Lane v. Batchelor

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JUSTIN BURTON LANE,

Plaintiff,

v. CASE NO.: 8:19-cv-1836-VMC-AAS

J. BATCHELOR, et al.,

Defendant.

____________________________/

ORDER

This cause is before the Court on Defendants’ Motion to Dismiss Complaint, filed

under Rule 12(b)(6), Federal Rules of Civil Procedure. (Doc. 27). Upon consideration, the

Court ORDERS that the Motion to Dismiss is GRANTED and the complaint (Doc. 1) be

DISMISSED.

Factual Background

Plaintiff initiated this action on July 26, 2019, by filing a civil rights complaint under

42 U.S.C. § 1983. (Doc. 1). According to the complaint, on July 13, 2017, while incarcerated

at the Zephyrhills Correctional Institution (“Zephyrhills C.I.”), Plaintiff indicated to

Defendant Batchelor, a correctional officer employed by the Florida Department of

Corrections (“FDOC”), that he was having a psychological emergency. (Id. at 8). Batchelor

left and did not immediately return with assistance. (Id.). After approximately 30 minutes

passed, Plaintiff had not received any medical assistance, so Plaintiff covered the CCTV

monitor with toilet paper and informed his cellmate he was going under his bunk to feel calm.

(Id. at 8-9). Plaintiff remained under his bunk for approximately ten minutes until Batchelor

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returned and asked Plaintiff what he was doing. (Id. at 9). Plaintiff, again, declared he was

having a psychological emergency and needed a mental health professional. (Id.). Batchelor

removed Plaintiff’s cellmate from the cell and sent Defendant Turner and several other staff

members into the cell. (Id.).

To remove Plaintiff from under the bunk, Defendant Turner used both hands to grab

and twist Plaintiff’s left ankle, causing pain in his ankle, left knee, and lower back. (Id.). While

holding Plaintiff’s left ankle, Turner slammed Plaintiff’s left thigh into the bottom of the bunk.

(Id.). Defendant Ross grabbed Plaintiff’s right ankle and assisted Turner in pulling Plaintiff

out from under the bunk. (Id. at 10). Plaintiff claims he was not disruptive, disorderly, or

combative at any time. (Id.).

After pulling Plaintiff from under the bed, Plaintiff was rolled on his stomach and

placed in restraints. (Id.). Plaintiff was then lifted from the floor and placed in a time-out cell,

alone, and was not seen by a mental health professional. (Id.). Plaintiff was then moved to

another cell, where he declared another mental health emergency and was subsequently

placed on suicide watch. (Id.). Plaintiff also alleges he was transferred to another institution

to prevent him from filing grievances against the parties involved. (Id.). Similarly, Plaintiff

alleges that Defendants retaliated against him for earlier grievances by filing false disciplinary

reports against him, taunting him, and through the July 13, 2017, use of force. (Id.).

Plaintiff alleges he suffered from nightmares, bruises, and pain in his ankle, knee,

thigh, and lower back for weeks after the incident. (Id. at 11). Plaintiff also alleges he “was

diagnosed with severe PTSD, anxiety, manic depression, paranoia, schizophrenia, and

numerous other serious mental issues, prior [to] and after the use of force.” (Id.). Plaintiff

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claims Defendants violated his rights under the Eighth and Fourteenth Amendments to the

United States Constitution when they retaliated for his prior grievances by using excessive

force and when they retaliated against him for his grievance-filing by other means. (Id. at 8,

12). He also claims that Batchelor was deliberately indifferent to his serious medical needs.

(Id. at 12).

In May 2020, after undertaking the initial review required by 28 U.S.C. § 1915A, the

Court permitted this case to proceed on Plaintiff’s claims of excessive force and retaliation

against Defendants Ross and Turner and Plaintiff’s claim of deliberate indifference against

Defendant Batchelor. (Doc. 8 at 7). All other claims were dismissed. (Id.). Plaintiff did not

further amend his complaint. Defendants Batchelor, Ross, and Turner have now filed a

Motion to Dismiss. (Doc. 27). Plaintiff has responded (Doc. 33), and the Motion is ripe for

review.

Standard of Review

A pro se complaint is entitled to a generous interpretation. Haines v. Kerner, 404 U.S.

519, 520 (1972). Under a Rule 12(b)(6) motion to dismiss, a court must accept the allegations

in the complaint as true and construe the alleged facts, and all reasonable inferences, in the

light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Omar ex rel.

Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003).

Rule 12(b)(6) requires a complaint to “state a claim upon which relief can be granted”

or the complaint will be subject to dismissal. To survive a motion to dismiss, the factual

allegations and reasonable inferences must “state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). More specifically, the complaint must

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contain “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Twombly, 550 U.S. at 544). The complaint must “give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests” and pleadings that only offer

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555.

