Greene v. Rice

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RONALD GREENE,

Plaintiff,

v. Case No. 3:18-cv-1497-J-32PDB

SERGEANT RICE, et al.,

Defendants.

______________________________

ORDER

I. Status

Plaintiff, an inmate of the Florida penal system, initiated this case by

filing a civil rights Complaint, see Doc. 1 (Complaint), against five Defendants:

Sergeant Rice, Sergeant Fowler, Captain Hall, L. Thompson, and Officer

Williams. He raises claims of excessive force, unconstitutional conditions of

confinement, due process violations, and failure to respond to grievances. See

generally Doc. 1.

According to Plaintiff, on August 3, 2018, while housed in the c-wing of

Florida State Prison, Plaintiff asked Defendant Fowler if he could be moved to

another cell, because his toilet was not working. Id. at 7. According to Plaintiff,

Defendant Fowler replied, “No, now get off my door.” Id. Plaintiff explains that

a few hours later Defendants Hall and Fowler asked Plaintiff why he was

yelling, to which Plaintiff responded that he was not yelling, but just needed

someone to fix his toilet. Id. Plaintiff states that Defendants Fowler and Hall

advised that Plaintiff’s toilet was not their problem, and after conferring in

private, Defendant Hall turned to Plaintiff and stated, “This is what we’re going

to do. I’m going to gas you three times and if I come back down here, we’re

coming in to handle you.”

According to Plaintiff, a half-hour later, Defendants Fowler and Hall

came back to Plaintiff’s cell and sprayed Plaintiff three times with chemical

agents. Id. at 5, 7. They then placed Plaintiff in a decontamination shower.

While showering, “Defendants took all of Plaintiff’s property, bed, blankets[,]

and sheets.” Id. at 7. Defendants Fowler and Hall then took Plaintiff back to his

cell; however, “there was chemical agents and water all over the floor and wall.

Defendants wrote ‘F**k Boy’ with State toothpaste on the wall. Defendants told

Plaintiff to remember this next time he yell[ed] at the officers.” Id. at 7. Plaintiff

argues that Defendants Fowler and Hall violated his Eighth Amendment rights

by using excessive force on Plaintiff. He also argues that by returning Plaintiff

to a contaminated cell and leaving him for over eight hours, Defendants Hall

and Fowler subjected him to unconstitutional conditions of confinement. Id. at

5. Plaintiff states that Defendants Fowler and Hall’s actions caused him pain,

suffering, physical injury, and emotional distress. Id. at 5.

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Eight hours after being returned to his contaminated cell, during shift

change, Plaintiff informed Defendants Rice and Williams that his toilet was

broken and that there were chemical agents all over his cell. Id. at 8. Plaintiff

asked if he could be moved to another cell, “because his feet, eyes, and upper

torso were burning and . . . driving him crazy.” Id. Defendants Rice and

Williams responded that they did not care and that he needed to “get off the

door before [they] finish what the other shift started.” Id. He states that two

hours later, “Plaintiff could not take it [any] more and told Defendant Williams

he ha[d] a Psych emergency.” Id. Defendants then moved Plaintiff to b-wing. Id.

According to Plaintiff, Defendants Williams and Rice violated his Eighth

Amendment rights by failing to remove Plaintiff from a cell that was

contaminated with chemical agents and had a broken toilet. Plaintiff argues

that Defendants Williams and Rice’s actions caused him pain, suffering,

physical injury, and emotional distress. Id. at 5.

Plaintiff alleges that Defendants Rice, Williams, and Fowler then

submitted three false disciplinary reports for destruction of state property,

tampering with a security device, and disobeying a verbal order. Id. at 5, 8. He

claims that he was never served with the reports. Id. at 8. According to Plaintiff

on August 10, 2018, Defendants had a disciplinary hearing, but Plaintiff was

not allowed to attend the disciplinary hearing or call witnesses. Id. at 8. After

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being found guilty, and as a result of the disciplinary action, prison officials

charged Plaintiff $1,031.20 to repair the broken toilet. Id. at 5. Plaintiff argues

that Defendants Rice, Fowler, and Williams’ actions violated Plaintiff’s due

process rights. Id. at 5

According to Plaintiff, he then filed grievances appealing the disciplinary

action and the use of excessive force. However, Plaintiff argues that Defendant

Thompson did not respond to the grievances, violating Plaintiff’s First

Amendment rights. Id. at 6.

