Berry v. Keith

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

THOMAS EUGENE BERRY,

Plaintiff,

v. Case No. 3:20-cv-261-MMH-JBT

OFC. KEITH and OFC.

MCKENZIE,

Defendants.

ORDER

I. Status

Plaintiff Thomas Eugene Berry, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on March 12, 2020,

under the mailbox rule, by filing a pro se Civil Rights Complaint (Doc. 1;

Complaint) pursuant to 42 U.S.C. § 1983. As Defendants, Berry sues Columbia

Correctional Institution Officers Coty McKenzie and Kenneth Keith

(collectively, Defendants) in their individual capacities. Complaint at 1. Berry

asserts Defendants violated his Eighth Amendment right to be free from cruel

and unusual punishment when they used excessive force on him. See generally

id. As relief, Berry seeks $25,000 from each Defendant. Id. at 5.

Defendants’ previously moved to dismiss the Complaint, arguing that

Berry failed to exhaust his administrative remedies. Doc. 11. The Court denied

that motion, but advised Defendants that “if [they] can obtain the relevant

grievances or establish by reference to other documentation obtained from the

FDOC that Berry failed to exhaust,” they may renew the motion to dismiss

based on exhaustion. See Order (Doc. 17).

Before the Court is Defendants’ Amended Motion to Dismiss. See

Defendants’ Amended Motion to Dismiss Plaintiff’s Complaint (Doc. 18;

Amended Motion). The Court advised Berry that the granting of a motion to

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

litigation on the matter and allowed him to respond to the Amended Motion.

See Order of Special Appointment; Directing Service of Process upon

Defendants; Notice to Plaintiff (Doc. 6.); see also Doc. 17 at 9. Berry filed his

response in opposition to the Amended Motion. See Plaintiff’s Response to

Defendants’ Motion to Dismiss (Doc. 19; Response). Defendants’ Amended

Motion is ripe for review.

II. Berry’s Allegations

In his Complaint, Berry alleges that on February 4, 2020, while housed

at Columbia Correctional Institution, Defendants “sprayed [Berry] with

chemical agents without [Berry] violating any F.A.C. Chap. 33 Rules [and]

[b]efore giving [him] a verbal order to submit to hand restraints.” Complaint

at 4. Berry sates,

I [was] on my way to an afternoon call-out when I was

stopped by Ofc. K[ei]th and asked “where are you

going” and I told him to my callout. He then repeated

his question and I gave the same response. At this time

I was about to proceed to Ofc. Kirby who was assigned

to center gate to tell him I had a chapel call-out and

that’s when these defendants started administering

chemical agents to my person. Please review all

possible footage of the cameras. They don’t lie.

Id. at 5. He contends that Defendants violated his rights under the Eighth

Amendment’s prohibition against cruel and unusual punishment. Id. at 3. As

a result of Defendants’ actions, Berry asserts he now suffers from severe post-

traumatic stress disorder that requires medication; he has trouble sleeping and

eating; and is “hearing distant voices.” Id. at 5.

III. Summary of Parties’ Positions on Exhaustion

Defendants request dismissal of Berry’s claims against them because

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

Litigation Reform Act (PLRA), before filing the instant 42 U.S.C. § 1983

lawsuit. Amended Motion at 3-7. Defendants assert that Berry did not exhaust

his administrative remedies because he failed to complete the third step of the

FDOC’s grievance process before initiating this action. Amended Motion at 9.

Specifically, they allege that in his Complaint, Berry admits he filed this

lawsuit before he received a response to his administrative appeal. Id. at 7.

They also argue that Berry filed his Complaint on the same day that he filed

his administrative appeal, and thus, he did not wait the required response time

before seeking relief with the Court. Id. at 7.

In the alternative, Defendants argue that “even if [Berry] had waited the

required time to properly exhaust before filing the instant [C]omplaint, the

grievances refer only to the disciplinary report at issue in this case, not an

excessive use of force claim.” Id. at n.4. In support of their Amended Motion,

Defendants provide a formal grievance, an administrative appeal, and the

department’s respective responses.

First, Defendants provide Berry’s February 11, 2020 formal grievance

(log # 2002-251-053)1, which states the following in pertinent part:

This is an appeal to D.R. Log #251-200143. On 2/11/20

I was found guilty for allegedly violating FAC Chap.

33-601314(6-1) based on the foregoing facts. I am

respectfully asking that the teams finding of guilt be

vacated and that the D.R. be removed from my file.

