United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
William Sims, an inmate of the Florida penal system,
initiated this action on July 20, 2018, by filing a pro se
Civil Rights Complaint (Complaint; Doc. 1) with exhibits
(Doc. 1-1 at 1-8). In the Complaint, Sims names Dr. Alexis
Figueroa, M.D., as the Defendant. He asserts that Defendant
Figueroa was deliberately indifferent to his serious medical
needs. As relief, Sims seeks compensatory and punitive
damages as well as injunctive relief. This matter is before
the Court on Defendant Figueroa's Motion to Dismiss
(Motion; Doc. 8). The Court advised Sims that granting a
motion to dismiss would be an adjudication of the case that
could foreclose subsequent litigation on the matter, and gave
him an opportunity to respond. See Order (Doc. 5).
Plaintiff filed a response in opposition to the Motion,
see Declaration in Opposition to Defendant's
Motion to Dismiss (Response; Doc. 14), and the Motion is ripe
Plaintiff's Allegations 
the underlying facts of his claims, Sims asserts that he had
a colonoscopy on August 16, 2017, with follow-up instructions
to return in eight weeks. See Complaint at 4. He
states that he experienced "gross rectal bleeding"
within a few days, and was given "a dose of
magnesia." Id. He avers that the Florida
Department of Corrections (FDOC) transferred him to Suwannee
Correctional Institution Annex (SCIA) on August 30, 2017.
See Id. According to Sims, he informed Defendant
Figueroa ("the primary health care provider" at
SCIA) about his "ongoing rectal bleeding" on
September 8th, and Figueroa advised that he would refer Sims
to a gastroenterologist for a consultation. See id.
Sims maintains that he had an "outside appointment"
concerning his prostate cancer with Dr. Montoya (an
oncologist) on October 12th, at which time he informed
Montoya about his rectal bleeding. Id. According to
Sims, Montoya performed a rectal examination, determined he
had rectal bleeding, and ordered a gastroenterology
consultation. See id. at 4-5. He states that
Defendant Figueroa advised Sims that he would not refer him
to a gastroenterologist because he had "his own
treatment plan" for Sims. Id. at 5.
avers that he accessed sick call at the institution on
October 31, November 3, 18, and 21, and December 5 before he
received "any form of medical treatment."
Id. He asserts that Defendant Figueroa saw him in
mid-December 2017, and prescribed a stool softener, fiber
laxative, and hydrocortisone. See Id. According to
Sims, there was no follow-up appointment, but instead
Figueroa just renewed the medications. See id. He
avers that Dr. Montoya saw him on January 18, 2018, and again
ordered that he see a gastroenterologist. See id.
Sims declares that he continued to complain about rectal
bleeding and pain, "but did not receive any meaningful
treatment." Id. He states that Montoya was
"furious" when he saw him on July 5th because Sims
had not seen a gastroenterologist. Id. at 6. Sims
proclaims that Montoya informed him that Centurion "was
trying to save money," instead of providing adequate
medical care. Id.
Motion to Dismiss Standard
ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1
(2002); see also Lotierzo v. Woman's World Med. Ctr.,
Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition,
all reasonable inferences should be drawn in favor of the
plaintiff. See Randall v. Scott, 610 F.3d 701, 705
(11th Cir. 2010). Nonetheless, the plaintiff must still meet
some minimal pleading requirements. Jackson v. Bellsouth
Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004)
(citations omitted). Indeed, while "[s]pecific facts are
not necessary[, ]" the complaint should "'give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Further, the plaintiff must allege "enough
facts to state a claim that is plausible on its face."
Twombly, 550 U.S. at 570. "A claim has facial
plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
"plaintiff's obligation to provide the grounds of
his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do[.]" Twombly, 550
U.S. at 555 (internal quotations omitted); see also
Jackson, 372 F.3d at 1262 (explaining that
"conclusory allegations, unwarranted deductions of facts
or legal conclusions masquerading as facts will not prevent
dismissal") (internal citation and quotations omitted).
Indeed, "the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable
to legal conclusions[, ]" which simply "are not
entitled to [an] assumption of truth." See
Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion
to dismiss, the Court must determine whether the complaint
contains "sufficient factual matter, accepted as true,
to 'state a claim to relief that is plausible on its
face[.]'" Id. at 678 (quoting
Twombly, 550 U.S. at 570). And, while "[p]ro se
pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be
liberally construed," Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998),
"'this leniency does not give the court a license to
serve as de facto counsel for a party or to rewrite
an otherwise deficient pleading in order to sustain an
action.'" Alford v. Consol. Gov't of
Columbus, Ga., 438 Fed.Appx. 837, 839 (11th Cir.
