D'amico v. Inch

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

STEVEN F. D’AMICO,

Plaintiff,

v. Case No. 3:20-cv-992-MMH-MCR

J. ECKERT,

Defendant.

____________________________

ORDER

I. Status

Plaintiff Steven F. D’Amico, an inmate of the Florida Department of

Corrections (FDOC), is currently proceeding on a Third Amended Complaint

(Doc. 19; TAC) filed on July 24, 2020 (mailbox rule) against Correctional Officer

J. Eckert.1 Before the Court is Defendant’s Motion for Summary Judgment

(Doc. 60; Motion).2 The Court advised D’Amico of the provisions of Federal Rule

of Civil Procedure 56, notified him that the granting of a motion to dismiss or

a motion for summary judgment would represent a final adjudication of this

case which may foreclose subsequent litigation on the matter, and gave him an

1 The Court previously dismissed all claims against “Unknown Dept. Staff.” See Order

(Doc. 66).

2 Defendant filed several exhibits in support of his Motion. See Docs. 60-1 to 60-6;

Doc. S-67.

opportunity to respond to Defendant’s Motion. See Order (Doc. 29); Summary

Judgment Notice (Doc. 61). D’Amico filed a Sworn Opposition to Defendant’s

Motion for Summary Judgment (Doc. 72; Response). The Motion is ripe for

review.

II. D’Amico’s Third Amended Complaint

According to D’Amico, on June 3, 2019, Defendant was assigned to C-

dorm at the Reception and Medical Center (RMC) where D’Amico was housed.

See TAC at 5. That morning, Defendant “gave a speech to prisoners in C-dorm,”

and while looking directly at D’Amico and smirking, stated, “‘Don’t come to me

if your [sic] getting your a** beat for owing money.’” Id. D’Amico alleges that

“gang members with ties to [Defendant] and other RMC officers had attempted

to extort pain pills received by D’Amico for cancer pain, under [the] false

pretense [that] D’Amico owed them money.” Id.

D’Amico went to the law library and returned to C-dorm around 2:30

p.m. Id. at 6. He proceeded directly to the bathroom and “next regained

consciousness to find himself on [the] floor behind [the] center island of sinks,”

while he was being “punched and kicked by several young black gang

members.” Id. D’Amico alleges that he “called out loudly for help from

[Defendant] in [the] officers[’] station next to it,” but Defendant “did not

respond.” Id. According to D’Amico, the officers’ station is only a “few feet” from

the bathroom and is separated “by a wall of jalousie windows missing several

panes of glass.” Id.

D’Amico left the bathroom while the “[g]ang members flanked [him] and

punched him in [the] back[.]” Id. One of the gang members demanded that

D’Amico “‘pay up,’” and they “surrounded and followed D’Amico back to his

bunk.” Id. at 6-7. The gang members tried to take D’Amico’s property, but he

prevented them from doing so by standing on it. Id. at 7. One of the gang

members instructed D’Amico to exit C-dorm when dinner was announced. Id.

When D’Amico returned later, all of his property had been stolen. Id.

According to D’Amico, Defendant “observed D’Amico surrounded by

several menacing black gang members, being forcibly escorted out of C-dorm.”

Id. at 7. D’Amico alleges that he was “injured and distressed after having been

knocked unconscious, severely beaten, and attempting to defend his property

locker from these escorts only moments earlier.” Id. He contends that he “was

dazed and his lower back and both knees were injured.” Id. He asserts that

another inmate advised Defendant “about this dangerous situation,” and it was

obvious that D’Amico was in distress. Id. at 7, 9. In fact, according to D’Amico,

Defendant “looked directly at D’Amico and gang members he knew or should

have known did not belong in his dorm and stated: ‘take it someplace else.’” Id.

at 9. D’Amico asserts that the “group of prisoners did take it someplace else

where D’Amico had his jaw bone broken.” Id.; see id. at 11.

