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Traywick v. Thomas

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

August 8, 2018

KENNETH SHAUN TRAYWICK, #177 252, Plaintiff,
v.
KIM THOMAS, et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Kenneth Traywick [“Traywick”], an inmate in the custody of the Alabama Department of Corrections, files the instant fee paid, pro se civil rights action under 42 U.S.C. § 1983. This action proceeds on Traywick's amended complaint (Doc. 3) for injunctive relief and damages challenging the conditions of confinement and adequacy of medical care and treatment afforded him during his incarceration at the Draper Correctional Facility.[1] The named defendants include former Commissioner Kim Thomas, Warden Louis Boyd, Sergeant Jackie Pettway, Commissioner Jefferson Dunn, Steward Willy Jackson, Woodrow Myers, Jr., Dr. Crocker, Corizon Medical Services, LLC, and Nurse Nancy Barnette.

         Defendants filed answers, special reports, and supporting evidentiary materials addressing Traywick's claims for relief. Docs. 28, 57, 58, 64. In these documents, Defendants deny they acted in violation of Traywick's constitutional rights. The medical defendants also assert the amended complaint is due to be dismissed because Traywick failed to exhaust properly an administrative remedy available to him through the prison system's medical care provider regarding the medical claims in this cause of action prior to filing this action. Docs. 57, 58, 58-2. The medical defendants base their exhaustion defense on Traywick's failure to submit any medical grievances or grievance appeals regarding the claims presented in this case. Docs. 58-2, 58-4 at 143-148. In addition, the medical defendants maintain, and the evidentiary materials, including Traywick's medical records, indicate he received medical treatment during the time relevant to the matters alleged in the complaint. Docs. 58-1, 58-3, 58-4.

         Upon receipt of Defendants' special reports the court issued an order directing Traywick to file a response, including sworn affidavits and other evidentiary materials, and specifically cautioning Traywick that “the court may at any time thereafter and without notice to the parties (1) treat the special reports and any supporting evidentiary materials as a motion for summary judgment.” Doc. 62 at 3-4; see also Doc. 71. In its order granting Traywick an opportunity to file a response to Defendants' reports, he was also advised to “specifically address the medical defendants' argument that he [] failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act (“PLRA”).” Doc. 62 at 1 (footnote omitted). The October 2 order further cautioned Traywick that unless “sufficient legal cause” is shown within ten 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 to this order] and without further notice to the parties (1) treat the special reports and any supporting evidentiary materials as [dispositive] motions . . . and (2) after considering any response as allowed by this order, rule on the [dispositive] motions in accordance with law.” Id. at 3-4; Doc. 71.

         Traywick responded to Defendants' special reports. Docs. 37, 45, 75, 76. The responses are not sworn to by Traywick for the truthfulness of the statements he makes and, thus, does not meet the requirements of FED. R. CIV. P. 56 (e)(1) (requiring that an affidavit “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated . . .).[2] This failure on Traywick s part means that the court cannot, and did not, consider these responses in opposition to Defendants' dispositive motions and they are not evidence that could be deemed to create a genuine issue of material fact. See FED.R.CIV.P. 56(e)(1); Holloman v. Jacksonville Housing Authority, 2007 WL 245555, *2 (11th Cir. Jan. 30, 2007) (“unsworn statements, even from pro se parties, should not be considered in determining the propriety of summary judgment”); Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1986); Dickinson v. Wainwright, 626 F.2d 1184, 1185 (5th Cir.1980).[3] To the extent affidavits or evidentiary submissions filed, or attached to Traywick's unsworn opposition, do meet the requirements of Rule 56(e)(1) (see Doc. 37-1 at 7-9, 15-18, 25-28; Doc. 43; Doc. 45 at 33-35; Doc. 76-1; Doc. 76-2 at 2), the court has considered them but finds they do not demonstrate there is any genuine issue of material fact. See Doc. 62 at 3; Doc. 71.

