# Berry v. Keith

> District Court, M.D. Florida · April 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10107371

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 21, 2021
- **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/10107371

## How later opinions describe it (automated extraction)

- explaining that defendants bear the burden of showing a failure to exhaust
- noting that a prisoner must exhaust administrative remedies before challenging the conditions of confinement, and concluding that the PLRA demands “proper exhaustion”
- stating that “it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion”
- 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”

## Opinion text

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.

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107371. Public record. Not legal advice.