Nelson v. Miller

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JEFFREY NELSON,

Plaintiff,

v.

Case No. 3:19-cv-176-J-34JRK

N. MILLER, et al.,

Defendants.

ORDER

I. Status

Plaintiff Jeffrey Nelson, an inmate of the Florida penal system, initiated this action

on February 8, 2019, by filing a pro se Civil Rights Complaint (Complaint; Doc. 1). In the

Complaint, Nelson asserts claims pursuant to 42 U.S.C. ' 1983 against Defendants N.

Miller, S. Massey, P. Mayo, and T. Sistrunk. He alleges that Defendants violated his

federal constitutional rights when they searched his cell on November 17, 2017, falsified

a disciplinary report (DR), and lost his property. As relief, he seeks compensatory,

punitive and nominal damages.

This matter is before the Court on Defendants Mayo, Sistrunk, Miller, and Massey’s

Motion to Dismiss (Motion; Doc. 21).1 They submitted exhibits in support of the Motion.

See Docs. 21-1 through 21-2.2 The Court advised Nelson that granting a motion to

dismiss would be an adjudication of the case that could foreclose subsequent litigation

1 See Defendants Miller and Massey’s Notices of Adoption (Docs. 28, 31).

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

Electronic Case Filing System.

on the matter and gave him an opportunity to respond. See Order (Doc. 6). Nelson filed

responses in opposition to the Motion. See Motion to Respond to Motion to Dismiss

(Response; Doc. 26); Motions of Opposition (Docs. 30, 32). In support of his arguments,

he also submitted exhibits. See Docs. 26-1 through 26-8. Thus, Defendants’ Motion is

ripe for review.

II. Plaintiff’s Allegations3

Nelson asserts that Defendants Sistrunk and Miller searched his cell on November

17, 2017, found a knife, and gave him a false DR for possession of a weapon. See

Complaint at 5. He avers that Miller, Massey, and Sistrunk mishandled his property when

they packed and shipped it to another institution. See id. at 6, 8. According to Nelson,

when Defendants escorted him to confinement, Sistrunk threatened to beat him and write

another DR. See id. at 5. He states that he submitted an informal grievance to Defendant

Mayo, who advised him that his property had been sent to Lake Correctional Institution.

See id. Nelson asserts that Mayo refused to give him copies of his personal property

receipts. See id. at 6. He believes that Defendants retaliated against him because he had

complained about Sergeant Howard spraying him with chemical agents and had initiated

3 The Complaint is the operative pleading. In considering a motion to dismiss, the

Court must accept all factual allegations in the Complaint 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 Complaint and may differ from those that ultimately can be proved.

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a civil rights action to pursue his claims against Sergeant Howard. See id. at 7, 13 (citing

Jeffrey Nelson v. Sergeant. W.I. Howard, Jr., Case No. 3:18-cv-1334-J-39JBT).4

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

4 In that action, Nelson asserts that Defendant Howard assaulted him on

September 24, 2017. See Case No. 3:18-cv-1334-J-39JBT, Complaint (Doc. 1) at 4.

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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)5

(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).

5 “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.”).

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IV. Summary of the Arguments

In the Motion, Defendants request dismissal of Nelson’s claims against them

because Nelson failed to exhaust his administrative remedies, as required by the Prison

Litigation Reform Act (PLRA). See Motion at 2-6. They also assert that Nelson is not

entitled to compensatory and punitive damages under 42 U.S.C. § 1997e(e) because he

has not alleged any physical injury resulting from Defendants’ acts and/or omissions. See

id. at 10-11. In his Response, Nelson maintains that he has exhausted his administrative

remedies. See Response at 1-12. Additionally, he asserts that he is entitled to

compensatory and punitive damages. See id.

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 asserting any claim under 42 U.S.C.

§ 1983. See 42 U.S.C. § 1997e(a). Nevertheless, a prisoner such as Nelson 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

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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).” Pozo,[6] 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 pursuing 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 under § 1983. 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.[7] In Turner v.

