Fleming v. Espino

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TYRECE FLEMING,

Plaintiff,

v. Case No. 3:20-cv-853-MMH-JRK

DR. ESPINO,

Defendant.

________________________________

ORDER

I. Status

Plaintiff Tyrece Fleming, an inmate of the Florida penal system,

initiated this action on July 27, 2020,1 by filing a pro se Civil Rights Complaint

under 42 U.S.C. § 1983 (Doc. 1). Fleming is proceeding on an amended

complaint (Amended Complaint; Doc. 6), in which he names Dr. Espino, in his

individual capacity, as the sole defendant. Fleming alleges Dr. Espino sexually

assaulted him and was deliberately indifferent to a serious medical need in

violation of the Eighth Amendment. As relief, Fleming seeks “the

discontinuance of improper practice(s),” $50,000, and that the Court refer this

matter to the state for criminal prosecution. Before the Court is Espino’s

Motion for Summary Judgment and Incorporated Memorandum of Law

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

(Motion; Doc. 23), with exhibits.2 Fleming opposes the Motion. See Motion of

Counter-Affidavits in Response to Defendant’s Summary Judgment (Response;

Doc. 28). Espino filed a reply. See Defendant’s Reply in Support of Summary

Judgment (Reply; Doc. 29). The Motion is ripe for review.

II. Fleming’s Allegations

In his Amended Complaint,3 Fleming alleges that on February 18, 2020,

he went to Espino’s office because he had been defecating blood. Amended

Complaint at 5. Espino informed Fleming that he was going to insert his finger

into his anus to see if blood was present. Id. According to Fleming, he observed

“Espino put AmerFresh Toothpaste on his finger.” Id. Concerned, Fleming

asked Espino if he was going to place toothpaste in his anus. Id. Fleming

asserts that Espino told him to bend over and then repeatedly “rammed his

fingered covered in toothpaste in the Plaintiff’s rectum.” Id. Espino then

purportedly moved his finger back and forth in Fleming’s rectum while Espino

2 On June 22, 2021, Espino supplemented his exhibits with a redacted

copy of Fleming’s medical records. See Doc. 27.

3 The Amended Complaint is not verified. It is neither sworn nor

accompanied with an unsworn declaration under penalty of perjury that the

alleged facts are true and correct. See 28 U.S.C. § 1746; see also Stallworth v.

Tyson, 578 F. App'x 948, 950 (11th Cir. 2014) (citations omitted) ("The factual

assertions that [the plaintiff] made in his amended complaint should have been

given the same weight as an affidavit, because [the plaintiff] verified his

complaint with an unsworn written declaration, made under penalty of

perjury, and his complaint meets Rule 56's requirements for affidavits and

sworn declarations.").

stated he neither felt nor saw any blood. Id. at 14. Espino took his finger out,

showed it to Fleming, and said, “See, no blood now get out.” Id.

During the alleged assault, Fleming states that he was shackled and

unable to move or defend himself. Id. at 5. He complained about the alleged

assault to two correctional officers who were standing near the door, but the

officers did nothing but threaten to use force to take him back to his cell if he

did not return willingly. Id. Correctional officers removed Fleming from

Espino’s office and returned him to his cell. Id. at 12. Once at his cell, Fleming

again complained to the staff about the alleged sexual assault and the failure

of correctional staff to investigate it and obtain evidence. Id. at 15. Captain

Blinch reported Fleming’s allegation. Id. at 15-16.

According to Fleming, days later he complained that the toothpaste had

“burned the skin from around his anus and inside his rectum and that the skin

and blood was stuck to the inside of his boxers.” Id. He states that he did not

clean himself because he believed he needed to preserve evidence of the sexual

assault. Id. However, after days of not showering, Fleming explains he had to

start bathing in the toilet to get rid of the infection. Id.

