Stephens v. Corizon of Florida, LLC.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WILLIAM T. STEPHENS,

Plaintiff,

vs. Case No.: 3:20-cv-70-BJD-PDB

CORIZON, LLC, et al.,

Defendants.

/

ORDER ON MOTION TO DISMISS

I. Status

Plaintiff William T. Stephens, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on January 24, 2020,1

by filing a pro se Civil Rights Complaint under 42 U.S.C. § 1983. (Doc. 1,

Complaint). He is proceeding on an Amended Complaint (Doc. 16, Am. Compl.),

which he filed through court-appointed counsel on December 9, 2020. He sues

FDOC and two medical service contractors: Corizon, LLC (“Corizon”), and

Centurion of Florida, LLC (“Centurion”). Plaintiff alleges that because of a cost-

saving policy, FDOC, Corizon, and Centurion failed to provide him lifesaving

treatment for Hepatitis C, in violation of the Eighth Amendment, the

Americans With Disabilities Act (ADA), and the Rehabilitation Act of 1973.

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

Before the Court are the Defendants’ motions to dismiss the Amended

Complaint. (Doc. 36, Centurion Motion; Doc. 37, FDOC Motion; Doc. 40, Corizon

Motion). Defendants argue that Plaintiff failed to exhaust available

administrative remedies. Centurion also argues that Plaintiff failed to state a

claim for relief because he has not alleged facts showing (1) that Centurion had

a policy or custom of denying treatment to inmates with HCV or (2) that any

policy or custom of Centurion was the “moving force” behind a constitutional

violation.2 Plaintiff responded in opposition. (Doc. 42, Response to Motions to

Dismiss). FDOC filed a reply (Doc. 47, FDOC’s Reply), and Plaintiff filed a sur-

reply (Doc. 50, Plaintiff’s Sur-Reply). The motions are ripe for review.

II. Plaintiff’s Allegations3

Hepatitis C is a blood-borne disease caused by the Hepatitis C virus

(HCV). HCV primarily affects the liver, and if left untreated it can lead to

serious illness or death. Am. Compl., ¶¶ 15–21. Chronic HCV can cause fibrosis

of the liver, which occurs when scar tissue replaces healthy liver tissue. Over

time, the scar tissue – or fibrosis – can take over most of the liver, at which

point the fibrosis is termed “cirrhosis.” Id., ¶ 19. Extensive scarring of the liver

2 Centurion also moved to stay proceedings pending resolution of the motions to dismiss

(Doc. 38, Motion to Stay), and Plaintiff responded (Doc. 43, Response to Motion to Stay).

3 Because this case is before the Court on Defendants’ motions to dismiss, the Court

accepts the complaint’s allegations as true and construes them in the light most favorable to

the plaintiff. Cinotto v. Delta Air Lines, Inc., 674 F.3d 1285, 1291 (11th Cir. 2012).

may not only cause additional complications like kidney disease, but it can also

increase the risk of liver cancer. People who have human immunodeficiency

virus (HIV) in addition to HCV are at higher risk of rapidly developing liver

disease. Id., ¶ 22. According to one study, “delaying treatment for a person with

HCV and HIV until they have cirrhosis increases their risk of liver related

mortality by five times.” Id., ¶ 23.

In 2013, a new type of drug emerged for treating HCV, called a direct-

acting antiviral (DAA). Id., ¶ 24. DAA’s are oral medications that have few side

effects and are over 95% effective at curing HCV. Id., ¶ 25. DAA therapy has

been part of the standard of care for treating HCV patients since 2014, following

guidance issued by the American Association for the Study of Liver Diseases

(AASLD) and the Infectious Disease Society of America (IDSA). Id., ¶¶ 26–31.

Plaintiff was long ago diagnosed with both HCV and HIV. See id., ¶¶ 40,

42. FDOC has known (or should have known) Plaintiff had HCV and HIV since

he was taken into FDOC custody in 2007. Id., ¶ 40. Plaintiff alleges that FDOC’s

medical service providers – Corizon and Centurion – knew or should have

known he had these conditions as well. See id., ¶¶ 42, 64, 72. From 2013, when

DAA’s became available, until October 2017, FDOC and its medical contractors

failed to provide DAA’s to Plaintiff and thousands of other HCV-positive

inmates. Id., ¶¶ 32–33. Plaintiff alleges that FDOC, Corizon, and Centurion

failed to offer DAA therapy despite knowing about DAA’s and despite knowing

that DAA therapy was part of the standard of care for treating HCV. Id., ¶¶ 32,

35–37, 48–50. According to Plaintiff, from 2013 to 2016, FDOC and Corizon

refused to provide DAA’s to him and other inmates because FDOC and Corizon

wanted to reduce costs and increase the contractor’s profits. See id., ¶¶ 35–46.

Plaintiff alleges that FDOC and Centurion continued the same policy after

Centurion took over as FDOC’s medical service provider in May 2016. See id.,

¶¶ 47–57. Plaintiff states that FDOC and Centurion provided him DAA’s only

in October 2017, when FDOC and Centurion were sued in federal court over

their failure to treat inmates who had HCV. Id., ¶¶ 34, 54.

