United States District Court, N.D. Alabama, Southern Division
KELLY A. McNELLEY, Plaintiff,
BETSY GENTILES, et al., Defendants.
VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE
magistrate judge filed a report on February 28, 2017,
recommending that the defendants' motions for summary
judgment be treated as motions to dismiss and the motions be
granted and the claims be dismissed without prejudice
pursuant to 42 U.S.C. § 1997e(a) for the plaintiff's
failure to exhaust administrative remedies. (Doc. 51). On
March 15, 2017, the plaintiff filed objections to the report
and recommendation. (Doc. 54). On the same date, the
plaintiff moved for an extension of time to conduct
additional research and supplement her objections. (Doc. 52).
The plaintiff stated that she was recently transferred to
another facility and did not have adequate time to conduct
research in the prison's law library. (Id. at
1-2). On March 16, 2017, the magistrate judge granted the
plaintiff's motion for extension of time and allowed her
until March 24, 2017, to supplement her objections to the
report and recommendation. (Doc. 56). On March 27, 2017, the
court received the plaintiff's supplemental objections.
plaintiff reasserts her claim that she filed three
"grievances" with Jackson County Sheriff Chuck
Phillips before filing the present action and she has,
therefore, exhausted her administrative remedies pursuant to
42 U.S.C. § 1997e(a). (Doc. 54 at 1-3). The plaintiff
does not dispute that the Jackson County Jail provides an
administrative remedy for inmate requests and grievances
concerning medical and non-medical issues. (Doc. 26-4,
Gentles Aff. ¶ 4; Doc. 26-5 at 88-89). Under the
Jail's grievance procedure, inmates are encouraged to
informally resolve grievances between themselves and members
of the staff when possible. (Doc. 26-5 at 88). If informal
resolution is not possible, an inmate may complete an Inmate
Request Form stating his or her grievance. (Id.).
The Corrections Deputy receiving the request form must sign
it, date it, and note the time it is received.
(Id.). If possible, the Corrections Deputy receiving
the grievance should answer it but, if he or she cannot do
so, it should be forwarded to the Shift Sergeant for further
action. (Id.). Any Corrections Deputy answering a
grievance must determine if a staff member or inmate has
acted improperly, if an inmate's rights were violated, if
privileges were unjustly denied, or if a crime was committed.
(Id.). After reviewing the grievance, the officer
must write a response on the Inmate Request Form, giving
findings which substantiate or disprove the complaint and, if
applicable, a remedy. (Id. at 88-89). The officer
must also sign, date, and note the time of their response on
the request form. (Id. at 89).
the process is completed, a copy of the Inmate Request Form
containing the response must be made and delivered to the
inmate. (Doc. 26-5 at 89). The original form, containing the
response, should be forwarded to the Shift Sergeant for
review, and then placed in the inmate's Jail file.
(Id.). These tasks should be accomplished within 72
hours of the time that the grievance was received, excluding
weekends and holidays. (Id.). Grievances should be
answered by the appropriate staff member at the lowest level
of the chain of command. (Id.). If an inmate is
dissatisfied with the response she receives to a request or
grievance, she may appeal, in writing, to the next higher
level in the chain of command of the Sheriff's Office
above the person issuing the response. (Id.).
undisputed that the plaintiff did not submit a grievance
pursuant to the Jail's grievance procedure in which she
complained that defendants Gentles and Hughes denied her
medical care for her allergic reaction and used excessive
force against her on March 4, 2015. It is also undisputed
that the plaintiff failed to submit a grievance regarding
defendant Burbank's alleged deliberate indifference to
the plaintiff's serious medical needs when Burbank failed
to note the plaintiff's bean allergy in her medical
records or inform jail staff of the same. Instead, the
plaintiff filed three letters, or "grievances, "
directly to Sheriff Phillips concerning the events involving
the defendants on March 4, 2015. (Doc. 36 at 15-17; Doc.
24-12 at 1-3; Doc. 24-12 at 4). The plaintiff argues in her
objections that she is “excused and/or immune"
from the Jail's grievance procedure since one of her
complaints concerned defendant Gentles, "the highest
ranking official [at] the Jackson County Jail." (Doc. 54
at 2). The plaintiff reasons it was permissible for her to
forward her grievances directly to Sheriff Phillips.
U.S. Supreme Court has held that exhaustion of administrative
remedies must be "proper." Woodford v.
Ngo, 548 U.S. 81, 93 (2006). "Proper exhaustion
demands compliance with an agency's deadlines and other
critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure
on the course of its proceedings." Id. at
90-91. In other words, an institution's requirements
define what is considered exhaustion. Jones v. Bock,
549 U.S. 199, 218 (2007). Therefore, under the law, a
plaintiff must do more than simply initiate a grievance; she
must also appeal any denial of relief through all levels of
review that comprise the administrative grievance process.
Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008)
("To exhaust administrative remedies in accordance with
the PLRA, prisoners must 'properly take each step within
the administrative process.'" (quoting Johnson
v. Meadows, 418 F.3d 1152, 1158 (11th Cir. 2005))).
plaintiff cannot simply ignore the Jackson County Jail's
established grievance procedure or alter the process to fit
what she considers to be "common sen[s]e." (Doc. 54
at 1). Indeed, the Supreme Court concluded that exhaustion of
administrative remedies is mandatory even if the procedures
to do so do not meet certain "minimum acceptable
standards" of fairness and effectiveness, and courts do
not have discretion to excuse exhaustion even when exhaustion
is not "appropriate and in the interest of
justice." Booth v. Churner, 532 U.S. 731, 740
supplemental objections, the plaintiff argues for the first
time that she was provided only one Inmate Request Form while
housed at the Jackson County Jail in March 2015 and that jail
staff denied her additional forms. (Doc. 59 at 1). The
plaintiff's objections are not well taken. As an initial
matter, the magistrate judge specifically advised the
plaintiff that her "[o]bjections should not contain new
allegations, present additional evidence, or repeat legal
arguments ." (Doc. 51 at 20). Although the plaintiff
stated in her response to summary judgment that Inmate
Request Forms are not readily available to inmates upon
request, she acknowledged that A[i]t may be the next shift or
even days before any are provided again." (Doc. 35 at
7). The plaintiff did not allege in her response that she
requested Inmate Request Forms and jail staff denied her
forms for the duration of her stay. Neither does the plaintiff
provide any supporting facts for her claim that she was
denied Inmate Request Forms. For instance, the plaintiff does
not provide the names of the individual jail employees to
whom she made her requests for forms, the dates on which the
she made the requests, or the responses she received. The
plaintiff cannot state new allegations at this late juncture.
Based on the foregoing, the plaintiff's objections are
undisputed facts show that the plaintiff did not comply with
the Jail's grievance procedure to properly exhaust her
administrative remedies with regard to the constitutional
claims she now alleges against defendants Gentles, Hughes,
and Burbank in her original and amended complaints. Thus, the
defendants have met their burden of showing the plaintiff did
not exhaust available administrative remedies.
carefully reviewed and considered de novo all the
materials in the court file, including the report and
recommendation and the objections thereto, the magistrate
judge's report is hereby ADOPTED and the recommendation
is ACCEPTED. Therefore, the defendants' motions for
summary judgment are due to be treated as motions to dismiss
and the motions are due to be granted and the claims
dismissed without prejudice pursuant to 42 U.S.C. §
1997e(a) for the plaintiffs failure to exhaust administrative
Judgment will be entered.
 The plaintiff argues that "there
is nothing [in the grievance procedure] that mandates she
resolve the issues starting with the lower chain [of
command]." (Doc. 59 at 4). However, this is precisely