Bailey v. Warden

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JAMES BAILEY,

Plaintiff,

v.

Case No. 3:19-cv-720-J-34MCR

WARDEN ROBERT SMITH, JR.,

et al.,

Defendants.

ORDER

I. Status

Plaintiff James Bailey, an inmate of the Florida penal system, initiated this action

on June 13, 2019, under the mailbox rule, by filing a pro se Civil Rights Complaint

(Complaint; Doc. 1).1 In the Complaint, Bailey asserts claims pursuant to 42 U.S.C. §

1983 against seven John Doe Defendants. He states that Defendants violated his Eighth

Amendment right to be free from cruel and unusual punishment when they failed to protect

him from several inmates who assaulted him at the Reception and Medical Center (RMC).

As relief, he requests compensatory and punitive damages as well as injunctive and

declaratory relief. In compliance with the Court’s request, the Florida Department of

Corrections (FDOC) identified the Warden as Robert Smith, Jr.; the Assistant Warden as

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

Electronic Case Filing System.

Major Richard Lukens; the Colonel as Stanley Peterson; and the Sergeant as Steven

Potosky. See Notice to Court Regarding Service of Process for Defendants (Doc. 9) at 1.

However, the Department stated that it was unable to identify “Major Not Known,” and the

two “Not Known Does.” See id. at 1-2. Accordingly, the Court dismissed all claims against

Defendants “Major Not Known” and the two “Not Known Does” on January 10, 2020. See

Order (Doc. 14); Complaint at 3, 12.

This matter is before the Court on Defendants Lukens, Smith, Peterson, and

Potosky’s Motion to Dismiss (Motion; Doc. 21). The Court advised Bailey that granting a

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

litigation on the matter and gave him an opportunity to respond. See Order (Doc. 13).

Bailey filed a response in opposition to the Motion. See Response (Doc. 22). Thus,

Defendants’ Motion is ripe for review.

II. Plaintiff’s Allegations2

Bailey contends that he was exposed to a known risk of danger when the April 18,

2018 night shift or April 19, 2018 day shift I-block sergeant and officers allowed his

assailants to enter the wing to rob him. See Complaint at 15. He also asserts that they

failed to protect him from the inmate attackers. See id. Additionally, he maintains that the

Warden, Assistant Warden, and Colonel ignored the history of widespread abuse and

2 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 & 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.

2

their officers’ misconduct. See id. As to the underlying facts, Bailey asserts that the FDOC

transferred him to RMC on or about April 11, 2018, for physical therapy on his back. See

id. at 5. He alleges that four inmates (who were not assigned to his wing) attacked him

as they tried to rob him on the morning of April 19, 2018. See id. at 5, 12-14. According

to Bailey, he tried to call for help, but one of the assailants told him that no one would

respond to his plea for assistance. See id. at 12. He states that the assailants called the

officers after the attack to unlock the door to wing two, so they could return to their

assigned wings. See id. He avers that he “cleaned himself” and “went through count.” Id.

at 12-13. After the count, he went to a dental call-out where one of the attackers told him

that “they would be coming back to finish what they started.” Id. at 13. According to Bailey,

the dentist would not work on him due to his injuries (a “severely displaced” nose and

“swollen and bruised” face), and he was referred to an ear, nose, and throat (ENT) doctor.

Id. Bailey asserts that he returned to his dormitory where he talked to other inmates about

what the assailant had said to him, and then decided to seek protective management

(PM) custody. See id. He states that he spoke to an unknown officer about “everything

that happened” and requested protection, but the officer mocked him and refused to give

him protection. Id.

Bailey alleges that, “[w]ith no other choice[,]” he went to the chow hall where he

asked a sergeant for protection. Id. According to Bailey, when the sergeant saw Bailey’s

face, he asked Bailey what happened, and after Bailey explained and asked for

protection, the sergeant granted his request. See id. Bailey asserts that the sergeant

escorted him to the medical clinic for a pre-confinement physical examination where his

3

injuries were evaluated and he was referred to an ENT again. See id. He states that a

captain questioned him and took photographs of his injuries, and he was placed in PM

custody. See id. Bailey maintains that the FDOC “rounded up” the four inmates who

attacked him and issued disciplinary reports. Id. at 13-14. According to Bailey, he saw

Florida Representative Kimberly Daniels (a member of the Florida House of

Representatives, District 14) at RMC, as she questioned inmates about the abuse at

RMC, but he never talked to her because “he was unaware of the officers[’] invol[ve]ment”

at that time. Id. at 14.

