Hoffmann v. Jones

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CHESTER R. HOFFMANN,

Plaintiff,

vs. Case No. 3:17-cv-361-J-39JRK

ANTHONY MCCRAY, et al.,

Defendants.

_____________________________

ORDER

I. Status

Plaintiff, Chester R. Hoffmann, is proceeding on a pro se

Amended Civil Rights Complaint (Doc. 9; Am. Compl.) against Chad

Gaylord and others. Plaintiff alleges Defendant Gaylord, a prison

nurse, was deliberately indifferent to his serious medical needs

in violation of the Eighth Amendment. Am. Compl. at 7, 9. Before

the Court is Defendant Gaylord’s Motion to Dismiss (Doc. 89;

Motion). Plaintiff has responded (Doc. 99; Resp.). Accordingly,

the motion is ripe for this Court’s review.

II. Defendant’s Motion & Standard of Review

Defendant Gaylord seeks dismissal with prejudice, asserting

the following defenses: failure to exhaust administrative

remedies; failure to state a claim; qualified immunity; Eleventh

Amendment immunity; and failure to allege physical injuries. See

Motion at 1.

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009); see also Lotierzo v. Woman’s World Med. Ctr.,

Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). “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.” Iqbal, 556 U.S. at 678. A

plaintiff should allege enough facts “to raise a reasonable

expectation that discovery will reveal evidence” supporting the

plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007). In assessing the sufficiency of a complaint, all reasonable

inferences should be drawn in favor of the plaintiff. See Iqbal,

556 U.S. at 678. In addition, when a plaintiff proceeds pro se,

the court must liberally construe the allegations. See Haines v.

Kerner, 404 U.S. 519, 520-21 (1972); Bingham v. Thomas, 654 F.3d

1171, 1175 (11th Cir. 2011).

III. Complaint Allegations

In his Complaint, Plaintiff describes two instances of

excessive force, which occurred at Hamilton Correctional

Institution (HCI) on October 17, 2016, involving other Defendants.

Am. Compl. at 7. Defendant Gaylord did not participate in either

force incident. Id. at 9, 11-12. After the force incidents, which

included the use of chemical spray, officers brought Plaintiff for

a decontamination shower. Id. at 12. When Plaintiff completed his

shower, officers placed a spit shield over Plaintiff’s head. Id.

Plaintiff alleges the officers did so to “hide and cover-up [his]

injuries.” Id.

Before officers brought Plaintiff inside the medical

evaluation room, Plaintiff alleges one of them threatened him by

saying, “how you are treated here depends on what you say and do.”

Id. Plaintiff alleges “the nurse [Gaylord] did not document all

[his] injuries and did not remove the [spit shield] to check the

face for injuries.” Id.1 Plaintiff asserts officers (not Defendant

Gaylord) ignored his subsequent requests to see the doctor. Id. at

13.

As a result of the force incidents, Plaintiff asserts he

suffered a concussion, temporary blindness, respiratory problems,

a pulled muscle, sore fingers, lumps to his head, a “busted nose,”

and black eyes. Id. at 15.

IV. Legal Analysis & Conclusions of Law

A. Exhaustion of Administrative Remedies

Defendant Gaylord asserts Plaintiff did not exhaust his

administrative remedies because Plaintiff did not timely file his

grievances, he addressed multiple issues in the grievances he

1 Plaintiff also alleges Defendant Gaylord failed to report

the incidents, suggesting such a failure amounts to a

constitutional violation. See Am. Compl. at 9. In his response to

the motion to dismiss, Plaintiff clarifies he pursues against

Defendant Gaylord one claim for deliberate indifference to serious

medical needs under the Eighth Amendment. See Resp. at 4, 5.

filed, and he did not grieve a failure to provide medical care

against Defendant Gaylord. See Motion at 5. In response, Plaintiff

contends he filed an emergency grievance directly with the

Secretary of the Florida Department of Corrections (DOC),

permitting him to bypass the informal and formal grievance steps.

See Resp. at 3. Plaintiff asserts his grievance was denied. Id.

The Prison Litigation Reform Act (PLRA) requires exhaustion

of available administrative remedies before a prisoner may

initiate a § 1983 action with respect to prison conditions. See 42

U.S.C. § 1997e(a) (“No action shall be brought with respect to

prison conditions under section 1983 . . . until such

administrative remedies as are available are exhausted.”).

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). Not only is there a recognized exhaustion requirement,

“the PLRA . . . requires proper exhaustion” as set forth in

applicable administrative rules and policies. Woodford v. Ngo, 548

U.S. 81, 93 (2006). As such, “[p]roper exhaustion demands

compliance with an agency’s deadlines and other critical

procedural rules[.]” Id. at 90.

