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Rodriguez v. Unknown Doctors Under Contract With Florida Dept. of Corrections

United States District Court, N.D. Florida, Pensacola Division

August 5, 2019

ANDRES RODRIGUEZ, Plaintiff,
v.
UNKNOWN DOCTORS UNDER CONTRACT WITH FLORIDA DEPT. OF CORRECTIONS, et al., Defendants.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE

         This case is before the Court on Centurion of Florida, LLC's (“Centurion”) Motion to Dismiss Amended Complaint. ECF Doc. 41. Plaintiff did not respond in opposition. The motion has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(C). Considering Centurion's motion to dismiss and the relevant law, the undersigned recommends that the motion be GRANTED and this case DISMISSED due to Plaintiff's failure to exhaust his administrative remedies.

         I. Background

         Plaintiff is an inmate of the Florida Department of Corrections (“FDOC”) currently confined at Apalachee Correctional Institution (“ACI”). Briefly stated, Plaintiff alleges his Eighth Amendment rights were violated because he received inadequate medical treatment while in FDOC custody. ECF Doc. 19. As relief, he seeks compensatory and punitive damages. Id. at 10.

         II. Discussion

         Centurion argues Plaintiff failed to exhaust his administrative remedies before filing this action on May 31, 2016.[1] The Prison Litigation Reform Act (“PLRA”) provides 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). Exhaustion of all available administrative remedies is a mandatory precondition to suit. See Booth v. Churner, 532 U.S. 731, 739 (2001). The 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.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The requirement is not subject to waiver by a court, or futility or inadequacy exceptions. See Booth, 532 U.S. at 741 n.6. Moreover, the PLRA requires “proper exhaustion” so that the agency has an opportunity to address the issues on the merits. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). A court must dismiss an action if satisfied the inmate failed to properly exhaust his available administrative remedies before filing suit. See Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000).

         The grievance procedures promulgated by the FDOC generally require an inmate to: (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 Office of the Secretary. See Fla. Admin. Code r. 33-103.005 to 33-103.007; see also Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218 (11th Cir. 2010). For complaints regarding medical treatment, an inmate may bypass the informal grievance step. See Fla. Admin. Code r. 33-103.005(1).

         The defense of failure to exhaust should be treated as a matter in abatement. See Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). “This means that procedurally the defense is treated ‘like a defense for lack of jurisdiction,' although it is not a jurisdictional matter.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (quoting Bryant, 530 F.3d at 1374). Because exhaustion is a matter in abatement, “it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.” Bryant, 530 F.3d at 1374-75 (citation and internal quotation omitted).

         Deciding a motion to dismiss for failure to exhaust administrative remedies involves two steps. See Turner, 541 F.3d at 1082. “First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the 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. (citing Bryant, 530 F.3d at 1373-74).

         “If the complaint is not subject to dismissal at the first step, where the plaintiff's allegations are assumed to be true, the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.” Id. (citing Bryant, 530 F.3d at 1373-74, 1376). “The defendants bear the burden of proving that the plaintiff has failed to exhaust his available administrative remedies.” Id. (citing Jones v. Bock, 549 U.S. 199, 216 (2007)). “Once the court makes findings on the disputed issues of fact, it then decides whether under those findings the prisoner has exhausted his available administrative remedies.” Id. at 1083.

         Although Plaintiff states in his amended complaint that he “grieved these issues to the Warden of ACI, as well as, to the Secretary of the Florida Department of Corrections; to no avail, ” (ECF Doc. 19 at 8), Centurion submitted as an exhibit to its motion “copies of the grievances submitted by the Plaintiff for the times material to the Amended Complaint” (ECF Doc. 41 at 7). A review of the submitted grievances shows Plaintiff did not file a formal grievance at the institutional level to the Warden or Assistant Warden or an appeal to the Secretary of the FDOC.[2] ECF Doc. 41-1 at 1-5.

         Plaintiff has not challenged Centurion's argument regarding exhaustion. On March 21, 2019-several days after Centurion filed its motion to dismiss-the Court entered an order giving Plaintiff fourteen (14) days to file a response to the motion (ECF Doc. 42), but Plaintiff failed to do so. After reviewing Centurion's motion, and in light of Plaintiff's status as a pro se litigant and the fact he executed his amended complaint under penalty of perjury, the undersigned entered a second order on July 18, 2019, directing Plaintiff to show cause within fourteen (14) days why this action should not be recommended for dismissal due to his failure to exhaust his administrative remedies. ECF Doc. 43. The July 18 Order expressly warned Plaintiff that his failure to comply with the order would result in a recommendation of dismissal for failure to exhaust his administrative remedies or failure to prosecute this action. Id. at 3. Despite this warning, Plaintiff has not responded.[3]

         Accordingly, it is RECOMMENDED:

         1. That Defendant Centurion of Florida, LLC's Motion to Dismiss ...


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