# Edmonds v. Warden, FCC Coleman - Medium

> District Court, M.D. Florida · December 20, 2019

URL: https://www.frixlaw.com/law-library/cases/10104268

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 20, 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/10104268

## How later opinions describe it (automated extraction)

- explaining that defendants bear the burden of showing a failure to exhaust
- stating that “section 1997e(a) by its own terms clearly applies to [plaintiff]’s Bivens action
- explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104268. Public record. Not legal advice.