United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS United States District Judge
is an inmate confined in the Florida penal system. He is
proceeding pro se on an Amended Civil Rights Complaint
(Amended Complaint) (Doc. 37) pursuant to 42 U.S.C. §
1983. He filed his original Complaint (Doc. 1) on June 30,
2016, pursuant to the mailbox rule. This cause is before the
Court on Defendants' Motion to Dismiss [Anderson, Grimes,
Ford, McNeil, Morris, and Sykes] (Motion One) (Doc.
and Defendants' Motion to Dismiss [Mallard, Sikcier, and
Swift] (Motion Two) (Doc. 56). Plaintiff responded. See
Order (Doc. 40); Plaintiff's Objection to the
Defendants' Motion to Dismiss (Response One) (Doc. 49),
Plaintiff's Objection to the Defendants' Motion to
Dismiss (Response Two) (Doc. 61), and Plaintiff's
Objection to the Defendants' Motion to Dismiss (Response
Three) (Doc. 63).
Motion to Dismiss
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citing
Twombly, 550 U.S. at 556). "[T]he tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Id. (citing Twombly, 550 U.S. at 555).
contend that Plaintiff failed to exhaust his administrative
remedies prior to filing suit, and they ask that his Amended
Complaint be dismissed with respect to all Defendants, except
Defendant Sykes. Motion One at 2 and Motion Two at 2.
Defendants also assert that Plaintiff has failed to state a
claim of failure to protect, or any other claim, that is
plausible on its face. Motion One at 7-10; Motion Two at
7-11. The Court will first address the exhaustion matter, and
then address the issue of whether Plaintiff failed to state a
Exhaustion of Administrative Remedies
move to dismiss the Amended Complaint pursuant to 42 U.S.C.
§ 1997e(a) with respect to all of the Defendants, except
Defendant Sykes. Defendants assert that Plaintiff failed to
properly avail himself of the grievance process with regard
to his claims. See the Declaration of Joy Proudman
and the Declaration of Lawanda Sanders and attachments (Docs.
42-1, 42-2, 62-1, and 62-2).
Prison Litigation Reform Act (PLRA) requires exhaustion of
available administrative remedies before a 42 U.S.C. §
1983 action with respect to prison conditions by a prisoner
may be initiated in this Court. Title 42 U.S.C. §
1997e(a) provides: "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."
In this instance, Defendants bear the burden of proving a
failure to exhaust available administrative remedies.
Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th
Cir. 2008), relying on Jones v. Bock, 549
U.S. 199 (2007). Guidelines are provided for reviewing a
prisoner civil rights action for exhaustion compliance:
Before a prisoner may bring a prison-conditions suit under
§ 1983, the Prison Litigation Reform Act of 1995
requires that he exhaust all available administrative
remedies. 42 U.S.C. § 1997e(a); see also Booth v.
Churner, 532 U.S. 731, 736, 121 S.Ct. 1819, 1822, 149
L.Ed.2d 958 (2001). The purpose of the PLRA's exhaustion
requirement is to "afford corrections officials time and
opportunity to address complaints internally before allowing
the initiation of a federal case." Woodford v.
Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 2387, 165 L.Ed.2d
368 (2006) (quotation omitted). To properly exhaust, a
prisoner must "[c]ompl[y] with prison grievance
procedures." Jones v. Bock, 549 U.S. 199, 218,
127 S.Ct. 910, 922-23, 166 L.Ed.2d 798 (2007).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205,
1208 (11th Cir. 2015).
number of factors guide the Court. Initially, the Court
recognizes that exhaustion of available administrative
remedies is "a precondition to an adjudication on the
merits" and is mandatory under the PLRA. Bryant v.
Rich, 530 F.3d 1368, 1374 (11th Cir.), cert.
denied, 555 U.S. 1074 (2008); Jones, 549
U.S. at 211; Woodford v. Ngo, 548 U.S. 81, 85 (2006)
("Exhaustion is no longer left to the discretion of the
district court, but is mandatory.") (citation omitted).
The Supreme Court has stated that "failure to exhaust is
an affirmative defense under the PLRA[.]"
Jones, 549 U.S. at 216. Although, "the PLRA
exhaustion requirement is not jurisdictional[, ]"
Woodford, 548 U.S. at 101, "exhaustion is
mandatory under the PLRA[;]" therefore,
"unexhausted claims cannot be brought." Pavao
v. Sims, 679 F.App'x 819, 823 (11th Cir. 2017) (per
curiam) (citation omitted).
recognized by this Court,
"The only limit to § 1997e(a)'s mandate is the
one baked into its text: An inmate need exhaust only such
administrative remedies as are 'available.'" 136
S.Ct. 1850, 1862 (2016). For an administrative remedy to be
available, the "remedy must be 'capable of use for
the accomplishment of [its] purpose.'" Turner v.
Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008) (quoting
Goebert v. Lee Cty., 510 F.3d 1312, 1322-23 (11th
In Ross,  the Supreme Court identified three
circumstances in which administrative remedies would be
considered unavailable. First, "an administrative
procedure is unavailable when (despite what regulations or
guidance materials may promise) it operates as a simple dead
end-with officers unable or consistently unwilling to provide
any relief to aggrieved inmates." 136 S.Ct. at 1859.
