Opinion
3:23cv24026/MCR/ZCB
09-09-2024
THOMAS A LOHSTRETER, Plaintiff, v. GARY ENGLISH, et al., Defendants.
REPORT AND RECOMMENDATION
Zachary C. Bolitho United States Magistrate Judge
This is a pro se prisoner civil rights case filed under 42 U.S.C. § 1983. Currently before the Court are Defendants' motions to dismiss for failure to exhaust administrative remedies, which Plaintiff has opposed. (Docs. 23, 29, 33, 37, 38). For the reasons below, Defendants' motions should be granted and this matter dismissed.
I. Summary of Plaintiff's Factual Allegations
At this stage in the proceeding, the Court assumes the truth of Plaintiff's allegations.
Plaintiff is an inmate of the Florida Department of Corrections (FDOC). Plaintiff alleges that Blackwater River Correctional Facility (Blackwater), where he is currently housed, “has a policy and custom which condones violence by inmates against other inmates.” (Doc. 15 at 6). This alleged policy “allow[s] inmates to extort, rape, assault, stab, and murder other inmates.” (Id.). Plaintiff alleges that Defendant English, the warden at Blackwater, “personally enforced this policy and custom” by telling his employees “to disregard the actions of an inmate that assaulted another inmate.” (Id.).
In accordance with this policy and custom, Plaintiff alleges he was attacked by another inmate on June 1, 2022, while Blackwater correctional officers turned a blind eye. (Id. at 6-7). Plaintiff claims two officers-Defendants John Doe #1 and John Doe #2-were 10 feet away when Plaintiff's attacker “became extremely loud, yelling, and screaming” before attacking Plaintiff. (Id. at 7). Plaintiff alleges the Doe Defendants “refused to intervene and defuse the situation,” and instead they watched as Plaintiff was beaten. (Id.). Plaintiff claims he suffered a fractured skull, brain damage, and loss of vision from the attack. (Id.).
After the assault, Plaintiff was taken to the infirmary. (Id. at 8). He was seen by Defendants Nurse Liveoak and Dr. Luis Barrios. (Id.). Plaintiff alleges Defendants Liveoak and Barrios failed to provide him adequate medical treatment. (Id.). Plaintiff states he suffers from heart damage, is blind in one eye, and is on seizure medication for the rest of his life because of Defendants' actions. (Id.).
Plaintiff has sued all Defendants in their individual capacities, seeking compensatory and punitive damages. (Id. at 2-4, 10). He alleges Defendants violated his Eighth Amendment rights. (Id. at 10-11). He also brings several state law claims. (Id. at 11).
II. Discussion
Defendants seek dismissal because Plaintiff failed to exhaust his administrative remedies. (Docs. 23, 29, 37). Under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), a prisoner must exhaust administrative remedies before bringing an action in federal court. Porter v. Nussle, 534 U.S. 516, 520 (2002). The exhaustion requirement is intended to “afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006) (cleaned up). “The exhaustion requirement applies to all inmate suits about prison life[.]” Tilus v. Kelly, 510 Fed.Appx. 864, 866 (11th Cir. 2013). A court cannot waive the PLRA's exhaustion requirement. Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998). “The failure to exhaust administrative remedies requires dismissal of the action.” Wright v. Georgia Dep't of Corr., 820 Fed.Appx. 841, 843 (11th Cir. 2020).
To exhaust, a prisoner must complete the administrative process using the prison's grievance procedures. Jones v. Bock, 549 U.S. 199, 218 (2007). And the prisoner must properly exhaust by complying with all of the administrative system's critical procedural rules. Woodford, 548 U.S. at 93, 95 (emphasis added); Jones, 549 U.S. at 218 (explaining that it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion).