Plaintiff asserts that Defendants’ delay in treating his HCV “caused his

quality of life to substantially deteriorate, and has caused permanent liver

damage.” Id., ¶ 58. Plaintiff is “at heightened risk for developing further

symptoms [of HCV] including further advanced liver failure, liver cancer, and

death.” Id., ¶ 59. According to Plaintiff, “[t]he willful and deliberate acts of

Defendants FDC, Corizon, and Centurion, in withholding HCV treatment for

Mr. Stephens, have caused him great physical pain and mental discomfort in

his daily activities of living. It has shortened his lifespan and has caused him

severe emotional pain and suffering.” Id., ¶ 60.

Based on these facts, Plaintiff asserts four claims in the Amended

Complaint. In Counts One and Two, he alleges that Corizon and Centurion,

respectively, were deliberately indifferent to a serious medical need because

they denied him necessary treatment for chronic HCV, in violation of the Eighth

Amendment. Am. Compl. ¶¶ 61–68 (Count One), ¶¶ 69–76 (Count Two). In

Count Three, Plaintiff asserts that FDOC discriminated against him based on

his disability because it withheld medical treatment for HCV but did not

withhold treatment from prisoners who had other disabilities or who were not

disabled. Id., ¶¶ 77–93. Finally, in Count Four, Plaintiff alleges that FDOC

violated the Rehabilitation Act by excluding him from receiving HCV treatment

solely by reason of his disability. Id., ¶¶ 94–102. Plaintiff seeks a declaration

that Corizon and Centurion violated Plaintiff’s rights under the Eighth

Amendment and that FDOC violated Plaintiff’s rights under the ADA and the

Rehabilitation Act. Plaintiff also seeks compensatory damages against all

Defendants, punitive damages against Corizon and Centurion, attorneys’ fees

and costs, and any other appropriate relief.

III. Parties’ Positions on Exhaustion

The threshold issue in this case is exhaustion. Each Defendant argues

that Plaintiff failed to exhaust administrative remedies before filing the § 1983

lawsuit, as required by the Prison Litigation Reform Act (PLRA). Centurion

Motion at 2, 6–9; FDOC Motion at 1, 3–6; Corizon Motion at 4–7. Specifically,

Defendants argue that Plaintiff failed to comply with the time constraints

imposed by FDOC’s grievance procedures.

FDOC submits records showing that on March 16, 2018, Centurion began

to administer a 12-week DAA treatment regimen to Plaintiff. FDOC Motion at

2; (Doc. 37-2, FDOC Exhibit 2). Centurion used a drug called Epclusa. Plaintiff

completed the treatment program, and in September 2018 he was deemed cured

of HCV, as reflected by a test showing undetectable levels of the virus. See id.

Plaintiff did not file a grievance regarding the denial of treatment for

HCV until June 26, 2019 – more than a year after Plaintiff received DAA

therapy and about nine months after he had cleared the virus. (See Doc. 37-3

[FDOC Exhibit 3] at 7, Formal Grievance No. 1906-213-145). In the grievance,

Plaintiff stated:

This is a formal medical grievance filed in accordance with the Fla.

Admin. Code, Chapter 33-103.

The Department’s former Secretary, Julie Jones and other Central Office

Personnel; the former Health Care Provider, Corizon Health Services and

their personnel, the current Health Care Provider, Centurion of Florida

have been deliberate[ly] indifferent to my serious medical needs, ie.

(HCV)

Although I was treated for the (HCV) last year, due to a Federal Court

Order[4], the parties mentioned above subjected me to inadequate policies

and a custom and practice of denial of 99.99% treatment for all (HCV)

inmates, including Grievant was rooted in concerns of cost rather than

my right to the recognized standard of care in a timely fashion. The above

mentioned parties knowingly allowed the progression [of] this deadly

virus to severely damage my liver and now subject me to a much greater

chance (2 to 5) times higher of developing liver cancer in the future.

4 The “Federal Court Order” Plaintiff was referring to was a preliminary injunction

entered in November 2017 in Hoffer v. Jones, 290 F. Supp. 3d 1292 (N.D. Fla. 2017), where

the district court ordered the FDOC to begin providing treatment (including DAA therapy) to

inmates who were positive for HCV.

The parties mentioned above have subjected me to Cruel and Unusual

Punishment in violation of my Constitutional Right under the Eighth

Amendment.

Grievant request[s] that he be compensated a half-million dollars and or

release[d] from incarceration from his current sentence.

Id.

On July 9, 2019, the institution responded to the formal grievance,

stating:

Your request for Administrative Remedy or Appeal has been received,

reviewed, and evaluated.

Inmate STEPHENS, Centurion is in compliance with the current judicial

ruling; client care before Centurion was in place is not a subject we can

address. If you have questions concerning your current condition, please

follow the Sick-Call process that is available.

You are being treated in accordance with FDC policy and procedure.

*******************

Based on the above information, your grievance is denied.

You may obtain further administrative review of your complaint by

obtaining Form DC1-303, Request for Administrative Remedy or Appeal,

completing the form, and providing attachments as required by Chapter

33-103 and forwarding your appeal to the Bureau of Inmate Grievance

Appeals, 501 South Calhoun St., Tallahassee, Florida, 32399-2500,

within 15 calendar days of this mailed response.

Id. at 8. The institution’s response was signed by E. Toledo, M.D., and T. Knox,

the assistant warden of Union Correctional Institution (UCI).

On July 16, 2019, Plaintiff filed a grievance appeal to the Secretary of the

FDOC. Id. at 6. The appeal was given Grievance Log Number 19-6-27311.

Plaintiff stated in the appeal:

This is a Grievance Appeal on my initial medical grievance # 1906-213-

145 attached, at the institutional level, in accordance to Fla. Admin.