Bailey states that he saw Dr. Fares, an ENT physician, on May 23, 2018, and Fares

performed a septorhinoplasty on June 28, 2018, “to relocate his nose to its proper place.”

Id. He maintains that his fractured cheek bone was “left alone in surgery.” Id. He alleges

that he had a follow-up appointment on July 18, 2018, after which the FDOC transferred

him back to Okaloosa Correctional Institution (OCI), his permanent housing location, on

July 27, 2018. See id.

About a month later, the FDOC again transferred Bailey to RMC, this time for a

magnetic resonance imaging (MRI). See id. While there, on September 11, 2018, Bailey

states that three inmates attacked him with knives in the west unit of D dormitory’s wing

one. See id. He states that the FDOC placed him in PM custody, “special reviewed” him,

and transferred him back to OCI on October 9, 2018. Id. According to Bailey, following

his return to OCI, inmate Michael Grier (FDOC #L72642), who had transferred with Bailey

to RMC on April 11, 2018, told Bailey that he saw the assailants asking the dormitory

sergeant for permission to go to Bailey’s wing to rob him, and the sergeant “let them.” Id.

4

at 14-15. Bailey maintains that when he “learned” about the sergeant’s involvement, he

initiated and exhausted his administrative remedies, and the FDOC responded that the

Inspector General’s Office would investigate the incident. Id. at 15.

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

of action will not do[.]” Twombly, 550 U.S. at 555 (internal quotations omitted); see also

5

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)3

(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).

IV. Summary of the Arguments

Defendants request dismissal of Bailey’s claims against them because Bailey

failed to exhaust his administrative remedies, as required by the Prison Litigation Reform

3 “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.”).

6

Act (PLRA), before filing the instant 42 U.S.C. § 1983 lawsuit. See Motion at 9-12. They

also argue that Bailey’s Complaint is a “shotgun pleading” that violates Federal Rule of

Civil Procedure 8(a)(2). Id. at 6-8. Next, they assert that the Eleventh Amendment bars

Bailey’s claims for monetary damages against them in their official capacities, see id. at

8-9, and that Bailey fails to state plausible Eighth Amendment claims against them, see

id. at 13-15. Additionally, they maintain that Bailey is not entitled to injunctive relief. See

id. at 15-16. In his Response, Bailey argues that he exhausted his administrative

remedies as soon as he discovered the sergeant’s involvement in the attack. See

Response at 2-3. Next, he states that Defendants are “partial[l]y correct” as to their

assertion that the Complaint is a shotgun pleading because he “was forced to be vague”

due to an inability to obtain FDOC reports that would reveal staff names. See id. at 1. He

also asserts that he states plausible Eighth Amendment claims against Defendants, and

that they are not entitled to Eleventh Amendment immunity. See id. at 2-3.

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 Bailey 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

7

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

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,[4] 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

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

8

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.[5] 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); 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 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,

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

9

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 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

10

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,

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. Bailey’s Exhaustion Efforts

Defendants maintain that Bailey failed to properly exhaust his administrative

remedies as to his Eighth Amendment claims against them before filing the instant § 1983

lawsuit. See Motion at 9-12. In support of their position, they submitted the relevant

grievances and responses. See Doc. 21-1 at 21-32. Bailey asserts that he submitted an

informal grievance on January 14, 2019, within twenty days of Grier telling him that he

had seen a sergeant allow the assailants to enter the wing to attack Bailey on April 19,

2018. See Response at 2-3. Bailey attached exhibits in support of his position. See Doc.

22-1 at 1-6.

The documents attached to Bailey’s Response and Defendants’ Motion reflect that

Bailey submitted the following grievances related to the April 19, 2018 incident and his

11

PM confinement at RMC. Bailey submitted an informal grievance at RMC on June 20,

2018, stating that he was in PM confinement against his will, was “not in fear” for his life,

and wanted to be released from confinement and returned to the compound. See Doc.