The FDOC has promulgated a three-step grievance procedure: (1) the inmate files an informal grievance within twenty days of the incident; (2) if the grievance is not resolved informally, then the inmate files a formal grievance at the institutional level within fifteen days from the date the informal grievance was responded to; and (3) if the inmate is unhappy with the formal grievance response, then the inmate appeals to the FDOC Secretary/Central Office within fifteen days of the response to the formal grievance. Fla. Admin. Code Ann. r. 33-103.005-007, 011 (2018).
The Eleventh Circuit has adopted a two-step framework for courts to apply when considering an exhaustion argument. Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008). Under the first step, the Court must “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.” Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015). If the facts as stated by the prisoner show a failure to exhaust, then the case should be dismissed at step one. Id.
Where dismissal is not warranted on the prisoner's view of the facts, then it is necessary to proceed to step two. Id. There, “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. Those findings may include credibility determinations. Bryant v. Rich, 530 F.3d 1368, 1377-78 (11th Cir. 2008). “To make these specific findings, courts should . . . look outside [of] the pleadings[,]” ensuring the parties have had sufficient opportunity to develop the record. Jenkins v. Sloan, 826 Fed.Appx. 833, 838 (11th Cir. 2020). A court may rely on the papers submitted by the parties and need not hold an evidentiary hearing if neither party has requested one. See Zavala v. Ward, No. 21-10989, 2024 WL 510011, at *4 (11th Cir. Feb. 9, 2024) (“Because [the plaintiff] never moved for an evidentiary hearing, the district court was free to make its factual determinations based on the papers submitted ....”).
The Court will first generally frame the parties' arguments. Then, the Court will explain the parties' respective burdens of proof. And lastly, the Court will discuss whether the parties have met their respective burdens of proof.
A. The parties' arguments
Defendants argue that Plaintiff failed to exhaust under the FDOC's grievance procedure. (Docs. 23, 29, 33). In support of their argument, Defendants have provided declarations from Blackwater's grievance coordinator and an operations analyst with FDOC's Central Office, as well as grievance logs and copies of relevant grievances.(Docs. 23-1, 371, 37-2).
Plaintiff has argued that it is improper for the Court to consider these materials when ruling on Defendants' motions to dismiss for failure to exhaust. (Doc. 33 at 4). That is incorrect. See Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) (explaining that when ruling on a motion to dismiss for failure to exhaust, “it is proper for a judge to consider facts outside of the pleadings”).
For his part, Plaintiff appears to admit that he did not complete the FDOC's grievance procedure. (See Doc. 33 at 4). He claims, however, that the failure to exhaust was not his fault. (Docs. 33 at 4; 38 at 4). According to Plaintiff, the grievance process was not available to him because prison officials failed to respond to his grievances. For instance, Plaintiff states that he filed six informal grievances requesting: (1) the names of the correctional officers involved in the June 1, 2022 incident and that the officers be disciplined; (2) medical records of his injuries from June 1, 2022; (3) the name of the nurse who treated him on June 1, 2022 and that she be reprimanded; (4) the name of the doctor that treated him on June 1, 2022 and that the doctor be reprimanded; (5) Blackwater's policy and custom of condoning inmate on inmate violence be terminated and Plaintiff be compensated for his pain and suffering; and (6) his missing property be returned or replaced. (Docs. 33 at 1-2; 38 at 1-2). Plaintiff claims he received a response to his grievance regarding his personal property, but he says the rest of his grievances never received responses. (Docs. 33 at 2; 38 at 2).
As for formal grievances, Plaintiff claims to have filed two. (Id.). One was for deliberate indifference to a serious medical need, and the second was for deliberate indifference to his safety, in which he addressed the facility's policy/custom of ignoring inmate-on-inmate attacks, Defendant English's involvement in the policy/custom, and the Doe Defendants' failure to intervene during on June 1, 2022. (Id.). When Plaintiff received no response to these formal grievances, Plaintiff says he filed two appeals with the FDOC Secretary/Central Office. (Docs. 33 at 3; 38 at 3). According to Plaintiff, he received no response from these appeals. (Id.).
