Edmonds v. Warden, FCC Coleman - Medium

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

EZEKIEL EDMONDS,

Plaintiff,

v.

Case No. 5:17-cv-463-Oc-34PRL

WARDEN, FCC

COLEMAN MEDIUM, et al.,

Defendants.

ORDER

I. Status

Plaintiff Ezekiel Edmonds, an inmate incarcerated at the Federal Correctional

Complex (FCC) in Coleman, Florida, initiated this action on October 10, 2017, by filing a

pro se “Request for Relief Due to Deliberate Indifference by Medical in Not Providing

Proper Medical Care (Doc. 1).1 In accordance with the Court’s January 10, 2018 Order

(Doc. 8), Edmonds filed an Amended Complaint (AC; Doc. 9) on February 2, 2018. In the

AC, he asserts claims pursuant to Bivens2 against the FCC medical department, Richard

1 The Court cites to the document and page numbers as assigned by the Court’s

Electronic Case Filing System.

2 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971).

Li, M.D.,3 and Warden Manuel Ocasio.4 He alleges that Defendants violated his federal

constitutional rights when they denied him adequate medical care for a broken foot. As

relief, he requests monetary damages.

This matter is before the Court on Defendants Ocasio and Li’s Motion to Dismiss

(Motion; Doc. 28) with exhibits (Docs. 28-1 through 28-11). The Court advised Edmonds

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. 22). Edmonds filed a response in opposition to the Motion.5 See Plaintiff’s

Response to Motion to Dismiss Complaint (Response; Doc. 32). Thus, the Motion is ripe

for review.

II. Plaintiff’s Allegations6

As to the underlying facts, Edmonds asserts that, in May 2014, he kicked a metal

ladder and broke his foot while sleeping in his bunk. See AC at 4-5. He claims that Dr. Li,

a Bureau of Prisons employee and “the leading [d]octor in the [m]edical [d]epartment,”

3 The proper spelling of Defendant’s surname is “Li.” See Motion to Dismiss (Doc.

28) at 2.

4 The Court dismissed Edmonds’ claims against Warden Ocasio and the medical

department. See Order (Doc. 10). Accordingly, Defendant Li is the only remaining

Defendant.

5 The Court granted Edmonds’ motion to supplement the record, see Doc. 27, to

the extent that he was permitted to submit medical records, as exhibits, when he

responded to Defendants’ Motion to Dismiss. See Order (Doc. 29).

6 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 the 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.

was deliberately indifferent to his serious medical needs. Id. at 5-6. He maintains that “no

treatment has been given since the incident, except aspirin and x-rays.” Id. at 7. He states

that, on the morning of the incident, he informed his supervisor and went to sick call. See

id. at 5. According to Edmonds, medical personnel told him that there was “nothing wrong”

and issued pills. Id. He avers that he complained and reported to sick call for months, “but

was told they could find nothing wrong.” Id. He alleges that when medical staff suggested

it was a diabetic-related injury, he explained that he had kicked a metal ladder and that

“there was something very wrong with [his] feet.” Id. According to Edmonds, medical

personnel ordered x-rays, see id. at 6, and after a “quick examination” on January 12,

2015, they advised him that there was “nothing wrong,” id. at 5. He asserts that the

medical staff gave him “a pain killer even years after the incident,” however, the medical

department never corrected the injury. Id. He believes that his foot “healed improperly,”

id. at 6, which has caused him to suffer with arthritis, limited mobility, diabetic

complications, and an inability to perform physical duties, see id. at 6-7.

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

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)7

(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).

IV. Summary of the Arguments

In the Motion, counsel argues that the claims against both Defendant Ocasio and

Defendant Li should be dismissed. Notably, the Court dismissed Edmonds’ claims against

Ocasio on February 21, 2018. See Order (Doc. 10). Therefore, the Court will consider the

arguments raised in the Motion only as they relate to Defendant Li. Defendant Li requests

dismissal of Edmonds’ claims against him because Edmonds failed to exhaust his

administrative remedies, as required by the Prison Litigation Reform Act (PLRA), before

filing the instant Bivens lawsuit. See Motion at 5-8. Next, he argues that Edmonds fails to

state plausible Eighth Amendment claims against him, see id. at 12-14, and that he is

entitled to qualified immunity, see id. at 8-11. Defendant Li also asserts that he is entitled

to sovereign immunity as to Edmonds’ claims for monetary damages against him in his

official capacity. See id. at 15-16. In his Response, Edmonds maintains that he has

exhausted his administrative remedies, see Response at 2, 5, and states plausible Eighth

Amendment claims, see id. at 3-6.

7 “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.”).

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 Bivens. See 42

U.S.C. § 1997e(a);8 see Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir. 1998)

(stating that “section 1997e(a) by its own terms clearly applies to [plaintiff]’s Bivens

action). Nevertheless, a prisoner such as Edmonds 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 out, and doing so properly (so that the agency

8 The PLRA, at 42 U.S.C. § 1997e, provides:

(a) Applicability of Administrative Remedies. No 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.

addresses the issues on the merits).” Pozo,[9] 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 …. 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.[10] 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.