         The court now treats the correctional defendants' special reports (Doc. 28, 64) as motions for summary judgment. The court will treat the medical defendants' special report (Doc. 58) as a motion to dismiss regarding the exhaustion defense. 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.”); see also Trias v. Fla. Dept. of Corrs., 587 Fed.Appx. 531, 534 (11th Cir. 2014) (holding that the district court properly construed a defendant's “motion for summary judgment as a motion to dismiss for failure to exhaust administrative remedies”).

         I. STANDARD OF REVIEW

         A. Exhaustion

         In addressing the requirements of 42 U.S.C. § 1997e 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. This means that until such administrative remedies as are available are exhausted, a prisoner is precluded from filing suit in federal court.

Leal v. Ga. Dept. of Corrs., 254 F.3d 1276, 1279 (11th Cir. 2001) (citations and internal quotations omitted). Furthermore, “the question of exhaustion under the PLRA [is] a ‘threshold matter' that [federal courts must] address before considering the merits of the case, ” and that cannot be waived. Myles v. Miami-Dade Cnty. Corr. & Rehab. Dept., 476 Fed.Appx. 364, 366 (11th Cir. 2012) (quoting Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004)).

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. 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.

Myles, 476 Fed.Appx. at 366 (citations and internal quotations omitted). 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]. 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.” Trias, 587 Fed.Appx. at 535. Based on the foregoing, the Eleventh Circuit has rejected an inmate-plaintiff's argument that “disputed facts as to exhaustion should be decided” only after a trial either before a jury or judge. Id. at 534.

         B. Summary Judgment

         “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine [dispute] as to any material fact and that the moving party is entitled to judgment as a matter of law.” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam); Fed.R.Civ.P. 56(a) (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”). The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing the non-moving party has failed to present evidence to support some element on which it bears the ultimate burden of proof. Id. at 322-324.

         Defendants have met their evidentiary burden and demonstrated the absence of any genuine dispute of material fact. Thus, the burden shifts to Traywick to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to the case exists. Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact [by citing to materials in the record including affidavits, relevant documents or other materials], the court may . . . grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it . . . .”); see also Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (holding that the court should consider facts pled in a plaintiff's sworn complaint when considering summary judgment). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable factfinder to return a verdict in its favor. Greenberg, 498 F.3d at 1263. The evidence must be admissible at trial, and if the nonmoving party's evidence “is merely colorable . . . or is not significantly probative . . . summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Fed.R.Civ.P. 56(e). “A mere ‘scintilla' of evidence supporting the opposing party's position will not suffice . . . .” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). Only disputes involving material facts are relevant, materiality is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248.

         To demonstrate a genuine dispute of material fact, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255; see also United States v. Stein, 881 F.3d 853 (11th Cir. 2018) (holding that a plaintiff's self-serving and uncorroborated, but not conclusory, statements in an affidavit or deposition may create an issue of material fact which precludes summary judgment); Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (citations omitted) (“To be sure, [plaintiff's] sworn statements are self-serving, but that alone does not permit us to disregard them at the summary judgment stage. . . . ‘Courts routinely and properly deny summary judgment on the basis of a party's sworn testimony even though it is self-serving.'”). “Conclusory, uncorroborated allegations by a plaintiff in an affidavit or deposition will not create an issue of fact for trial sufficient to defeat a well-supported summary judgment motion.” Solliday v. Fed. Officers, 413 Fed. App'x 206, 207 (11th Cir. 2011) (citing Ear ley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990)); see also Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (holding that conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact).

         Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the court, a pro se litigant does not escape the burden of sufficiently establishing a genuine dispute of material fact. See Beard v. Banks, 548 U.S. 521, 525 (2006); Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, a plaintiff s pro se status alone does not mandate that this court disregard elementary principles of production and proof in a civil case. Here, Traywick fails to demonstrate a requisite genuine dispute of material fact so as to preclude summary judgment on his claims against Defendants. See Matsushita, 475 U.S. at 587.