As relief, Plaintiff seeks a preliminary and permanent injunction ordering

Defendants to cease their abuse toward Plaintiff; compensatory damages in the

amount of $50,000.00 against each Defendant; punitive damages in the amount

of $500,000.00 against each Defendant; reimbursement for the $9,000.00 worth

of stolen/lost/missing property; and any additional amount the Court deems just

and proper. Id. at 9.

Before the Court is Defendants’ Motion to Dismiss. See Doc. 16 (Motion).

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

exhaust his administrative remedies; (2) he fails to state conditions of

confinement claims; (3) he fails to state a claim for failure to protect; (4)

Defendants cannot be liable for disciplinary reports; (5) Defendant Thompson

is not liable for denying grievances; (6) Plaintiff has failed to allege facts

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demonstrating physical injury; and (7) Defendants are immune from suit in

their official capacity for monetary damages. See generally Doc. 16.

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. See Doc. 8. Plaintiff filed a Response to the Motion, arguing that

the Motion should be denied in part and granted in part. See Doc. 17 (Response).

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 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)

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(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

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 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

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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.

In Ross v. Blake, the Supreme Court instructed that “[c]ourts 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.’” 136 S. Ct. 1850, 1862 (2016). For an administrative remedy to be

available, the “remedy must be ‘capable of use for the accomplishment of [its]

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purpose.’” Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008) (quoting

Goebert v. Lee Cty., 510 F.3d 1312, 1322-23 (11th Cir. 2007)). In Ross, the Court

identified three circumstances in which an administrative remedy would be

considered “not available.” Ross, 136 S. Ct. at 1859. First, “an administrative

procedure is unavailable when (despite what regulations or guidance materials

may promise) it operates as a simple dead end—with officers unable or

consistently unwilling to provide any relief to aggrieved inmates.” Id. Next, “an

administrative scheme might be so opaque that it becomes, practically

speaking, incapable of use.” Id. Finally, a remedy may be unavailable “when

prison administrators thwart inmates from taking advantage of a grievance

process through machination, misrepresentation, or intimidation.” Id. at 1860.

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 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

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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 sequential grievance

process for exhausting administrative remedies: (1) informal grievance; (2)

formal grievance; and then (3) administrative appeal. To initiate the grievance

process, an inmate must file an informal grievance within 20 days of “when the

incident or action being grieved occurred” by completing Form DC6-236, Inmate

Request. Fla. Admin. Code § 33-103.011(1)(a). The responsible staff member

must complete a written response to the informal grievance within 10 calendar

days of receiving it. Id. § 33-103.011(3)(a). If the inmate is dissatisfied with the

response, or if time expires for the official to respond to the informal grievance,

then the inmate may file a formal grievance within 15 days of receiving the

unsatisfactory response or from the expiration of the time to respond, see id. §§

33-103.011(1)(b), 33-103.011(4).3. Formal grievances must be addressed to the

warden, assistant warden, or deputy warden using Form DC1-303, Request for

Administrative Remedy or Appeal. Id. § 33-103.006(1). The institutional

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grievance coordinator must log all formal grievances and provide inmates with

receipts. Id. § 33-103.006(2)(h). Within 20 calendar days of receiving the formal

grievance, the reviewing authority must complete an investigation and provide

the inmate a written response. Id. §§ 33-103.006(6), 33-103.011(3)(b).

If the formal grievance process does not resolve the inmate’s complaint,

or if time expires for the reviewing authority to respond, the inmate may

proceed to the third and final step: filing an appeal to the Office of the Secretary.

