United States District Court, M.D. Florida, Jacksonville Division
BENJAMIN F. HOLLIS, Plaintiff,
P. CAZEE, et al., Defendants.
MORALES HOWARD UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants Olson, Adams, and
Cazee's Amended Motion to Dismiss (Defendants'
Motion; Doc. 25). Plaintiff filed his response in opposition
to the Motion with exhibits (P. Ex.). See
Plaintiff's Response in Opposition to Defendants'
Amended Motion to Dismiss (Response; Doc. 27).
Defendants' Motion is ripe for review.
Civil Rights Complaint Form (Complaint; Doc. 1), Hollis names
the following individuals as Defendants: (1) A.
Cazee; (2) Gary Olson; and (3) D. Adams. He
asserts that the Defendants violated his Eighth Amendment
right to be free from cruel and unusual punishment when they
delayed his access to medical care for breathing difficulties
associated with his asthmatic condition. He alleges that, on
April 22, 2016, at approximately 11:00 a.m. at Florida State
Prison, he had "breathing complications" from a
sinus infection that ultimately triggered an asthma attack.
Complaint at 7. He states that he used an inhaler numerous
times, but it did not relieve his ailments. See id.
asserts that he stopped Defendant Olson during a 1:30 p.m.
wing check and informed him that he was having an asthma
attack. See id. at 7, 11. Hollis declared a medical
emergency and showed Olson his Alvesco and Xopenex inhalers
as an attempt to convince him that he was not faking an
emergency. See id. at 11. According to Hollis, Olson
walked away without any indication that he would call for
medical assistance. See id. Hollis alleges that,
during the 2:00 p.m. rounds, he stopped Defendant Cazee and
informed him of his declared medical emergency. See
id. Hollis told Cazee that his inhalers "were
ineffective." Id. at 12. Hollis states that
Cazee ignored him and walked away. See id. Hollis
ultimately screamed for medical assistance, and several
inmates acknowledged his suffering and yelled for help.
See id. According to Hollis, Lieutenant Blitch
promptly escorted Hollis at 3:40 p.m. to the medical clinic
where medical assistant Smith and Nurse Pollard assessed his
condition at 3:45 p.m. See id. at 12-13.
states that medical personnel gave him a Solu-Medrol shot to
stabilize his breathing, a DuoNeb breathing treatment, and
"several medications." Id. at 13. Medical
personnel discharged Hollis at 5:45 p.m., and advised him to
return if any symptoms recurred or worsened. See id.
to Hollis, he declared another medical emergency at 8:15 p.m.
due to a recurring asthma attack, and informed Defendant
Adams who ignored his plea for help and left the area.
See id. at 13-14. Hollis states that Adams later
approached his cell at 9:00 p.m. and stated:
I don't play that medical emergency s--t on my shift. But
I called and spoke with Nurse Singletary. So you can thank
her. [S]he had vouched for your condition. Said, she was
present when you were brought up earlier, and was aware of
your condition. One of my officers went to B-wing, though, to
assist with the administering of chemical agents. You'll
go whenever he come[s] back.
Id. The following morning at 12:30 a.m., Defendant
Adams and Officer Mason escorted Hollis to the medical clinic
where Nurse Reynolds assessed his condition at 12:35 a.m.,
and medical personnel provided another breathing treatment.
See id. at 14.
asserts that Dr. Laventure saw him on April 25, 2016, and
opined that he suffered from an acute exacerbation of asthma
and a sinus and lung infection. See id.
Complaint, Hollis asserts that he exhausted his
administrative remedies. See id. at 1. He states
that grievance coordinators Gibson and Dobbs
"deliberately and intentionally destroyed" his
inquiries and "every grievance" he filed pertaining
to the April 22, 2016 incidents involving Defendants Olson,
Adams, and Cazee. Id. at 1-2. According to Hollis,
he submitted an emergency grievance of a medical nature on
April 27, 2016. Id. at 2. Warden Palmer and Dobbs
returned the grievance to Hollis on April 28th for
non-compliance with Rule 33-103.014(1)(b) and (1)(t). See
id. Hollis states that he submitted an informal
grievance on May 6th and asserted that Defendants Cazee and
Olson and Sergeant Wallace denied him access to medical care.
See id. He amended the grievance on May 18th and May
30th to include Defendant Adams and Lieutenant Blitch.
See id. He alleges that he inquired about the
assigned log number on June 2nd and June 12th, but the
grievance coordinator never replied. See id. Hollis
asserts that he submitted a grievance of reprisal on June 6th
and included allegations pertaining to Defendant Olson's
involvement in the April 22nd incident; there was no reply.
to Hollis, he submitted a formal grievance (log number
1606-205-176) on June 17th to Warden Palmer and asserted that
Gibson, the grievance coordinator, had thrown away his
grievances; the Warden approved the grievance since the issue
had been referred to the Inspector General for appropriate
action. See id. at 3. On June 20th, Hollis
sent a letter to Florida Department of Corrections (FDOC)
Secretary Julie Jones and addressed "these issues."
Id. Hollis states that he submitted another formal
grievance (log number 1606-205-209) to Warden Palmer and
asserted that the grievance coordinator had violated his
First Amendment right to complain about corrections officers
through grievances. See id. He asserts that, when
thirty working days had passed with no response to his May
6th informal grievance, he bypassed the "the
institutional level, " and submitted a formal grievance
directly to the Secretary's Office on June 30th; he twice
amended that grievance. Id.
Summary of the Arguments
Defendants' Motion, Defendants Olson, Adams, and Cazee
assert that Hollis' claims against them should be
dismissed because Hollis failed to exhaust his administrative
remedies, as required by the Prison Litigation Reform Act
(PLRA), before filing the 42 U.S.C. § 1983 lawsuit. They
state that Hollis bypassed the second step (formal grievance
to the Warden's office at the institution or facility
level) of the FDOC grievance process, as required under Rule
33-103.006, and therefore he failed to properly exhaust his
administrative remedies. See Motion at 12.
response to Defendants' Motion, Hollis maintains that he
exhausted his administrative remedies. In particular, he
asserts that Rule 33-103.011(4) permitted him to bypass the
first step (informal grievance) of the FDOC grievance
procedure since the institution failed to respond to his May
6th informal grievance within thirty working days.
See Response at 4, 5-6. He states that he properly
proceeded to the second step of the grievance process when he
submitted a formal grievance (log number 1606-205-176) on
June 17th to Warden Palmer and asserted that the grievance
coordinator discarded his grievances and failed to adhere to
Rule 33-103.006(9). See id. at 6; P. Ex. B, Request
for Administrative Remedy or Appeal to the Warden, dated June
17, 2016. Accordingly, Hollis requests that the Court deny
Exhaustion of Administrative Remedies
Exhaustion under the PLRA
of available administrative remedies is required before a 42
U.S.C. § 1983 action with respect to prison conditions
may be initiated in this Court by a prisoner. See 42
U.S.C. § 1997e(a). Nevertheless, a prisoner such as
Hollis is not required to plead exhaustion. See Jones v.
Bock, 549 U.S. 199, 216 (2007). Instead, the United
States Supreme Court has recognized "failure to exhaust
is an affirmative defense under the PLRA[.]"
Id. Notably, 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. 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 ...