         II. DISCUSSION

         A. The Medical Defendants

         Traywick challenges the adequacy of medical care received at the Draper Correctional Facility throughout 2014 and 2015."[4] Doc. 3. In response to the complaint, the medical defendants deny they provided Traywick with constitutionally inadequate medical care and argue this case is subject to dismissal because he failed to exhaust properly the administrative remedy provided by the institutional medical care provider prior to filing this complaint as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Docs. 57, 58, 58-2. As explained, federal law directs this court to treat the medical defendants' response as a motion to dismiss for failure to exhaust an administrative remedy and allows the court to look beyond the pleadings to relevant evidentiary materials in deciding the issue of proper exhaustion. Bryant, 530 F.3d at 1375.

         The PLRA compels exhaustion of available administrative remedies before a prisoner can seek relief in federal court on a § 1983 complaint. Specifically, 42 U.S.C. § 1997e(a) states that “[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.” 42 U.S.C. § 1997e(a). “Congress 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 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). Exhaustion of all available administrative remedies is a precondition to litigation and a federal court cannot waive the exhaustion requirement. Booth, 532 U.S. at 741; Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir. 1998); Woodford v. Ngo, 548 U.S. 81 (2006). Moreover, “the PLRA exhaustion requirement requires proper exhaustion, ” which

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 would turn that provision into a largely useless appendage.

Woodford, 548 U.S. at 90-93. The Supreme Court reasoned that because proper exhaustion of administrative remedies is necessary an inmate cannot satisfy the PLRA'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 83-84; Bryant, 530 F.3d at 1378 (holding that prisoners must “properly take each step within the administrative process” to exhaust administrative remedies in accordance with the PLRA); Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005) (holding that an inmate who files an untimely grievance or simply spurns the administrative process until it is no longer available fails to satisfy the exhaustion requirement of the PLRA); Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (holding that inmate's belief that administrative procedures are futile or needless does not excuse the exhaustion requirement). “The only facts pertinent to determining whether a prisoner has satisfied the PLRA's exhaustion requirement are those that existed when he filed his original complaint.” Smith v. Terry, 491 Fed.Appx. 81, 83 (11th Cir. 2012).

         The record is undisputed that the health care provider for the Alabama Department of Corrections provides a grievance procedure for inmate complaints related to the provision of medical treatment. Doc. 58-2. The medical defendants submitted evidence which reflects that when inmates are processed into the custody of the Alabama Department of Corrections they are notified about the processes and procedures for obtaining medical care and prescribed medication. Id. Inmates are also provided information regarding the availability of the medical grievance procedure whereby they may voice complaints regarding any medical treatment sought or received during their incarceration. Id. Traywick signed several Access to Care forms acknowledging his understanding of the process and procedures for accessing healthcare as well as the grievance process within the ADOC system including Draper. Doc. 58-4 at 3, 4, 7. In support of their motion to dismiss for failure to exhaust administrative remedies, the medical defendants attach the affidavit of Darryl Ellis [“Ellis”], the Director of Nursing [“DON”] at the Staton Correctional Facility.[5] Ellis affirms the Staton medical staff receives inmate requests or inmate grievances from prisoners at Draper on a daily basis. Doc. 58-2. Ellis affirms that inmates may voice complaints regarding any medical treatment sought or received during their incarceration. Id. The grievance process is initiated when an inmate submits a medical grievance form to the Health Services Administrator [“HSA”] through the institutional mail system. Id. The HSA reviews and answers the grievance within ten (10) days of receipt of the medical grievance. Id. The written response to a medical grievance is included on the bottom portion of the same form containing an inmate's medical grievance. Id. The inmate grievance form provides information about how an inmate may appeal the response he receives to his initial inmate grievance. Specifically, below the portion of the form designated for the “Response, ” the following notation appears:

IF YOU WISH TO APPEAL A GRIEVANCE RESPONSE YOU MAY FILE A GRIEVANCE APPEAL. RETURN THE COMPLETED FORM TO THE ATTENTION OF THE HEALTH SERVICE ADMINISTRATOR. YOU MAY PLACE THE FORM IN THE SICK CALL REQUEST BOX OR GIVE IT TO THE SEGREGATION SICK CALL NURSE ON ROUNDS.

