THOMAS v. MILLER

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MARIO M. THOMAS,

DOC # M68634,

Plaintiff,

vs. Case No. 4:24cv162-MW-MAF

JAMES W. MILLER,

Defendant.

__________________________/

REPORT AND RECOMMENDATION

This is a prisoner civil rights action filed by a pro se Plaintiff. ECF No.

1. The operative pleading is Plaintiff’s First Amended Complaint, ECF No.

19, alleging that the Defendant violated Plaintiff’s Eighth Amendment rights

on November 6, 2023, by failing to protect him from another inmate.

Defendant filed a motion to dismiss the amended complaint. ECF

No. 37. Defendant argues that Plaintiff failed to exhaust all available

administrative remedies and failed to disclose his litigation history. Id.

Plaintiff was directed to file a response to that motion by May 2, 2025. ECF

No. 38. Plaintiff has responded, ECF Nos. 44 and 49, and the motion is

ready for a ruling.

Page 2 of 11

Standard of Review

“Before a prisoner may bring a prison-conditions suit under § 1983,

the Prison Litigation Reform Act of 1995 [PLRA] requires that he exhaust

all available administrative remedies.” Whatley v. Warden, Ware State

Prison, 802 F.3d 1205, 1208 (11th Cir. 2015) (citing 42 U.S.C. § 1997e(a)

and Booth v. Churner, 532 U.S. 731, 736, 121 S. Ct. 1819, 1822, 149 L.

Ed. 2d 958 (2001)). The issue of exhaustion under the PLRA is “treated as

a matter in abatement.” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.

2008) (cited in Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008)).

That means, it is a preliminary consideration or “a precondition to an

adjudication on the merits,” and is not jurisdictional. Bryant, 530 F.3d at

1374.

Ruling on a “motion to dismiss for failure to exhaust administrative

remedies is a two-step process.” Turner, 541 F.3d at 1082 (citation

omitted). “First, the court looks to the factual allegations in the defendant’s

motion to dismiss and those in the plaintiff’s response, and if they conflict,

takes the plaintiff’s version of the facts as true.” Id. “If, in that light, the

defendant is entitled to have the complaint dismissed for failure to exhaust

administrative remedies, it must be dismissed.” Id. (citing to Bryant, 530

Case No. 4:24cv162-MW-MAF

Page 3 of 11

F.3d at 1373-74). “If the complaint is not subject to dismissal at 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 (citing Bryant, 530

F.3d at 1373-74, 1376). The burden of proof for evaluating an exhaustion

defense rests with the Defendant. Jones v. Bock, 549 U.S. 199, 127 S. Ct.

910, 921, 166 L. Ed. 2d 798 (2007) (concluding “that failure to exhaust is

an affirmative defense under the PLRA, and” inmates do not have “to

specially plead or demonstrate exhaustion in their complaints”).

Factual disputes concerning exhaustion may be decided by the court

sitting as fact-finder, “so long as the factual disputes do not decide the

merits and the parties have sufficient opportunity to develop a record.”

Bryant, 530 F.3d at 1373-74, 1376. When motions to dismiss are based on

issues not enumerated under Rule 12(b), then Rule 43(c) governs, and that

Rule “permits courts to hear evidence outside of the record on affidavits

submitted by the parties.” Id. at 1377, n.16. Further, a credibility finding

may be made after review of the relevant documentary evidence. Id.

Case No. 4:24cv162-MW-MAF

Page 4 of 11

Exhaustion

In enacting the Prison Litigation Reform Act, Congress mandated that

“[n]o 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). The exhaustion

requirement of § 1997e(a) is mandatory. Alexander v. Hawk, 159 F.3d

1321, 1324-26 (11th Cir. 1998); Bryant, 530 F.3d at 1374 n.10. Courts lack

discretion to waive this requirement or provide continuances of prisoner

litigation in the event that a claim has not been exhausted prior to filing.

Alexander, 159 F.3d at 1325; see also Porter v. Nussle, 534 U.S. 516, 122

S.Ct. 983, 152 L.Ed.2d 12 (2002) (holding that “the PLRA’s exhaustion

requirement 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”); Brown v. Sikes, 212 F.3d

1205, 1207-08 (11th Cir. 2000).

