United States District Court, M.D. Florida, Ocala Division
G. BYRON UNITED STATES DISTRICT JUDGE.
an inmate at the Coleman Federal Correctional Complex,
alleges in his pro se complaint that Defendants
acted with deliberate indifference to his medical care, in
violation of the Eighth Amendment (Doc. 1). The Warden has
moved to dismiss Plaintiff's case, alleging that he has
failed to exhaust his administrative remedies under the
Prison Litigation Reform Act (PLRA) (Doc. 14). Plaintiff has
filed a response to the motion to dismiss (Docs 16). For the
reasons discussed below, Defendant's motion to dismiss is
due to be granted.
FOR LEAVE TO PROCEED IN FORMA PAUPERIS
motion for leave to proceed in forma pauperis (Doc.
2) is DENIED. Plaintiff's initial partial filing fee
under the PLRA would be $645.41, which exceeds the filing fee
of $400.00. (Doc. 10.) His average monthly deposits for the
six months prior to his suit were $3, 227.07 and his current
balance is $1571.59. He is hereby assessed the full filing fee
of $400.00. The Clerk is directed to send a copy of this
Order to the Supervisor, Inmate Accounts, at Plaintiff's
current place of incarceration.
REQUIREMENT OF THE PLRA
PLRA, at 42 U.S.C. § 1997e, reads:
(a) Applicability of Administrative Remedies. No 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
is required to exhaust his administrative remedies before
filing suit, regardless of the relief offered through
administrative procedures. Alexander v. Hawk, 159
F.3d 1321, 1325 (11th Cir. 1998).
Bureau of Prisons has a three-level administrative remedy
process if informal resolution procedures fail to achieve the
inmate's desired results. See 28 C.F.R. §
542.10, et seq. The administrative remedy process is
begun by filing a Request for Administrative Remedy at the
institution where the inmate is incarcerated. If the
inmate's complaint is denied, he may file a Regional
Appeal with the Regional Office for the geographic region in
which the inmate is confined. If the Regional Office denies
relief, the inmate can appeal to the Office of General
Counsel. Proper exhaustion requires the completion of all
three steps of review. Irwin v. Hawk, 40 F.3d 347,
349, n. 2 (11th Cir. 1994) (“An inmate has not fully
exhausted his administrative remedies until he has appealed
through all three levels.”); Jones v. Bock,
549 U.S. 199, 211 (2002) (unexhausted claims are not
has presented the sworn declaration of Jeanie Register, Legal
Assistant Coleman. (Doc. 14, Exh. 2). Register attests that
after reviewing BOP records, Plaintiff filed only one
administrative remedy while in BOP Custody- a July 6, 2012,
remedy appealing a disciplinary hearing that was filed prior
to the initiation of this suit in 2019. That remedy was
rejected and Plaintiff did not pursue any further steps in
the BOP's process. Plaintiff has not filed any
administrative remedies related to the present suit. In his
response, he attaches two “Inmate Request to
Staff” forms complaining of tooth pain dated April 30
and May 14, 2019. (Doc. 16.) He also includes an
“Informal Resolution Form” dated May 21, 2019.
(Doc. 16, pp. 20, 21, 27.) This may show that Plaintiff
initiated the first step in the exhaustion process at or near
the time of filing suit (his complaint was received May 16,
2019), he did not exhaust his administrative remedies
prior to filing suit, as required by the PLRA.
Therefore, this case is due to be dismissed.
unexhausted claims are not permitted, Defendant's motion
to dismiss (Doc. 14) is GRANTED. This case is DISMISSED
without prejudice for the failure to exhaust administrative
remedies. The Clerk is directed to enter ...