The “[f]actual allegations must be enough to raise a right to relief above the speculative

level.” Id. “Conclusory allegations, unwarranted factual deductions or legal conclusions

masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d

1183, 1185 (11th Cir. 2003). If a court cannot “infer more than the mere possibility of

misconduct,” the complaint does not show entitlement to relief. Iqbal, 556 U.S. at 679.

Accordingly, more than conclusory and vague allegations are required to state a cause of

action under Section 1983. Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984).

Discussion

I. Exhaustion of Administrative Remedies

Defendants argue that the complaint should be dismissed because Plaintiff has failed

to exhaust available administrative remedies. (Doc. 27 at 5-13). Under the Prison Litigation

Reform Act (“PLRA”), prisoners must properly exhaust all available administrative remedies

before bringing a suit under Section 1983. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S.

81, 84 (2006). Exhaustion of administrative remedies is mandatory and is a precondition to

filing suit. Wilkinson v. Dotson, 544 U.S. 74, 84 (2005).

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The Eleventh Circuit outlines a two-step process for a district court deciding a motion

to dismiss for failure to exhaust administrative remedies. Turner v. Burnside, 541 F.3d 1077,

1082 (11th Cir. 2008). First, a court must compare a defendant’s factual allegations in the

motion to dismiss and those in an inmate’s response and, if they conflict, accept the plaintiff’s

version as true. Id. A court should only dismiss the complaint at that step if a plaintiff’s factual

allegations show the plaintiff failed to exhaust administrative remedies. Id. Second, if not

dismissed at the first step, a court must make specific findings to resolve disputes of fact related

to exhaustion and may dismiss if the defendant has shown the plaintiff failed to exhaust

administrative remedies. Id. at 1082-83. A defendant bears the burden of showing a failure to

exhaust. Id. at 1082.

“Proper exhaustion” of administrative remedies is required under the PLRA.

Woodford, 548 U.S. at 93. Proper exhaustion of administrative remedies includes complying

with an agency’s procedures, deadlines, and any other relevant procedural rules. Id. at 90-91;

Halpin v. Crist, 405 F. App’x 403, 407 (11th Cir. 2010) (“In order to exhaust, the inmate must

comply with all steps that the agency holds out, and doing so properly (so that the agency

addresses the issues on the merits.” (internal quotation marks omitted)). Untimely grievances

do not satisfy the exhaustion requirement of the PLRA. Johnson v. Meadows, 418 F.3d 1152,

1157 (11th Cir. 2005).

Florida has a three-step process to exhaust administrative procedures. Bracero v. Sec’y,

Fla. Dep’t of Corr., 748 F. App’x 200, 202 (11th Cir. 2018) (setting forth the three-step

process). First, an inmate must file an informal grievance. Fla. Admin. Code § 33-103.005.

An informal grievance must be received within 20 days of the alleged incident. Fla. Admin.

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Code § 33-103.011(1)(a). Next, if the informal grievance is denied, an inmate must file a

formal grievance at the institutional level. Fla. Admin. Code § 33-103.006. A formal grievance

must be received within 15 days after the denial of the informal grievance. Fla. Admin. Code

§ 33-103.011(1)(b). Finally, if the formal grievance is denied, an inmate must file an appeal to

the Office of the Secretary, Florida Department of Corrections. Fla. Admin. Code § 33-

103.007. An appeal must be received by the Office of the Secretary within 15 days of the

receipt of the formal grievance denial. Fla. Admin. Code § 33-103.011(1)(c).

A. Whether Plaintiff has exhausted his administrative remedies

Turning to Plaintiff’s exhaustion efforts here, Defendants allege in their Motion that

Plaintiff did not exhaust his administrative remedies. (Doc. 27 at 5-13). In response, Plaintiff

argues he exhausted all available administrative remedies or that administrative remedies

were unavailable to him. (Doc. 33 at 8-13). Given the parties’ conflicting accounts, and

accepting the Plaintiff’s version as true, the Court will move on to the second step in the

PLRA exhaustion analysis. See Turner, 541 F.3d at 1082.

At the second step, the court must make specific findings to resolve disputes of fact

related to exhaustion. Id. In the Eleventh Circuit, failure to exhaust administrative remedies

is an affirmative defense and should be raised in a motion to dismiss. Bryant v. Rich, 530 F.3d

1368, 1374-1375 (11th Cir. 2008). A district court may properly consider facts outside the

pleadings to resolve a factual dispute regarding exhaustion where the factual dispute does not

go to the merits of the case and the parties had an opportunity to develop the record. Singleton

v. Dep’t of Corr., 323 F. App’x 783, 785 (11th Cir. 2009). Both Plaintiff and Defendants have

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submitted documentation pertaining to the exhaustion question. The Court’s review of the

pertinent documents demonstrates the following:

On July 19, 2017, Plaintiff submitted Informal Grievance Log No. 573-1707-0102,

which pertained to the July 13, 2017, incident. (Doc. 27-3 at 4-5). This informal grievance

was referred to the Inspector General’s Office and was also denied. (Id. at 4). The response

stated that Plaintiff was “hiding under [his] bunk being unresponsive, and would not respond

to staff or move. To ensure [his] safety staff had to remove [him] from under the bunk.” (Id.).