Burnside we established a two-step process for resolving

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

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

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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); see Pavao

v. Sims, 679 F. App'x 819, 823-24 (11th Cir. 2017) (per curiam).

B. Florida’s Prison Grievance Procedure

State law “determines what steps are required to exhaust.” Dimanche v. Brown,

783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218 (stating that “it is

the prison’s requirements, and not the PLRA, that define the boundaries of proper

exhaustion”). The Florida Department of Corrections (FDOC) provides an internal

grievance procedure for its inmates. 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 sequential process. First, an inmate must submit an informal

grievance to a designated staff member at the institutional level. See FLA. ADMIN. CODE

r. 33-103.005. If the issue is not resolved, the inmate must submit a formal grievance at

the institutional level. See FLA. ADMIN. CODE r. 33-103.006. If the matter is not resolved

at the institutional level, the inmate must file an appeal to the Office of the FDOC

Secretary. See FLA. ADMIN. CODE r. 33-103.007. However, under certain specified

circumstances, an inmate can bypass the informal-grievance stage and start with a formal

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grievance at the institutional level. See FLA. ADMIN. CODE r. 33-103.005(1); 33-

103.006(3). Or, an inmate can completely bypass the institutional level and proceed

directly to the Office of the FDOC Secretary by filing a “direct grievance.” See FLA.

ADMIN. CODE r. 33-103.007(3). Emergency grievances and grievances of reprisal are

types of “direct grievances” that may be filed with the Office of the Secretary. See FLA.

ADMIN. CODE r. 33-103.007(3)(a).

Florida Administrative Code Rule 33-103.011 provides time frames for submission

of grievances. Generally, the following time limits apply. Informal grievances must be

received within twenty days from the date on which the incident or action that is the

subject of the grievance occurred. See FLA. ADMIN. CODE r. 33-103.011(1)(a). Formal

grievances must be received no later than fifteen days from the date of the response to

the informal grievance. See FLA. ADMIN. CODE r. 33-103.011(1)(b). Similarly, grievance

appeals to the Office of the Secretary must be received within fifteen days from the date

the response to the formal grievance is returned to the inmate. See FLA. ADMIN. CODE

r. 33-103.011(1)(c). According to Rule 33-103.014, an informal grievance, formal

grievance, direct grievance, or grievance appeal “may be returned to the inmate without

further processing if, following a review of the grievance, one or more . . . conditions are

found to exist.” FLA. ADMIN. CODE r. 33-103.014(1). The rule provides an enumerated

list as “the only reasons for returning a grievance without a response on the merits.” See

FLA. ADMIN. CODE r. 33-103.014(1)(a)-(y). Some of the reasons for returning a

grievance are: untimeliness; the grievance “addresses more than one issue or complaint”

or “is so broad, general or vague in nature that it cannot be clearly investigated, evaluated,

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and responded to” or “is not written legibly and cannot be clearly understood” or is a

supplement to a previously-submitted grievance that has been accepted for review; and

the inmate “did not provide a valid reason for by-passing the previous levels of review as

required or the reason provided is not acceptable,” or he did not provide the required

attachments. See FLA. ADMIN. CODE r. 33-103.014(1).

C. Nelson’s Exhaustion Efforts

Defendants maintain that Nelson failed to properly exhaust his administrative

remedies as to the claims against them before filing the instant § 1983 lawsuit. See Motion

at 2-6. In support of their position, they submitted the Declarations of Jennifer Butler and

Lawanda Sanders, see Docs. 21-1, 21-2 at 1, and a list of Nelson’s grievance appeals

that the FDOC received from October 31, 2017, through February 28, 2019, see Doc. 21-

2 at 2-6. In response, Nelson asserts that he has exhausted his administrative remedies.

See Response at 1-2, 11. In support of his position, he attached to the Response the

relevant grievances, appeals, and their corresponding responses. See Docs. 26-1

through 26-8.

