Hardin v. Jones

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOSHUA N. HARDIN,

Plaintiff,

v. Case No. 3:18-cv-3-MMH-JBT

SGT. J. JONES and ZARATE,

Defendants.

____________________________

ORDER

I. Status

Plaintiff Joshua N. Hardin, an inmate of the Florida penal system,

initiated this case by filing a pro se Civil Rights Complaint (Doc. 1) on January

2, 2018.1 He is currently proceeding on a Second Amended Complaint (Doc. 35;

Second Amended Complaint or SAC) against two Defendants: (1) Johnathan

Jones, a Sergeant with the Florida Department of Corrections (FDOC); and (2)

FDOC Correctional Officer Zarate. Hardin asserts that “Defendants violated

1 Hardin signed and dated the Complaint on December 28, 2017, and it was

received and filed by the Clerk on January 2, 2018. See Complaint (Doc. 1) at

14.

federal as well as state law” prohibitions against cruel and unusual

punishment. SAC at 3.2

Before the Court are the parties’ cross-motions for summary judgment.

See Defendants’ Motion for Summary Judgment (Doc. 95; Defendants’ Motion);

Plaintiff’s Motion for Summary Judgment (Doc. 97; Plaintiff’s Motion).3 Hardin

filed a Response to Summary Judgment (Doc. 100; Hardin’s Response), and

Defendants filed a Response in Opposition to Plaintiff’s Motion (Doc. 109). On

December 9, 2020, the Court directed Defendants to file a reply addressing

Hardin’s assertions in his Response regarding exhaustion. See Order (Doc.

108). Defendants filed a Reply (Doc. 116; Defendants’ Reply). The Motions are

ripe for review.

II. Hardin’s Second Amended Complaint

Hardin alleges that on December 26, 2017,

I was placed in a cell with a gang member who advised

[a]forementioned off[icer]s that he would slap the sh*t

out of me should I become his cellmate.

[Af]orementioned off[icer]s placed me in the cell [and]

2 The Court previously dismissed all claims against Defendant Gamble, see

Order (Doc. 61), and all claims for monetary damages against Defendants

Jones and Zarate in their official capacities, see Order (Doc. 67).

3 The Court advised Hardin of the provisions of Federal Rule of Civil Procedure

56, notified him that the granting of a motion to dismiss or a motion for

summary judgment would represent a final adjudication of this case which

may foreclose subsequent litigation on the matter, and gave him an

opportunity to respond to Defendants’ Motion. See Order (Doc. 36); Summary

Judgment Notice (Doc. 96).

I was slap[p]ed and pushed onto the floor and punched

in the left temple x3. All officials refused to remove me

from the cell [and] allowed this inmate to batter me for

approx[imate]ly 6½ hours. On or about Jan[uary] 1[,]

2018[,] Inspector Gamble investigated the assault

[and] took pictures of [the] injuries. All officers acted

in offic[i]al capacity at [the] time of [the] inc[i]dent

[and] fu[r]ther knowingly/willingly subjected me to

cruel [and] unusual punishment.

SAC at 5 (paragraph enumeration and some capitalization omitted). Hardin

asserts that as a result of Defendants’ unconstitutional and negligent conduct,

he suffered severe bruising to the left side of his face and continues to

experience extreme paranoia. Id. As relief, he requests $35,000 in monetary

damages. Id.

On the complaint form, with respect to exhaustion of his administrative

remedies, Hardin states that he did not have to file a grievance “due to

[r]eporting [Prison Rape Elimination Act (PREA)] due to sexual assault which

caused Inspector [G]amble (I.G.’s office) to investigate [p]hysical

battery/assault as well.” Id. at 6; see also id. at 7 (Hardin checked “No,” in

response to the question of whether he filed any grievances concerning the

facts relating to his complaint). He states that “Sgt DeMario . . . contacted Shift

Supervisor and he contacted Inspector Gamble.” Id. at 8. He further advises

that he did not file any grievances because the “[i]ssue was automatically

ref[erre]d to Office of [I]nspector [G]eneral.” Id.

