Moss

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

HAROLD MOSS, )

)

Plaintiff, )

)

v. ) CASE NO. 3:24-CV-770-WKW

) [WO]

JAY JONES, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This 42 U.S.C. § 1983 action proceeds on the amended complaint filed by

Plaintiff Harold Moss, a pro se inmate, against four Defendants: Sheriff Jay Jones,

Dr. John McFarland, Nurse Core, and Nurse S. Soupanthoung. (Doc. # 62.) Before

the court is Defendants’ motion to dismiss or, in the alternative, for summary

judgment, accompanied by a brief in support and exhibits. (Docs. # 73, 74.) In their

motion, Defendants argue, among other things, that Plaintiff failed to exhaust

administrative remedies before filing suit. Plaintiff filed three documents in

response to Defendants’ motion. (Docs. # 76–78 (collectively, “Plaintiff’s

response”).) Defendants filed a reply brief. (Doc. # 83.) After careful consideration,

because Defendants’ motion argues for dismissal of Plaintiff’s claims based on his

failure to exhaust administrative remedies prior to filing this suit, that portion of

Defendant’s motion will be construed as an unenumerated Rule 12(b) motion to

dismiss, see infra Part IV.A.2, and that construed motion to dismiss will be granted.

Otherwise, Defendants’ motion will be denied as moot.

II. JURISDICTION AND VENUE

Subject matter jurisdiction is proper under 28 U.S.C. § 1331 (federal

question). Personal jurisdiction and venue are not contested.

III. BACKGROUND

A. Procedural History

On November 25, 2024,1 Plaintiff filed a pro se complaint under 42 U.S.C.

§ 1983. (Doc. # 1.) Plaintiff’s original complaint named the Lee County Justice

Center, the Auburn Police Department, and the Sheriff of Lee County, Alabama, as

Defendants. (See Doc. # 1.) After filing his complaint, Plaintiff filed a letter to the

court (Doc. # 4), which was construed as a motion to amend and for preliminary

injunctive relief. (Doc. # 5.) The Sheriff of Lee County, through counsel, was

ordered to show cause why the court should not order Plaintiff’s requested injunctive

relief. (Id.)

1 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is

delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th

Cir. 2009). Absent evidence to the contrary, the court “assume[s] that a prisoner delivered a filing

to prison authorities on the date that he signed it.” Jeffries v. United States, 748 F.3d 1310, 1314

(11th Cir. 2014). Plaintiff signed and dated his complaint “11/25/24.” (Doc. # 1 at 4.) Therefore,

under the “prison mailbox rule,” Plaintiff’s complaint is deemed filed on November 25, 2024, even

though it was not received and docketed until December 2, 2024.

Between the issuance of the show-cause order on December 12, 2024 (id.),

and the Sheriff’s response to the order submitted on January 2, 2025 (Doc. # 16),

Plaintiff filed ten notices (letters) to the court (see Docs. 6–15). After the Sheriff

filed his response, Plaintiff went on to file nine notices (letters) to the court (Docs.

# 22–30), an unsolicited reply to the Sheriff’s response (Doc. # 31), six more notices

and letters to the court (Docs. # 32–37), and multiple motions (Docs. # 38–42).2 In

an attempt to clarify the issues in this case and to determine whether Plaintiff had

stated a current medical emergency, a status conference was scheduled for January

13, 2026. (Doc. # 59.) At that status conference, it was learned that this case

concerns Plaintiff’s issues with getting a certain medication in November and

December 2024. (Doc. # 69.) Plaintiff also was informed during that status

conference that constantly filing notices and motions delays his case. (See id.)

By Memorandum Opinion and Order dated December 17, 2025, Plaintiff was

instructed to file an amended complaint. (Doc. # 60 at 7–9.) On December 22,

2025,3 Plaintiff filed an amended complaint against five Defendants: the Lee County

Detention Center (LCDC); Sheriff Jay Jones; Dr. John McFarland; Nurse Core; and

Nurse S. Soupanthoung. (Doc. # 62.) In a Memorandum Opinion and Order dated

2 During the pendency of this action, Plaintiff has filed upward of 50 notice letters and

miscellaneous motions.

3 Plaintiff signed and dated his amended complaint “12/22/25.” (See Doc. # 62 at 4.) Therefore,

under the “prison mailbox rule,” see supra note 1, Plaintiff’s amended complaint is deemed filed

on December 22, 2025, even though it was not received and docketed until December 29, 2025.

