Cooper v. Lawrence

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MATTHEW COOPER,

Plaintiff,

v. Case No: 2:18-cv-675-FtM-29MRM

PATRICK MURPHY,

A.S.W./Warden, S. PESINA,

Sgt., and S. BOWDEN,

Grievance

Coordinator/Classification,

Defendants.

OPINION AND ORDER

This matter comes before the Court on Defendants Murphy and

Bowden’s Motion to Dismiss Plaintiff’s Second Amended Complaint

(Doc. #46) and Defendant Pesina’s Motion to Dismiss Plaintiff’s

Second Amended Complaint (Doc. #47). Plaintiff filed a

consolidated response to the motions (Doc. #50). As more fully

set forth below, the Court grants Defendants Murphy and Bowden’s

Motion to Dismiss but denies Defendant Pesina’s Motion to Dismiss.

I. Background and Factual Allegations

Matthew Cooper, a Florida prisoner incarcerated at the Desoto

Correctional Annex, is proceeding on his Second Amended Complaint

filed under 42 U.S.C. § 1983 (Doc. #13, “SAC”). Plaintiff sues

Sergeant Pesina, Assistant Warden Patrick Murphy, Grievance

Coordinator Mrs. Bowden and an “Unknown White Female Officer” in

their individual and official capacities for violating Plaintiff’s

First, Fifth, Sixth, Eighth and Fourteenth Amendment rights.

(Doc. #13, pp. 2-3).

These facts are in the SAC and accepted as true at this stage

of the proceedings. On October 18, 2014, between 7:30 a.m. and

8:00 a.m., Sergeant Pesina, accompanied by an unidentified white

female officer, entered G-dorm cursing loudly, slamming doors and

acting in an overall belligerent manner. (Id., p. 6). When asked

why he was behaving in this manner, Pesina yelled profanities.

(Id.). Pesina ran up a flight of stairs and then turned around

and ran back down the stairs “straight into Plaintiff[’s] cell G-

1120” where he “slammed the Plaintiff into the wall with such force

nearly knocking him unconscious.” (Id.). Pesina handcuffed

Plaintiff, dumped all Plaintiff’s legal materials and canteen

items onto the floor and “kicked and stomp[ed]” and “poured

c[au]stic chemicals” on the property “permanently destroying and

damaging them.” (Id., p. 7). Afterwards Pesina, while saying

“that’s for writing grievances nigger,” shoved Plaintiff into the

wall and knocked him back onto the floor while handcuffed. (Id.).

Pesina, followed by the white female officer, then ran back

up the stairs, where Pesina attacked another black inmate and

attempted to throw the inmate off the top of the stairs. (Id.,

at 7-8). Pesina took out his mace, pointed it at the black inmate

and uttered a racial profanity. (Id.). Pesina then pointed the

mace toward the other inmates gathering and asked, “who else wants

some of this?” (Id., p. 8).

Several officers responded to the commotion and saw

Plaintiff’s cell in disarray. (Id.). Captain Williams came into

the cellblock to speak with Plaintiff, the other inmates, Pesina

and the white female officer. (Id.) Pesina and the white female

officer admitted to Williams that Pesina had caused the damage in

Plaintiff’s cell and to his property. (Id.).

Plaintiff sustained damages to the left side of his head,

face and shoulder. (Id., at 9). Medical staff examined Plaintiff

and documented his injuries. (Id.). Plaintiff had x-rays and was

prescribed Excedrin, Naproxen, and Bengay, given a front handcuff

pass, and placed in protective custody. (Id.). Plaintiff’s

claims were investigated by the inspector general’s office. (Id.

p. 10).

Plaintiff states the legal documents destroyed by Defendant

Pesina included “newly discovered evidence” and evidence of his

“factual innocence.” (Id. p. 12). Plaintiff claims that due to

the documents’ destruction he could not file a state post-

conviction motion and caused his “2244 to be dismissed.” (Id.).

As relief, Plaintiff seeks both injunctive and monetary relief.

