United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE I.
M. BORDEN UNITED STATES MAGISTRATE JUDGE
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.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. Cofer requests relief through the filing
of this lawsuit for the alleged violations of his
constitutional rights. Doc. 1 at 2-4.
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.
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.
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.
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.
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)).
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.
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.
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 ...