January 27, 2026, Plaintiff’s claims against the LCDC were dismissed because the

detention center is not an entity subject to suit under § 1983. (Doc. # 70 (“January

27 Mem. Op. & Order”).) The January 27 Mem. Op. & Order also directed service

of the amended complaint on the remaining Defendants. (Doc. # 70.)

Defendants responded to the amended complaint by filing a motion to dismiss

or, in the alternative, for summary judgment, accompanied by a brief in support and

exhibits. (Docs. # 73, 74.) Plaintiff was given an opportunity to provide evidence

in support of his position. (Doc. # 75.) The parties now have fully briefed their

positions with respect to Defendants’ motion. (Docs. # 76–78, 83.)

B. Plaintiff’s Amended Complaint

In his amended complaint, which is signed under penalty of perjury, Plaintiff

alleges that, after he was booked into the LCDC on or around October 22, 2024, he

was unable to urinate for days and that, when he finally could urinate, he had blood

in his urine. (Doc. # 62 at 2–3.) Plaintiff also claims that he was unable to eat or

drink without throwing up blood. (Id. at 3.) At some point, Plaintiff was admitted

to the East Alabama Hospital, where he underwent two surgeries. Plaintiff contends

that, on November 7, 2024, he was discharged from the hospital within ten minutes

of his second surgery. Back at the LCDC, Plaintiff was forced to sleep on a cold

cell floor in booking.4 (Id.)

Furthermore, upon release from the hospital, Plaintiff was provided with a full

bottle of a prescribed medication. He claims that he did not receive his first dose of

this medication until 30 days after his release from the hospital. Plaintiff states that

he was forced to endure painful nights because of the lack of adequate medical

attention by Sheriff Jones and the medical staff acting on his behalf. He also claims

to have “turned in numerous grievances, also tickets . . . on the jail k[i]osk system to

[Sheriff] Jay Jones only to [have the grievances] go unanswered.” (Id.)

As relief, Plaintiff seeks $800,000 “for the many nights [he has] had to suffer

and endure pain,” a “lack of proper medical attention,” and for not giving his

medication to him “in a[] proper[,] adequate time.” (Id. at 4.)

C. Defendants’ Motion to Dismiss or, in the Alternative, for Summary

Judgment, Brief in Support, and Exhibits

In their motion, Defendants argue that Plaintiff’s claims are due to be

dismissed because he has not exhausted available administrative remedies as

required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). (See

Doc. # 73 ¶ 2; Doc. # 74 at 15–19.) Defendants also argue that Plaintiff’s official-

capacity claims against Defendants are barred by the Eleventh Amendment (Doc.

4 This liberally construed conditions-of-confinement claim was abandoned by Plaintiff during the

status conference held on January 13, 2026. (See Doc. # 69.)

# 73 ¶ 3; Doc. # 74 at 19–20) and that they are entitled to qualified immunity with

respect to Plaintiff’s individual-capacity claims (Doc. # 73 ¶ 4; Doc. # 74 at 20–36).

However, the only argument pertinent to the analysis here is that Plaintiff failed to

exhaust available administrative remedies prior to filing suit.

To support their position that Plaintiff failed to exhaust available

administrative remedies, Defendants submitted the declaration of Lieutenant Ashley

Ogletree (Doc. # 74-1 (Ex. A)); Section 16 of the LCDC’s Inmate Handbook, titled

“Grievances” (Doc. # 74-2 (Ex. B)); multiple grievances filed by Plaintiff (Doc. 74-

3 (Ex. C)); and a redacted copy of a different inmate’s grievance appeal for the

court’s reference (Doc. # 74-4 (Ex. D)). These filings establish the following:

(1) There is a grievance procedure at the LCDC (Doc. # 74 at ¶ 20; Ex. A

¶ 3);

(2) The LCDC’s grievance procedure is made available to inmates as part

of the Inmate Handbook, which can be found on the jail kiosk and

tablets located in the inmate’s pod (Doc. # 74 ¶ 21; Ex. A ¶¶ 3–4; see

also Ex. B (Section 16 of the Inmate Handbook, titled “Grievances”));

(3) An inmate may file a grievance using the NCIC system made available

to all inmates on the kiosk or tablets in their pods (Doc. # 74 ¶ 22; Ex.