See id. §§ 33-103.007(1), 33-103.011(4). The inmate has 15 days to file an appeal

(running from receipt of the response to the formal grievance or expiration of

the time to respond), again using Form DC1-303, Request for Administrative

Remedy or Appeal. The appeal is sent to the Bureau of Policy Management and

Inmate Appeals, id. § 33-103.007(3), which must log all appeals and forward

receipts to the inmates, id. § 33-103.007(4)(b). The Secretary must respond to

the grievance appeal within 30 calendar days of receiving it. Id. § 33-

103.011(3)(c). Once a Florida prisoner has completed this three-step process, he

is considered to have exhausted his administrative remedies. See Chandler v.

Crosby, 379 F.3d 1278, 1288 (11th Cir. 2004).

Here, Defendants argue that Plaintiff failed to properly exhaust his

allegations regarding Defendant Fowler and Defendant Hall’s use of excessive

force (spraying Plaintiff with chemical agents for no reason) and their deliberate

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indifference to prison conditions (return of Plaintiff to a cell that had not been

cleaned of the chemical agents).1 Doc. 16 at 5-10. In support of their argument,

Defendants aver that the grievances Plaintiff submitted to the FDOC regarding

the August 3, 2018, incident did not contain any statements regarding these

claims against Defendants Hall and Fowler. They appear to argue that Plaintiff

only submitted two grievances regarding the August 3, 2018, events, and attach

copies of those grievances as exhibits to their Motion. See Docs. 16-2; 16-3.

A review of these exhibits shows that on August 27, 2018, Plaintiff filed

a grievance with the Secretary that reads as follows:

On 8-3-18 I was place[d] on property restriction

and place[d] in cell #C1103. I explain[ed] to Sgt. Rice

that my toilet won’t flush. He stated I should never

[have] broke it with I replied I never broke the toilet

and I could never break it if I tried. I’m on strip bare

foot with just boxer’s on. I asked to be moved and Sgt.

Rice moved me to another cell he wrote me a DR for

destruction of state property. He never said how I broke

it or anything. They have charge me 1,026 dollars and

took 165 dollar out my inmate trust now I have no

money for something I didn’t do. I wrote it up to the

warden with no response. I would like for you to please

look into this matter and refund my money back to my

inmate account please.

1 At the outset of their exhaustion argument, Defendants argue “Plaintiff

failed to properly avail himself of the grievance process with regard to all of his

claims.” Doc. 16 at 5 (emphasis added). However, the substance of their

argument is clearly focused on Plaintiff’s alleged failure to exhaust his claims

of excessive force and being returned to a contaminated cell – the allegations

involving Defendants Fowler and Hall. Doc. 16 at 10.

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I[t] has also been over 15 days since I wrote the

warden with no response. I don’t think th[ey’re] turning

all my inmate grievances in. please help.

Doc. 16-2 at 2 (#18-6-37859). The Secretary returned the grievance on

September 14, 2018, explaining 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 required by rule or the

reason you provided for by-passing that level of the

grievance procedure is not acceptable.

Our records do not reflect that a formal grievance

was received from you.

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.16-2 at 1. The second attached grievance is one that Plaintiff sent to the

Secretary on October 15, 2018, that reads as follows:

As per 33-103.011(4). The time frame has passed

for the institution to file a response to my formal

grievance. That action allows me to proceed to the next

level.

Appealing Disciplinary Action

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I’ve filed a grievance with the Institution with no

response so I wrote secretary of DOC what else could I

do they are throwing gri[evances] away at fsp.

On 8-3-18 I was place[d] in the cell in c1103 and

hour later they gas me and wrote me DR for

d[e]struction of state property. And took 165 dollars out

my account. I never broke anything and I could not

break a toilet if I wanted to. I’ve wrote several

griev[ances] and only one was respond[ed] [to] on 10-5-

18. I did file in compli[ance] with chap[t]er 33-103 what

was I s[u]ppos[ed] to do if the[y’re] not answering my

grievance. I’ve been gas[sed] and place[d] on cell strip

what can I do and they are taking all my money my

family send[s] me for a toilet I did not break can you

please help me and look into this matter because I

never bypass[ed] the grievance procedure the[y’re] not

responding to my grievance and they have no pro[o]f

that I broke a toilet on 8-3-18. Please look into this

matter.

