Opinion
5:17-cv-306-MCR-GRJ
07-29-2022
VICTOR DONTAVIOUS STALLWORTH Plaintiff, v. CAPT. WILLIAMS, et al., Defendants.
SECOND REPORT AND RECOMMENDATION
GARY R. JONES, UNITED STATES MAGISTRATE JUDGE
This case is before the Court on remand from the Eleventh Circuit Court of Appeals. The Eleventh Circuit vacated in part the Court's dismissal of pro se and in forma pauperis prisoner Plaintiff's civil rights case because the Court of Appeals concluded that Plaintiff stated a First Amendment retaliation claim against Defendant Captains Williams and Billingsley, and, possibly, a deliberate medical indifference claim against mental health counselor R. Cox for failing to provide adequate mental health care. See Stallworth v. Wilkins, 802 Fed.Appx. 435 (11th Cir. 2020) (per curiam). ECF No. 56.
Defendants now move for the second time for the Court to dismiss Plaintiff's complaint for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1997e(a). ECF No. 131. In the Motion, Defendants reargue their exhaustion arguments set forth in their prior Motion to Dismiss, ECF No. 91, which this Court denied, ECF Nos. 100, 101. For the same reasons set forth in the Court's adopted report and recommendation, id., the undersigned respectfully RECOMMENDS that Defendants' Motion to Dismiss Plaintiff's Fifth Amended Complaint, ECF No. 131, should be DENIED without prejudice.
I. PLAINTIFF'S ALLEGATIONS
Stallworth allegations, taken as true, are that between the dates of April 9, 2017 and June 5, 2017, while he was in administrative confinement at Gulf Correctional Institute Annex (“Gulf CI”), Defendants violated his First and Eighth Amendment rights as discussed below. ECF No. 116.
A. First Amendment “Retaliation” Claims.
Defendant Captains Williams and Billingsley retaliated against Stallworth after he filed numerous grievances against them, their officers, sergeants, staff and their boss. Id. The retaliation was in the form of denying Stallworth a clean meal tray and by failing to notify food service staff about the “black mold and mildew” on the trays so they could be cleaned. Id. at 7. Stallworth complained to Captain Williams that the “mildew and black mold” on the meal trays were making him sick, to which Williams responded, “Stop filing grievances and maybe you will get clean trays and a diet change.” ECF No. 116 at 7. Shortly thereafter, Stallworth complained to Captain Billingsley that the meal trays were making him sick, to which Billingsley responded, “Stop filing grievances on me and my staff and maybe your trays will be clean and not have mildew or black mold on them.” Id. at 7-8. Stallworth then filed a formal grievance with the Assistant Warden about an informal grievance he filed on May 15, 2017, related to the filthy meal trays causing him to be ill. Id. at 8.
Stallworth became very sick and suffered “a few stomach viruses,” vomiting, fever, and constipation, all due to his having to eat off of contaminated meal trays.” Id. His gastrointestinal illnesses lasted for months and resulted in two sick calls at a cost of five (5) dollars each. Id. Medical nurses refused his third sick call on July 4, 2017. Id.
In response to the instant motion, Stallworth appended copies of the grievances (informal, formal and appeal) that he filed regarding the meal trays' “black mold and mildew” causing him illness. Two appeals to the Secretary are dated June 5, 2017 (#17-6-25294) and July 11, 2017 (#17-3-30493). ECF No. 113 at 29, 31. One appeal to the Assistant Warden is dated July 17, 2017 (#17-7-150-028-07A). Id. at 33. All three appeals were denied. Id . at 30, 32, and 34.
The Secretary denied one of the appeals on the grounds that “[a] review of the grievance log database indicates that an informal grievance, log number 150-1705-0025, was received on 5/16/17 and a response was mailed to [Plaintiff] ¶ 5/24/17; however, there is no record of [Plaintiff's] filing at the institutional formal level during the time frame specified in [his] appeal.” ECF No. 131-1 at 47 (emphasis added). The second identical appeal was denied for a different reason altogether: “that a review of the grievance log database indicates no record of [Plaintiff's] filing a grievance (i.e. informal/formal level), during the time-frame specified, regarding this issue.” See ECF No. 131-1 at 45 (emphasis added). The Assistant Warden denied Plaintiff's July 17, 2017 appeal on the grounds that “review finds no sick call request submitted on that date.” ECF No. 131-1 at 28.