Code, Chapter 33-103. The response did not address the former Secretary

Julie Jones and other Central office personnel in their part of “deliberate

indifference” to my serious medical needs, ie, hepatitis C from January

2015 thru January 2018, who were responsible for the inadequate

policies, as well as the custom and practice that they employed while

dealing with (HCV) inmates and grievant.

[Centurion] the current health care provider, who took over in 2016. The

struthious approach that both [Centurion] and Ms. Jones, her Chief

Medical Advisor and the individual responsible for denying the

submitted legislative proposed budget request twice, to purchase the

medication, ie (DAA’s)

When [Centurion] of Florida took over in 2016, the FDOC had revised the

HSB [Health Services Bulletin] to finally acknowledge[] the standard of

care for treating (HCV) inmates was with (DAA’s). However, from the

time they took over health care, [Centurion] personnel never

recommended evaluation by a specialist let alone treatment per the

revised policy to grievant, or any other (HCV) inmate here at U.C.I., until

the Federal Court Order of November of 2017.

Because of these inactions of the parties mentioned above, knowing

grievant would and had suffered severe damage to his liver, that now

puts him at a far greater risk of developing liver cancer in the future,

despite now having a SVR.[5] Grievant request[s] the same relief as on

the initial grievance for violation of his Eighth Amendment Right.

Id.

In August 2019, the FDOC Secretary, acting through the Bureau of

Inmate Grievance Appeals, returned Plaintiff’s appeal without action. Id. at 5.6

The decision stated:

5 SVR stands for sustained viral (or virological) response. “The term is used to describe

the condition of having cleared a virus on a certain date after treatment.” Hoffer v. Inch, 382

F. Supp. 3d 1288, 1308 n.20 (N.D. Fla. 2019).

6 The FDOC Secretary established the Bureau of Inmate Grievance Appeals to receive,

evaluate, and respond to all grievances and appeals filed with the FDOC Secretary. Fla.

Appeal Returned without Action:

Your administrative appeal to this office is in non-compliance with

Chapter 33-103, Inmate Grievance Procedure. You are grieving

deliberate indifference due to a delay in treatment by Corizon Health

Services and Centurion of Florida prior to you receiving treatment for

HCV last year.

Please be advised that you are outside the timeframe to grieve this issue

and the Institution should have returned your formal grievance.

Formal Grievances must be received no later than 15 calendar days from:

1. The date on which the informal grievance was responded to; or 2. The

date on which the incident or action being grieved occurred.

Just because the Institution failed to return your formal grievance does

not negate our office from returning your appeal.

Also, please be advised that you cannot use the grievance process for

monetary gain and/or tort claims.

Therefore, your appeal is being returned without action.

Id.

Based on the FDOC’s decision on appeal, Defendants argue that Plaintiff

failed to comply with the timeliness requirements of the FDOC’s grievance

regulations. Because the FDOC’s grievance procedures required Plaintiff to file

a formal grievance within 15 calendar days from when the incident or action

being grieved occurred, Fla. Admin. Code § 33-103.011(1)(b), and Plaintiff did

not grieve the denial of HCV treatment until more than a year after he received

DAA therapy, Defendants contend that Plaintiff did not properly exhaust his

Admin. Code § 33-103.007(7). For future reference, the Court refers to the Bureau’s decision

as that of the FDOC Secretary.

administrative remedies.7 In addition, Defendants submit Plaintiff’s FDOC

grievance records (Doc. 36-1, Centurion Ex. A; Doc. 37-3, FDOC Ex. 3; Doc. 39,

Corizon Records), the declaration of Alan McManus (the Bureau Chief of

FDOC’s Bureau of Inmate Grievance Appeals) (FDOC Ex. 3 at 1–2), and the

declaration of Sherry Shoup (a Correctional Sentence Specialist and custodian

of records at UCI) (Doc. 37-4, FDOC Ex. 4). The affidavits and exhibits reflect

that Plaintiff filed no grievances or appeals regarding HCV treatment other

than Formal Grievance Number 1906-213-145 and Appeal Number 19-6-27311.

As a result, Defendants argue that the PLRA bars the current lawsuit because

Plaintiff did not properly exhaust administrative remedies.

Plaintiff counters that the Court “should reject Defendants’ argument

about the 15 day grievance deadline because the Defendants failed the

threshold task of proving when Plaintiff first learned that he should have been

receiving the treatment, which is essential for determining when the 15 day

deadline expires.” Response to Motions to Dismiss at 2. Plaintiff argues that

lack of exhaustion is an affirmative defense, which Defendants have the burden

7 While Centurion and FDOC correctly describe this argument, Corizon’s argument is

less precise. Corizon correctly points out that the FDOC Secretary returned the appeal without

action because Plaintiff did not comply with applicable time constraints. Corizon Motion at 2,

6–7. But Corizon incorrectly states that the Secretary returned the appeal because the appeal

was untimely (which is not true), when in fact the Secretary returned the appeal because the

original grievance was untimely. That said, it is clear what Corizon intended to argue, and

the Court has authority to construe its inartful argument with some liberality. N.L.R.B. v.

