# Lane v. Batchelor

> District Court, M.D. Florida · September 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10108392

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 14, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10108392

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108392. Public record. Not legal advice.