Second, "an administrative scheme might be so opaque
that it becomes, practically speaking, incapable of use. In
this situation, some mechanism exists to provide relief, but
no ordinary prisoner can discern or navigate it."
Id. Third, an administrative remedy is unavailable
"when prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation." Id. at
Davis v. Sec'y, Dept. of Corr., No.
3:15-CV-649-J-34JRK, 2017 WL 1885366, at *3-4 (M.D. Fla. May
reviewing the question of exhaustion, "[t]he only facts
pertinent to determining whether a prisoner has satisfied the
PLRA's exhaustion requirement are those that existed when
he filed his original complaint. Smith v. Terry, 491
F.App'x 81, 83 (11th Cir. 2012) (per curiam) (citing
Harris v. Garner, 216 F.3d 970, 981 (11th Cir. 2000)
(en banc)). Indeed, "[t]he time the [PLRA] sets for
determining whether exhaustion of administrative remedies has
occurred is when the legal action is brought,
because it is then that the exhaustion bar is to be
applied." Wheeler v. Davis, No.
5:14CV271/WS/CJK, 2017 WL 1029119, at *3 (N.D. Fla. Feb. 6,
2017) (report and recommendation) (quoting Goebert v. Lee
Cty., 510 F.3d 1312, 1324 (11th Cir. 2007)) (emphasis in
Wheeler), report and recommendation adopted
by No. 5:14CV271-WS/CJK, 2017 WL 1027035 (N.D. Fla. Mar.
the relevant question before this Court is whether Plaintiff
properly exhausted available administrative remedies as of
June 30, 2016. The question of availability of the procedure
goes to whether the administrative procedure was available
before June 30, 2016, prior to the filing of the initial
complaint. To construe the exhaustion requirement otherwise
would render the PLRA "a toothless scheme."
Woodford, 548 U.S. at 95.
only is there an exhaustion requirement, "the PLRA
exhaustion requirement requires proper exhaustion."
Woodford, 548 U.S at 93.
Because exhaustion requirements are designed to deal with
parties who do not want to exhaust, administrative law
creates an incentive for these parties to do what they would
otherwise prefer not to do, namely, to give the agency a fair
and full opportunity to adjudicate their claims.
Administrative law does this by requiring proper
exhaustion of administrative remedies, which
"means using all steps that the agency holds out, and
doing so properly (so that the agency addresses the issues on
the merits)." Pozo,  286 F.3d, at
1024. . . .
Id. at 90 (emphasis added). In fact, "[p]roper
exhaustion demands compliance with an agency's deadlines
and other critical procedural rules." Id.
are no disputed issues of fact as to whether administrative
remedies were available to Plaintiff and whether he exhausted
all available administrative remedies with respect to
Defendant Sykes. Plaintiff's Exhibit A (Doc. 51-1).
Plaintiff properly exhausted his administrative remedies with
regard to Defendant Sykes as he grieved the matter and his
grievance was approved.
Court must now make findings on the disputed issues of fact
to decide whether administrative remedies were available to
Plaintiff, and if so, whether he properly exhausted his
administrative remedies with regard to the remaining
Florida Department of Corrections (FDOC) provides an internal
grievance procedure. See Chapter 33-103, Florida
Administrative Code (F.A.C.). Thus, to determine whether
Plaintiff exhausted his administrative remedies, this Court
must examine the relevant documents to determine whether the
incidents in question were grieved. If these incidents were
grieved and the documents complied with the deadlines and
other procedural rules as set forth in the F.A.C., the issues
raised therein are exhausted.
the FDOC provides a three-step grievance procedure.
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.
Kozuh v. Nichols, 185 F.App'x 874, 877 (11th
Cir. 2006) (per curiam), cert. denied, 549
U.S. 1222 (2007).
initial significance, if Plaintiff filed a grievance and
attempted to exhaust his administrative remedies, he would
have needed to submit an initial grievance with the
appropriate staff, a formal grievance with the warden, and
then an appeal to the Secretary to properly grieve the matter
in compliance with the procedural requirements of the
administrative grievance process.
filed an "Emergency Grievance" with the Secretary
of the FDOC, but it was returned without action as being in
non- compliance with the Rules. Plaintiff's Exhibits E
& F (Doc. 51-4 & 51-5); (Doc. 62-1). By definition,
an emergency grievance is "[a] grievance of those
matters which, if disposed of according to the regular time
frames, would subject the inmate to substantial risk of
personal injury or cause other serious and irreparable harm
to the inmate." F.A.C. § 33-103-002(4). An inmate
may proceed directly to this step if he is submitting an
emergency grievance and he (1) states at the beginning of
Part A of Form DC1-303 that the grievance concerns an
emergency; and (2) clearly states "the reason for not
initially bringing the complaint to the attention of
institutional staff and by-passing the informal and formal
grievance steps of the institution or facility[.]"
Id. § 33-103.007(6)(a)(1)-(2).
instance, the reviewer found no valid reason within the
grievance for by-passing the lower levels and determined the
grievance to be in non-compliance with the
rules.Id. § 33-103.014(1)(f)
("[t]he inmate did not provide a valid reason for
bypassing the previous levels of review as required or the