D’Amico further alleges that these gang member inmates were affiliated

with Defendant, and Defendant “and other RMC officers have ordered hits

against prisoners they consider snitches.” Id. at 11. He asserts that Defendant

“was fully aware gang members at RMC intended to do D’Amico harm before

the attacks at issue,” but Defendant failed to take any action. Id. He continues,

“These affiliations between [Defendant] and other RMC officers[] and gang

members are [a] major source of contraband introduced into prison. That was

why [Defendant] gave his speech on June 3, 2019.” Id. He further alleges that

Defendant “knew about June 3, 2019 attacks beforehand because they were

orchestrated by unknown RMC prison staff associated with [Defendant].” Id.

at 13.

D’Amico asserts that as a result of Defendant’s and unknown RMC staff’s

alleged misconduct, D’Amico suffered “permanent dental and oral problems,”

a worsening of his prior back injury and post-traumatic stress disorder. Id.

D’Amico alleges violations of his First and Eighth Amendment rights, the

Americans with Disabilities Act, and various Florida statutes. Id. at 17. He

seeks “[p]roper medical care for [his] jaw, back, . . . shoulder, and eyes”;

“[r]eimbursement for litigation and lost property costs”; and monetary

damages. Id.

III. Discussion

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 D’Amico failed to exhaust his administrative remedies prior to filing this

case and the case is due to be dismissed on that basis. As such, the Court need

not address Defendant’s summary judgment arguments.

A. Parties’ Positions Regarding Exhaustion

In the TAC, D’Amico alleges that he exhausted his administrative

remedies prior to filing this case. He states:

D’Amico filed formal grievance 1906-209-105 to

RMC Warden Edwards on June 23, 2019. Edwards

was notified the reason for misconduct of [Defendant]

was retaliation for complaints filed by D’Amico. RMC

Major McGee[] responded by returning grievance

without action. D’Amico appealed to Secretary, Mark

Inch, 19-6-25781. This appeal explained willful

negligent behavior of [Defendant] was retaliation for

grievance filed against Sergeant Deas that was

referred to Office of Inspector General for Department.

D’Amico alleged RMC staff orchestrated June 3, 2019

attacks in reprisal for complaints against RMC staff

by D’Amico. Again, no action was taken by Inch or

OIG.

TAC at 15.

According to Defendant, D’Amico’s exhaustion efforts failed to properly

comply with the FDOC grievance procedures. See Motion at 7-12. Defendant

argues that D’Amico was required to first submit an informal grievance. Id. at

10. Instead, D’Amico attempted to bypass the informal grievance step by filing

a formal grievance labeled as a “grievance of reprisal.” See id. at 10-11.

However, D’Amico’s formal grievance was returned without action for non-

compliance with the grievance procedures. See id. at 11-12. Likewise,

D’Amico’s grievance appeal was returned without action. See id. Thus,

Defendant contends that D’Amico failed to properly exhaust his administrative

remedies.

In support of Defendant’s position, he submitted copies of D’Amico’s

relevant grievances. On June 23, 2019, D’Amico authored a formal grievance

(1906-209-105) about the incidents alleged in the TAC. See Doc. 60-3 at 7

(duplicate found at id. at 4). At the top of the formal grievance, D’Amico wrote:

“Reprisal by Officer J. Eckert,” and he stated:

This request for administrative remedy for

reprisals against grievant by Officer Eckert for

grievant[’]s complaints filed against Sgt. Deas (#1905-

209-141; 1905-209-140, etc.).

On 6-3-19 Eckert was assigned to C-dormitory

at RMC main. He came into C-2 side and instructed

prisoners not to come to him if you are getting your

[sic] a** beat up. [T]hat afternoon grievant went to

P.M. call out at law library and returned at [around]

2:30 P.M. He went directly into bathroom to urinate.

While at urinal he was punched from behind and

knocked uncon[s]cious. He fell down seriously injuring

his knees, especially his right. There was a camera

right above wall and doorway of bathroom.

