United States District Court, M.D. Alabama, Northern Division
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
This 42 U.S.C. § 1983 action is pending before the court
on a complaint filed by Tavares Lashawn Dates on August 17,
2017 against Dr. Walter Wilson, the medical director at St.
Clair Correctional Facility, Nurse Sharon Arrington - now
Sharon Arrington Myatt - a Licensed Practical Nurse, and
Corizon Health, the contract medical care provider for the
state prison system at the time the challenged actions
occurred. In his complaint, Dates alleges that while
incarcerated at the Draper Correctional Facility in mid-2017
the defendants acted with deliberate indifference to pain and
swelling in his right leg.The defendants filed a special report
and supporting evidentiary materials addressing the claims
presented in the complaint. In these filings, the defendants
deny they acted with deliberate indifference to Dates'
medical condition and, instead, maintain that Dates received
appropriate treatment from prison medical personnel. Doc.
35-3 at 2-16. The defendants further assert that the
complaint is due to be dismissed because Dates failed to
exhaust an administrative remedy available to him through
Corizon prior to filing this case. Doc. 34-5 at 6-7 &
Doc. 38-1 at 3-4. The defendants base their exhaustion
defense on Dates' failure to file a grievance addressing
the claim presented in this case.
receipt of the defendants' special report and
supplemental exhibit, the court issued an order providing
Dates an opportunity to file a response to the
defendants' report. Doc. 39. In this order, the court
directed Dates to address the following arguments set forth
by the defendants:
1. His claims are due to be dismissed because he failed to
exhaust his available administrative remedies as required by
42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act
(“PLRA”)[.] . . .
2. He is entitled to no relief on the claims presented herein
as he has failed to establish that the challenged actions
violated his constitutional rights.
Doc. 39 at 1-2. The order also advised Dates that his
response should be supported by affidavits or statements made
under penalty of perjury and/or other appropriate evidentiary
materials. Doc. 39 at 2. In addition, the order cautioned
Dates that unless “sufficient legal
cause” is shown within fifteen days of entry
of this order “why such action should not be
undertaken, the court may at any time [after expiration of
the time for his filing a response] and without further
notice to the parties (1) treat the special report and
any supporting evidentiary materials as a motion to dismiss
and/or motion for summary judgment, and (2) after considering
any response as allowed by this order, rule on the motion . .
. in accordance with the law.” Doc. 39 at 4 (footnote
time provided Dates to file a response in compliance with the
directives of the aforementioned order expired on June 7,
2018. As of the present date, Dates has filed no response in
opposition to the defendants' special report.
on the foregoing, the court deems it appropriate to treat the
report filed by the defendants as a motion to dismiss with
respect to the exhaustion defense. Thus, this case is now
pending on the defendants' motion to dismiss. Bryant
v. Rich, 530 F.3d 1368, 1374- 75 (11th Cir. 2008)
(internal quotations omitted) (“[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.”); Trias v. Florida Dept. of
Corrections, 587 Fed.Appx. 531, 534 (11th Cir. 2014)
(holding that the district court properly construed
Defendant's “motion for summary judgment as a
motion to dismiss for failure to exhaust administrative
STANDARD OF REVIEW
addressing the requirements of 42 U.S.C. § 1997e with
respect to 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
Leal v. Georgia Dept. of Corrections, 254 F.3d 1276,
1279 (11th Cir. 2001) (emphasis in original). Furthermore,
the law is well-settled 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 federal court has] no discretion to waive
this requirement. Alexander v. Hawk, 159 F.3d 1321,
1325-26 (11th Cir. 1998).” Myles v. Miami-Dade
County Correctional and Rehabilitation Dept., 476
Fed.Appx. 364, 366 (11th Cir. 2012). The court will therefore
“resolve this issue first.” Id.
deciding whether a prisoner has exhausted his remedies, the
court should first consider the plaintiff's and the
defendant['s] 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 1373-74). 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 Fed.Appx.
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 ...