Hall v. Phillips

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WENDALL JERMAINE HALL,

Plaintiff,

v. Case No. 3:18-cv-1324-J-39MCR

MS. PHILLIPS, et al.,

Defendants.

_______________________________

ORDER

I. Status

Plaintiff, Wendall Jermaine Hall, is proceeding on a pro se

civil rights complaint under 42 U.S.C. § 1983 (Doc. 1; Compl.)

against the following individuals: Nurse Phillips, Nurse Polk, and

Officer J. Johnson. Before the Court is Nurses Phillips and Polk’s

joint motion to dismiss the Complaint (Doc. 35; Motion). Plaintiff

has responded (Doc. 46; Resp.). Accordingly, the motion is ripe

for this Court’s review.

II. Motion Standard

In ruling on a motion to dismiss, the Court must accept the

factual allegations set forth in the complaint as true. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, the complaint

allegations must be construed in the light most favorable to the

plaintiff. Gill as Next Friend of K.C.R. v. Judd, 941 F.3d 504,

511 (11th Cir. 2019). 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). However, “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.

Though detailed factual allegations are not required, Federal

Rule of Civil Procedure 8(a) demands “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at

678. As such, a plaintiff may not rely on “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory

statements.” Gill, 941 F.3d at 511 (quoting Iqbal, 556 U.S. at

678). Rather, the well-pled allegations must nudge the claim

“across the line from conceivable to plausible.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff must allege

“enough facts to state a claim to relief that is plausible on its

face.” Id.

III. Complaint Allegations1

Plaintiff’s claims arise out of conduct that occurred at the

Reception and Medical Center (RMC). Compl. at 2. Plaintiff alleges

1 The recited facts are drawn from the Complaint and may

differ from those that ultimately can be proved. The Court

summarizes only the allegations relevant to Plaintiff’s claims

against Nurses Phillips and Polk. The remaining Defendant, Officer

Johnson, has answered the Complaint (Doc. 27).

that, at the relevant times, he had a valid medical pass to receive

medical supplies, including catheters, for his urinary conditions.

Id. at 14, 16. Beginning on about October 31, 2018, Nurses Phillips

and Polk denied Plaintiff his catheter supplies. Id. at 13.

Plaintiff asserts the denial of catheters results in a “worsening

stricture in his penis that hinders or stops him from urinating,”

causing pain, bloating, difficulty walking, and other issues. Id.

Plaintiff contends Nurses Phillips and Polk failed to provide

him catheters in retaliation for Plaintiff filing grievances

against them and because he had been disciplined for masturbating.

Id. at 14. Plaintiff further alleges Nurses Phillips and Polk

impermissibly refused to provide him medical supplies unless an

officer escorted him to the medical supply room. Id. at 15, 18. In

support of his Complaint, Plaintiff offers the affidavit of inmate

Elder Williams. Id. at 23.2 Inmate Williams avers that on October

31, 2018, he witnessed Nurse Phillips refuse to give Plaintiff

catheter supplies because Plaintiff was not escorted by an officer.

Id. at 24.

Plaintiff asserts Defendants’ actions amount to deliberate

indifference in violation of the Eighth Amendment, retaliation in

2 Under Rule 10(c) of the Federal Rules of Civil Procedure, a

complaint exhibit “is part of the pleading for all purposes.” See

also Gill, 941 F.3d at 511 (recognizing a district court may

consider exhibits to a complaint when ruling on a motion to

dismiss).

violation of the First Amendment, and a denial of equal protection

in violation of the Fourteenth Amendment. Id. at 19, 20, 21.

Plaintiff seeks compensatory and punitive damages from Defendants

in their individual capacities, and injunctive relief from

Defendants in their official capacities.3 Id. at 12, 22.

IV. Defendants’ Motion

Defendants seek dismissal on the following grounds: (1)

Plaintiff is a three-strikes litigant who is barred from proceeding

in forma pauperis under the Prison Litigation Reform Act (PLRA),

28 U.S.C. § 1915(g); (2) Plaintiff failed to exhaust his

administrative remedies; and (3) Plaintiff fails to state a claim

for deliberate indifference and retaliation.4 See Motion at 1.

Defendants also assert they are entitled to qualified immunity.

Id. at 10.

V. Analysis & Conclusions

A. Three Strikes

This Court previously found Plaintiff alleged facts to invoke

the imminent danger exception under 28 U.S.C. § 1915(g). See Order

(Doc. 5). As such, Defendants’ attorney’s representation that the

Court made no such finding, see Motion at 2, 7, is incorrect.

3 Plaintiff is no longer housed at RMC. As such, any request

for injunctive relief may be moot.

4 Defendants suggest Plaintiff fails to state a claim under

the Fourteenth Amendment. See Motion at 3. However, they do not

seek dismissal of such a claim. Id. at 11.

B. Exhaustion

Under the PLRA, “[n]o action shall be brought with respect to

prison conditions . . . until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). 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).

