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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

COREY A. MCDOWELL BEY,

Plaintiff,

vs. Case No. 4:11cv22-RH/CAS

OFFICER BLAIR, 

and NURSE B. HENNING,

Defendants.

 /

REPORT AND RECOMMENDATION

Defendants Blair and Henning filed a motion to dismiss, doc. 46, arguing

Eleventh Amendment immunity, abuse of the judicial process, and failure to exhaust

administrative remedies. Plaintiff, a pro se prisoner, was provided an opportunity to

submit a response in opposition. Doc. 47. In response, Plaintiff has filed a motion to

strike, motion for leave to amend, and motion requesting the appointment of counsel. 

Doc. 48. Despite the title, Plaintiff's recent filing does address the arguments made in

Defendants' motion to dismiss. 

The only argument that will be addressed in this report and recommendation is

the Defendants' contention that Plaintiff failed to exhaust administrative remedies as to

the claims raised in this case. Plaintiff's allegation in the third amended complaint was

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that on March 9, 2010, Plaintiff was attacked by two inmates and Defendant Blair

observed the attack but failed to help Plaintiff. Blair then took Plaintiff aside and asked

if he wanted to fight one on one with his attacker and Plaintiff declined. Blair then

threatened Plaintiff if he spoke about the incident. Defendant Henning, a nurse, is

alleged to have failed to provide anything to help Plaintiff's pain and suffering. Doc. 29. 

Defendants assert in the motion to dismiss that between March 2010 and January 2011,

Plaintiff filed no grievance appeals concerning the incidents alleged in this case,

although Plaintiff did file twelve other grievance appeals concerning his food diet. Doc.

46, at 6; see also Ex. B (doc. 46-3). Defendants argue that this action must be

dismissed because "Plaintiff failed to grieve either set of allegations raised against Blair

or Henning through the administrative grievance procedure." Id., at 13. 

Plaintiff was advised that failure to file a response may provide sufficient cause to

grant the motion pursuant to N.D. Fla. Loc. R. 7.1(C)(1). Doc. 47. Plaintiff's response,

doc. 48, argues that the grievance process is insufficient and he claims he filed a

grievance against "respondent nurse" but has no way of retaining copies. Doc. 48, at 9. 

In light of the demonstration that Plaintiff filed twelve other grievances and proceeded

with them through all steps of the grievance process,1

 that argument is rejected. 

Plaintiff is well aware that he must exhaust administrative remedies, and that

information is included as a warning on the civil rights complaint form. See doc. 29, at

3. Plaintiff has not shown that he exhausted administrative remedies, even accepting

that he filed one grievance against one of the Defendants. Completion of the

1

 A grievance appeal is the third and final step of the administrative process. 

Plaintiff filed twelve grievance appeals. Doc. 46, Ex. B.

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administrative process requires that Plaintiff file an informal grievance, a formal

grievance, and then a grievance appeal. By Plaintiff's own admission, doc. 48, he did

not so do.

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), quoted in doc. 68, p. 2. 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). 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."). The Court may not consider the adequacy or

futility of administrative remedies, but only the availability of such. Higginbottom v.

Carter, 223 F.3d 1259, 1261 (11th Cir. 2000), citing Alexander, 159 F.3d at 1323. The

administrative process was available to Plaintiff and he used it to complain of other

issues separate from this case. 

A prisoner must also comply with the process set forth and established by the

grievance procedures. See Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999). In

other words, not only must a prisoner exhaust a claim under § 1997e(a), the "PLRA

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exhaustion requirement requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81,

93, 126 S.Ct. 2378, 2387 (2006) (concluding that "proper exhaustion" means complying

with the specific prison grievance requirements, not judicially imposed requirements). 

Even if a grievance is initially denied as untimely, a prisoner must appeal the denial of

the grievance. See Harper v. Jenkin, 179 F.3d 1311 (11th Cir. 1999)(noting Georgia's

inmate grievance procedures allow "the grievance coordinator to waive the time period

for filing a grievance if 'good cause' is shown"); Bryant v. Rich, 530 F.3d at 1373. Under

the Department of Corrections' rules, if Plaintiff filed a grievance and received no

response, Plaintiff could have proceeded to the next level of the grievance process to

exhaust his remedies. Plaintiff did not do so and, thus, he did not exhaust.

Defendants have met their burden in "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).

Factual disputes concerning the exhaustion of administrative remedies may be

decided by the court sitting as fact-finder, "so long as the factual disputes do not decide

the merits and the parties have sufficient opportunity to develop a record." Bryant, 530

F.3d at 1373-74, 1376. Even though evidence may be presented to support or refute a

contention that a prisoner has not exhausted the grievance process, exhaustion is a

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"matter in abatement and not generally an adjudication on the merits," thus, it should be

raised and treated as a motion to dismiss, not a summary judgment motion. Id., at

1374-75. Plaintiff had notice of his obligation to develop a record to show he exhausted

available remedies, but has not provided that showing. Defendants' motion to dismiss

for failure to exhaust administrative remedies should be granted. 

Plaintiff's response, doc. 48, also requests that the Court strike the motion to

dismiss. There is no basis to do so under FED. R. CIV. P. 12(f) and that request is

denied. Furthermore, in light of the finding that Plaintiff did not exhaust, there is no

need to appoint counsel for Plaintiff and no need to submit an amended complaint. 

Moreover, rules of this Court provide that "[w]hen leave is sought to amend a pleading

pursuant to a motion," the Plaintiff must simultaneously submit a copy of the proposed

amended pleading along with the motion. Plaintiff did not submit a copy of a proposed

amended complaint. The motion to amend should, therefore, be denied.

It is respectfully RECOMMENDED that the motion to dismiss, doc. 46, be

GRANTED, that Plaintiff's motion, doc. 48, be DENIED, and this action be DISMISSED

for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997(e) and for

failure to state a claim 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 May 17, 2012.

 S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

Case No. 4:11cv22-RH/CAS

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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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