United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
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.
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 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.
Motion to Dismiss
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.
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).
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). 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
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.
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.
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 ...