Harris v. Dixon

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

RICHARD HARRIS,

Plaintiff,

v. Case No. 3:22-cv-667-BJD-LLL

R.E. LINDBLADE, et al.,

Defendants. __________________________________

ORDER

I. Status Plaintiff, Richard Harris, an inmate of the Florida Department of Corrections (FDC), is proceeding pro se and in forma pauperis on a second amended complaint (Doc. 25; Sec. Am. Compl.) under 42 U.S.C. § 1983 against three Defendants: R.E. Lindblade, a corrections officer; A. McDonald, a corrections officer; and Jason Howell, a registered nurse. See Sec. Am. Comp. at 2-3.1 Before the Court is Defendants Lindblade and McDonald’s motion to dismiss (Doc. 38; Def. Mot.) with exhibits (Docs. 38-1 through 38-3; Def. Exs.

1 Shortly after Plaintiff initiated this action, the Court directed him to submit an amended complaint because he did not use the Court-approved form. See Order (Doc. 7). Upon receipt of his amended complaint (Doc. 15), the Court directed Plaintiff to amend yet again because his amended complaint was deficient. See Order (Doc. 18). A-C), which Plaintiff opposes (Doc. 40; Pl. Resp) with exhibits (Docs. 40-1 through 40-4; Pl. Exs. A-D).2 Among other reasons, Defendants seek dismissal

for Plaintiff’s failure to exhaust his administrative remedies before initiating this action. See Def. Mot. at 5, 15. As relevant to the present motion, Plaintiff alleges Defendants Lindblade and McDonald physically assaulted him on May 12, 2022, in

retaliation for writing grievances. See Sec. Am. Compl. at 7-8, 10. According to Plaintiff, Defendants were escorting him (in his wheelchair) for a pre- confinement medical assessment and, once inside the holding cell, Defendant Lindblade chocked him, and Defendant McDonald “smashed [his] knees into a

metal bench.” Id. at 7-8. Plaintiff maintains Defendants’ conduct violated his rights under the First Amendment (retaliation), the Eighth Amendment (excessive force), and the Fourteenth Amendment (denial of equal protection). Id. at 5-6, 10.

Plaintiff concedes in his civil rights complaint form that he filed no grievances related to the claims on which he seeks to proceed. Id. at 12.

2 Defendant Howell separately moves to dismiss the complaint (Doc. 47). Plaintiff has not responded to that motion, despite the Court having advised him in two separate Orders that he has 45 days to respond to a motion to dismiss and a failure to do so will result in the motion being deemed unopposed. See Orders (Docs. 6, 27). The Court will direct Plaintiff to show cause why the claims against Defendant Howell should not be dismissed for his failure to respond to Howell’s motion to dismiss. 2 However, he implies the grievance process was unavailable to him because the grievance process at his institution (Suwannee) is being “manipulated,” and he

fears reprisal. Id. at 13. He also contends he gave a written and oral statement to the Office of the Inspector General (IG’s Office). Id. II. Exhaustion The Prison Litigation Reform Act (PLRA) provides, “[n]o action shall be

brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The purpose of this requirement “is to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.”

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1214-15 (11th Cir. 2015). Exhaustion of available administrative remedies is “a precondition to an adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). See also Jones v. Bock, 549 U.S. 199, 211 (2007). While “the PLRA

exhaustion requirement is not jurisdictional[,]” Woodford v. Ngo, 548 U.S. 81, 101 (2006), “exhaustion is mandatory . . . and unexhausted claims cannot be brought,” Pavao v. Sims, 679 F. App’x 819, 823 (11th Cir. 2017)3 (citing Jones, 549 U.S. at 211).

3 Any unpublished decisions cited in this Order are deemed persuasive authority on the relevant point of law. See McNamara v. GEICO, 30 F.4th 1055, 1061 (11th Cir. 2022). 3 Not only is there a recognized exhaustion requirement, “the PLRA . . . requires proper exhaustion” as set forth in applicable administrative rules and

policies. Woodford, 548 U.S. at 93. “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules[.]” Id. Generally, to properly exhaust administrative remedies, a Florida inmate must timely complete a three-step process as fully set forth in the Florida Administrative

Code (FAC). See Fla. Admin. Code rr. 33-103.001 through 33-103.018. Except for specific, enumerated issues, an inmate generally must initiate the grievance process by filing an informal grievance within “20 days of when the incident or action being grieved occurred.” See Fla. Admin. Code rr. 33-

103.005(1), 33-103.006(3), 33-103.007(3), 33-103.011(1)(a). The second step of the grievance process requires an inmate to submit a formal grievance at the institution level within 15 days from “[t]he date on which the informal grievance was responded to.” See Fla. Admin. Code rr. 33-

103.006(1), 33-103.011(1)(b). The final step of the grievance process requires an inmate to submit an appeal to the Office of the Secretary of the FDC within 15 days “from the date the response to the formal grievance [was] returned to the inmate.” See Fla. Admin. Code rr. 33-103.007(1), 33-103.011(1)(c).