Facts: on 2/4/20 while walking through center gate in

route to a chapel call-out I was stopped by Ofc. Keith

who asked me where I was going. I advised Ofc. Keith

that I was reporting to my call-out. I then proceed to

speak with Ofc. Kirby who was assigned to center gate

post. At this time Ofc. Keith and McKenzie began to

spray me with chemical agents for reasons unknown.

In the D.R. I received[,] Ofc. Keith alleged, albeit

falsely, that he had given me a verbal order to submit

1 The copy of this formal grievance that Defendants attach to their

Amended Motion lacks the log # (Doc. 18-1 at 5), but Berry provides other

copies of the same formal grievance that contain the designated log # 2002-

251-053 (Doc. 1-2 at 2; Doc. 19-1 at 3).

to hand restraints and that I had refused however

even though the disciplinary team found me guilty, the

procedural errors in the writing of the D.R. is enough

to overturn the teams finding and vacate the D.R. (1)

In the D.R. it was alleged by Ofc. Keith that I was

given a verbal order to “cuff up” and that I simply

refused. . . . In his D.R. Ofc. Keith failed to provide any

specific as to “why” I was being given an order to “cuff

up” or what I had done wrong to initiate such an order.

. . . [I]t should be noted that no other report was

written alleging any other rule violations concerning

the alleged incident. (2) additionally, Ofc. Keith never

stated in the D.R. why he was at center gate even

though he was assigned as P-Dorm housing

supervisor. Furthermore, even though two other ofc’s

were present (ofc. Kirby and McKenzie) and McKenzie

was even involved in the incident, their names are not

mentioned in the D.R. which is contrary to the

provisions of FAC Chap. 33-601.304. . . . I am

respectfully asking that this D.R. be overturned and

removed from my file. . . .

Doc. 18-1. On February 18, 2020, the warden denied Berry’s formal grievance

as follows:

Your request for Administrative Remedy or Appeal

has been received, reviewed and evaluated. Per the

Inmate Handbook In the General Institutional Rules

Section it states in part, “1. Inmates are required to

comply with all applicable provisions of Institutional

Operating Procedures, Department of Corrections

Policy and Procedure Directives, and Rules of the

Department of Corrections, as well as any verbal or

written order from any staff member or other assigned

supervisor”. You were given a lawful, verbal command

by Officer K. Keith and you refused to comply.

Therefore, your formal grievance is denied. Based on

the foregoing, your request for administrative remedy

is denied. . . .

Doc. 18-1 at 4.

Defendants also attach Berry’s February 19, 2020 administrative appeal

(log # 20-6-07747), which provides the following:

This [is] an appeal to formal grievance log # 2002-251-

053, attached.

The facts stated on the formal grievance are re-stated,

re-adopted and incorporated by reference as attached

. . . .

Id. at 3. On March 10, 2020, the Secretary denied Berry’s appeal (log # 20-6-

07747), explaining the following:

Your administrative appeal has been reviewed and

evaluated. The response that you received at the

institutional level has been reviewed and is found to

appropriately address the concerns that you raised at

the institutional level as well as the Central Office

level.

You have not presented sufficient evidence or

information to warrant overturning the disciplinary

report.

Upon review, all pertinent information for a clear

understanding of the charges (6-1) is presented within

the report.

Furthermore, there is no requirement to list any

and/or all witnesses within the statement of facts.

Therefore, it is the [sic] responsibility to request for

any witnesses.

You have not presented any evidence to substantiate

your claim that the reporting officer furnished false

information in his/her statement of facts.

Other than explaining your guilt, you have not

provided this office with any new information or

mitigating factors not otherwise available to or known

by the disciplinary team at the time of their review and

action in connection with the rule infraction in

question.

Your administrative appeal is denied.

Id. at 2.

In his Response, Berry argues that he completed the three-step

grievance process to fully exhaust his administrative remedies before filing

suit. Response at 1-2. In support of that assertion, he argues that he filed an

informal grievance (log # 257-2002-0082) on February 9, 2020. Doc. 19-1 at 2.

In that informal grievance, Berry stated the following:

I am claiming intentional misconduct on Ofc.