III. Discussion

When a defendant raises a failure-to-exhaust defense in a motion for

summary judgment, the Court must treat the motion as a motion to dismiss,

because the determination of whether an inmate exhausted his available

administrative remedies is a matter of abatement. Bryant v. Rich, 530 F.3d

1368, 1374-75 (11th Cir. 2008). For the reasons set forth below, the Court finds

that Hardin failed to exhaust his administrative remedies prior to filing this

case. As such, the Court need not address the parties’ summary judgment

arguments.

A. Parties’ Positions Regarding Exhaustion

According to Defendants, Hardin acknowledges in his Second Amended

Complaint that he did not file any grievances regarding the claims he raises in

this case, and Hardin, for his part, contends he was not required to do so

because he had reported a separate complaint pursuant to the PREA. See

Defendants’ Motion at 13-14. Defendants recognize that Hardin filed a direct

grievance on January 2, 2018, but argue that not only did Hardin incorrectly

skip the first two steps of the process, but that grievance did not address any

of the allegations raised in the Second Amended Complaint. See id. at 15-16.

Defendants attach to their Motion a copy of Hardin’s January 2, 2018 direct

grievance and the FDOC’s response. See Doc. 95-1 at 1-3 (grievance log #18-6-

02900).

In the grievance submitted on January 2, 2018,4 Hardin stated that he

was filing the grievance directly to the Secretary because it involved

allegations regarding the PREA. See Doc. 95-1 at 1. He alleged that he reported

violations of the PREA to two employees (Lt. Hale and Mrs. Brimes), and

Hardin complained about how they responded to his report. See id. at 1-2.

Hardin also stated that on December 26, 2017, “Sgt. J. Jones removed the

pants in which [Hardin] was wearing during the alleged assault. Due to this

negl[i]gence/direct refusal by Lt. M. Hale as well as MHP Mrs. Brimes, the

allegations w[ere] not properly reported as well as investigated until 12-28-

2017.” Id. at 2.

On January 25, 2018, the FDOC responded:

Your appeal has been reviewed and evaluated.

The subject of your grievance was previously referred

to the Office of the Inspector General. It is the

responsibility of that office to determine the amount

and type of inquiry that will be conducted. This

inquiry-review may or may not include a personal

interview with you. Upon completion of this review,

information will be provided to appropriate

administrators for final determination and handling.

Your issue regarding staff negligence is a

separate issue and should be grieved as such, also,

being initiated at the appropriate level.

4 Hardin inadvertently dated the grievance January 2, 2017. See Doc. 95-1 at

1. The prison date stamp shows it was received by the FDOC Inmate Grievance

Appeals office on January 8, 2018. See id.

As this process was initiated prior to the receipt

of your appeal, your request for action by this office is

denied.

Id. at 3.

In Hardin’s Response, he asserts that he “addressed all acts by offc/sgt

and the fact that he’d been forced at knife point to p[er]form oral sex on

cellmate[,] addressing these matters on a DC1-303 in which the institutional

admin approved such grievances and further ref[erre]d them to the office of the

inspector general.” Hardin’s Response at 2-3 (some capitalization omitted); see

also id. at 7 (“Due to Plaintiff’s gr[i]evance[]s being approved at the

inst[it]utional level/forwarded to the office of the inspector general he in fact

exhausted his administrative rem[edi]es and didn’t skip any part of the

inst[it]utional gr[i]evance process due to gr[i]evances alleging physical and[/]or

sexual abuse . . . being permitted to be filed directly with the central office of

[FDOC].”). Hardin contends that he spoke to an inspector around January 1,

2018, and “Defendants’ counsel was made aware of all acts . . . during telephone

depositions taken . . . in April 2020.” Id. at 3; see also id. at 4 (arguing that

Defendants “clearly subjected Plaintiff to cruel and unusual punishment which

is clearly reflected in deposition transcripts and amended complaint as well as

in gr[i]evance[]s submitted and approved by the inst[it]ution and forwarded to

Inspector’s office and investigated by Inspector J. Gamble in January 2018”).

