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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13844
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-24003-UU
HUMBERTO TRIAS,
a.k.a. Humberto Toras,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant,
NURSE BERNICE TERRELL,
individual,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 23, 2014)
Before TJOFLAT, JORDAN, and FAY, Circuit Judges.
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PER CURIAM:
Humberto Trias, a Florida inmate proceeding pro se, appeals the district
judge’s dismissal without prejudice of his 42 U.S.C. § 1983 civil rights complaint
for failure to exhaust administrative remedies. We affirm.
I. BACKGROUND
Trias’s complaint states, on the morning of February 18, 2010, while Trias,
an insulin-dependent diabetic, was housed at the South Florida Reception Center
(“SFRC”), Nurse Bernice Terrell, whom Trias knew only as “Nurse B.” at the
time, injected Trias with an overdose of insulin. Later that morning, Trias fainted
and hit his head on the corner of a steel locker, as a result of which he suffered
several serious injuries.
Trias alleged, on February 20, 2010, he filed an inmate request form
concerning the February 18 incident, and, on February 26, 2010, he filed an
informal grievance, but received no response to either submission. Because
inmates were not given copies of filed forms, Trias had to draft additional
handwritten copies for his files. Trias then filed informal grievances with the
SFRC and Calhoun Correctional Institution (“Calhoun CI”) assistant wardens, on
July 12 and August 24, 2010, respectively. 1 He received responses to both
submissions. On September 4 and October 1, 2010, Trias filed formal grievances,
1
Trias was transferred to Calhoun CI in March 2010. He later was transferred to Liberty
Correctional Institution.
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but did not receive a response to either filing. Trias also alleged his Medication
and Treatment Record for February 18, 2010, was missing from his file.
In November 2011, Trias filed a pro se § 1983 complaint against Nurse
Bernice Terrell, of the SFRC, asserting various Eighth Amendment claims, as well
as a state-law personal-injury claim. 2 Trias attached several exhibits to his
complaint. Trias’s inmate request forms dated February 20 and 26, 2010,
contained no entries in the sections designated for responses. A July 12, 2010,
informal grievance addressed to the SFRC assistant warden indicated it was being
returned to Trias, because it had been filed at a location to which he was not
currently assigned. An informal grievance addressed to the Calhoun CI assistant
warden, dated August 24, 2010, was denied, because no documentation in Trias’s
medical records substantiated his claim of an insulin overdose on February 18,
2010.
In a September 4, 2010, Request for Administrative Remedy or Appeal
addressed to the Calhoun CI assistant warden, Trias indicated he was appealing an
informal grievance concerning the February 18 incident. In a Request for
Administrative Remedy or Appeal addressed to the Secretary of the Florida
Department of Corrections (“FDOC”), dated October 10, 2010, Trias stated the
time for responding to his September 4 request had expired, and he was seeking to
2
Trias also named as a defendant Ken Tucker, the Secretary of the Florida Department of
Corrections. Tucker was dismissed from the case and is not a party to this appeal.
3
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further exhaust his administrative remedies. No response or acknowledgement of
receipt appeared on the September 4 or October 10 forms.
Trias also submitted an affidavit sworn to by FDOC inmate Jessie Milton.
Milton attested he had filed several grievances for which he had received no
response. He explained that inmates previously had received signed receipts upon
the submission of grievances. Under the current procedures, however, inmates had
to wait for receipts, which sometimes never were given. In such situations,
inmates were unable to substantiate the filing of grievances.
In addition, Trias attached several document requests and informal
grievances he had submitted to the medical departments at Liberty Correctional
Institution and the SFRC between July and September 2011, as well as several of
Trias’s medical records. A response to Trias’s July 8, 2011, request for “Mrs.
B.[’s]” full name identified her as “Beatriz Terrel.” ROA at 34.
Following discovery, Nurse Terrell moved for summary judgment on several
grounds, including that Trias had failed to exhaust his administrative remedies
under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Nurse
Terrell argued Trias did not file a formal grievance or an appeal to the FDOC
Secretary, as required by state grievance procedures. Nurse Terrell submitted
several documents in support of her summary judgment motion, including an
affidavit sworn to by Rebecca Padgham, a Correctional Services Assistant
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Consultant employed by the FDOC Bureau of Policy Management and Inmate
Appeals (“BPMIA”). Padgham attested she was the records custodian for all
inmate grievance appeals to the FDOC Secretary. After reviewing Trias’s
grievance file, Padgham determined Trias did not file any appeals to the FDOC
Secretary regarding Nurse Terrell and an alleged insulin overdose on February 18,
2010.
Trias testified in his deposition that, after the February 18, 2010, incident, he
had difficulty obtaining grievance forms, which are kept behind a glass wall by an
officers’ station. Several times, Trias was told no request forms were available.
Another inmate provided a request form to Trias on the evening of February 20.
Trias testified, on that date, he asked Nurse Terrell for her name, which she refused
to provide. A response to a later grievance indicated Nurse Terrell’s first name
was “Beatrice” and included an incorrect spelling of her last name. ROA at 355.
A relative of Trias eventually learned Nurse Terrell’s name.
