# Cooper v. Lawrence

> District Court, M.D. Florida · November 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10106306

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** November 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106306

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106306. Public record. Not legal advice.