Doc.16-3 at 2 (#18-6-44232). The Secretary returned the second grievance,

advising Plaintiff of the following:

Your request to 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 required by rule or the

reason you provided for by-passing that level of the

grievance procedure is not acceptable.

Our records do not reflect that a formal grievance

was received from you. Contact has been previously

made with institution grievance staff regarding

allegations that they are disposing of grievances

without processing and they denied the allegation.

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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.

Docs. 1-1 at 5; 16-3 at 1.2

In Response, Plaintiff appears to argue that he exhausted his

administrative remedies as to these claims by filing other grievances that have

not been provided to the Court. Doc. 17 at 5-6. He further avers that to the

extent he did not complete the three-step grievance process, he was not

obligated to do so because such remedies were unavailable. Id. According to

Plaintiff, his exhaustion efforts were as follows:

[Plaintiff] initiated the grievance process against

Capt. Hall and Sgt. Fowler on August 12, 2018. After

receiving no response to that informal grievance within

the appropriate time frame, Plaintiff proceeded to the

next level on September 4, 2018 by filing a formal

grievance at the institutional level and central office.

After receiving no response to either of those

grievances[,] Plaintiff knew that his grievances [were]

thrown away which has remained an on-going problem

at Florida State Prison for the past two years. Then

[Plaintiff] initiated this suit.

2 Defendants also attach a copy of Plaintiff’s search results for his

grievance appeals records, see Doc. 16-1, and a duplicate copy of Plaintiff’s

August 27, 2018, grievance (#18-6-37859) and the FDOC’s response, see Doc.

16-3.

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Doc. 17 at 5-6. In support of his exhaustion allegations, Plaintiff provides the

Court with copies of the above-referenced grievances filed with the Secretary on

August 27, 2018 (#18-6-37859), and October 15, 2018 (#18-6-44232); and the

Secretary’s responses thereto. See Doc. 1-1.

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

dismissal of these claims for lack of exhaustion is not warranted at the first step

of Turner. See Jackson v. Griffin, 762 F. App’x 744, 746 (11th Cir. 2019) (holding

disputes about availability of administrative remedies are question of fact that

can bar dismissal at Turner’s first step). Thus, the Court proceeds to the second

step of the two-part process where the Court considers Defendants’ arguments

regarding exhaustion and makes findings of fact.

The first issue in dispute is whether Plaintiff completed the three-step

grievance process regarding his claims of excessive force (spraying with

chemical agents) and conditions of confinement (return of Plaintiff to a cell that

had not been cleaned of chemical agents). Plaintiff alleges that he filed an

informal grievance and a formal grievance. Doc. 17 at 5. For purposes of this

analysis, the Court liberally construes Plaintiff’s statement that he also filed a

grievance at the “central office,” see id., to be an assertion that he filed an

appeal, as well. However, the evidentiary materials demonstrate that Plaintiff

did not file an appeal regarding these claims.

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Defendants provide a log of all grievance appeals Plaintiff has filed with

the FDOC. See Doc. 16-1. The only appeals received by the Secretary after the

August 3, 2018, incident are the two previously-referenced grievances that

Plaintiff submitted on August 27, 2018 (#18-6-37859), and October 15, 2018

(#18-6-44232). Id. at 2. The August 27, 2018, grievance contains no claim of

excessive force or being returned to a contaminated cell, see Doc. 16-2 at 2; and

while the October 15, 2018, grievance states “they gas[sed] me,” it does not

allude to an excessive use of force or being returned to a cell contaminated with

chemical agents, see Doc. 16-3. Regardless, even if these grievances contained

those claims, neither appeal could be used to satisfy the final step of the process

as they were both returned to Plaintiff for noncompliance with rule 33-103.006.

See Docs. 16-2; 16-3. As such, the Court finds that Defendants have met their

burden in demonstrating that Plaintiff did not complete the three-step

grievance process regarding the following claims: excessive force (spraying with

chemical agents) and conditions of confinement (return of Plaintiff to a cell that

had not been cleaned of chemical agents).

