Hardin v. Jones

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOSHUA N. HARDIN,

Plaintiff,

v. Case No: 3:18-cv-3-J-32JBT

SGT. J. JONES, et al.,

Defendants.

__________________________

ORDER

I. Status

Plaintiff, an inmate of the Florida penal system, is proceeding on a Second

Amended Civil Rights Complaint (Doc. 35; SAC) against two Defendants: Sgt.

Johnathan Jones and A. Zarate.1 Plaintiff sues Defendants in their individual and

official capacities, arguing that “Defendants violated federal as well as state law”

prohibitions against cruel and unusual punishment. Doc. 35 at 3. He claims that on or

about December 26, 2017,

[Plaintiff] was placed in a cell with a gang member

who advised the [a]forementioned off[icers] that he would

slap the shit out of [Plaintiff] should [Plaintiff] become his

cellmate. [A]forementioned off[icers] placed [Plaintiff] in the

cell and [he] was slap[ped] and pushed onto the floor and

punched in the left temple x3. All officials refused to remove

me from the cell and allowed this inmate to batter me for

approximately 6 ½ hours. On or about January 1, 2018,

Inspector Gamble investigated the assault and took pictures

of the injuries. All officers acted in official capacity at the

1 The Court dismissed the claims against Defendant Gamble. See Doc. 61.

time of the incident and further knowingly/willfully

subjected [Plaintiff] to cruel and unusual punishment.

Doc. 25 at 5. In addition to his Eighth Amendment claim, Plaintiff also alleges that

Defendants’ conduct was negligent. Id. at 5. Plaintiff argues that as a result of the

incident, he suffered bruising to the left side of his face and continues to experience

extreme paranoia. As relief, he requests $35,000 in monetary damages. Id.

Before the Court is Defendants’ Motion to Dismiss (Doc. 45; Motion).2 The Court

advised Plaintiff that the granting of a motion to dismiss would be an adjudication of

the claim and could foreclose any subsequent litigation of the matter and provided

Plaintiff with an opportunity to respond. See Doc. 36. Plaintiff filed a Response in

opposition (Doc. 51; Response), a Motion Requesting a Hearing (Doc. 65), and a Notice

of Intent (Doc. 66). The Motion is ripe for review.

II. Standard of Review

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Labels and

conclusions” or “a formulaic recitation of the elements of a cause of action” that amount

2 Defendant Zarate filed the Motion to Dismiss, see Doc. 45, and the Court later

granted Defendant Jones’s request to join the Motion to Dismiss, see Doc. 61.

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to “naked assertions” will not do. Id. (quotations, alteration, and citation omitted).

Moreover, a complaint must “contain either direct or inferential allegations respecting

all the material elements necessary to sustain a recovery under some viable legal

theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)

(quotations and citations omitted). The Court liberally construes the pro se Plaintiff’s

allegations. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Bingham v. Thomas,

654 F.3d 1171, 1175 (11th Cir. 2011).

III. Analysis

Defendants request dismissal for the following reasons: (1) Plaintiff failed to

properly exhaust his administrative remedies; (2) the claims for monetary damages

against Defendants in their official capacities are barred by the Eleventh Amendment;

and (3) Plaintiff’s state law negligence claim is subject to dismissal. See generally Doc.

45.

A. Exhaustion

The Prison Litigation Reform Act (PLRA) requires exhaustion of available

administrative remedies before a 42 U.S.C. § 1983 action with respect to prison

conditions may be initiated in a district court by a prisoner. See 42 U.S.C. § 1997e(a)

(“No action shall be brought with respect to prison conditions under section 1983 . . .

until such administrative remedies as are available are exhausted.”); see also

Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (noting that a prisoner must exhaust

administrative remedies before challenging the conditions of confinement, and

concluding that the PLRA demands “proper exhaustion”). Nevertheless, prisoners are

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not required to “specially plead or demonstrate exhaustion in their complaints.” See

Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the United States Supreme Court

has recognized that “failure to exhaust is an affirmative defense under the PLRA[.]”

Id.

