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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

SYLVIA SHARP,

Plaintiff,

vs. Case No. 4:10cv374-RH/WCS

FEDERAL BUREAU OF PRISONS, 

et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, filed an amended civil rights action on September 23,

2010, doc. 6, and service was directed on the seven named Defendants on November

16, 2010. Doc. 12. Service was returned unexecuted on three of the Defendants

(Butts, Caldwell, and Hanley), doc. 14, and stating that two of those Defendants have

retired and Defendant Butts was transferred. Id. An order was entered on January 21,

2011, directing the Warden to advise whether a last known address for those three

Defendants could be provided in confidence to the United States Marshals service. 

Doc. 19. No response to that order was filed, but a limited notice of appearance has

been filed, and all seven Defendants filed a motion for judgment as a matter of law in

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favor of the Defendants, asserting that Plaintiff failed to exhaust administrative

remedies. Doc. 24. 

An order was entered on March 14th directing Plaintiff to respond to the motion. 

Doc. 25. Plaintiff was given until April 15, 2011, to respond and directed that if she did

not agree that she had failed to exhaust administrative remedies, she should submit

copies of all grievances she filed concerning the events raised in this case. Id. If

Plaintiff agrees that she did not exhaust administrative remedies, Plaintiff may simply

file a notice of voluntary dismissal under FED. R. CIV. P. 41. Id. Finally, Plaintiff was

advised that pursuant to the local rules of this Court, failure to file a response may be

sufficient cause to grant the unopposed motion. N.D. Fla. Loc. R. 7.1(C)(1). Id.

Plaintiff has not filed a response and the deadline for doing so has passed.

The claims at issue in this case are that Plaintiff was attacked by another inmate

and that Defendants did not protect her, despite her having advised the Defendant

prison officials about the threats made against Plaintiff by the inmate who assaulted her. 

Doc. 1. Defendants have stated that "Plaintiff did not file any administrative claims1

concerning the alleged inactions by the Defendants or the attack on April 1, 2007." Doc.

1

 Plaintiff is housed within the Bureau of Prisons [hereinafter "B.O.P."], which has

an administrative grievance program. See 28 C.F.R. § 542.10 (2009). The B.O.P.

regulations provide that an inmate "shall first present an issue of concern informally to

staff . . . ." 28 C.F.R. § 542.13(a). The normal grievance process requires the filing of

an informal grievance, § 542.13, and a formal grievance, § 542.14, at the institutional

level. The "deadline" for filing one of these grievances at the institution is "20 calendar

days following the date on which the basis for the Request occurred." § 542.14(a). If

the grievance is denied at the institution, the prisoner may file an appeal to the regional

level within 20 days of the date the Warden signed the response, followed by an appeal

to the General Counsel at the central office within 30 days of the date that the Regional

Director signed the response. § 542.15. 

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24, p. 2. Plaintiff's failure to respond to this argument leads to the conclusion that

Plaintiff agrees with this statement of fact.

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. 24, 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); Woodford v. Ngo, 548

U.S. 81, 126 S.Ct. 2378, 2382, 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.").

Defendants have met their "burden of proving that the plaintiff has failed to

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

1082 (11th Cir. 2008). Plaintiff has not responded to the motion, doc. 24, and the only

conclusion to be reached on this evidence, therefore, is that the motion be granted and

this case be dismissed. Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir.), cert.

denied, 129 S.Ct. 733 (2008) (finding that exhaustion is a "matter in abatement and not

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generally an adjudication on the merits," thus, it should be raised and treated as a

motion to dismiss). Defendants' motion should be granted.

In light of the foregoing, it is respectfully RECOMMENDED that Defendants'

motion for judgment as a matter of law, doc. 24, be GRANTED and 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 May 5, 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.

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