Solis v. Taylor

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JAVIER SOLIS,

Plaintiff,

v. Case No. 3:20-cv-209-MMH-JRK

OFFICER G. TAYLOR and

MICHAEL NESTVED,1

Defendants.

__________________________________

ORDER

I. Status

Plaintiff Javier Solis, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on February 17, 20202

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

is proceeding on a Second Amended Complaint (SAC; Doc. 22) against two

Defendants in their individual capacities – Officer G. Taylor and Lieutenant

Michael Nestved. Id. at 1-2. Solis alleges that Defendants violated his Eighth

1 Defense counsel repeatedly misspells this Defendant’s name. When service

was executed, this Defendant confirmed the spelling of his name is “Nestved.” See

Return of Service (Doc. 27). The Clerk is directed to correct the caption of the docket

to display the proper spelling of this Defendant’s name – “Nestved.”

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

pleadings are filed on the respective date that an inmate hands the pleading to prison

authorities for mailing to the court).

Amendment right to be free from cruel and unusual punishment when they

failed to protect him from an inmate assault. See generally id. As relief, he

requests “compensatory and punitive damages in excess of $50,000 for each

[D]efendant.” Id. at 5.

This cause is before the Court on Defendants’ Motion for Summary

Judgment (Motion; Doc. 44) with exhibits (Docs. 44-1 through 44-6).3 Solis filed

a declaration and brief in opposition to the Motion. See Declaration in

Opposition to Defendant[s’] Motion for Summary Judgment (Declaration; Doc.

55); Plaintiff’s Brief in Opposition to Defendants’ Summary Judgment Motion

(Response; Doc. 56). The Motion is ripe for review.

II. Solis’s SAC

Solis alleges that on October 30, 2019, while housed at New River

Correctional Institution, prison officials placed him in the disciplinary unit of

G-Dormitory after finding he violated a “non-violent rule.” SAC at 6. Officials

placed Solis in the same cell as inmate Alfred Hall. Id. According to Solis, Hall

began openly masturbating in front of Solis, so Solis “confronted Hall verbally

and told him to stop.” Id. at 7. Solis contends that Hall did not “cease sexual

3 The Court advised Solis of the provisions of Federal Rule of Civil Procedure

56, notified him that the granting of a motion to dismiss or motion for summary

judgment would represent a final adjudication of this case which may foreclose

subsequent litigation on the matter, and allowed him to respond to the Motion. See

Order of Special Appointment (Doc. 10).

activity,” but became very angry before climbing on his bunkbed and retrieving

“a metal padlock tied to a shirt.” Id. Solis asserts that Hall climbed down with

the weapon and started swinging the lock while threating to kill Solis. Id.

According to Solis, he retreated and began banging on and yelling

through the cell door, calling for help. Id. He maintains that eventually,

Defendant Taylor, during his rounds, came to Solis’s cell and Solis explained

that Hall was threatening to kill Solis. Id. Hall did not deny Solis’s assertion

and advised Taylor, as he swung the lock, that he intended to “kill Solis” unless

they were placed in different cells. Id. at 8. Solis contends that Taylor “did

nothing and walked away.” Id. According to Solis, ten minutes later, as Hall

continued to threaten him, Taylor again approached the cell, told Solis and

Hall that if they began fighting, “he would spray” them, and then walked away.

Id. When Taylor left, Hall began to hit Solis with the lock “for quite a while,”

striking Solis in the back, head, neck, arms, and shoulders. Id. at 9.