Importantly, 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, 549 U.S. at 211. The Supreme Court has instructed that while “the

PLRA exhaustion requirement is not jurisdictional[,]” Woodford, 548 U.S. at 101,

“exhaustion is mandatory . . . and unexhausted claims cannot be brought,” Pavao v.

Sims, 679 F. App’x 819, 823 (11th Cir. 2017) (per curiam) (citing Jones, 549 U.S. at

211). Not only is there a recognized exhaustion requirement, “the PLRA . . . requires

proper exhaustion” as set forth in applicable administrative rules and policies of the

institution. Woodford, 548 U.S. at 93.

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 addresses the issues on the

merits).”

Id. at 90 (citation omitted). Indeed, “[p]roper exhaustion demands compliance with an

agency’s deadlines and other critical procedural rules[.]” Id.

Because failure to exhaust administrative remedies is an affirmative defense,

the defendant bears “the burden of proving that the plaintiff has failed to exhaust his

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available administrative remedies.” Turner, 541 F.3d at 1082. The Eleventh Circuit

has articulated a two-step process that district courts must employ when examining

the issue of exhaustion of administrative remedies.

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 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).

The FDOC provides inmates with a three-step grievance process for exhausting

administrative remedies. As the Eleventh Circuit has described it:

The grievance procedure applicable to Florida

prisoners is set out in § 33-103 of the Florida Administrative

Code. Section 33-103 contemplates a three-step sequential

grievance procedure: (1) informal grievance; (2) formal

grievance; and then (3) administrative appeal. Dimanche,

783 F.3d at 1211. Informal grievances are handled by the

staff member responsible for the particular area of the

problem at the institution; formal grievances are handled by

the warden of the institution; and administrative appeals

are handled by the Office of the Secretary of the FDOC. See

Fla. Admin. Code. §§ 33-103.005–103.007. To exhaust these

remedies, prisoners ordinarily must complete these steps in

order and within the time limits set forth in § 33-103.011,

and must either receive a response or wait a certain period

of time before proceeding to the next step. See id. § 33-

103.011(4).

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Pavao, 679 F. App’x at 824. However, a prisoner may bypass the first two steps in the

case of “[e]mergency grievances and grievances of reprisals, [and] protective

management,” among others. Fla. Admin. Code r. 33-103.007(3)(a). A prisoner

permitted to bypass the first two steps may proceed directly to the third step by filing

a grievance with the Office of the Secretary of the FDOC. Id. When a prisoner files a

grievance directly with the Secretary, he must do so “within 15 calendar days from the

date on which the incident or action which is the subject of the grievance occurred.”

Fla. Admin. Code Ann. r. 33-103.011(d).

Here, Defendants assert that the SAC is due to be dismissed because Plaintiff

failed to properly exhaust his administrative remedies. They argue that Plaintiff did

not file any grievance regarding his Eighth Amendment claim. Doc. 45 at 8. In his

Response, Plaintiff alleges that he exhausted his administrative remedies, because he

filed an emergency grievance. Doc. 51 at 1. Notably, Plaintiff appears to allege that

the cellmate who battered him also raped him and that Defendants allowed this

inmate to commit these acts without disciplinary action. See Doc. 66-1 at 1. According

to Plaintiff, he filed an emergency grievance regarding the sexual assault and the

assault/battery and the emergency grievance was referred to the Office of the

Inspector General. Doc. 51 at 1-2. He further alleges that the Inspector General’s

Office then initiated a Prison Rape Elimination Act investigation, and that the current

“complaints . . . against Defendant[s] . . . as well as PREA investigation [was] a single

episode and therefore directly related.” Doc. 51 at 2. Plaintiff argues that once his

emergency grievance was referred to the Inspector General’s Office and it initiated an

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investigation, he satisfied the PLRA’s exhaustion requirement regarding the claims in

his SAC. Doc. 65 at 2.

Accepting Plaintiff’s view of the facts as true, the Court finds dismissal of the

claims against Defendants for lack of exhaustion is not warranted at the first step of

Turner. Thus, the Court proceeds to the second step of the two-part process where the

Court considers the Defendants’ arguments regarding exhaustion and makes findings

of fact. In doing so, the Court finds that Defendants have not carried their burden of

showing that Plaintiff failed to exhaust his administrative remedies.