Grievant woke up to 3 or 4 young black “G” gang

members kicking [and] punching him. Short one said

“you better pay up,” as they beat grievant. During

beating several attempts to stand were made, but

grievant was beaten down each time. He called out for

help and was ignored by Eckert. When he was allowed

to leave bathroom, main attacker demanded

everything in grievant[’]s locker. Grievant went to his

bunk 21405 and refused [to] open his locker. He even

stood on it to stop attackers from taking his property.

At [around] 3 PM C Dorm went to dinner. As he

was leaving dorm various prisoners attempted to

persuade him to just pay extorsion to attackers. Eckert

observed grievant[’]s situation and ordered him to

“take it someplace else.” Grievant was escorted to back

window of F-dorm to talk and was punched from

behind having his jaw broken.

Id. at 7 (some capitalization omitted).

On June 26, 2019, D’Amico received the following response: “This

grievance is not accepted as a grievance of reprisal in that you have not shown

that you have suffered any form of reprisal from the actions of staff in

submitting grievances. . . . Your request for administrative remedy is in non-

compliance with the Rules of the Department of Corrections, Chapter 33-

103.014(f), (g)[.]”3 Id. at 8. The response further advised D’Amico that if he was

within the allowable time, he may submit an informal grievance. Id.

Instead of filing an informal grievance per the FDOC’s directive,4

D’Amico filed an appeal (19-6-25781):

This is a[n] appeal of formal 1906-209-105,

returned w/o action by Major McGee. Grievant alleged

Officer J. Eckert announced not to come to him if you

are getting beat up. Eckert looked directly at grievant

while he made speech. Grievant asserts RMC staff,

thr[ough] black laundry man (T), arranged for

grievant to get beat up by gang members in reprisal

for grievances against Sgt. Deas, which were referred

to O.I.G. for investigation. Eckert worked C-dorm on

6-3-19 due to his willingness to retaliate against

grievant for grievances against Deas. Major McGee

cited FAC 33-103.002(9) which defines a grievance of

reprisal as a grievance submitted alleging staff have

or threatened to take retaliatory action for good faith

participation in grievance procedure. Grievant a 59

y[ea]r old cancer patient called out loudly for help

3 See Fla. Admin. Code r. 33-103.014(f) (“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. This evaluation is made on a case by case basis and the reasons for

rejecting the complaint will vary with the facts alleged in the complaint.”); Fla.

Admin. Code r. 33-103.014(g) (“The grievance did not have the attachments required:

informal grievance and response, except as allowed for in paragraphs 33-

103.006(3)(a) through (h), F.A.C., or the formal grievance and response, except as

provided for in subsection 33-103.007(6), F.A.C.”).

4 Although D’Amico was outside the timeframe for timely filing an informal grievance,

he could have sought an extension of time to file an informal grievance. See Fla.

Admin. Code r. 33-103.011(2) (“An extension of the above-stated time periods shall be

granted when it is clearly demonstrated by the inmate to the satisfaction of the

reviewing authority . . . or the Secretary that it was not feasible to file the grievance

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

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

original grievance or when re-filing a grievance after correcting one or more

deficiencies cited in rule 33-103.014, F.A.C.”).

while he was getting beat up in C-dorm bathroom, and

was ignored by Eckert. Eckert also observed grievant

exiting dorm surrounded by menacing gang members,

and merely stated “take it someplace else.” Eckert[’]s

deliberate indifference towards serious danger posed

to grievant by gang was a retaliatory action. Not

taking action where action was warranted is a

retaliatory action. Eckert violated FAC 33-208.002(8),

(10), [and] (24); 33-302.101(6); and Eighth

Amendment U.S. Const. Grievant was severely

injured several times during 2.5 y[ea]rs at RMC

receiving cancer treatment. RMC staff as well as

Secretary’s Office refused to or failed to protect and

safeguard grievant’s person and personal property

numerous times. Major McGee’s response

demonstrates RMC staff’s unwillingness to faithfully

administer their responsibilities and oath of office.

Please investigate and take appropriate action.