A prisoner must comply with the process set forth and established by

the State’s grievance procedures. See Miller v. Tanner, 196 F.3d 1190,

1193 (11th Cir. 1999). Thus, § 1997e(a) of the PLRA requires “proper

Case No. 4:24cv162-MW-MAF

Page 5 of 11

exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 2387

(2006) (concluding that “proper exhaustion” means complying with the

specific prison grievance requirements, not judicially imposed

requirements). “Compliance with prison grievance procedures, therefore,

is all that is required by the PLRA to ‘properly exhaust.’” Jones, 549 U.S.

at 218, 127 S. Ct. 910 (quoted in Parzyck v. Prison Health Servs., Inc., 627

F.3d 1215, 1217-18 (11th Cir. 2010)).

The Department of Corrections has a grievance procedure. FLA.

ADMIN. CODE R. 33-103. Inmates are required to first submit an informal

grievance at the institutional level. FLA. ADMIN. CODE R. 33-103.005. If the

informal grievance is denied, inmates must submit a formal grievance to

the warden’s office. FLA. ADMIN. CODE R. 33-103.006. If that is denied, or

the inmate is not satisfied with the response, he may submit a grievance

appeal to the Office of the Secretary. FLA. ADMIN. CODE R. 33-103.007.

Inmates must generally comply with all three steps of the grievance

process to exhaust administrative remedies.

The Rules do, however, provide a few exceptions.

Emergency grievances and grievances of reprisals, protective

management, admissible reading material, grievances

concerning sentence structure (release date calculations),

Case No. 4:24cv162-MW-MAF

Page 6 of 11

inmate banking issues or sexual abuse grievances when the

abuse is alleged to have been committed by the Warden of the

institution where the inmate is currently housed may be filed

directly with the Office of the Secretary using the Request for

Administrative Remedy or Appeal, Form DC1-303.

FLA. ADMIN. CODE R. 33-103.007(3)(a). Such a grievance must be

reviewed, but “if it is determined that the grievance is not an emergency

grievance, a grievance of reprisal, protective management, admissible

reading material, sentence structure (release date calculations), inmate

banking issues, or a grievance alleging a violation of HIPAA, the grievance

shall be returned to the inmate with the reasons for return specified

advising the inmate to resubmit his or her grievance at the appropriate

level.” FLA. ADMIN. CODE R. 33-103.0073(d).

Defendant’s evidence showed that “the only relevant grievance that

Plaintiff submitted was a direct grievance appeal,1 log # 24-6-10761, and it

was returned without action.” ECF No. 37 at 6; see also ECF No. 37-2 at

14. Defendant acknowledges that the response to that grievance informed

1 It does not appear that Plaintiff filed a “direct” grievance. See ECF No. 37-2 at 14.

Plaintiff did not state at the beginning of his grievance that he was skipping steps of the

grievance process as required by Rule 33-103.007(3)(a)1. Moreover, Plaintiff claimed

within the grievance that he had submitted an informal grievance and a grievance to the

warden, but did not get a response. ECF No. 37-2 at 14. It would appear that Plaintiff’s

statement was accepted as true as his grievance was not rejected for having failed to

take the necessary preliminary steps. Id. at 13.

Case No. 4:24cv162-MW-MAF

Page 7 of 11

Plaintiff that the matter would be “referred to the Inspector General’s Office

for appropriate action.” See ECF No. 37-2 at 13. However, Defendant

points out that “the response did not give Plaintiff a final determination on

the merits.” Id. at 6-7; see also ECF No. 37-2 at 13. Rather, Plaintiff was

advised that he could resubmit his grievance at his current location if he

was “within the allowable time frames for” doing so. ECF No. 37-2 at 13.

Grievance 24-6-10761 concluded2 by stating that Plaintiff’s “appeal [was]

returned without action.” A grievance that is “returned without action” is

insufficient to show proper exhaustion.

Plaintiff’s response to the motion to dismiss asserted that he had

“exhausted ‘available’ administrative remedies” and Plaintiff said that

inmates did not need to take further action after having a grievance

“approved.” ECF No. 44 at 2, 6-8. While Plaintiff made general assertions

of exhaustion, the only specific statement made was that Plaintiff had a

grievance “approved and reported to the Office of the Inspector General,”

which was - according to Plaintiff - “all that’s required” for exhaustion. Id. at

9.

2 The response also advised Plaintiff of several deficiencies with his appeal - grieving

more than one issue and improperly requesting monetary compensation. See ECF No.

37-2 at 13.

