# Kornagay v. Dicdoman

> District Court, M.D. Florida · October 28, 2019

URL: https://www.frixlaw.com/law-library/cases/10104026

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 28, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10104026

## How later opinions describe it (automated extraction)

- explaining that defendants bear the burden of showing a failure to exhaust
- explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”
- stating that “it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ROBERT D. KORNAGAY,

Plaintiff,
v.
Case No. 3:17-cv-795-J-34MCR
OFFICER T. DIEDEMAN,
SERGEANT J. WILBURN, and
INSPECTOR PETER LINDBOE,

Defendants.

ORDER
I. Status
Plaintiff Robert D. Kornagay, an inmate of the Florida penal system, initiated this
action on July 12, 2017, by filing a pro se Civil Rights Complaint (Doc. 1). Kornagay, with
the benefit of counsel, filed an Amended Complaint (AC; Doc. 44) on February 20, 2019.
In the AC, Kornagay asserts claims pursuant to 42 U.S.C. ' 1983 against Defendants
Thomas Diedeman, Jeremy Wilburn, and Inspector Peter Lindboe. He states that
Defendants Diedeman and Wilburn violated his Eighth Amendment right when they failed
to protect him from inmate assaults on February 4, 2017, at Columbia Correctional
Institution (CCI). Additionally, he asserts that Defendants Diedeman, Wilburn, and
Lindboe conspired to deprive him of his federal constitutional rights. As relief, Kornagay
seeks compensatory, punitive and nominal damages as well as reasonable attorney’s
fees and costs.
This matter is before the Court on Defendant Lindboe’s Motion to Dismiss Plaintiff’s
Complaint (Motion; Doc. 65). He submitted exhibits in support of the Motion. See Def.
Exs., Docs. 65-1 through 65-2.1 The Court advised Kornagay that granting a motion to
dismiss would be an adjudication of the case that could foreclose subsequent litigation
on the matter and gave him an opportunity to respond. See Order (Doc. 5). Kornagay

filed a response in opposition to the Motion. See Response to Defendant Lindboe’s
Motion to Dismiss (Response; Doc. 66). Thus, Defendant’s Motion is ripe for review.
II. Plaintiff’s Allegations2
Kornagay asserts that Diedeman and Wilburn failed to protect him when they (1)
exposed him to inmates Avants and Daniels’ attacks without any effort to help or call for
backup; (2) permitted Avants and Daniels to “freely” enter and exit the wing during the
attack; (3) “groomed” Avants to do “illicit favors” for officers, and permitted him to “move
freely” and enter the officers’ station; (4) failed to do “cell checks or counts” for at least a
two-hour period, thus “signaling” to inmates that they could do as they pleased; and (5)

“popped” open cell doors at sites where Kornagay tried to hide, thus repeatedly exposing

1 The Court cites to the document and page numbers as assigned by the Court’s
Electronic Case Filing System.

2 The AC is the operative pleading. In considering a motion to dismiss, the Court
must accept all factual allegations in the AC as true, consider the allegations in the light
most favorable to Plaintiff, and accept all reasonable inferences that can be drawn from
such allegations. Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir.
2015) (quotations and citations omitted). As such, the recited facts are drawn from the
AC and may differ from those that ultimately can be proved. Additionally, because this
matter is before the Court on a motion to dismiss filed by Lindboe, the Court’s recitation
of the facts will focus on Kornagay’s allegations as to Defendant Lindboe.
2
him to his “armed attackers.” AC at 7. As to the underlying facts, Kornagay states that
inmates Avants and Daniels, who were armed with homemade knives, attacked him on
February 4, 2017. See id. at 2. He maintains that Defendants Diedeman and Wilburn
“watched and cheered” the fight from the officers’ station, and neither called for back-up
assistance nor ordered the assailants to disarm and surrender. See id. at 2-3.

Next, Kornagay asserts that Defendants Diedeman, Wilburn, and Lindboe
conspired when they agreed to (1) aid each other in committing and concealing wrongful
acts; (2) coordinate and facilitate the attacks on Kornagay; (3) destroy evidence of
Diedeman’s extortion efforts; (4) not intervene in officers and inmates’ harmful acts
towards him; (5) delay the disclosure of pertinent facts to investigators; and (6) hide,
destroy, and alter evidence. Id. at 7-8. According to Kornagay, Sergeant Lunsford
reviewed the dormitory’s surveillance video on February 4th and observed Kornagay,
Avants, and Daniels in a physical altercation. See id. at 4. He avers that the incident was
reported to the Office of the Inspector General and assigned to Defendant Lindboe on

