Moises E. Bure v. Miami-Dade Corrections Department , 507 F. App'x 904 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13048
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-21459-JAL
MOISES E. BURE,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
MIAMI-DADE CORRECTIONS DEPARTMENT,
MEDICAL CARE/HEALTH SERVICES DEPARTMENT,
DR. DEBRA CARLONE,
Doctor at the Jail,
MAURICE KING,
Nurse,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees,
MIAMI-DADE CORRECTION HEALTH SERVICE DEPT.,
llllllllllllllllllllllllllllllllllllllll Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 12, 2013)
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Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Moises Bure, a Florida prisoner proceeding pro se, appeals the district
court’s grant of defendants’ motion to dismiss Bure’s 42 U.S.C. § 1983 complaint
for failure to exhaust administrative remedies and the district court’s denial of his
motion to add Letisha Nottage as an additional defendant. On appeal, Bure argues
that the district court should not have dismissed his claim for failing to exhaust the
administrative remedies provided by the prison. He asserts that he complied with
the grievance procedure outlined in the inmate handbook by handing a grievance
form to Nottage, a correctional counselor in charge of submitting inmate
grievances to prison administrators, complaining that he was not taken to an eye
scan. He claims that Nottage never filed his grievance and returned it to him
unanswered twenty-four days later. Bure also argues on appeal that the district
court should not have denied his motion to add Nottage as an additional defendant.
After careful review, we affirm.
I.
We review de novo the district court’s dismissal of suit for failure to exhaust
available administrative remedies under the Prison Litigation Reform Act
(“PLRA”). Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000). We review the
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district court’s factual findings for clear error. Bingham v. Thomas, 654 F.3d
1171, 1174-75 (11th Cir. 2011).
The PLRA provides 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”
until the prisoner has exhausted his administrative remedies. 42 U.S.C.
§ 1997(e)(a). To properly exhaust administrative remedies, a prisoner must
complete the administrative review process as set forth in the applicable prison
grievance process. Jones v. Bock, 549 U.S. 199, 218, 127 S. Ct. 910, 922, 166 L.
Ed. 2d 798 (2007).
Deciding a motion to dismiss for failure to exhaust administrative remedies
is a two-step process. See Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir.
2008). 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.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
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exhaustion. Id. The defendants bear the burden of proving that the plaintiff has
failed to exhaust his available administrative remedies. Id.First, we must determine whether, if his factual allegations are taken as true,
Bure failed to exhaust his administrative remedies. Id. Accepting Bure’s
contentions as true, he handed a grievance form to Nottage on October 4, 2010,
complaining that he never received an eye scan. Nottage neither filed the
grievance nor passed it along to her supervisor. Instead, she brought it back to
him unanswered, and told him that the prison clinic staff could not find any
referrals from Dr. Silva prescribing that he receive an eye scan.
The issue becomes whether Bure needed to take some additional action after
Nottage returned the unanswered grievance on October 27, 2010, in order to
sufficiently exhaust his remedies. In Turner, 541 F.3d at 1083, we discussed the
responsibilities of an inmate to appeal a response from prison officials where that
response did not accord with inmate grievance procedures. We found that an
inmate’s failure to appeal after the warden ripped up his grievance, instead of
responding in writing as Georgia’s inmate grievance procedure required, did not
mean that the inmate failed to exhaust his administrative remedies. Id. at 1083.
The inmate grievance procedure at issue here requires that prison officials
provide a detailed response to the prisoner’s complaint on the inmate grievance
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form submitted by the prisoner. Like in Turner, however, prison officials did not
follow that procedure here. Instead, accepting Bure’s version of events, Nottage
never submitted Bure’s form and he never received a response on the form itself.
As in Turner, Bure should be excused for his failure to appeal Nottage’s response
because her response did not comply with the inmate grievance procedure.
Because, under the first step, Turner excuses Bure’s failure to exhaust his
administrative remedies, we must move to the second step of the Turner
framework. The district court found a factual conflict that required a specific
finding of fact. Specifically, as discussed above, Bure contended that he complied
with the grievance procedure listed in the inmate handbook by handing a
grievance form to Nottage. He further contended that Nottage never submitted the
form for review, instead returning it to him unanswered twenty-four days later.
Nottage, on the other hand, declared that she could not recall any incident where
Bure gave her a grievance on October 4, 2010, and she returned it to him
unanswered twenty-four days later.1
The district court resolved this factual dispute in Nottage’s favor. We hold
that the district court did not clearly err. See Bingham, 654 F.3d at 1174-75. Bure
1
Although Nottage declared that she could not recall being handed a grievance
form by Bure on October 4, 2011, she clearly intended to refer to October 4, 2010. By October 4,
2011, Bure had been transferred to a state-run facility.
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was internally inconsistent regarding when he filed his inmate grievance form. In
his original complaint, Bure stated that he filed a grievance, dated October 4,
2010, around October 13, 2010. In later filings, however, Bure claimed that he
filed the grievance on October 4, 2010, when he handed it to Nottage that day.
Bure makes no mention of the October 13 date in his subsequent filings and
provides no explanation for this inconsistency to this Court.
Accepting Nottage’s version of events, Bure never turned in an inmate
grievance form concerning the scan during his time at the pre-trial detention
center, and he was not prevented from doing so. He thus did not exhaust his
administrative remedies while at the pre-trial detention center and was not excused
from doing so.
II.
The district court also properly dismissed Bure’s motion to add Nottage as
an additional defendant. Bure cannot bring any claims relating to the incident
because he failed to exhaust his administrative remedies through no fault of
Nottage. It would have been futile to permit him to add her as an additional
defendant.
III.
Upon review of the record and consideration of the parties’ briefs, we
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affirm.
AFFIRMED.
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