Id. at 6. The appeal was “returned without action” because the appeal was “in

non-compliance” with the grievance procedure as his “grievance at the

institutional level was determined to be in non-compliance.” Id. at 5.

In D’Amico’s Response, he contends that he properly bypassed the

informal grievance step because he was submitting a grievance of reprisal.

Response at 5. He argues that “Major McGee incorrectly stated rules required

[D’Amico] to submit a[n] informal grievance,” and “McGee directly contradicted

Rule 33.103.006(3)(c),” which permits an inmate to bypass the informal

grievance step if he is filing a grievance of reprisal. Id.

B. Governing Legal Authority Regarding Exhaustion

The Prison Litigation Reform Act (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 is not required to plead exhaustion. See

Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the United States Supreme

Court has recognized “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 exhaustion requirement 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,[5] 286 F.3d, at 1024. . . .

5 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 emphasized:

Courts 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).

The Eleventh Circuit has explained the 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.[6]

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).

6 Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).

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).7

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 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.

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). These

7 “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.”).

circumstances include a “grievance of an emergency nature, grievance of

reprisal,” and a “medical grievance.” Fla. Admin. Code r. 33-103.005(1). A

grievance of reprisal is defined as “[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 Ann. r. 33-103.002(9).

Additionally, 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,

grievances of reprisal, or grievances regarding sexual abuse when the abuse is

alleged to have been committed by the Warden of the institution where the

inmate is currently housed are some of the 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 and responses to grievances. Generally, the following time

frames 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). Likewise, a grievance of reprisal or direct

grievance must be received within 15 calendar days from the date on which the

incident occurred. Fla. Admin. Code r. 33-103.011(1)(b)(2), (d). As to response

times, following receipt of the grievance, a written response to an informal

grievance must be completed within 15 calendar days; the reviewing authority

shall take action and respond to a formal grievance within 20 calendar days of

receipt; and the Office of the Secretary has “30 calendar days from the date of

the receipt of the grievance” in which to provide a response to a direct grievance

and 15 calendar days to respond to an emergency grievance. Fla. Admin. Code

r. 33-103.011(3)(a)-(d).

C. Analysis

The parties agree that D’Amico filed a formal grievance and an appeal

relating to the actions underlying the claims in this case. The only dispute is

whether those grievances were properly returned without action for failure to

comply with the grievance procedures. Upon review, the Court finds at the first

step of the Turner analysis, even taking D’Amico’s assertions as true, that

D’Amico did not properly comply with the grievance procedures and thus he

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

D’Amico bypassed the informal grievance step and submitted to the

Warden a “grievance of reprisal.” However, while D’Amico labeled his

grievance as one of “reprisal” and indicated that he was filing the formal

grievance to address “reprisals against [him] by [Defendant] for [D’Amico’s]

complaints filed against Sgt. Deas,” D’Amico failed to include any facts

showing how the June 3, 2019 incident was retaliation for his prior grievances.

See Fla. Admin. Code Ann. r. 33-103.002(9) (defining a grievance of reprisal as

“[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”). Indeed, D’Amico did not

allege any connection between his prior grievances and Defendant’s alleged

actions. Thus, as noted in the response to the formal grievance, D’Amico failed

to provide a valid reason for bypassing the informal grievance step. See Doc.

60-3 at 8 (citing Fla. Admin. Code r. 33-103.014(f) (“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.”)). Therefore, his formal grievance did not

qualify as a “grievance of reprisal,” and Major McGee, on behalf of the Warden,

properly returned it without action.8

8 The Court notes that even if D’Amico’s formal grievance was accepted as a grievance

of reprisal, it was untimely. An inmate must file a grievance of reprisal within 15

calendar days from the date on which the incident being grieved occurred. See Fla.

Likewise, D’Amico’s grievance appeal, although it contained some

additional assertions, was properly returned without action because his

“grievance at the institutional level was determined to be in non-compliance

with the requirements of the rule.” Doc. 60-3 at 5. Thus, D’Amico failed to

properly exhaust his administrative remedies as he did not follow the FDOC’s

grievance procedures.9 See Woodford, 548 U.S. at 90.