February 6th. See id. Kornagay states that he called the TIPS line on February 27th and
asked for review of the video recording. See id. at 3. He asserts that the case was
“upgraded” to a criminal investigation on March 2, 2017. See id. at 4. According to
Kornagay, Lindboe described in his “report” what had transpired among the inmates and
reported that “due to size limitations the video could not be loaded into IGIIS but []a copy
will be maintained in the case file with another copy sent to the Regional Evidence Control
Area.” Id. at 4-5. He avers that Lindboe noted there were administrative violations, such
as lack of security checks and counts. See id. at 5. Kornagay maintains that when
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Inspector Jason Vann took over Lindboe’s investigation on August 14, 2017, the video
recording had disappeared. See id. He asserts that Lindboe destroyed the video
recording and conspired with Diedeman and Avants to cover up Diedeman’s extortion
and failure to protect. See id.
III. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual allegations set
forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s
World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable
inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701,
705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading
requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262 63 (11th Cir. 2004)
(citations omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint
should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which

it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough
facts to state a claim that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556).
A “plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause
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of action will not do[.]” Twombly, 550 U.S. at 555 (internal quotations omitted); see also
Jackson, 372 F.3d at 1262 (explaining that “conclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”)
(internal citation and quotations omitted). Indeed, “the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at 678, 680.
Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint
contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face[.]’” Id. at 678 (quoting Twombly, 550 U.S. at 570). And, while “[p]ro
se pleadings are held to a less stringent standard than pleadings drafted by attorneys and
will, therefore, be liberally construed,” Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998), “‘this leniency does not give the court a license to serve as de facto
counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an
action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837, 839 (11th Cir. 2011)3

(quoting GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)
(internal citation omitted), overruled in part on other grounds as recognized in Randall,
610 F.3d at 706).

3 “Although an unpublished opinion is not binding . . . , it is persuasive authority.”
United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per curiam); see generally
Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive authority.”).
5
IV. Summary of the Arguments
In the Motion, Defendant Lindboe requests dismissal of Kornagay’s claims against
him because Kornagay failed to exhaust his administrative remedies, as required by the
Prison Litigation Reform Act (PLRA), before filing the instant 42 U.S.C. § 1983 lawsuit.
See Motion at 2-7. In his Response, Kornagay asserts that he “fully exhausted” his

administrative remedies prior to filing the lawsuit. Response at 4.
V. Exhaustion of Administrative Remedies
A. PLRA Exhaustion
The PLRA requires an inmate wishing to challenge prison conditions to first
exhaust all available administrative remedies before filing an action under 42 U.S.C. §
1983. See 42 U.S.C. § 1997e(a). Nevertheless, a prisoner such as Kornagay is not
required to plead exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the
United States Supreme Court has recognized “failure to exhaust is an affirmative defense
under the PLRA[.]” Id. Notably, exhaustion of available administrative remedies is “a

precondition to an adjudication on the merits” and is mandatory under the PLRA. Bryant
v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Not only is there an exhaustion
requirement, “the PLRA exhaustion requirement requires proper exhaustion.” Woodford
v. Ngo, 548 U.S. 81, 93 (2006).
Because exhaustion requirements are designed to deal with
parties who do not want to exhaust, administrative law creates
an incentive for these parties to do what they would otherwise
prefer not to do, namely, to give the agency a fair and full
opportunity to adjudicate their claims. Administrative law does
this by requiring proper exhaustion of administrative
remedies, which “means using all steps that the agency holds
6
out, and doing so properly (so that the agency addresses the
issues on the merits).” Pozo,[4] 286 F.3d, at 1024. . . .

Woodford, 548 U.S. at 90. And, “[p]roper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules . . . .” Id. As such, the United States
Supreme Court has emphasized:
Courts may not engraft an unwritten “special circumstances”
exception onto the PLRA’s exhaustion requirement. The only
limit to § 1997e(a)’s mandate is the one baked into its text: An
inmate need exhaust only such administrative remedies as
are “available.”

Ross v. Blake, 136 S.Ct. 1850, 1862 (2016).
The determination of whether an inmate exhausted his available administrative
remedies prior to filing a cause of action in federal court is a matter of abatement and
should be raised in a motion to dismiss or be treated as such if raised in a summary
judgment motion. Bryant, 530 F.3d at 1374-75 (citation omitted). The Eleventh Circuit has
explained the two-step process that the Court must employ when examining the issue of
exhaustion of administrative remedies.
After a prisoner has exhausted the grievance procedures, he
may file suit under § 1983. In response to a prisoner suit,
defendants may bring a motion to dismiss and raise as a
defense the prisoner’s failure to exhaust these administrative
remedies. See Turner, 541 F.3d at 1081.[5] In Turner v.
Burnside we established a two-step process for resolving
motions to dismiss prisoner lawsuits for failure to exhaust. 541
F.3d at 1082. First, district courts 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.

