[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22, 2006
No. 05-15207 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00048-CV-4-SPM-AK
ANTHONY KOZUH,
Plaintiff-Appellant,
versus
NICHOLS, RN,
STONE, Nurse, RN,
JO MORGAN, SHSA,
BEASLEY, Mrs.,
Classification,
SLOANE, Mr.,
Classification, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 22, 2006)
Before TJOFLAT, ANDERSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Anthony Kozuh, a Florida state prisoner proceeding pro se, appeals the
district court’s dismissal of his civil rights complaint, 42 U.S.C. § 1983, for failure
to exhaust administrative remedies, 42 U.S.C. § 1997e. After a thorough review of
the record, we affirm.
Kozuh filed a pro se complaint under § 1983 against Santa Rosa
Correctional Facility Warden Petrovsky,1 SHSA Morgan, Nurses Nichols and
Stone, Classification Officers Beasley and Sloane, Captains Dicks and Burnham,
and Officers Knight and Stein, all in their individual capacities, alleging four
incidents of deliberate indifference to his medical needs in violation of the Eighth
Amendment. The allegations of deliberate indifference involved treatment for
Kozuh’s hernia and follow-up care after Kozuh received surgery.2
As evidence that he exhausted the grievance process, Kozuh submitted the
following: In February 2003, Kozuh filed an informal grievance with the medical
department regarding his treatment. He submitted this grievance to Dr. Thayer at
North Florida Reception Center (“NRFC”), where Kozuh was admitted for medical
1
In his complaint, Kozuh named John Doe as the warden. The court later substituted
Petrovsky as the named party.
2
It does not appear that Officer Stein or Captain Burnham received service of the complaint.
2
care. Thayer denied the grievance because it contained allegations of conduct at
Santa Rosa, and instructed Kozuh to bring his grievance to the warden or the
inspector general’s office. This denial also included information instructing Kozuh
that he could file a formal grievance or an appeal.3
In March 2003, Kozuh filed a request seeking to determine what authority a
nurse had to override a doctor’s order, and asking to be returned to medical for
proper care. The grievance was denied because Kozuh did not follow proper
procedure in filing the grievance.
Also in March 2003, Kozuh filed another informal grievance with the
medical department for “§ 1983 pre-emption.” This grievance was again submitted
to staff at NFRC and pertained to allegations against the staff at Santa Rosa. The
grievance was denied. Kozuh immediately filed two other grievances at NFRC
making allegations against the staff at Santa Rosa. Thayer again denied the
grievances and informed Kozuh that he should raise his issues with the
classification officer and the inspector general.
In May 2003, Kozuh filed a request with quality control and risk
management to ensure proper medical care upon return to Santa Rosa. He was
informed that he would not be returning to Santa Rosa. Kozuh followed up with
3
Each grievance denial contained the same information concerning the right to appeal.
3
another request and was told to address his concerns with the staff at his new
facility.
That same month, Kozuh filed an informal grievance, which he entitled
“final instit. step.” In this filing, Kozuh requested assistance in getting a response
from the classification officer regarding an April 2003 request. In response, Kozuh
was informed that the questions and requests he filed would not qualify as
grievances for exhaustion purposes.
Kozuh then filed an informal grievance with the classification department as
an “exact copy” of the request sent in April. In response, Kozuh was instructed to
address his issues with the medical department and the inspector general’s office.
In September 2003, Kozuh submitted a grievance to the Secretary of the
Florida Department of Corrections (“DOC”) regarding the deliberate indifference
at Santa Rosa and the lack of response to his complaints. In response, Kozuh was
told that it was necessary to file a formal grievance at the institutional level, and
that his grievance was not of a sensitive nature that would enable him to by-pass
the procedure. Kozuh then filed a “summary notice” directed to the state attorney
general’s office and the Florida Department of Law Enforcement (“FDLE”). In
October 2003, he submitted a grievance to the warden, which was denied because
it involved personnel at another institution.
4
The defendants moved to dismiss the complaint for failure to exhaust
administrative remedies under § 1997e(a) because Kozuh had not followed the
three-step grievance process or the two-step process applicable to medical
complaints.
Kozuh responded that he had done everything he could do to exhaust. He
indicated that he had filed grievances as instructed by staff, but that he received no
responses. He also alleged that his records and legal documents were destroyed.