Case No. 4:24cv162-MW-MAF

Page 8 of 11

Plaintiff did not, however, provide the Court with a copy of his

approved grievances,3 nor did Plaintiff specifically state when the

grievances were submitted. Therefore, because Plaintiff suggested that he

had submitted a grievance which was “approved,” Plaintiff was provided an

opportunity to substantiate his contention.4 ECF No. 45. Plaintiff was

directed to submit a copy of the grievance which he contends was

“approved” to demonstrate that he exhausted administrative remedies. Id.

Plaintiff responded, ECF No. 49, but he provided argument only.

Plaintiff claimed that “all the grievance appeals has [sic] been denied,” but

Plaintiff did not provide copies of any “grievance appeal.” Id. at 1. Indeed,

Plaintiff’s assertion in his second response, ECF No. 49, contradicts his

first response, ECF No. 44, because there he claimed to have “exhausted

‘informal’ grievances remedies . . . .” ECF No. 44 at 9 (emphasis added).

His first response said only that he had filed “two informal grievances,” and

Plaintiff did not claim to have filed a grievance appeal. An informal

3 Plaintiff’s response says he filed “two informal grievances that were approved and

forwarded to the Office of the Inspector General” for review and investigation. ECF No.

44 at 9.

4 At another point in his response, Plaintiff indicated his “initial two informal

grievances . . . were approved and forwarded to the Office of the Inspector General for

review . . . .” ECF No. 44 at 9.

Case No. 4:24cv162-MW-MAF

Page 9 of 11

grievance is the first step in the process and a grievance appeal is the third

step; they are different.

The Court has reviewed the copies of grievances submitted by the

Defendant. Plaintiff submitted an informal grievance about a disciplinary

report he received on November 6, 2023. Ex. B (ECF No. 37-1 at 7). It did

not assert, however, that the Defendant failed to protect him. Id. At any

rate, the grievance was “returned” and was not approved. That grievance

does not show exhaustion.

Similarly, Plaintiff submitted two formal grievances to the warden

about the disciplinary report. ECF No. 37-1 at 10, 12. Both of those

grievances were “denied.” Id. at 9, 11. Yet even if the grievances were

granted, Plaintiff only complained about the results of the disciplinary

report. Plaintiff did not raised the claim he presented in this case - that the

Defendant failed to protect him. Id. at 10, 12. Thus, neither grievance

shows exhaustion.

Plaintiff then filed three grievance appeals to the Secretary’s Office.

ECF No. 37-2 at 6-7, 10 (log # 23-6-39142, log # 2311-211-044, and log #

23-6-39131). Plaintiff complained about errors in “the decision of the DR

Case No. 4:24cv162-MW-MAF

Page 10 of 11

Committe[e],” but he never claimed that Defendant Miller failed to protect

him. Id. All three appeals were denied. Id. at 5, 8, and 9.

As Defendant has correctly argued, the only evidence that Plaintiff

complained about Defendant Miller’s conduct was in grievance appeal 24-

6-10761. It was received and accepted in the Secretary’s Office, but it was

neither denied or approved. ECF No. 37-2 at 13. It was “returned without

action” and, therefore, does not show exhaustion. Accordingly,

Defendant’s motion to dismiss, ECF No. 37, should be granted. In light

thereof, there is no need to address Defendant’s argument that Plaintiff

failed to honestly disclose his litigation history.

RECOMMENDATION

It is respectfully RECOMMENDED that the motion to dismiss, ECF

No. 37, be GRANTED and Plaintiff’s amended complaint be DISMISSED

for failure to exhaust administrative remedies pursuant to 42 U.S.C. §

1997(e).

IN CHAMBERS at Tallahassee, Florida, on August 13, 2025.

S/ Martin A. Fitzpatrick

MARTIN A. FITZPATRICK

UNITED STATES MAGISTRATE JUDGE

Case No. 4:24cv162-MW-MAF

Page 11 of 11

NOTICE TO THE PARTIES

Within fourteen (14) days after being served with a copy of this

Report and Recommendation, a party may serve and file specific written

objections to these proposed findings and recommendations. Fed. R.

Civ. P. 72(b)(2). A copy of the objections shall be served upon all other

parties. A party may respond to another party’s objections within

fourteen (14) days after being served with a copy thereof. Fed. R. Civ.

P. 72(b)(2). Any different deadline that may appear on the electronic

docket is for the Court’s internal use only and does not control. If a

party fails to object to the Magistrate Judge’s findings or

recommendations as to any particular claim or issue contained in this

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.

Case No. 4:24cv162-MW-MAF