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

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

10 Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008).

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. Bureau of Prison’s Grievance Procedure

The Bureau of Prisons (BOP) provides an internal grievance procedure for its

inmates. See 28 C.F.R. § 542.10, et seq. Generally, to properly exhaust administrative

remedies, a prisoner must complete a three-step sequential process if the informal

resolution procedures fail to resolve the issue.11 As to the formal grievance procedures,

an inmate first must submit a Request for Administrative Remedy on the BP-9 form to the

Warden within twenty days of the incident. See 28 C.F.R. § 542.14(a). If the inmate is not

satisfied with the Warden’s response, he may submit an appeal on the BP-10 form to the

Regional Director within twenty days of the Warden’s response. See 28 C.F.R. §

542.15(a). If the inmate is dissatisfied with the Regional Director’s response, he may

submit an appeal on the BP-11 form to the General Counsel within thirty days of the

Regional Director’s response. See id.

C. Edmonds’ Exhaustion Efforts

Defendant Li maintains that Edmonds failed to properly exhaust his administrative

remedies as to the deliberate indifference claim against him before filing the instant

lawsuit. See Motion at 5-8. In support of his position, Defendant submitted the relevant

11 A federal inmate must “first present an issue of concern informally to staff” who

must “attempt to informally resolve the issue before an inmate submits a Request for

Administrative Remedy.” See 28 C.F.R. § 542.13(a).

grievance exhibits. See Docs. 28-7 through 28-11. According to BOP records, Edmonds

submitted six grievances and/or appeals relating to his foot pain, see Doc. 28-7 at 3: (1)

Request for Administrative Remedy, No. 874064-F1, received on August 26, 2016; (2)

Regional Appeal, No. 874064-R1, received on October 13, 2016; (3) Request for

Administrative Remedy, No. 884982-F1, received on December 7, 2016; (4) Regional

Appeal, No. 884982-R1, received on December 20, 2016; (5) General Counsel Appeal,

No. 884982-A1, received on February 13, 2017; and (6) Regional Appeal, No. 884982-

R2, received on March 21, 2017. See Docs. 28-8 at 3-5; 28-11, Declaration and

Certification of records by Jeanie Register (Register Declaration).

BOP records reflect that Edmonds submitted a Request for Administrative

Remedy, which the institution received on August 26, 2016. See Docs. 28-9 at 3; 28-8 at

3, No. 874064-F1. On September 13, 2016, Warden Ocasio responded, stating that a

request for monetary damages could not be handled through the administrative remedy

process and advised Edmonds that he could file a claim under the Federal Tort Claims

Act. See Doc. 28-9 at 2. Edmonds appealed the response to the Regional Director. See

Doc. 28-8 at 3, No. 874064-R1. The Regional Director rejected the appeal as untimely on

October 20, 2016, and advised Edmonds that he could resubmit it and explain why he

should not be faulted for the untimeliness. See Register Declaration at 3; Doc. 28-8 at 3.

According to Register, “[t]here is no record that inmate Edmonds provided this information

and continued the appeal.” See Register Declaration at 3.

On November 30, 2016, Edmonds instead submitted another Request for

Administrative Remedy, which the institution received on December 7, 2016. See Docs.

28-10 at 4; 28-8 at 4, No. 884982-F1. Warden Ocasio, on December 9th, denied the

grievance as repetitive of No. 874064-F1. See Docs. 28-10 at 2; 28-8 at 4. On December

14th, Edmonds appealed the denial to the Regional Director, see Docs. 28-10 at 8, 28-8

at 4, No. 884982-R1, who stated in pertinent part:

This is in response to your Regional Administrative Remedy

Appeal receipted [sic] December 20, 2016. You allege you are

entitled to monetary compensation because you did not

receive treatment for your broken foot for two years. You

further contend you have filed a tort claim regarding this

matter and you are filing this appeal to exhaust the

administrative remedy process.

A review of your medical records revealed you were evaluated

by the Staff Physician on January 12, 2015, at which time you

complained of pain and swelling of your right foot for two

months in duration. You indicated your pain and swelling

worsened upon walking, but you did not advise your medical

provider of any injuries to your foot at that time. An x-ray was

ordered and subsequently completed on January 21, 2015.