This case is distinguishable from Dimanche, 783 F.3d at 1204, where the

Eleventh Circuit found that the Secretary improperly returned a direct

grievance without action. In Dimanche, the plaintiff identified his direct

grievance as a grievance of reprisal and explained his reasons for bypassing

the informal and formal grievance steps. Id. at 1208-09, 1211-12. The plaintiff

indicated that he feared for his life and had been “gassed,” issued disciplinary

reports for filing grievances in the past, and threatened with being gassed to

death if he wrote another grievance. Id. He described the retaliatory actions of

“the colonel,” “the major,” and a named captain and correctional officer, and

Admin. Code r. 33-103.011(1)(b)(2). The incident occurred on June 3, 2019, and

D’Amico authored his formal grievance on June 23, 2019.

9 D’Amico did not try to classify the grievance appeal as a direct grievance to the

Secretary. Even if he had, the “direct” grievance would have been untimely, see Fla.

Admin. Code r. 33-103.011(1)(d) (requiring direct grievances “be received within 15

calendar days from the date on which the incident or action which is the subject of

the grievance occurred”), and D’Amico’s vague and conclusory assertions would not

have qualified as a “grievance of reprisal” that could be filed directly with the

Secretary.

asked the Secretary to transfer him because it was “only a matter of time before

[he was] set up for another false D.R. and . . . sent to C.M. to be gassed to

death.” Id. at 1211.

The Eleventh Circuit concluded that the Secretary improperly returned

the direct grievance without action because the plaintiff clearly identified the

grievance as a grievance of reprisal, explained that he had been “gassed” for

writing grievances, identified the acting warden and inspector as well as other

individuals who had retaliated against him, and described being threatened

with being “gassed to death” if he wrote more grievances. Id. at 1212-13. Thus,

the Eleventh Circuit determined that the plaintiff’s failure to pursue his

grievances at the institutional level did not bar his complaint for failure to

exhaust. Id. at 1214.

Here, although D’Amico used the appropriate form for filing a formal

grievance and stated in a conclusory fashion that he was filing it due to reprisal

by Defendant,10 D’Amico’s reasoning for bypassing the informal grievance step

was insufficient. He failed to describe how Defendant’s alleged actions were

done in reprisal for grievances D’Amico previously filed about Sergeant Deas.

10 The instructions on the form advise an inmate that he “must indicate a valid reason

for not initially bringing his grievance to the attention of the institution.” Doc. 60-3

at 7. The instructions further advise that “[i]f the inmate does not provide a valid

reason or if the Secretary or his designated representative determines that the reason

supplied is not adequate, the grievance will be retuned to the inmate for processing

at the institutional level.” Doc. 60-3 at 7.

See generally Gipson v. Renninger, 750 F. App’x 948, 950, 952-53 (11th Cir.

2018) (finding the Secretary properly returned without action a direct

grievance, because the inmate’s statement that he “believe[d] that there will

be some adverse actions (retaliations) if the officers are placed on notice at the

institutional level,’” did not qualify as an emergency grievance; the plaintiff

“failed to show he was subject to substantial risk of personal injury,” and the

direct grievance did not qualify as a grievance of reprisal because it “lacked

factual support for his allegations of threats of retaliatory action by prison

staff”). As such, although D’Amico filed a formal grievance and appeal, he did

not properly follow the grievance procedures, and thus he failed to exhaust his

administrative remedies prior to filing this case.

Accordingly, it is

ORDERED:

1. Defendant’s Motion for Summary Judgment (Doc. 60) is

GRANTED to the extent it seeks dismissal of this case for D’Amico’s failure

to exhaust his administrative remedies.

2. This case is DISMISSED without prejudice for D’Amico’s

failure to exhaust.

3. 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 1st day of

February, 2022.

MARCIA MORALES HOWARD

United States District Judge

JAX-3 1/31

Steven F. D’Amico, #L58304

Counsel of Record

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