Solis alleges that he then saw Defendant Nestved walking by, so Solis

“banged and kicked on the door, yelling and screaming for help.” Id. According

to Solis, however, Nestved did not stop to help, despite being “close enough to

observe the blood on [] Solis’[s] shirt as well as some of his facial injuries,” and

instead responded to Solis with profane language before walking away. Id. at

9-10. Solis contends that Hall then continued to physically attack him for “close

to ten minutes,” repeatedly hitting Solis with the lock and slamming Solis’s

head into the wall. Id. at 10. Solis asserts that Captain Shimmers finally came

to Solis’s cell during dinner service and intervened immediately upon

observing Solis’s physical condition and Hall wielding the weapon. Id. Officials

then sent Solis to medical where staff treated the wounds to his head. Id. at

10-11. Solis contends that Defendants Taylor and Nestved’s failure to protect

Solis and intervene in the inmate-on-inmate sexual assault and physical attack

amounted to deliberate indifference to his Eighth Amendment rights. Id. at 12-

14.

III. Discussion

Defendants raise four arguments in their Motion: (1) Solis failed to

exhaust his administrative remedies; (2) Solis failed to show that Defendants

violated his Eighth Amendment rights for his “sexual assault claim”; Solis

failed to demonstrate that Defendants failed to perform their administrative

duties; and (4) Defendants are entitled to qualified immunity. See generally

Motion.

When a defendant raises a failure-to-exhaust defense in a motion for

summary judgment, the Court must treat the motion as a motion to dismiss,

because the determination of whether an inmate exhausted his available

administrative remedies is a matter of abatement. Bryant v. Rich, 530 F.3d

1368, 1374-75 (11th Cir. 2008). For the reasons set forth below, the Court finds

that Solis failed to exhaust his administrative remedies prior to filing this case.

As such, the Court need not address the parties’ summary judgment

arguments.

A. Summary of Parties’ Positions on Exhaustion

Defendants request dismissal of Solis’s claims against them because

Solis failed to exhaust his administrative remedies before filing suit. See

Motion at 6-9. They argue Solis failed to sequentially complete the three-step

administrative grievance process. Id. at 8. According to Defendants, Solis tried

to initiate the grievance process for his failure-to-protect allegations by filing

a formal grievance, but officials returned the formal grievance without action

because he failed to first file an informal grievance. Id. They maintain that

upon receipt of that return, Solis never followed the directive to file an informal

grievance containing those allegations and then proceed to steps two and three

of the process. Defendants also contend the only informal grievance Solis did

submit lacked Solis’s current allegations, and instead contained complaints

about a disciplinary report Solis received for destruction of property. Id. at 9.

Last, Defendants argue that Solis never filed an appeal for his claims against

Defendants. Id.

In support of their assertions, Defendants provide a record of all the

grievances Solis submitted between October 1, 2019, and March 30, 2020. See

Docs. 44-1 through 44-3. Viewing the exhibits in chronological order, the record

contains a formal grievance Solis submitted to the warden on or about

November 6, 2019; an informal grievance he submitted to the assistant warden

on or about November 22, 2019; the prison officials’ responses to those

grievances; and a printout of the search results for grievance appeals records

for “Inmate Number” “y12987” between October 1, 2019, and March 30, 2020.

See Docs. 44-1 through 44-3. The only grievance that references Taylor and

Nestved’s October 30, 2019 alleged failure to protect Solis from the inmate

assault is Solis’s November 6, 2019 formal grievance (log # 1911-210-017). See

Doc. 44-3 at 2. FDOC officials responded to the formal grievance (log # 1911-

210-017) on November 7, 2019, advising Solis of the following:

Your request for Administrative Remedy or

Appeal has been received, reviewed & evaluated.

Your request for administrative remedy is in

non-compliance with the Rules of the Department of

Corrections, Chapter 33-103.014(f)(g), Inmate

Grievance Procedure. The rule requires that you first

submit an informal grievance at the appropriate level

at the institution. You have not done so or you have

not provided this office with a copy of the informal

grievance, nor have you provided a valid or acceptable

reason for not following the rules.

Upon receipt of this response, if you are within

the allowable time frames for processing a grievance

you may submit your informal grievance, in

compliance with Chapter 33-103, Inmate Grievance

Procedure.

Based on the foregoing information, your

grievance is returned without action.