Goya Foods of Fla., 525 F.3d 1117, 1135 (11th Cir. 2008). Reconstruing Corizon’s argument

would not prejudice Plaintiff because Centurion and FDOC raise exactly the same exhaustion

argument Corizon intended to make and Plaintiff has responded to those arguments.

of proving. Id. at 3. Relying on Roca-Moreno v. Desouza, No. 19-23688-CV-

COOKE, 2020 WL 7774726 (S.D. Fla. Nov. 12, 2020), report and

recommendation adopted, 2020 WL 7770402 (S.D. Fla. Dec. 30, 2020), an

unpublished district court decision, Plaintiff suggests that the FDOC’s 15-day

deadline for filing a formal grievance incorporates a type of delayed-discovery

doctrine. Response to Motions to Dismiss at 5–7. According to Plaintiff, his

claim accrued, and the 15-day clock began to run, only when he learned DAA

therapy had been delayed and that this delay was wrongful. Plaintiff contends

that merely because he began receiving DAA therapy in March 2018 does not

mean he knew then about the wrongful delay in receiving treatment. Id. at 5

n.1. Because “the Defendants’ record is silent about when Plaintiff first learned

that he may have been wrongly denied Hepatitis C treatment,” he asserts that

Defendants have not met their burden of proving a lack of exhaustion. Id. at 6.

Plaintiff further argues that because the action being grieved “involves complex

issues such as liver cirrhosis, ascites, pharmaceuticals, and the standard of care

for Hepatitis C treatment,” there “is no fixed date when all of the tortious

conduct occurred … that Plaintiff Stephens should have begun counting fifteen

days from to file a grievance.” Id. at 6. Thus, Plaintiff argues that the Court

must reject Defendant’s exhaustion argument.

IV. Analysis

The PLRA requires that Plaintiff exhaust available administrative

remedies before filing 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, Plaintiff need not “specially plead or demonstrate

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

Instead, the Supreme Court has recognized that “failure to exhaust is an

affirmative defense under the PLRA[.]” Id.

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. 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) (citing Jones, 549 U.S. at 211). The PLRA not

only requires exhaustion of administrative remedies, “the PLRA … requires

proper exhaustion.” Woodford, 548 U.S. at 93 (emphasis added).

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). Importantly, “[p]roper exhaustion demands

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

In Ross v. Blake, the Supreme Court instructed that “[c]ourts 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.’” 136 S. Ct. 1850, 1862 (2016). For an administrative remedy

to be available, the “remedy must be ‘capable of use for the accomplishment of

[its] purpose.’” Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008)

(quoting Goebert v. Lee Cnty., 510 F.3d 1312, 1322-23 (11th Cir. 2007)).

Because failure to exhaust administrative remedies is an affirmative

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

exhaust his available administrative remedies.” Id. at 1082.

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)

(“Whatley I”). “A prisoner need not name any particular defendant in a

grievance in order to properly exhaust his claim.” Parzyck v. Prison Health

Servs., Inc., 627 F.3d 1215, 1218 (11th Cir. 2010) (citations omitted).

State law “determines what steps are required to exhaust.” Dimanche v.

Brown, 783 F.3d 1204, 1207 (11th Cir. 2015). Indeed, “it is the prison’s

requirements, and not the PLRA, that define the boundaries of proper

exhaustion.” Jones, 549 U.S. at 218. The FDOC provides inmates with a three-

step grievance process for exhausting administrative remedies. As the Eleventh

Circuit 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. However, the ordinary three-step procedure does

not always apply. For example, a prisoner may skip the informal grievance step

and immediately file a formal grievance for issues pertaining to certain things,

including medical issues and violations of the ADA. Fla. Admin. Code § 33-

103.006(3)(e), (h). If a prisoner bypasses the informal grievance step, he must

file the formal grievance with the warden no later than 15 calendar days from

the date on which the incident or action being grieved occurred. Fla. Admin.

Code § 33-103.011(1)(b). The institution must respond within 20 days of receipt

of the formal grievance. Fla. Admin. Code § 33-103.006(6). “If the inmate is

unsatisfied with the resolution of a formal grievance, he may appeal the

grievance to the Office of the Secretary using Form DC1-303 (same form as a

formal grievance).” Jenkins v. Sloan, 826 F. App’x 833, 835 (11th Cir. 2020)

(citing Fla. Admin. Code § 33-103.007). Once a prisoner successfully completes

this grievance process, he is considered to have exhausted his administrative

remedies. See Chandler v. Crosby, 379 F.3d 1278, 1288 (11th Cir. 2004).

Here, Plaintiff did not properly complete the grievance process (or begin

it, rather). He therefore did not properly exhaust administrative remedies.

A. Turner Step One

At step one of Turner, the Court “looks to the factual allegations in the

defendant’s motion to dismiss and those in the plaintiff’s response, and if they

conflict, takes the plaintiff’s version of the facts as true.” Turner, 541 F.3d at

1082. “If the defendants can establish failure to exhaust based on the plaintiff’s

allegations, dismissal of the complaint is appropriate.” Whatley v. Smith, 898

F.3d 1072, 1082 (11th Cir. 2018) (“Whatley II”) (emphasis in original) (citing

Turner, 541 F.3d at 1082). Even accepting Plaintiff’s version of the facts as true,

dismissal is appropriate for failure to properly exhaust.

FDOC’s grievance rules require that if an inmate bypasses the informal

grievance stage to file a formal grievance (which an inmate may do for medical

issues), the formal grievance “[m]ust be received no later than 15 calendar days

from … [t]he date on which the incident or action being grieved occurred.” Fla.

