United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
RUSS WALKER UNITED STATES MAGISTRATE JUDGE.
Jake Bartlett (“Plaintiff”) is a former inmate of
the Lee County Detention Center. He filed this action under
42 U.S.C. § 1983, alleging that Sheriff Jay Jones
(“Defendant”) of the Lee County Detention Center,
in Opelika, Alabama, failed to protect him from assault by
inmate Timmothy Chambers (“Chambers”) on June 23,
2015. Doc. 1.
filed an answer, special report, supplemental special report,
and evidentiary materials addressing Plaintiff's claims
for relief. Docs. 9, 12, 20. Upon receipt of Defendant's
reports, the court directed Plaintiff to file a response to
Defendant's argument that Plaintiff's claims are due
to be dismissed because he failed to exhaust his available
administrative remedies at the Lee County Detention Center
before filing suit, as required by 42 U.S.C. § 1997e(a).
Doc. 13. The court also advised Plaintiff to support his
response to Defendant's report with sworn affidavits and
other evidentiary materials, and specifically cautioned
Plaintiff that “at some time in the future the court
may treat Defendant's report and Plaintiff's response
as a dispositive motion and response.” Id. at
2. Plaintiff responded to Defendant's reports and
materials. Docs. 11, 16.
court now will consider Defendant's report that Plaintiff
failed to exhaust his administrative remedies as a motion to
dismiss, and it will treat the remainder of Defendant's
reports as a motion for summary judgment. Doc. 9. Upon
consideration of the motions, the responses, and the
evidentiary materials filed in support and in opposition to
the motions, the court concludes that Defendant's motion
to dismiss for failure to exhaust is due to be granted, and,
in the event that Plaintiff has exhausted his available
administrative remedies, the motion for summary judgment is
due to be granted.
MOTION TO DISMISS
was a prisoner when he filed this lawsuit, and he challenges
the conditions of his confinement when he was an inmate at
the Lee County Detention Center. Defendant argues that
Plaintiff failed to exhaust his administrative remedies
before filing suit. Doc. 9 at 6. Under 42 U.S.C. §
1997e(a), “[n]o 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
exhausted.” “[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, 1374-75 (11th Cir. 2008) (internal quotation marks
omitted). Consequently, the court treats Defendant's
exhaustion defense as a motion to dismiss.
has provided in § 1997e(a) that an inmate must exhaust
irrespective of the forms of relief sought and offered
through administrative remedies.” Booth v.
Churner, 532 U.S. 731, 741 n.6 (2001). “[T]he word
‘exhausted' has a decidedly procedural emphasis
… one ‘exhausts' processes, not forms of
relief, and the statute provides that one must.”
Id. at 739. “[T]he PLRA's exhaustion
requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some
other wrong.” Porter v. Nussle, 534 U.S. 516,
532 (2002). The exhaustion requirement is an affirmative
defense; it is not a jurisdictional or pleading requirement.
See Jones v. Bock, 549 U.S. 199, 216 (2007);
Woodford v. Ngo, 548 U.S. 81, 101 (2006) (“the
PLRA exhaustion requirement is not jurisdictional”);
Bryant, 530 F.3d 1374-75 & n.10. “[T]he
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 County
Correctional and Rehabilitation Dept., 476 Fed.Appx.
364, 366 (11th Cir. 2012).
“the PLRA exhaustion requirement requires proper
exhaustion.” Woodford, 548 U.S. 93.
“Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules
[as a precondition to filing suit in federal court] because
no adjudicative system can function effectively without
imposing some orderly structure on the courts of its
proceedings… . Construing § 1997e(a) to require
proper exhaustion … fits with the general scheme of
the PLRA, whereas [a contrary] interpretation [allowing an
inmate to bring suit in federal court once administrative
remedies are no longer available] would turn that provision
into a largely useless appendage.” Id. at
90-91, 93. The Supreme Court has reasoned that because proper
exhaustion of administrative remedies is necessary, an inmate
cannot “satisfy the Prison Litigation Reform Act's
exhaustion requirement … by filing an untimely or
otherwise procedurally defective administrative grievance or
appeal[, ]” or by effectively bypassing the
administrative process simply by waiting until the grievance
procedure is no longer available to him. Id. at
only exception to the exhaustion requirement is embedded in
the text of § 1997e(a) - that is, the remedy must be
“available.” In other words, the grievance
procedure must be “'capable of use' to obtain
‘some relief for the action complained of.'”