In the Reply, Defendants assert that Hardin was released from custody

on January 28, 2018, and returned to custody for a new commitment in July

2018. See Defendants’ Reply at 3; see also Doc. 116-3 (inmate

movement/transfer history sheet showing Hardin was released on January 28,

2018, and that he returned to custody on July 24, 2018). Recognizing that the

form Hardin says he used to file his grievance—DC1-303—can be used to file

a formal grievance or a grievance appeal/direct grievance, Defendants argue

that Hardin’s grievance records demonstrate that he did not file any formal

grievances between December 26, 2017 (the date of the alleged incident), and

January 28, 2018 (his release date), and the only grievance appeal (or direct

grievance) he did file during that time is the one attached to Defendants’

Motion. See Defendants’ Reply at 3, 8. In support of these assertions,

Defendants submitted the Declaration of Ramona Cox-Pye (Doc. 116-1), a

Correctional Services Assistant Consultant in Public Records with the FDOC,

and the Declaration of Lawanda Sanders (Doc. 116-2), who is employed at the

FDOC’s Central Office. Ms. Cox-Pye avers that she reviewed Hardin’s file, and

he did not submit any formal grievances between December 26, 2017, and

January 28, 2018. See Doc. 116-1 at 1. Ms. Sanders avers that Hardin

submitted one grievance appeal (log #18-6-02900)—the same grievance that is

attached to Defendants’ Motion and detailed above—between December 26,

2017, and January 28, 2018. See Doc. 116-2 at 1. Ms. Sanders attaches to her

Declaration a grievance appeal log which confirms her statement. See id. at 2.

B. Governing Legal Authority Regarding Exhaustion

The Prison Litigation Reform Act (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 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, 530 F.3d at 1374. 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,[5] 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 Eleventh Circuit has explained the two-step process that the Court

must employ when examining the issue of exhaustion of administrative

remedies.

In Turner v. Burnside we established a two-step

process for resolving motions to dismiss prisoner

lawsuits for failure to exhaust. 541 F.3d at 1082.[6]

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

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

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

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).7

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, 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

7 The Court notes that “[a]lthough 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.”).

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, grievances of reprisal, or grievances regarding sexual abuse when

the abuse is alleged to have been committed by the Warden of the institution

where the inmate is currently housed 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 and responses to grievances. Generally, the following time

frames 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). Likewise, a direct grievance “[m]ust be

received within 15 calendar days from the date on which the incident or action

which is the subject of the grievance occurred.” Fla. Admin. Code r. 33-

103.011(1)(d). As to response times, following receipt of the grievance, a

written response to an informal grievance must be completed within 15

calendar days; the reviewing authority shall take action and respond to a

formal grievance within 20 calendar days of receipt; and the Office of the

Secretary has “30 calendar days from the date of the receipt of the grievance”

in which to provide a response to a direct grievance and 15 calendar days to

respond to an emergency grievance. Fla. Admin. Code r. 33-103.011(3)(a)-(d).

C. Analysis

Taking Hardin’s assertions in his response as true, dismissal is not

warranted at the first step of the Turner exhaustion analysis. As such, the

Court proceeds to the second step and makes specific findings of fact to resolve

disputed issues related to exhaustion.