21-1 at 25. The FDOC denied the grievance on June 25, 2018, stating in pertinent part:

I have received, reviewed and evaluated your informal

grievance. A review of the automated database reflects you

are at RMC for medical services. You currently have a medical

hold til[] July 5, 2018. Once this hold has been removed you

will be setup for a transfer. The decision of the State

Classification Office is for you to remain in administrative

confinement until you transfer to resolve your protection issue.

Id. On July 1, 2018, Bailey submitted a formal grievance to RMC Warden, stating in

pertinent part:

This is a follow up on the denial of my informal

grievance (attached) about me being held in confinement

under protective custody against my will.

I contend this is unfair treatment as one: I never asked

to be placed in to [sic] PC [(protective confinement)], I have

done nothing wrong, [and] I am not in fear for my life. And two:

It is completely unfair that I am suffering in confinement, being

treated like a DC [(disciplinary confinement)] inmate because

your officers allowed four gang members off their wing in I-

block on to my wing of I-block, so they could jump me [and]

rob me. And those four inmates are back in open population

on this compound, while I’m forced to be in PC against my will.

I have been in confinement over 60 days, enough time

to pay for those four inmates[’] actions [and] your officers[’]. I

shouldn’t be punished for the actions of others. The relief I

seek is to be release[d] from PC/confinement.

Id. at 23. The FDOC denied the grievance on July 11, 2018, stating in pertinent part:

Your request for administrative remedy has been received

and reviewed. A review of your electronic file reflects you are

housed in administrative confinement for protection[] needs.

12

A final decision was made by the State Classification Office

for you to remain in administrative confinement until you

transfer to resolve your protection issue. You are currently

housed at RMC for medical services. You currently have a

medical hold til[] 8/5/18. You will continue to be housed in

administrative confinement for protection needs until you

transfer.

Id. at 23. Bailey submitted a Request for Administrative Remedy or Appeal on July 20,

2018, to the FDOC Secretary, stating in pertinent part:

This is an appeal about the unfair treatment I am

receiving here at RMC.

I was placed in confinement for protection on 4-19-18,

[and] a report was wrote [sic] that I asked for protection. This

is a lie. I never asked to be placed in protection. I have never

seen [the] ICT [(institutional classification team)] and I have

signed a waiver to get out of confinement. I am being

punished for no re[a]son. I have been in confinement for over

90 days now. I do not want protection, or need it. And I have

done nothing wrong. I am not af[]raid for my life, because my

life is not in danger.

The relief I seek is to be release[ed] f[rom] protection

[and] confinement.

Id. at 22. A. Keaton denied the appeal on August 7, 2018, stating that the response Bailey

received at the institutional level appropriately addressed his concerns. See id. at 21.

Additionally, Bailey submitted an informal grievance to OCI classification officers

on January 14, 2019. See Doc. 22-1 at 1-2. In the grievance, Bailey stated that he needed

access to records (the April 19, 2018 incident report, photographs, and any other

documents related to the incident) to “file suit against the officer[s] [who] (through their

negligence)” allowed the incident to take place. See id. at 2. The FDOC responded on

13

January 25, 2019, advising Bailey that he should request the information from the

institution where the incident occurred. See id. at 1.

Additionally, on January 14, 2019, Bailey submitted an informal grievance, stating

in pertinent part:

This grievance concerns the harm (physical,

psychological, [and] emotional) I am now suffering from an

incident that occurred at RMC.

Grievant was transferred to RMC on 4-11-18 for

Physical Therapy. While housed at RMC Main Unit in I-Block

dormitory wing two cell 209 upper the morning of 4-19-18 the

unknown officers working in I-Block negligently allowed

four inmates off of their assi[gn]ed wings on to

Grievant[’]s assi[gn]ed (wing two) to assault [and]

commit aggravated battery on Grievant causing him great

bodily harm. This cruel and negligent act by the officers

caused Grievant to be sent to an outside hospital for

reconstructive surgery.