A ¶ 5);

(4) When filing a grievance, the inmate chooses an option from a drop-

down menu––e.g., “grievance,” “general request,” or “grievance

appeal” (Doc. # 74 ¶ 23; Ex. A ¶ 6);

(5) The inmate can title his grievance as he chooses, but he does not get to

choose to whom a grievance is assigned (Doc. # 74 ¶ 24; Ex. A ¶ 7);

(6) Officers review the grievances from their NCIC account on sheriff’s

office computers and can assign the grievance to the proper officer

(Doc. # 74 ¶ 25; Ex. A ¶ 8);

(7) Grievances are first answered by an appropriate staff member at the

lowest level in the chain of command (Doc. # 74 ¶ 22; Ex. B ¶ 16.2);

(8) When a grievance is answered, the inmate will receive the answer in

his account on his tablet or kiosk (Doc. # 74 ¶ 26; Ex. A ¶ 9);

(9) If the inmate is unsatisfied with the answer, he can file a grievance

appeal (Doc. # 74 ¶ 26; Ex. A ¶ 9; Ex. B ¶ 16.3);

(10) To file a grievance appeal, all the inmate must do is select “grievance

appeal” from the drop-down menu where he initially selected

“grievance” (Doc. # 74 ¶ 27; Ex. A ¶ 10);

(11) If the inmate continues to be unsatisfied with the answer he receives to

his grievance appeal, the inmate may continue to appeal up the chain of

command until his grievance reaches the Sheriff, who will make the

final decision regarding the grievance (Doc. # 74 ¶ 28; Ex. B ¶ 16.3);

and

(12) Although Plaintiff filed multiple grievances before and after filing this

lawsuit, he neglected to file any grievance appeals (Doc. # 74 ¶¶ 29–

31; Ex. A ¶¶ 11–13; compare Ex. C (Plaintiff’s grievances filed in

November and December 2024, all marked “Type: Grievance”) with

Ex. D (redacted copy of another inmate’s grievance appeal marked

“Type: Grievance Appeal”)).

D. Plaintiff’s Response & Defendants’ Reply

In response to Defendants’ motion, Plaintiff filed three documents: an

unsigned response (Doc. # 76) and two notices (letters) to the court, one unsigned

(Doc. # 77) and the other signed (Doc. # 78). Collectively, these documents are

considered Plaintiff’s response to Defendants’ motion. Plaintiff’s response is

difficult to discern, but for the most part, he appears to rehearse the allegations in

the amended complaint. With respect to his exhaustion of administrative remedies,

however, he states that he “followed all the jail administrative remedies” and that he

“turn[ed] in all the proper grievances,” but “they all went unanswered deliberately.”

(Doc. # 77 at 7; see also Doc. # 78 at 1 (Plaintiff stating that “all the administrative

remedies” that he has “exhausted,” along with the “numerous grievances” he has

turned in have been “deliberately[,] intentionally ignored by [Sheriff] Jay Jones”).)

In their reply brief, Defendants assert that Plaintiff’s response “did not include

any ‘affidavit[], declaration[], or other evidentiary materials demonstrating a

genuine dispute as to a material fact for trial.’” (Doc. # 83 at 1–2 (quoting Doc.

# 75 at 2).) Additionally, Defendants highlight the fact that none of the filings

comprising Plaintiff’s response was signed under penalty of perjury. (Id. at 2.)

Defendants conclude that, therefore, Plaintiff’s response and any statements

contained therein may not be considered evidence. (Id.) This contention would be

correct if Defendants’ motion were construed as a motion for summary judgment;

however, Defendants’ motion is construed as an unenumerated Rule 12(b) motion

to dismiss based on Plaintiff’s failure to exhaust administrative remedies.

Accordingly, Plaintiff’s responses will be considered.

Furthermore, Defendants reiterate their argument that Plaintiff was required

by the PLRA to exhaust the LCDC’s grievance procedure before filing his lawsuit

but did not do so. (See id. at 2–3.) Defendants also address the arguments made by

Plaintiff in his response, namely, that he filed grievances, some even directly to

Sheriff Jones. But, as Defendants contend, Plaintiff “stops short of asserting that he

filed any grievance appeals.” (Id. at 2.)