Defendants have shown, through Declarations of FDOC employees and

the grievance appeal log, that Hardin filed one grievance appeal during the

relevant time frame. This direct grievance, as detailed above, was written by

Hardin on January 2, 2018, and the substance of that grievance does not

address the specific claims raised in this lawsuit. Indeed, in the Second

Amended Complaint, Hardin raises Eighth Amendment and negligence claims

against Defendants Jones and Zarate for allegedly placing him inside a cell

with another inmate and leaving him inside that cell after being advised that

the other inmate would assault him. Hardin does not mention these claims in

his January 2, 2018 direct grievance. Thus, the filing of that direct grievance

did not exhaust Hardin’s administrative remedies with respect to the claims

raised in the Second Amended Complaint.

The Court further notes that according to the signature block on the

initial Complaint, Hardin drafted his Complaint on December 28, 2017, only

two days after the alleged incident about which he complains in this case. The

Clerk received the Complaint and filed it on January 2, 2018—the same day

Hardin drafted the direct grievance. However, an inmate is required to

properly exhaust his administrative remedies before initiating a § 1983 action.

See Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012). This is because the

inmate must afford the agency a “fair and full opportunity” to address his

issues on the merits before he seeks judicial intervention. Woodford, 548 U.S.

at 90. Based on the filing date of the Complaint and the submission of the direct

grievance, the Court finds that Hardin filed this case before allowing the FDOC

a “fair and full opportunity” to address the claims raised in the grievance.

Thus, even if that direct grievance included the claims raised in this case, it

could not have exhausted Hardin’s administrative remedies.8 See Smith, 491

8 Although Hardin twice amended his Complaint, such amendments cannot

change “the important historical fact”—Hardin failed to exhaust his

administrative remedies prior to filing this case. See Smith, 491 F. App’x at 83

(citations omitted) (“The only facts pertinent to determining whether a

prisoner has satisfied the PLRA’s exhaustion requirement are those that

existed when he filed his original complaint.”).

F. App’x at 83, 84 (holding the plaintiff did not properly exhaust his

administrative remedies because he “brought” his lawsuit before receiving a

response to his grievance appeal and before the response time expired).

Hardin admits in his Second Amended Complaint that he did not submit

any grievances related to the claims in this case. While he alleges differently

in his response to Defendants’ Motion, the records submitted by Defendants

refute his assertion that he exhausted his administrative remedies by filing a

direct grievance to the Secretary.9 Defendants have carried their burden of

showing that Hardin failed to exhaust his administrative remedies prior to

filing this case. Therefore, upon review of the parties’ submissions and the file,

the Court finds that this case is due to be dismissed without prejudice for

Hardin’s failure to exhaust.

Accordingly, it is

ORDERED:

9 Notably, Hardin drafted the Complaint two days after the alleged incident,

and the Complaint was received and filed by the Clerk within one week of the

incident. Even if Hardin had submitted an informal grievance regarding the

incident—which he does not allege—and that grievance had been approved, it

is seemingly inconceivable that he would have submitted the grievance and it

would have been received and approved in less than one week. Rather, based

on Hardin’s allegations in the Second Amended Complaint, it appears that he

reported his allegations of sexual assault by his cellmate to a staff member,

and Hardin’s allegations of sexual assault were subsequently reported to the

Inspector General’s office, which resulted in Inspector Gamble interviewing

him around January 1, 2018.

1. Defendants’ Motion for Summary Judgment (Doc. 95) is

GRANTED to the extent it seeks dismissal for Hardin’s failure to exhaust

his administrative remedies.

2. Plaintiff's Motion for Summary Judgment (Doc. 97) is DENIED as

moot.

3. Plaintiff's Motion for Appointment of Counsel (Doc. 106) is

DENIED.'°

4, This case is DISMISSED without prejudice for Hardin’s failure

to exhaust.

5. The Clerk shall enter judgment dismissing this case without

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

DONE AND ORDERED at Jacksonville, Florida, this 10 day of

February, 2021.

United States District Judge

JAX-3 2/8

Joshua N. Hardin, #N28219

Counsel of Record

10 The Court has denied Hardin’s requests for counsel on four prior occasions.

See Orders (Docs. 50, 75, 77, 86). Appointment of counsel is not warranted.

15