Under Florida law, proper exhaustion requires a prisoner to

complete a three-step grievance process. See Fla. Admin. Code r.

33-103.001 through 33-103.018. However, a prisoner may bypass the

first two steps in the case of “[e]mergency grievances and

grievances of reprisals, [and] protective management,” among

others. Fla. Admin. Code r. 33-103.007(3)(a). A prisoner permitted

to bypass the first two steps may proceed directly to the third

step by filing a grievance with the office of the Secretary of the

DOC. Id. When a prisoner files a grievance directly with the

Secretary’s office, he must do so “within 15 calendar days from

the date on which the incident or action which is the subject of

the grievance occurred.” Fla. Admin. Code Ann. r. 33-103.011(d).

A review of the grievance documents (Doc. 89-1; Def. Ex. A)

shows Plaintiff filed an emergency grievance directly with the

Secretary’s office on October 28, 2016, eleven days after the

incidents. See Def. Ex. A at 1-4. In the grievance, Plaintiff wrote

he was “very upset . . . and afraid” to submit the grievance at

the institutional level because he was unsure whom he could trust.

Id. at 4. Plaintiff reported the two use-of-force incidents. He

also said the officers placed a “bag over [his] face” and then

brought him to the medical examination room. Id. at 2.

Plaintiff does not identify the medical provider by name but

says the “doctor” did not remove the spit shield (mask), which

would have allowed the medical provider to see other signs of

force, including a black eye and a lump on the side of his head.

Id. Plaintiff notes, the officers “had the doctor scared to say

anything.” Id. Plaintiff concludes by saying he was considering

filing a lawsuit regarding not only the excessive force incidents

but also for a denial of medical care. Id. at 4. The Secretary’s

office responded to Plaintiff’s emergency grievance on December

20, 2016. Id. at 6. The responding employee denied the grievance

and informed Plaintiff, “[t]he subject of [his] grievance [was]

currently under review by the Departmental Staff.” Id.

By filing the emergency grievance directly to the Secretary,

bypassing the first two steps of the grievance process, Plaintiff

exhausted his administrative remedies. Plaintiff timely filed his

grievance within fifteen days of the incidents. See id. at 1.

Moreover, the Secretary’s office reviewed and denied his grievance

on the merits; it was not returned without action for a violation

of any procedural rules, such as addressing multiple issues or

being untimely.2 Id. at 6. Contrary to Defendant’s representation,

Plaintiff did file a grievance about Defendant Gaylord’s actions,

2 Defendant’s attorney provides a “composite” exhibit with

numerous grievances, none of which she references by number or

date in the motion, including the October 28, 2016 emergency

grievance. See Motion at 5. Rather, by general reference to the

thirty-five-page exhibit, Defendant’s attorney concludes Plaintiff

did not exhaust his administrative remedies because some

grievances were returned to him without action. Id. It is true

some of Plaintiff’s other grievances were returned to him without

action for various reasons, including untimeliness, failing to

follow administrative guidelines, or for being duplicative of

complaints already under review. See Def. Ex. A at 18, 21, 28, 30,

35. That some of Plaintiff’s grievances were returned without

action does not void the emergency grievance, to which Plaintiff

received an official DOC response before Plaintiff initiated this

action. See Def. Ex. A at 6.

making more than a “passing” reference to his “trip to the medical

office.” See Motion at 5. While Plaintiff primarily describes the

force incidents, he does complain about the cursory nature of the

physical examination, saying, “[the] doctor checks me over[,]

finds one abrasion on my back and rights [sic] it down[,] not once

removing the mask where he would see other signs, the blood from

my nose, black eye star[t]ing and lumps to my right side of my

head.” Def. Ex. A at 2. Significantly, Plaintiff also claims he

was denied medical care and was considering filing a lawsuit, in

part, because of the denial of medical care. Id. at 4.

Even though Plaintiff does not reference Defendant Gaylord by

name, he was not required to do so. See Fla. Admin. Code r. 33-

103.005 through 33-103.007. See also Jones v. Bock, 549 U.S. 199,

217 (2007) (“[N]othing in the statute imposes a ‘name all

defendants’ requirement.”); Parzyck v. Prison Health Servs., 627

F.3d 1215, 1218 (11th Cir. 2010) (“A prisoner need not name any

particular defendant in a grievance in order to properly exhaust

his claim.”). Plaintiff’s emergency grievance satisfies the

“exhaustion requirement[, which] is designed ‘to alert prison

officials to a problem, not to provide personal notice to a

particular official that he may be sued.’” Parzyck, 627 F.3d at

1219 (quoting Jones, 549 U.S. at 219). Accordingly, Defendant

Gaylord’s motion is due to be denied to the extent he seeks

dismissal for Plaintiff’s failure to exhaust his administrative

remedies.