On March 1, 2020, a state representative, Kimberly Daniels, came to

speak with Fleming about the alleged assault. Id. at 12-13. Daniels promised

him that she would investigate his case once she returned to her office. Id. at

13. Later that month, Fleming called the Gulf Coast Sexual Assault Program

and discussed the incident with a victim advocate who then reported it to the

inspector general. Id. As a result of the incident, Fleming alleges he suffered

burned skin inside of his rectum and around his anus that went untreated. Id.

at 5.

III. Summary Judgment Standard

Rule 56 instructs that “[t]he court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Rule 56(a). The record

to be considered on a motion for summary judgment may include “depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A).4 An

4 Rule 56 was revised in 2010 “to improve the procedures for presenting

and deciding summary-judgment motions.” Rule 56 advisory committee’s note

2010 Amends.

The standard for granting summary judgment remains unchanged.

The language of subdivision (a) continues to require that there be

no genuine dispute as to any material fact and that the movant be

entitled to judgment as a matter of law. The amendments will not

affect continuing development of the decisional law construing and

applying these phrases.

Id. “[A]lthough the interpretations in the advisory committee[‘s] notes are not

binding, they are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874,

879 n.3 (11th Cir. 2013). Thus, case law construing the former Rule 56

standard of review remains viable and applies here.

issue is genuine when the evidence is such that a reasonable jury could return

a verdict in favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93

F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 919 (11th Cir. 1993)). However, “a mere scintilla of evidence

in support of the non-moving party’s position is insufficient to defeat a motion

for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington,

381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no

genuine issues of material fact to be determined at trial. See Clark v. Coats

& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When the non-moving party

bears the burden of proof on an issue at trial, the moving party need not

‘support its motion with affidavits or other similar material negating the

opponent’s claim,’ Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,

2552-53, 91 L.Ed.2d 265 (1986), in order to discharge this initial

responsibility.” Gonzalez v. Lee Cty. Hous. Auth., 161 F.3d 1290, 1294 (11th

Cir. 1998). Instead, the moving party simply may demonstrate “that there is

an absence of evidence to support the nonmoving party’s case.” Id.

“When a moving party has discharged its burden, the non-moving party

must then go beyond the pleadings, and by its own affidavits, or by

depositions, answers to interrogatories, and admissions on file, designate

specific facts showing that there is a genuine issue for trial.” Jeffery v.

Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (internal

citations and quotation marks omitted). Substantive law determines the

materiality of facts, and “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry

of summary judgment.” Anderson, 477 U.S. at 248. In determining whether

summary judgment is appropriate, a court “must view all evidence and make

all reasonable inferences in favor of the party opposing summary judgment.”

Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros.

Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir.

1994)).

IV. Analysis and Conclusions

In the Motion, Dr. Espino argues that he is entitled to summary

judgment for four reasons: (1) Fleming failed to exhaust administrative

remedies before filing suit; (2) Fleming made misrepresentations to the Court

in the Amended Complaint; (3) the Court should use its authority under 28

U.S.C. § 1915(e)(2)(B)(i) to dismiss the claims as “clearly baseless”; and (4)

Fleming cannot prove Espino sexually assaulted him or was deliberately

indifferent to a serious medical need. Motion at 1-2. The Court finds it

necessary to only address arguments one and four below, as they are

dispositive.

A. Exhaustion

Espino contends that Fleming failed to exhaust his administrative

remedies because Fleming never filed an appeal concerning the alleged sexual

assault or the medical treatment he received. Motion at 10-11. To the extent

Fleming argues the grievance process was unavailable to him, Espino notes

that Fleming filed three grievances appeals while being housed at Florida

State Prison, which shows Fleming did have access to the grievance process.

Id. at 11. Espino acknowledges that Fleming alleges in the Amended

Complaint that he filed the necessary grievances at Florida State Prison. Id.