The second issue in dispute is whether the grievance process was

unavailable to Plaintiff, relieving him of any obligation to complete the three-

step procedure. Plaintiff advances two arguments in support of unavailability.

First, he claims that the FDOC’s failure to respond to his grievances prevented

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him from completing the grievance process. However, the FDOC’s failure to

respond to a grievance does not render the process unavailable. Indeed, even

assuming the FDOC failed to respond to Plaintiff’s informal and formal

grievances, “the grievance procedure provides that he could have ‘proceed[ed]

to the next step of the grievance process’ – administrative appeal – after the

expiration of the 20 days.” Pavao v. Sims, 679 F. App’x 819, 826 (11th Cir. 2017)

(quoting Fla. Admin. Code § 33-103.011(3), (4)). “Because [Plaintiff] could have

proceeded by filing an administrative appeal, the PLRA still requires him to file

an appeal notwithstanding the prison’s lack of response.” Pavao, 679 F. App’x

at 826 (citing Turner, 541 F.3d at 1084, for the proposition that “a prison’s

failure to respond to a formal grievance did not relieve the prisoner of his

obligation to file an appeal when the grievance procedure provided that

prisoners could file an appeal if they did not receive a response to a formal

grievance within 30 days.”).

Second, Plaintiff argues that his administrative remedies were

unavailable, because “after receiving no response to either of [his] grievances,

Plaintiff knew that his grievances [were] thrown away[,] which has remained

an on-going problem at Florida State Prison . . . .” Doc. 17 at 5-6. However,

Plaintiff’s assumption that his grievances were being destroyed did not amount

to the type of intimidation that would render a grievance process unavailable.

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Indeed, the evidence submitted by both parties shows that, during the

timeframe in which he should have filed an appeal,3 Plaintiff filed the August

27, 2018, grievance (#18-6-37859) with the Secretary, see Doc. 16-2 at 2;

received the September 14, 2018, response from the Secretary, see id. at 1;

submitted a second grievance to the Secretary on October 15, 2018 (#18-6-

44232), see Doc. 16-3 at 2; and received a second response from the Secretary

on October 24, 2018, see id. at 1. Because Plaintiff was actively availing himself

of the grievance procedure, especially with the Secretary, during the relevant

timeframe, the Court finds that Plaintiff was not deterred or thwarted from

pursuing his administrative remedies.

Accordingly, the Court finds that neither Plaintiff’s allegations nor the

evidentiary materials in the record indicate that the administrative remedies

were unavailable to Plaintiff. As such, the Court concludes that the Defendants’

Motion is due to be granted to the extent that Plaintiff has failed to exhaust his

administrative remedies regarding his claims of excessive force (spraying with

chemical agents) and conditions of confinement (return of Plaintiff to a cell that

had not been cleaned of chemical agents) against Defendants Hall and Fowler.

3 Assuming Plaintiff submitted his formal grievance on September 4,

2018, the FDOC would have had until September 24, 2018 to file a response.

Once receiving no response, Plaintiff would have been able to file an appeal any

time between September 24, 2019, and October 9, 2018.

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B. Failure to State a Claim for Relief

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1)

the defendant deprived him of a right secured under the United States

Constitution or federal law, and (2) such deprivation occurred under color of

state law. Salvato v. Miley, 790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v.

Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);

Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam)

(citations omitted). Additionally, the Eleventh Circuit requires “‘an affirmative

causal connection between the official’s acts or omissions and the alleged

constitutional deprivation’ in § 1983 cases.” Rodriguez v. Sec’y, Dep’t of Corr.,

508 F.3d 611, 625 (11th Cir. 2007) (quoting Zatler v. Wainwright, 802 F.2d 397,

401 (11th Cir. 1986) ). In the absence of a federal constitutional deprivation or

violation of a federal right attributable to a defendant, a plaintiff cannot sustain

a cause of action against the defendant.

i. Eighth Amendment Conditions of Confinement

To state a claim that his conditions of confinement violated the Eighth

Amendment, a prisoner must allege the prison official was deliberately

indifferent to conditions that were “sufficiently serious.” Chandler v. Crosby,

379 F.3d 1278, 1288 (11th Cir. 2004) (“The ‘cruel and unusual punishments’

standard applies to the conditions of a prisoner’s confinement.”). Conditions of

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confinement are sufficiently serious under the Eighth Amendment only if they

are so extreme that they expose the prisoner to “an unreasonable risk of serious

damage to his future health or safety.” Id. at 1289. Allegations of merely harsh

conditions do not state a claim under the Eighth Amendment. Id.

Defendants argue that Plaintiff fails to state an Eighth Amendment claim

regarding the conditions of his confinement as to Defendants Fowler, Hall, Rice,

and Williams. Doc. 16 at 10-14. They maintain that Plaintiff’s allegations that

he remained in a cell for eight hours with no working toilet and chemical agents

on the walls do not present the type of extreme conditions that pose an

unreasonable risk of serious damage to his health or safety. Id. at 13.

Defendants further argue that Plaintiff’s August 27, 2018, grievance (#16-6-

37859), that Plaintiff attaches to his Complaint, demonstrates that when

Plaintiff asked to be moved to another cell, Defendant Rice promptly moved

him. Id. at 13-14.

In his Response, Plaintiff states the following:

The Defendants’ argument is that Plaintiff has

not stated a claim against Defendants Rice and

Williams, which is true. However, the Defendants’

[have] failed to mention or dispute within its Motion to

Dismiss that Defendant Hall and Fowler[] did not

violate Plaintiff’s Eighth Amendment right . . . when

they conspired to use [chemical agents] against

Plaintiff without a legitimate reason other than to

cause pain and for punishment.

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. . .

Thus, Plaintiff has stated an 8th Amendment

claim against Defendants Hall and Fowler[] and shall

proceed forth on such claim and dismiss Defendants

Rice and Williams.

Doc. 17 at 7-8.

As explained supra, the Court dismisses the claims of unconstitutional

conditions of confinement (return of Plaintiff to a cell that had not been cleaned

of chemical agents) and excessive force (spraying with chemical agents) against

Defendants Hall and Fowler, because Plaintiff failed to properly exhaust his

administrative remedies as to those claims. Thus, the only conditions of

confinement claims left for the Court to consider are those against Defendants

Rice and Williams (failing to remove Plaintiff from a cell that was contaminated

with chemical agents and had a broken toilet). However, Plaintiff now argues

that he does not state a claim for relief against Defendants Rice and Williams

and seeks to dismiss them from this suit. The Court heeds Plaintiff’s request.

ii. Failure to Protect

Defendants argue that Plaintiff has failed to state a claim for failure to

protect against Defendants Rice and Williams. Doc. 16 at 14-15. Plaintiff did

not respond to this argument. See generally Doc. 17. However, the Complaint

does not contain a failure to protect claim. Further, in his Response, Plaintiff

admits that he does not assert a claim against Defendants Rice and Williams,

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and requests that they be dismissed from this action. Id. at 8. Thus, the Court

declines to consider this issue.

iii. Due Process Violation – Disciplinary Reports

To adequately plead lack of due process at a disciplinary hearing, a

plaintiff must assert that: (1) he had a liberty or property interest at stake; and

(2) that the procedures he was afforded were constitutionally deficient. Rowe v.

DeBruyn, 17 F.3d 1047, 1053 (7th Cir.1994). A liberty interest may arise if, as

a consequence of the disciplinary finding, a prisoner’s term of incarceration is

increased, as in the loss of good time credit, or where he is subjected to “atypical

and significant hardship . . . in relation to the ordinary incidents of prison life.”