When confronted with an exhaustion defense, courts employ a two-

step process:

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.

Second, if dismissal is not warranted on the

prisoner’s view of the facts, the court makes

specific findings to resolve disputes of fact,

and should dismiss if, based on those

findings, defendants have shown a failure to

exhaust.

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th

Cir. 2015) (internal citations omitted). Not only is there a

recognized exhaustion requirement, “the PLRA . . . requires proper

exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper

exhaustion” requires a prisoner to grieve his issues in compliance

with the agency’s procedural rules so the agency has a “full and

fair opportunity” to address a prisoner’s issues on the merits.

Id. at 90.

The Florida Department of Corrections (FDOC) provides an

internal grievance procedure as set forth in the Florida

Administrative Code. 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 process (informal

grievance, formal grievance, and appeal). See Dimanche v. Brown,

783 F.3d 1204, 1211 (11th Cir. 2015). However, an inmate may bypass

the first two steps “and proceed directly to the Office of the

Secretary” when grieving complaints of an “emergency nature.” Fla.

Admin. Code r. 33-103.005(1).

The parties dispute whether Plaintiff exhausted his

administrative remedies. Defendants contend they “obtained copies

of all grievances submitted by Plaintiff” and none relate to this

incident. See Motion at 8. Plaintiff, on the other hand, states he

exhausted his administrative remedies by filing an emergency

grievance with the Office of the Secretary on October 31, 2018,

before he filed his Complaint on November 3, 2018 (mailbox rule).

See Resp. at 33. Plaintiff concedes his emergency grievance was

“returned without action,” but he maintains the FDOC did not timely

respond. Id. at 35, 36. Accepting Plaintiff’s statements as true,

dismissal is not warranted at the first step of the exhaustion

analysis. As such, the Court proceeds to the second step.

Under the second step of the exhaustion analysis, Defendants

have the burden to demonstrate Plaintiff failed to exhaust his

administrative remedies. See Whatley, 802 F.3d at 1209 (noting the

defendant prison official has the burden on exhaustion). See also

Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (“The

defendants bear the burden of proving that the plaintiff has failed

to exhaust his available administrative remedies.”). Defendants do

not carry their burden. Significantly, Defendants provide no

records to substantiate their assertion that Plaintiff did not

exhaust his administrative remedies. Even more, Plaintiff offers

evidence showing Defendants’ contention that he filed no

grievances is false (Doc. 46-4; Pl. Ex. C).5

On about October 31, 2018,6 Plaintiff filed an emergency

grievance with the Office of the Secretary. Pl. Ex. C at 1. In the

5 This is the second argument Defendants’ attorney, Ana

Francolin Dolney, has advanced that not only lacks evidentiary

support but that is premised on a misrepresentation of the facts.

The Court notes this is not the first time attorney Dolney has

advanced arguments before this Court that lack evidentiary or legal

support. See Case No. 3:16-cv-936-J-34MCR, Doc. 72 (inaccurate

representation of the plaintiff’s exhaustion efforts); Case No.

3:17-cv-930-J-32PDB, Doc. 57 (incorrect assertions about the case

and a failure to attach any grievance records in support of an

exhaustion defense); Case No. 3:17-cv-1239-J-34JRK, Doc. 62

(inaccurate history of the plaintiff’s exhaustion efforts); and

Case No. 3:17-cv-1299-J-20MCR, Doc. 47 (unfounded and unsupported

arguments). Attorney Dolney’s misrepresentations not only signal

a disrespect for this tribunal and frustrate the judicial process,

but also violate her ethical and professional obligations under

the Federal Rules of Civil Procedure and the Rules Regulating the

Florida Bar. The Court warns attorney Dolney that future such

conduct may result in the imposition of sanctions.

6 An institution official noted Plaintiff submitted the form

on either November 1st or 2nd. See Pl. Ex. C at 1.

grievance, Plaintiff complains, among other things, that Nurses

Phillips and Polk refused to provide him catheter supplies. Id. A

prison official responded on November 20, 2018, informing

Plaintiff his grievance was “not accepted as [one] of an emergency

nature.” Id. at 2. As Plaintiff readily acknowledges, see Resp. at

36, his grievance was “returned without action.” Pl. Ex. C at 2.

Generally, when a grievance is returned without action, a

prisoner cannot be said to have properly exhausted his

administrative remedies. See Pavao v. Sims, 679 F. App’x 819, 825

(11th Cir. 2017). However, when a prison official returns an

“emergency” grievance because the grievance does not constitute an

emergency, the official must do so within the time specified under

the agency rules or the prisoner will have exhausted his claims.

See Davis v. Fla. Dep’t of Corr., 264 F. App’x 827, 829 (11th Cir.