However, Espino contends this is a misrepresentation because at the time

Fleming would have filed a formal grievance he was not housed at Florida

State Prison. Id. at 11-12. Last, Espino argues that although the Office of

Inspector General (OIG) investigated Fleming’s sexual assault allegation that

does not constitute proper exhaustion because the investigation did not stem

from the grievance process. Id. at 12-13. Instead, Espino notes that the OIG

investigated because of a phone call to the Gulf Coast Sexual Assault Program

and reports from Captain Blitch and Lieutenant Young, not the grievance

process. Id.

In Response, Fleming argues that between February 19th and 24th of

2020, he filed grievances, but prison staff lied about never receiving them.

Response at 12. He requests that the Court demand audio and video recordings

from the prison to prove his contentions that he dropped off grievances. Id. In

any event, he asserts that because he never received a response, he was

allowed to move to the next level of the grievance process. Id. Regarding any

misrepresentations in the Amended Complaint, Fleming contends that any

error was the result of the Court denying his motion to appoint counsel. Id. at

12-13.

Motion to Dismiss Standard5

The determination of whether an inmate exhausted his available

administrative remedies prior to pursuing a cause of action in federal court is

a matter of abatement and should be raised in a motion to dismiss or be treated

as such if raised in a summary judgment motion. Bryant v. Rich, 530 F.3d

1368, 1374-75 (11th Cir. 2008) (citation omitted). In ruling on a motion to

dismiss, the Court must accept the factual allegations set forth in the

complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s

5 While Espino has raised the exhaustion defense in a summary-

judgment motion under Rule 56, rather than a Rule 12 motion, the Court must

treat the motion as one seeking dismissal. See Bryant v. Rich, 530 F.3d 1368,

1374-75 (11th Cir. 2008).

World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all

reasonable inferences should be drawn in favor of the plaintiff. See Randall v.

Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still

meet some minimal pleading requirements. Jackson v. BellSouth Telecomm.,

372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while

“[s]pecific facts are not necessary[,]” the complaint should “‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests.’”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege

“enough facts to state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570. “A claim has facial plausibility when the pleaded factual

content allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,

550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal

quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that

“conclusory allegations, unwarranted deductions of facts or legal conclusions

masquerading as facts will not prevent dismissal”) (internal citation and

quotations omitted). Indeed, “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at

678, 680. Thus, in ruling on a motion to dismiss, the Court must determine

whether the complaint contains “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting

Twombly, 550 U.S. at 570). And, while “[p]ro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed,” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998), “‘this leniency does not give a court license to serve as de facto

counsel for a party or to rewrite an otherwise deficient pleading in order to

sustain an action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837,

839 (11th Cir. 2011)6 (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132

F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part

on other grounds as recognized in Randall, 610 F.3d at 709).

6 “Although an unpublished opinion is not binding . . . , it is persuasive

authority.” United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per

curiam); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished

opinions are not considered binding precedent, but they may be cited as

persuasive authority.”).

PLRA Exhaustion

The PLRA requires an inmate wishing to challenge prison conditions to

first exhaust all available administrative remedies before asserting any claim

under 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(a). Nevertheless, a prisoner such

as Fleming is not required to plead exhaustion. See Jones v. Bock, 549 U.S.

199, 216 (2007). Instead, the United States Supreme Court has recognized that

“failure to exhaust is an affirmative defense under the PLRA[.]” Id. Notably,

exhaustion of available administrative remedies is “a precondition to an

adjudication on the merits” and is mandatory under the PLRA. Bryant, 530

F.3d at 1374. Not only is there an exhaustion requirement, the PLRA “requires

proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).

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).”

Pozo,[7] 286 F.3d, at 1024 (emphasis in original).

7 Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).

Woodford, 548 U.S. at 90. And, “[p]roper exhaustion demands compliance with

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

As such, the United States Supreme Court has 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.’” Ross v. Blake, 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 [Fleming] has failed to

exhaust his available administrative remedies.” Id. at 1082. In accordance with

Eleventh Circuit precedent, a court must employ a two-step process when

examining the issue of exhaustion of administrative remedies.