4 Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).

5 Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008).
7
The court should dismiss if the facts as stated by the prisoner
show a failure to exhaust. Id. 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. Id. at 1082-83; see also id. at 1082
(explaining that defendants bear the burden of showing a
failure to exhaust).

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015); see Pavao
v. Sims, 679 F. App'x 819, 823-24 (11th Cir. 2017) (per curiam).
B. Florida’s Prison Grievance Procedure
State law “determines what steps are required to exhaust.” Dimanche v. Brown,
783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218 (stating that “it is
the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion”). The Florida Department of Corrections (FDOC) provides an internal
grievance procedure for its inmates. See FLA. ADMIN. CODE r. 33-103.001 through 33-
103.018. Generally, to properly exhaust administrative remedies, a prisoner must
complete a three-step sequential process. First, an inmate must submit an informal
grievance to a designated staff member at the institutional level. See FLA. ADMIN. CODE
r. 33 103.005. If the issue is not resolved, the inmate must submit a formal grievance at
the institutional level. See FLA. ADMIN. CODE r. 33 103.006. If the matter is not resolved
at the institutional level, the inmate must file an appeal to the Office of the FDOC
Secretary. See FLA. ADMIN. CODE r. 33 103.007. However, under specified
circumstances, an inmate can bypass the informal-grievance stage and start with a formal
grievance at the institutional level. See FLA. ADMIN. CODE r. 33 103.005(1); 33-
8
103.006(3). Or, an inmate can completely bypass the institutional level and proceed
directly to the Office of the FDOC Secretary by filing a “direct grievance.” See FLA.
ADMIN. CODE r. 33 103.007(3). Emergency grievances and grievances of reprisal are
types of “direct grievances” that may be filed with the Office of the Secretary. See FLA.
ADMIN. CODE r. 33 103.007(3)(a).

C. Kornagay’s Exhaustion Efforts
As to the initial step in the two-part process for deciding motions to dismiss for
failure to exhaust under the PLRA, the Eleventh Circuit has instructed:
Deciding a motion to dismiss for failure to exhaust proceeds
in two steps: first, looking to the defendant’s motion and the
plaintiff’s response, the court assesses whether dismissal is
proper even under the plaintiff’s version of the facts; and
second, if dismissal is inappropriate under the plaintiff’s
version of the facts, the court makes “specific findings in order
to resolve the disputed factual issues related to exhaustion.”
Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). The
burden is on the defendant to show a failure to exhaust. Id.

Arias v. Perez, 758 F. App’x 878, 880 (11th Cir. 2019) (per curiam).

Defendant Lindboe maintains that Kornagay failed to properly exhaust his
administrative remedies as to deliberate indifference and conspiracy claims against him
before filing the instant § 1983 lawsuit. See Motion 2-7. He states that Kornagay “filed no
informal, formal, or appeal grievances related to any allegations against Defendant
Lindboe, any allegations of a conspiracy . . . involving Defendant Lindboe, or any
allegations regarding the alleged destruction of the video recording of the events of
February 4, 2017.” Id. at 7. In support of his position, Lindboe refers to the Declarations
of Kathleen McClay and Lawanda Sanders. See Def. Exs., Docs. 65-1, Declaration of
9
Kathleen McClay (McClay Declaration); 65-2, Declaration of Lawanda Sanders (Sanders
Declaration). In his Response, Kornagay asserts that he exhausted his administrative
remedies before filing the lawsuit. See Response at 3-4. He states, in pertinent part:
Defendant commits the error of thinking that
exhaustion of remedies is a discrete process as to each and
every defendant. That is not the case. Defendant Lindboe
contends that Plaintiff must file a separate lawsuit as to him
because he was not named, nor was his role known to Plaintiff
when the lawsuit was originally filed on July 12, 2017. This,
Plaintiff is more than willing to do if need be but Lindboe’s
contention is not the law. A lawsuit can evolve through the
ongoing lawless conduct of a group of defendants over time.
The Department of Corrections’ grievance process is meant
to put the Department on notice, not to exhaustively lay out
causes of action or to name every possible past or future
contributor to the evolving injustice and injury.