IV. DISCUSSION

1. Exhaustion of Administrative Remedies

Defendants argue that Plaintiff failed to exhaust his administrative remedies

before filing suit. (Doc. # 74 at 15–19.) Defendants’ assertion of this affirmative

defense will be treated as an unenumerated Rule 12(b) motion to dismiss.

1. The Exhaustion Requirement

The PLRA provides that “[n]o action shall be brought with respect to prison

conditions under [42 U.S.C. §] 1983 . . . 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). This 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.”

Porter v. Nussle, 534 U.S. 516, 532 (2002). Its purpose is to provide “corrections

officials time and opportunity to address complaints internally before allowing the

initiation of a federal case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).

The U.S. Supreme Court has held that the “[PLRA’s exhaustion] provision

‘requires proper exhaustion’ of available prison grievance procedures, meaning a

prisoner ‘must complete the administrative review process in accordance with the

applicable procedural rules . . . as a precondition to bringing suit in federal court.’”

Perttu v. Richards, 605 U.S. 460, 465 (2025) (quoting Woodford, 548 U.S. at 88,

93). “[E]xhaustion is mandatory under the PLRA, and unexhausted claims cannot

be brought in court.” Pavao v. Sims, 679 F. App’x 819, 823 (11th Cir. 2017) (per

curiam) (citing Jones v. Bock, 549 U.S. 199, 211 (2007)).

2. Unenumerated Rule 12(b) Motion to Dismiss for Failure to Exhaust

Administrative Remedies

Exhaustion under the PLRA is a “standard affirmative defense” and is neither

jurisdictional nor a pleading requirement. Perttu, 605 U.S. at 469. In the Eleventh

Circuit, an exhaustion defense raised in a motion for summary judgment is treated

“as an unenumerated Rule 12(b) motion to dismiss.” Maldonado v. Unnamed

Defendant, 648 F. App’x 939, 951 (11th Cir. 2016) (per curiam); see also Bryant v.

Rich, 530 F.3d 1368, 1374–75 (11th Cir. 2008) (“Because exhaustion of

administrative remedies is a matter in abatement and not generally an adjudication

on the merits, an exhaustion defense is not ordinarily the proper subject for a

summary judgment; instead, it should be raised in a motion to dismiss, or be treated

as such if raised in a motion for summary judgment.” (cleaned up)). “In this context,

the judge may consider facts outside of the pleadings and resolve factual disputes,

as long as those factual disputes do not decide the merits, and the parties have had a

sufficient opportunity to develop the record.” Maldonado, 648 F. App’x at 951

(citing Bryant, 530 F.3d at 1376).

3. The Two-Step Process for Deciding a Motion to Dismiss for Failure

to Exhaust Administrative Remedies

In Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008), the Eleventh Circuit

“established a two-step process for resolving motions to dismiss prisoner lawsuits

for failure to exhaust.” Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209

(11th Cir. 2015) (citing Turner, 541 F.3d at 1082); accord McGuire-Mollica, 146

F.4th 1308, 1314 (11th Cir. 2025). At the first step, “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.” Turner, 541

F.3d at 1082. If the factual allegations, viewed in that light, show that the prisoner

failed to exhaust available administrative remedies, the district court must dismiss

the complaint. See McGuire-Mollica, 146 F.4th at 1314 (citing Turner, 541 F.3d at

1082). If dismissal is not warranted under the first Turner step on the prisoner’s

view of the facts, the process moves to the second step, where the district court

“makes specific findings to resolve disputes of fact” concerning exhaustion.5 See

5 No party has argued that the U.S. Supreme Court’s pronouncement in Perttu v. Richards—“that

parties are entitled to a jury trial on PLRA exhaustion when that issue is intertwined with the merits

of a claim protected by the Seventh Amendment,” 605 U.S. 460, 479 (2025)—which relates to

Turner’s second step, is relevant here.

Whatley, 802 F.3d at 1209 (citing Turner, 541 F.3d at 1082–83). The district court

“then decides whether under those findings the prisoner has exhausted his available

administrative remedies.” Turner, 541 F.3d at 1083. Throughout this two-step

process, the burden is on the defendant to show that the plaintiff has failed to exhaust

his available administrative remedies. Id. at 1082.