B. Qualified Immunity & Failure to State a Claim

Defendant Gaylord argues Plaintiff fails to state a claim

against him for deliberate indifference, which entitles him to

qualified immunity. See Motion at 6-8. Plaintiff responds by

repeating the facts alleged in his Complaint: that Defendant

Gaylord “failed to remove the spit shield, failed to properly

examine Plaintiff for his serious injuries and failed to document

his serious injuries.” Resp. at 4, 5.

An official sued in his individual capacity “is entitled to

qualified immunity for his discretionary actions unless he

violated ‘clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Black v.

Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting Case v.

Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified immunity

allows government employees to exercise their official duties

without fear of facing personal liability. Alcocer v. Mills, 906

F.3d 944, 951 (11th Cir. 2018). The doctrine protects all but the

plainly incompetent or those who knowingly violate an inmate’s

constitutional rights. Id.

Upon asserting a qualified immunity defense, a defendant

bears the initial burden to demonstrate he was acting within his

discretionary authority at the relevant times. Id. It is undisputed

Defendant Gaylord was acting within the scope of his discretionary

duties as a nurse with the DOC at the relevant times. As such, the

burden shifts to Plaintiff, who must demonstrate Defendant Gaylord

violated a constitutional right that was “clearly established” at

the time of the alleged violation. Id.

A claim for deliberate indifference to a serious illness or

injury is cognizable under § 1983. See Estelle v. Gamble, 429 U.S.

97, 104 (1976). “To show that a prison official acted with

deliberate indifference to serious medical needs, a plaintiff must

satisfy both an objective and a subjective inquiry.” Brown v.

Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (quoting Farrow v.

West, 320 F.3d 1235, 1243 (11th Cir. 2003)). First, the plaintiff

must allege he had a serious medical need. Id. Second, the

plaintiff must “allege that [the medical provider] . . . acted

with a state of mind that constituted deliberate indifference.”

Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010).

To establish deliberate indifference, [a

plaintiff] must prove (1) subjective knowledge

of a risk of serious harm; and (2) disregard

of that risk (3) by conduct that is more than

mere negligence. Subjective knowledge of the

risk requires that the defendant be “aware of

facts from which the inference could be drawn

that a substantial risk of serious harm

exists, and he must also draw the inference.”

Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla.,

871 F.3d 1272, 1280 (11th Cir. 2017) (internal citations omitted).

Allegations of medical negligence are not cognizable under §

1983. Estelle, 429 U.S. at 106 (“Medical malpractice does not

become a constitutional violation merely because the victim is a

prisoner.”). See also Harris v. Thigpen, 941 F.2d 1495, 1505 (11th

Cir. 1991) (“Medical treatment violates the eighth amendment only

when it is ‘so grossly incompetent, inadequate, or excessive as to

shock the conscience or to be intolerable to fundamental

fairness.’”). Likewise, “an official’s failure to alleviate a

significant risk that he should have perceived but did not, while

no cause for commendation, cannot . . . be condemned as the

infliction of punishment.” Farmer v. Brennan, 511 U.S. 825, 838

(1994).

Assuming Plaintiff had a serious medical need at the time,

Plaintiff fails to allege Defendant Gaylord acted with deliberate

indifference to that need. Plaintiff alleges only that Defendant

Gaylord failed to “document all [his] injuries and did not remove

the [spit shield] to check the face for injuries.” Am. Compl. at

12. Accepting as true Defendant Gaylord failed to closely inspect

Plaintiff’s face for injuries or failed to document all Plaintiff’s

injuries, Plaintiff does not allege Defendant Gaylord knew

Plaintiff had injuries serious enough to necessitate immediate

treatment and intentionally ignored those injuries or refused to

provide treatment. To the extent Defendant Gaylord should have

discovered injuries that he did not, such an oversight does not

constitute deliberate indifference. See Farmer, 511 U.S. at 838.

Even if DOC guidelines required that Defendant Gaylord

examine Plaintiff’s entire body including his face, without the

spit shield, a failure to do so amounts to negligence or a simple

violation of internal policies. See Adams v. Poag, 61 F.3d 1537,

1543 (11th Cir. 1995) (“Mere negligence in diagnosing or treating

a medical condition is an insufficient basis for grounding

liability on a claim of medical mistreatment under the Eighth

Amendment.”). Moreover, Defendant Gaylord’s failure to remove the

spit shield does not mean he did not satisfactorily examine

Plaintiff to the extent Defendant Gaylord, within his medical

judgment, believed necessary. Of note, and as the Court referenced

in its Order on Defendant Harris’s motion for summary judgment,

the spit shield was mesh, and Plaintiff’s face was visible. See

Order (Doc. 90) at 21 (noting the video footage shows Defendant

Gaylord briefly looking through the mesh spit shield to inspect

Plaintiff’s face).

