed grievance appeal #10-6-1514 on May 10, 2010 to appeal the denial of this

grievance. (Doc. 13 Exh. A at 2.) This grievance appeal was returned without action

on May 17, 2010 for Plaintiff’s failure to provide a copy of the formal grievance to which

the appeal related or a valid reason for bypassing the formal grievance level of the

administrative process. (Id. at 2.) Defendants also point out in their motion to dismiss

that this grievance appeal also was untimely pursuant to the applicable regulation,

which requires a prisoner to appeal the response to a formal grievance within 15 days

of the warden’s response. FLA. ADMIN. CODE ANN. § 33-103.011(1)(c)(“Grievance

Appeals to the Office of the Secretary - Must be received within 15 calendar days from

the date of the response to the formal grievance.”). Plaintiff filed grievance appeal #10-

6-1514 on May 10, 2010, more than three months after the Warden of Mayo CI denied

his medical grievance. This medical grievance was thus untimely and, accordingly, the

claims in that grievance were not properly exhausted by Plaintiff.

On April 29, 2010 Plaintiff filed an informal grievance seeing a job change in

which he alleged that he still had the injuries from the ditch collapse. (Doc. 1 at 24.) 

The response by the FDOC on April 30, 2010 was that medical evaluation had not

shown any work restriction and Plaintiff was further advised to discuss his limitations

with his supervisor. (Id.) Plaintiff filed formal grievance #1006-212-024 to the Warden

of Mayo CI on June 5, 2010. (Doc. 1 at 37-46.) In this grievance, Plaintiff complained

he had been placed in an inappropriate job assignment considering the injuries he

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suffered when the ditch collapsed on December 9, 2009. (Id.) This job assignment 4

formal grievance was denied by the Warden of Mayo CI on June 8, 2010 on the

grounds Plaintiff was currently assigned to a job in which he could take breaks as often

as he liked and because medical had not limited his work in any way. (Id. at 47.) 

Plaintiff then timely filed grievance appeal #10-6-19323 on June 18, 2010 to appeal the

denial of his job assignment grievance. (Doc 1 at 48; Doc. 13 Exh. A at 2.) 

Plaintiff did not exhaust his remedies with respect to the Eight Amendment

claims advanced against the Defendants in his Complaint. It is evident Plaintiff did not

have any problems in understanding the first step of the administrative process set forth

by the FDOC, as Plaintiff included copies of a number of informal grievances as

attachments to his Complaint. (Doc. 1 Exhs. 1-11.) Plaintiff also had little difficulty with

the second step in the process, as he also included as attachment to the Complaint a

number of formal grievances addressed to the Warden of Mayo FCI. (Id. Exh. 12.) 

The critical problem, however, is that Plaintiff did not properly complete the third

step in the administrative process by submitting a timely grievance appeal to the

FDOC’s Bureau of Inmate Grievance Appeals with respect to any of the Eighth

Amendment claims against the Defendants to this lawsuit. As discussed above,

although Plaintiff appealed the denial of one formal grievance related to medical issues,

this appeal was untimely and would thus not be administratively exhausted. The one

Although Defendants Buhler and Lubin do not address this in their motion to dismiss, it appears

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Plaintiff did not file a timely formal grievance after the denial of this informal grievance. The applicable

regulation requires a prisoner to file a formal grievance within 15 days of the official response to the

related informal grievance. FLA. ADMIN. CODE ANN. § 33-103.011(1)(b). Plaintiff received a response to his

informal grievance on April 30, 2010 and did not file his related formal grievance until June 5, 2010, well

outside the 15 day period.

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grievance related to the incident described in the Complaint that Plaintiff successfully

exhausted related to his job assignment and not to the Eighth Amendment claims in the

Complaint. (Doc. 1 at 37-46.) Accordingly, Plaintiff has failed to properly exhaust the

claims alleged in the Complaint.

Accordingly, in accordance with the two-step Turner analysis, the Court

concludes that Plaintiff has failed to exhaust his administrative remedies with regard to

his claims against the Defendants and, therefore, Plaintiff’s claims should be

DISMISSED.

IV. Conclusion

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

Dismiss (Doc. 13) should be GRANTED and this case should be DISMISSED.

IN CHAMBERS this 7 day of November 2011. 

th

 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.

Case No: 1:10-cv-215-MP-GRJ

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