Keith, KKMII who has recently used a use of force on

me with Ofc. McKenzie on 2/4/20 at the center gate

(poppa dormside) around 13:40 hrs. as I was reporting

to a chapel call-out. This has really caused me a very

high level of post traumatic stress disorder because I

don’t really know the next staff member who may do

the same as he did. He never submitted, indicated, or

said in his report the rule or rules of the D.O.C. that I

had violated or any unusual behavior I may have had

for his reason to ask me to submit to hand restraints

that is clearly unknown. Please review the camera

before making your decision.

Doc. 19-1 at 2; see also Doc. 1-1 at 1. On February 19, 2020, officials denied the

informal grievance, stating, “this use of force was reported and documented.”

Doc. 19-1 at 2.

Then relying on the same formal grievance and appeal that Defendants

provided, Berry argues that he completed the three-step grievance process. See

Doc. 19-1. He asserts that on February 11, 2020, he filed “his second grievance

to the warden and it was logged as 2002-251-053.” Response at 1. The warden

denied that grievance (log # 2002-251-053) on February 18, 2020. Id. Finally,

Berry argues that on February 19, 2020, he filed “his final grievance to the

Secretary” who “logged it as 20-6-07747.” Id.; see also Doc. 19-1 at 3-6.

According to Berry, the Secretary denied his final grievance on March 10, 2020.

Response at 1. Berry filed the Complaint two days later, on March 12, 2020.

Complaint at 1.

IV. Analysis

The PLRA requires Berry to exhaust his available administrative

remedies before pursuing a § 1983 claim about prison conditions. See 42 U.S.C.

§ 1997e(a) (“No action shall be brought with respect to prison conditions under

section 1983 . . . until such administrative remedies as are available are

exhausted.”); see also Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (noting that

a prisoner must exhaust administrative remedies before challenging the

conditions of confinement, and concluding that the PLRA demands “proper

exhaustion”). Nevertheless, Berry need not “specially plead or demonstrate

exhaustion in [his] complaint[].” See Jones v. Bock, 549 U.S. 199, 216 (2007).

Instead, the United States Supreme Court has recognized that “failure to

exhaust is an affirmative defense under the PLRA[.]” Id.

Importantly, exhaustion of available administrative remedies is “a

precondition to an adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368,

1374 (11th Cir. 2008). See also Jones, 549 U.S. at 211. The Supreme Court has

instructed that while “the PLRA exhaustion requirement is not

jurisdictional[,]” Woodford, 548 U.S. at 101, “exhaustion is mandatory . . . and

unexhausted claims cannot be brought,” Pavao v. Sims, 679 F. App’x 819, 823

(11th Cir. 2017) (per curiam) (citing Jones, 549 U.S. at 211). Not only is there

a recognized exhaustion requirement, “the PLRA . . . requires proper

exhaustion” as set forth in applicable administrative rules and policies of the

institution. Woodford, 548 U.S. at 93.

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).”

Id. at 90 (citation omitted). Indeed, “[p]roper exhaustion demands compliance

with an agency’s deadlines and other critical procedural rules[.]” Id.

Because failure to exhaust administrative remedies is an affirmative

defense, Defendants bear “the burden of proving that [Berry] has failed to

exhaust his available administrative remedies.” Turner v. Burnside, 541 F.3d

1077, 1082 (11th Cir. 2008). The Eleventh Circuit has articulated a 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. 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).

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 inmates with a

three-step grievance process for exhausting administrative remedies. As the

Eleventh Circuit has described it:

The grievance procedure applicable to Florida

prisoners is set out in § 33-103 of the Florida

Administrative Code. Section 33-103 contemplates a

three-step sequential grievance procedure: (1)

informal grievance; (2) formal grievance; and then (3)

administrative appeal. Dimanche, 783 F.3d at 1211.

Informal grievances are handled by the staff member

responsible for the particular area of the problem at

the institution; formal grievances are handled by the

warden of the institution; and administrative appeals

are handled by the Office of the Secretary of the

FDOC. See Fla. Admin. Code. §§ 33-103.005–103.007.

To exhaust these remedies, prisoners ordinarily must

complete these steps in order and within the time

limits set forth in § 33-103.011, and must either

receive a response or wait a certain period of time

before proceeding to the next step. See id. § 33-

103.011(4).

Pavao, 679 F. App’x at 824.

Because the factual allegations in Berry’s Response conflict with

Defendants’ factual allegations, the Court, accepting Berry’s view of the facts

as true, finds dismissal of the claims against Defendants for lack of exhaustion

is not warranted at the first step of Turner. Thus, the Court will proceed to

Turner’s second step and make specific findings to resolve the disputed factual

issues related to exhaustion.

