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Whitaker v. Davis

United States District Court, N.D. Florida, Tallahassee Division

June 26, 2019

BRODY WHITAKER, Plaintiff,
v.
CAPT. ANTHONY DAVIS, and D. JONES, Defendants.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a prisoner proceeding pro se, filed a second amended complaint (hereinafter “complaint”) against two Defendants on June 4, 2018. ECF No. 11. Defendant Davis filed an amended motion to dismiss, ECF No. 31, in late March 2019. That motion has more recently been adopted by Defendant Jones. ECF No. 40.

         Previously, Defendant Davis filed a motion to dismiss on January 24, 2019. ECF No. 25. Plaintiff was directed to file a response to the motion to dismiss and advised that the motion may be granted “by default” if Plaintiff did not respond to the motion. ECF No. 27. Plaintiff's deadline of March 1, 2019, passed without any action being taken by Plaintiff. Subsequently, Defendant Davis filed the amended motion to dismiss, ECF No. 31, and Plaintiff was once again advised of his obligation to respond to the motion. ECF No. 32. Plaintiff was reminded that the Court could granted the motion by default if he did not respond, and he was given a new deadline of May 9, 2019, in which to file a response. Id. Finally, a third Order was entered on May 28, 2019, after service had been carried out on Defendant Jones which once again reminded Plaintiff that the amended motion to dismiss was pending, and that he had not filed a response as directed. ECF No. 38. The Order directed Plaintiff to “immediately file a response to the amended motion to dismiss, ECF No. 31, if he oppose[d] that motion.” Id. at 2. No. response has been received.

         Amended Complaint

         Plaintiff's amended complaint reveals that on September 23, 2017, Defendant Davis told Plaintiff he needed to shave his head and beard. ECF No. 11 at 5. When Plaintiff responded that he was compliance with the regulations, Defendant Davis placed him in cuffs, took him to the barber, and directed the barber to “shave him bald.” Id. Plaintiff replied that he would sue them, which prompted Defendant Jones to punch Plaintiff. Id. Defendants Davis and Jones then held Plaintiff down while he was forcibly shaved. Id. Plaintiff alleged that he was then verbally threatened with abuse by Defendants Jones and Davis. Id. Plaintiff alleged that he reported the incident and an investigation was conducted. Id. at 6. He also alleged that he filed multiple grievances but was denied responses and receipts. Id.

         Amended Motion to Dismiss

         Defendants assert that Plaintiff failed to exhaust administrative remedies. ECF No. 31 at 2. Defendants point out that Plaintiff's complaint lacked “any reference to any appeal to Central Office for FDOC.” Id. at 6-7. Defendants contend that Central Office records do not show Plaintiff filed an appeal of any issue raised in this case. Id. at 7. “The last administrative appeal which was filed with Central Office for FDOC was in October 2015 and had nothing to do with any incident which occurred in September of 2017.” Id. The motion to dismiss also argues that Plaintiff's complaint fails to state a claim for assault, for a violation of his First Amendment rights, equal protection rights, and a generic “Fourteenth Amendment” claim. Id. at 7-15. Finally, Defendants assert that his request for relief is improper and cannot be granted, and that Plaintiff did not “demonstrate a physical injury sufficient [to] allow for recovery of compensatory or punitive damages.” Id. at 15.

         Standard of Review

         The issue of whether a prisoner failed “to properly exhaust available administrative remedies under the PLRA should be treated as a matter in abatement.” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (cited in Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008)). Such a “defense is treated ‘like a defense for lack of jurisdiction,' although it is not a jurisdictional matter.” Bryant, 530 F.3d at 1374 (cited in Turner, 541 F.3d at 1082).

         Ruling on a “motion to dismiss for failure to exhaust administrative remedies is a two-step process.” Turner, 541 F.3d at 1082 (citation omitted). “First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the plaintiff's version of the facts as true.” Id. “If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed.” Id. (citing to Bryant, 530 F.3d at 1373-74). “If the complaint is not subject to dismissal at the first step, where the plaintiff's allegations are assumed to be true, the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.” Turner, 541 F.3d at 1082 (citing Bryant, 530 F.3d at 1373-74, 1376).[1] The burden of proof for evaluating an exhaustion defense rests with the Defendants. Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007) (“We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints.”); Turner, 541 F.3d at 1082-83.

         Analysis

         The only issue which needs to be considered in ruling on the unopposed motion to dismiss is exhaustion. As detailed by Defendants in the motion to dismiss, exhaustion under the Department's rules is a three step process. ECF No. 31 at 5. A prisoner must file an informal grievance, followed by a formal grievance, and then an appeal to the Office of the Secretary. Id. at 5-6 (citing Chapter 33-103, Florida Administrative Code). Federal law directs that no action may be brought pursuant to 42 U.S.C. § 1983 or any other federal law “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

         It is true that Plaintiff did not allege within the complaint that he exhausted administrative remedies by filing an appeal. However, “failure to exhaust is an affirmative defense under the PLRA, ” Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), and Plaintiff is not required to allege that he completed all steps of the grievance process. That argument is rejected.

         However, Defendants have also shown that Plaintiff did not complete the grievance process prior to filing this case. Accepting Plaintiff's factual allegations in the complaint as true, it appears that Plaintiff filed at least an informal grievance on September 25, 2017. See ECF No. 11 at 6. Plaintiff said that he also filed multiple grievances regarding the incident, but Plaintiff did not say that he ever filed a grievance appeal. An appeal is the required third step in the process. Defendants have shown through the submission of a signed affidavit from the Bureau Chief of the Bureau of Policy Management and Inmate Appeals, Alan McManus, that Plaintiff “has not filed any grievance appeals after October of 2015.” ECF No. 33-1 at 2. Because Plaintiff did not respond to the motion to dismiss, that evidence is unrebutted. Thus, Defendants have ...


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