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Mose v. Demontmollin

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

September 27, 2019

LOVENSON ALLEN MOSE, Plaintiff,
v.
DEMONTMOLLIN, et al., Defendants.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Lovenson Allen Mose, proceeding pro se and in forma pauperis, files this action under 42 U.S.C. §1983, alleging the Defendants violated his Eighth Amendment right against cruel and unusual punishment. Defendant Nelson, in her individual capacity, has filed a motion to dismiss (ECF Doc. 44), to which Plaintiff has not responded.[1] The motion has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(C). Upon consideration of the second amended complaint, the motion, and relevant law, the undersigned recommends that Defendant Nelson's motion to dismiss be GRANTED for Plaintiff's failure to exhaust his administrative remedies.

         I. Background

         Plaintiff is an inmate of the Florida Department of Corrections (“FDOC”) currently confined at Apalachee Correctional Institution. The allegations in Plaintiff's second amended complaint relate to an incident that occurred while Plaintiff was at Century Correctional Institution (“Century”). Plaintiff names two (2) Defendants: Officer Demontollin and Nurse Nelson. ECF Doc. 24.

         The crux of Plaintiff's allegations are as follows: On December 5, 2017, Plaintiff was transferred to a new cell by officers at Century. He told Defendant Demontollin that he suffers from chronic seizures and has a low bunk pass. According to Plaintiff, Defendant Demontmollin responded that he would spray Plaintiff with chemical agents if he did not “go in the room on the top bunk.” Id. Defendant Demontmollin also told Plaintiff that “he had destroyed, tore up [Plaintiff's low bunk] pass etc.” and, thus, Plaintiff was “forced to attempt to sleep on the top bunk.” Id. at 5-6.

         Later that evening, Plaintiff had a seizure, fell from the top bunk, and injured himself. Id. at 6. Plaintiff was escorted to the medical unit and examined by Defendant Nelson. Id. Plaintiff's factual allegations against Defendant Nurse are limited to the following: During Plaintiff's examination by Defendant Nelson “to determine if serious injuries are apparent from this touch probe and so forth. Security is more dictating all going on. Plaintiff is explaining pain in lower back numbness and pain generating through right-shoulder down into my hand etc. Security repetitively and menacing sentiment about [Plaintiff's] symptoms” which resulted in Defendant Nelson “falsifying records about [Plaintiff's] obvious injuries”, which continue to cause him pain. Id.

         II. Legal Standard

         In considering a motion to dismiss for failure to state a claim, the Court reads Plaintiff's pro se allegations in a liberal fashion, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and accepts “[a]ll well-pleaded facts in plaintiff's complaint and all reasonable inferences drawn from those facts . . . as true.” McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004) (citation omitted). However, mere “labels and conclusions” are not accepted as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)) (noting courts “are not bound to accept as true a legal conclusion couched as a factual allegation”); Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009) (explaining that conclusory allegations are not entitled to a presumption of truth); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (“unwarranted deductions of fact are not admitted as true”).

         As the Supreme Court reiterated in Iqbal, although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 556 U.S. at 678. A complaint must state a plausible claim for relief, and “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The mere possibility the defendant acted unlawfully is insufficient to survive dismissal for failure to state a claim. Id. The complaint must include “[f]actual allegations . . . [sufficient] to raise a right to relief above the speculative level, ” Twombly, 550 U.S. at 555, or, “nudge[] the[] claim[] across the line from conceivable to plausible . . ..” Id. at 570.

         III. Discussion

         Defendant Nelson argues Plaintiff failed to exhaust his administrative remedies against her before bringing this suit.[2] In support of her motion to dismiss, Defendant Nelson submits, as a composite exhibit, the grievances and appeals filed by Plaintiff.

         A. Failure to Exhaust

         The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of all available administrative remedies is a mandatory precondition to suit. See Booth v. Churner, 532 U.S. 731, 739 (2001). The exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required whether the plaintiff seeks declaratory and injunctive relief, monetary damages, or both. See Booth, 532 U.S. at 734, 741. The requirement is not subject to waiver by a court or futility or inadequacy exceptions. See Id. at 741 n.6.

         Moreover, the PLRA requires “proper exhaustion” so that the agency has an opportunity to address the issues on the merits. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006); see also Id. at 95 (“The benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievant complies with the system's critical procedural rules.”). A court must dismiss an action if satisfied the inmate ...


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