United States District Court, M.D. Alabama, Northern Division
LARRY H. MITCHELL, Plaintiff,
OFFICER HOOKS, Defendant.
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN UNITED STATES MAGISTRATE JUDGE.
42 U.S.C. § 1983 action, Larry H. Mitchell, an inmate
confined at the Elmore County Jail, challenges the handling
of mail addressed to his grandmother. Doc. 1 at 2-3. Mitchell
seeks declaratory and injunctive relief for the alleged
violation of his constitutional rights. Doc. 1 at 4.
defendant filed a special report and supporting evidentiary
materials addressing Mitchell's claim for relief. In
these documents, the defendant adamantly denies that he acted
in violation of Mitchell's constitutional rights. The
defendant further argues that this case is due to be
dismissed because Mitchell failed to properly exhaust an
administrative remedy available to him at the Elmore County
Jail prior to filing this cause of action. Docs. 11 at 4-9
& 11-2 at 3-4. The defendant bases the exhaustion defense
on Mitchell's failure to file a grievance pursuant to the
jail's grievance procedure regarding the claims raised in
25, 2018, the court entered an order providing Mitchell an
opportunity to file a response to the defendant's report.
Doc. 12. In this order, the court directed Mitchell to
address the following arguments set forth by the defendant:
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. 12 at 1-2. The order also advised Mitchell that his
response should be supported by affidavits or statements made
under penalty of perjury or other appropriate evidentiary
materials. Doc. 12 at 2. In addition, the order cautioned
Mitchell that unless “sufficient legal cause” is
shown within 15 days of entry of the 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, whichever is
proper, and (2) after considering any response as allowed by
this order, rule on the motion in accordance with the
law.” Doc. 12 at 4 (footnote omitted).
time allotted to Mitchell to file a response in compliance
with the directives of the aforementioned order expired on
June 8, 2018. As of the present date, Mitchell has filed no
response in opposition to the defendant's special report.
on the foregoing, the court deems it appropriate to treat the
special report filed by the defendant as a motion to dismiss
with respect to the exhaustion defense. Thus, this case is
now pending on the defendant's 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. Fla. Dept.
of Corr., 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 federal
Leal v. Ga. Dept. of Corr., 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. Because exhaustion is mandated by the statute, [a
federal court has] no discretion to waive this
requirement.” Myles v. Miami-Dade Cnty. Corr. &
Rehab. Dept., 476 Fed.Appx. 364, 366 (11th Cir. 2012)
(internal citations omitted). The court will therefore
“resolve this issue first.” Id.
When 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 ...