Plaintiff also argues that he was in the infirmary or segregation unit, which prevented him from exhausting his administrative remedies. (Id.). Finally, Plaintiff claims correctional officers at Blackwater “purposefully . . . hinder inmates from filing civil complaints by losing and/or destroying inmate grievances.” (Docs. 33 at 4; Doc. 38 at 4).
B. The parties' respective burdens of proof
Because Plaintiff argues that administrative remedies were unavailable, the Court must apply both steps of the Turner analysis. See Turner, 541 F.3d at 1082-83; Montalban v. Doe, 801 Fed.Appx. 710, 711 (11th Cir. 2020) (holding that district court must apply both Turner steps to plaintiff's argument that administrative remedies were practically unavailable to him); Abram v. Leu, 759 Fed.Appx. 856, 861 (11th Cir. 2019) (holding that district court must conduct the two-step inquiry when plaintiff's allegations raise the question of whether administrative remedies were available).
Under Turner, Defendants bear the initial burden of proving that a grievance procedure was generally available and that Plaintiff failed to properly exhaust it. Turner, 541 F.3d at 1082. If Defendants satisfy this burden, then the burden shifts to Plaintiff to prove that the generally available procedure was subjectively and objectively unavailable to him. Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020).
C. Defendants have met their burden of showing that an administrative remedy was generally available, and that Plaintiff failed to properly exhaust it.
Defendants argue that Plaintiff filed no informal grievances, formal grievances, or appeals related to a policy or custom of ignoring inmate-on-inmate attacks or the June 1, 2022 incident. As will be discussed below, the grievance records support Defendants' argument and show that an administrative remedy was generally available to Plaintiff.
Let's start with informal grievances. Institutional Grievance Coordinator Rolando Bethea's declaration explains that from June 1, 2022 to June 1, 2024, Plaintiff filed a total of four informal grievances. (Doc. 37-1 at 1, 2). None of those grievances mentioned a policy of condoning inmate-on-inmate violence, the failure to protect Plaintiff from another inmate, or deliberate indifference to his medical needs. (Id. at 2). Thus, the grievance records demonstrate that Plaintiff did not file an informal grievance about the conduct at issue in this case.
The records show Plaintiff filed informal grievances on (1) July 25, 2022 over loss of his personal property; (2) September 6, 2023 regarding gaintime award classification; (3) October 27, 2023 regarding is gain-time award classification; and (4) March 11, 2024 regarding his telephone privileges. (Doc. 37-1 at 2).
Under the FDOC's grievance procedure, if an inmate does not receive a timely response to a grievance, then he may “proceed to the next step of the grievance process.” Fla. Admin. Code Ann. r. 33-103.011(4). Plaintiff claims he did just that by submitting formal grievances after he received no responses to his informal grievances. But the grievance records show that Plaintiff has filed four formal grievances since June 1, 2022, and none of them related to the conduct at issue in this case. (Doc. 37-1 at 1, 3-7). Thus, the grievance records demonstrate that Plaintiff never filed a formal grievance over the conduct in this case.
Even if these formal grievances had anything to do with the conduct at issue, they were filed well outside the time frames provided for in the FDOC's grievance procedure. The four formal grievances were filed October 27, 2022, January 24, 2023, April 4, 2023, and February 26, 2024. (Doc. 37-1 at 3-7). Thus, they would not have been in compliance with the FDOC's grievance procedure regarding an incident that allegedly occurred in June of 2022.
Plaintiff also claims that he filed two appeals to the FDOC Secretary/Central Office when he did not hear back on his formal grievances. The evidence in the record belies that claim. FDOC Operation Analyst Lawanda Sanders's declaration explains that Plaintiff has filed only one appeal to the FDOC Secretary/Central Office during his incarceration. (Doc. 37-2). That appeal, which was filed nearly two years after the events in this case, was returned as non-compliant and dealt with telephone and canteen privileges. (Id. at 2). Thus, the grievance records and other information in the record demonstrate that Plaintiff did not file a Secretary/Central Office appeal about the alleged conduct at issue in this case.