After a prisoner has exhausted the grievance

procedures, he may file suit under § 1983. In response

to a prisoner suit, defendants may bring a motion to

dismiss and raise as a defense the prisoner’s failure to

exhaust these administrative remedies. See Turner,

541 F.3d at 1081. 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);

see Pavao v. Sims, 679 F. App’x 819, 823-24 (11th Cir. 2017) (per curiam). “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).

Florida’s Prison Grievance Procedure

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

Brown, 783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218

(stating that “it is the prison’s requirements, and not the PLRA, that define

the boundaries of proper exhaustion”). The FDOC provides an internal

grievance procedure for its inmates. See FLA. ADMIN. CODE r. 33-103.001

through 33-103.018. Generally, to properly exhaust administrative remedies,

a prisoner must complete a three-step sequential process. First, an inmate

must submit an informal grievance to a designated staff member responsible

for the specific problem at the institutional level. See FLA. ADMIN. CODE r.

33-103.005. If the issue is not resolved, the inmate must submit a formal

grievance at the institutional level. See FLA. ADMIN. CODE r. 33-103.006. If

the matter is not resolved at the institutional level, the inmate must file an

appeal to the Office of the FDOC Secretary. See FLA. ADMIN. CODE r. 33-

103.007. However, under certain specified circumstances, an inmate can

bypass the informal-grievance stage and start with a formal grievance at the

institutional level. See FLA. ADMIN. CODE r. 33-103.005(1); 33-103.006(3).

Or an inmate can completely bypass the institutional level and proceed directly

to the Office of the FDOC Secretary by filing a “direct grievance.” See FLA.

ADMIN. CODE r. 33-103.007(3). Emergency grievances and grievances of

reprisal are types of “direct grievances” that may be filed with the Office of the

Secretary. See FLA. ADMIN. CODE r. 33-103.007(3)(a).

Florida Administrative Code Rule 33-103.011 provides time frames for

submission of grievances. Generally, the following time limits apply. Informal

grievances must be received within twenty days from the date on which the

incident or action that is the subject of the grievance occurred. See FLA.

ADMIN. CODE r. 33-103.011(1)(a). Formal grievances must be received no

later than fifteen days from the date of the response to the informal grievance.

See FLA. ADMIN. CODE r. 33-103.011(1)(b). Similarly, grievance appeals to

the Office of the Secretary must be received within fifteen days from the date

the response to the formal grievance is returned to the inmate. See FLA.

ADMIN. CODE r. 33-103.011(1)(c). According to Rule 33-103.014, an informal

grievance, formal grievance, direct grievance, or grievance appeal “may be

returned to the inmate without further processing if, following a review of the

grievance, one or more . . . conditions are found to exist.” FLA. ADMIN. CODE

r. 33-103.014(1). The rule provides an enumerated list as “the only reasons for

returning a grievance without a response on the merits.” See FLA. ADMIN.

CODE r. 33-103.014(1)(a)-(y). Some of the reasons for returning a grievance

are: untimeliness; the grievance “addresses more than one issue or complaint”

or “is so broad, general or vague in nature that it cannot be clearly investigated,

evaluated, and responded to” or “is not written legibly and cannot be clearly

understood” or is a supplement to a previously-submitted grievance that has

been accepted for review; and the inmate “did not provide a valid reason for by-

passing the previous levels of review as required or the reason provided is not

acceptable,” or he did not provide the required attachments. See FLA. ADMIN.

CODE r. 33-103.014(1).

