Hanoi Hormachea v. Dr. Haridas Bhadja

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12635
Non-Argument Calendar
____________________
HANOI HORMACHEA,
Plaintiff-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants,
DR. HARIDAS BHADJA,
Chief Medical Officer at Okeechobee
Correctional Institution, in official capacity,
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2 Opinion of the Court 22-12635
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:21-cv-14227-JEM
____________________
Before J ILL PRYOR , BRANCH, and BLACK , Circuit Judges.
PER CURIAM:
Hanoi Hormachea, a state prisoner proceeding pro se, ap-
peals the dismissal of his civil rights claim brought under 42 U.S.C.
§ 1983 for failure to exhaust administrative remedies. He asserts he
exhausted his administrative remedies by filing a timely informal
grievance and later filing a formal medical grievance because other
remedies were both unavailable and futile. After review,1 we af-
firm.
1 “We review a dismissal for failure to exhaust administrative remedies de
novo.” Shivers v. United States, 1 F.4th 924, 936 n.9 (11th Cir. 2021). “[D]eciding
a motion to dismiss for failure to exhaust administrative remedies is a two-step
process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). First, we
take the plaintiff’s factual allegations as true and determine if they entitle the
defendant to dismissal for failure to exhaust administrative remedies. Id. Sec-
ond, if dismissal is not warranted at the first step, the court should make spe-
cific findings to resolve disputes of fact and should dismiss if, based on those
findings, the defendant has shown a failure to exhaust. Id.
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22-12635 Opinion of the Court 3
I. BACKGROUND
On July 25, 2019, Hormachea filed an informal grievance.
He grieved that he fell in the dining hall on July 11, 2019 and was
seen by Dr. Haridas Bhadja on July 15, 2019, who prescribed him
thirty tablets of ibuprofen for ninety days and scheduled him for an
X-ray on July 17, 2019. Hormachea complained that he had not
seen the doctor since then and that he was unable to move his arm
as a result of the pain. He also complained that he had not yet
received an ointment the doctor prescribed him on July 11, 2019.
His informal grievance was approved and responded to on July 29,
2019. The response stated that Plaintiff had “a scheduled appoint-
ment with the provider in the near future” and that if he experi-
enced future problems, he may present his concerns to the health
care staff through sick call.
On October 10, 2019, Hormachea was transferred to an-
other facility. Hormachea learned upon arrival that he had been
transferred to receive treatment for his shoulder injury. On the day
he arrived, he was seen by a doctor who took X-rays and diagnosed
Hormachea with a broken bone. The doctor prescribed an injec-
tion for the pain and scheduled another appointment within four
weeks.
Hormachea filed a formal grievance on October 21, 2019. In
his formal grievance, he stated that Dr. Bhadja failed to provide
proper treatment for his shoulder after he was seen by him on July
15, 2019. He grieved that Dr. Bhadja’s determination that there was
nothing wrong with his left shoulder constituted deliberate
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4 Opinion of the Court 22-12635
indifference to his serious medical conditions. The formal griev-
ance was denied on November 4, 2019, without any mention of
non-compliance with the grievance procedures. Hormachea ap-
pealed the decision to the Florida Department of Corrections
(FDOC) Office of the Secretary on November 16, 2019. The appeal
was returned without action on December 13, 2019 for non-com-
plaince with the grievance procedures set forth in Chapter 33-103.
The response to the appeal stated that Hormachea was “outside
the timeframe to grieve this issue as [he] didn’t submit a formal
grievance on it until 10/21/19 and the Institution should have re-
turned [his] formal grievance.”
II. DISCUSSION
The Prison Litigation Reform Act (PLRA) provides that no
action may be brought with respect to prison conditions under 42
U.S.C. § 1983 by a prisoner until their available administrative rem-
edies are exhausted. 42 U.S.C. § 1997e(a). “There is no question
that exhaustion is mandatory under the PLRA and that unex-
hausted claims cannot be brought in court.” Jones v. Bock, 549 U.S.
199, 211 (2007). The PLRA’s exhaustion requirement “entirely
eliminates judicial discretion and instead mandates strict exhaus-
tion, irrespective of the forms of relief sought and offered through
administrative avenues.” Johnson v. Meadows, 418 F.3d 1152, 1155
(11th Cir. 2005) (quotation marks omitted). “The PLRA exhaustion
requirement requires proper exhaustion,” which “means using all
steps that the agency holds out, and doing so properly (so that the
agency addresses the issues on the merits).” Woodford v. Ngo, 548
U.S. 81, 90, 93 (2006) (emphasis omitted). Proper exhaustion
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22-12635 Opinion of the Court 5
“demands compliance with an agency’s deadlines and other critical
procedural rules.” Id. at 90.