Doc. 44-3 at 1. The record before the Court contains no evidence that Solis filed

an appeal seeking further review of this formal grievance or that Solis later

filed an informal grievance setting forth the allegations against Defendants on

which he bases the claims in this action. See generally Doc. 44-1 through Doc.

44-3. Moreover, in the informal grievance (log # 268-1912-0002) that Solis

submitted on November 22, 2019, he presented only allegations regarding a

disciplinary report he received for destruction of a drainage pump (Doc. 44-3

at 3). And the printout of Solis’s grievance appeals shows Solis did not file any

grievance appeals between October 1, 2019, and March 30, 2020 (Doc. 44-1).

In response to this evidence, Solis states he did not file an informal

grievance first because under Florida’s grievance procedure, he could skip the

informal grievance step and file a direct formal grievance. Declaration at 2.

According to Solis, his formal grievance containing allegations about

Defendants “should have been treated as an ‘emergency’ or ‘fear of reprisal’

grievance.” Id. Solis asserts that the formal grievance explained a “fear of

reprisal” because Nestved “had a history of violently attacking or arranging

attacks on inmates who filed complaints against him.” Id. at 3. He contends

that the formal grievance also qualified as a “grievance of an emergency

nature” because Hall severely attacked him, resulting in injuries requiring

specialized and continual treatment. Id. at 3-4.

Solis further argues that after institutional officials returned his formal

grievance, he “filed a timely appeal” with the Secretary, and he notes that in

his SAC, he explained he “even wr[ote] to the Secretary of D.O.C. and still

[received] no response.” Id. at 4-5 (citing SAC at 17). He argues that contrary

to Defendants’ assertion, “the absence of a computer entry does not disprove

that these grievances were ‘handled in a different manner[,]’ lost, destroyed

and therefore there was no record.” Declaration at 5. Solis contends that FDOC

has a long history of “selective receipt and delivery of grievances,” suggesting

that grievances about “misbehaving staff member[s]” routinely get “lost” or go

“missing.” Id. at 5. Solis asserts that at some point after he filed his formal

grievance, he also filed two timely informal grievances to the warden and

assistant warden, but because officials never responded to those two informal

grievances and since those informal grievances are absent from his grievance

records, those documents also must have been “lost or destroyed.” Id. at 5-6.

According to Solis, these “two informal grievances[,] . . . although technically

filed after the formal grievance[,] were nonetheless sufficient to completely

satisfy [his] administrative remedies as they were timely filed and filed before

any action was taken on the formal grievance.” Response at 5-6. Solis also

maintains that the three grievances missing from the record (the above-

referenced appeal and two informal grievances) “should be presumed at this

point to exist” and Defendants’ Motion should be denied. Id. at 5.

B. Analysis

The PLRA requires that Solis exhaust his available administrative

remedies before pursuing a § 1983 claim about prison conditions. See 42 U.S.C.

§ 1997e(a) (“No action shall be brought with respect to prison conditions under

section 1983 . . . until such administrative remedies as are available are

exhausted.”); see also Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (noting that

a prisoner must exhaust administrative remedies before challenging the

conditions of confinement, and concluding that the PLRA demands “proper

exhaustion”). Nevertheless, Solis need not “specially plead or demonstrate

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

Instead, the United States Supreme Court has recognized that “failure to

exhaust is an affirmative defense under the PLRA[.]” Id.

Importantly, exhaustion of available administrative remedies is “a

precondition to an adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368,

1374 (11th Cir. 2008). See also Jones, 549 U.S. at 211. The Supreme Court has

instructed that while “the PLRA exhaustion requirement is not

jurisdictional[,]” Woodford, 548 U.S. at 101, “exhaustion is mandatory . . . and

unexhausted claims cannot be brought,” Pavao v. Sims, 679 F. App’x 819, 823

(11th Cir. 2017) (per curiam) (citing Jones, 549 U.S. at 211). Not only is there

a recognized exhaustion requirement, “the PLRA . . . requires proper

exhaustion” as set forth in applicable administrative rules and policies of the

institution. Woodford, 548 U.S. at 93.