Defendants have shown that Plaintiff failed to properly exhaust his administrative remedies under the FDOC's grievance procedure. Thus, the burden now shifts to Plaintiff to show that the grievance process was subjectively and objectively unavailable to him. See Geter, 974 F.3d at 1356 (describing the burden shifting framework when a prisoner argues that administrative remedies were unavailable).
D. Plaintiff has not met his burden of showing that the grievance procedure was unavailable.
The PLRA requires inmates to exhaust only those administrative remedies that are “available.” 42 U.S.C. § 1997e(a). The modifier “available” means that an administrative remedy must provide the possibility of some relief. Ross v. Blake, 578 U.S. 632, 643 (2016). There are three circumstances that make an administrative remedy unavailable. Id. First, when the administrative procedure operates as a simple “dead end,” with officers unable or consistently unwilling to provide any relief to aggrieved inmates. Id. Second, when an administrative scheme is so opaque that it is incapable of use; in other words, a grievance mechanism exists, but no ordinary prisoner can discern or navigate it. Id. at 643-44. Third, when prison administrators thwart inmates from taking advantage of a grievance process through “machination, misrepresentation, and intimidation.” Id.
Here, Plaintiff argues that administrative remedies were not available for several reasons. First, he claims to have filed several grievances in the wake of the June 1, 2022 event, but he says prison officials failed to respond to the grievances. (Docs. 33 at 1-3; 38 at 2-3). Second, Plaintiff claims he was in the infirmary or segregation unit during the 14-day time-period in which his administrative remedies must have been exhausted. (Docs. 33 at 3; 38 at 4). And third, he claims correctional officers at Blackwater “purposefully . . . hinder inmates from filing civil complaints by losing and/or destroying inmate grievances.” (Docs. 33 at 4; 38 at 4).
1. The grievance process was not unavailable due to prison officials' alleged failure to respond to Plaintiff's grievances.
In response to Defendants' motions to dismiss, Plaintiff alleges he submitted several grievances and appeals in the wake of June 1, 2022, that he says prison officials failed to respond to. (Docs. 33 at 1-2; 38 at 1-2). When a plaintiff claims that he never received a response to grievances related to his underlying § 1983 claims, he must provide the Court with evidence that he submitted those grievances. McDowell v. Bowman, No. 21-10840, 2022 WL 4140331, at *4 (11th Cir. Sept. 13, 2022). That evidence may take the form of a sworn affidavit, or functional equivalent, detailing specific actions that the Plaintiff took in filing the grievance. Jenkins v. Sloan, 826 Fed.Appx. 833, 839-40 (11th Cir. 2020). Plaintiff swears under penalty of perjury that he submitted five informal grievances, two formal grievances, and two appeals to the FDOC Secretary/Central Office that went unanswered. (Docs. 33, 38). But Plaintiff gives little to no factual support for his bare assertions, outside of the general content and number of his grievances/appeals. For instance, Plaintiff does not describe when,how, or to whom he submitted these grievances/appeals. He does not attach copies of these grievances/appeals or describe their content with specificity. See, e.g., Womack v. Sikes, No. CV307-042, 2008 WL 4104148, at *7 (S.D. Ga. Sept. 4, 2008) (noting that “Plaintiff cannot show that administrative remedies were unavailable simply by making a blanket allegation without any supporting evidence” and dismissing for failure to exhaust when “other than Plaintiff's complaint and his self-serving statements, there [was] no record or documentation that Plaintiff ever complained [about Defendant's actions]”).
Given the timeframes set forth in the FDOC grievance procedures, when Plaintiff allegedly submitted these grievances/appeals is important. See Fla. Admin. Code Ann. r. 33-103.005-007, 011 (providing deadlines for the timely filing of grievances and appeals).