Because of these officers[’] acts[,] Grievant is now

suffering as he still needs medical treatment from RMC but is

unwilling to go back there. This is not an isolated incident,

[and] is why Grievant is in fear to go back . . . to RMC.

The relief I seek is for all of the officers that were

working I-Block the morning of 4-19-18 be named in the

response [and] reprimanded for their negligence. Also, as this

isn’t an isolated incident, Grievant wishes to be “Red Flagged”

from RMC [and] be seen by an outside hospital or another

medical facility.

Doc. 21-1 at 30, 32 (emphasis added). The FDOC denied the grievance on January 15,

2019, stating in pertinent part:

Your grievance has been received[,] reviewed[,] and

evaluated.

Your allegations of staff negligence have been reported

to the Office of the Inspector General for review and

14

action if necessary. A special review is in place against

the other inmates. A special review against the institution will

not be placed at this time.

Id. at 30 (emphasis added). On January 19, 2019, Bailey submitted a formal grievance to

the OCI Warden, stating in pertinent part:

This formal grievance is in response to the denial of my

informal grievance. (see attached)

I contend the denial is inappropriate. As can be seen in

my records, I have been jumped by gang members at RMC[.]

[B]oth times I have been sent there for medical reasons last

year. Now I am being hampered to receive treatment as I

refuse to go back to RMC, which is why I wish to be special

reviewed from there. I should not be forced to go to an unsafe

institution that is r[u]n by the inmate gangs [and] not the

officers.

Also, I still wish for the officers[’] names that were

working the morning (day shift) of 4-19-18 in I-Block at the

Main Unit.

Therefore, the relief I seek is for there to be a special

review placed on me from RMC [and] for all of the officers[’]

names that were negligent on 4-19-18[.]

Id. at 31. The FDOC denied the formal grievance on January 28th, stating in pertinent

part:

Inmate Bailey, your Request for Administrative Remedy or

Appeal ha[s] been received, reviewed, and evaluated and the

following information is provided to address your concerns.

You have the option to refuse any treatment and are not

forced to go to RMC. We do not have access to RMC’s rosters

to provide you with staff[] names on a specific date. As

previously stated, you are special reviewed against the

inmates, however a special review against the facility is not

warranted at this time.

15

Id. at 29. Bailey submitted a Request for Administrative Remedy or Appeal on January

28, 2019, to the FDOC Secretary, stating in pertinent part:

This appeal concerns the denial of my formal

grievance. (see attached)

I contend that the denial of my formal grievance

jeopardizes me in two ways. First, not special reviewing me

from RMC puts me at risk if I am forced to go back there for

further medical treatment, exams, or test[s] as the officers

condone violence among inmates which was stated by the

officers stationed in I-Block on 4-19-18. When I asked them

for protective management[,] the officers stated not only did

they know what happens in their Dorm, but they don’t protect

“pussies” which forced me to seek protective management at

the chow hall as reports state. Further misconduct can also

be seen in my only other venture to RMC on 9-11-18 at the

West Unit, D-Dorm, wing one, where I was again attacked by

three other inmates brandishing knives, on camera, where I

was forced to seek protective management again. I have been

attacked both times I have ever been sent to RMC, requiring

7 special reviews. In 14 years of incarceration[,] I have never

had problems like this.

Secondly, I’m in jeopardy to further injure my back as

I’m unwilling, as of right now, to seek further medical treatment

as they are going to order more test[s] which will require me

to go back to RMC. My back has been injured, but after being

attacked twice it has gotten worse, which can be seen when

after the incident on 4-19-18 I had to declar[e] a medical

emergency while in K-Dorm at RMC.

I would also like to point out that if I am not special

reviewed from RMC after requesting it, [and] I am forced by

DOC to go back there for medical reasons and I am attacked

again after putting DOC on notice of the officers[’] misconduct

there, DOC will be liable for any harm caused at that time....

The relief I seek is that I be special reviewed from RMC

so I may continue seeking medical help for my injured back,

and for all of the officers [to] be held accountable for their

misconduct. (Both the night shift from 4-18-18 which was on

16

duty when I got jumped on 4-19-18, [and] the day shift of 4-

19-18 that would not let me seek protective management)

Attention:

The point of mentioning the incident on 9-11-18 was to

point out that the officer watched what happened [and] didn’t

call it in until I made it to the officers station. This shows

regular occurring misconduct along with what happened on 4-

19-18, and can be seen on camera.