Because exhaustion requirements are designed

to deal with parties who do not want to exhaust,

administrative law creates an incentive for these

parties to do what they would otherwise prefer not to

do, namely, to give the agency a fair and full

opportunity to adjudicate their claims.

Administrative law does this by requiring proper

exhaustion of administrative remedies, which “means

using all steps that the agency holds out, and doing so

properly (so that the agency addresses the issues on

the merits).”

Id. at 90 (citation omitted). Indeed, “[p]roper exhaustion demands compliance

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

In Ross v. Blake, the Supreme Court instructed that “[c]ourts may not

engraft an unwritten ‘special circumstances’ exception onto the PLRA’s

exhaustion requirement. The only limit to § 1997e(a)’s mandate is the one

baked into its text: An inmate need exhaust only such administrative remedies

as are ‘available.’” 136 S. Ct. 1850, 1862 (2016). For an administrative remedy

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

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

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

Ross, the Court identified three circumstances in which an administrative

remedy would be considered “not available.” Ross, 136 S. Ct. at 1859. First, “an

administrative procedure is unavailable when (despite what regulations or

guidance materials may promise) it operates as a simple dead end—with

officers unable or consistently unwilling to provide any relief to aggrieved

inmates.” Id. Next, “an administrative scheme might be so opaque that it

becomes, practically speaking, incapable of use.” Id. Finally, a remedy may be

unavailable “when prison administrators thwart inmates from taking

advantage of a grievance process through machination, misrepresentation, or

intimidation.” Id. at 1860.

Because failure to exhaust administrative remedies is an affirmative

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

exhaust his available administrative remedies.” Turner v. Burnside, 541 F.3d

1077, 1082 (11th Cir. 2008). The Eleventh Circuit has articulated a two-step

process that the Court must employ when examining the issue of exhaustion

of administrative remedies:

In Turner v. Burnside we established a two-step

process for resolving motions to dismiss prisoner

lawsuits for failure to exhaust. 541 F.3d at 1082. First,

district courts look to the factual allegations in the

motion to dismiss and those in the prisoner’s response

and accept the prisoner’s view of the facts as true. The

court should dismiss if the facts as stated by the

prisoner show a failure to exhaust. Id. Second, if

dismissal is not warranted on the prisoner’s view of

the facts, the court makes specific findings to resolve

disputes of fact, and should dismiss if, based on those

findings, defendants have shown a failure to exhaust.

Id. at 1082–83; see also id. at 1082 (explaining that

defendants bear the burden of showing a failure to

exhaust).

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015).

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

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

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

the boundaries of proper exhaustion”). The FDOC provides inmates with a

sequential grievance process for exhausting administrative remedies. See Fla.

Admin. Code r. 33-103.005 through 33-103.007. Generally, to initiate the

grievance process, an inmate must file an informal grievance within 20 days of

“when the incident or action being grieved occurred.” Fla. Admin. Code r. 33-

103.011(1)(a). The responsible staff member must complete a written response

to the informal grievance within 10 calendar days of receiving it. See Fla.

Admin. Code r. 33-103.011(3)(a). If the inmate is dissatisfied with the response,

or if time expires for the official to respond to the informal grievance, then the

inmate may file with the warden or assistant warden a formal grievance within

15 days of receiving the unsatisfactory response or from the expiration of the

time to respond. See Fla. Admin. Code r. 33-103.011(1)(b). If the formal

grievance process does not resolve the inmate’s complaint, or if time expires

for the reviewing authority to respond, the inmate may proceed to the third

and final step: filing an appeal to the Office of the Secretary. See Fla. Admin.

Code r. 33-103.007(1). The inmate has 15 days to file an appeal, running from

receipt of the response to the formal grievance or expiration of the time for the

official to respond. See Fla. Admin. Code r. 33-103.011(1)(c). Once a Florida

prisoner has completed this three-step process, he is considered to have

exhausted his administrative remedies. See Chandler v. Crosby, 379 F.3d

1278, 1288 (11th Cir. 2004).