Ross v. Blake, 136 S.Ct. 1850, 1859 (2016). The
Supreme Court has held that a grievance procedure is
unavailable when “it operates as a simple dead
end.” Id. Or “it might be so opaque that
it becomes, practically speaking, incapable of use.”
Id. Or it is unavailable because “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1860.
court conducts a two-step inquiry in applying §
1997e(a). See Turner v. Burnside, 541 F.3d 1077
(11th Cir. 2008). First, the court considers the parties'
versions of the facts, and if they conflict, takes the
plaintiff's version as true. Id. at 1082. If,
based on the plaintiff's version, the claim is
unexhausted, the court must dismiss the claim. See
Id. Second, if the case cannot be dismissed based on
plaintiff's version and there are factual disputes,
“the court then proceeds to make specific findings in
order to resolve the disputed factual issues related to
exhaustion. The defendants bear the burden of proving that
the plaintiff has failed to exhaust his available
administrative remedies.” Id. (citations
undisputed that the Lee County Detention Center provides an
administrative remedy for inmate complaints in the form of an
inmate grievance procedure. Doc. 12-1 at 19. Plaintiff
received a copy of the Detention Center's rules on May 1,
2015, before the assault occurred on June 23, 2015. Doc. 9-5
at 2. The grievance procedure allows an inmate to submit
grievances to jail personnel with respect to matters
occurring during incarceration at the jail. Id. The
grievance procedure provides in relevant part:
If you have a grievance, you can report it on an Inmate
Request form. Only one signature is allowed on a grievance.
Your grievance will be investigated and answered, in writing,
within 72 hours of the time it is received, excluding
weekends and holidays. Grievances are first answered by the
appropriate staff at the lowest level in the chain of
If you are not satisfied with the first answer to your
grievance, you may send a grievance to the next higher
command level (attach a copy of the first grievance). You may
continue to send it through the chain of command, up to the
Sheriff, who will make the final decision.
We will not take any negative action against you because you
file a grievance.
Id. The Jail Administrator, Corey Welch, testified
by affidavit that if the Detention Center runs out of
grievance slips, inmates are provided paper on which to write
their grievances, and these are treated in the same way as
the form grievances. Doc. 20-2 at 3.
filed two Inmate Request Slips on June 28, 2015, relevant to
the assault that is the subject of this § 1983 suit. In
one, Plaintiff marked the subject “Other” and
wrote in the request portion of the slip: “Hey Ms.
Butler I need to know what up about pressing charges about
that fight me and Tim Chambers got into on 6-23-15 why is it
taking so long can you please let me know something today
because I do not want to get a another shift involve in this
I do not want yall to get wrote up by the other shift. Please
come see me today.” Doc. 9-6 at 2. Butler responded,
“the investigators will type up a warrant for you to
sign. You have up to a year to sign a warrant.”
Id. In the second Inmate Request Slip, Plaintiff
marked the subjects “Personal Problem” and
“Other, ” and he wrote in the request portion:
“Hey Ms. Butler suppose to put a stayaway order for me
against Tim Chamber we got a problem and I need to know if
she put the stay away order in to books keep us apart can you
please let me know if she did or not I need to know for sure.
Thanks.” Doc. 9-6 at 3. An officer named Devine
responded, “Separation Request a[n]notated in computer.
Copy of Request placed in File.” Id. Welch
testified by affidavit that Plaintiff filed no
“grievance form against Sheriff Jay Jones or any other
staff members of the Lee County Detention Center …
.” Doc. 9-3 at 5.
swears that he “did file a grievance to Jones, but was
never responded to, or was a copy returned. There is no way
for inmates to make a personal copy to keep where the request
is sent out (b/c this would prove how frequently request are
never responded to or simply thrown out.” Doc. 16 at 6.
Plaintiffs states that the forms include no date or time
indicating when officers respond to them, so “it is
truly impossible for inmates to know what is actually being
done about the inmates problem. This is policy per Jay
Jones.” Id. at 5. Plaintiff maintains
that “when failure occur it ultimately is the
responsibility of the policy maker (Jones) & the enforcer
(Welch) to fix & handle these issues.” Id.
Plaintiff adds that he never was given a warrant to sign
regarding the assault. Id. at 6-7. The court ...