Fleming’s Exhaustion Efforts

In the Amended Complaint, Fleming alleges that prior to the February

18th incident, he filed an informal and a formal grievance on an unrelated

matter. Amended Complaint at 14. As to the events at issue here, Fleming

asserts that immediately following the alleged sexual assault, he made verbal

complaints to Captain Blinch and Lieutenant Young and they reported it under

the Prison Rape Elimination Act (PREA). Id. at 15-16. Fleming also asserts

that on February 20, 2020:

Camera[s] will show the grievance lady stop at my cell

and show her accepting an informal grievance from me

and placing it [in] the grievance box she was carrying.

That grievance was addressed to the Warden. No

response as of date.

Id. at 16. He maintains that he submitted grievances to the warden, assistant

warden, “security,” “mental health,” and the secretary of the Florida

Department of Corrections. Id. at 7. However, he never received a response to

any of those grievances. Id. Fleming asserts that “none of Plaintiff[‘s]

grievances and appeal [sic] were answered in a timely matter and was said to

have never been received.” Id. Fleming alleges that on March 1, 2020, a state

representative visited him. Id. After that visit, Fleming asserts that prison

staff filed a false disciplinary report against him as retaliation for talking with

the state representative. Id. at 17. He broadly avers that prison staff are also

“trying to cover up what happened[.]” Id.

Espino concedes that under the first step of the Turner analysis, Fleming

has alleged proper exhaustion. Motion at 10. However, he argues that under

the second step, there is no evidence to support Fleming’s contention that he

exhausted his remedies as to the claims at issue here. Id. at 10-13. Based on

the allegations in the Amended Complaint that Fleming’s grievances went

unanswered and Espino’s concession, the Court finds that Fleming has

satisfied step one of the Turner analysis. Thus, the Court proceeds to examine

the available evidence to make a factual determination as to whether Fleming

properly exhausted his administrative remedies.

According to Fleming, he placed an informal grievance related to the

claims at issue here in the grievance lockbox on February 20, 2020, but he did

not receive a response. He provides no copies of this grievance or other evidence

in support. Neither does he provide evidentiary support for his conclusory

claims that he submitted grievances to other agencies. Espino on the other

hand has provided records of all of Fleming’s administrative appeals while at

Florida State Prison. Doc. 23-6. Upon review, none of those appeals addressed

the issues raised in the Amended Complaint. Id. In his Response, Fleming

contends that prison officials lied about not receiving his grievances and the

Court should request the video footage to prove he handed over grievances to

prison officials. Response at 12. However, it is Fleming’s duty, not the Court’s,

to provide evidence in support of his contentions. Fleming could have requested

those videos during the discovery period, yet he did not.

Fleming’s conclusory allegations that prison officials thwarted his ability

to properly exhaust his claims is insufficient to overcome Espino’s evidence.

The evidence shows that Fleming was able to submit other grievances and

appeals without hinderance, Doc. 23-6, as well raise complaints under the

PREA, Doc. 23-5. Moreover, two correctional officers reported his allegations

to the OIG, Doc. 23-5, which undermines his claim that correctional officers

were lying or otherwise attempting to prevent him from submitting grievances

about the alleged assault or covering it up. See Kozuh v. Nichols, 185 F. App'x

874, 878 (11th Cir. 2006) (finding a failure to exhaust where plaintiff provided

no evidence to support his allegation that prison officials thwarted him from

bringing grievances and where evidence showed plaintiff filed other grievances

and requests). Based on the above, the Court finds that Fleming failed to

submit an appeal grievance. Thus, he did not complete all required steps of the

grievance procedure and failed to exhaust his administrative remedies as to

the claims raised in the Amended Complaint. See Woodford, 548 U.S. at 90.