2011) (quoting GJR Invs., Inc. v. Cty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)
(internal citation omitted), overruled in part on other
grounds as recognized in Randall, 610 F.3d at 706).
Summary of the Arguments
Motion, Defendant Figueroa requests dismissal of Sims'
claims against him because Sims failed to exhaust his
administrative remedies, as required by the Prison Litigation
Reform Act (PLRA), before filing the instant 42 U.S.C. §
1983 lawsuit. See Motion at 4-7. Next, Figueroa
argues that Sims failed to state a plausible Eighth Amendment
claim against him, see id. at 7-9, and he is
entitled to qualified immunity, see id. at 9-10. He
also asserts that the Eleventh Amendment bars Sims' claim
for monetary damages against him in his official capacity.
See id. at 10. Finally, he maintains that Sims is
not entitled to compensatory and punitive damages under 42
U.S.C. § 1997e(e) because he has not alleged any
physical injury resulting from Defendant's acts and/or
omissions. See id. at 10-11. In response to the
Motion, Sims reasserts the facts underlying his claims, and
states that he exhausted his administrative remedies before
filing the Complaint in this Court. See Response.
Exhaustion of Administrative Remedies 1. Exhaustion
PLRA requires an inmate wishing to challenge prison
conditions to first exhaust all available administrative
remedies before filing an action under 42 U.S.C. § 1983.
See 42 U.S.C. § 1997e(a). Nevertheless, a
prisoner such as Sims 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). Not only is there an exhaustion requirement, "the
PLRA exhaustion requirement requires proper exhaustion."
Woodford v. Ngo, 548 U.S. 81, 93 (2006).
Because exhaustion requirements are designed to deal with
parties who do not want to exhaust, administrative law
creates an incentive for these parties to do what they would
otherwise prefer not to do, namely, to give the agency a fair
and full opportunity to adjudicate their claims.
Administrative law does this by requiring proper exhaustion
of administrative remedies, which "means using all steps
that the agency holds out, and doing so properly (so
that the agency addresses the issues on the merits)."
Pozo,  286 F.3d, at 1024. . . .
Woodford, 548 U.S. at 90. And, "[p]roper
exhaustion demands compliance with an agency's deadlines
and other critical procedural rules . . . ."
Id. As such, the United States Supreme Court has
Courts may not engraft an unwritten "special
circumstances" exception onto the PLRA's exhaustion
requirement. The only limit to § 1997e(a)'s mandate
is the one baked into its text: An inmate need exhaust only
such administrative remedies as are "available."
Ross v. Blake, 136 S.Ct. 1850, 1862 (2016).
determination of whether an inmate exhausted his available
administrative remedies prior to filing a cause of action in
federal court is a matter of abatement and should be raised
in a motion to dismiss, or be treated as such if raised in a
summary judgment motion. Bryant, 530 F.3d at 1374-75
(citation omitted). The Eleventh Circuit has explained the
two-step process that the Court must employ when examining
the issue of exhaustion of administrative remedies.
After a prisoner has exhausted the grievance procedures, he
may file suit under § 1983. In response to a prisoner
suit, defendants may bring a motion to dismiss and raise as a
defense the prisoner's failure to exhaust these
administrative remedies. See Turner, 541 F.3d at
1081. In Turner v. Burnside we
established a two-step process for resolving motions to
dismiss prisoner lawsuits for failure to exhaust. 541 F.3d at
1082. First, district courts look to the factual allegations
in the motion to dismiss and those in the prisoner's
response and accept the prisoner's view of the facts as
true. The court should dismiss if the facts as stated by the
prisoner show a failure to exhaust. Id. Second, if
dismissal is not warranted on the prisoner's view of the
facts, the court makes specific findings to resolve disputes
of fact, and should dismiss if, based on those findings,
defendants have shown a failure to exhaust. Id. at
1082-83; see also id. at 1082 (explaining that
defendants bear the burden of showing a failure to exhaust).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205,
1209 (11th Cir. 2015); see Pavao v. Sims, 679
Fed.Appx. 819, 823-24 (11th Cir. 2017) (per curiam).
Florida's Prison Grievance Procedure
FDOC provides an internal grievance procedure for its
inmates. See FLA. ADMIN. CODE r. 33-103.001 through
33-103.018. Generally, to properly exhaust administrative
remedies, a prisoner must complete a three-step sequential
process. First, an inmate must submit an informal grievance
to a designated staff member at the institutional level.