Plaintiff states that he did file a grievance “immediately” after the June 1, 2022 attack requesting Blackwater return or replace his missing property. (Doc. 33 at 2; 38 at 2). This grievance, Plaintiff asserts, is the only grievance to which he received a response. (Id.). Blackwater's informal grievance records reflect this grievance and show that it was denied. (Doc. 37-1 at 2). While evidence of the property loss grievance does not necessarily refute Plaintiff's allegation that the grievance process was effectively unavailable to him for his other complaints, it does tend to undercut it. That is especially so because it is the FDOC's policy to log and respond to every informal grievance. See Fla. Admin. Code Ann. r. 33-103.005(1)(a), (4), (5). Records of Plaintiff's other grievances/appeals also undercut Plaintiff's assertions that he filed grievances that were never logged or responded to. (Docs. 37-1 at 2-7; 372). Indeed, these records support Defendants' assertions that the grievance process was subjectively and objectively available to Plaintiff.
Although Plaintiff states that he filed this grievance “immediately” after the June 1, 2022 attack, grievance records show Plaintiff did not file this informal grievance until July 25, 2022, almost two months after the June 1, 2022 incident. (Doc. 37-1 at 2).
When looking at the record as a whole, Plaintiff's assertions that he filed these grievances/appeals and heard nothing back lack credibility. See Bryant v. Rich, 530 F.3d 1368, 1373-78 (11th Cir. 2008) (recognizing the district court may act as the fact finder in resolving factual disputes on motions to dismiss for failure to exhaust, and affirming the district court's finding that plaintiff's allegations that he was denied access to grievance forms not credible, “even if cause to disagree also exists”); Upkins v. Coleman, No. 5:20-cv-140, 2022 WL 2445028, at *6 (S.D. Ga. June 13, 2022) (determining that the evidence in the record was more persuasive than the plaintiff's self-serving statements that he exhausted all administrative remedies). Thus, the Court finds that Plaintiff has not met his burden of showing that administrative remedies were unavailable due to prison officials' failing to respond to his grievances.
The Court would note that even if Plaintiff had filed a grievance and received no response, that would not have prevented him from proceeding to the next step in the grievance process. See Pavao v. Sims, 679 Fed.Appx. 819, 825-26 (11th Cir. 2017) (“But even assuming that the prison failed to respond to that grievance, the grievance procedure provides that he could have proceeded to the next step of the grievance process ”) (cleaned up).
2. The grievance process was not unavailable due to Plaintiff's stay in the infirmary or segregation unit.
Next, Plaintiff argues that the administrative process was unavailable to him because he was in the “infirmary and/or segregation unit during the time period in which his administrative remedies must have been exhausted.” (Docs. 33 at 3; 38 at 3). Plaintiff's bare and conclusory assertion is insufficient to show that the administrative process was not available to him. Plaintiff does not state how long he was in the infirmary/segregation unit. He does not explain why his placement in the infirmary/segregation unit rendered him unable to submit a grievance. Without any supporting factual details, Plaintiff has failed to show that the grievance process was unavailable to him because of his stay in the infirmary/segregation unit. See McDowell, v. Bowman, No. 21-10840, 2022 WL 4140331, at *4 (11th Cir. Sept. 13, 2022) (recognizing that at Turner's step two, a plaintiff may not offer conclusory statements broadly asserting that the grievance process was unavailable); see also Williams v. Barrow, 559 Fed.Appx. 979, 988 (11th Cir. 2014) (stating that the plaintiff's “conclusory allegations” that the grievance procedure was rendered unavailable to him “does not come close” to establishing unavailability); Wright v. Georgia Dep't of Corr., 820 Fed.Appx. 841, 845 (11th Cir. 2020) (affirming dismissal for failure to exhaust and rejecting the plaintiff's conclusory claim that the grievance process was unavailable to him because “he provided no factual support for this assertion”).
Plaintiff's responses to Defendants' motions to dismiss contain contradictory statements. For instance, Plaintiff claims he filed grievances “immediately” after the June 1, 2022 incident. (Docs. 33 at 1; 38 at 1). But later, Plaintiff states he was in the “infirmary and/or segregation unit during the time period in which his administrative remedies must have been exhausted” (Docs. 33 at 3; 38 at 3).