An inmate my not proceed to a subsequent step in the grievance process before receiving a response to the grievance under review or, if no response is

4 given, before “expiration of [the] time limit” for the respective prison official to have responded. See Fla. Admin. Code r. 33-103.011 (“Time Frames for Inmate

Grievances”). Similarly, an inmate may not initiate a civil action while he is still completing the grievance process. In other words, filing suit while the grievance process is still underway does not constitute “proper exhaustion” under the PLRA. See Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir.

2000) (“[T]he plain language of the statute adequately puts prisoners on notice that they must exhaust their administrative remedies before pursuing prison- related civil actions in federal court.”). See also Okpala v. Drew, 248 F. App’x 72, 73 (11th Cir. 2007) (affirming sua sponte dismissal of an inmate’s action

where it was “undisputed” that the plaintiff filed his action before receiving a response to his grievance appeal). Inmates are not required to “specially plead or demonstrate exhaustion in their complaints.” See Jones, 549 U.S. at 216. The determination of whether

an inmate exhausted his available administrative remedies before pursuing a federal claim is a matter of abatement, properly addressed through a motion to dismiss. See Bryant, 530 F.3d at 1374-75. As such, the defendant bears the burden. Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). When

confronted with an exhaustion defense, courts in the Eleventh Circuit employ a two-step process:

5 First, [a district court should] 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. . . . 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.

Whatley, 802 F.3d at 1209 (citing Turner, 541 F.3d at 1082-83). The parties agree that grievance #2206-231-039 is relevant given both attach it (and the response) for the Court’s review. See Def. Ex. C; Pl. Ex. C. This was a formal grievance Plaintiff directed to the Warden’s office on May 23, 2022. See Def. Ex. C at 3. In the grievance, Plaintiff did not explicitly say that Defendant Lindblade choked him and Defendant McDonald smashed his legs against a metal bench, but he identified Defendants by name, mentioned the date of the incident, said that whatever happened caused him to lose consciousness, and complained that staff were attempting to “cover up” the “unconstitutional [and] injurious actions of security staff against [him].” Id. at 3-4.4 The formal grievance was stamped as received on June 8, 2022, id. at 3, which means the Warden’s office had until June 28, 2022 to respond, see Fla.

4 Plaintiff submitted this grievance as a “medical grievance.” See Def. Ex. C at 1. However, given he mentions Defendants Lindblade and McDonald and the date of the alleged incident, the Court liberally construes the grievance as an attempt to grieve the incident that is the subject of the complaint. 6 Admin. Code r. 33-103.011(3)(b) (providing a response to a formal grievance must be made within “20 calendar days from the date of receipt of the

grievance”). The grievance was denied on June 13, 2022, three days after Plaintiff initiated this action on June 10, 2022 (mailbox rule). See Def. Ex. C at 2. Plaintiff does not address in his response his failure to wait for a response or his failure to complete the grievance process before initiating this action.

See generally Pl. Resp. Rather, he faults prison officials for mailing the response to his grievance the day after the response was signed. Id. at 3. Plaintiff does not explain why a one-day delay in mailing the response interfered with his grievance efforts. Regardless, the fact remains that Plaintiff

initiated this action before he received a response to his formal grievance and, indeed, before the response time expired. To the extent the parties do not materially dispute the relevant facts as it relates to the referenced formal grievance (#2206-231-039), the Court finds it can decide the exhaustion issue

at the first step of the Turner analysis. The undisputed facts show that Plaintiff sought judicial relief before completing the grievance process. As such, Plaintiff did not properly exhaust his administrative remedies in accordance with the rules set forth in the FAC. See Okpala, 248 F. App’x at 73.

The parties appear to dispute some facts, however, related to the “availability” of Plaintiff’s administrative remedies. As such, the Court

7 proceeds to the second step of the Turner analysis, which requires the Court to make findings of fact. See Turner, 541 F.3d at 1083. See also Bryant, 530 F.3d

at 1376 (holding district courts must act as factfinders when ruling on matters in abatement, such as exhaustion). “Under the PLRA, a prisoner need exhaust only ‘available’ administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016). Administrative remedies are “available” when they are “capable of use”

or “accessible,” regardless of whether they favorably resolve an inmate’s complaint. Id. at 642-43. Administrative remedies are deemed “unavailable” only in three narrow circumstances: (1) when the administrative procedure “operates as a simple

dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when the procedural mechanism is “so opaque” that reasonable inmates cannot “navigate it”; or (3) when prison officials actively prevent inmates from using or accessing the grievance process through

