Sanders v. Doe

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANTHONY C. SANDERS,

Plaintiff,

v. Case No. 3:19-cv-1029-J-39MCR

JUSTIN B. WALKER, et al.,

Defendants.

_______________________________

ORDER

I. Status

Plaintiff, Anthony C. Sanders, an inmate of the Florida

Department of Corrections (FDOC), is proceeding on a civil rights

complaint (Doc. 1; Compl.) against three corrections officers.

Plaintiff alleges Defendants failed to protect him from an inmate

attack that occurred on July 8, 2018, at Hamilton Correctional

Institution. See Compl. at 5. He seeks nominal, compensatory, and

punitive damages. Id. at 7.

Before the Court are Defendants’ motions to dismiss (Docs.

47, 52). Plaintiff has responded to the motions (Docs. 51, 53).

II. Complaint Allegations

Plaintiff alleges he was “viciously attacked [at 1:00 a.m.]

by another inmate who was highly impaired on K-2 spice and molly”

and had been “randomly attacking other inmates.” See Compl. at 5.

Plaintiff alleges Defendants Mitchell and Latson “watched the

entire incident from the officer’s station,” and did not attempt

to intervene for at least 4.5 minutes. Id.

The inmate-aggressor hit Plaintiff with a lock and stabbed

him with a piece of metal. Id. at 6. After the attack, Plaintiff

armed himself with a lock in his canteen bag, though he never had

to use it. Id. at 5. Plaintiff was later disciplined for possessing

a weapon. Id. at 6. Plaintiff alleges Defendants failed to protect

him, in violation of the Eighth Amendment, and further asserts

Defendant Mitchell violated his due process rights by falsifying

a disciplinary report and “withholding favorable evidence.” Id. at

6-7.

Unlike his allegations against Defendants Latson and

Mitchell, Plaintiff does not allege Defendant Walker also watched

the attack from the officers’ station; rather, it appears Plaintiff

names Defendant Walker in his role as a supervisor or a potential

witness. Id. at 6. For instance, Plaintiff alleges Defendant

Walker, as the officer in charge, was advised of the incident

shortly after it occurred, and Defendant Walker told Plaintiff he

reviewed the video feed, which showed the inmate-aggressor

“walking laps with his weapons out in plain view” while Plaintiff

was sleeping. Id. Plaintiff contends, “This whole incident could

have been prevented had staff on duty . . . observed the inmate

walking laps around the sleeping area with both of his weapons

clearly visible and took preventative measures to ensure my

safety.” Id.

III. Defendant Latson’s Motion

Defendant Latson seeks dismissal of Plaintiff’s complaint for

Plaintiff’s failure to exhaust administrative remedies and failure

to state a claim (Doc. 47; Latson Motion). See Latson Motion at 2.

Additionally, Defendant Latson invokes qualified and Eleventh

Amendment immunities and asserts Plaintiff is not entitled to

punitive damages. Id. at 11-12. Because an exhaustion defense is

a matter in abatement, the Court addresses it first.

The PLRA provides, “[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).

While “the PLRA exhaustion requirement is not jurisdictional[,]”

Woodford v. Ngo, 548 U.S. 81, 101 (2006), “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). Nevertheless, prisoners are not required to

“specially plead or demonstrate exhaustion in their complaints.”

See Jones, 549 U.S. at 216.

Not only is there a recognized exhaustion requirement, “the

PLRA . . . requires proper exhaustion” as set forth in applicable

administrative rules and policies. Woodford, 548 U.S. at 93. As

such, “[p]roper exhaustion demands compliance with an agency’s

deadlines and other critical procedural rules[.]” Id. Generally,

to properly exhaust administrative remedies, a Florida prisoner

must complete a three-step process as fully set forth in the

Florida Administrative Code (FAC). See Fla. Admin. Code r. 33-

103.001 through 33-103.018. First, a prisoner must file an informal

grievance. See Fla. Admin. Code r. 33-103.005. If the informal

grievance is denied, the prisoner must file a formal grievance at

the institution level. See Fla. Admin. Code r. 33-103.006. Finally,

if the formal grievance is denied, the prisoner must appeal to the

Office of the Secretary of the FDOC. See Fla. Admin. Code r. 33-

103.007.

When confronted with an exhaustion defense, courts in the

Eleventh Circuit 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) (citing Turner v.

Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008)).

Defendant Latson maintains Plaintiff did not properly exhaust

his administrative remedies because he filed only one grievance—a

formal grievance to the Warden, dated July 18, 2018. See Latson

Motion at 6. A review of the grievance (Doc. 47-1; Latson Ex.)

shows Plaintiff reported officers were negligent for failing to

protect him from an inmate’s attack on July 8, 2018, causing him

mental anguish and resulting in disciplinary confinement for 60

days. See Latson Ex. at 2.

Plaintiff’s grievance was returned to him because he failed

to comply with the FAC by writing in the margins and failing to

first file an informal grievance or explain why he bypassed that

step. Id. at 1. As to the latter deficiency, the grievance

responder informed Plaintiff, “The rule requires that you first

submit an informal grievance at the appropriate level at the

institution. You have not done so or you have not provided this

office with a copy of the informal grievance, nor have you provided

a valid or acceptable reason for not following the rules.” Id.

Plaintiff was told he could re-submit his grievance if “within the

allowable time frames for processing a grievance.” Id.

Defendant Latson asserts Plaintiff did not re-submit his

grievance, which means he did not satisfy the three-step grievance

process under the FAC. See Latson Motion at 6. In response (Doc.

