Cofer v. Moon

          RECOMMENDATION OF THE MAGISTRATE JUDGE I. INTRODUCTION

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE

         This 42 U.S.C. § 1983 action is pending on a complaint filed by William Cofer, who was incarcerated at the Chambers County Detention Facility in LaFayette, Alabama when he filed suit.^[1]Cofer complains that during his incarceration at the Randolph County Detention Facility (“RCDF”) in Wedowee, Alabama in January 2016 he was subjected to excessive force, racial discrimination, and unconstitutional conditions of confinement. Cofer names as defendants Robert Moon and Kirby Bassett, who are or were correctional officers at the jail at the time of the challenged actions.^[2] Cofer requests relief through the filing of this lawsuit for the alleged violations of his constitutional rights. Doc. 1 at 2-4.

         Defendants filed an answer, special report, and supporting evidentiary materials addressing the claims in the complaint. In these documents Defendants deny they acted in violation of Cofer's constitutional rights. Defendants further argue this case is due to be dismissed because prior to filing this cause of action Cofer failed to properly exhaust an administrative remedy available to him at the RCDF regarding the claims in the complaint. Defendants base their exhaustion defense on Cofer's failure to file a grievance pursuant to the facility's grievance procedure regarding the claims raised. Doc. 23 at 9-11.

         Upon receipt of Defendants' special report, the court issued an order providing Cofer an opportunity to file a response. This order directed Cofer to address Defendants' arguments that: “(i) Plaintiff's 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 [prior to filing this federal civil action] . . .; and (ii) [t]he claims contained in the complaint fail to establish a violation of his constitutional rights by Defendant.” Doc. 33 at 1-2 (footnote omitted). The order also advised Cofer his response should be supported by affidavits, statements made under penalty of perjury, or other appropriate evidentiary materials. Doc. 33 at 3. The order further cautioned Cofer 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] 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 appropriate, and (2) after considering any response as allowed by this order, rule on the motion in accordance with the law.” Doc. 33 at 3.

         Cofer took advantage of the opportunity granted to file a response to Defendants' special report. Doc. 35. In response to Defendants' exhaustion defense, Cofer argues he could not exhaust administrative remedies because he was transferred from the RCDF two weeks after the use of force incident about which he complains during which time he was on lock down a majority of the time. Doc. 35 at 2-3. To support their special report, Defendants produced Cofer's inmate file maintained at the county jail which refutes his claim he was impeded in his ability to access the grievance procedure. These documents reflect Cofer was booked into the RCDF on January 6, 2016 and released on February 5, 2016. Doc. 23-1 at 9. Cofer's inmate file also show that during that time period he had access to and utilized the jail kiosk numerous times to submit grievances, medical requests, and general inquiries none of which, however, concerned the subject matter of the complaint. Doc. 23-2 at 27-38 & 40-51. While Cofer maintains he had insufficient time following the alleged use of force incident-which occurred on January 19, 2016-in which to exhaust administrative remedies due to his transfer to another jail, the documents maintained in his inmate file show he accessed the jail kiosk thirteen times after January 19, 2016, to submit medical requests, general inquiries, and grievances, none of which were related to the issues challenged in this case. Doc. 23-1 at 38 & 40-51.Contrary to Cofer's conclusory and unsupported assertions, these documents demonstrate that during all times relevant to the allegations made, he could freely access the grievance process, including the period following after the January 19, 2016, incident, until his transfer from the RCDF on February 5, 2016.

         “[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 quotations omitted); Trias v. Fla. Dept. of Corrs., 587 Fed.Appx. 531, 534 (11th Cir. 2014) (finding district court properly construed defendant's “motion for summary judgment as a motion to dismiss for failure to exhaust administrative remedies”). Therefore, the court will treat Defendants' special report as a motion to dismiss.

         II. STANDARD OF REVIEW

         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 [properly] 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.'” Myles, 476 Fed.Appx. at 366 (quoting Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008)). “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. (quoting Turner, 541 F.3d at 1082). 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.

         Upon review of the complaint, Defendants' dispositive motion, and the undisputed evidentiary materials filed in support thereof, the court concludes Defendants' motion to dismiss is due to be granted.

         III. DISCUSSION

         Cofer complains that while detained at RCDF, Defendants subjected him to a racially motivated use of force on January 19, 2016. Cofer further alleges the showers at the RCDF are not cleaned properly. Doc. 1 at 2-3. Defendants deny these allegations and also assert this case is subject to dismissal because Cofer failed to exhaust the ...