“machination, misrepresentation, or intimidation.” Id. at 643-44. Plaintiff does not argue the grievance rules under the FAC are so opaque as to be impossible to navigate. On the contrary, he acknowledges that he “knows available administrative remedies are to be exhausted, before bringing

legal claims to the Court.” See Pl. Resp. at 2 (emphasis added). See also Pl. Ex. D at 2 (Plaintiff’s grievance in which he wrote, “[The courts] know that I know

8 to exhaust my remedies before I even attempt to receive relief from the courts”). In arguing the grievance process was unavailable to him, Plaintiff

points to the other two circumstances identified in Ross: the grievance process was a dead-end; and prison officials prevented him from accessing it. First, Plaintiff suggests the grievance process at Suwannee Correctional Institution operates as a “dead end” because, of the 157 grievances he filed

between February 14, 2017, and June 15, 2022, only five were approved and, in those circumstances, he did not receive relief. See Pl. Resp. at 1-2. Simply because the grievance process has not been successful for (or favorable to) Plaintiff does not mean the grievance process itself is a dead end. Plaintiff

points to no facts suggesting that his denied grievances had merit, nor does he describe facts permitting the reasonable inference that “officers [are] unable or consistently unwilling to provide any relief to aggrieved inmates.” See Ross, 578 U.S. at 643 (emphasis added). That Plaintiff is displeased with responses

to his own grievances does not mean the grievance process itself is a sham such that no inmate can successfully access it. For instance, Plaintiff does not describe a situation in which the FAC directs inmates to “submit their grievances to a particular administrative office—but in practice that office

disclaims the capacity to consider” the grievances. See id.

9 Second, Plaintiff contends the grievance process was unavailable to him because prison officials actively prevented him from using the process in two

ways: by failing to process grievances; and by threatening him. As to the former argument, Plaintiff contends he filed a second grievance on May 23, 2022, specifically complaining about Defendants’ use-of-force, but the grievance was not “processed.” See Pl. Resp. at 3. Plaintiff’s unsupported contention that a

grievance was not processed lacks credibility given other facts. Most notably, in his complaint, Plaintiff himself concedes he filed no grievances about the claims he raises. See Sec. Am. Compl. at 12. Moreover, the records provided by all parties show Plaintiff is a prolific grievance writer who knows how to access

and navigate the process. See Def. Exs. A-C; Pl. Exs. C, D. See also Doc. 47-2. Indeed, Plaintiff himself acknowledges he filed 157 grievances over about five years. See Pl. Resp. at 1. Plaintiff’s suggestion that a second May 23, 2022 grievance was not processed is also questionable given he contends that he had

started making and keeping copies of his submitted grievances so that he would “have proof that he submitted” any that were not processed. Id. at 2. Notably, he does not provide a copy of the purportedly non-processed May 23,

10 2022 grievance. Nor does he explain how he submitted it, where he submitted, what he wrote in it, or how and when he learned it had not been processed.5

With respect to the latter argument, Plaintiff says that Defendant Lindblade threatened him at least twice for filing so many grievances, which made him “fear for his life and completely chilled any further use of the already dead end grievance process.” Id. at 3. “For a prison official’s threats of

retaliation against a prisoner to make the administrative remedy ‘unavailable,’ the threat must (1) actually deter the prisoner from lodging a grievance or purs[u]ing a particular part of the process and (2) be one that would deter a reasonable prisoner of ordinary fortitude from doing so.” Pavao, 679 F. App’x

at 826 (citing Turner, 541 F.3d at 1085). Even accepting as true that Defendant Lindblade attempted to chill Plaintiff’s use of the grievance system by orally threatening him on two occasions, Defendant Lindblade’s alleged threats did not actually deter

Plaintiff from accessing the grievance process. On the contrary, despite claiming to have been threatened on more than one occasion, including on April 20, 2022, and sometime shortly after May 23, 2022, see Pl. Resp. at 2-3,

5 If the purported non-processed grievance had been a formal grievance, Plaintiff presumably would have received an institutional receipt unless it was intentionally destroyed or discarded before having been logged or stamped. See Fla. Admin. Code r. 33-103.006(2)(h) (“The institutional grievance coordinator shall log all formal grievances and provide the inmates with receipts.”). 11 Plaintiff continued filing grievances unabated after those dates. See Def. Ex. A ¶ 4; Def. Ex. B ¶ 4; Def. Ex. C at 3-4; Pl. Ex. D at 4-5. See also Doc. 47-2

(grievance records filed by Defendant Howell) at 73, 78-79.6 Aside from arguing the grievance process was unavailable to him, Plaintiff suggests he properly exhausted his administrative remedies because he gave a sworn statement to the IG’s Office on June 7, 2022, and Defendants