Id. at 27-28. C. Neel denied the appeal on February 7, 2019, stating that the response

Bailey received at the institutional level appropriately addressed his concerns, and the

medical issues should be addressed with the institution’s medical department. See id. at

26.

Next, Bailey submitted an informal grievance on March 5, 2019, asserting that the

FDOC failed to respond to his request for records related to the April 19, 2018 incident.

See Doc. 22-1 at 3. State Classification Officer McDowell denied the grievance on March

6, 2019, stating in pertinent part:

Your informal grievance has been received, reviewed and

evaluated. In accordance with Chapter 33-601.901(1)(a)1, no

inmate or offender under jurisdiction of the department shall

have unlimited or routine access to any information contained

in the records of the department unless an exceptional need

can be demonstrated. You have not demonstrated an

exceptional need as defined in Florida Statute 945.10(3). If

you are preparing for a filing, your attorney or the courts can

request and receive this paperwork as part of the discovery

process.

See id. According to Bailey’s exhibits, he submitted a formal grievance to the Warden on

March 9th, see id. at 4, and appealed the Warden’s denial to the FDOC Secretary, see

id. at 5. Neel denied the appeal on March 22, 2019, stating that the response Bailey

17

received at the informal-grievance stage appropriately addressed his concerns. See id.

at 6.

As to the initial step in the two-part process for deciding a motion 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 Bailey’s

view of the facts as true, a dismissal of the Eighth Amendment claims against Defendants

for lack of exhaustion is not warranted at the first step. Thus, the Court proceeds to the

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

regarding exhaustion and makes findings of fact.

A prisoner must exhaust administrative remedies as to each claim that he seeks

to present in court. See Jones, 549 U.S. at 219. Thus, to fully exhaust, Bailey was required

to complete the three-step process with respect to his Eighth Amendment claims against

Defendants before filing the instant § 1983 lawsuit. Here, although Bailey failed to name

the officers involved, the grievances he submitted accomplished § 1997e(a)’s purpose by

alerting the prison to Bailey’s failure-to-protect issues and giving the FDOC an opportunity

to resolve the issues before he initiated a lawsuit. Thus, Bailey sufficiently exhausted his

18

Eighth Amendment claims in this action, and Defendants’ Motion is due to be denied as

to their assertion that Bailey failed to properly exhaust his claims against them.

VI. Analysis

A. Federal Rule of Civil Procedure 8

Defendants contend that Bailey’s Complaint is a “shotgun pleading” that violates

Federal Rule of Civil Procedure 8(a)(2). See Motion at 6-8. In his Response, Bailey states

that he was “vague” as to his assertions in the Complaint because he was not able to

obtain FDOC reports that would reveal staff names. See Response at 1. Nevertheless,

he maintains that he will be more specific as to which sergeant or officer “did what” when

he obtains the necessary documents during discovery. Id. Additionally, he asserts that

Sergeant Potosky “is presumably” the I-block dormitory sergeant who denied him

protection and gave the assailants permission to enter the wing to attack him. Id. at 1-2.

He clarifies that the other sergeant, the one who granted him protection, see Complaint

at 13, is not named as a Defendant, see Response at 2.

A civil rights complaint must include a short and plain statement of the claim

showing that the plaintiff is entitled to relief. Fed. R. Civ. P. 8(a)(2). While not required to

include detailed factual allegations, a complaint must allege “more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Indeed, a

complaint is insufficient “if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). To avoid dismissal for failure to

state a claim on which relief can be granted, a complaint must include “factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

19

misconduct alleged.” Id. Moreover, “[w]hile legal conclusions can provide the framework

of a complaint, they must be supported by factual allegations.” Id. at 679. Notably, a

“shotgun pleading” is a complaint that fails to comply with Rule 8(a)(2) because it contains

numerous causes of action adopting the factual allegations of all proceeding counts; is

“replete with conclusory, vague, and immaterial facts not obviously connected to any

particular cause of action”; does not separate causes of action into separate counts; or

asserts multiple claims against multiple defendants while failing to specify which

defendants are responsible for which acts or omissions. Weiland v. Palm Beach Cty.

Sherriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015).

In the Complaint, Bailey asserts that an I-block dormitory sergeant (now identified

as Sergeant Potosky, see Response at 1-2) denied him protection and allowed the

assailants to enter the wing to assault him. See Complaint at 14-15. Notably, Bailey’s

assertions in the Complaint as to Potosky’s involvement do not make it “virtually

impossible” for Potosky to know “which allegations of fact are intended to support which

claim(s) for relief.” Weiland, 792 F.3d at 1325 (emphasis and quotation marks omitted).

Thus, Defendants’ Motion is due to be denied as to the assertion that the Complaint

violates Rule 8 with respect to Bailey’s claims against Defendant Potosky.

Additionally, in the Complaint, Bailey asserts in a conclusory manner that the

Warden (identified as Robert J. Smith, Jr.), the Assistant Warden (identified as Major

Richard Lukens), and Colonel (identified as Stanley Peterson) violated his Eighth

Amendment rights when they ignored a history of widespread abuse and their officers’

misconduct. He fails to assert any facts supporting a history of widespread abuse or any

20

facts as to how the Warden, the Assistant Warden, and the Colonel violated his federal

constitutional rights and/or were involved in the alleged abuse. Thus, Defendants’ Motion

is due to be granted, and Bailey’s claims against Defendants Smith, Lukens, and

Peterson are due to be dismissed. See Iqbal, 556 U.S. at 678.

B. Eighth Amendment Failure to Protect

The Eighth Amendment requires prison officials to “take reasonable measures to

guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). It is

“[a] prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an

inmate [that] violates the Eighth Amendment.” Id. at 828 (citations omitted). The deliberate

indifference standard requires the plaintiff to demonstrate that the prison official “was

subjectively aware” of a risk of harm; mere negligence is insufficient. Id. at 829, 835-36.

In a case where the prisoner-plaintiff repeatedly asked to be transferred because he was

concerned about a general lack of safety in his cell block, the Eleventh Circuit explained

the requirement of deliberate indifference to a substantial risk of harm as follows:

To establish a § 1983 claim for deliberate indifference, a

plaintiff must show “(1) a substantial risk of serious harm; (2)

the defendants’ deliberate indifference to that risk; and (3)

causation.”[6]

The first element of deliberate indifference — whether

there was a substantial risk of serious harm — is assessed

objectively and requires the plaintiff to show “conditions that

were extreme and posed an unreasonable risk of serious

injury to his future health or safety.”[7] The second element

— whether the defendant was deliberately indifferent to that

6 Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016).

7 Lane, 835 F.3d at 1307.

21

risk — has both a subjective and an objective component.

Subjectively, the “official must both be aware of facts from

which the inference could be drawn that a substantial risk of

serious harm exists, and . . . also draw the inference.”[8]

Objectively, the official must have responded to the known risk

in an unreasonable manner, in that he or she “knew of ways

to reduce the harm” but knowingly or recklessly declined to

act.[9] Finally, the plaintiff must show a “necessary causal link”

between the officer’s failure to act reasonably and the

plaintiff’s injury.[10]

Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019); Johnson v. Bessemer, Ala.,

City of, 741 F. App’x 694, 698-99 (11th Cir. 2018) (per curiam).

The Eleventh Circuit has explained:

Proof of deliberate indifference requires a great deal more

than does proof of negligence: “To be deliberately indifferent

a prison official must know of and disregard ‘an excessive risk

to inmate health or safety; the official must both be aware of

facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw

the inference.’” Purcell, 400 F.3d at 1319-20 (emphasis

supplied) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114

S. Ct. 1970, 1979, 128 L.Ed.2d 811 (1994)).[11]

In other words, a plaintiff in [Bailey’s] position must

show not only that there was a substantial risk of serious

harm, but also that [Defendant] “subjectively knew of the

substantial risk of serious harm and that [he] knowingly or

recklessly disregarded that risk.” Hale, 50 F.3d at 1583

(alteration omitted) (internal quotation marks omitted).[12]

Whether prison officials had the requisite awareness of the

8 Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617 (11th Cir. 2007).

