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Hollis v. Cazee

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

January 16, 2018

BENJAMIN F. HOLLIS, Plaintiff,
v.
P. CAZEE, et al., Defendants.

          ORDER

          MARCIA MORALES HOWARD UNITED STATES DISTRICT JUDGE

         I. Status

         This 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.

         II. Complaint

         In the Civil Rights Complaint Form (Complaint; Doc. 1), Hollis names the following individuals as Defendants: (1) A. Cazee;[1] (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.

         Hollis 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.

         Hollis 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.

         According 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.

         Hollis 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.

         In the 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. See id.

         According 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.

         III. Summary of the Arguments

         In 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.

         In 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 Defendants' Motion.

         IV. Exhaustion of Administrative Remedies

         A. Exhaustion under the PLRA

         Exhaustion 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 ...


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