The response concluded that all use of force was lawful. (Id.). Although this initial informal

grievance was timely, the record does not demonstrate that Plaintiff thereafter filed a formal

grievance with the institution in a timely manner, as required by Fla. Admin. Code § 33-

103.006. Thus, Informal Grievance Log No. 573-1707-0102 is insufficient to properly exhaust

Plaintiff’s administrative remedies. See Eslow v. Sec’y, DOC, No. 2:19-cv-313-TB-NPM,

2020 WL 3073769, at *2 (M.D. Fla. June 10, 2020) (finding inadequate exhaustion where

plaintiff failed to properly and timely file appropriate appeals under the FDOC’s grievance

procedures).

Moreover, the fact that the matter was referred to the Inspector General’s Office did

not absolve Plaintiff of his obligation to follow the applicable exhaustion procedures. See

Hope v. Walker, No. 5:13-cv-362/WS/CJK, 2015 WL 5190435, at *5 (N.D. Fla. Aug. 18,

2015), report and recommendation adopted, No. 5:13-cv-362-WS, 2015 WL 5190615 (N.D.

Fla. Sept. 4, 2015) (“[T]he referral of plaintiff’s allegations to the Inspector General's Office

does not eliminate the requirement that he exhaust his administrative remedies.”); Fogle v.

Landrum, No. 2:06-cv-278-JES-DNF, 2007 WL 1831791, at *3 (M.D. Fla. June 25, 2007)

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(holding that plaintiff did not exhaust his administrative remedies when he failed to appeal a

grievance that was referred to the Office of the Inspector General).

Plaintiff filed Formal Grievance Log No. 1711-102-109, which related to the July 2017

incident1, but that grievance was not filed until November 12, 2017. (Doc. 27-5 at 29-30).

Thus, it was not filed within 15 days of the July 26, 2017, denial of Informal Grievance Log

No. 573-1707-0102, as required by the Florida Administrative Code. See Fla. Admin. Code §

33-103.011(1)(b); (Doc. 27-3 at 4). Formal Grievance Log No. 1711-102-109 was returned

without processing because Plaintiff’s allegations had already been forwarded to the Inspector

General’s Office. (Doc. 27-5 at 28). Plaintiff appealed the denial of Formal Grievance Log

No. 1711-102-109 (Appeal No. 17-6-49729), which was also returned without action. (Id. at

27-26). Grievances returned without action do not exhaust a plaintiff’s administrative

remedies. See Arias v. Perez, 758 F. App’x 978, 881 (11th Cir. 2019).

Plaintiff filed Informal Grievance Log No. 102-1710-0365, which pertained to the July

2017 incident, on October 26, 2017. (Doc. 1-2 at 1-3). This grievance was returned as

untimely. (Id. at 1). Informal Grievance Log No. 102-1710-0365 was not filed within 20 days

of the July 2017 incident and, therefore, it is insufficient to exhaust Plaintiff’s administrative

remedies. Fla. Admin. Code § 33-103.011(1)(a); see also Johnson, 418 F.3d at 1157

(explaining that untimely grievances do not satisfy the exhaustion requirement of the PLRA).

1 While many of the grievances state that Defendants’ alleged deliberate indifference and

excessive use of force occurred on July 20, 2017, the complaint alleges that it occurred on July

13, 2017. This discrepancy makes no material difference to the Court’s analysis. Similarly,

many of the grievances fail to address Plaintiff’s retaliation claims. But because the Court

finds that none of Plaintiff’s grievances properly complied with the applicable state

procedures, it need not distinguish which claims were made in which grievance.

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The record also indicates that Plaintiff filed three additional grievances in between July

1, 2017 and August 1, 2017, when he was transferred from Zephyrhills C.I. to Santa Rosa

Correctional Institution: (1) Formal Grievance Log No. 1707-573-047; (2) Informal

Grievance Log No. 573-1707-0101; and (3) Informal Grievance Log No. 573-1707-0128, none

of which pertain to the July 2017 use-of-force incident. (Doc. 27-3 at 6-16). Similarly, while

Plaintiff filed four grievance appeals between July 1, 2017, and July 31, 2019, only one of

them (Appeal No. 17-6-49729) related to the use-of-force incident at issue here and that

appeal, as discussed above, was returned without action. (Doc. 27-5). Thus, the record

demonstrates that Plaintiff failed to properly exhaust his administrative remedies with respect

to the incident at issue in this litigation.

B. Whether administrative remedies were unavailable to Plaintiff

Reading his response to the Motion to Dismiss liberally, Plaintiff argues that he should

be excused from the exhaustion requirement because administrative remedies were

unavailable to him. (Doc. 33 at 3, 8-13).

