Jenkins v. Bedard et al, No. 2:2012cv00074 - Document 23 (M.D. Fla. 2012)
Court Description: OPINION AND ORDER denying 19 Motion to dismiss. Defendants shall file an Answer within 21 days of this Opinion and Order. Signed by Judge John E. Steele on 10/15/2012. (RKR)
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION LATHIO JENKINS, Plaintiff, vs. Case No. 2:12-cv-74-FtM-29SPC LAURA. BEDARD, Warden, LINDA. BROWN, Chief of Housing Units, and MARY ROBINSON-BOWER MASTER, Unit Manager, Defendants. ___________________________________ OPINION AND ORDER This matter comes before the Court upon review of Defendants Motion to Dismiss (Doc. #19, Motion) filed pursuant to 42 U.S.C. § 1997(E)(a) and supporting exhibits (Doc. #19-1, Defs Exhs. A-E) on June 29, 2012. Plaintiff filed a response in opposition (Doc. #20, Response) on July 16, 2012. This matter is ripe for review. I. Lathio Jenkins, a pro se plaintiff who is in the custody of the Secretary of the Florida Department of Corrections, initiated this action by filing a Civil Rights Complaint in the Twentieth Judicial Circuit Court in Glades County, Florida on June 16, 2011. See Doc. #1. On February 9, 2012, Defendants removed the action to federal court.1 1 See docket. Defendants were served with process on January 12, 2012, Doc. #1-18, and filed their notice of removal on February 9, 2012. Plaintiff is proceeding on his Amended Complaint (Doc. #17, Amended Complaint) and attached exhibits (Doc. #17-1) against the following Defendants from Moore Haven Correctional (hereinafter MHC ) in their individual and official capacities: Laura Bedard, the Warden; Linda Brown, the Chief of the Housing Units ; and, Mary Robinson-Bower Master, the Unit Manager. Complaint. See Amended Plaintiff alleges Defendants violated his Eighth and Fourteenth Amendment rights during a strip search at MHC that occurred on February 1, 2011, at the direction of Defendant M. Robinson-Bower Master. See generally id. at 5. Specifically, on the morning of February 1, Plaintiff states that Defendant Master and other correctional officers entered his housing unit with a canine to conduct a search of the housing unit.2 Id. at 5. Plaintiff states that some of the inmates questioned why the correctional officers were entering with a canine and told the correctional officers they would file inmate grievances regarding the matter. Id. In response to the inmates comments, Plaintiff claims Defendant Master told the inmates since y all want to grieve everyone. us . . . Id. at 6. 2 we re going to strip search Plaintiff states that Correctional Corporation of America assumed the responsibility for operating MHC since August 1, 2010. Amended Complaint at 7. Warden Bedard relieved Warden Taylor when Correctional Corporation of America began operation of MHC. -2- Plaintiff alleges that one month prior to the strip search the Chief of the housing unit, Defendant Brown, encouraged her subordinates to retaliate against inmates who file grievances by directing other correctional officers to write up the inmates since they were writing grievances about the staff. Id. Plaintiff attributes liability on Warden Bedard for failing to correct or stop the custom or policy of the officers conducting retaliatory strip searches at MHC. Id. at 7. As relief, Plaintiff seeks monetary damages against the Defendants and any other relief the Court deems proper. Id. at 8. II. Defendants move to dismiss the action based on Plaintiff s failure to exhaust his administrative remedies. Motion. requisite See generally Defendants submit that Plaintiff did not follow the three-step exhaustion process Department of Corrections ( DOC ). established Id. at 4-5. by the Specifically, Defendants argue that Plaintiff s appeal to the Secretary of the Florida Department of Corrections was returned without action to Plaintiff on April 12, 2011, based on Plaintiff s failure to follow the requisite exhaustion procedures. D). Id. at 5 (citing Defs Exh. Plaintiff then initiated his civil action in November 2011 without filing any other inmate grievances. Id. (citing Defs Exh. E). -3- In Response, Plaintiff opposes Defendants Motion and contends that he exhausted all of his available administrative remedies. Response at 1. Plaintiff states he never received a response to his informal grievance dated February 1, 2011, and the DOC s failure to respond within 10 days permitted him to continue to the next step in the exhaustion process. (copy of Rule response). 