Proper exhaustion typically requires compliance with the three-step

process. However, a prisoner may skip the informal grievance step and

immediately file a formal grievance directly with the warden for various issues,

including emergency grievances and grievances of reprisal. Fla. Admin. Code

r. 33-103.006(3)(a),(c). An emergency grievance concerns “matters which, if

disposed of according to the regular time frames, would subject the inmate to

substantial risk of personal injury or cause other serious and irreparable harm

to the inmate.” Fla. Admin. Code r. 33-103.002(4). A grievance of reprisal is a

“grievance submitted by an inmate alleging that staff have taken or are

threatening to take retaliatory action against the inmate for good faith

participation in the inmate grievance procedure.” Fla. Admin. Code r. 33-

103.002(9). If the prisoner bypasses the informal grievance stage and files a

formal emergency grievance or grievance of reprisal with the warden, the

prisoner must “clearly state their reasons for by-passing the informal

grievance step and shall state at the beginning of Part A of Form DC1-303 . . .

the subject of the grievance.” Fla. Admin. Code r. 33-103.006(4). “Failure to do

so and failure to justify filing directly shall result in the formal grievance being

returned without action to the inmate with the reasons for the return

specified.” Id.

Here, the Court finds that Solis’s allegations that he exhausted his

administrative remedies and that the FDOC has a history of losing grievances,

taken as true, preclude dismissal of this action at the first step of Turner. See

Ross, 136 S. Ct. at 1860; see also Jackson v. Griffin, 762 F. App’x 744, 746 (11th

Cir. 2019) (holding disputes about availability of administrative remedies are

questions of fact that can bar dismissal at Turner’s first step). Thus, the Court

will proceed to Turner’s second step and make specific findings to resolve the

disputed factual issues related to exhaustion.

In resolving the disputed factual issues, the Court finds that Solis did

not complete the administrative grievance process in accordance with the

procedures set forth in rule 33-103 of the Florida Administrative Code.

According to Solis, he first tried to exhaust his administrative remedies by

bypassing the informal grievance step and filing a formal grievance (log # 1911-

210-017) with the warden, which he argues involved an emergency or a threat

of reprisal. But when he submitted that formal grievance, Solis did not include

allegations identifying the grievance as an emergency grievance or grievance

of reprisal, and he did not state, much less clearly state, his reasons for

bypassing the informal grievance step. See Doc. 44-3 at 2. This formal

grievance also did not include facts suggesting an emergency or that he had a

fear of staff retaliating against him for using the grievance process. Id. As such,

the formal grievance failed to satisfy the requirements of rule 33-103.006(4),

Florida Administrative Code.

Not surprisingly, the record reflects that prison officials returned the

grievance unanswered for this very reason – because it was in non-compliance

with FDOC grievance procedures. Doc. 44-3 at 1. In doing so, they advised Solis

that he must follow the general three-step process and first file an informal

grievance. Id. Prison officials mailed the response returning the formal

grievance to Solis on November 7, 2019, twelve days before the expiration of

Solis’s deadline to timely file an informal grievance about the October 30, 2019

inmate assault. Id. According to Solis, rather than submitting an informal

grievance as directed in the return of the formal grievance, he submitted, at

some unspecified time, an appeal of the return to the Central Office. See

Response at 4-5. But the record evidence shows that Solis did not file any

grievance appeals between October 2019, and March 2020. See Doc. 44-1. And,

likely of more import, even if Solis did file such appeal, Solis assumes the

Secretary would have simply disregarded the warden’s return of the formal

grievance, and ignored the institutional official’s finding that the formal

grievance was in non-compliance with administrative rules as well as their

clear written instructions that Solis must first file an informal grievance to

properly initiate the grievance process.