4. Exhaustion Analysis Under the Turner Two-Step Framework

Defendants’ supporting brief and exhibits establish the existence of a

grievance procedure at the LCDC (Doc. # 74 ¶ 20 (“The [LCDC] has a procedure

inmates are to follow when seeking to file a grievance with the jail.”); Ex. A ¶ 3)

and that this grievance procedure “is made available to inmates as part of the Inmate

Handbook” (Doc. 74 ¶ 21; Ex. A ¶ 3; see also Ex. B (Section 16 of the Inmate

Handbook, titled “Grievances”). Defendants also explain how the LCDC’s

grievance procedure works, including how inmates go about filing a grievance and

the grievance-appeals process. (Doc. # 74 ¶¶ 22–28; Ex. A ¶¶ 5–10.) Defendants

make clear that, in filing a grievance, “[t]he inmate can title the grievance how he

chooses and sometimes will include an officer’s name or the sheriff’s name in the

title” but “the inmate does not get to choose to whom the grievance is assigned.”

(Doc. # 74 ¶ 24; Ex. A ¶ 7.)

As for Plaintiff’s utilization of the LCDC’s grievance procedure, Defendants

contend that after Plaintiff returned to the LCDC from the hospital on November 7,

2024, he “filed approximately 10 grievances” before initiating this lawsuit (Doc.

# 74 ¶ 29), and Defendants provide copies of those grievances (see Ex. C (containing

27 pages of grievances filed by Plaintiff)). The “approximately 10 grievances” filed

by Plaintiff between his return to the LCDC on November 7, 2024, and his

commencement of this action on November 25, 2024,6 are as follows:

No. Grievance ID Date Filed Time Filed

1 #TK-03ZzHuW2WUMc 11-09-2024 3:22 p.m.

2 #TK-GndRmPXYOOzH 11-09-2024 9:29 p.m.

3 #TK-F7FeXcBpDW4J 11-12-2024 11:17 a.m.

4 #TK-R11B3wvoITSu 11-15-2024 10:04 a.m.

5 #TK-M7ha0VSEt21W 11-17-2024 8:55 a.m.

6 #TK-xee6Ji9Kfhzd 11-17-2024 7:00 p.m.

7 #TK-vAfzj7R3S0A4 11-18-2024 4:53 p.m.

8 #TK-YZrptQErbn0n 11-19-2024 10:28 p.m.

9 #TK-EHnudjVcjKPx 11-20-2024 7:48 a.m.

10 #TK-p5sQJ8OGzLJ3 11-23-2024 3:04 p.m.

(See Ex. C at 14–26.)7 Notwithstanding Plaintiff’s submission of these grievances,

Defendants assert that he failed to file any grievance appeals. (Doc. # 74

¶ 30; Ex. A ¶ 12; compare Ex. C (grievances filed by Plaintiff in November and

6 Plaintiff also references a few grievances he filed after commencing this action on November 25,

2024. (See Doc. # 76 at 4.) Similarly, Defendants point to numerous grievances submitted by

Plaintiff in 2025, well after he filed his complaint. (See Doc. # 83 at 3; Doc. # 83-1 ¶ 5 (Ex. E)

(Second Declaration of Lt. Ashley Ogletree); see also Doc. # 83-2 (Ex. F) (containing grievances

submitted by Plaintiff in February, March, and July 2025).) However, none of the grievances

submitted by Plaintiff after the commencement of this action offers help to Plaintiff in refuting

Defendants’ contention that he failed to exhaust administrative remedies prior to filing suit.

7 The phrase “approximately 10 grievances” is used because Plaintiff submitted two grievances on

November 25, 2024––the date his complaint is deemed filed. Counting the two grievances

submitted by Plaintiff on November 25, 2024––#TK-eKjnCDUuAQkc (filed 11-25-2024 at 9:31

am) and #TK-ukuRO5SxZsSI (filed 11-25-2024 at 6:03 pm)––Plaintiff filed twelve grievances

between November 7, 2024 and November 25, 2024.

December 2024, all denoted “Type: Grievance”) with Ex. D (redacted example of a

grievance appeal filed by a different inmate denoted “Type: Grievance Appeal”).)

Critically, Plaintiff does not dispute Defendants’ assertion that he failed to file

any grievance appeals and, thus, did not exhaust administrative remedies before he

filed his complaint. Instead, Plaintiff simply notes the “grievances[,] . . . tickets[,]

and times and dates [he] turned [them] in on the k[i]osk jail system.” (Doc. # 76 at

3.) Below is a list of grievances that Plaintiff alleges he filed during the applicable

timeframe (i.e., between November 7, 2024, and November 25, 2024):

No. Grievance ID Plaintiff’s Desired Recipient Date Filed Time Filed

1 #TK-03ZzHuW2WUMc Jay Jones 11-09-2024 3:22 p.m.