(Id., pp. 14-16).

II. Motions to Dismiss and Standard of Review

Defendants request dismissal of the SAC because : (1)

Plaintiff failed to exhaust his administrative remedies; (2) the

SAC violates procedural rules and otherwise fails to state claim

upon which relief can be granted; (3) Plaintiff’s claims for

monetary damages are barred by the Eleventh Amendment; and (4)

defendants are entitled to qualified immunity. (See generally

Docs. #46 and #47).

In deciding a motion to dismiss, the “‘record’ is limited to

pleadings and the attachments to those pleadings” and the Court

“must accept the allegations in the plaintiff’s pleading as true.”

Geter v. Baldwin State Prison, 974 F.3d 1348, 1358 (11th Cir.

2020); Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007). A

complaint must give the defendants fair notice of what the

plaintiff’s claim is and the grounds on which it rests to satisfy

the pleading requirements of Fed. R. Civ. P. 8. Id. at 555. In

addition, to overcome a Rule 12(b)(6) motion to dismiss the

plaintiff’s claim must be plausible. Id. at 556. The Court must

be able to draw a reasonable inference from the complaint that the

defendant is liable for the alleged misconduct. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). While the facts need not be

detailed, they must “raise a reasonable expectation that discovery

will reveal evidence” for the plaintiff’s claim. Twombly, 550

U.S. at 556. Labels, conclusions, and a formulaic recitation of

the elements of a cause of action are not enough to meet the

plausibility standard. Id. at 555. Dismissal is warranted under

Fed. R. Civ. P. 12(b)(6) if the alleged claim is not supported by

enough factual allegations to raise a reasonable expectation of

relief. Id.

III. Analysis

A. Exhaustion

The Prison Litigation Reform Act (PLRA) requires an inmate to

first exhaust all available administrative remedies before

asserting any claim under 42 U.S.C. § 1983. See 42 U.S.C. §

1997e(a). “Proper exhaustion demands compliance with an agency’s

deadlines and other critical procedural rules. . . .” Jones v.

Bock, 549 U.S. 199, 216 (2007); see also Pavao v. Sims, 679 F.

App'x 819, 823 (11th Cir. 2017) (“The prison’s requirements, and

not the PLRA, define the boundaries of proper exhaustion, so ‘the

level of detail necessary in a grievance to comply with the

grievance procedures will vary from system to system and claim to

claim.’”) (quoting Dimanche v. Brown, 783 F.3d 1204, 1211 (11th

Cir. 2015)). The Eleventh Circuit has held that a defense of

failure to properly exhaust available administrative remedies

under the PLRA should be treated as a matter in abatement and is

“a precondition to an adjudication of the merits.” Bryant v.

Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Procedurally, the

defense is treated “like a defense for lack of jurisdiction[,]”

although it is not a jurisdictional matter. Id. Thus, in matters

of exhaustion, courts may consider evidence outside of the record

at the motion to dismiss stage. Id. at 1377 n.16; see also Geter

v. Baldwin State Prison, 974 F.3d at 1354 n.11. The district

court may resolve factual questions about a plaintiff’s alleged

failure to exhaust if the factual disputes do not decide the merits

and the parties have sufficient opportunity to develop a record.

Geter, Id. (citing Bryant).

When confronted with an exhaustion defense, courts 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. . . . 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). 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

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

Defendants contend that the SAC must be dismissed because the

face of the SAC admits plaintiff did not exhaust the administrative

process. Defendants point to the portion of the SAC which states

plaintiff is suing Assistant Warden Murphy and S. Bowden under the

Fifth and Fourteenth Amendments for not notifying Plaintiff of the

outcome of the inspector general’s investigation. Doc. #13 at

14(citing to Doc. #13 p. 14 at ¶ 24). In a somewhat disjointed

statement, the SAC states that because Plaintiff was not notified

of the outcome of the inspector general’s investigation he was

“denied . . . the right to finish exhausting the grievance

process/administrative remedies unavailable, [sic] recovery of

destroyed property & effective meaningful access to the court.”