Not only do Plaintiff’s allegations not permit the inference

Defendant Gaylord knew Plaintiff had any serious injuries, it

appears Defendant Gaylord had no reason to even suspect Plaintiff

could have had serious injuries. It is undisputed Defendant Gaylord

was not involved in or present during either force incident. See

Am. Compl. at 11-12, 28, 34. Plaintiff alleges the officers who

used force against him placed the spit shield over his face to

“cover-up” his injuries. Id. at 12. And, the medical records (Docs.

99-3, 99-4; Pl. Ex. C, Pl. Ex. D) suggest Defendant Gaylord knew

only of the use of chemical spray, not the use of physical force,

lending credence to Plaintiff’s suggestion of a “cover-up.” In the

emergency room record, Defendant Gaylord noted the reason for the

medical examination as “post use of force by security[,] chemical

agents applied.” Pl. Ex. C at 2. There is no reference to physical

force being used against Plaintiff. Id. The physical examination

revealed only an abrasion on Plaintiff’s back, which was not

bleeding. Id.; see also Pl. Ex. D at 2. Plaintiff exhibited no

signs or symptoms of acute distress and voiced no complaints. Pl.

Ex. C at 2.3

In sum, Plaintiff asserts no facts permitting a reasonable

inference that Defendant Gaylord “acted with a state of mind that

constituted deliberate indifference,” Richardson, 598 F.3d at 737,

3 Accepting as true Plaintiff’s allegation that a Defendant-

officer threatened him against reporting what happened, see Am.

Compl. at 12, his failure to voice complaints is not surprising.

In his response to Defendant Gaylord’s motion, Plaintiff suggests

Defendant Gaylord “contribut[ed] to the cover up of [Plaintiff’s]

injuries and the use of excessive force.” See Resp. at 5. However,

Plaintiff does not allege in his Complaint that Defendant Gaylord

was complicit in any plan to conceal the alleged events or his

injuries. See Am. Compl. at 12. In fact, in the grievance documents

Plaintiff provides in support of his Complaint, he attributes the

nurse’s failure to thoroughly examine him to intimidation by the

other Defendant-officers. Id. 28, 34. Plaintiff states, “I think

they have the nurse scared to say anything.” Id.

or that the physical examination was “so grossly incompetent,

inadequate, or excessive as to shock the conscience,” Harris, 941

F.2d 1495. As such, Defendant Gaylord is entitled to qualified

immunity, and his motion is due to be granted.4

V. Case Status & Appointment of Counsel

This case is in a posture to proceed to settlement conference

and, if necessary, trial. Accordingly, the Court finds Plaintiff

is entitled to the appointment of counsel.5 This Court has broad

discretion in determining whether the appointment of counsel is

appropriate in a civil rights action. Defendants are represented

by counsel, the parties demand a jury trial, and there are

sufficiently complex factual and constitutional issues involved in

this litigation. Plaintiff will require the assistance of counsel

at a settlement conference and, if the case does not settle, at

pretrial conference and trial. Therefore, the Court will refer

4 In light of the Court’s ruling on qualified immunity, the

Court will not address the remainder of Defendant’s arguments

raised in his motion.

5 The Court ruled on Defendants McCray, Davis, Mosely, North’s

and Defendant Harris’s motions for summary judgment on July 26,

2019. See Order (Doc. 90). Defendant Moots, who Plaintiff

identified as John Doe “C” in his Complaint, see Am. Compl. at 5,

12, filed an Answer on October 13, 2019 (Doc. 101). Plaintiff’s

allegations against Defendant Moots are similar to those against

the Defendants who moved for summary judgment. To the extent

Plaintiff’s claim against Defendant Moots requires the parties to

exchange additional discovery, the Court will allow the parties

time to do so after Plaintiff is appointed counsel, upon notice by

the parties.

this case to the Jacksonville Division Civil Pro Bono Appointment

Program.

Accordingly, it is now

ORDERED :

1. Defendant Gaylord’s Motion to Dismiss (Doc. 89) is

GRANTED.

2. Plaintiff’s claim against Defendant Gaylord is DISMISSED

with prejudice.

3. The Clerk of Court is directed to terminate Defendant

Gaylord from this action.

4, This case is referred to the Jacksonville Division Civil

Pro Bono Appointment Program so the designated deputy clerk of

the Court may seek counsel to represent Plaintiff.

DONE AND ORDERED at Jacksonville, Florida, this 31st day of

October, 2019.

BRIAN J. DAVIS

United States District Judge

Jax-6

Cc:

Chester R. Hoffmann

Counsel of Record

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