2 #TK-FZ1zrcbh1KWQ Jail Administrator 11-09-2024 3:33 p.m.

3 #TK-GndRmPXYOOzH Jail Supervisor 11-09-2024 9:29 p.m.

4 #TK-F7FeXcBpDW4J Jail Administration 11-12-2024 11:17 a.m.

5 #TK-M7ha0VSEt21W Jay Jones 11-17-2024 8:55 a.m.

6 #TK-0jypLSDMBn21 Captain Jones 11-22-2024 11:09 a.m.

7 #TK-s8WTQjL5V6vd Jay Jones 11-23-2024 3:06 p.m.

8 #TK-eKjnCDUuAQkc Jay Jones 11-25-2024 Time not

provided

(Docs. # 76, 77.)8

Plaintiff states that he “followed all the jail administrative remedies” and

“turn[ed] in all the proper grievances” but that “they all went unanswered

deliberately.” (Doc. # 77 at 7.) However, all of the grievances filed by Plaintiff

during the applicable timeframe––other than those that do not exist according to

8 In their reply, Defendants contend that three of the eight grievances purportedly filed by Plaintiff

during the relevant timeframe––#TK-FZ1zrcbh1KWQ; #TK-0jypLSDMBn21; and #TK-

s8WTQjL5V6vd––do not exist. (See Doc. # 83 at 3; Ex. E ¶¶ 3–4.)

Defendants, see supra note 8––were answered. (See Ex. C at 11–26.) Although

some of Plaintiff’s grievances were not answered in a timely manner (see Ex. C at

15–20, 23), multiple grievances were answered within the 72-hour timeframe

provided in Section 16 of the Inmate Handbook (see Ex. C at 14, 21, 24–26; see also

Ex. B ¶ 16.2 (stating that grievances “will be investigated and answered, in writing,

within 72 hours of the time it is received, excluding holidays and weekends”)), and

Plaintiff could have submitted appeals for any of the timely answered grievances.

Moreover, to the extent that Plaintiff argues his grievances were “deliberately[,]

intentionally ignored by [Sheriff] Jay Jones,” Section 16 of the Inmate Handbook

expressly states that “[g]rievances are first answered by the appropriate staff at the

lowest level in the chain of command” (Ex. B ¶ 16.2), and if an inmate is not satisfied

with the first answer to his grievance, he “may send a grievance to the next higher

command level” and “continue to send it through the chain of command, up to the

Sheriff, who will make the final decision” (Ex. B ¶ 16.3).

At step one of the Turner two-step framework, Plaintiff’s version of the facts

is taken as true where there is a conflict in the facts. Plaintiff’s version of the material

facts does not conflict with Defendants’ motion and attached exhibits showing that

there is a grievance procedure available to Plaintiff at the LCDC, that Plaintiff knew

about the grievance procedure given the number of grievances he filed before and

after initiating this suit, and that Plaintiff filed multiple grievances before and after

filing this lawsuit but no grievance appeals. The PLRA is clear: A prisoner cannot

bring suit “until such administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a); see also Pavao v. Sims, 679 F. App’x 819, 823 (11th Cir. 2017)

(per curiam) (“[E]xhaustion is mandatory under the PLRA, and unexhausted claims

cannot be brought in court.” (citing Jones v. Bock, 549 U.S. 199, 211 (2007))).9 The

evidence submitted by Defendants demonstrates that a grievance-appeal procedure

was available to Plaintiff at the LCDC. (See Ex. A ¶¶ 9–10; Ex. B (Section 16 of

the Inmate Handbook, titled “Grievances”); see also Ex. D (redacted copy of another

inmate’s grievance appeal).) When, as here, there is grievance procedure in place,

a prisoner must “exhaust the remedies available under that procedure before

pursuing a § 1983 lawsuit.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000).

9 The PLRA’s mandatory exhaustion requirement has an important qualifier: It only applies to

available remedies. See 42 U.S.C. § 1997e(a) (providing that a lawsuit under § 1983 cannot be

brought “until such administrative remedies as are available are exhausted” (emphasis added)).