2008) (holding the plaintiff “fully and properly exhausted his

available administrative remedies” where the FDOC did not respond

to his emergency grievance within the timeframe mandated under the

agency rules). Under the relevant agency rules, “[i]f an emergency

is not found to exist, it will be clearly marked on the grievance

‘not an emergency,’ signed and dated by the responding employee,

and returned to the inmate within three working days . . . .”).

Fla. Admin. Code r. 33-103.007(3)(b)4; see also Fla. Admin. Code

r. 33-103.006(3)(a)4.

Here, the responding official did not return the grievance to

Plaintiff within three working days. The agency received the

grievance on November 13, 2018.7 Pl. Ex. C at 1. More than three

working days later, on November 20, 2018, an FDOC official notified

Plaintiff his grievance was not accepted as an emergency. Id. at

2. Plaintiff received the grievance response on November 21, 2018.

Id. Because the FDOC official did not respond to Plaintiff within

three working days, and because Plaintiff grieved the issues he

raises in the Complaint, he has properly exhausted his

administrative remedies.

Not only did the responding official not timely apprise

Plaintiff his grievance was not accepted as an emergency, the

official investigated Plaintiff’s complaints and substantively

addressed the merits of his claims. The official responded as

follows:

A review of the RMC Roster reveals no Ms.

Phillips . . . .

If you feel you need medical attention,

contact the institutional medical department

via the sick call/emergency process.

Furthermore, the institution was

contacted and advised Officer Johnson said

[sic] that he is not reprising against Inmate

Hall, Wendall #379682 in anyway for utilizing

the grievance procedure.

7 November 13, 2018, fell on a Tuesday.

Id. Even if Plaintiff had received timely notice that his grievance

was not accepted as an emergency, insofar as the responding

official addressed Plaintiff’s claims on the merits, it is unclear

what more Plaintiff could have done to have exhausted his

administrative remedies.

For the above reasons, Defendants fail to carry their burden

on exhaustion.

C. Deliberate Indifference

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 state a claim for deliberate indifference, a

plaintiff must allege the following:

(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).

Deliberate indifference may be evidenced in different ways,

including when a prison official intentionally interferes with a

prescribed treatment. Estelle, 429 U.S. at 104-05.

Defendants do not dispute Plaintiff has alleged a serious

medical need. See Motion at 9. Instead, Defendants assert Plaintiff

fails to allege they had “subjective knowledge of a substantial

risk of serious harm” and disregarded that risk by conduct that

was more than negligent. Id. Defendants’ contention is not

persuasive. Plaintiff alleges he had a valid medical pass for

urinary catheter supplies, and Nurses Phillips and Polk refused to

provide him those supplies. See Compl. at 14-15, 19. Accepting

these allegations as true, and drawing the inference that medical

professionals who intentionally interfere with a prescribed

treatment know their conduct exposes the patient to a substantial

risk of serious harm, Plaintiff states a claim for deliberate

indifference. See Estelle, 429 U.S. at 104-05.

Because Plaintiff states a claim for deliberate indifference,

Defendants are not entitled to qualified immunity. See Hill v.

Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994),

overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730

(2002) (“A finding of deliberate indifference necessarily

precludes a finding of qualified immunity.”).

D. Retaliation

Prison officials may not retaliate against a prisoner who

exercises his right to free speech. See Farrow v. West, 320 F.3d

1235, 1248 (11th Cir. 2003). As such, a prisoner states a

retaliation claim when he alleges a “prison official’s actions

were ‘the result of his having filed a grievance concerning the

conditions of his imprisonment.’” Id. To state an actionable claim

for retaliation, a plaintiff must allege:

(1) his speech was constitutionally protected;

(2) the inmate suffered adverse action such

that the [official’s] allegedly retaliatory

conduct would likely deter a person of

ordinary firmness from engaging in such

speech; and (3) there is a causal relationship

between the retaliatory action . . . and the

protected speech [the grievance].

O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (first and

third alterations in original).

Plaintiff asserts Nurses Phillips and Polk denied him

prescribed catheter supplies in part because he filed grievances

against them. See Compl. at 14. Accepting these allegations as

true, Plaintiff alleges facts supporting each element of a

retaliation claim. He asserts he engaged in protected speech

(writing grievances); he asserts he suffered adverse action (a

denial of medical supplies); and he asserts a causal connection

between the protected speech and the adverse action (writing

grievances against the individuals who denied him medical

supplies). Accordingly, Plaintiff’s allegations nudge his claim

“across the line from conceivable to plausible.” Twombly, 550 U.S.

at 570.

Therefore, it is now

ORDERED:

1. Defendants Phillips and Polk’s Motion to Dismiss (Doc.

35) is DENIED.

2. Defendants Phillips and Polk must file an Answer within

twenty days of the date of this Order.

DONE AND ORDERED at Jacksonville, Florida, this 7th day of

January, 2020.

4 De

af J. DAVIS

United States District Judge

Jax-6

Cc:

Wendall Jermaine Hall

Counsel of Record

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