Opinion
Case No. 4:23-cv-274-AW-MAF
2023-09-28
T.H., Plaintiff, v. FLORIDA DEPARTMENT OF CORRECTIONS and Ricky D. Dixon, in his official capacity as Secretary of the Florida Department of Corrections, Defendants.
Karem Castane-Blanco, Disability Rights Florida, Fort Lauderdale, FL, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, Kevin A. Golembiewski, Disability Rights Florida, Tampa, FL, for Plaintiff. Amy Jean Pitsch, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, for Defendants.
Karem Castane-Blanco, Disability Rights Florida, Fort Lauderdale, FL, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, Kevin A. Golembiewski, Disability Rights Florida, Tampa, FL, for Plaintiff. Amy Jean Pitsch, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, for Defendants. ORDER DENYING PRELIMINARY INJUNCTION MOTION Allen Winsor, United States District Judge
Plaintiff T.H., a 20-year-old inmate in State custody, sought educational benefits that the Florida Department of Corrections (FDC) was not providing. He pursued a due process hearing under the Individuals with Disabilities Education Act (IDEA) and obtained a favorable order from a Florida Administrative Law Judge (ALJ). See ECF No. 16-1. FDC, though, has not fully complied with that order. Instead, it sued in state court to set the order aside. Through this § 1983 action, T.H. seeks an order enforcing the ALJ's decision. He has moved for a preliminary injunction, ECF No. 16, and this order denies that motion.
Plaintiff removed FDC's action to this court, and it remains pending. See Fla. Dep't of Corr. v. T.H., Case No. 4:23cv314 (N.D. Fla.).
I. BACKGROUND
The facts are largely undisputed, and both sides have disclaimed the need for an evidentiary hearing. ECF No. 19 at 3. T.H. suffers from autism, bipolar disorder, anxiety, attention deficit hyperactivity disorder, oppositional defiant disorder, and fever spikes. ECF No. 16 at 7. He sought certain educational benefits that FDC did not provide. In particular, he sought an Individualized Education Program (IEP) and the opportunity to earn a regular high school diploma rather than a GED. Id. at 13.
T.H. initiated an administrative due process proceeding under the IDEA. See 20 U.S.C. § 1415(f) (providing the opportunity for a student with disabilities to initiate an "impartial due process hearing" conducted by a "State educational agency, or local educational agency as determined by State law"); see also Fla. Stat. § 944.801(9) (providing that qualifying inmates "who request a due process hearing as provided by that act shall be entitled to such hearing before the Division of Administrative Hearings").
Under the IDEA administrative scheme, the Florida Department of Education conducted a hearing during which T.H. and FDC presented evidence. ECF No. 16 at 3. The ALJ concluded that FDC had violated T.H.'s rights under the IDEA, and she issued a final order requiring FDC to (1) provide T.H. compensatory education, (2) conduct a comprehensive evaluation, and (3) develop an Individualized Education Plan to address T.H.'s specific educational needs. ECF No. 16-1 at 17-18. The parties agree that FDC has not provided the compensatory education. ECF No. 22 at 8. Instead, as noted above, FDC sued to challenge the ALJ's decision. See 20 U.S.C. § 1415(i)(2)(A) (permitting an aggrieved party to sue in state or federal court to contest decision from IDEA due process hearing).
The parties thus agree that FDC has not fully complied with the ALJ's order. The question now is whether T.H. is entitled to a preliminary injunction compelling it to do so.
II. STANDARD FOR A PRELIMINARY INJUNCTION
"[A] preliminary injunction is an extraordinary and drastic remedy" that should only be granted if the party seeking it clearly establishes entitlement. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (quoting McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)); see also Texas v. Seatrain Int'l., S.A., 518 F.2d 175, 179 (5th Cir. 1975) ("[W]e must remember that granting a preliminary injunction is the exception rather than the rule.").
To obtain a preliminary injunction, a movant must clearly establish that (1) the movant has a substantial likelihood of success on the merits, (2) he will suffer irreparable injury without an injunction, (3) the threatened injury outweighs the harm the injunction may inflict on the nonmovant, and (4) the injunction would not be adverse to the public interest. ACLU of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009). A failure to establish any one factor is fatal. Id.
I conclude T.H. has not shown a substantial likelihood of success on the merits. I also conclude he has not established irreparable harm. Each of these conclusions independently requires me to deny the motion, and I need not address the remaining factors. See Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011); Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990).
