Anthony Kozuh v. Nichols

185 F. App'x 874
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 22, 2006
Docket05-15207; D.C. Docket 04-00048-CV-4-SPM-AK
StatusUnpublished
Cited by4 cases

This text of 185 F. App'x 874 (Anthony Kozuh v. Nichols) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anthony Kozuh v. Nichols, 185 F. App'x 874 (11th Cir. 2006).

Opinion

PER CURIAM:

Anthony Kozuh, a Florida state prisoner proceeding pro se, appeals the district court’s dismissal of his ciM 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 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

*876 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 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.

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.

*877 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 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 excessive force or some other wrong,” and mandates strict exhaustion. Johnson,

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Bluebook (online)
185 F. App'x 874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anthony-kozuh-v-nichols-ca11-2006.