(Doc. #13, p. 14 at ¶ 24).

But this statement must be taken in the context of the other

allegations. Later in the SAC, Plaintiff states he filed a

grievance and was advised he had to wait until the inspector

general completed his investigation. (Doc. #13 p. 18). Although

not attached to the SAC, Plaintiff previously attached a copy of

an informal grievance dated October 18, 2014, concerning the

incidents involving Defendant Pesina. (Doc. #1-1). In a response

dated November 6, 2014, Plaintiff was told:

Your informal grievance was forwarded to the warden for

response. The subject of your grievance was previously

referred to the office of the inspector general on

10/20/2014. It is the responsibility of that office to

determine the amount and type of inquiry that will be

conducted. Upon completion of this review, information

will be provided to appropriate administrators for final

determination and handling. As this process was

initiated prior to receipt of your grievance, your

request for action by this office is denied.

(Id.).

The Court is required to construe the allegations of a pro se

plaintiff liberally. Plaintiff does not challenge this

disposition of the grievance, i.e., that the Warden does not have

the responsibility over a matter which has been previously referred

to the office of the inspector general. The Court construes

Plaintiff’s statements in the SAC as complaining he never learned

of the outcome of the inspector general’s investigation.

Defendants do not explain what further administrative processes

were available to Plaintiff after his claims were investigated by

the inspector general, or what Plaintiff failed to do after the

investigation was complete. The Court finds Defendants have not

satisfied their burden of showing that Plaintiff failed to exhaust

his administrative remedies.

B. Failure to Comply with Procedural Rules and State a Claim

Defendants argue that the SAC fails to conform with Federal

Rules of Civil Procedure 8 and 10 and is otherwise vague,

conclusory and incoherent and may be dismissed. (Doc. #46, p. 5;

Doc. #47, pp. 4-5). Essentially, Defendants argue the SAC is a

shotgun pleading.

A shotgun pleading is one that “fails to give the defendants

adequate notice of the claims against them and the grounds upon

which each claim rests.” Weiland v. Palm Beach Cty. Sheriff's

Office, 792 F.3d 1313, 1323 (11th Cir. 2015). The U.S. Supreme

Court explained that the purpose of the pleading rules is to “give

the defendant fair notice of what the plaintiff's claim is and the

grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

(1957). The Court finds the factual allegations in the SAC are

sufficiently stated and organized and provide the Defendants with

fair notice of Plaintiff’s claims.

Liberally construed, the SAC alleges an Eighth Amendment

claim against Defendant Pesina stemming from the two excessive use

of force incidents on October 18, 2014, a First and Fourteenth

Amendment claim stemming from Defendant Pesina’s destruction of

Plaintiff’s legal and personal materials, and a First Amendment

retaliation claim. As to Defendants Murphy and Bowden, the SAC

alleges a Fourteenth Amendment claim stemming from Defendants

Murphy and Bowden’s alleged failure to apprise Plaintiff of the

outcome of the inspector general’s report, thus potentially

interfering with Plaintiff’s ability to exhaust his administrative

remedies, recover destroyed property, and have meaningful access

to the court.

The Court finds the SAC sufficiently pleads sufficient facts

to withstand a motion to dismiss for an Eighth Amendment violation

against Defendant Pesina for excessive use of force. Under the

Eighth Amendment, force in a custodial setting is permitted if it

is applied “in a good faith effort to maintain or restore

discipline [and not] maliciously and sadistically to cause harm.”

Whitley v. Albers, 475 U.S. 312, 320–21 (1986) (citations omitted);

see also Hudson v. McMillian, 503 U.S. 1, 8 (1992). The Court

considers a variety of factors to determine whether force was

applied maliciously and sadistically to cause harm, including:

“the need for the application of force, the relationship between

that need and the amount of force used, the threat reasonably

perceived by the responsible officials, and any efforts made to

temper the severity of a forceful response.” Hudson, at 7–8.