B. Eighth Amendment “Medical Deliberate Indifference” Claims.
Stallworth requested an initial mental health screening on April 19, 2017, and on May 5, 2017, he filed a formal grievance complaining that he had not been seen by a mental health counselor since he arrived at the Gulf CI on March 14, 2017, in violation of his one-year mental health plan. ECF No. 116 at 7. This allegation is corroborated by Stallworth's handwritten log filed with his June 5, 2017 grievance appeal to the Secretary (#17-6-25294) in which he states that he “filed a formal grievance on 5/5/17 at approx. 8:45 a.m. in P2-113 concerning a request I wrote Mental Health on 4/19/17 about her being in non-compliance with my Mental Health Plan. No receipt or response.” See ECF No. 131-1 at 42 ¶8 (emphasis in original). The Secretary denied this appeal for noncompliance with the Rules in that the grievance contained more than one issue. ECF No. 131-1 at 43.
In an undated appeal to the Secretary,Stallworth states that he “sent a request form to mental health”, that he feared for his safety, and that he exhausted all his administrative remedies by filing informal and informal grievances, but that the grievance coordinator failed to provide him with any response or receipts. ECF No. 131-1 at 31, 33. The appeal was denied for failure to file a grievance at the institutional level. Id. at 37.
The stamp on the appeal indicates that it was received on May 19, 2017.
On May 24, 2017, Stallworth filed an appeal with the Secretary (#17-6-23212) saying that he feared for his safety. ECF 131-1 at 38. In that appeal, Stallworth claims that prison officials had searched his cell, stolen his informal and formal grievance logs, and threatened him if he filed any more grievances. Id. Stallworth further stated that he had exhausted his administrative remedies by filing informal and formal grievances that were never responded to, “no receipts.” ECF 131-1 at 38. This appeal was denied because it was not of an emergency nature, and because Plaintiff failed to “submit [his] grievance at the appropriate level at the institution.” ECF No. 131-1 at 39.
Stallworth avers that he filed a second formal grievance on June 5, 2017, complaining that he still had not received mental health screening. ECF No. 116 at 8. Stallworth says that mental health counselor, R. Cox, denied him mental health treatment when he complained of “cold sweats, flash backs, hearing voices, and depression.” Id. at 10. Further, Stallworth says that the R. Cox failed to conduct an initial mental health screening, failed to schedule an appointment with him, and failed to visit him while he was in confinement. Id. As a consequence of not being seen by a mental health counselor, on June 21, 2017, Stallworth attempted to commit suicide “just to get seen by Mrs. R. Cox, Mental Health Counselor.” Id.
II. DISCUSSION
A. PLRA Exhaustion Requirement.
Under 28 U.S.C. § 1997e(a) of the PLRA, “[n]o action shall be brought with respect to prison conditions under . . . [42 U.S.C. § 1983], 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.” See Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004); see also Woodford v. Ngo, 548 U.S. 81, 93-94 (2006) (noting that a prisoner must exhaust administrative remedies before challenging the conditions of confinement and concluding that the PLRA demands “proper exhaustion”). Nevertheless, prisoners are not required to “specifically plead or demonstrate exhaustion in their complaints.” See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the United States Supreme Court has recognized that “failure to exhaust is an affirmative defense under the PLRA[.]” Id.; Abram v. Leu, 759 Fed.Appx. 856, 860 (11th Cir. 2019) (PLRA exhaustion is an affirmative defense) (per curiam) (citing Jones, 549 U.S. at 216); Greene v. Rice, Case No. 3:18-cv-1497-J-32PDB, 2020 WL 919172, at *2 (M.D. Fla. Feb. 26, 2020) (PLRA exhaustion is an affirmative defense) (citing Jones, 549 U.S. at 216).