There is a recognized exception to the exhaustion requirement when an inmate’s

administrative remedies are unavailable. Turner, 541 F.3d at 1084 (“Remedies that rational

inmates cannot be expected to use are not capable of accomplishing their purposes and so are

not available.”). A remedy is unavailable if: (1) the administrative remedy is “a simple dead

end—with officers unable or consistently unwilling to provide any relief to aggrieved

inmates;” (2) the administrative scheme is “so opaque that it becomes, practically speaking,

incapable of use . . . [and] no ordinary prisoner can discern or navigate it;” or (3) prison

officials “thwart inmates from taking advantage of a grievance process through machination,

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misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 1174, 136 S. Ct. 1850, 1859-60

195 (2016).

Here, Plaintiff advances several arguments for why his administrative remedies were

unavailable. Specifically, Plaintiff claims that he appealed the denial of Informal Grievance

Log No. 573-1707-0102 on a formal grievance document but he did not receive any response,

nor did he receive his grievance back. (Doc. 33 at 8). According to Plaintiff’s response, and

the declaration he submitted in support thereof, Plaintiff thereafter filed “numerous

grievances, grieving the loss of Log # 573-1707-0102, but [he] received nothing in response to

those grievances either.” (Id.; Doc. 33-1 at 7). Plaintiff claims that prison staff took his

property and “when it was finally given [back], all his grievances were gone.” (Doc. 33 at 10-

11; Doc. 33-1 at 7). Therefore, because his grievances were lost and/or destroyed due to

“constant transfers, cell searches, and harassment by [prison] staff,” Plaintiff submits that he

started the process all over again on November 12, 2017, with the filing of Formal Grievance

Log No. 1711-102-109. (Doc. 33 at 11). After waiting a month for a response to this formal

grievance, Plaintiff claims that he then filed appeal No. 17-6-49729, which he claims was

“detoured” by the warden and returned without action. (Id. at 12; Doc. 33-1 at 7). He then

filed three more grievances between November 2017 and April 2018 “without receiving any

receipts or returned grievance[s].” (Doc. 33 at 12).

District courts must use the two-step Turner analysis when addressing the availability

of the grievance process. Jenkins v. Sloan, 826 F. App’x 833, 839 (11th Cir. 2020). Taking

Plaintiff’s version of the facts as true, the Court finds it necessary to proceed to step two of the

Turner analysis. First, the Court notes that three FDOC employees submitted declarations in

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this case averring that: (1) Plaintiff submitted only four grievances to Zephyrhills C.I. between

July 1, 2017, and August 1, 2017, when he was transferred to Santa Rosa Correctional

Institution, all of which are described by this Order; (2) an FDOC official specifically searched

in Plaintiff’s “classification file” – a document that follows the inmate from facility to facility

while they are in custody, is thereafter maintained by the FDOC after an inmate’s release,

and contains true and correct copies of all grievances filed by an inmate – for copies of any

formal grievances filed between August 1, 2017 and October 18, 2017 relating to the denial

of Informal Grievance Log No. 573-1707-0102 and found no such record; and (3) according

to records kept by the FDOC’s Central Office, Plaintiff filed four grievance appeals between

July 1, 2017 and July 31, 2019, only one of which (Appeal No. 17-6-49729, filed on November

30, 2017) pertained to the July 13, 2017 incident. (Doc. 27-3 at 1-3; Doc. 27-4; Doc. 27-5 at

1-3).

Turning to Plaintiff’s allegations, while he claims that he timely appealed the denial of

Informal Grievance Log No. 573-1707-0102 on a formal grievance document, this assertion

is belied by the evidence submitted by Defendants. Moreover, assuming that Plaintiff’s

allegations are true that he did so and never received a response, the Florida Administrative

Code allowed Plaintiff to proceed with the next step in the three-step exhaustion process (i.e.,

to file an appeal with the Office of the Secretary) after the expiration of the prison’s time to

respond to a formal grievance. See Fla. Admin. Code § 33-103.011(4) (“[E]xpiration of a time

limit at any step in the process shall entitle the complainant to proceed to the next step in the

grievance process.”). Plaintiff does not allege, nor does the record demonstrate, that he did

so. Thus, even if FDOC officials never responded to Plaintiff’s formal grievance, Plaintiff has

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still not demonstrated that he has exhausted the available administrative procedures. See

Turner, 541 F.3d at 1084 (stating that a prison’s failure to respond to a formal grievance did

not relieve the prisoner of his obligation to file an appeal when the grievance procedure

provided that prisoners could file an appeal if they did not receive a response to

a formal grievance within 30 days).

Plaintiff’s other allegations regarding the FDOC’s alleged obfuscation and

machinations to make the grievance process unavailable to him (for example, Plaintiff’s

allegations about his grievances pertaining to the loss of Informal Grievance Log No. 573-

1707-0102, the alleged non-response to Formal Grievance Log No. 1711-102-109, and the

grievances about unnamed issues filed between November 2017 and April 2018) do not

pertain to any grievances that would have been both timely filed as part of the three-step

process and relevant to the July 2017 incident. As for Plaintiff’s allegations that his property

was taken by prison officials and returned with his grievance records missing, Plaintiff does

not state when this alleged taking occurred or what grievances exactly went missing and,

furthermore, is belied by the documented grievances that Plaintiff himself attached to his

complaint.

