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Oliver v. Whitehead

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

November 7, 2017

WARREN OLIVER, Plaintiff,
v.
OFFICER WHITEHEAD, et al., 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 an Amended Complaint (Amended Complaint) (Doc. 11) pursuant to 42 U.S.C. § 1983.[1] He filed his original Complaint (Doc. 1) on December 8, 2014, pursuant to the mailbox rule. This cause is before the Court on Defendant Espino and Whitehead's Motion for Summary Judgment (Motion) (Doc. 102).[2]Plaintiff responded. Plaintiff's Response to Defendants' Motion for Summary Judgment (Response) (Doc. 111). See Order (Doc. 12); Notice (Doc. 103). The Court granted Defendants' motion for leave to file a reply, and Defendants' filed a Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment (Reply) (Doc. 116). Plaintiff's filed a response to the Reply, entitled Objections to Defendants' Reply (Doc. 117).

         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 Fed.Appx. 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 Amended Complaint

         The alleged facts supporting the Amended Complaint are set forth at pages 8-9. Plaintiff claims Defendant Espino was deliberately indifferent to Plaintiff's serious medical needs, in violation of Plaintiff's Eighth Amendment rights. Amended Complaint at 7. Plaintiff states that after he was sexually and physically battered on August 5, 2012, he went to medical and saw Dr. Espino. Id. at 8. Plaintiff alleges that Espino laughed at him; told him to get out of his office; refused to examine him, even though he knew Plaintiff had injuries; and refused to address Plaintiff's injuries. Id. Plaintiff raises an additional Eighth Amendment claim against Defendant Whitehead. Plaintiff alleges that Whitehead told his subordinates to beat inmates, use excessive force, and to treat inmates cruelly. Id. at 8. Plaintiff also alleges that Defendant Whitehead knew that his subordinates were using excessive force. Id.

         IV. Exhaustion of Administrative Remedies

         Defendant Espino asserts that Plaintiff failed to properly avail himself of the grievance process with regard to his claim alleging deliberate indifference to a serious medical need. 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." 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, 129 S.Ct. 733 (2008); Jones v. Bock, 549 U.S. 199, 211 (2007); 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).

         Of import, "failure to exhaust is an affirmative defense under the PLRA[.]" Jones v. Bock, 549 U.S. at 216. However, "the PLRA exhaustion requirement is not jurisdictional[.]" Woodford v. Ngo, 548 U.S. at 101. See Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (recognizing that the defense "is not a jurisdictional matter"). Upon review of the Court's docket, Defendant Espino filed a Motion to Dismiss (Doc. 59) and an Answer[3] (Doc. 66) prior to the filing of the Motion for Summary Judgment (Doc. 102).

         This Court has said, "[t]he defense of exhaustion is properly raise[d] in a motion to dismiss as a 'matter of judicial administration.'" Bentley v. White, No. 2:07-cv-573-FtM-29DNF, 2009 WL 248242, at * 3 (M.D. Fla. Jan. 30, 2009) (not reported in F.Supp.2d) (citation omitted). As a result, the Court may look beyond the pleadings by the parties to determine issues of fact with regard to the exhaustion defense. See Bryant v. Rich, 530 F.3d at 1374-75 ("Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment; instead, it 'should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.'") (footnote and citations omitted).

         The Eleventh Circuit addressed the matter of entertainment of an unenumerated motion to dismiss under 12(b), Fed.R.Civ.P., based on failure to exhaust administrative remedies:

That motions to dismiss for failure to exhaust are not expressly mentioned in Rule 12(b) is not unusual or problematic. "'Federal courts . . . traditionally have entertained certain pre-answer motions that are not expressly provided for by the rules.'" Ritza, 837 F.2d at 369 (quoting 5C Wright & Miller, supra, § 1360 at 77). For instance, courts may decide motions to dismiss that are "'closely related to the management of the lawsuit and might generally be characterized as involving matters of judicial administration.'" Id.; see e.g., Int'l Ass'n of Entrepreneurs of Am. v. Angoff, 58 F.3d 1266, 1271 (8th Cir. 1995) ("While pre-answer motions are ostensibly enumerated in Fed.R.Civ.P. 12(b), district courts have the discretion to recognize additional pre-answer motions, including motions to stay cases within federal jurisdiction when a parallel state action is pending.").

Bryant v. Rich, 530 F.3d at 1375 (emphasis added). The Eleventh Circuit concludes that "exhaustion should be decided on a Rule 12(b) motion to dismiss[.]" Id. (citation omitted).

         More recently, the Eleventh Circuit explained: "under Federal Rule of Civil Procedure 12(g)(2), a defendant must raise the exhaustion defense in his first Rule 12 motion, otherwise the defense is forfeited and cannot be raised in a later motion under Rule 12." Brooks v. Warden, No. 16-16853, 2017 WL 3669417, at *2 (11th Cir. Aug. 25, 2017) (footnote omitted). Thus, Defendant Espino cannot raise this defense in a second Rule 12 motion that he failed to raise in his first. Although he entitled his current Motion a motion for summary judgment, it is due to be treated as a motion to dismiss with regard to his assertion that Plaintiff failed to exhaust administrative remedies. Defendant Espino could have raised the exhaustion requirement as a defense in his previous motion, but he did not. Pursuant to Rule 12(g)(2), he is prohibited from raising exhaustion at this juncture since he failed to raise it in his first motion. Brooks, 2017 WL 3669417, at *4 (recognizing that the PLRA exhaustion requirement is a non-jurisdictional claim-processing rule, and is subject to forfeiture under Rule 12(g)(2)).

         In conclusion, the exhaustion requirement should have been raised in Defendant Espino's Motion to Dismiss. This untimely assertion of the exhaustion defense is barred under Rule 12(g)(2); therefore, Defendant Espino's Motion, to the extent it is based on the affirmative defense of failure to exhaust administrative remedies, is due to be DENIED.

         V. Dr. Espino

         Plaintiff contends that Defendant Espino was deliberately indifferent to his serious medical needs. The requirements to establish an Eighth Amendment claim with respect to medical care are:

The Eighth Amendment's prohibition against "cruel and unusual punishments" protects a prisoner from "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To state a claim of unconstitutionally inadequate medical treatment, a prisoner must establish "an objectively serious [medical] need, an objectively insufficient response to that need, subjective awareness of facts signaling the need, and an actual inference of required action from those facts." Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000).

Kuhne v. Fla. Dep't of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014).

         "A serious medical need is 'one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.' In the alternative, a serious medical need is determined by whether a delay in treating the need worsens the condition." Mann v. Taser Inter., Inc., 588 F.3d 1291, 1307 (2009) (quoting Hill v. Dekalf Reg'l Youth Det. ...


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