33-103.011 setting Id. at 2; see also Id. at 10 forth time frames for DOC Plaintiff further claims that the DOC impeded his ability to exhaust his administrative remedies by returning his grievance on appeal without action. Id. at 4. III. The Prison Litigation Reform Act, which amended The Civil Rights of Institutionalized Persons Act, provides as follows: (a) Applicability of administrative remedies. No 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)(emphasis added). Although prisoners are not required to plead exhaustion, Jones v. Bock, 549 U.S. 199, 216 (2007), "[t]here is no question that exhaustion is mandatory under the PLRA, and that unexhausted claims cannot be brought in court." Id. at 211; see also Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011). -4- To properly exhaust administrative remedies a prisoner must complete the administrative review process, as set forth in the applicable prison grievance process. Jones, 549 U.S. at 218. A prisoner cannot satisfy the exhaustion requirement by filing an untimely or otherwise grievance or appeal. procedurally defective administrative Woodford, 548 U.S. at 92-103. However, an administrative remedy that was not discovered, and which could not have been discovered through reasonable effort, until it was too late for it to be used is not an available remedy. Lee County, 510 F.3d 1312, 1324 (11th Cir. 2007). Goebert v. A remedy is not available if it is unknown or unknowable because such remedy is not capable for use for the accomplishment of a purpose. 1323. Id. at Inmates are not required to craft new procedures when prison officials demonstrate . . . that they will refuse to abide by the established ones. (11th Cir. Turner v. Burnside, 541 F.3d 1077, 1083 2008)(citations omitted). Additionally, [a]n administrative remedy is not available for purposes of the PLRA . . . if prison officials render pursuit of the remedy irrational through serious threats of substantial retaliation. Cole v. Sec y Dep t of Corr., 451 F. App x 827, 828 (11th Cir. 2011)(citing Turner v. Burnside, 541 F.3d 1077, 1084-85 (11th Cir. 2008)). Whether an inmate has exhausted his available administrative remedies is a factual issue that is properly made by the court. -5- Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Thus, [e]ven though a failure-to-exhaust defense is non-jurisdictional, it is like a defense for lack of jurisdiction in one important sense: Exhaustion of administrative remedies is a matter in abatement, and ordinarily does not deal with the merits. Id. (footnote, The internal quotations, and citations omitted). defense of exhaustion is properly raised in a motion to dismiss as a matter of judicial administration. Id. at 1375. Thus, the court is permitted to look beyond the pleadings to decide disputed issues of fact in connection with the exhaustion defense. Id. at 1377, n.16. The Court is not persuaded by Defendants argument that Plaintiff failed to exhaust his administrative remedies. Here, Defendants submit that on February 1, 2011, Plaintiff filed an informal grievance regarding the strip search that occurred that day. See Defs Exh. A. Neither Plaintiff, nor Defendants attach a response to this informal grievance. See generally Amended Complaint; Motion. On March 2, 2011, Plaintiff then filed a formal grievance to the Warden. Defs Exh. B at 1. On March 8, 2011, the Warden returned Plaintiff s grievance with a note that the D.O.C. was in -6- control of this incident. will be more closely In the future, situations such as this monitored. 3 Id. at 2. On March 23, 2011, Plaintiff filed what appears to be another formal grievance to Moore Haven Correctional Facility. Def s Exh. C at 1. On April 5, 2011, Plaintiff received a response denying the grievance because all inmates are subject to be searched (i.e. pat search, strip search, locker search). Id. at 2. On March 29, 2011, Plaintiff filed an appeal to the Secretary of the Department of Corrections. Exh. D at 1. On April 12, 2011, the Secretary responded to the grievance by returning the grievance without action finding Plaintiff s appeal was non-compliant with Chapter 33-103 because your grievance at the institutional level was determined to be in non-compliance with the requirements of the rule. Id. at 2. Absent from the record is any evidence that any of Plaintiff s informal or formal inmate grievances were returned for non-compliance with the exhaustion rules. See Defs Exhs. A-E. In fact, the denial of Plaintiff s appeal to the Secretary of the DOC is the first time any response states that Plaintiff filed an inmate grievance in non-compliance with the DOC s rules. 3 It is unclear who was operating MHC based on the response to this grievance. As noted supra, Plaintiff states that Correctional Corporation of America assumed the responsibility for MHC on August 1, 2010. Amended Complaint at 7. -7- ACCORDINGLY, it is hereby ORDERED: 1. Defendants Motion to Dismiss (Doc. #19) is DENIED. 2. Defendants shall file an Answer within twenty-one (21) days from the date on this Opinion and Order. DONE AND ORDERED at Fort Myers, Florida, on this of October, 2012. SA: alj Copies: All Parties of Record -8- 15th day
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