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Gipson v. Renninger

United States District Court, M.D. Florida, Jacksonville Division

September 18, 2017

JERALD GIPSON, Plaintiff,
v.
K. RENNINGER AND LT. J. GREENE, Defendants.

          ORDER

          BRIAN J. DAVIS United States District Judge.

         I. Status

         Plaintiff is an inmate confined in the Florida penal system. He is proceeding pro se on a Third Amended Complaint (Third Amended Complaint) (Doc. 58) pursuant to 42 U.S.C. § 1983. He filed his original Complaint (Doc. 1) on June 30, 2015, pursuant to the mailbox rule. This cause is before the Court on Defendants' Motion for Summary Judgment (Motion) (Doc. 68).[1] Plaintiff responded. Plaintiff's Response to Defendants' Motion for Summary Judgment (Response) (Doc. 85). See Order (Doc. 9); Notice (Doc. 69). The Court granted Plaintiff's motion to supplement his response, Order (Doc. 89), and the Court will consider the exhibits attached to the Supplement (Doc. 86).

         II. Summary Judgment Standard

         "Summary judgment is appropriate only if 'the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (quoting Fed.R.Civ.P. 56(a)). "If the moving party meets this burden, 'the nonmoving party must present evidence beyond the pleadings showing that a reasonable jury could find in its favor.'" Ekokotu v. Federal Exp. Corp., 408 F.App'x 331, 333 (11th Cir.) (per curiam) (quoting Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007)), cert. denied, 565 U.S. 944 (2011).

         III. The Third Amended Complaint

         The alleged facts supporting the Third Amended Complaint are set forth at pages 10-18. Although difficult to read, the Court liberally construes the Third Amended Complaint as presenting the following facts. Plaintiff states that on May 29, 2015, he was confined in a cell as an inpatient transitional care unit inmate at Suwannee Correctional Institution (SCI). Id. at 10. At approximately 12:45 a.m., Defendant Renninger did a security check of the dormitory and came by Plaintiff's cell. Id. at 11. Plaintiff told Defendant Renninger that he had a serious injuries from a previous beating, causing him to blank out, suffer severe pain, and to have headaches. Id. Plaintiff also told Defendant Renninger that he felt he would have a heart attack from physical and emotional stress caused by his treatment in prison. Id. Plaintiff claimed to have a heart murmur and a hole in his heart. Id. Defendant Renninger told Plaintiff to get off of the door and threatened Plaintiff through denial of medical care. Id. Plaintiff alleges that he asked Renninger to call the nurse because Plaintiff was declaring a medical emergency due to sharp, severe chest pains and blanking out, but Renninger "neglected" Plaintiff's medical emergency. Id. at 12.

         Defendant Renninger and Nurse Handcocks [sic] came by during her rounds, and Plaintiff told them he was declaring a medical emergency. Id. Nurse Handcocks and Renninger did not accept Plaintiff's declaration of a medical emergency, stating that if an inmate is not bleeding or cutting himself, it is not a medical emergency. Id.

         Plaintiff was placed on property restriction and told to strip down to his boxers and pack up his property. Id. at 13. His mattress, sheets, and blanket and were stored away. Id. Thirty minutes later, Defendants Greene and Renninger came by and told Plaintiff if he called out for another medical emergency, Plaintiff would not eat for a week, and if he wrote a grievance or lawsuit against them, Defendants would break Plaintiff's jaw and send him to the hospital. Id.

         After being denied a medial emergency by the Defendants and the nurse, Plaintiff feared that he would have a heart attack from the physical and emotional stress caused by his treatment in prison. Id. at 14. At approximately 3:00 p.m., Defendant Greene saw Plaintiff naked in his cell. Defendant Greene made verbal sexual comments about Plaintiff's body parts. Id. Plaintiff continued to have pain and headaches, feeling like he was blanking out. Id. He slept on the hard concrete bunk in temperatures below 50 degrees. Id.

         Plaintiff states he did not violate any Florida Department of Corrections' (FDOC) rules. Id. at 15. Plaintiff contends that his medical records will show that he has severe heart problems of an enlarged heart, a heart murmur, and a hole in his heart. Id. He also states that the records will verify his head injuries. Id. Plaintiff contends that his medical condition was exacerbated by delay and failure to provide urgent medical care. Id.

         IV. Exhaustion of Administrative Remedies

         Defendants assert that Plaintiff failed to properly avail himself of the grievance process with regard to his claims. The 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 regard, 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). The Court has guidelines 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).

         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). Also, the only recognized limitation is availability:

"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 Cir. 2007)).
In Ross, [2] 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 1860.

Davis v. Sec'y, Dept. of Corr., No. 3:15-CV-649-J-34JRK, 2017 WL 1885366, at *3-4 (M.D. Fla. May 9, 2017).

         In 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 2017 WL 1027035 (N.D. Fla. Mar. 16, 2017).

         Therefore, the relevant question before this Court is whether Plaintiff properly exhausted available administrative remedies as of June 30, 2015. The question of availability of the procedure goes to whether the administrative procedure was available before June 30, 2015, prior to the filing of the initial complaint. Construing the exhaustion requirement otherwise would render the PLRA "a toothless scheme." Woodford, 548 U.S. at 95.

         Not 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, [3] 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.

         The Court must now make findings on the disputed issues of fact to decide whether administrative remedies were available to Plaintiff at SCI, and if they were, whether he properly exhausted his administrative remedies. Since the parties have not requested an evidentiary hearing on this issue and they have submitted evidence for the Court's consideration, the Court proceeds to resolve the material questions of fact based on the documents before the Court. Bryant, 530 F.3d 1377 n.16 (recognizing that a district court may resolve material questions of fact on the submitted papers when addressing the PLRA's exhaustion of remedies requirement).

         The 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.

         Generally, 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).

         As a consequence, 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. Plaintiff, however elected to file an "Emergency Grievance" with the Secretary of the FDOC, but it was returned without action as being in non-compliance with the Rules. Defendants' Exhibit (Doc. 68-5 at 5-6).

         Plaintiff labeled his grievance an emergency grievance, calling it a protective activity seeking protection against retaliation. Id. at 6. He wrote: "I believe there will be some adverse actions (retaliations) if the officers are placed on notice at the institutional level." Id. The Response reads as follows:

NOTE: This grievance is not accepted as a grievance of an emergency nature[.]
Your request for administrative appeal is in non-compliance with the Rules of the Department of Corrections, Chapter 33-103, Inmate Grievance Procedure. The rule requires that you first submit your grievance at the appropriate level at the institution. You have not done so or you have not provided this office with a copy of that grievance, nor have you provided a valid or acceptable reason for not following the rules[.]
You have not provided any information or evidence to substantiate your ...

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