To the extent Fleming argues the OIG’s investigation demonstrates

proper exhaustion, the evidence does not support this contention. Espino

attached documentation from the investigation that shows OIG initiated the

investigation because Fleming reported his claims to two correctional officers

who then reported it to the OIG and because Fleming called a prison sexual

assault hotline. Doc. 23-5 at 3-4, 10, 12, 14. There is no evidence supporting

even an inference that the OIG’s investigation was a result of Fleming filing a

grievance. As such, the OIG’s investigation is not relevant to the issue of

exhaustion. Compare Pavao v. Sims, 679 F. App'x 819, 825 (11th Cir. 2017)

(quoting Dimanche, 783 F.3d at 1210) (“Pavao’s efforts to seek redress from the

Florida state courts or the Inspector General of the FDOC are not relevant to

the question of exhaustion because they are not part of the prison grievance

procedure, and therefore are outside the ‘boundaries of proper exhaustion.’”);

and Schlicher v. Fla. Dep't of Corr., 399 F. App'x 538, 539 (11th Cir. 2010)

(rejecting the plaintiff's argument that writing letters to the Secretary of the

FDOC, a federal judge, and the inspector general, and making verbal

complaints to various prison officials, were sufficient to satisfy the exhaustion

requirement); with Luckey v. May, No. 5:14-cv-315-MW-GRJ, 2016 WL

1128426, at *11 (N.D. Fla. Feb. 17, 2016) (concluding plaintiff properly

exhausted where referral of plaintiff's grievances initiated Inspector General

Office’s investigation); and Lanier v. Smith, No. 3:08-cv-833-J-12JRK, 2009

WL 1758904, at *1 (M.D. Fla. June 19, 2009) (same). In light of the above, the

Motion is due to be granted to the extent Fleming failed to exhaust his

administrative remedies.

B. Eighth Amendment Allegations

Even assuming Fleming did properly exhaust his administrative

remedies as to these claims, Espino is entitled to summary judgment on

Fleming’s claims that Espino violated his constitutional rights. As to his

deliberate indifference claim, Fleming provides no evidence that he was

suffering from rectal bleeding as he asserts in his unverified Amended

Complaint. Moreover, even if there was a serious medical risk, the undisputed

medical records show that Espino did not ignore the risk and concluded after

examination that no risk was present. Regarding Fleming’s cruel and unusual

punishment claim related to the alleged sexual assault, he points to no

evidence to support a finding that any sexual assault occurred. Instead, the

evidence before the Court reflects that Espino’s rectal exam was done to further

a medical end and was within the realm of medical care necessary to treat the

alleged condition.

Pursuant to the Eighth Amendment of the United States Constitution,

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” U.S. Const. amend. VIII. The Eighth

Amendment “imposes duties on [prison] officials, who must provide humane

conditions of confinement; prison officials must ensure that inmates receive

adequate food, clothing, shelter, and medical care, and must ‘take reasonable

measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511

U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

“To establish an Eighth Amendment violation, a prisoner must satisfy both an

objective and subjective inquiry regarding a prison official’s conduct.” Oliver v.

Fuhrman, 739 F. App'x 968, 969 (11th Cir. 2018) (citing Chandler v. Crosby,

379 F.3d 1278, 1289 (11th Cir. 2004)). The Eleventh Circuit has explained:

Under the objective component, a prisoner must

allege a condition that is sufficiently serious to violate

the Eighth Amendment. Id. The challenged condition

must be extreme and must pose an unreasonable risk

of serious damage to the prisoner’s future health or

safety. Id. The Eighth Amendment guarantees that

prisoners are provided with a minimal civilized level

of life’s basic necessities. Id.

Under the subjective component, a prisoner

must allege that the prison official, at a minimum,

acted with a state of mind that constituted deliberate

indifference. Id. This means the prisoner must show

that the prison officials: (1) had subjective knowledge

of a risk of serious harm; (2) disregarded that risk; and

(3) displayed conduct that is more than mere

negligence. Farrow v. West, 320 F.3d 1235, 1245 (11th

Cir. 2003).

Id. at 969-70. “To be cruel and unusual punishment, conduct that does not

purport to be punishment at all must involve more than ordinary lack of due

care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319

(1986).