Importantly, exhaustion of available administrative remedies is “a precondition to an adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008); see also Jones, 549 U.S. at 211. While “the PLRA exhaustion requirement is not jurisdictional[,]” Woodford, 548 U.S. at 101, “exhaustion is mandatory... and unexhausted claims cannot be brought, Pavao v. Sims, 679 Fed.Appx. 819, 823 (11th Cir. 2017) (per curiam) (citing Jones, 549 at 211). Not only is there a recognized exhaustion requirement, “the PLRA . . . requires proper exhaustion” as set forth in the applicable administrative rules and procedures of the institution. Woodford, 548 U.S. at 93-94.
Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. Administrative law does this by requiring proper exhaustion of administrative remedies, which “means using all steps that the agency holds out and doing so properly (so that the agency addresses the issue on the merits).”Id. at 90 (emphasis in original) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). The requirement to exhaust “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) (citation omitted). Further, the PLRA's exhaustion requirement contains a “procedural default component”: prisoners must comply with the applicable deadlines, or good-cause standards for failure to comply contained in the administrative grievance procedures. Johnson v. Meadows, 418 F.3d 1152, 1158-59 (11thCir. 2005) “‘[A] prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies, and thus is foreclosed by § 1997e(a) from litigating.” Id. at 1158. “[T]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prisoner's administrative rules require.'” Id. (quoting Pozo, 286 F.3d at 1025).
(i) Availability of Administrative Remedies and Exhaustion
“There is an exception to the exhaustion requirement... that is ‘baked into' § 1997e(a)'s text: an inmate need exhaust only such administrative remedies as are ‘available.'” Varner v. Shepard, 11 F.4th 1252, 1258 (11thCir. 2021) (quoting Ross v. Blake, 578 U.S. 1174, 1862, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016)). “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. (quoting Ross, 136 S.Ct. at 1859) (quoting Booth v. Churner, 532 U.S. at 738, 121 S.Ct. 1819).
In its recent decision in Ross v. Blake, the Supreme Court identified “three kinds of circumstances in which an administrative remedy [under the PLRA], although officially on the books,” is not “available” because it is “not capable of use to obtain relief”: (1) when “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when it is “so opaque that it becomes, practically speaking, incapable of use,” such as when no ordinary prisoner can discern or navigate it; or (3) when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” 136 S.Ct. at 1859-62.
In addition to the above-mentioned exceptions to the PLRA exhaustion requirement, some courts have suggested that an inmate has exercised his administrative remedies when he has tried to properly file a grievance and the grievance was lost or destroyed by a prison official. See, e.g., Boyd v. Corr. Corp. of Am., 380 F.3d 989, 996 (6th Cir. 2004) (concluding that Plaintiff's allegations that (1) he submitted a grievance form to the corrections officer; (2) the grievance covered the events complained of; (3) the grievance was delivered to the appropriate grievance coordinator; (4) and prison officials totally failed to respond were sufficient to establish PLRA exhaustion); Dole v. Chandler, 438 F.3d 804, 813 (7thCir. 2006) (prisoner exhausted his administrative remedies when he took all steps to exhaust one line of remedies and his attempts at review were foiled by prison officials) (citations omitted); Baughman v. Harless, 142 Fed.Appx. 354, 359 (10th Cir. 2005) (“[A]dministrative remedies may be found unavailable . . . where the prisoner supports his allegations that he placed his grievances in the mail, but they were lost or destroyed and therefore his efforts to exhaust available remedies were impeded by correctional officers.”); Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002) (rejecting defendants' exhaustion defense where prison officials thwarted prisoner's efforts to exhaust his administrative remedies) (citing 42 U.S.C. § 1997e and quoting Miller v. Norris 247 F.3d 736, 740 (8th Cir. 2001) (holding that “a remedy that prison officials prevent a prisoner from ‘utilizing' is not ‘available' under § 1997e(a)”)); Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 154 (3d Cir. 2016) (holding that prison officials made administrative remedies unavailable to the plaintiff when they failed to timely respond to his grievance and then repeatedly ignored his follow-up requests for a decision on his claim. In such circumstances, “filing suit was [Plaintiff's] only method to advance his claim.”); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999) (per curiam) (“A prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired.”); and O'Connor v. Featherston, Case No. 01-cv-3251(HB), 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002) (“[A]n inmate may ... defeat a motion to dismiss even when the requirements of administrative remedies have not technically been exhausted where . an inmate makes a reasonable attempt to exhaust his administrative remedies, especially where it is alleged that corrections officers failed to file the inmate's grievances or otherwise impeded or prevented his efforts.”) (citation and internal quotation marks omitted).