In his opposition to Nurse Terrell’s summary judgment motion, Trias argued
he had complied with the grievance procedures, including filing an administrative
appeal to the FDOC Secretary, but he had no power to force a response to a
grievance. He further argued prison officials should not be allowed to take unfair
advantage of the PLRA exhaustion requirements.
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The district judge sua sponte ordered Trias to file a supplemental response as
to exhaustion. The judge explained she would resolve any factual disputes
concerning exhaustion without a hearing. The judge further explained Trias could
not rely solely on his complaint or unsworn response, but was required to submit a
sworn statement including all information bearing on his satisfaction of the
grievance procedures and his credibility on that issue.
In response, Trias filed an affidavit in which he attested he had to rely on
handwritten copies of his submissions, because carbon copies were not provided
for the Request for Administrative Remedy or Appeal forms. Trias further attested
the SFRC, where the February 18, 2010, incident occurred, did not have a locked
grievance box, as required by administrative rules. He contended this lapse, along
with authorities’ inability to locate his medical records concerning the February 18
incident and their failures to respond to several of his grievances, gave rise to
issues of fact as to the mishandling of grievance records and implied the existence
of an institutional conspiracy. Trias asserted his credibility was supported by:
(1) his July and August 2010 informal grievances; (2) his persistent efforts to
exhaust his administrative remedies; and (3) the response to his July 8, 2011,
informal grievance, which contained incorrect information.
The district judge construed Nurse Terrell’s motion for summary judgment
as a motion to dismiss for failure to exhaust administrative remedies, dismissed
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Trias’s § 1983 claim on that ground, and declined to exercise supplemental
jurisdiction over Trias’s state-law claim. The judge found Trias had not appealed
to the FDOC Secretary and therefore had not exhausted his administrative
remedies. The judge stated she had considered all of the evidence, but notably was
persuaded by the affidavit of FDOC records custodian Rebecca Padgham. The
judge noted the FDOC’s procedures, under which a grievance may pass through
the hands of multiple staff members and offices before a receipt is issued to the
inmate, “invite[d] this very factual dispute.” ROA at 509-10.
Nevertheless, the judge found the following facts diminished the credibility
of Trias’s exhaustion claim: (1) his pursuit of the administrative procedures had
been erratic and often failed to comply with the procedural requirements; (2) he did
not follow through when his original informal grievance went unacknowledged in
February 2010; (3) he waited over five months before filing a second informal
grievance in the wrong institution; and (4) his third informal grievance was
untimely, even though it was denied on the merits. The judge concluded Nurse
Terrell had met her burden of showing Trias had not exhausted his administrative
remedies, and the judge dismissed Trias’s complaint without prejudice on that
ground.
On appeal, Trias argues the district judge erroneously dismissed his
complaint and disputed facts as to exhaustion should be decided by a jury.
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According to Trias, the FDOC repeatedly interfered with his attempts to pursue his
administrative remedies by failing to comply with its own rules and to provide
receipts and responses. Trias further argues, when his August 24, 2010, informal
grievance was denied on the merits, his prior grievances became moot, and the
district judge abused her discretion by considering them in the dismissal of his
complaint. Trias claims he properly filed an appeal with the FDOC Secretary after
he did not receive a timely receipt of the formal grievance he filed with the
Calhoun CI assistant warden, and he was not required to grieve a breakdown in the
grievance process.
Trias argues “summary judgment” was not appropriate in light of the district
judge’s finding that FDOC procedures invited the current factual dispute. Terrell’s
Br. at 12. Trias contends, because state personnel lost his appeal to the FDOC, his
case falls within an exception to the PLRA’s exhaustion requirements. Trias also
asserts prison authorities’ inability to locate his medical records from the day in
question suggests intentional interference. According to Terrell, because of
changes to grievance procedures, it is impossible for an inmate to substantiate the
filing of any grievance other than by making his own handwritten copies of filings.
Trias contends a system whereby the FDOC can raise an exhaustion defense
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simply by “purporting” it never received a grievance appeal is fundamentally
unfair.3 Trias Reply Br. at 2.
II. DISCUSSION
We review de novo the district judge’s application of 42 U.S.C. § 1997e(a),
the PLRA’s exhaustion requirement. Higginbottom v. Carter, 223 F.3d 1259, 1260
(11th Cir. 2000) (per curiam). We review for clear error the district judge’s
findings of fact, including credibility determinations, underlying a determination as
to exhaustion. See Bryant v. Rich, 530 F.3d 1368, 1378-79 (11th Cir. 2008). If the
judge’s assessment of the evidence is plausible in light of the record viewed in its
entirety, we may not reverse even if convinced we would have weighed the
evidence differently. Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S. Ct.
1504, 1511 (1985).
Before a prisoner may file a § 1983 suit in federal district court challenging
the conditions of his confinement, he must first exhaust all administrative remedies
as a precondition. 42 U.S.C. § 1997e(a); Leal v. Ga. Dep’t of Corr., 254 F.3d
1276, 1279 (11th Cir. 2001) (per curiam). To exhaust administrative remedies as
required by the PLRA, prisoners properly must take each step in the administrative
process. Bryant, 530 F.3d at 1378. An assertion that available administrative
3
While Trias also attempts to raise a new argument and assert the doctor who prescribed
insulin to him is not licensed in Florida, we find this argument does not warrant discussion.