Sandin v. Connor, 515 U.S. 472, 484 (1995); Allen v. Sec’y Fla. Dep’t of Corr.,

578 F. App’x 836, 839 (11th Cir. 2014). As to a property interest, the Supreme

Court has held that “an unauthorized intentional deprivation of property by a

state employee does not constitute a violation of the procedural requirements of

the Due Process Clause of the Fourteenth Amendment if a meaningful post-

deprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517,

533 (1984). When a prisoner’s due process rights are triggered, he is entitled to,

among other things, an opportunity to call witnesses and present documentary

evidence at a disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539 (1974).

Here, Defendants argue that Plaintiff has failed to allege a due process

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violation against Defendants Rice, Fowler, and Williams, because he does not

claim that the disciplinary hearing affected the length of his sentence or

resulted in an “atypical and significant hardship.” Doc. 16 at 16-18. They

further allege that Plaintiff does not allege a property interest, because the

state of Florida provides him with an adequate post-deprivation remedy. Id. at

17. Plaintiff did not respond to this argument. See generally Doc. 17.

The Court agrees that Plaintiff has not alleged a deprivation of a

constitutionally protected liberty or property interest. Although Plaintiff

alleges that this disciplinary hearing resulted in the loss of $1,031.20 from his

prison account, the basis of Plaintiff’s property interest in that money comes

from statutes, regulations, ordinances, and contracts, not the Constitution. See

Key West Harbour v. City of Key West, 987 F.2d 723, 727 (11th Cir. 1993)

(holding that “state law defines the parameters of a plaintiff’s property interest

for purposes of § 1983,” and “[u]nder Florida law, a statute, ordinance, contract,

policies, and practices . . . may create a property interest”). Plaintiff has an

available and adequate post-deprivation remedy under state law. “Under

Florida law, [a plaintiff] can sue the officers for the conversion of his personal

property.” Jackson v. Hill, 569 F. App’x 697, 698 (11th Cir. 2014) (citing Case v.

Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009)). As such, Plaintiff has failed to

state a valid procedural due process claim. Further, the Court need not consider

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whether the failure to call Plaintiff’s witnesses denied him due process, as the

Court has already found that Plaintiff did not have a protected interest at stake.

Plaintiff’s due process claim is dismissed.

iv. Failure to Respond to Grievances

Defendants argue that Plaintiff’s First Amendment claim against

Defendant Thompson should be dismissed because Plaintiff has no

constitutionally protected liberty interest in a prison grievance procedure. Doc.

16 at 18-19. Plaintiff did not respond to this argument. See generally Doc. 17.

Defendants are correct that a prisoner has no constitutionally protected

interest in an inmate grievance procedure. Thomas v. Warner, 237 F. App’x 435,

437-38 (11th Cir. 2007) (“We agree with other circuits that have decided that a

prisoner does not have a constitutionally-protected liberty interest in an inmate

grievance procedure.”); Dunn v. Martin, 178 F. App’x. 876, 878 (11th Cir. 2006)

(holding that a state prisoner, who alleged that prison officials failed to respond

to his grievance and failed to follow their own rules on responding to grievances,

did not have a constitutionally protected liberty interest in an inmate grievance

procedure). Accordingly, Plaintiff has failed to state a First Amendment Claim

against Defendant Thompson, and thus, this claim is due to be dismissed.

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IV. Conclusion

Defendants’ Motion is due to be granted as to Plaintiff's excessive force

and conditions of confinement claims against Defendants Hall and Fowler; the

conditions of confinement claims as to Defendants Rice and Williams; the due

process claims against Defendants Rice, Williams, and Fowler; and the First

Amendment claim against Defendant Thompson. Given these findings, the

Court declines to address Defendants’ remaining arguments. In sum, all claims

and all Defendants are dismissed.

Accordingly, it is

ORDERED AND ADJUDGED:

1. Defendants’ Motion to Dismiss (Doc. 16) is GRANTED to the

extent described herein.

2. Plaintiff's Complaint (Doc. □□ □□ DISMISSED without prejudice.

3. The Clerk shall enter judgment dismissing this case without

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 26th day of

February, 2020.

TIMOTHY J. CORRIGAN

United States District Judge

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Jax-7

C: Ronald Greene, #C02017

Counsel of Record

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