For these reasons, the Court finds that the facts of this case do not demonstrate that

administrative remedies were unavailable to Plaintiff such that his failure to properly exhaust

those remedies may be excused. However, in an abundance of caution, the Court will proceed

to analyze the merits of Plaintiff’s Section 1983 claims. Here, even assuming that Plaintiff

properly exhausted his administrative remedies or that he did not need to do so because such

remedies were unavailable to him, the complaint is due to be dismissed on the merits.

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II. Deliberate Indifference Claim Against Defendant Batchelor

To recover under 42 U.S.C. § 1983, a plaintiff must demonstrate: (1) a defendant

deprived him of a right secured under the U.S. Constitution or federal law; and (2) the

deprivation transpired under color of state law. Arlington v. Cobb Co., 139 F.3d 865, 872

(11th Cir. 1998). Additionally, Section 1983 “requires proof of an affirmative causal

connection between the official’s acts or omissions and the alleged constitutional

deprivation.” Zalter v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986).

The Eighth Amendment provides a constitutional right against deliberate indifference

to the serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). A

claim for deliberate indifference to serious medical needs requires plaintiffs to demonstrate:

(1) an objectively serious medical need; (2) the official subjectively acted with

deliberate indifference to the serious medical need; and (3) causation exists between the

official’s indifference and a plaintiff’s injury. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306-

07 (11th Cir. 2009).

The second element – demonstrating an official’s deliberate indifference – requires

more than mere negligence. Estelle, 429 U.S. at 106. Instead, deliberate indifference requires

that a prison official knows of and disregards an excessive risk to an inmate’s health or safety.

Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003). The deliberate indifference standard

applies to inmates’ psychiatric or mental health needs. Greason v. Kemp, 891 F.2d 829, 834

(11th Cir. 1990).

Defendant Batchelor contends Plaintiff failed to demonstrate he suffered an objectively

serious medical need. (Doc. 27 at 14-15). A serious medical need has been defined as a

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condition “diagnosed by a physician as mandating treatment,” a condition “so obvious that

even a layperson would easily recognize the necessity,” or a condition worsened by delayed

treatment. Mann, 588 F.3d at 1307. The condition must be one that, if left unattended, “poses

a substantial risk of serious harm.” Id.

Here, Plaintiff’s alleged psychological emergency falls short of the serious medical

need required for a deliberate indifference claim. Plaintiff claims that he told Defendant

Batchelor “he needed to speak with his counselor . . . because he was feeling anxious and

panicky, and needed help by talking to his counselor or someone to help him through an

episode.” (Doc. 1 at 8). According to Plaintiff, Defendant Batchelor violated the Eighth

Amendment when Batchelor failed to immediately respond to Plaintiff when he declared a

psychological emergency. (Id. at 12). Plaintiff, however, made no indication he had a genuine

intent to harm himself. (Id. at 9). Instead, Plaintiff went under his bunk to calm himself down.

(Id.). Plaintiff has failed to allege facts demonstrating that his mental state required immediate

response and treatment or posed a substantial and imminent risk of harm. See, e.g., Robinson

v. Larson, No. 3:13-cv-387-LC-CJK, 2017 WL 4128681, at *7 (N.D. Fla. Aug. 31,

2017), report and recommendation adopted, No. 3:13-cv-387-LC-CJK, 2017 WL 4125264

(N.D. Fla. Sept. 18, 2017) (finding plaintiff did not have a serious mental health need because

the plaintiff lacked evidence of a genuine intent to harm himself).

Even if there was a serious medical need, Plaintiff has failed to establish the requisite

causation between Defendant Batchelor’s alleged deliberate indifference and Plaintiff’s

alleged injury. (Doc. 27 at 15,16). Here, Plaintiff alleges he suffered nightmares plus bruising

and pain in his ankle, knee, thigh, and lower back. (Doc. 1 at 11). Plaintiff alleges Defendants

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Ross and Turner caused his injuries. (Id. at 9). Plaintiff fails to demonstrate how Defendant

Batchelor’s alleged deliberate indifference caused any of Plaintiff’s alleged injuries.

Accordingly, the claim against Defendant Batchelor for deliberate indifference is dismissed.

III. Official and Individual Capacity Claims

A. Official Capacity Claims

Plaintiff brings all claims against Defendants in their official capacities, as employees

of the Florida Department of Corrections. (Doc. 1 at 14). An official capacity claim is a claim

against the entity of which a defendant is an agent. See Monell v. Dep’t of Soc. Servs. of New

York, 436 U.S. 658, 694-95 (1978); Barnett v. MacArthur, 956 F.3d 1291, 1296 (11th Cir.