Lindblade and McDonald were interviewed about the use-of-force incident. See Pl. Resp. at 4; Sec. Am. Compl. at 13. In some circumstances, an investigation by the IG’s Office may be relevant to the exhaustion analysis. For instance, when a prison official, in response to an inmate’s grievance at any step of the

process, reports the inmate’s allegations to the IG’s Office for investigation, then, regardless of whether the responding official “denies” or “approves” the grievance, the prisoner may be deemed to have exhausted his administrative remedies. See, e.g., Luckey v. May, No. 5:14-cv-315-MW-GRJ, 2016 WL

1128426, at *11 (N.D. Fla. Feb. 17, 2016), report and recommendation adopted

6 In a May 18, 2022 grievance, Plaintiff mentioned the May 12, 2022 interaction with Defendants Lindblade and McDonald, but he described it much differently: he said Lindblade handcuffed him and “drag[ged] [him] down [the hall] . . . causing [him] to pinch a nerve in [his] surgically repaired right leg[,] which . . . left [his] leg completely numb . . . resulting in [him] needed a wheelchair.” Doc. 47-2 at 79. Even if the May 18, 2022 grievance (#2206-231- 019) could be construed as an attempt to complain about the use-of-force incident that is the subject of Plaintiff’s complaint, the grievance was denied after Plaintiff initiated this action—on June 13, 2022. Id. at 77. 12 sub nom., 2016 WL 1169481 (N.D. Fla. Mar. 22, 2016) (finding the plaintiff exhausted his administrative remedies because his informal grievance was

“approved” from the standpoint that his allegations had been referred to the IG’s Office). See also Tierney v. Hattaway, No. 3:20-cv-5738-LAC-ZCB, 2022 WL 18159995, at *2 (N.D. Fla. Dec. 9, 2022) (“Given that [the plaintiff’s] informal grievance was ‘approved,’ and the matter referred to the [IG], it would

have been pointless for [him] to appeal by filing a formal grievance.”). Here, the IG investigation is not relevant to the exhaustion analysis because there is no indication the investigation resulted from Plaintiff having filed a grievance in compliance with the FAC. See Pavao, 679 F. App’x at 825

(quoting Dimanche v. Brown, 783 F.3d 1204, 1210 (11th 2015)) (“[The plaintiff’s] efforts to seek redress from the . . . [IG’s Office] are not relevant to the question of exhaustion because they are not part of the prison grievance procedure, and therefore are outside the ‘boundaries of proper exhaustion.’”).

See also Fleming v. Espino, No. 3:20-cv-853-MMH-JRK, 2021 WL 5083743, at *7 (M.D. Fla. Nov. 2, 2021) (concluding the IG’s investigation was not relevant to the exhaustion analysis where there was no indication the investigation resulted from a grievance filed by the prisoner).

The FAC provides no exception to the exhaustion requirement in circumstances where allegations of staff abuse are referred to the IG’s Office

13 independent of or separate from the grievance process. See Fla. Admin. Code rr. 33-103.001 through 33-103.018. The Supreme Court has made clear that

Congress’s mandatory language “foreclos[es] judicial discretion” with respect to exhaustion, and the only exception to the PLRA’s exhaustion requirement is the one “baked into its text”: unavailability. Ross, 578 U.S. at 639, 648. As such, the IG’s investigation alone does not demonstrate Plaintiff exhausted his

administrative remedies before filing suit. See Pavao, 679 F. App’x at 825. For the reasons stated, Plaintiff’s claims against Defendants Lindblade and McDonald are subject to dismissal because he did not exhaust his administrative remedies before filing this action.

Accordingly, it is now ORDERED: 1. Defendants Lindblade and McDonald’s motion to dismiss (Doc. 38) is GRANTED to the extent Plaintiff failed to exhaust his administrative

remedies. In all other respects, the motion is denied as moot. 2. Plaintiff’s claims against Defendants Lindblade and McDonald are dismissed without prejudice. 3. The Clerk shall terminate Defendants Lindblade and McDonald

as parties to this action.

14 4, Within 21 days of the date of this Order, Plaintiff shall (1) show satisfactory cause why the Court should not dismiss the claims against Defendant Howell for Plaintiffs failure to respond to Howell’s motion to dismiss (Doc. 47) and (2) file a response to Defendant Howell’s motion to dismiss (Doc. 47). If he does not, the Court may dismiss the claims against Defendant Howell without further notice. DONE AND ORDERED at Jacksonville, Florida, this 22nd day of August 2028.

fo /itan— | £ Agra BRIAN/J . DAVIS United States District Judge

Jax-6 Cc: Richard Harris Counsel of Record