“[I]inferences may be drawn as to whether the use of force could

plausibly have been thought necessary, or instead evinced such

wantonness with respect to the unjustified infliction of harm as

is tantamount to a knowing willingness that it occur.” Whitley,

475 U.S. at 321 (citations omitted). Further, while more than a

de minimis injury is necessary, the injury “need not be

significant.” Siglar v. Highower, 112 F. 3d 191, 193-95 (5th Cir.

1997). Assuming the allegations in the SAC are true, the Court

finds the SAC plausibly alleges an Eighth Amendment claim against

Defendant Pesina.

The Court will also permit Plaintiff’s First Amendment

retaliation claim to proceed against Pesina. “Prison officials

may not retaliate against inmates for filing lawsuits or

administrative grievances.” Williams v. Brown, 347 F. App'x 429,

435 (11th Cir. 2009). To prevail on a retaliation claim, a

plaintiff must eventually establish that (1) his speech was

constitutionally protected; (2) he suffered adverse action which

would likely deter a person of ordinary firmness from engaging in

such speech; and (3) a causal relationship between the retaliatory

action and the protected speech. O'Bryant v. Finch, 637 F.3d

1207, 1212 (11th Cir. 2011). The Court finds the statements

allegedly made by Pesina while committing the various acts are

sufficient to establish a plausible claim.

Similarly, the SAC contains sufficient information to proceed

on Plaintiff’s First Amendment access to court claim. A plaintiff

who alleges a First Amendment denial of access to court claim must

allege the interference caused him actual injury regarding the

litigation. See Lewis v. Casey, 518 U.S. 343, 349-351 (1996). A

plaintiff must be able to demonstrate the “prison officials’

actions that allegedly violate an inmate's right of access to the

courts must have impeded the inmate's pursuit of a nonfrivolous,

post-conviction claim or civil rights action.” Wilson v.

Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998) (citation

omitted). Here, the SAC asserts Pesina’s actions prevented

Plaintiff from filing the legal documents in a state post-

conviction matter and/or caused his habeas action to be dismissed.

Because the SAC alleges an actual injury, the First Amendment

access to court claim may proceed past the motion to dismiss stage.

The Court finds, however, that Plaintiff’s claims under the

Fifth or Fourteenth Amendments that Pesina’s destroyed his

personal or legal property fail. The Fifth Amendment only applies

to the federal government, not to the states. See Dusenbery v.

United States, 534 U.S. 161, 167 (2002). Also, the Supreme Court

has held that the Fourteenth Amendment Due Process Clause is not

violated when an inmate loses personal belongings due to the

negligent or intentional actions of correction officers if the

state provides an adequate post-deprivation compensatory remedy.

See Hudson v. Palmer, 468 U.S. 517, 533 (1984). The Florida

Administrative Code provides an administrative remedy process for

inmates to challenge deprivations of inmate property. A claim

about any loss or destruction of his personal property may also be

raised in a tort action under Florida state law. Without showing

that the state’s post-deprivation remedy is inadequate to litigate

his lost property claim, the SAC fails to state a plausible claim

under the Fourteenth Amendment.

Finally, the Court finds the SAC fails to state a claim

against Defendants Murphy and Bowden. Because Plaintiff does not

have a constitutionally protected liberty interest in a grievance

procedure, Defendants Murphy and Bowden’s alleged involvement or

interference in the grievance process, even if true, does not rise

to a constitutional claim. See Thomas v. Warner, 237 F. App'x

435, 438 (11th Cir. 2007) (citations omitted); see also Charriez

v. Sec'y, Fla. Dep't of Corr., 596 F. App'x 890, 895 (11th Cir.

2015)(holding the district court properly found the plaintiff

failed to state a claim where he alleged the defendants did not

“take corrective action” in response to his grievance appeal).

Thus, the Court will dismiss the SAC as against Defendants Murphy

and Bowden.