         Doc. 58-2 at 3 (emphasis in original); see also Doc. 58-4 at 143-148.

         As stated in the medical grievance forms, the second step of the grievance process involves the submission of a formal medical grievance appeal. Doc. 58-2. An inmate who submits a medical grievance appeal may be brought in for one-on-one communication with the medical staff, HSA or the DON. Id. A written response to a formal medical grievance appeal is provided within approximately ten (10) days of receipt. Id.

         Ellis states medical grievance and medical grievance appeal forms are available from the Health Care Unit and the correctional shift commander office at Draper. Doc. 58-2. Inmates are instructed to place completed medical grievance and medical grievance appeal forms in the sick call boxes located by the pill call room. Id. The HSA reviews the grievances daily and, as explained, provides a written response to grievances and grievance appeals within approximately ten days at the bottom of the form and returns a copy of the completed form to the inmate. Id. The medical defendants state Traywick failed to exhaust the available grievance procedure regarding the medical issues raised in his complaint. Id. Specifically, the medical defendants maintain Traywick submitted six medical grievances but filed no medical grievance appeals of any kind while at Draper. Id.; Doc. 58-4 at 143-148.

         The record establishes that an administrative remedy procedure for inmate medical complaints is available to all inmates in ADOC custody, including Traywick, during his confinement at an ADOC institution, and specifically at Draper, during the relevant time period. Traywick does not challenge the availability of a grievance procedure at the institution. Defendants maintain Traywick's inmate medical file reflects he submitted several medical grievance forms but no appeal of any grievance regarding the allegations of inadequate medical care made the subject of his amended complaint.

         Regarding his failure to file a grievance in accordance with the grievance procedure, Traywick submits an affidavit in which he contends that, contrary to the medical defendants' assertion he filed no grievance appeals, he maintains he “resubmitted” his original grievances as medical grievance appeals by resubmitting his original grievance with the addition of a mark in the box marked “Medical Grievance Appeal.” Doc. 76-1. Attached to Traywick's affidavit are copies of the six grievances filed by him with the notable addition of an “X” placed in the box beside the words “Medical Grievance Appeal.” See Doc. 76-2 at 3, 4, 6-9. Traywick claims no response was given or received regarding his “resubmission” of his initial medical grievances. Doc. 76-1. The court considers Traywick as arguing that prison officials “thwart[ed] [him] from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, U.S., 136 S.Ct. 1850, 1860 (2016).[6]

         Although Traywick's and the medical defendants' allegations conflict, Traywick's allegation he was impeded in his effort to exhaust administrative remedies is assumed to be true for purposes of this Recommendation. Turner, 541 F.3d at 1082. If, even under a plaintiffs version of the facts, the plaintiff has not exhausted, the complaint must be dismissed. Id. However, if the parties' conflicting facts leave a dispute as to whether a plaintiff has exhausted, the court need not accept all of the plaintiffs facts as true. Id. Rather, “the court then proceeds to make specific findings in order to resolve the disputed factual issues[.]” Id. “Once the court makes findings on the disputed issues of fact, it then decides whether under those findings the prisoner has exhausted his available administrative remedies.” Id. at 1083. The court may consider materials outside of the pleadings and resolve factual disputes regarding exhaustion in conjunction with Rule 12(b)(6) motion to dismiss if the factual disputes do not decide the merits of the case. See Bryant, 530 F.3d at 1376-77.