The documents attached to Nelson’s Response reflect that Nelson submitted the

following informal grievances relating to the November 17, 2017 mishandling of his

property: (1) log number 231-1711-0117, dated November 21, 2017, that Sergeant Mayo

returned without action on December 15, 2017, see Doc. 26-3 at 2; (2) log Number 231-

1712-0041, dated December 6, 2017, that the FDOC denied on December 10, 2017, see

Doc. 26-4 at 2; (3) log number 231-1802-0086, dated February 9, 2018, that the FDOC

denied on February 20, 2018, see Doc. 26-5 at 2; (4) log number 231-1808-0035, dated

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July 28, 2018, that Sergeant Mayo returned without action on August 3, 2018, see Doc.

26-1 at 2; and (5) log number 231-1808-0089, dated August 6, 2018, that Sergeant Mayo

denied on August 13, 2018, see Doc. 26-2 at 2. He also submitted two formal grievances

relating to the mishandling of his property to the Warden: (1) Request for Administrative

Remedy or Appeal (log number 1801-231-029), dated January 4, 2018, in which he stated

that he was appealing the FDOC’s denial of his informal grievance (log number 231-1712-

0041), see Doc. 26-6 at 4, and (2) Request for Administrative Remedy or Appeal (log

number 1808-231-052), dated August 6, 2018, in which he asserted that he was

appealing Sergeant Mayo’s decision to “return without action” his informal grievance (log

number 231-1808-0035) with notice that Nelson must keep his own property receipts, see

Doc. 26-7 at 4. Grievance Officer M. Stofel denied both formal grievances. See Docs. 26-

6 at 3; 26-7 at 3.

Additionally, Nelson submitted a Request for Administrative Remedy or Appeal

(log number 18-6-35701), dated August 6, 2018, to the Office of the FDOC Secretary.

See Doc. 26-8 at 3. In the grievance, he complained about the mishandling of his property

and Mayo’s advice that he must keep his own property receipts. See id. A. Johns, an

FDOC representative, returned the appeal without action on August 27, 2018, stating in

pertinent part:

Your request for Administrative Remedy or Appeal has not

been filed in compliance with Chapter 33-103.006, Inmate

Grievance Procedure. You did not provide this office with a

copy of the formal grievance filed at the institutional level as

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required by rule or the reason you provided for by-passing that

level of the grievance procedure is not acceptable.[8]

Upon receipt of this response, if you are within the allowable

time frames for processing a grievance, you may resubmit

your grievance at your current location in compliance with

Chapter 33-103, Inmate Grievance Procedure.

Based on the foregoing information, your appeal is returned

without action.

Doc. 26-8 at 2. Notably, Johns informed Nelson that he could resubmit the appeal if he

could do so within the allowable time frame. However, Nelson did not resubmit the appeal.

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 Nelson’s

view of the facts as true, a dismissal of the claims against Defendants for lack of

exhaustion is not warranted at the first step. Thus, the Court proceeds to the second step

8 See FLA. ADMIN. CODE r. 33-103.014(1)(f) (“The inmate did not provide a valid

reason for by-passing the previous levels of review as required or the reason provided is

not acceptable.”); 33-103.014(1)(g) (“The grievance did not have the attachments

required: informal grievance and response … or the formal grievance and response ….”).

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in the two-part process where the Court considers Defendants’ arguments regarding

exhaustion and makes findings of fact.

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

his appeal (with proper documentation) to the FDOC Secretary. While Nelson attempted

to exhaust his claims by submitting grievance forms at each level, he failed to properly

exhaust because he failed to resubmit the appeal (with proper documentation) to the

FDOC Secretary. See Doc. 21-2. As such, Defendants Mayo, Sistrunk, Miller, and

Massey’s Motion is due to be granted with respect to the exhaustion issue as to Nelson’s

claims against them.

Therefore, it is now

ORDERED:

1. Defendants Mayo, Sistrunk, Miller, and Massey’s Motion to Dismiss (Doc.

21) is GRANTED, and Nelson's claims against them are 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 at Jacksonville, Florida, this 23rd day of January, 2020.

United States District Judge

sc 1/21

Jeffrey Nelson, FDOC #199489

Counsel of Record

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