Solis also suggests that, on some undisclosed date, he sought to comply

with institutional official’s directives by filing “two informal grievances, one to

the warden and one to the assistant warden complaining of this incident” both

of which were timely. Declaration at 5-6. According to Solis, he never received

a response to either informal grievance. Id. But Solis does not allege that he

then completed the three-step process by filing a formal grievance and an

appeal afterward. Notably, even assuming the FDOC failed to respond to

Solis’s two informal grievances, “the grievance procedure provides that he

could have ‘proceed[ed] to the next step of the grievance process’” after the

expiration of the time to respond to the informal grievances and his failure to

do so renders his claims against Defendants unexhausted. See Turner, 541

F.3d at 1084 (finding 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.”); see also Pavao v.

Sims, 679 F. App’x 819, 826 (11th Cir. 2017) (finding that “[b]ecause [the

plaintiff] could have proceeded by filing an administrative appeal, the PLRA

still requires him to file an appeal notwithstanding the prison’s lack of

response.”).

In his Declaration, Solis asserts that he should be relieved of any

obligation to complete the applicable grievance process because his

administrative remedies were unavailable. He argues that officials have no

record of abovementioned appeal or informal grievances containing his

allegations about Defendants because those grievances “were ‘handled in a

different manner[,]’ lost, [or] destroyed” as the FDOC “has a long history and

is notorious for the selective receipt and delivery of grievances.” Declaration at

5. He maintains that “‘missing’ grievances are likely to occur when the subject

matter is a misbehaving staff member especially when the complaint involves

multiple staff members including those of supervisory rank.” Id. But Solis’s

entirely conclusory assumption that his grievances were destroyed is

insufficient to establish that the grievance process was unavailable to him.

Solis does not allege that prison officials withheld administrative remedy

forms. And, the record shows that he did have access to the necessary form for

submitting an informal grievance, because he submitted one about his

disciplinary report (Doc. 44-3 at 3), and he had access to the form for a

grievance appeal to the Secretary, because he used that same form to file his

formal grievance (log # 1911-210-017) with the warden (id. at 2). See Jenkins

v. Sloan, 826 F. App’x 833, 836 (11th Cir. 2020) (“[i]f an inmate is unsatisfied

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

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

grievance)”).

Further, while Solis alleges that Nestved “had a history of violently

attacking or arranging attacks on inmates who filed complaints against him,”

he makes that allegation to support his contention that he should have been

allowed to bypass the informal grievance step because formal grievance (log #

1911-210-017) was a grievance of reprisal. See Doc. 55 at 3. Thus, Solis uses

Nestved’s alleged retaliatory conduct to explain why he filed the formal

grievance first, contradicting any suggestion that Nestved prevented Solis

from filing grievances so as to render the process unavailable. See Turner, 541

F.3d at 1085 (holding that a prison official’s threats of retaliation can render

grievance process unavailable if: “(1) the threat actually did deter the plaintiff

inmate from lodging a grievance or pursuing a particular part of the process;

and (2) the threat is one that would deter a reasonable inmate of ordinary

firmness and fortitude” from participating in the process).

Defendants have carried their burden to show that Solis failed to exhaust

his administrative remedies prior to filing this case. Thus, upon review of the

parties’ submissions and the file, the Court finds that this case is due to be

dismissed without prejudice for Solis’s failure to exhaust.

Accordingly, it is

ORDERED AND ADJUDGED:

1. Defendants’ Motion for Summary Judgment (Doc. 44) is

GRANTED to the extent it seeks dismissal for Solis’s failure to exhaust his

administrative remedies.

2. Solis’s “(Limited) Renewed Motion to Compel” (Doc. 57) is

DENIED.

3. This case is DISMISSED without prejudice. The Clerk shall

enter judgment dismissing this case without prejudice, terminate any pending

motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 23rd day of

November, 2021.

United States District Judge

Jax-7

C: Javier Solis, #Y12987

Counsel of record

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