The x-ray revealed a healing fracture of the right second

metatarsal. You were evaluated by the Mid-level Practitioner

(MLP) on the same day, and reported hitting your right foot on

the bar rail of your bed approximately three months ago. The

MLP applied a splint to your right foot and provided a set of

crutches to help with ambulation. A request for an orthopedic

consultation was also submitted; however, the Clinical

Director disapproved the request because the trauma

occurred three months before you reported it to Health

Services and your facture was healing well. A repeat x-ray

within three months and a follow-up with orthotics was

recommended. A repeat x-ray was performed on February 25,

2015, which indicated the fracture line was still visible and

degenerative changes with subchondral cystic formation. A

request for a prosthetic/orthotic consultation was submitted

for further management and treatment. You were seen by the

Orthotics Specialist on May 21, 2015, at which time you were

fitted for new orthopedic shoes.

A second orthopedic consultation request was generated on

January 27, 2016, with a provisional diagnosis of a right

second metatarsal fracture with possible neuropathic joints. It

was also noted you have a long history of diabetes mellitus

and uncontrolled blood glucose. This request was approved

and you were seen by the Orthopedic Specialist on April 21,

2016, at which time you received a diagnosis of degenerative

joint disease (arthritis) and neuritis of the right foot. A

cortisone injection was deferred at that time, but you were

advised it would be available later, if needed.

Medical intervention for this complaint includes non-steroidal

anti-inflammatory medication for pain and swelling, orthopedic

shoes, a splint, crutches and orthotic and orthopedic

consultations. Should you experience any adverse changes

in your condition, return to sick call for reevaluation. Medical

care will continue to be provided to you consistent with Bureau

of Prisons’ policy.

Monetary damages cannot be provided under the

Administrative Remedy Program. If you wish to seek

monetary compensation for an injury or loss allegedly caused

by staff negligence, you may consider filing a separate claim

under the appropriate administrative claim process (i.e. 31

U.S.C. § 3723 or the Federal Tort Claims Act).

Accordingly, this response to your Regional Administrative

Remedy Appeal is for informational purposes only. If

dissatisfied with this response, you may appeal to the Office

of General Counsel. . . .

Docs. 28-10 at 7, Response to Regional Administrative Remedy Appeal, dated January

11, 2017; 28-8 at 4. Edmonds appealed to the Office of the General Counsel. See Doc.

28-8 at 5, No. 884982-A1. On March 1, 2017, the General Counsel rejected the appeal

because Edmonds failed to provide copies of the institutional administrative remedy

request form and the institutional response. See Register Declaration at 3; Doc. 28-8 at

5. According to Register, the General Counsel informed Edmonds that he could resubmit

the appeal “in proper form within 15 days of the date of the rejection notice.” Register

Declaration at 3-4. Instead of following the General Counsel’s instructions, Edmonds

appealed to the Regional Office on March 21, 2017. See id.; Doc. 28-8 at 5, No. 884982-

R2. The Regional Director rejected the appeal on March 23rd because Edmonds sent the

appeal to “the wrong level.” Register Declaration at 4; Doc. 28-8 at 5. According to

Register, Edmonds did not file “any additional administrative remedies.” Register

Declaration at 4.

In his Response, Edmonds states that he “in fact” submitted the required BOP

grievance and appeal forms, see Response at 2, and therefore, properly exhausted his

administrative remedies before filing the instant lawsuit, see id. at 5. He states, in pertinent

part:

Again, everything required was done by the Plaintiff. After

being informed of having not provided a copy of the

institutional Administrative request or a copy of the

institutional response, Petitioner/Plaintiff through Counselor

of C2, corrected this documentation, but because he was out,

the document remained in his custody, thus requiring it to be

resubmitted within 15 days of the rejection notice.

Response at 5.

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). Accepting Edmonds’

view of the facts as true, a dismissal of the claim against Defendant Li 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’s arguments regarding

exhaustion and makes findings of fact.

To fully exhaust, Edmonds was required to complete the third step by resubmitting

his appeal (with proper documentation) to the General Counsel. See 28 C.F.R. §

542.15(a) (“Appeal to the General Counsel is the final administrative appeal.”). Edmonds

did submit another appeal, see Doc. 28-8 at 5, No. 884982-R2, however, he submitted it

to the Regional Director instead of the General Counsel. Thus, the Regional Director

rejected the appeal. See Register Declaration at 4; Doc. 28-8 at 5. While Edmonds

attempted to exhaust the deliberate indifference claim by submitting grievance forms at

each level, he failed to properly exhaust because he failed to resubmit the appeal (with

proper documentation) to the General Counsel. See Register Declaration at 4. As such,

Defendant Li’s Motion is due to be granted with respect to the exhaustion issue as to

Edmond’s Eighth Amendment deliberate indifference claim against him.

Therefore, it is now

ORDERED:

1. Defendant Li’s Motion to Dismiss (Doc. 28) is GRANTED, and Edmonds’

claim against him is DISMISSED without prejudice for failure to exhaust his administrative

remedies.

2. The Clerk shall enter judgment accordingly, terminate any pending motions,

and close the case.

DONE AND ORDERED in chambers, this 20th day of December, 2019.

United States District Judge

13

sc 12/19

c:

Ezekiel Edmonds

Counsel of Record