Under the FDOC grievance procedures outlined in Florida’s
Inmate Grievance Procedure, Fla. Admin. Code ch. 33-103, in rele-
vant part, an inmate is required to (1) file an informal grievance
with the staff member responsible for the particular area of the
problem, (2) file a formal grievance with the warden’s office, and
(3) if an appeal is desired, submit an appeal to the Office of the
Secretary. Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218
(11th Cir. 2010); Fla. Admin. Code R. 33-103.005–.007. A formal
grievance must be received no later than 15 days after (1) the date
on which the informal grievance was responded to, or (2) the date
on which the incident or action being grieved occurred if an infor-
mal grievance was not filed pursuant to the circumstances specified
in Rule 33-103.006(3). Fla. Admin. Code R. 33-103.011(1)(b). If the
formal grievance is not timely filed, a grievance or its appeal may
be returned to the inmate without further processing. Id. R. 33-
103.014(1)(d)–(e).
The district court did not err in granting Bhadja’s motion to
dismiss because Hormachea failed to exhaust his administrative
remedies. Exhaustion is mandatory under the PLRA. See Jones, 549
U.S. at 211. Hormachea received a response to his informal griev-
ance on July 29, 2019, and under Florida’s Inmate Grievance Proce-
dure, he was required to file his formal grievance no later than 15
days after receiving that response. See Fla. Admin. Code R. 33-
103.011(1)(b). However, Hormachea did not file his formal
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6 Opinion of the Court 22-12635
grievance until October 21, 2019, over two months after the admin-
istrative deadline expired. Because Hormachea’s formal grievance
was untimely filed, he failed to comply with the procedural rules
of the Inmate Grievance Procedure, as required to exhaust admin-
istrative remedies.2 See Woodford, 548 U.S. at 90, 93. Thus, the dis-
trict court did not err in dismissing his complaint for failure to ex-
haust administrative remedies.
As to Hormachea’s argument that administrative remedies
were unavailable to him, the district court considered that argu-
ment when it found his allegations of “gate-keepers . . . shortstop-
ping” him did not change the outcome. Additionally, Hormachea
failed to allege any facts supporting a plausible inference that ad-
ministrative remedies were unavailable. While he alleged various
people in the administrative system “created . . . impediments,” he
never explained what those impediments were. Likewise, though
he invoked the “machination, misrepresentation, or intimidation”
category of unavailable administrative procedures, he did not iden-
tify any machination, misrepresentation, or intimidation. See Ross
v. Blake, 578 U.S. 632, 643 (2016) (noting, as an administrative rem-
edy not capable of use to obtain relief, “when prison administrators
thwart inmates from taking advantage of a grievance process
2 The district court also did not err in finding the administrative panel’s review
of Hormachea’s untimely formal grievance on the merits did not render it
timely. Nothing in Florida’s Inmate Grievance Procedure law or the PLRA
indicates that an administrative review of an untimely grievance on the merits
renders that grievance timely. See Fla. Admin. Code ch. 33-103; 42 U.S.C.
§ 1997e(a).
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22-12635 Opinion of the Court 7
through machination, misrepresentation, or intimidation”). In-
stead, he referenced legitimate procedural steps which resulted in
reviews that did not result in his favor. Such contentions are con-
clusory and do not raise his allegations above the speculative level.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (explaining a
plaintiff’s factual allegations must be enough to raise a right to re-
lief above the speculative level, and something “more than labels
and conclusions” is required). Disagreement with an administra-
tive body’s rulings and procedures does not constitute unavailabil-
ity of the process. See Ross, 578 U.S. 643-44. The district court also
did not err in rejecting Hormachea’s argument that the administra-
tive grievance process was futile, because futility is not a defense to
the PLRA’s exhaustion requirements. See Alexander v. Hawk, 159
F.3d 1321, 1325-26 (11th Cir. 1998) (stating futility of pursuing ad-
ministrative remedies is not an exception to the exhaustion require-
ments of the PLRA).
III. CONCLUSION
The district court did not err in dismissing Hormachea’s
complaint for failure to exhaust his administrative remedies be-
cause his formal grievance was not timely filed. Accordingly, we
affirm.
AFFIRMED.
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