Admin. Code § 33-103.011(1)(b)(2). Defendants have shown, and Plaintiff does

not dispute, these facts: (1) Centurion began to treat Plaintiff for HCV with a

DAA in March 2018; (2) Plaintiff was found to have cleared the virus by

September 2018; (3) Plaintiff filed a formal medical grievance regarding the

denial of treatment for HCV on June 26, 2019, one year and three months after

he began receiving DAA therapy; (4) the institution denied the formal

grievance, after which Plaintiff filed an appeal to the FDOC Secretary; (5) the

FDOC Secretary returned the appeal without action, ruling that the original

grievance did not comply with Chapter 33-103 of the Florida Administrative

Code because Plaintiff did not file it within 15 calendar days of when the action

or incident being grieved occurred; and (6) Plaintiff has not filed any other

grievances or grievance appeals regarding the denial of treatment for HCV.

(FDOC Exhibits 2, 3, 4; Centurion Exhibit A; Corizon Records).8

The FDOC Secretary’s ruling that Plaintiff’s grievance was untimely is

all but controlling. FDOC is in a superior position to interpret and apply its own

grievance rules, and “it is the prison’s requirements, and not the PLRA, that

define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218 (emphasis

added); see also Dimanche, 783 F.3d at 1207 (state law “determines what steps

are required to exhaust.”). As the Supreme Court has explained, exhaustion

under the PLRA “requires proper exhaustion,” Woodford, 548 U.S. at 93, and

“[p]roper exhaustion demands compliance with an agency’s deadlines and other

critical procedural rules,” id. at 90. An “untimely grievance does not satisfy the

exhaustion requirement of the PLRA.” Johnson v. Meadows, 418 F.3d 1152,

1157 (11th Cir. 2005). Since there is no dispute that the FDOC returned

Plaintiff’s appeal without action, citing his failure to timely file the grievance,

he has not properly exhausted.

Although officials at the institutional level responded to Plaintiff’s formal

grievance on the merits (at least as far as Plaintiff’s complaint against

Centurion and the FDOC went), that is irrelevant. Of course, a prison system

can waive strict compliance with its grievance procedures, in which case “a

8 Alternatively, if these facts were disputed, the Court would make the same findings of

fact at step two of the Turner analysis. The Court has no reason to doubt the credibility of

FDOC’s affiants or the accuracy and completeness of the grievance records.

procedural flaw ignored by a prison cannot later be resurrected by the District

Court to defeat exhaustion.” Whatley I, 802 F.3d at 1215. But “a prison does not

waive a procedural defect unless and until it decides the procedurally flawed

grievance on the merits at the last available stage of administrative review.”

Whatley II, 898 F.3d at 1083 (emphasis added). “If a state’s last administrative

body denies a grievance for valid procedural reasons, the court is required to

find that grievance unexhausted under the PLRA.” Whatley I, 802 F.3d at 1216

(Vinson, J., concurring). FDOC’s grievance regulations permit a grievance

appeal to be returned without action for a variety of reasons, Fla. Admin. Code

§ 33-103.007(6)(d), including if “[t]he formal grievance was not received within

15 calendar days of the date on which the incident or action being complained

about occurred, if an informal grievance was not filed pursuant to subsection

33-103.006(3), F.A.C,” Fla. Admin. Code § 33.103.014(1)(e). That is what

happened here. The FDOC Secretary returned Plaintiff’s appeal without action

because it explicitly found that his formal grievance was not filed within the 15-

day window. Thus, although officials at the institutional level denied Plaintiff’s

formal grievance on the merits (more or less), FDOC did not waive the

procedural defect because it did not decide the procedurally flawed grievance

on the merits at the last stage of review. Whatley II, 898 F.3d at 1083.

The only facts in dispute are facts that do not change the conclusion that

Plaintiff failed to properly exhaust administrative remedies. Relying on the

district court’s decision in Roca-Moreno v. Desouza, Plaintiff argues that

Section 33-103.011(1)(b) incorporates a type of delayed-discovery doctrine,

under which the 15-day clock starts to run only when an inmate discovers his

rights were violated. Plaintiff argues that Defendants failed to show when

Plaintiff learned about the alleged wrongful delay in receiving DAA therapy. As

such, Plaintiff argues, Defendants have failed to show when the 15-day period

to file a formal grievance began to run and when it expired.9 But this argument

ignores that the FDOC itself explicitly determined that the 15-day period

expired before Plaintiff filed his formal grievance.

Plaintiff’s argument encounters three problems. First, it would require

the Court to overrule or ignore FDOC’s interpretation and application of its own

grievance rules, which would raise concerns about federalism and comity. The

FDOC does not interpret Section 33-103.011(1)(b) as incorporating a delayed-

discovery doctrine, or if it does, it determined that the doctrine did not salvage

Plaintiff’s grievance. That much is reflected by the FDOC Secretary’s decision

that Plaintiff did not file his grievance within the rule’s 15-day timeframe. A

court should defer to the FDOC’s application of its own grievance procedures if

there is more than one reasonable interpretation of the grievance regulation.

Noles v. Brown, No. 3:07-cv-31/LAC/MD, 2008 WL 680400, at *5 (N.D. Fla. Mar.