2020). To succeed, a plaintiff must allege the entity’s customs, practices or policies were a

“moving force” behind the deprivation of a right. Polk Cnty. v. Dodson, 454 U.S. 312, 326

(1981) (quoting Monell, 436 U.S. at 694).

Under the Eleventh Amendment, a state is protected from being sued in federal court

without the state’s consent. Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003). Absent its

consent, a state may not be sued in federal court unless Congress has clearly and

unequivocally abrogated the state’s Eleventh Amendment immunity. DeKalb Cnty. Sch.

Dist. v. Schrenko, 109 F.3d 680, 688 (11th Cir. 1997) (citing Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 99 (1984)). Suits brought against a state in federal court without an

explicit abrogation of Eleventh Amendment immunity should be dismissed. Gamble v. Fla.

Dep’t of Health & Rehab. Servs., 779 F.2d 1509, 1513-16 (11th Cir. 1986).

A lawsuit against a state employee in his official capacity is a suit against the state, for

Eleventh Amendment purposes. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);

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Kentucky v. Graham, 473 U.S. 159, 165-166 (1985). The State of Florida has not waived its

immunity from suits based upon constitutional civil rights violations. Gamble, 779 F.2d at

1511-18. Accordingly, Plaintiff’s claims against Defendants for monetary damages in their

official capacities are dismissed. See Johnson v. Crosby, No. 5:06-cv-92-RS-MD, 2006 WL

8450965, at *6 (N.D. Fla. Oct. 18, 2006) (holding that Section 1983 claims against FDOC

official were barred by the Eleventh Amendment).

B. Individual Capacity Claims

Defendants argue that all claims against them in their individual capacities are barred

by qualified immunity. (Doc. 27 at 19-21). Generally, the doctrine of qualified immunity

shields government officials performing discretionary functions from civil liability if “their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In the Eleventh Circuit, qualified immunity involves a two-part test. Zeigler v.

Jackson, 716 F.2d 847, 849-50 (11th Cir. 1983). First, a defendant must establish he was

acting within the scope of his discretionary authority when the allegedly wrongful acts

occurred. Id. at 849. To determine whether an officer acted within his discretionary authority,

a court looks to whether the activities “fell within the employee’s job responsibilities.”

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th Cir. 2004). Next, if a

defendant establishes that he acted within the scope of his discretionary authority, the burden

shifts to the plaintiff to show a lack of good faith. Zeigler, 716 F.2d at 849. To defeat qualified

immunity, a plaintiff must show that “when the defendant acted, the law established the

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contours of a right so clearly that a reasonable official would have understood his acts were

unlawful.” Galvez v. Bruce, 552 F.3d 1238, 1244 (11th Cir. 2008).

Here, Plaintiff alleges that, on July 13, 2017, Defendant Batchelor ignored his request

for mental health assistance for approximately 30 minutes. (Doc. 1 at 8-9). Further, Plaintiff

alleges that Defendants Turner and Ross roughly pulled Plaintiff out from underneath his

bunk, causing him pain and injuries. (Id. at 9-10). Under the totality of the circumstances,

Defendants here were carrying out their official job duties when they responded to Plaintiff’s

proclaimed psychological emergency while he was incarcerated at Zephyrhills C.I. Seeking

to respond to an inmate who had covered the CCTV monitors with toilet paper and was

crying and hiding under his bunk fell within their responsibilities as FDOC employees. The

burden therefore shifts to Plaintiff to show a lack of good faith.

As the Eleventh Circuit has explained, this part of the qualified-immunity analysis is

a two-part test. Vinyard v. Wilson, 311 F.3d 1340, 1346–47 (11th Cir. 2002). First, courts

must determine whether the plaintiff’s allegations, if true, establish a constitutional violation.

Id. at 1346 (citing Hope v. Pelzer, 536 U.S. 730 (2002)). If a constitutional right would have

been violated under the plaintiff’s version of the facts, “the next, sequential step is to ask

whether the right was clearly established.” Id. Thus, the Court will first analyze whether each

officer’s conduct violated Plaintiff’s constitutional rights.

1. Deliberate Indifference Claim Against Batchelor

Plaintiff’s allegations fail to demonstrate an Eighth Amendment constitutional

violation of deliberate indifference to a serious medical need for the reasons previously stated.

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Accordingly, Plaintiff’s deliberate indifference claim against Defendant Batchelor is barred

by the doctrine of qualified immunity.

2. Excessive Force Claim Against Defendants Ross and Turner

In the Eleventh Circuit, the defense of qualified immunity is not available in cases

alleging excessive force in violation of the Eighth Amendment. Skrtich v. Thornton, 280 F.3d

1295, 1301 (11th Cir. 2002). “The only question, then, is whether the plaintiff has alleged

facts sufficient to survive a motion to dismiss or a motion for summary judgment.” Id. Here,

Plaintiff has not done so.