III. ANALYSIS
A. T.H. has not Shown a Substantial Likelihood of Success on the Merits.
First, T.H. has not demonstrated a substantial likelihood of success on the merits because he has not shown that he can avoid the Prison Litigation Reform Act's strict administrative exhaustion requirement. See Swain v. Junior, 961 F.3d 1276, 1291-92 (11th Cir. 2020) (noting that likelihood of success analysis necessarily includes contemplation of PLRA exhaustion).
Under the PLRA, "[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). The PLRA exhaustion requirement applies broadly to "all inmate suits about prison life." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). And it "mandates strict exhaustion, irrespective of the forms of relief sought and offered through administrative avenues." Varner v. Shepard, 11 F.4th 1252, 1258 (11th Cir. 2021) (cleaned up), cert. denied, — U.S. —, 142 S. Ct. 1172, 212 L.Ed.2d 43 (2022).
"[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). FDC has a three-step grievance process. See Fla. Admin. Code §§ 33-103.001-103.018. First, the inmate generally must file an informal grievance. (He can skip this step in some situations, like emergencies and alleged violations of the Americans with Disabilities Act. Id. § 33-103.005.) After an unsuccessful informal grievance, an inmate may file a formal grievance. Id. § 33-103.006. If that does not work, he may appeal to the FDC Secretary. Id. § 33-103.007. Only after completing all three steps can the inmate proceed with a lawsuit. See Dimanche v. Brown, 783 F.3d 1204, 1210-11 (11th Cir. 2015) (explaining Florida's grievance procedure in relation to the PLRA).
The parties agree T.H. did not complete this process. See ECF No. 22-4; ECF No. 22-5. T.H.'s argument is that he did not have to. First, he contends that FDC forfeited its PLRA defense. ECF No. 23 at 7. Second, he argues that, assuming the PLRA applies, he satisfied the exhaustion requirement by using all available remedies under the IDEA. Id. at 8. And third, he contends that under Florida's prison procedure "an inmate cannot file a grievance to enforce an order," meaning the grievance system did not provide an "available remedy." Id. at 9. None of these arguments is persuasive.
First, T.H. says FDC "never raised PLRA exhaustion as a defense during the due process hearing" and that it cannot now do so. Id. at 7. But the PLRA was not applicable to the due process hearing. The PLRA exhaustion requirement applies to bar lawsuits—not administrative proceedings. 42 U.S.C. § 1997e(a). Regardless, this is a different (and new) proceeding, and this is the one in which FDC asserted the PLRA defense.
This not like Brooks v. Warden, 706 F. App'x 965 (11th Cir. 2017), on which T.H. relies. The prisoner in that case filed a § 1983 action, and the defendant deputy warden filed two separate motions to dismiss, neither of which mentioned PLRA exhaustion. Id. at 967. Three years later, the warden first raised PLRA exhaustion. Id. The Eleventh Circuit held that the defense was barred as untimely under Federal Rule of Civil Procedure 12(g)(2). Id. at 970. Brooks thus involved multiple stages of a lawsuit, not a prior administrative proceeding. It provides no help here, where FDC raised the defense promptly in this new lawsuit. FDC did not forfeit the defense.
T.H. also cites a footnote in Alacare Home Health v. Sullivan, 891 F.2d 850, 855 n.5 (11th Cir. 1990), abrogated on other grounds, Sebelius v. Auburn Reg'l Med., 568 U.S. 145, 133 S. Ct. 817, 184 L.Ed.2d 627 (2013), for the proposition that an argument not raised in an administrative hearing cannot be raised on appeal. ECF No. 23 at 7. While that proposition is correct as a general matter, it has no application here. The Alacare footnote references a case in which an appellant was barred from arguing that his dismissal was based on race when he never raised that claim during the administrative hearing addressing his dismissal. Alacare Home Health, 891 F.2d at 855 n.5 (citing Beale v. Blount, 461 F.2d 1133, 1140 (5th Cir. 1972)). The prior hearing was on the same issue, and claims of racial discrimination should have been raised during the administrative proceeding. In contrast, a PLRA exhaustion defense would have been inapplicable in this case's prior IDEA hearing, which was proceeding according to the act's specified administrative scheme.
