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Presley v. Dunn

United States District Court, M.D. Alabama, Northern Division

January 12, 2017

GEORGE WALTER PRESLEY, #158 155, Plaintiff,




         In this 42 U.S.C. § 1983 action, Plaintiff, a state inmate and a practitioner of Native American Spirituality, claims Defendant violated his rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by forcing him to comply with the Alabama Department of Corrections' (“ADOC”) grooming policy and to remain clean shaven with a regulation haircut.[1] Plaintiff seeks declaratory and injunctive relief for the alleged violations of his constitutional rights and costs of this proceeding. Doc. 4.

         Defendant filed a special report and supporting evidentiary materials addressing Plaintiff's claims for relief. In these documents, Defendant denies acting in violation of Plaintiff's constitutional rights. In addition, Defendant asserts that the amended complaint is due to be dismissed because prior to filing this cause of action, Plaintiff failed to properly exhaust an administrative remedy available to him regarding the claims in the amended complaint. Doc. 20 at 2-3, Exhs. B, C. Defendant bases his exhaustion defense on Plaintiff's failure to file a request for religious assistance from the Religious Activities Review Committee as permitted by Administrative Regulation # 461. Id. at 3, Exh. C.

         On August 25, 2016, the court granted Plaintiff an opportunity to file a response to Defendant's report in which he was advised to “specifically address Defendant's assertion[] that ... [h]is claims are due to be dismissed because he failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a)” prior to filing this federal civil action. Doc. 21 at 1 (footnote omitted). Although the court granted Plaintiff an extension to file a response (Doc. 22), he has not done so within the time allowed by the court.

         “[A]n exhaustion defense . . . is not ordinarily the proper subject for a summary judgment [motion]; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.” Bryant v. Rich, 530 F.3d 1368, 1374-1375 (11th Cir. 2008) (internal quotations omitted); Trias v. Fla. Dep't of Corr., 587 F.App'x 531, 534 (11th Cir. 2014) (District court properly construed defendant's “motion for summary judgment as a motion to dismiss for failure to exhaust administrative remedies. . . .”). Therefore, the court will treat Defendant's report as a motion to dismiss.


         In addressing the requirements of 42 U.S.C. § 1997e regarding exhaustion, the Eleventh Circuit has

recognized that ‘[t]he plain language of th[is] statute makes exhaustion a precondition to filing an action in federal court.' Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (per curiam) (quoting Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir. 1999)). This means that ‘until such administrative remedies as are available are exhausted, ' a prisoner is precluded from filing suit in federal court. See Id. (affirming dismissal of prisoner's civil rights suit for failure to satisfy the mandatory exhaustion requirements of the PLRA); Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999) (‘reaffirm[ing] that section 1997e(a) imposes a mandatory requirement on prisoners seeking judicial relief to exhaust their administrative remedies' before filing suit in federal court), modified on other grounds, 216 F.3d 970 (11th Cir. 2000) (en banc); Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999) (holding that under the PLRA's amendments to ' 1997e(a), ‘[a]n inmate incarcerated in a state prison ... must first comply with the grievance procedures established by the state department of corrections before filing a federal lawsuit under section 1983'); Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999) (per curiam) (affirming dismissal of prisoner's civil suit for failure to satisfy the mandatory exhaustion requirements of ' 1997e(a)); Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir. 1998) (affirming dismissal of prisoner's Bivens action under ' 1997e(a) for failure to exhaust administrative remedies prior to filing suit in federal court).

Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1279 (11th Cir. 2001). The Court has therefore determined that “the question of exhaustion under the PLRA [is] a ‘threshold matter' that [federal courts must] address before considering the merits of the case. Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004). Because exhaustion is mandated by the statute, [a court has] no discretion to waive this requirement. Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir.1998).” Myles v. Miami-Dade Cty. Corr. & Rehab. Dep't, 476 F.App'x. 364, 366 (11th Cir. 2012). Based on the foregoing, the court will “resolve this issue first.” Id.

         “When deciding whether a prisoner has exhausted his remedies, the court should first consider the plaintiff's and the defendants' versions of the facts, and if they conflict, take 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.' Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (citing Bryant, 530 F.3d at 1373B74). If the complaint is not subject to dismissal at this step, then the court should make ‘specific findings in order to resolve the disputed factual issues related to exhaustion.' Id. (citing Bryant, 530 F.3d at 1373-74, 1376).” Myles, 476 F.App'x at 366. Consequently, a district court “may resolve disputed factual issues where necessary to the disposition of a motion to dismiss for failure to exhaust [without a hearing]. See [Turner, 541 F.3d at 1082]. The judge properly may consider facts outside of the pleadings to resolve a factual dispute as to exhaustion where doing so does not decide the merits, and the parties have a sufficient opportunity to develop the record. Bryant, 530 F.3d at 1376.” Trias, 587 F.App'x at 535. The Eleventh Circuit specifically rejected the argument that “disputed facts as to exhaustion should be decided by a jury.” Id.

         Upon review of the amended complaint, Defendant's special report, and the evidentiary materials filed in support thereof, the court concludes that Defendant's motion to dismiss is due to be granted.


         Plaintiff challenges actions by Defendant which he alleges have violated his religious rights under RLUIPA. Defendant denies Plaintiff's allegations and maintains this case is subject to dismissal because Plaintiff failed to exhaust the administrative remedy provided in the state prison system prior to ...

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