51; Pl. Resp.), Plaintiff does not dispute this assertion. See Pl.

Resp. at 7. In fact, Plaintiff concedes his formal grievance was

returned without action, but he seeks to be excused from the

exhaustion requirement, contending he was “hindered in the

grievance process by Corrections Officers that would not provide

him with the correct form.” Id. (emphasis in original). Plaintiff

asserts that he attempted to comply with the rules by submitting

a formal grievance form and noting on the form he intended that it

be considered an informal grievance.1

Dismissal is not warranted under the first step of the Turner

analysis because Plaintiff claims the grievance process was

unavailable to him—an assertion the Court must credit at this step.

See Turner, 541 F.3d at 1082. Accordingly, the Court turns to the

second step, which does not require the Court to accept as true

Plaintiff’s assertion. Instead, the Court is required to “make

findings on the disputed issues of fact.” Id. at 1082-83. See also

Bryant, 530 F.3d at 1376 (holding district courts must act as

factfinders when ruling on matters in abatement, such as

exhaustion).

Upon review, the Court finds Plaintiff’s contention that

“Corrections Officers would not provide him with the correct form”

is not only vague and conclusory but not credible. Importantly,

Plaintiff does not provide any factual detail to support his self-

1 Plaintiff wrote in the top margin of the form he submitted,

“informal grievance, security.” See Latson Ex. at 2. He did not

say why he was submitting an informal grievance using a formal

grievance form.

serving assertion. For instance, Plaintiff does not explain the

steps he took to obtain an informal grievance form, such as who he

asked, how many times he asked, or whether he took other measures

to obtain the form.2 See Pl. Resp. at 7.

Additionally, Plaintiff’s assertion lacks credibility in part

because he obviously was able to obtain a grievance form, albeit

not the one he claims to have requested or needed. If Plaintiff

was able to access a grievance form, it undercuts his contention

that officers were attempting to hinder or thwart his access to

the grievance process. After all, prisoners may initiate the

grievance process using a formal grievance under some

circumstances. See Fla. Admin. Code r. 3-103.005(1) (“Inmates may

skip [the informal grievance] step and initiate the process at the

formal institutional level for issues [as enumerated in this

section].”)

Plaintiff’s assertion is further undercut by his failure to

expressly mention in his formal grievance why he did not first

submit an informal grievance. See Latson Ex. at 1, 2. Even more

telling, Plaintiff offers no evidence showing he tried to cure his

error by re-submitting his grievance using the proper form or

2 Under the FAC, prisoners have multiple avenues available to

them to obtain grievance forms: “[Grievance forms] shall be

available as [sic] a minimum from the institutional library,

classification department, classification staff, and the housing

officer of any living unit or confinement unit.” See Fla. Admin.

Code r. 33-103.015(2).

requesting an extension of time to do so. The FAC provides, “An

extension of the . . . time periods shall be granted when it is

clearly demonstrated by the inmate . . . that it was not feasible

to file the grievance within the relevant time periods and that

the inmate made a good faith effort to file in a timely manner.”

See Fla. Admin. Code r. 33-103.011(2). If Plaintiff was denied the

form he needed to comply with the rules, he could have sought an

extension until such time as he was able to obtain that form. He

did not do so.

Finally, it is implausible that officers would have refused

Plaintiff’s request for an informal grievance form given the nature

of his complaint—that a few unnamed officers were negligent in

their duties—and given employees are subject to disciplinary

action for “obstructing an inmate’s access to the grievance

process.” See Fla. Admin. Code r. 33-103.017(1). However, even

accepting that some officers refused to give Plaintiff an informal

grievance form, Plaintiff does not explain why he could not have

obtained the form through other means, why he did not disclose in

his formal grievance that officers would not give him the form he

needed, or why he did not seek an extension of time to file a

proper grievance in compliance with the rules.3

3 Notably, the grievance response indicates Plaintiff was

previously warned at least twice about his failure to follow the

grievance-filing rules, suggesting a pattern of non-compliance:

“Records indicate [Plaintiff’s] issue of writing outside the

For the above reasons, Plaintiff’s self-serving, conclusory

assertion that the grievance process was unavailable to him fails

to save his claim from the mandatory exhaustion requirement. See,

e.g., Bryant, 530 F.3d at 1377 (finding no clear error in the

district court’s conclusion that the plaintiff had access to

grievance forms despite his assertion to the contrary). As such,

Plaintiff’s complaint is subject to dismissal.4

Accordingly, it is now

ORDERED:

1. Defendant Latson’s motion to dismiss (Doc. 47) is

GRANTED to the extent Plaintiff’s complaint is dismissed without

prejudice for his failure to properly exhaust his administrative

remedies.

2. Defendants Walker and Mitchell’s motion to dismiss (Doc.

52) is DENIED as moot.

3. The Clerk is directed to enter judgment, terminate any

pending motions, and close the case.

boundaries of space provided was previously addressed” in response

to two other grievances. See Latson Ex. at 1.

4 Because the Court finds Plaintiff did not exhaust his

administrative remedies, the Court need not address Defendant

Latson’s remaining arguments or Defendants Walker and Mitchell’s

motion.

DONE AND ORDERED at Jacksonville, Florida, this 3rd day of

September 2020.

4 7 De

af J. DAVIS

United States District Judge

Jax-6

Cc:

Anthony C. Sanders

Counsel of Record

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