Id. at 3 (footnote omitted). According to Kornagay, the video recordings “mysteriously
turn[ed] up missing” when Inspector Vann took over the investigation on August 14, 2017.
Id. at 5. He maintains that “[t]he law is still spelled out in Jones v. Bock, 549 U.S. 199,
217 (2007) (nothing in the [PLRA] statute imposes a name all defendants’ requirement).”
Response at 4 (footnote and internal quotations omitted). Accepting Kornagay’s view of
the facts as true, a dismissal of the claims against Defendant Lindboe for lack of
exhaustion is not warranted at the first step. Thus, the Court proceeds to the second step
in the two-part process where the Court considers Defendant Lindboe’s arguments
regarding exhaustion and makes findings of fact.
In Arias v. Perez, the Eleventh Circuit held that a state inmate failed to exhaust his
administrative remedies for his failure-to-protect claim against a corrections officer, and
thus the PLRA precluded his § 1983 lawsuit against the officer because the inmate’s
10
administrative grievances addressed a separate claim (transfer to a protective
management unit) and did not address his failure-to-protect assertions. The Court stated,
in pertinent part:
We agree that [plaintiff] failed to exhaust his failure-to-protect
claim against [defendant]. A prisoner must exhaust each claim
that he seeks to present in court. See Jones, 549 U.S. at 219-
20, 127 S.Ct. 910 (“All agree that no unexhausted claim may
be considered.”) The claim that [plaintiff] suffered an Eighth
Amendment violation when [defendant] failed to protect him is
distinct from the claim that he should be transferred to a
protective management unit. [Plaintiff]’s filings addressed the
latter—indeed, he ultimately received precisely the relief that
he requested—but not the former. It would subvert the PLRA’s
purpose of granting prison authorities “time and opportunity to
address complaints internally before allowing the initiation of
a federal case,” Porter,[6] 534 U.S. at 525, 122 S.Ct. 983, if a
prison could grant all the relief a prisoner asked for and yet
still find itself subject to suit.

Our decision in Parzyck v. Prison Health Services, Inc., 627
F.3d 1215 (11th Cir. 2010), is not to the contrary. There, we
explained that “[n]othing in the FDOC’s grievance procedures
requires inmates to file new grievances addressing every
subsequent act by a prison official that contributes to the
continuation of a problem already raised in an earlier
grievance.” Id. at 1219. Here, [plaintiff]’s injuries were not
simply “the continuation of a problem already raised”; they
were a separate, even if related, problem. None of [plaintiff]’s
grievances pursued a claim against [defendant] for failing to
protect him, as distinct from requesting protection itself.

Arias, 758 F. App’x at 882.

Understandably, Kornagay asserts that he was not aware of the facts underlying
his claims against Lindboe when he initiated the instant action, and that his claims against

6 Porter v. Nussle, 534 U.S. 516 (2002).

11
Lindboe evolved over the course of the litigation. See Response at 3-5. Nevertheless, a
prisoner must exhaust each claim that he seeks to present in court prior to initiating a
lawsuit. See Jones, 549 U.S. at 219. The Court finds that Kornagay’s deliberate
indifference and conspiracy claims against Lindboe are not simply a continuation of a
problem that Kornagay had already raised in earlier grievances. Instead, Kornagay’s

claims against Lindboe are separate and distinct from his claims against Defendants
Diedeman and Wilburn and arise from separate acts committed later in time. Kornagay’s
initial grievance of the alleged failure to protect could not have put prison authorities on
notice of a distinct violation by a different person that had not even occurred yet.7 As
such, the PLRA requires that Kornagay exhaust his claims against Lindboe before filing
a lawsuit in federal court.8 Thus, Defendant Lindboe’s Motion is due to be granted.

7 See Order (Doc. 29) (finding that Kornagay “sufficiently exhausted” his claims
against Defendants Diedeman and Wilburn and denying Defendants’ requests for
dismissal based on exhaustion).

8 Kornagay’s assertion that the McClay and Sanders Declarations “are without
effect” because neither FDOC employee claims to be a records custodian, Response at
7, is unavailing. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on
the matter stated.”).
12
Therefore, it is now
ORDERED:
1. Defendant Lindboe’s Motion to Dismiss Plaintiff's Complaint (Doc. 65) is
GRANTED, and Kornagay’s claims against Lindboe are dismissed without prejudice to
his right to initiate a new civil rights case, if he elects to do so, after he has exhausted his
administrative remedies.
2. The Clerk shall terminate Inspector Peter Lindboe as a Defendant in the case.
DONE AND ORDERED at Jacksonville, Florida, this 28th day of October, 2019.

United States District Judge

sc 10/28

Counsel of Record

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104026. Public record. Not legal advice.