C. Eleventh Amendment Immunity

Defendant Pesina argues that Plaintiff’s claim for monetary

damages against him in his official capacity should also be

dismissed, because he is entitled to Eleventh Amendment immunity.

Doc. #47 at 14. The Court agrees that such claims are barred by

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

Children & Families, 563 F. App’x 701, 703 (11th Cir. 2014) (“The

Eleventh Amendment also prohibits suits against state officials

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

plaintiff could not sue to have a state officer pay funds directly

from the state treasury for the wrongful acts of the state.”).

Defendant Pesina’s Motion is granted to the extent that Plaintiff

requests monetary damages from Defendant Pesina in his official

capacity.

D. Qualified Immunity

Defendant Pesina argues that he is protected by qualified

immunity because his actions were undertaken in furtherance of his

discretionary duties and were in the scope of his authority. (Doc.

#47, p. 13). “To be eligible for qualified immunity, a government

official must first establish that he was acting within the scope

of his discretionary authority when the alleged wrongful act

occurred.” Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016).

The burden then shifts to plaintiff to establish that qualified

immunity does not apply by proving that the public official

violated a constitutional right that was ‘clearly established’ at

the time of the challenged conduct. Id.; Echols v. Lawton, 913

F.3d 1313, 1323 (11th Cir.), cert. denied, 139 S. Ct. 2678 (2019).

“Qualified immunity gives government officials breathing room to

make reasonable but mistaken judgments about open legal

questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S. Ct.

2074, 2085 (2011).

In the Eleventh Circuit, “a defense of qualified immunity is

not available in cases alleging excessive force in violation of

the Eighth Amendment, because the use of force ‘maliciously and

sadistically to cause harm’ is clearly established to be a

violation of the Constitution by the Supreme Court decisions in

Hudson and Whitley.” Skrtich v. Thornton, 280 F.3d 1295, 1301

(11th Cir. 2002) (citing Johnson v. Breeden, 280 F.3d 1308 (11th

Cir. 2002)).

The Eleventh Circuit, “and the Supreme Court have long held

that state officials may not retaliate against private citizens

because of the exercise of their First Amendment rights.” Bennett

v. Hendrix, 423 F.3d 1247, 1255 (11th Cir. 2005). “Further, it

is well established that a prison inmate ‘retains those First

Amendment rights that are not inconsistent with his status as a

prisoner or with the legitimate penological objectives of the

corrections system.’” Al-Amin v. Smith, 511 F.3d 1317, 1333 (11th

Cir. 2008) (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S.

Ct. 2800, 2804 (1974)). “When reviewing an official’s retaliatory

conduct for adverse effect, we consider whether his alleged conduct

“would likely deter a person of ordinary firmness from the exercise

of First Amendment rights. . . .” Echols, 913 F.3d at 1320 (citing

Bailey, 843 F.3d at 481).

Based upon the allegations in the SAC, the Court finds

Defendant Pesina is not entitled to qualified immunity at this

stage of the proceedings.

Accordingly, it is hereby

ORDERED:

1. Defendants Murphy and Bowden’s Motion to Dismiss

Plaintiff’s Second Amended Complaint (Doc. #46) is GRANTED and

Plaintiff’s Second Amended Complaint is DISMISSED without

prejudice against Defendants Murphy and Bowden.

2. Defendant Pesina’s Motion to Dismiss Plaintiff’s Second

Amended Complaint (Doc. #47) is GRANTED to the extent Plaintiff’s

Fifth and Fourteenth Amendment Claims stemming from the alleged

destruction of Plaintiff's personal and legal property and

Plaintiff's claims for monetary damages against Defendant Pesina

in his official capacity are DISMISSED. The Motion (Doc. #47) is

otherwise DENIED.

3. Defendant Pesina shall file an answer to Plaintiff's

Second Amended Complaint within twenty-one (21) days.

DONE and ORDERED at Fort Myers, Florida, this 6th day of

November, 2020.

if aw (OL

hy >» ZAK Loeb

adi EF. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Parties of Record