9 Plaintiff does not argue that administrative remedies were not “available.” See Ross,

136 S. Ct. at 1862. His argument concerns how to interpret Section 33-103.011(1)(b).

6, 2008) (citing, inter alia, White v. Moore, 789 So. 2d 1118, 1120 (Fla. 1st DCA

2001)). “Courts must give deference to prison officials regarding [the]

interpretation and application of their own grievance procedures so long as the

procedures provide inmates with a meaningful opportunity to present

grievances,” and provided that the application of the grievance rules was not

“clearly erroneous, arbitrary or intended to prevent plaintiff from exercising his

right of access to the courts.” Jones v. Frank, No. 07-cv-141-BBC, 2008 WL

4190322, at *3 (W.D. Wis. Apr. 14, 2008) (citations omitted). See also Simpson

v. Greenwood, No. 06-C-612-C, 2007 WL 5445538, at *4 (W.D. Wis. Apr. 6, 2007)

(courts generally defer to prison administrators’ application of their own

grievance rules, unless the rule itself serves no purpose other than to hinder a

prisoner’s access to the courts).

The Court cannot say that FDOC’s interpretation and application of

Section 33-103.011(1)(b) was clearly erroneous, arbitrary, or intended to thwart

Plaintiff’s access to the courts. Section 33-103.011 does not clearly support

Plaintiff’s argument that the 15-day grievance period begins to run only when

a prisoner discovers a violation of his rights. The Court accepts Plaintiff’s

assertion that the action he grieved – i.e., the denial of treatment for HCV –

was an ongoing course of conduct that cannot be reduced to a single date.

Response to Motions to Dismiss at 6–7. However, the denial of treatment ended

on March 16, 2018, when Centurion began to administer DAA therapy to

Plaintiff. The Court cannot say that the FDOC Secretary, in evaluating whether

Plaintiff filed the grievance on time, acted arbitrarily by counting 15 calendar

days from the last day Plaintiff was denied treatment in March 2018. Nor can

the Court find that Section 33-103.011(1)(b) itself is onerous or confusing, or

that it serves no purpose other than to create a procedural obstacle for the

unwary. The 15-day timeframe serves a valid policy purpose: to encourage

inmates to promptly grieve wrongdoings so that FDOC has an opportunity to

resolve them quickly and efficiently. On these facts, the Court must defer to the

FDOC’s finding that Plaintiff’s grievance was untimely.

Second, the text of Section 33-103.011(1)(b) does not support the position

that the 15-day period runs from the date an inmate discovers a violation of his

rights. The regulation simply states that the 15-day period to file a formal

grievance runs from “[t]he date on which the incident or action being grieved

occurred.” Fla. Admin. Code § 33-103.011(1)(b)(2) (emphasis added). The

grievance rules do not define the words “occur[red],” “incident,” or “action,” but

the dictionary definitions of these terms do not suggest that they encompass a

delayed-discovery principle. Merriam-Webster’s Dictionary defines the word

“occur” as follows: 1. “to be found or met with,” or to appear (as in “This bird

occurs in New England in the spring.”); 2. “to come into existence,” or to happen

(as in “The accident occurred at 5 p.m.”); and 3. “to come to mind” (as in “an idea

that has occurred to me.”).10 The Oxford English Dictionary says that “occur,”

when speaking of an event or incident, means “to happen, come about, take

place, esp. without being arranged or expected.”11 Because Section 33-

103.011(1)(b) refers to the occurrence of an “incident” or “action,” the regulation

uses “occur” in the sense of an event happening. So understood, an incident or

action “occurs” when it comes into existence or takes place, not when an inmate

discovers that his rights were allegedly violated. Likewise, the definitions of the

words “incident” and “action” do not imply the existence of a delayed-discovery

doctrine. The word “incident” means “an occurrence of an action or situation

that is a separate unit of experience,” or a “happening.”12 And the word “action,”

in its contextually appropriate sense13, refers to “a thing done,” behavior or

conduct, or “the accomplishment of a thing usually over a period of time, in

stages, or with the possibility of repetition.”14 Because the text of the FDOC’s

rule does not clearly create a delayed-discovery doctrine, the Court will not

impose one on its own.

10 https://www.merriam-webster.com/dictionary/occur (examples in original).

11 https://www.oed.com/view/Entry/130192?redirectedFrom=occur#eid.

12 https://www.merriam-webster.com/dictionary/incident.

13 The word “action” is grouped with the word “incident,” and words grouped together

should be given a related meaning. United States v. Undetermined Quantities of All Articles

of Finished and In-Process Foods, 936 F.3d 1341, 1352 (11th Cir. 2019) (Jordan, J., concurring)

(citing Dole v. United Steelworkers of America, 494 U.S. 26, 36 (1990)).

14 https://www.merriam-webster.com/dictionary/action.

The structure itself of Section 33-103.011 does not support Plaintiff’s

argument that the rule incorporates a delayed-discovery doctrine. Instead of a

delayed-discovery rule, the grievance deadlines incorporate a feasibility

exception. See Fla. Admin. Code § 33-103.011(2). The rule states:

An extension of the above-stated time periods shall be granted when it is

clearly demonstrated by the inmate to the satisfaction of the reviewing

authority as defined in paragraphs 33-103.002(15)(b) and (c), F.A.C., or

the Secretary that it was not feasible to file the grievance within the

relevant time periods and that the inmate made a good faith effort to file

in a timely manner. The granting of such an extension shall apply to the

filing of an original grievance or when re-filing a grievance after

correcting one or more deficiencies cited in rule 33-103.014, F.A.C.

Fla. Admin. Code § 33-103.011(2). Notably, however, the FDOC did not grant

Plaintiff such an extension and there is no indication he applied for one.

