This matter comes before the Court upon review of the Motion to Dismiss (Doc. #46, Mot. Dismiss), filed on behalf of Defendants Edwards and Kovach. Plaintiff filed a response in opposition to the Motion (Doc. #47, Response). Defendants filed a Reply (Doc. #53, Reply), after being granted leave from the Court. This matter is ripe for review.
Gabriel Kenon, a pro se plaintiff, initiated this action by filing a Civil Rights Complaint Form (Doc. #1) pursuant to 42 U.S.C. § 1983 while incarcerated in the Florida Department of Corrections. See docket. Upon review of the Complaint, the Court directed Plaintiff to file an Amended Complaint (Doc. #3) and Plaintiff complied (Doc. #10). Plaintiff is proceeding on his Amended Complaint (Doc. #10, hereinafter "Amended Complaint"), filed December 14, 2010.
Plaintiff names Captain Costello Edwards and Nurse Kovach, employees of Charlotte Correctional Institution, as Defendants.*fn1
Complaint at 1. According to the Complaint, on September 1, 2010, Defendant Edwards applied chemical agents for no reason on Plaintiff, who suffers from asthma. Plaintiff claims that Defendant Edwards then falsified a disciplinary report to justify the use of chemical agents. Amended Complaint at 7. Plaintiff alleges that Defendant Edwards knew Plaintiff had asthma. Id. Plaintiff further alleges that jail officials expunged the relevant disciplinary report. Plaintiff states that he suffered an asthma attack because of the application of chemical agents and was given "emergency treatment." Id. at 7-8.
With respect to Defendant Nurse Kovach, Plaintiff alleges that Defendant Edwards contacted Defendant Kovach before using chemical agents to see if Plaintiff had a medical condition that would prohibit the use of agents. Id. at 8. Plaintiff claims that despite Nurse Kovach knowing his medical condition, she "failed to make a medical asses[s]ment of [his] condition to Captain Edwards." Id. In other words, Plaintiff attributes liability on Defendant Kovach for failing to advise Defendant Edwards of the risks involved of spraying chemical agents on an asthmatic. Id.
As relief, Plaintiff seeks a reward of damages "sustained through general negligence (culpable, wanton, gross, concurrent) and libel in the total amount of two hundred thousand dollars ($200,000)." Id. at 9.
Defendants move for dismissal based on Plaintiff's failure to exhaust his administrative remedies with respect to the claims against Nurse Kovach. Mot. Dismiss at 4. Alternatively, Defendants move to dismiss because negligence, lack of due care, defamation, and slander are not actionable claims under § 1983. Id. at 10-12. For the reasons herein, the Court grants the Defendants' Motion in part, and denies the Motion in part.
II. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act, which amended The Civil Rights of Institutionalized Persons Act, provides as follows:
(a) Applicability of administrative remedies. No 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)(emphasis added). A prisoner must exhaust all available administrative remedies before filing an action in federal court. Woodford v. Ngo, 548 U.S. 81, 88 (2006); Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). Although prisoners are not required to plead exhaustion, Jones v. Bock, 549 U.S. 199, 216 (2007), "[t]here is no question that exhaustion is mandatory under the PLRA, and that unexhausted claims cannot be brought in court." Id. at 211. In order to exhaust, the inmate must comply with "all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Woodford, 548 U.S. at 90.
Whether an inmate has exhausted his available administrative remedies is a factual issue that is properly made by the court. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Thus, "[e]ven though a failure -to-exhaust defense is non-jurisdictional, it is like a defense for lack of jurisdiction in one important sense: Exhaustion of administrative remedies is a matter in abatement, and ordinarily does not deal with the merits." Id. (footnote, internal quotations, and citations omitted). The defense of exhaustion is properly raised in a motion to dismiss as a "matter of judicial administration." Id. at 1375. Thus, the court is permitted to look beyond the pleadings to decide disputed issues of fact in connection with the exhaustion defense. Id. at 1377 n.16.
The Florida Department of Corrections has a detailed grievance procedure in place. See Fla. Admin. Code 33-103.001 et. seq. Pursuant to the Florida Administrative Code Chapter, 33-103, Plaintiff is required to exhaust all available administrative remedies before pursuing a civil rights action. Specifically, the Florida Department of Corrections provides a three-step grievance procedure. First, an inmate must normally file either an informal grievance or formal grievance depending on the nature of his complaint. Fla. Admin. Code 33-103.005-.007. Except in certain circumstances, when an inmate files a formal grievance, he or she must attach the informal grievance and the response received to the informal grievance. Id. at 33-103.006(2)(h). If the inmate's issue is not resolved by utilizing the formal grievance at the institutional level, the inmate must file an appeal to the Office of the Secretary of the Florida Department of Corrections. Id. at 33-103.007. Additionally, an inmate ...