First, Defendants argue that Berry failed to exhaust his administrative

remedies because Berry filed the Complaint before he received a response to

the administrative appeal (log # 20-6-07747) or before the response time

expired. Amended Motion at 7. The Court rejects Defendants’ argument.

Indeed, on March 10, 2020, the Secretary denied the administrative appeal (log

# 20-6-07747) and in his Response, Berry alleges that the denial was returned

to him on that day.2 Doc. 18-1 at 2; Response at 1. Berry filed the Complaint

two days later on March 12, 2020.

Second, Defendants argue that “even if [Berry] waited the required time

to properly exhaust before filing the instant [C]omplaint, the grievances refer

only to the disciplinary report at issue in this case, not an excessive use of force

claim.”3 Amended Motion at 7 n.4. This Court agrees. Only the February 9,

2020 informal grievance (log # 257-2002-0082) relates to the Eighth

Amendment claim against Defendants. Doc. 1-1 at 1at 1; Doc. 19-1 at 2. And

the record demonstrates that Berry did not adequately pursue his

administrative remedies regarding that Eighth Amendment claim in the

formal grievance (log # 2002-251-053) and the administrative appeal (log # 20-

6-07747) that he filed thereafter. To that end, the Court highlights two

procedural and substantive facts that show Berry’s failure to exhaust.

2 The Court notes that while the Secretary’s denial of administrative

appeal (log # 20-6-07747) also contains a stamp date of March 13, 2020,

Defendants do not argue that Berry received the denial on March 13, 2020, nor

do they otherwise counter Berry’s argument that the denial was returned to

him on March 10, 2020.

3 The only claim that Berry raises in his Complaint is the Eighth

Amendment excessive force claim involving the February 4, 2020 use of

chemical agents. See generally Complaint.

First, Berry submitted formal grievance (log # 2002-251-053) on

February 11, 2020, eight days before the department denied his informal

grievance (log # 257-2002-0082). Second, and likely of more import, the formal

grievance (log # 2002-251-053) and the administrative appeal (log # 20-6-

07747) involved a February 11, 2020 disciplinary report that Berry sought to

overturn. Although the formal grievance (log # 2002-251-053) references the

February 4, 2020 alleged use of force, it is evident from Berry’s request for

relief therein that he was asking prison officials to investigate his disciplinary

report proceedings. See Doc. 19-1 at 3. It is also evident from the institutional

response that prison officials did not interpret Berry’s formal grievance as a

complaint about excessive force or an Eighth Amendment violation, but as a

grievance challenging the alleged false disciplinary report and unfair

disciplinary proceedings. Further, Berry’s administrative appeal (log # 20-6-

07747) focused solely on the allegations stated in his formal grievance (log #

2002-251-053), and the Secretary’s denial of the appeal states Berry failed to

“present sufficient evidence or information to warrant overturning the

disciplinary report.” Doc. 18-1 at 2-3.

The purpose of the grievance procedure and exhaustion requirement is

to alert prison officials to problems and allow prison officials time and

opportunity to address complaints internally before seeking judicial

intervention. Woodford, 548 U.S. at 93; see also Jones, 549 U.S. at 219 (noting

that the primary purpose of the exhaustion requirement is “to alert prison

officials to a problem, not to provide personal notice to a particular official that

he may be sued”). Neither Berry’s formal grievance nor his grievance appeal

asked prison officials to look into the alleged use of excessive force but instead

requested that his “D.R. be overturned and removed from” his file. For these

reasons, Berry has not properly exhausted his Eighth Amendment claims

against Defendants. As such, Defendants’ Amended Motion is due to be

granted and this case is dismissed without prejudice.

Accordingly, it is

ORDERED AND ADJUDGED:

1. Defendants’ Amended Motion to Dismiss Plaintiff’s Complaint

(Doc. 18) is GRANTED.

2. The claims against Defendants Coty McKenzie and Kenneth Keith

are DISMISSED without prejudice.

3. Berry’s Motion for Permission to Amend Complaint (Doc. 25) is

DENIED. He seeks to amend his underlying excessive force claims to add

allegations regarding his physical injury; however, his proposed amendment

would not cure his failure to exhaust those claims.

4, 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 21st day of April,

2021.

MARCIA MORALES HOWARD

United States District Judge

Jax-7

C: Thomas Eugene Berry, #T09514

Lindsey Miller-Hailey, Esq.

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