United States District Court, M.D. Alabama, Southern Division
DE'ONDRE J. HOWARD, #303 165, Plaintiff,
SHERIFF WALLY OLSON, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 action is pending on a Complaint filed by
De'Ondre Howard, an inmate incarcerated at the Dale
County Jail when he filed suit. Howard challenges the
conditions of confinement to which he was subjected during
his incarceration at the county jail. Named as defendants are
Sheriff Wally Olson, Jail Administrator Ron Nelson, and Jail
Supervisor Steve Baxley. Howard seeks damages for the alleged
violation of his constitutional rights. Doc. 1 at 2-4.
filed an answer, special report, and supporting evidentiary
materials addressing the claim in the Complaint. In these
documents, Defendants deny they acted in violation of
Howard's constitutional rights and argues this case is
due to be dismissed because, prior to filing the Complaint,
Howard failed to properly exhaust an administrative remedy
available to him at the Dale County Jail addressing the
claims presented. Doc. 24 at 5-7. Defendants base their
exhaustion defense on Howard's failure to file any
grievance regarding his claims. Id.
receipt of Defendants' special report, the Court issued
an Order providing Howard an opportunity to file a response.
This order directed Howard to address “Defendants'
arguments that: 1. His claims are due to be dismissed because
he failed to fully exhaust his administrative remedies
available at the Dale County Jail as required by 42 U.S.C.
§ 1997e(a) of the Prison Litigation Reform Act [prior to
filing this federal civil action.] . . .; and 2. Defendants
are entitled to qualified immunity (from damages) on the
claims presented herein as [he] has failed to establish that
the challenged action violated his constitutional
rights.” Doc. 25 at 1-2 (footnote omitted). The Order
also advised Howard that his response should be supported by
sworn affidavits or statements made under penalty of perjury
and/or appropriate other evidentiary materials. Id.
at 3. The Order further cautioned Howard 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 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.” Id. at 3-4 (footnote
omitted). Howard has not filed a response to Defendants'
to the aforementioned Order, the court deems it appropriate
to treat the report filed by Defendants as a motion to
dismiss regarding the exhaustion defense. This case is now
pending on Defendants' motions 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
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.
challenges the conditions of confinement to which he was
subjected during his incarceration at the Dale County Jail.
In their response, Defendants deny this allegation and also
assert this case is subject to dismissal because Howard
failed to properly exhaust the administrative remedy provided
to him at the Dale County Jail prior to filing suit ...