See FLA. ADMIN. CODE r. 33-103.005. If the issue is
not resolved, the inmate must submit a formal grievance at
the institutional level. See FLA. ADMIN. CODE r.
33-103.006. If the matter is not resolved at the
institutional level, the inmate must file an appeal to the
Office of the FDOC Secretary. See FLA. ADMIN. CODE
r. 33-103.007. However, under specified circumstances, an
inmate can bypass the informal-grievance stage and start with
a formal grievance at the institutional level. See
FLA. ADMIN. CODE r. 33-103.005(1); 33-103.006(3). Or, an
inmate can completely bypass the institutional level and
proceed directly to the Office of the FDOC Secretary by
filing a "direct grievance." See FLA.
ADMIN. CODE r. 33-103.007(3). Emergency grievances and
grievances of reprisal are types of "direct
grievances" that may be filed with the Office of the
Secretary. See FLA. ADMIN. CODE r. 33-103.007(3)(a).
Administrative Code Rule 33-103.011 provides time frames for
submission of grievances. Generally, the following time
limits are applicable. Informal grievances must be received
within twenty days from the date on which the incident or
action that is the subject of the grievance occurred.
See FLA. ADMIN. CODE r. 33-103.011(1)(a). Formal
grievances must be received no later than fifteen days from
the date of the response to the informal grievance.
See FLA. ADMIN. CODE r. 33-103.011(1)(b). Similarly,
grievance appeals to the Office of the Secretary must be
received within fifteen days from the date the response to
the formal grievance is returned to the inmate. See
FLA. ADMIN. CODE r. 33-103.011(1)(c). Rule 33-103.011(2)
An extension of the above-stated time periods shall be
granted when it is clearly demonstrated by the inmate to the
satisfaction of the reviewing authority as defined in
paragraphs 33-103.002(15)((b) and (c), F.A.C., or the
Secretary that it was not feasible to file the grievance
within the relevant time periods and that the inmate made a
good faith effort to file in a timely manner. The granting of
such an extension shall apply to the filing of an original
grievance or when re-filing a grievance after correcting one
or more deficiencies cited in rule 33-103.014, F.A.C.
FLA. ADMIN. CODE r. 33-103.011(2). Additionally, Rule
The time limit for responding to grievances and appeals may
be extended for a reasonable period agreeable to both parties
if the extension is agreed to in writing by the inmate.
Unless the grievant has agreed in writing to an extension,
expiration of a time limit at any step in the process shall
entitle the complainant to proceed to the next step of the
grievance process. If this occurs, the complainant must
clearly indicate this fact when filing at the next step. If
the inmate does not agree to an extension of time at the
central office level of review, he shall be entitled to
proceed with judicial remedies as he would have exhausted his
administrative remedies. The Bureau of Policy Management and
Inmate Appeals will nevertheless ensure that the grievance is
investigated and responded to even though an extension has
not been agreed to by the inmate.
FLA. ADMIN. CODE r. 33-103.011(4).
to Rule 33-103.014, an informal grievance, formal grievance,
direct grievance, or grievance appeal "may be returned
to the inmate without further processing if, following a
review of the grievance, one or more . . . conditions are
found to exist." FLA. ADMIN. CODE r. 33-103.014(1). The
rule provides an enumerated list as "the only reasons
for returning a grievance without a response on the
merits." See FLA. ADMIN. CODE r.
33-103.014(1)(a)-(y). Some of the reasons for returning a
grievance are as follows: untimeliness; the grievance
"addresses more than one issue or complaint" or
"is so broad, general or vague in nature that it cannot
be clearly investigated, evaluated, and responded to" or
"is not written legibly and cannot be clearly
understood" or is a supplement to a previously-submitted
grievance that has been accepted for review; and the inmate
"did not provide a valid reason for by-passing the
previous levels of review as required or the reason provided
is not acceptable," or "used more than two (2)
additional narrative pages." See FLA. ADMIN.
CODE r. 33-103.014(1)(a), (b), (c), (d), (f), (h), (q), (t),
Sims' Exhaustion Efforts
submitted a Request for Administrative Remedy or Appeal (Log
#1712-231-057), dated December 12, 2017, to the Warden.
See id. at 3-4. In the grievance, Sims
stated that he had rectal bleeding and needed a
gastroenterology appointment. See id. Dr. Cruz, M.D.
denied the formal grievance on December 27, 2017, stating in
[Y]our request for administrative remedy or appeal has been