Regardless of whether Trias’s contentions regarding the licensing status of his prescribing doctor
are properly before us, they have no bearing on the question of exhaustion.
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procedures are futile does not excuse the exhaustion requirement. Higginbottom,
223 F.3d at 1261.
A defendant bears the burden of proving the plaintiff has failed to exhaust
available administrative remedies. Turner v. Burnside, 541 F.3d 1077, 1082 (11th
Cir. 2008). A district judge may resolve disputed factual issues where necessary to
the disposition of a motion to dismiss for failure to exhaust. See id. The judge
properly may consider facts outside of the pleadings to resolve a factual dispute as
to exhaustion where doing so does not decide the merits, and the parties have a
sufficient opportunity to develop the record. Bryant, 530 F.3d at 1376.
To exhaust administrative remedies, a Florida inmate generally must submit:
(1) an informal grievance to the staff member responsible for the particular area of
the problem, (2) a formal grievance with the warden, and (3) an appeal to the
Office of the Secretary of the FDOC. See Fla. Admin. Code Ann. rr. 33-
103.005(1)(a)-(b), 33-103.006(1), 33-103.007(1); Chandler v. Crosby, 379 F.3d
1278, 1288 (11th Cir. 2004). When filing a medical grievance, an inmate may
begin the process with a formal grievance, which may be followed by an appeal to
the FDOC Secretary. See Fla. Admin. Code Ann. rr. 33-103.005(1), 33-
103.007(1).
The reviewing authority has 10 days to respond to informal grievances and
20 days to respond to formal grievances. Id. r. 33-103.011(3)(a)-(b). Unless the
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inmate has agreed to an extension in writing, expiration of these time limits at any
step in the grievance process entitles the inmate to proceed to the next step. Id. r.
33-103.011(4). Where an informal grievance was filed, a formal grievance must
be received no later than 15 days after a response to the informal grievance was
given. Id. r. 33-103.011(l)(b)1. An appeal to the FDOC Secretary likewise must
be received no later than 15 days from the date the response to a formal grievance
was provided to an inmate. Id. r. 33-103.011(l)(c).
The district judge did not err when she concluded Trias had not exhausted
his administrative remedies. The evidence was sufficient for the judge reasonably
to determine Nurse Terrell met her burden of showing Trias did not file an appeal
to the FDOC Secretary, as required by the PLRA in conjunction with the Florida
inmate grievance procedures. See 42 U.S.C. § 1997e(a); Fla. Admin. Code Ann. r.
33-103.007(1); Turner, 541 F.3d at 1082; Chandler, 379 F.3d at 1288.
Trias has cited no authority for his contention that the district judge, in
making a credibility assessment, could not consider all of Trias’s various
information requests and grievances related to the February 18, 2010, incident.
Regardless of whether the FDOC interfered with his attempts to pursue his
administrative remedies, provided an incorrect spelling of Nurse Terrell’s name, or
failed to follow its own rules, Trias was not relieved of his obligation to file an
appeal to the FDOC Secretary. Cf. Higginbottom, 223 F.3d at 1261 (explaining
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that a claim that administrative procedures are futile does not excuse the
exhaustion requirement).
Trias’s challenge to the district judge’s improper grant of “summary
judgment” is belied by the record. The judge explicitly explained she was treating
Nurse Terrell’s assertion of Trias’s failure to exhaust administrative remedies “as if
it were raised on a motion for dismissal.” ROA at 503. Because the parties had a
sufficient opportunity to develop the factual record, the judge was empowered to
resolve factual disputes as to this issue. See Turner, 541 F.3d at 1082; Bryant, 530
F.3d at 1376.
Trias’s argument, that he was not required to grieve a breakdown in the
grievance process, misreads the basis for the district judge’s dismissal. The judge
did not fault Trias’s failure to grieve a breakdown in the process. Rather, the judge
faulted Trias’s failure to comply with the available procedures as to his substantive
grievance. Trias has provided no evidence to support his contention that FDOC
personnel lost his appeal, other than his own testimony, which the district judge
was entitled to find was outweighed by other record evidence. See Turner, 541
F.3d at 1082; Bryant, 530 F.3d at 1376.
Contrary to Trias’s contention, Nurse Terrell was not entitled to a dismissal
simply by “purporting” the FDOC never received his appeal. Nurse Terrell
submitted evidence in support of this assertion in the form of an affidavit sworn to
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by an FDOC records custodian. The district judge properly determined a factual
dispute existed as to this issue and did not clearly err when she found in favor of
Nurse Terrell. 4 See Turner, 541 F.3d at 1082; Bryant, 530 F.3d at 1376.
AFFIRMED.
4
Trias has abandoned, by failing to brief, any argument as to the district judge’s decision
not to exercise jurisdiction over his state-law claims. See Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008) (recognizing, although pro se briefs are to be construed liberally, a pro se
litigant who offers no substantive argument on an issue in his initial brief abandons that issue on
appeal).
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