9 Rodriguez, 508 F.3d at 620.

10 Rodriguez, 508 F.3d at 622-23.

11 Purcell ex rel. Estate of Morgan v. Toombs Cnty., Ga., 400 F.3d 1313 (11th Cir.

2005).

12 Hale v. Tallapoosa Cnty., 50 F.3d 1579 (11th Cir. 1995).

22

risk “is a question of fact subject to demonstration in the usual

ways, including inference from circumstantial evidence, and a

factfinder may conclude that a prison official knew of a

substantial risk from the very fact that the risk was obvious.”

Farmer, 511 U.S. at 842, 114 S. Ct. at 1981 (citation omitted).

At the same time, the deliberate indifference standard - and

the subjective awareness required by it - is far more onerous

than normal tort[-]based standards of conduct sounding in

negligence: “Merely negligent failure to protect an inmate from

attack does not justify liability under [§] 1983.” Brown v.

Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (per curiam).

And[,] needless to say, to defeat a motion for summary

judgment, [a plaintiff] must adduce specific evidence from

which a jury could reasonably find in his favor; “[t]he mere

existence of a scintilla of evidence in support of [his] position

will be insufficient.” Anderson, 477 U.S. at 252. . . .

Goodman v. Kimbrough, 718 F.3d 1325, 1332 (11th Cir. 2013) (emphasis deleted);

Melton v. Abston, 841 F.3d 1207, 1223 (11th Cir. 2016) (per curiam) (stating that a plaintiff

who claims deliberate indifference must prove: “(1) subjective knowledge of a risk of

serious harm; (2) disregard of that risk; (3) by conduct that is more than mere

negligence”); Scott v. Miami Dade Cnty., 657 F. App’x 877, 883 (11th Cir. 2016) (stating

that “a plaintiff must allege facts that would allow a jury to conclude that: the defendant

actually knew that the plaintiff faced a substantial risk of serious harm” (subjective

component), and “the defendant disregarded that known risk by failing to respond to it in

an objectively reasonable manner” (objective component)); Brown v. Hughes, 894 F. 2d

1533, 1537 (11th Cir. 1990) (“The known risk of injury must be a ‘strong likelihood, rather

than a mere possibility’ before a guard’s failure to act can constitute deliberate

indifference.”).

Prison officials may avoid Eighth Amendment liability in one of three ways: (1)

showing that they were not subjectively aware “of the underlying facts indicating a

23

sufficiently substantial danger and that they were therefore unaware of a danger”; (2)

admitting awareness of “the underlying facts” of a substantial danger, but believing the

danger was “insubstantial or nonexistent”; or (3) claiming they responded reasonably to

a known substantial danger. Rodriguez, 508 F.3d at 617-18 (quoting Farmer, 511 U.S. at

844) (internal quotations omitted).

In the Complaint, Bailey asserts that the I-block dormitory sergeant (identified as

Potosky) denied him protection and gave the assailants permission to enter the wing to

attack him on April 19, 2018. See Complaint at 14-15. Defendant Potosky maintains that

Bailey fails to state a plausible Eighth Amendment claim against him. See Motion at 13-

15. According to Bailey, he states a plausible Eighth Amendment claim against Potosky

because Potosky aided the assailants in the April 19th attack when he gave them access

to the wing, and Bailey “provided a witness [(inmate Grier)] to this fact.” Response at 3.

Having considered the allegations of the Complaint and the arguments of the parties, the

Court finds that Bailey has provided sufficient facts to state a plausible Eighth Amendment

claim against Potosky. Therefore, Defendants’ Motion as to Bailey’s Eighth Amendment

claim against Defendant Potosky is due to be denied.

C. Injunctive Relief

In the Complaint, Bailey requests that the Court issue an injunction directing

Defendants to “special review” him from RMC and Defendants so that the FDOC does

not return him to RMC. Complaint at 5, Section VI. ¶ 2. Defendants maintain that Bailey

fails to state a plausible claim as to his request for a “special review” from Defendants

24

and RMC. See Motion at 15-16. They assert that Bailey is no longer housed at RMC, and

has not asserted that he is in actual or imminent danger. See id. at 15.