(ii) PLRA Exhaustion Under Turner's Two-Step Analysis
In the Eleventh Circuit, the defense of failure to exhaust under the PLRA is considered a matter of abatement under Federal Rule of Civil Procedure 12, and, thus, is treated like a defense of lack of jurisdiction. Bryant v. Rich, 530 F.3d 1368, 1374, 1376 (11th Cir. 2008). Accordingly, a district court may properly “consider facts outside of the pleadings to resolve a factual dispute regarding exhaustion so long as the factual disputes do not decide the merits and the parties have a sufficient opportunity to develop a record.” Id.; Singleton v. Dep't of Corr., 323 Fed.Appx. 783, 785 (11th Cir. 2009) (per curiam) (quoting Bryant, 530 F.3d at 1376).
Deciding a motion to dismiss for failure to exhaust administrative remedies as required by the PLRA requires a two-step analysis as established in Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). The Court first “looks to the factual allegations in the defendant's motion to dismiss and those in plaintiff's response, and if they conflict, takes 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.” Id. at 1082 (citation omitted). At the first step of the Turner analysis, the Court must accept Plaintiff's assertion as true and make the exhaustion determination on Plaintiff's view of the facts. Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1211-12 (11th Cir. 2015). “If the complaint is not subject to dismissal through the first step, where the plaintiff's allegations are assumed to be true, the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.” Turner, 541 F.3d at 1082; Whatley, 802 F.3d at 1213 (defendants' contention that plaintiff's exhibits were fabricated created a factual dispute that required explicit findings under the second Turner step; such findings are subject to review on appeal for clear error) (citation omitted). The court “make[s] specific findings to resolve the disputed factual issues related to exhaustion.” Whatley, 802 F.3d at 1211-12 (emphasis in original).
(iii) PLRA Exhaustion Is an Affirmative Defense
Because PLRA exhaustion is an affirmative defense, “the defendants bear the burden of proving that the plaintiff has failed to exhaust his available administrative remedies.” Turner, 541 F.3d at 1082 (citation omitted); Brown, 312 F.3d at 111 (“Failure to exhaust administrative remedies [under the PLRA] is an affirmative defense that must be pled and proven by the defendant.”) (citation omitted); see also Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999). If Defendant fails to carry his burden to prove that Plaintiff failed to exhaust his administrative remedies, dismissal is not warranted. See McIlwain v. Burnside, 830 Fed.Appx. 606 (11th Cir. 2020) (reversing a district court's dismissal of prisoner's complaint for failure to exhaust because the district court “did not give [the plaintiff] an opportunity to develop the record on this issue before deciding it on the papers.”); Abram, 759 Fed.Appx. at 861 (vacating district court's dismissal on exhaustion grounds “[b]ecause the district court failed to provide [Plaintiff] a meaningful opportunity to respond and be heard on the exhaustion issue[.]”); see also, Mann v. Perez, Case No. 1:17-cv-241-AW-GRJ, 2019 WL 8160987, at *3 (N.D. Fla. Dec. 27, 2019) (recommending that motion to dismiss be denied because Defendants failed to meet their burden under the second step of the Turner analysis), report and recommendation adopted in part, 2020 WL 1062995 (not addressing exhaustion); Diaz v. Martin, Case No. 20-cv-23889-BLOOM, 2021 WL 2333296, at *8 (S.D. Fla. Jun. 8, 2021) (recommending that motion to dismiss be denied where defendant “ha[d] not carried his burden to show that Plaintiff failed to exhaust his administrative remedies” with respect to deliberate indifference claim); Williams v. Hughes, Case No. 5:19-cv-89-TKW/MJF, 2021 WL 606248, at *5 (N.D. Fla. Jan. 25, 2021) (recommending that motion to dismiss be denied without prejudice in order to allow limited discovery on exhaustion, citing McIlwain, 830 Fed.Appx. at 611).