Defendants do not dispute that the Inspector General’s Office initiated an

investigation. Instead, they seemingly argue that the subject investigation did not

involve the Eighth Amendment deliberate indifference claim raised here; and even

assuming the investigation did involve the current claim, the Inspector General’s

Office initiation of an investigation alone is not enough to demonstrate proper

exhaustion. Doc. 45 at 4. However, the cases that Defendants cite to support their

argument are factually distinguishable from this case. See Doc. 45 at 4-5. Notably, the

defendants in those cases provided the court with documentation and record evidence

showing that those plaintiffs’ exhaustion efforts were insufficient, because either those

plaintiffs’ emergency grievances were not filed on the proper form, the FDOC’s written

response to the emergency grievances provided that the plaintiffs were required to

seek an appeal, or grievance logs and declarations by FDOC employees demonstrated

that the plaintiffs did not file any grievances. See Schlicher v. Fla. Dept. of Corr., 399

F. App’x 538, 539 (11th Cir. 2010) (noting that defendants provided documentation

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showing the plaintiff’s informal and formal grievances were either filed at the wrong

level or not appealed after they were denied, and that the “letters” to the Secretary of

the FDOC and the Office of the Inspector General did not satisfy the requirements of

an emergency grievance); Griffin v. Keys, No. 5:14cv282/RH/CJK, 2016 WL 8731790,

at *4-6 (N.D. Fla. Jan. 20, 2016) (considering the substance of the plaintiff’s grievances

and the FDOC’s responses in dismissing the complaint for failure to exhaust); Hope v.

Walker, No. 5:13cv362/WS/CJK, 2015 WL 5190435, at *5 (N.D. Fla. Aug. 18, 2015)

(finding the FDOC’s referral of the plaintiff’s formal grievance to the Office of the

Inspector General did not satisfy exhaustion requirement, because the FDOC’s

written referral/response stated that the plaintiff may obtain further review by

submitting an administrative appeal); Vinci v. Culpepper, No. 3:10cv173/MCR/EMT,

2012 WL 3155618, at *3 (N.D. Fla. July 13, 2012) (finding the defendants met their

burden of showing the plaintiff failed to file any grievances regarding his claims,

because they submitted affidavits from relevant FDOC employees); Toler v. Halley,

No. 3:09cv523/MCR/CJK, 2012 WL 555740, at *5 (N.D. Fla. Jan. 12, 2012) (holding

the plaintiff’s verified pleading, response to the defendants’ motion to dismiss, and

sworn affidavit admit that the plaintiff did not use or attempt to use the

administrative grievance process to exhaust his claims).

However, because Defendants have not presented evidence supporting their

argument, the Court must accept Plaintiff’s responsive allegations that he bypassed

the first two steps of the grievance process, timely and properly filed an emergency

grievance regarding this Eighth Amendment deliberate indifference claim, and that

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the FDOC referred that emergency grievance to the Inspector General’s Office,

prompting the investigation. Further, the Court must accept Plaintiff’s unrefuted

allegation that once his exhaustion efforts were successful – once the FDOC referred

his emergency grievance to the Inspector General’s Office – Plaintiff was not required

to pursue subsequent stages of the administrative grievance process or wait for the

conclusion of the Inspector General’s investigation. See, e.g., Luckey v. May, No. 5:14-

cv-315-MW-GRJ, 2016 WL 1128426, at *11 (N.D. Fla. Feb. 17, 2016) (finding that after

the plaintiff filed emergency grievance and the emergency grievance was approved

and referred to the Inspector General’s Office for an investigation, the plaintiff was

not required to wait until conclusion of investigation or seek an appeal before filing

suit); see also Lanier v. Smith, No. 3:08-cv-833-J-12JRK, 2009 WL 1758904, at *1

(M.D. Fla. June 19, 2009) (denying motion to dismiss for failure to exhaust, because

the plaintiff’s grievances were referred to the Inspector General’s Office for review and

consideration). As such, Defendants’ Motion as to exhaustion is due to be denied.

