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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

GILBERTO T ROLON,

Plaintiff,

v. CASE NO. 1:10-cv-243-MP-GRJ

P BUHLER, et al,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 26, Defendants’ motion to dismiss the

complaint for failure to exhaust administrative remedies and as frivolous. On May 18,

2011, the Court directed Plaintiff to respond to the motion, failing which the undersigned

would recommend that this case be dismissed for the reasons stated in the motion. 

Doc. 27. Plaintiff was granted an extension of time until June 21, 2011, to respond to

the motion. As of this date, Plaintiff has failed to respond to the motion to dismiss. 

Accordingly, for the following reasons, it is recommended that the motion to dismiss be

GRANTED.

I. Background

Plaintiff’s claims stem from an injury to his shoulder in January 2009, while

Plaintiff was confined at Mayo Correctional Institution. Plaintiff alleges that Defendants

ignored his complaints of pain and requests for specific treatment, including surgery,

and that he was forced to sign up for sick call, rather than being scheduled for follow-up

treatment and medication. Plaintiff alleges that he was charged co-payments for

necessary sick call visits, in violation of his constitutional rights. 

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Plaintiff alleges that Defendants’ actions with respect to his treatment violated his rights

under the Eighth Amendment, as well as his rights to due process and equal protection. 

Plaintiff seeks injunctive relief as well as monetary compensation. Doc. 1. 

II. Defendant’s Motion to Dismiss

Defendants seek dismissal on the basis that Plaintiff failed to exhaust his

administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42

U.S.C. § 1997e(a). Attached to the motion to dismiss is an affidavit of Florida

Department of Corrections Management Analyst Rebecca Padgham. Padgham attests

that her review of the DOC administrative remedy records reveals that Plaintiff has filed

two grievance appeals relating to medical treatment, both of which were returned

without action as untimely because they were not filed within 15 days of the responses

to Plaintiff’s formal grievances, as required by F.A.C. § 33-103.014(l)(i). Doc. 26, Exh.

A. 

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. “There is no question that exhaustion is mandatory under the PLRA and

that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211

(2002).

Further, the PLRA’s exhaustion requirement contains a procedural default

component; prisoners must comply with the applicable deadlines, or good-cause

standards for failure to comply, contained in the administrative grievance procedures. 

Johnson v. Meadows, 418 F.3d 1152, 1158 (11 Cir. 2005). “‘[A] prisoner who does not

th

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properly take each step within the administrative process has failed to exhaust state

remedies, and thus is foreclosed by § 1997e(a) from litigating. . . . [T]o exhaust

remedies, a prisoner must file complaints and appeals in the place, and at the time, the

prison’s administrative rules require.’” Id. (quoting Pozo v. McCaughtry, 286 F.3d 1022,

1024-25 (7 Cir. 2002)). th

The Florida Administrative Code provides an administrative remedy process for

inmates of facilities within the Florida Department of Corrections. With certain

exceptions, inmates initiate the process by submitting an informal grievance. If the

inmate is dissatisfied with the response to the informal grievance, he can submit a

formal grievance at the institutional level within 15 days of the response to the informal

grievance. If the inmate is dissatisfied with the response to the formal grievance, he

can file an appeal with the Office of the Secretary within 15 days of the response to the

formal grievance.1

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

See Fla. Admin. Code § 33-103.005-008, § 33-103.011(c). 

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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.

In this case, Defendants’ motion and attached affidavit set forth uncontroverted

facts showing that Plaintiff failed to timely appeal the denial of his formal grievances, as

required by the applicable DOC regulations. See Doc. 26 & Exh. A. It is thus clear that

Defendants’ motion to dismiss for failure to exhaust administrative remedies is due to

be granted. See Turner, 541 F.3d 1082.

IV. Conclusion

For the foregoing reasons it is respectfully RECOMMENDED:

That Defendants’ Motion to Dismiss (Doc. 26) should be GRANTED and this

case should be DISMISSED for failure to exhaust administrative remedies.

IN CHAMBERS this 8 day of December 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.

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