When a prison employee is accused of excessive force, the inquiry is “whether force

was applied in a good-faith effort to maintain or restore discipline or maliciously and

sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6 (1992). A claim for

excessive force requires a plaintiff to establish a defendant acted with the subjective intent to

use force maliciously and sadistically to cause harm. Campbell v. Sikes, 169 F.3d 1353, 1375

(11th Cir. 1999). To determine whether force was applied maliciously and sadistically, the

Supreme Court outlines five factors: “(1) the extent of injury; (2) the need for application of

force; (3) the relationship between that need and the amount of force used; (4) any efforts

made to temper the severity of a forceful response; and (5) the extent of the threat to the safety

of staff and inmates, as reasonably perceived by the responsible officials on the basis of facts

known to them.” Id. (citing Whitley v. Albers, 475 U.S. 312, 321 (1986)). In considering the

above factors, “inferences may be drawn as to whether the use of force could plausibly have

been thought necessary, or instead evinced such wantonness with respect to the unjustified

infliction of harm as is tantamount to a knowing willingness that it occur.” Whitley, 475 U.S.

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at 321. In addition, a plaintiff’s allegations must establish an objective component, which

requires a plaintiff to prove a requisite amount of force was used against him. Smith v.

Vavoulis, 373 F. App’x 965, 966 (11th Cir. 2010). Thus, the Eighth Amendment generally

will not cover de minimis uses of physical force. Id.

Here, Plaintiff has failed to allege that Defendants Ross and Turner had the subjective

intent to apply force maliciously and sadistically when removing Plaintiff from beneath his

bunk. First, the extent of Plaintiff’s injuries was minimal. Plaintiff alleges he suffered from

nightmares, bruises, and pain in his ankle, knee, thigh, lower back for weeks after the incident.

(Doc. 1 at 11). Plaintiff does not allege his injuries required medical treatment. Plaintiff does

not allege his injuries were permanent or took a significant time to heal. See McBride v.

Rivers, 170 F. App’x 648, 657 (11th Cir. 2006) (explaining that when a plaintiff alleges injuries

did not require medical treatment, and the injury was not permanent or required long healing

periods, the severity of injury may be minimal).

Second, the application of force was objectively necessary. Defendants Ross and

Turner, at the order of Defendant Batchelor, removed Plaintiff from his cell for declaring a

psychological emergency, hiding under a bunk, and covering the CCTV monitor with toilet

paper. (Doc. 1 at 9). In the Eleventh Circuit, “[p]rison guards may use force when necessary

to restore order and need not wait until disturbances reach dangerous proportions before

responding.” Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (quoting Bennett v.

Parker, 898 F.2d 1530, 1533 (11th Cir.1990)). Furthermore, a court should give a “wide range

of deference to prison officials acting to preserve discipline and security.” Id. Defendants’

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decision to use force while trying to remove Plaintiff from under his bunk falls within the

deference given to officials in Defendants’ position.

Third, the relationship between the need for and amount of force was reasonable.

Plaintiff alleges Defendant Turner used both hands to grab and twist Plaintiff’s left ankle, and

slammed Plaintiff’s left thigh into the bottom of the bunk. (Doc. 1 at 9). Plaintiff alleges

Defendant Ross then grabbed and pulled Plaintiff’s right ankle. (Id. at 10). The amount of

force used by Defendants Ross and Turner was reasonable and limited to the extent

Defendants needed to remove Plaintiff from hiding under his bunk. See Nasseri v. City of

Athens, 373 F. App’x 15, 18 (11th Cir. 2010) (guards are “permitted to use some force in

controlling the situation and preventing it from escalating.”); e.g.

McBride, 170 F. App’x at 656-57 (finding guards who repeatedly punched the inmate in the

back of the head, on his back, on his left side, and also kneed the inmate in the face four to

six times, did not use excessive force). Overall, the relationship between the need and the

amount of force was reasonable.

Fourth, based on the facts known to them, it was reasonable for Defendants to perceive

a threat to safety. Plaintiff’s allegations establish Plaintiff declared a psychological emergency,

covered the CCTV monitor in his cell with toilet paper, and hid under his bunk while crying

and rocking back and forth. (Doc. 1 at 8-9). Under these facts, it was reasonable for

Defendants Ross and Turner to perceive a threat to the safety of staff, inmates, and Plaintiff

himself. See Mixon v. Mosley, No. 2:06-cv-342-MHT, 2009 WL 1116617 at *5, 8-9

(M.D. Ala. 2009) (guards perceived a threat to safety when they could not see inside of

inmate’s cell and the defendant was afraid plaintiff might be causing harm to himself).

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Here, even construing the facts in the light most favorable to Plaintiff, the factors weigh

in favor of the conclusion that Defendants Ross and Turner applied force in a good-faith effort

to maintain or restore discipline, and not maliciously and sadistically to cause harm.

Accordingly, Plaintiff’s excessive force claims against Defendants Ross and Turner are

dismissed.