The United States Supreme Court has recognized “three kinds of circumstances in which an

administrative remedy, although officially on the books, is not capable of use to obtain relief” or,

in other words, is “unavailable.” Ross v. Blake, 578 U.S. 632, 642 (2016). As articulated in Ross,

a grievance procedure is unavailable (1) “when (despite what regulations or guidance materials

may promise) it operates as a simple dead end––with officers unable or consistently unwilling to

provide any relief to aggrieved inmates,” id.; (2) when the process is “so opaque that it becomes,

practically speaking, incapable of use,” id.; and (3) “when prison administrators thwart inmates

from taking advantage of a grievance process through machination, misrepresentation, or

intimidation,” id. at 644. The burden is on the defendant to show the availability of an

administrative remedy. Geter v. Baldwin State, 974 F.3d 1348, 1356 (11th Cir. 2020). Once the

defendant meets that burden, the burden shifts to the plaintiff, who then must demonstrate that the

grievance procedure was “subjectively” and “objectively” unavailable to him. Id. Defendants

have shown that a grievance procedure (specifically, a grievance-appeal procedure) was available

to Plaintiff. Plaintiff, on the other hand, has not met his burden of demonstrating that the grievance

procedure (or the grievance-appeal procedure) was unavailable to him. Indeed, he admits

submitting multiple grievances before and after filing this lawsuit, and he notably does not dispute

Defendants’ evidence that shows he did not file any grievance appeals.

And the fact that the Inmate Handbook uses the permissive “may”10 rather than the

mandatory “shall” with respect to inmates filing grievance appeals does not negate

Plaintiff’s obligation to utilize the available grievance-appeal procedure. See, e.g.,

Johnson v. Thyng, 369 F. App’x 144, 147 (1st Cir. 2010) (per curiam) (“Whatever

the merits of [the plaintiff]’s contention that level three of the prison grievance

process is optional, rather than mandatory, PLRA, nonetheless, speaks in terms of

requiring that all ‘available’ remedies be exhausted.” (first citing § 1997e(a) (“No

action shall be brought . . . until such administrative remedies as are available are

exhausted”); and then citing Porter v. Nussle, 534 U.S. 516, 524 (2002) (“All

‘available’ remedies must . . . be exhausted.”))); see also Key v. Van Reil, 2025 WL

777707, at *4 (M.D. Ala. Mar. 11, 2025) (holding that, despite the permissive

language in the county jail’s grievance procedure, see id. at *3 & n.5, “Plaintiff did

not avail himself of the administrative remedies provided in the Houston County Jail

Inmate Handbook by appealing the denial of any grievances”).

Plaintiff has not refuted Defendants’ argument or evidence that he failed to

submit any grievance appeals before filing a lawsuit. The unrefuted evidence

submitted by Defendants thus indicates that Plaintiff did not file any grievance

10 “If [an inmate] is not satisfied with the first answer to his grievance, [he] may send a grievance

to the next higher command level (attach a copy of the first grievance). . . . [and] continue to send

[the grievance] through the chain of command, up to the Sheriff, who will make the final decision.”

(Ex. B ¶ 16.3 (emphasis added).)

appeals before filing his § 1983 complaint. Therefore, Defendants have met their

burden of showing that Plaintiff failed to exhaust the administrative remedies

available to him at the LCDC, and Plaintiff’s complaint, as amended, must be

dismissed at step one of the Turner two-step process.11 See McGuire-Mollica, 146

F.4th 1308, 1314 (11th Cir. 2025) (citing Turner v. Burnside, 541 F.3d 1077, 1082

(11th Cir. 2008)).

V. CONCLUSION

Based on the foregoing, it is ORDERED that Defendants’ construed

unenumerated Rule 12(b) motion to dismiss based on Plaintiff’s failure to exhaust

available administrative remedies before filing suit (Doc. # 73) is GRANTED, and

this action is DISMISSED without prejudice. In all other respects, Defendants’

Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. # 73) is

DENIED as moot.

It is further ORDERED that Plaintiff’s motion to Defendants for copies (Doc.

# 86) is DENIED as moot.

Final judgment will be entered separately.

DONE this 23rd day of June, 2026.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE

11 In dismissing this action for Plaintiff’s failure to exhaust administrative remedies, no opinion is

expressed as to the merits of Plaintiff’s claims.