B. Eleventh Amendment Immunity

Defendants argue that Plaintiff’s claim for monetary damages against them in

their official capacities should also be dismissed, because they are entitled to Eleventh

Amendment immunity. Doc. 45 at 9. The Court agrees that such claims are barred by

the Eleventh Amendment. See, e.g., Hayes v. Sec’y, Fla. Dep’t of Children & Families,

563 F. App’x 701, 703 (11th Cir. 2014) (“The Eleventh Amendment also prohibits suits

against state officials where the state is the real party in interest, such that a plaintiff

could not sue to have a state officer pay funds directly from the state treasury for the

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wrongful acts of the state.”). As such, Defendants’ Motion is due to be granted to the

extent that Plaintiff requests monetary damages from Defendants in their official

capacities.

C. State Law Claim

Defendants argue that Plaintiff’s “negligence claims under Florida law are

subject to dismissal.” Doc. 45 at 9. According to Defendants, “Plaintiff appears to

impliedly invoke the Court’s supplemental jurisdiction [over state law claims] by

raising negligence claims against Defendant[s] . . . , stating that Defendant[s] [have]

‘violated Federal as well as state law’ . . . and requesting relief from Defendant[s] ‘due

to complete negligence.’” Doc 45 at 9. They argue that they are, in their individual and

official capacities, immune from a negligence state law claim. Doc. 45 at 9-10. In

support of this assertion, Defendants quote section 768.28, Florida Statutes, arguing:

Plaintiff sues the [D]efendant[s] as . . . employee[s] of

the FDC, a state agency. An employee of the State cannot

be sued in his official capacity under State law. Instead,

“[t]he exclusive remedy for injury or damage suffered as a

result of an act, event, or omission of an . . . employee . . . of

the state . . . shall be by action against the government

entity, or head of such entity in her or his official capacity.”

§ 768.28(9)(a), Fla. Stat.

Doc. 45 at 9-10. However, a review of section 768.28(9)(a), Florida Statutes, reveals

that Defendants omitted a material phrase of the statute’s language. The last sentence

of Defendants’ quote should include the following exception: “unless such officer,

employee, or agent acted in bad faith or with malicious purpose or in a manner

exhibiting wanton and willful disregard of human rights, safety, or property.” §

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768.28(9)(a) (emphasis added). This is exactly what Plaintiff alleges. As such,

Defendants’ Motion is due to be denied as to the state law claims.

Accordingly, it is

ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 45) is GRANTED in part and

DENIED in part. The Motion is GRANTED to the extent that all claims for

monetary damages against Defendant Jones and Defendant Zarate in their official

capacities only are DISMISSED. The Motion (Doc. 45) is otherwise DENIED.

2. Plaintiff’s Motion Requesting a Hearing (Doc. 65) is DENIED without

prejudice.

3. Defendants shall file an answer to the Second Amended Complaint by

February 17, 2020.

4. The parties shall serve all discovery requests no later than March 10,

2020. A party to whom a discovery request is directed must respond within the time

permitted by the Federal Rules of Civil Procedure. Any motions relating to discovery

shall be filed by April 30, 2020.

5. All motions to dismiss and/or for summary judgment shall be filed by

May 26, 2020.3 This deadline is also applicable to the filing of any motions or the

raising of any affirmative defenses based on qualified immunity.

6. Responses to any motions to dismiss and/or for summary judgment shall

3 The Court requires the complete transcript of any deposition submitted as an exhibit.

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be filed by July 3, 2020.

7. The parties are encouraged to discuss the possibility of settlement and

notify the Court if their efforts are successful. In doing so, Plaintiff and Defendants

are encouraged to maintain a realistic approach in making and/or considering any

settlement offers.

8. As to the taking of Plaintiff's deposition, if necessary, the Court grants

permission to Defendants’ counsel. Defendants’ counsel must contact the Warden of

Plaintiffs institution to arrange an appropriate time and place for the deposition.

DONE AND ORDERED at Jacksonville, Florida, this 21st day of January,

2020.

TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Joshua N. Hardin, #N28219

Kristen Jennifer Lonergan, Esq.

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