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 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.
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).
Summary Judgment Standard
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).
The Third Amended Complaint
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.
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.
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.
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.
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.
Exhaustion of Administrative Remedies
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."
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).
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
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 2017 WL 1027035 (N.D. Fla. Mar. 16, 2017).
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.
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.
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
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).
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).
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
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
You have not provided any information or evidence to
substantiate your ...