# Hall v. Phillips

> District Court, M.D. Florida · January 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10104282

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 8, 2020
- **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/10104282

## How later opinions describe it (automated extraction)

- 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
- noting the defendant prison official has the burden on exhaustion
- recognizing a district court may consider exhibits to a complaint when ruling on a motion to dismiss

## Opinion text

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

13

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104282. Public record. Not legal advice.