The magistrate judge recommended that the complaint be dismissed for
failure to exhaust. After reviewing the grievances, the magistrate judge noted that
Kozuh had not perfected his appeal to the highest level. Finally, the magistrate
judge noted that the court could not consider the adequacy or futility of the
grievance process, as long as the process was available.
Kozuh objected to the recommendation, contending that he had gone above
and beyond the exhaustion requirements, and that he was “thwarted” when officials
refused to respond to his grievances, leaving the grievance procedure unavailable.
The district court adopted the magistrate judge’s recommendation over Kozuh’s
objections and dismissed the complaint.
On appeal, Kozuh asserts that he exhausted remedies above and beyond
what was required, and that the failure of prison officials to respond to his
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grievances rendered the process exhausted. He further asserts that the grievance
procedure was not available to him because his legal material was destroyed, and
his grievances were ignored, which precludes the defendants from arguing failure
to exhaust.4
We review de novo a district court’s interpretation and application of 42
U.S.C. § 1997e(a)’s exhaustion requirement. Johnson v. Meadows, 418 F.3d 1152,
1155 (11th Cir.), petition for cert. filed, (Sept. 8, 2005) (No. 05-6336);
Higginbottom v. Carter, 223 F.3d 1259, 1260 (11th Cir. 2000); Alexander v. Hawk
159 F.3d 1321, 1323 (11th Cir. 1998). The failure to exhaust administrative
remedies requires that the action be dismissed. Chandler v. Crosby, 379 F.3d
1278, 1286 (11th Cir. 2004).
Section 1997e(a) 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 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 requirement “applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege
4
Kozuh also argues, for the first time, that the Secretary withheld evidence of prison
officials’ misconduct and he requests that the court conduct a hearing to determine the availability
of the grievance process.
6
excessive force or some other wrong,” and mandates strict exhaustion. Johnson,
418 F.3d at 1155; Booth v. Churner, 532 U.S. 731, 741 n.6, 121 S.Ct. 1819, 1825
n.6, 149 L.Ed.2d 958 (2001).
In Florida, the grievance process consists of a three-step procedure. An
inmate must first file an “informal grievance . . . to the staff member who is
responsible in the particular area of the problem.” Fla. Admin. Code Ann. § 33-
103.005(1). The second step requires the inmate file a formal grievance with the
warden. Id. § 33-103.006(1)(a). If the inmate is unsuccessful at this point, he may
submit an appeal to the Secretary of the DOC. Id. § 33-103.007.5
Medical grievances require only a two-step procedure: the inmate must file a
formal grievance at the institutional level with the chief health officer. If the
inmate is unsuccessful, he may file an appeal with the Secretary. Id. § 33-103.008.
Here, the record is devoid of any evidence that Kozuh raised his issues in
informal grievances, formal grievances and appeals. Although Kozuh argues, and
the record reflects, that he submitted his complaints multiple times to multiple
authorities, all he was required to do was either (a) submit his complaints to the
5
To file an informal grievance, the inmate must use form DC6-236. 33-103.005(2). Asking
a question or requesting information does not qualify as an informal grievance. Id. § 33-
103.005(2)(b)(1). A formal grievance requires the use of Form DC1-303. Id. § 103.006(1). In the
case of an emergency grievance, a grievance of reprisal, or a grievance involving sensitive material,
the inmate may file the grievance directly with the Secretary. Id. § 33-103.007(6).
7
medical staff, the warden, and then appeal to the Secretary, or (b) in the case of
medical grievances, to the medical department followed by an appeal to the
Secretary. There is no evidence, however, that he followed these steps. In fact,
most of the forms submitted indicate on their face that they were requests for
information, questions, or informal grievances. And although each denial explains
the right to appeal, it does not appear that Kozuh ever exercised that right in
connection with these complaints. Moreover, submitting complaints to the wrong
parties - the FDLE and the attorney general’s office - does not constitute
exhaustion. See Johnson, 418 F.3d at 1157.
Furthermore, despite his arguments to the contrary, there is no evidence that
Kozuh was thwarted from bringing his grievances or that the grievance process
was unavailable. Instead, the evidence shows that Kozuh was able to file
numerous informal complaints and requests for information. Therefore, because
there was a grievance process available to prisoners, and Kozuh did not avail
himself of the process by following the grievance procedures, the district court
properly determined that he failed to exhaust administrative remedies.
Accordingly, we AFFIRM.
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