As it relates to medical care, “[t]he Supreme Court has interpreted the

Eighth Amendment to prohibit ‘deliberate indifference to serious medical

needs of prisoners.’” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016)

(quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The Eleventh circuit has

explained that

To prevail on a deliberate indifference claim, [a

plaintiff] must show: “(1) a serious medical need; (2)

the defendants' deliberate indifference to that need;

and (3) causation between that indifference and the

plaintiff's injury.” Mann v. Taser Int'l, Inc., 588 F.3d

1291, 1306-07 (11th Cir.2009). To establish deliberate

indifference, [a plaintiff] must prove “(1) subjective

knowledge of a risk of serious harm; (2) disregard of

that risk; (3) by conduct that is more than [gross]

negligence.” Townsend v. Jefferson Cnty., 601 F.3d

1152, 1158 (11th Cir.2010) (alteration in original). The

defendants must have been “aware of facts from which

the inference could be drawn that a substantial risk of

serious harm exist[ed]” and then actually draw that

inference. Farrow v. West, 320 F.3d 1235, 1245 (11th

Cir.2003) (quotation omitted).

Easley v. Dep’t of Corr., 590 F. App’x 860, 868 (11th Cir. 2014). “For medical

treatment to rise to the level of a constitutional violation, the care must be ‘so

grossly incompetent, inadequate, or excessive as to shock the conscience or to

be intolerable to fundamental fairness.’” Nimmons v. Aviles, 409 F. App'x 295,

297 (11th Cir. 2011) (quoting Harris v. Thigpen, 941 F.2d 1495, 1505 (11th

Cir.1991)); see also Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)

(“Grossly incompetent or inadequate care can constitute deliberate

indifference, as can a doctor’s decision to take an easier and less efficacious

course of treatment” or fail to respond to a known medical problem). However,

the law is well settled that the Constitution is not implicated by the negligent

acts of corrections officials and medical personnel. Daniels v. Williams, 474

U.S. 327, 330-31 (1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986) ("As we

held in Daniels, the protections of the Due Process Clause, whether procedural

or substantive, are just not triggered by lack of due care by prison officials.").

A complaint that a physician has been negligent "in diagnosing or treating a

medical condition does not state a valid claim of medical mistreatment under

the Eighth Amendment." Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir.

2011) (quotation marks and citation omitted). Moreover, the Eleventh Circuit

has noted that “[n]othing in our case law would derive a constitutional

deprivation from a prison physician's failure to subordinate his own

professional judgment to that of another doctor; to the contrary, it is well

established that ‘a simple difference in medical opinion’ does not constitute

deliberate indifference.” Bismark v. Fisher, 213 F. App'x 892, 897 (11th Cir.

2007) (quoting Waldrop, 871 F.2d at 1033). Similarly, “the question of whether

governmental actors should have employed additional diagnostic techniques or

forms of treatment ‘is a classic example of a matter for medical judgment’ and

therefore not an appropriate basis for grounding liability under the Eighth

Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (citation

omitted).

Espino provided Fleming’s medical records regarding the incident. Doc.

27-1. The records show that on January 28, 2020, Fleming refused Pepto-

Bismol to treat his stomach pain because he felt it was ineffective. Id. at 2, 8,

23. Espino’s notes from the February 18, 2020 examination reflect that

Fleming complained of bleeding since the night before the examination. Id. at

7. This is the first and only report of rectal bleeding in the medical

documentation provided. Espino conducted a rectal exam and notated “No

blood on exam finger,” found no objective indicators that Fleming’s rectum was

bleeding, prescribed Tums for his stomach pain, and ordered a stool sample.

Id. at 7, 18-19. On February 26, 2020, Fleming refused to sign a refusal of

health care form reflecting that he turned down a hemoccult lab test that would

have confirmed the presence of blood. Id. at 1. On March 2, 2020, a nurse

examined Fleming based on his allegations of staff abuse. Id. at 10-11. Her

summary reflects “no injures noted upon examination.” Id.