Bailey’s request for injunctive relief is due to be dismissed. According to Bailey, the

FDOC temporarily housed him at RMC for medical reasons (physical therapy on his back

and an MRI), see Complaint at 5, 14, and “special reviewed” him from the inmates who

allegedly attacked him, see id. at 14. He maintains that OCI is his “permanent institution.”

See id. An inmate’s request for injunctive relief related to his conditions of confinement

becomes moot when he is transferred to a different correctional facility. See Spears v.

Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988) (holding the plaintiff’s claims for injunctive

relief related to conditions of confinement at a previous correctional facility were subject

to dismissal because those claims “no longer presented a case or controversy”); see also

Davila v. Marshall, 649 F. App’x 977, 979 (11th Cir. 2016) (“[A] prisoner’s request for

injunctive relief ... becomes moot when he is transferred.”). Bailey is now housed at OCI

in Crestview, Florida, where he has access to the institution’s medical clinic. Also, he may

seek relief by initiating a grievance pursuant to the administrative grievance procedures

and/or contact his classification officer to address concerns he may have about access to

specialized medical care. Therefore, his request for injunctive relief based on events

occurring at RMC is moot. Thus, Defendants’ Motion as to Bailey’s request for injunctive

relief is due to be granted.

D. Eleventh Amendment Immunity

Defendants assert that, to the extent they are sued in their official capacities, they

are entitled to Eleventh Amendment immunity. See Motion at 8-9.

25

The Eleventh Amendment provides that “[t]he Judicial

power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI. It is well established that, in the absence of

consent, “a suit in which the State or one of its agencies or

departments is named as the defendant is proscribed by the

Eleventh Amendment.” Papasan v. Allain, 478 U.S. 265, 276,

106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (quotation omitted).

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 wrongful acts of the

state. Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326,

1336 (11th Cir. 1999).

Hayes v. Sec’y, Fla. Dep’t of Children & Families, 563 F. App’x 701, 703 (11th Cir. 2014)

(per curiam).

In Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986) (per curiam), the

Eleventh Circuit noted:

It is clear that Congress did not intend to abrogate a

state’s eleventh amendment immunity in section 1983

damage suits. Quern v. Jordan, 440 U.S. 332, 340-45, 99

S.Ct. 1139, 1144-45, 59 L.Ed.2d 358 (1979). Furthermore,

after reviewing specific provisions of the Florida statutes, we

recently concluded that Florida’s limited waiver of sovereign

immunity was not intended to encompass section 1983 suits

for damages. See Gamble,[13] 779 F.2d at 1513-20.

Accordingly, in Zatler, the court found that the FDOC Secretary was immune from suit in

his official capacity. Id. Thus, insofar as Bailey may be seeking monetary damages from

Defendants in their official capacities, the Eleventh Amendment bars suit. Therefore,

13 Gamble v. Fla. Dep’t of Health & Rehab. Serv., 779 F.2d 1509 (11th Cir. 1986).

26

Defendants’ Motion is due to be granted to the extent that Bailey requests monetary

damages from Defendants in their official capacities.

In consideration of the foregoing, it is now

ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 21) is PARTIALLY GRANTED as to

Bailey’s (1) Eighth Amendment claims against Robert J. Smith, Jr., Richard Lukens, and

Stanley Peterson; (2) request for injunctive relief; and (3) claims for monetary damages

against Defendants in their official capacities. Otherwise, the Motion is DENIED.

2. The Clerk shall terminate Robert J. Smith, Jr., Richard Lukens, and Stanley

Peterson as Defendants in the case.

3. Defendant Potosky must file an Answer to the Complaint no later than

November 25, 2020. Thereafter, the Court will issue a separate order setting deadlines

for discovery and the filing of dispositive motions.

DONE AND ORDERED at Jacksonville, Florida, this 20th day of October, 2020.

United States District Judge

sc 10/20

James Bailey, FDOC #Q13954

Counsel of Record

27