B. Florida DOC's Inmate Grievance Process.
In Florida, the procedural rules an inmate must follow to properly exhaust administrative remedies are promulgated by the Florida Department of Corrections (“FLDOC”) and contained in the Florida Administrative Code. See Fla. Admin. Code Chapter 33-103 (“Inmate Grievances”).
(i) General Grievances
To properly grieve an issue, an inmate must file a written informal grievance using Form DC6-236 (Rule 33-103.005). If the inmate is dissatisfied with the result of the informal grievance, he must next file a written formal grievance with the Warden's office using form DC1-303 (Rule 33-103.006). Rule 33-103.006 provides that the inmate “shall submit a grievance to designated staff by placing the grievance in the locked grievance box.” (Rule 33-103.006). “The designated staff person shall deliver the box to the institutional grievance coordinator who will unlock the box, remove the grievances, log the grievances, and provide the inmates with receipts.” (Rule 33-103.006(8) (emphasis added).
An inmate may bypass the formal grievance step in the event of an emergency. (Rule 33-103.006).
(ii) Reprisals and Medical Grievances
In situations where the inmate grieves reprisals or has a grievance of a medical nature, he may directly file a formal grievance. (Rule 33-103.005 and Rule 33-103.008). The rule governing grievances of a medical nature provides that:
(1) If a formal grievance of a medical nature is filed at the institutional level, it shall be forwarded to the institution's Chief Health Officer or clinical designee for investigation and response. Following preparation of a response and signature of the responding employee, the grievance shall be returned to the warden or assistant warden or deputy warden to ensure appropriate filing and routing.(Rule 33-103.008(1)).
(iii) Appeals to the Secretary
Finally, if the inmate feels that the grievance has not been satisfactorily resolved at the formal stage, he must submit a written appeal to the State Office of the Secretary (“Secretary”) using form DC1-303 (Rule 33-103.007). This Rule further provides that: “Those grievances and appeals that are placed in the grievance box, whether or not they are in a sealed envelope, will be forwarded to the Bureau of Policy Management and Inmate Appeals after being processed for mailing[.]” (Rule 33-103.007(6)(f)); See, e.g., Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218 (11th Cir. 2010) (generally setting forth the FLDOC's grievance process).
(iv) Timing Requirements
FLDOC's rules establish strict time frames for inmates to file grievances. Pursuant to Rule 33-103.011 (“Time Frames for Inmate Grievances”), informal grievances must be received “within 20 days of when the incident or action being grieved occurred,” and formal grievances (including direct formal grievances of a medical nature) must be received “no later than 15 calendar days” from either (1) the date on which the informal grievance was responded to; or (2) the date on which the incident or action being grieved occurred if an informal grievance was not filed. (Rule 33-103.011(1)(a), and (b)).
Direct grievances to the Secretary must also be received within fifteen (15) days from the date on which the incident or action being grieved occurred. (Rule 33-103.011(1)(d)).
Grievance appeals to the Secretary “[m]ust be received within 15 calendar days from the date the response to the formal grievance is returned to the inmate.” Rule 33-103.011(1)(c). To eliminate issues with mailing, the rules make provisions for appeals to the Secretary to be receipted locally at the institution or facility. See Rule 33-103.006(8).
Grievance appeals and direct grievances to the Office of the Secretary shall be responded to within 30 calendar days from the date of the receipt of the grievance. (Rule 33-103.11(3)(c)).
C. The Parties' Evidence.
Defendants move to dismiss Stallworth's Fifth Amended Complaint on the grounds that he failed to exhaust his administrative remedies on his retaliation claims prior to filing his initial complaint. ECF No. 131. In support of the motion, Defendants provide a declaration from a custodian of records for grievances at the Florida Department of Corrections, Ramona Coxe-Pye (“Coxe-Pye”). ECF No. 131-1 at 1. Cox-Pye reviewed Stallworth's file for grievances dated March 1, 2017 to December 20, 2017, in particular, looking for retaliation allegations against the Defendants. Id. at 1. Although Coxe-Pye located a number of grievances related to this lawsuit, she attests that “[t]here are no records of inmate Victor Stallworth (DC #E21503) filing informal, formal, direct or appeal grievances related to his retaliation claims” against any named Defendant in this case. Id.