3. First Amendment Retaliation Claims Against Defendants

Ross and Turner

While Plaintiff did not cite the First Amendment in his complaint, Plaintiff’s

allegations may be read broadly to allege claims of retaliation against Defendants Ross and

Turner in response to Plaintiff’s exercising his First Amendment rights. (Doc. 8 at 5-6). A

retaliation claim requires a plaintiff to establish: “(1) that his speech was constitutionally

protected; (2) that the defendant’s retaliatory conduct adversely affected protected speech; and

(3) there is a causal connection between retaliatory actions and adverse effect on speech.”

Pittman v. Tucker, 213 F. App’x 867, 870 (11th Cir. 2007) (citing Bennett v. Hendrix, 423

F.3d 1247, 1250-51 (11th Cir. 2005)). A plaintiff suffers adverse action if the defendant’s

allegedly retaliatory conduct would likely deter a person of ordinary firmness from the

exercise of his First Amendment rights. Id. (citing Bennett, 423 F.3d at 1254). Causal

connection requires evidence of a retaliatory motive. See Gattis v. Brice, 136 F.3d 724, 726

(11th Cir. 1998). At the motion to dismiss stage, the subjective motivation requirement is

satisfied if a plaintiff identifies a sequence of events from which a retaliatory motive can be

inferred. Smith v. Fla. Dep’t of Corr., 375 F. App’x 905, 911 (11th Cir. 2010).

Here, Plaintiff alleges that “[d]ue to the numerous grievances Plaintiff submitted at

Zephyrhills C.I. about the mistreatment, abuse, and injustices that were happening there, the

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Defendants retaliated against [him] with false [disciplinary reports], taunts, and the [July 13,

2017] use of force, and the denial of mental health / psychological emergencies.” (Doc. 1 at

10-11). Here, the complaint fails to set forth a plausible causal connection between the alleged

retaliation and Plaintiff’s protected activity of filing grievances. The complaint makes only

conclusory allegations of a retaliatory motive and Plaintiff does not allege facts sufficient to

raise his conclusions above the speculative level. Compare Taylor v. Crews, No. 4:14-cv-98–

MW/CAS, 2015 WL 5042721, at *7-8 (N.D. Fla. July 27, 2015), report and

recommendation adopted, 2015 WL 5042805 (N.D. Fla. Aug. 26, 2015) (finding allegations

were sufficient where plaintiff alleged an incident where he was yelled at for filing a grievance

and then Defendant did not permit Plaintiff to eat breakfast). Accordingly, any First

Amendment claim arguably raised in the complaint against Defendants Ross and Turner fails.

Conclusion

For the reasons explained above, all of Plaintiff’s claims are due to be dismissed and,

moreover, Plaintiff has failed to exhaust his available administrative remedies. Because

exhaustion is a mandatory precondition to filing suit, failure to fulfill this requirement

mandates dismissal. See Woodford, 548 U.S. at 84; Wilkinson, 544 U.S. at 84. Moreover,

due to the structure of the Florida exhaustion requirements, which requires the first step of

the process to be completed within 20 days of the alleged incident, there is no way for Plaintiff

to cure the deficiency at this late date. Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012)

(“[A]n inmate alleging harm suffered from prison conditions must file a grievance and exhaust

the remedies available under that procedure before pursuing a § 1983 lawsuit.”); Smith v.

Hartmeyer, No. 6:18-cv-119, 2021 WL 2123919, at *2 (S.D. Ga. Apr. 27, 2021), report and

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recommendation adopted, No. 6:18-cv-119, 2021 WL 2117055 (S.D. Ga. May 25, 2021) (“An

incarcerated individual cannot ‘cure’ an exhaustion defect by properly exhausting all remedies

after filing suit.”).

Therefore, while it is the general rule in this Circuit that pro se plaintiffs should be given

a chance to amend their complaint before dismissal with prejudice, Bryant v. Dupree, 252

F.3d 1161, 1163 (11th Cir. 2001), amendment would be futile here. See Cockrell v. Sparks,

510 F.3d 1307, 1310 (11th Cir. 2007) (“Leave to amend a complaint is futile when the

complaint as amended would still be properly dismissed or be immediately subject to

summary judgment for the defendant.”); see also Reyle v. Clay Cty. Jail, No. 3:18-cv-522-

MMH-JRK, 2018 WL 2197782, at *2 (M.D. Fla. May 14, 2018) (dismissing complaint and

finding amendment would be futile given the inmate’s failure to exhaust his administrative

remedies and failure to set forth a cognizable claim under Section 1983).

Accordingly, it is ORDERED that:

1. Defendants’ Motion to Dismiss (Doc. 27) is GRANTED.

2. Plaintiff's Complaint (Doc. 1) is DISMISSED without leave to amend.

3. The Clerk is directed to CLOSE THE CASE.

DONE and ORDERED in Tampa, Florida on this 14" day of September, 2021.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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