United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
THAI CANNON, UNITED STATES MAGISTRATE JUDGE.
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. 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
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.
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.
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.
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
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.
Nelson argues Plaintiff failed to exhaust his administrative
remedies against her before bringing this suit. In support of her
motion to dismiss, Defendant Nelson submits, as a composite
exhibit, the grievances and appeals filed by Plaintiff.
Failure to Exhaust
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.
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 ...