Defendants do not make any argument whatsoever with respect to Stallworth's medical deliberate indifference claims.
Stallworth responds that he exhausted his administrative remedies prior to filing his initial Complaint. ECF No. 133 at 2. Stallworth further states that “several” of his informal, formal and appeal grievances, complaining about retaliation against him by Captain Williams and Captain Billingsley “were throw[n] away, shredded in a shredder, and not responded to.” Id. Stallworth maintains that he submitted the retaliation grievances against Defendants to designated classification officers, that the submissions should have been captured by the camera in front of his cell, and that the classification officers placed the grievances in the required locked “black locked box”. Id. at 3. In support of his argument, Stallworth supplied two (2) sworn affidavits of other inmates who witnessed Stallworth turn his grievances over to classification officers. Id. at 14-16, 17-18. One of those witnesses attests to having heard corrections officers tell Stallworth that the reason his grievances were not being responded to is because the grievance counselor was shredding them-“So, What. What are you going to do about it? ... It's more food for Ms. Wilkins [the grievance coordinator] shredder.” Id. at 15.
D. Turner Two-Step Analysis.
Under the first step set forth in Turner, the Court must look to the plaintiff's allegations and the defendants' responses and, if there is a conflict, accept the plaintiff's version as true. In this case, Stallworth avers that he exhausted all of his available administrative remedies. ECF No. 133 at 2. Defendants say he did not with respect to his claims of retaliation. ECF No. 131. Stallworth further alleges that corrections officers worked to thwart his access to the grievance process at the institutional level by failing to respond to his grievances and by confiscating and destroying them. ECF No. 133 at 2. Although Defendants dispute this fact as well, the affidavit supplied by the Defendants' records custodian does not address this key assertion, whereas the sworn affidavits supplied by Stallworth meet the issue head on.
Under Turner's first step, given the dispute between the parties over the exhaustion question, the Court must accept Stallworth's allegations that he exhausted all his available administrative remedies as true. Next, the Court must make specific findings to resolve the conflict regarding the exhaustion issue. On the record before the Court, Stallworth alerted the Secretary that he was being retaliated against on several occasions, and he also complained many times that he was being denied access to mental health services and the grievance process at his institution. See ECF No. 131-1 at 31, 32-36, 38, 40-42, 44, 46, 48, 50.Consequently, Defendants' contention that Stallworth's confiscation and destruction allegations are not supported by the record are contradicted by the records themselves. Moreover, Defendants' record custodian's affidavit that the required grievances are not in Stallworth's grievance file does not establish that he failed to exhaust his available administrative remedies. At this stage of the litigation, the burden rests with Defendants to prove that Stallworth failed to exhaust his remedies as to the claims asserted in this lawsuit. Defendants have not met their burden. Therefore, the exhaustion question cannot be resolved as a matter of law by this Court without further discovery (as this Court has already ruled, see ECF Nos. 100, 101).
If Stallworth's confiscation and destruction allegations are true, Defendants cannot deny him access to the grievance process and then ask the Court to dismiss his claims on exhaustion grounds as the remedies would not have been “available” to him within the meaning of the PLRA.
IV. CONCLUSION
In sum, the undersigned concludes that Plaintiff's Fifth Amended Complaint should not be barred by the exhaustion requirement of the Prisoner Litigation and Reform Act (“PLRA”), 28 U.S.C. § 1997e(a) at this juncture. It is respectfully RECOMMENDED that Defendants' Motion to Dismiss, ECF No. 131, Plaintiff's Fifth Amended Complaint should be DENIED without prejudice.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of objections shall be served upon all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636 .
Upon review of the Florida DOC online inmate locator, it appears that Plaintiff is currently confined the Century C.I. The Clerk is directed to forward a copy of this Report and Recommendation to this address and his address of record with the Court.