         The court turns to the second Turner step where the medical defendants bear the burden of establishing a lack of exhaustion. To support their motion to dismiss, the medical defendants' have submitted evidence which establishes that the ADOC provides a procedure for inmates at Draper who wish to submit a grievance regarding their provision of medical care at the facility. Medical grievance forms are available to inmates at Draper, inmate grievances are reviewed and answered by the HSA, and if the inmate is dissatisfied with the response he receives, the inmate proceeds to the second step of the grievance process by seeking review of the initial response through submission of a formal medical grievance appeal at which time an inmate may be brought in for a one-on-one communication with medical staff, the HSA, or the DON. Regardless of whether a one-on-one communication occurs, a written response to a formal medical grievance appeal is provided within approximately ten days of receiving the grievance appeal. Inmates are instructed to place medical grievance forms and medical grievance appeal forms in the sick call box located by the pill call room. Doc. 58-2.

         Traywick's evidence has not successfully rebutted this showing that an administrative remedy process was available at Draper during the time of his incarceration and that he failed to properly exhaust the available administrative remedy. Traywick offers only his own self-serving evidence that he received responses to these initial grievances but no responses at all to his medical grievance appeals. That the medical defendants' evidence reflects medical staff were able to produce records of Traywick's initial medical grievances, including a response by medical staff, contradicts and makes suspect his contention they failed to respond to any appeal of those grievances. Moreover, Traywick's claim that he exhausted the medical provider's administrative remedy because he followed the procedure is refuted by the record. The undisputed evidence before the court regarding the grievance procedure provided by the institution's medical provider does not contemplate “resubmission” of an original grievance with only the addition of a check in the box marked “medical grievance appeal.” Rather, the administrative process requires a grievance appeal to be submitted on a separate grievance appeal form wherein the inmate describes in writing his request to appeal from the review of the initial medical grievance.

         Here, Traywick's submission of copies of his initial inmate grievances which, in addition to containing a check mark in the box designated for a “Medical Grievance, ” also show a mark in the box designated for “Medical Grievance Appeal, ” reflects an obvious attempt to establish exhaustion, but more importantly, fails to overcome the medical defendants' evidence showing that a grievance system is available at Draper, and that he failed to exhaust properly within the appropriate channels or in accordance with the appropriate procedures the administrative remedy available to him. An institution's requirements define what is considered exhaustion. Bock, 549 U.S. at 218. See also Woodford, 548 U.S. 84-851 (to exhaust administrative remedies, an inmate must comply with all steps prescribed by the jail's grievance system); Bryant, 530 F.3d at 1378 (quoting Johnson, 418 F.3d at 1157 (“To exhaust administrative remedies in accordance with the PLRA, prisoners must ‘properly take each step within the administrative process.'”); Twitty v. McCoskey, 226 Fed.Appx. 594, 596 (7th Cir. 2007) (inmate failed to avail himself of the administrative remedies which existed to redress his claims where he made his complaints “outside the channels of the [jail's formal] grievance procedure.”); Brewington v. Daniels, 2012 WL 6005780 *4-5 (M.D. Ala. 2012) (inmate's conclusory assertion he complied with grievance procedures but medical staff failed to timely respond to his initial medical grievance insufficient to overcome Defendants' evidence showing that a grievance system was available for Plaintiff's claims); Maclary v. Carroll, 142 Fed.Appx. 618, 620 (3rd Cir. 2005) (inmate's unsupported conclusory allegations he filed grievances which went unanswered and unprocessed were insufficient to overcome defendants' evidence he failed to exhaust available administrate remedies).

         The court has carefully reviewed the pleadings, documents, and records and concludes a grievance procedure was available to Traywick at Draper, and he failed to exhaust properly the available administrative remedies regarding the claims in this action or failed to demonstrate he was denied access to those administrative remedy procedures.[7] See Bock, 549 U.S. at 218 (The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.”). Accordingly, the medical defendants' motion to dismiss for failure to exhaust is due to be granted without prejudice. See Ngo, 548 U.S. at 87-94; Bryant, 530 F.3d at 1374-1375 (dismissal for failure to exhaust an administrative remedy when the remedy remains available is not an adjudication of the merits and is without prejudice); Woodford, 548 U.S. at 87-94.

         The court will not discuss Traywick's claims against the correctional defendants.

         B. The ...


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