Third, Plaintiff’s reliance on Roca-Moreno v. Desouza is misplaced. The

court in Roca-Moreno rejected the plaintiff’s argument that FDOC’s grievance

rules incorporate a delayed-discovery doctrine. Roca-Moreno, 2020 WL

7774726, at *4. The court explained: “Plaintiff cites to no authority for the

proposition that the 20-day time period [for filing an informal grievance] starts

upon discovery of the incident, rather than the date of the incident itself, and

his argument is clearly contradicted by the express language of the Florida

Administrative Code.” Id. (citing Fla. Admin. Code § 33-103.011). “The only

exception for extending the time to file a grievance is to file for leave to file an

out-of-time grievance pursuant to Fla. Admin. Code § 33-103.011(2). A prisoner

who has not sought to file an out-of-time grievance cannot be considered to have

exhausted his administrative remedies.” Id. (citing Harper v. Jenkin, 179 F.3d

1311, 1312 (11th Cir. 1999)). Although Roca-Moreno also analyzed the

timeliness of the plaintiff’s grievance under the delayed-discovery doctrine, see

id. at *4–6, it apparently did so as an alternative analysis.

The uncontested facts establish that Plaintiff did not properly exhaust his

administrative remedies. While Plaintiff disputes when he became aware that

his HCV treatment had been delayed, this factual dispute is not material

because Section 33-103.011 does not incorporate a delayed-discovery principle.

The FDOC Secretary found that Plaintiff did not file his grievance within 15

days of when the incident or action occurred, and the Court cannot say that this

application of the rule was clearly wrong. As such, the Court finds that Plaintiff

cannot prevail at step one of the Turner analysis.15

B. Turner Step Two

Alternatively, if Section 33-103.011(1)(b) does incorporate a delayed-

discovery doctrine, and assuming the Court could disregard the FDOC

15 In his sur-reply, Plaintiff cites Kinard v. Centurion of Fla., LLC, No. 3:19-cv-490-MMH-

JRK, 2020 WL 3542650 (M.D. Fla. Jun. 30, 2020), to support his argument that he complied

with the 15-day deadline because the complained-of denial of treatment was an ongoing

violation. (Doc. 50). Kinard is distinguishable for several reasons, most notably because there

the FDOC did not rule that the grievance was untimely. Id. at *9. Moreover, Kinard filed his

grievance and grievance appeal while the denial of HCV treatment was still ongoing, such

that “[p]rison officials were still capable of resolving the ongoing deprivation of Kinard’s

medical care.” Id. Here, in contrast, Plaintiff filed the grievance more than a year after the

denial of treatment had ceased, so there was no longer an ongoing violation to remedy.

Secretary’s ruling, the Court would have to proceed to the second step of the

Turner analysis to resolve when Plaintiff knew or should have known his rights

were violated. At step two, the Court still finds that Plaintiff did not properly

exhaust available administrative remedies.

“If the complaint is not subject to dismissal at the first step, where the

plaintiff’s allegations are assumed to be true, the court then proceeds to make

specific factual findings in order to resolve the disputed factual issues related

to exhaustion.” Turner, 541 F.3d at 1082 (citations omitted). “After making

specific findings of fact, the district court ‘then decides whether under those

findings the prisoner has exhausted his available administrative remedies.’”

Whatley II, 898 F.3d at 1082 (quoting Turner, 541 F.3d at 1083). In resolving

factual disputes about exhaustion, a district court may “consider facts outside

of the pleadings … so long as the factual disputes do not decide the merits and

the parties have sufficient opportunity to develop a record.” Bryant, 530 F.3d at

1376. A district court may consider such documents as affidavits and exhibits.

See Whatley II, 898 F.3d at 1083 (“The district court permissibly weighed the

evidence and credited the defendants’ affidavits over Whatley’s exhibits.”).

In determining when a cause of action accrues for statute-of-limitations

purposes, Florida follows the delayed-discovery doctrine. Hearndon v. Graham,

767 So. 2d 1179, 1184 (Fla. 2000) (citing City of Miami v. Brooks, 70 So. 2d 306,

309 (Fla. 1954)). “The ‘delayed discovery doctrine generally provides that a

cause of action does not accrue until the plaintiff either knows or reasonably

should know of the tortious act giving rise to the cause of action.” Id. (citing

Hillsborough Comty. Mental Health Ctr. v. Harr, 618 So. 2d 187, 189 (Fla.

1993); 35 Fla. Jur. 2d Limitations and Laches § 60 (1996)). “This principle …

has been prescribed by statute for certain causes of action,” 35 Fla. Jur. 2d

Limitations and Laches § 60 (2021), such as fraud, product liability, and medical

malpractice claims, see Fla. Stat. §§ 95.031(2), 95.11(3), (4), (7), but not for

FDOC’s grievance procedures. “The discovery rule applies to no causes of action

other than those named in the applicable statutes.” 35 Fla. Jur. 2d Limitations

and Laches § 62 (2021) (citing Davis v. Monahan, 832 So. 2d 708 (Fla. 2002)).

Nevertheless, assuming the rule applies to the FDOC’s grievance rules, it

means that Section 33-103.011(1)(b)’s 15-day period began to run when Plaintiff

knew or reasonably should have known about the delay in receiving DAA

therapy for HCV.

The facts stated in Plaintiff’s own formal grievance and grievance appeal

reflect that he knew, or reasonably should have known, of the alleged delay in

receiving treatment for HCV well over 15 calendar days before he initiated the

grievance process on June 26, 2019. In his formal grievance, he complained that

FDOC, Corizon, and Centurion had been deliberately indifferent to his serious

medical needs, i.e., HCV, because they had a policy or custom of denying HCV

treatment that “was rooted in concerns of cost rather than [his] right to the

recognized standard of care….” Id. Plaintiff claimed that the delay in treatment

“allowed the progression [of] this deadly virus to severely damage [his] liver.”

