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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WILLIE JAMES MITCHUM,

Plaintiff,

vs. Case No. 4:11cv273-MP/WCS

A. KIRKLAND, 

AND DR. BLANKENSHIP,

Defendants.

 /

REPORT AND RECOMMENDATION

Summons was returned executed for Defendant Blankenship. Doc. 27. The

Defendant was served on October 27, 2011, and a response was due 21 days later,

which was November 17, 2011. See doc. 19, p. 2. Nothing was filed on behalf of

Defendant Blankenship and that Defendant is in default.

Nevertheless, Defendant Kirkland had filed a motion to dismiss. Doc. 25. The

motion seeks dismissal because Plaintiff failed to disclose all prior litigation and

because he failed to properly exhaust administrative remedies as required by 42 U.S.C.

§ 1997e(a). Id. Plaintiff was directed to file a response in opposition to that motion,

doc. 26, and his response is now before me. Doc. 29. 

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Plaintiff contends that he did not intentionally fail to disclose his prior litigation,

but states that because he is illiterate, he "could not understand what the form meant." 

Doc. 29, p. 2. Plaintiff understood the questions on the complaint form as only

requesting information on whether he had filed a prior case "pertaining to issues that are

of the exact same nature" or issues. Id. Plaintiff acknowledges that he submitted

"multiple sick-call requests" and as shown by attachments to his complaint, submitted

an informal grievance, then submitted a formal grievance to the Department of Inmate

Grievances, Tallahassee, Florida." Id., at 1-2. Plaintiff states that his formal grievance

was dated received on March 2, 2011, and it was denied on March 7, 2011. Doc. 29, p.

2. Plaintiff also argues he "was entitled to pass the Formal Grievance procedure" and

file a grievance of an emergency nature. Id., at 3. 

Plaintiff's grievances

The motion to dismiss provides evidence that Plaintiff filed an "administrative

appeal logged number 11-6-06700 regarding alleged treatment of his constipation,

bloody stools, and spitting up blood on March 2, 2011." Doc. 25, p. 2; see exhibits 1

and 2. Plaintiff's appeal was not in compliance with the rules because he either failed to

provide the Bureau of Grievance Appeals with a copy of the formal grievance which he

was appealing, or he failed to provide "an acceptable reason for by-passing that level of

the grievance procedure." Id. That grievance appeal was returned to Plaintiff without

action and he was advised to resubmit his grievance in compliance with Chapter 33-

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103. Plaintiff failed to submit any other grievance appeals concerning those issues, but

instead, initiated this civil rights action on June 3, 2011. Doc. 1.1

Exhaustion

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 for all

prisoners bringing a claim pursuant to § 1983. 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)). The court lacks discretion to waive this requirement or

provide a continuance of prisoner litigation if 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),

1

 When Plaintiff initiated this case, doc. 1, he submitted numerous sick call

requests and inmate requests as attachments to his complaint. Doc. 1-2. Also attached

is Plaintiff's grievance appeal to the Secretary's Office, and the denial of that appeal. 

Doc. 1-2, pp. 4-6.

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citing Alexander, 159 F.3d at 1323. Even where an inmate seeks only monetary

damages in a civil rights case, he must complete the prison 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)2.

Furthermore, clearly established law requires that prisoners 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 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. 

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

2

 The Court further rejected the view of the Sixth Circuit when it concluded that

"nothing in the statute [§ 1997e(a)] imposes a 'name all defendants' requirement."

Jones v. Bock, 549 U.S. at 217-219, 127 S.Ct. at 922-923 (concluding "that exhaustion

is not per se inadequate simply because an individual later sued was not named in the

grievances."). 

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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."). Here, Defendants have met their burden and shown3 that

Plaintiff did not exhaust administrative remedies prior to initiating this case. Plaintiff was

advised of his obligation to respond to the motion to dismiss and demonstrate

exhaustion if he could. Plaintiff has not been able to do so and, indeed, concedes he

did not properly exhaust administrative remedies. 

Plaintiff is housed within the Florida Department of Corrections which has an

administrative grievance program, FLA. ADMIN. CODE R. 33-103. There are three steps

that are required to exhaust a claim in the grievance process: (1) an informal grievance;

(2) a formal grievance; and (3) a grievance appeal. 

3

 Even though evidence may be presented to support or refute a contention that

a prisoner has not exhausted the grievance process, exhaustion is a "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. Bryant, 530 F.3d

at 1374-75. The Court must assure that a prisoner-plaintiff has fair notice of the

opportunity to develop a record to show he or she has exhausted available remedies. 

When motions to dismiss are based on issues not enumerated under Rule 12(b), then

Rule 43(c) governs "which permits courts to hear evidence outside of the record on

affidavits submitted by the parties." Bryant, 530 F.3d at 1377, n.16.

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Plaintiff did not provide evidence of having filed either an informal grievance or a

formal grievance. The only evidence presented here and, therefore, undisputed, is that

Plaintiff filed an appeal on or about March 2, 2011, complaining of his health issues. 

Doc. 1-2, p. 4. That appeal was denied because it did not comply with the rules. Id., at

6. Plaintiff did not correct the deficiency and his claims are unexhausted. Because

Plaintiff did not properly exhaust administrative remedies, this Court has no choice but

to grant the motion to dismiss. 

In light of the foregoing, it is respectfully RECOMMENDED that the motion to

dismiss, doc. 26, be GRANTED and Plaintiff's complaint, doc. 1, 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 November 30, 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. 4:11cv273-MP/WCS

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