Espino also provided sworn statements in support of his request for entry

of summary judgment. In his declaration, Espino asserts under oath that he

applied lubricant to his fingers so as to perform a rectal exam based on

Fleming’s complaint regarding rectal bleeding. Doc. 23-3 at 1-2. Espino further

states that toothpaste was not kept in the medical supply drawer. Id. at 2.

Espino avers that based on the exam, there was no evidence of bleeding and

that based on his medical judgment no treatment was required. Id. The sworn

declaration of Sergeant Christopher Langkau reflects similar facts. According

to Langkau, Fleming consented to a rectal examination to address his

complaint of rectal bleeding. Doc. 23-4 at 2. Langkau observed Espino apply

lubricant, not toothpaste, to his fingers to examine Fleming. Id. The OIG report

corroborates these declarations. It reflects that they found no evidence to

substantiate Fleming’s allegations concerning toothpaste, that Fleming lied in

hopes of getting money, and Espino’s conduct during the exam was in line with

the performance of his duties. Doc. 23-5.

The undisputed evidentiary record before the Court reflects that Fleming

did not have a serious medical issue related to rectal bleeding. Nothing before

or after the February 18, 2020 incident shows that Fleming complained about

rectal bleeding. The examination at the time revealed no indications of rectal

bleeding. Fleming refused testing that would have provided additional

information on the matter. As Fleming did not have a serious medical risk, he

cannot demonstrate deliberate indifference under the Eighth Amendment.

Moreover, even if Fleming could establish such, the evidence shows that

Espino did not ignore his condition but rather investigated via a rectal exam

and a request for a hemoccult test. Espino found no observable signs of

bleeding and thus could not treat something that did not exist. Fleming has

failed to present any evidence creating a genuine issue of fact as to the

existence of rectal bleeding before, during, or after the incident. On this record,

no reasonable jury could find that Espino was deliberately indifferent to

Fleming’s rectal bleeding.

Likewise, Fleming’s claim of sexual assault is not supported by evidence.

Espino provided two sworn statements attesting to the use of lubricant, not

toothpaste, during the rectal exam and that Fleming consented to the exam.

Fleming points to no evidence suggesting Espino sadistically or maliciously

conducted the rectal exam. Instead, the record shows only that the rectal exam

had a legitimate medical purpose, to determine if Fleming was bleeding from

his rectum. Even Fleming’s own contentions in the Amended Complaint,

outside of the toothpaste allegation, show that Espino conducted the rectal

examination because of Fleming’s complaint about bleeding. Notably, Fleming,

as the party opposing summary judgment, is not entitled to rest upon mere

allegations contained in the Amended Complaint. See Clark v. Coats & Clark,

Inc., 929 F.2d 604, 608 (11th Cir. 1991); Jeffery v. Sarasota White Sox, Inc., 64

F.3d 590, 593-94 (11th Cir. 1995); Walker v. Darby, 911 F.2d 1573, 1577-78

(11th Cir. 1990). Instead, he is required to go beyond the Amended Complaint

and, through affidavit, or by depositions, answers to interrogatories, and

admissions on file, designate specific facts showing that a genuine issue

remains for trial. See Jeffery, 64 F.3d at 593-94. Although advised of his

obligations in responding to a motion for summary judgment, Fleming has

failed to do so. As such, he has failed to demonstrate a genuine issue of material

fact for trial. On the record before the Court no reasonable jury could conclude

there was an objectively unreasonable risk to Fleming’s health or safety or any

subjective intent on Espino’s part to sexually assault Fleming.

In consideration of the foregoing, it is now

ORDERED:

1. Dr. Espino’s Motion for Summary Judgment (Doc. 238) is

GRANTED.

2. The Clerk of Court shall enter judgment in favor of Dr. Gonzalo

Espino, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 2nd day of

November, 2021.

United States District Judge

Jax-8

C:

Tyrece Fleming #383708

Counsel of Record

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