Id.; see also Am. Compl. ¶ 43 (stating that Plaintiff’s liver disease had

progressed to “serious cirrhosis” under Corizon’s care, i.e., sometime before May

2016). Plaintiff stated that the deliberate indifference he complained of occurred

“from January 2015 thru January 2018.” FDOC Ex. 3 at 6. Plaintiff

acknowledged in his formal grievance that he had been treated for HCV the

previous year “due to a Federal Court Order,” id. at 7, referring to the

preliminary injunction order entered on November 17, 2017, in Hoffer v. Jones,

290 F. Supp. 3d 1292. In his grievance appeal, Plaintiff stated that “[w]hen

Centurion of Florida took over in 2016, the FDOC had revised its HSB [Health

Services Bulletin] to finally acknowledge[] [that] the standard of care for

treating (HCV) inmates was with (DAA’s).” FDOC Ex. 3 at 6. Referring again

to Hoffer v. Jones, Plaintiff stated that Centurion “personnel never

recommended evaluation by a specialist let alone treatment per the revised

policy to [grievant], or any other (HCV) inmate here at U.C.I., until the Federal

Court Order of November of 2017.” Id.

Plaintiff’s 2019 grievance documents acknowledge that he was treated for

HCV the previous year and that the complained-of conduct occurred between

2015 and 2018. The documents are filled with indications that Plaintiff knew or

reasonably should have known about the complained-of delay in treatment well

over 15 calendar days before June 26, 2019. Plaintiff states that FDOC updated

its Health Services Bulletin in 2016 to reflect that DAA’s were part of the

standard of care for treating HCV. Plaintiff refers more than once to the 2017

preliminary injunction order in Hoffer v. Jones, which by Plaintiff’s own account

is what prompted Centurion personnel to start treating HCV-positive inmates

at Union Correctional Institution. Plaintiff’s references to the 2016 Health

Services Bulletin and the 2017 court order reflect that he actually knew, or

reasonably should have known, about the complained-of delay in receiving

treatment months before he initiated the grievance process in June 2019. When

Plaintiff finally received DAA therapy starting on March 16, 2018, it is fair to

say he could have initiated the grievance process within 15 calendar days of

that date. Notably, nowhere in his belated grievance or subsequent appeal did

Plaintiff state that he had only recently discovered the facts supporting his

complaint about the delay in treatment for HCV.

Therefore, even if the delayed-discovery doctrine applies to Section 33-

103.011(1)(b), it cannot save Plaintiff’s untimely grievance. The record

establishes that Plaintiff failed to initiate the grievance process until more than

15 calendar days from when the incident or action being grieved occurred. The

same is true regardless of whether 15 days are measured from the last day that

FDOC and its contractor denied Plaintiff treatment for HCV or from the first

day that Plaintiff knew or reasonably should have known about the complained-

of delay in treatment. Because Plaintiff did not properly exhaust his

administrative remedies before he filed suit, the PLRA bars the instant § 1983

action. 42 U.S.C. § 1997e(a); Woodford, 548 U.S. at 92–93. Because the Court

resolves Defendants’ motions to dismiss on exhaustion grounds, it need not

reach Centurion’s arguments about whether Plaintiff failed to state a claim for

relief. See Centurion Motion at 9–19.

C. Disposition

While there is authority for dismissing a complaint with prejudice for

failure to exhaust administrative remedies, Bryant, 530 F.3d at 1375 n.11, the

custom in this Court is to dismiss a complaint without prejudice when the

dismissal is for lack of exhaustion, see, e.g., Jacobs v. Henger, No. 5:20-cv-231-

BJD-PRL, 2020 WL 3473289 (M.D. Fla. Jun. 25, 2020). That disposition makes

sense here. Although any grievance Plaintiff might attempt to file regarding the

denial of HCV treatment would be outside of Section 33-103.011(1)(b)’s 15-day

window, the rule holds out the possibility that Plaintiff could apply for an

extension under Section 33-103.011(2). FDOC could also waive compliance with

its grievance procedures. Because attempting exhaustion is not necessarily

futile, the Court will dismiss the Amended Complaint without prejudice.

V. Conclusion

In March 2018, the FDOC and Centurion began to administer a DAA to

treat Plaintiffs HCV, consistent with the standard of care. Fortunately, by

September 2018, Plaintiff no longer had detectable levels of the virus. But

Plaintiff did not grieve the denial of treatment until June 26, 2019, and the

FDOC Secretary ruled that Plaintiffs grievance was untimely. Because

Plaintiff did not properly exhaust available administrative remedies before

filing suit, the case is due to be dismissed. Accordingly, it is hereby ORDERED:

1. Defendants’ motions to dismiss (Docs. 36, 37, & 40) are GRANTED on

exhaustion grounds.

2. Centurion’s Motion to Stay (Doc. 38) is DENIED AS MOOT.

3. Plaintiff Wiliam T. Stephens’s Amended Complaint (Doc. 16) is

DISMISSED WITHOUT PREJUDICE for lack of exhaustion. The

Clerk shall enter judgment dismissing this case without prejudice, close

the file, and terminate any pending motions.

4. The Court thanks pro bono counsel for his able service to Plaintiff.

DONE AND ORDERED in Jacksonville, Florida this 14th day of July

2021.

United States District Judge

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