Second, T.H. argues that—assuming it applied—he satisfied the PLRA's exhaustion requirement by pursuing all available remedies under the IDEA. ECF No. 23 at 8. The IDEA, which typically applies to educational institutions outside the prison system, has its own administrative scheme. See 20 U.S.C. § 1415. FDC does not dispute that T.H. exhausted under the IDEA by completing an administrative due process hearing. See ECF Nos. 21-23; 20 U.S.C. § 1415(f) (explaining the due process hearing remedy). But because T.H. is a prisoner, the PLRA requires him to exhaust all his available remedies. And despite his exhaustion under the IDEA, the prison grievance system remained available. See Jones, 549 U.S. at 211, 127 S.Ct. 910.
Finally, T.H. argues the prison grievance system did not provide an "available" remedy because it does not allow grievances to enforce orders. ECF No. 23 at 10. The grievance system does prohibit inmates from filing grievances regarding "(a) The substance of State and federal court decisions; (b) The substance of State and federal laws and regulations; (c) Parole decisions; [and] (d) Other matters beyond the control of the department." Fla. Admin. Code § 33-103.001(5)(a)-(d). T.H. cites subsection (a), suggesting that a grievance complaining of FDC's failure to enforce the ALJ order would go to the substance of a state court decision. ECF No. 23 at 10. But even assuming the ALJ's order here was a "State court decision," subsection (a)'s prohibition would not apply. A grievance regarding FDC's conduct—that it was failing to comply with the ALJ's order—would not be a complaint regarding the substance of that order.
Moreover, the point of the exceptions is that prisoners need not file grievances over things beyond FDC's control—things like parole decisions or the substance of laws. Indeed, the list of excluded categories ends with "[o]ther matters beyond the control of the department," indicating that the matters preceding it were likewise beyond FDC's control. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012) (explaining that "words grouped in a list should be given related meanings"). Here, though, FDC has total control over whether it implements the changes the ALJ's final order demands. That is why, after all, T.H. has sued it.
Whether or not the prison grievance system is an effective remedy for the T.H.'s complaint is beside the point; the PLRA requires that he make use of it before bringing a lawsuit. See Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) ("Congress meant to require procedural exhaustion regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible."). Since T.H. did not fully exhaust as the PLRA requires, he cannot show that he has a substantial likelihood of success on the merits of his claim.
B. T.H. Has Not Shown Irreparable Injury.
Separately, and as an independent reason to deny preliminary injunctive relief, T.H. has not shown that he will suffer irreparable harm without a preliminary injunction. "The key word in this consideration is irreparable. Mere injuries, however substantial, . . . are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm." Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (quoting Va. Petroleum Jobbers Ass'n v. Fed. Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958)).
T.H. argues there is no later opportunity for compensatory education because he will soon age out of IDEA services. In his view, "his right to FAPE might be forever denied absent a preliminary injunction." ECF No. 16 at 24. FDC counters that this claim is "exaggerated" as "compensatory education can be provided beyond the age of 22, because it is a judicially constructed relief designed to remedy past educational failings for students." ECF No. 23 at 14.
FDC has the better argument, as courts have granted compensatory education relief even after a student would otherwise have aged out. See MP v. Fla. Dep't. of Corr., 4:06-cv-52-WS, 2006 WL 8444714, at *2 (N.D. Fla. Oct. 12, 2006); see also Jefferson Cnty. Bd. of Educ. v. Breen, 853 F.2d 853, 857-58 (11th Cir. 1988) (affirming the district court's order that required the defendant to fund two additional years of education after the student reached the age of twenty-one); Pihl v. Mass. Dep't. of Educ., 9 F.3d 184 (1st Cir. 1993) (holding that the IDEA grants courts the power to require compensatory education past the statutory age of entitlement). T.H. is not scheduled for release until 2035. ECF No. 22 at 15. There is adequate time for compensatory education if he is successful in defending the ALJ's order, and T.H. has not shown that such relief would be unavailable later.
T.H. also argues that even if he were provided with compensatory education later, it would not fully remedy the harm he suffers now. ECF No. 23 at 12. He insists that without a revised IEP now, he "not only risks educational loss but also . . . [faces] risk of further behaviors." Id. at 13. But he offers no evidence to show this assertion is anything other than speculation. In short, T.H. has not met his substantial burden of showing irreparable injury that would justify a preliminary injunction.
CONCLUSION
The preliminary injunction motion (ECF No. 16) is DENIED.
The clerk will set a telephonic status conference for the two related cases: this one and Fla. Dep't of Corr. v. T.H., Case No. 4:23cv214 (N.D. Fla.).
SO ORDERED on September 28, 2023.