Plaintiff would have had twenty days to file an informal grievance under the FDOC's grievance procedure. He has provided the Court with no basis for concluding that he was in the infirmary/segregation during the entirety of the twenty day informal grievance period.
3. The grievance process was not unavailable due to prison officials “hindering” Plaintiff's ability to file grievances.
Finally, Plaintiff asserts that the grievance process was unavailable because correctional officers at Blackwater “purposefully . . . hinder inmates from filing civil complaints by losing and/or destroying inmate grievances.” (Docs. 33 at 4; 38 at 4). Plaintiff has not provided any specific factual allegations in support of this conclusory statement. For example, he does not name or describe any particular staff member who “hindered” a grievance. Nor does he allege when he attempted to file these “hindered” grievances. Skipper v. Jones, No. 3:12-cv-648, 2015 WL 5125778, at *5 (M.D. Ala. Aug. 31, 2015) (“Plaintiff's conclusory assertion he wrote request forms that went unanswered and . . . were hidden, misplaced, and/or thrown away, fails to overcome [the d]efendants' evidence showing that a grievance system was available at the facility for Plaintiff's claims and that he failed to exhaust properly the administrative remedy available to him.”).
Moreover, Plaintiff's history of filing grievances, as evidenced by the grievance logs (Doc. 37-1), refutes his assertion that administrative remedies were unavailable because prison officials at Blackwater “hindered” him from filing grievances. See Bryant v. Rich, 530 F.3d 1368, 1377-78 (11th Cir. 2008) (affirming finding that prisoner's allegation of lack of access to grievance forms was not credible where the evidence showed that prisoner had filed a grievance on another issue, which supported a reasonable inference that prisoner had access to grievance forms); Whatley v. Smith, 898 F.3d 1072, 1083 (11th Cir. 2018) (noting that district court appropriately considered prisoner's grievance history as evidence that defendants did not take actions to make the administrative process unavailable); Schlicher v. Fla. Dep't of Corr., 399 Fed.Appx. 538, 539 (11th Cir. 2010) (affirming district court's finding that remedies were available where the record showed that prisoner filed grievances on other issues).
To the extent Plaintiff claims he was hindered because of threats made by correctional officers, his allegations fall short of establishing that the administrative process was unavailable. (Docs. 33 at 3-4, 38 at 3-4). This allegation, like Plaintiff's other allegations, is conclusory. Plaintiff provides little supporting detail, such as who threatened him and when. He only states that “Correctional Officers . . . [informed him] that if he did not stop writing grievances that the beating he received was nothing compared to what could happen to him, and that he would never get out of segregation unless he dropped it.” (Docs. 33 at 3; 38 at 3). Additionally, to demonstrate unavailability by threats, the threat must actually “deter the plaintiff inmate from lodging a grievance.” Turner, 541 F.3d at 1085. But the grievance records submitted show that Plaintiff filed grievances on other issues. In short, Plaintiff has not shown that the administrative grievance procedure was unavailable to him because the corrections officers hindered the filing of grievances.
III. Conclusion
For the reasons above, it is respectfully RECOMMENDED that:
1. The motions to dismiss filed by Defendants (Docs. 23, 29) be GRANTED.
2. This matter be DISMISSED without prejudice for failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a).
3. All pending motions be DENIED as moot.
4. The Clerk of Court be directed to close this case.
The Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claims. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988) (recognizing elimination of federal law claims “at an early stage of the litigation” is “a powerful reason to choose not to continue to exercise [supplemental] jurisdiction”).
Plaintiff has a pending motion for leave to file an amended complaint. (Doc. 42). Permitting Plaintiff leave to amend would be futile because his amended complaint does not remedy the exhaustion problem. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004) (explaining that denial of leave to amend is “justified by futility when the complaint as amended is still subject to dismissal”).
Notice to the Parties
Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the court's internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.