Lowe v. Corizon of Florida, LLC.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DANNY L. LOWE,

Plaintiff,

v. Case No. 3:20-cv-237-MMH-PDB

JULIE JONES, and WEXFORD

HEALTH SOURCES, INC.,

Defendants.

________________________________

ORDER

I. Status

Plaintiff Danny L. Lowe, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on March 9, 2020, by

filing a pro se Civil Rights Complaint (Complaint; Doc. 1)1 pursuant to 42

0F

U.S.C. § 1983. Lowe is proceeding on a second amended complaint (SAC; Doc.

55),2 filed with the assistance of counsel on December 28, 2021. In his SAC,

1F

Lowe asserts claims against the following Defendants: (1) Julie Jones (Jones),

in her individual capacity, and (2) Wexford Health Sources, Inc. (Wexford).

Lowe, who alleges he suffers from the hepatitis C virus (HCV), contends that

1 For all pleadings and documents filed in this case, the Court cites to the

document and page numbers as assigned by the Court’s Electronic Case Filing

System.

2 Lowe attaches exhibits to his SAC. See Docs. 55-1 through 55-4.

Defendants violated the Eighth Amendment when they allegedly created and

implemented a cost-savings policy that sanctioned the denial of medically

necessary treatment for Lowe’s HCV infection. As relief, Lowe seeks

compensatory damages, attorney’s fees and costs, and any other appropriate

relief.

This matter is before the Court on Defendants’ Motions to Dismiss. See

Motion to Dismiss Second Amended Complaint (Jones Motion; Doc. 59);

Defendant, Wexford Health Sources, Inc. Motion to Dismiss Second Amended

Complaint (Wexford Motion; Doc. 60). Lowe filed responses in opposition to the

Motions. See Plaintiff’s Response in Opposition to Defendant Jones’s Motion to

Dismiss Second Amended Complaint (Response to Jones Motion; Doc. 61);

Plaintiff’s Response in Opposition to Defendant Wexford’s Motion to Dismiss

Second Amended Complaint (Response to Wexford Motion; Doc. 62).

Also before the Court is Wexford’s Motion to Strike Lowe’s Response

(Wexford Motion to Strike; Doc. 63), in which Wexford asks the Court to strike

the Response because Lowe did not file it within twenty-one days after service

of Wexford’s Motion as required by Middle District of Florida Local Rule

3.01(c). Wexford Motion to Strike at 2. Wexford contends that although the

Court provided Lowe with forty-five days to respond to motions to dismiss in

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its Order of Special Appointment; Directing Service of Process on Defendants;

Notice to Plaintiff (Order; Doc. 25), the Order only applied to Lowe’s Amended

Complaint. Id. Wexford further argues it was not a party to the action when

the Court entered the Order. Id. In his Response (Response to Wexford Motion;

Doc. 64), Lowe contends that the Order applies to his SAC.

Wexford’s contention on this issue is without merit. The Court’s Order

provided Lowe with forty-five days to respond to motions to dismiss filed in

this case. Order at 3. The Order applies to the SAC and to Defendants’ Motions

to Dismiss Lowe’s SAC. Wexford filed its Motion to Dismiss on February 18,

2022, and Lowe filed his Response to Wexford’s Motion on March 31, 2022.

Therefore, Lowe timely filed his Response, and Wexford’s Motion to Strike is

due to be denied. Defendants’ Motions to Dismiss are ripe for review.

II. Plaintiff’s Allegations3

2F

In his SAC, Lowe asserts Jones and Wexford violated his Eighth

Amendment rights by denying him medically necessary treatment to cure his

HCV infection. SAC at 1. Chronic, untreated HCV causes liver inflammation

3 Because this case is before the Court on Defendants’ Motions to Dismiss, the

Court accepts the allegations in Lowe’s SAC as true and construes them in the light

most favorable to Lowe. Cinotto v. Delta Air Lines, Inc., 674 F.3d 1285, 1291 (11th

Cir. 2012).

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and impairs liver function, which results in fibrosis, or scarring, of the liver.

Id. at 4. Fibrosis of the liver may cause numerous complications, including

jaundice, seizures, internal bleeding, and liver cancer. Id.

Lowe alleges that direct-acting antivirals (DAA) were approved for the

treatment of HCV “beginning in late 2013.” Id. at 5. The treatment of HCV

with DAA became the standard of care in 2014. Id. And approximately 90% of

HCV patients treated with DAA were cured of HCV. Id. DAA treatment also

can alleviate liver inflammation, fibrosis, and complications related to fibrosis.

Id.

Lowe had HCV when he entered the FDOC’s custody in December 2015.

Id. at 4. He did not begin receiving DAA treatment until February 26, 2018.

Id. at 6. Before he began receiving DAA treatment, Lowe’s METVAIR score4

3F

had advanced to F4. Id. Lowe contends his METVAIR score advanced to F4

because “Defendants deliberately refused to provide him with curative

medi[c]ation.” Id. According to Lowe, Jones established and enforced a policy

of denying DAA treatments to inmates with HCV “until sometime in 2017.” Id.

at 5. Wexford, a medical contractor for the FDOC, also knew about and

4 According to Lowe, a METVAIR score measures the extent of liver scarring

in a patient. SAC at 6. METVAIR scores can range from F0, indicating no liver

fibrosis, to F4, indicating cirrhosis of the liver. Id.

4

enforced the policy. Id. at 8. Lowe asserts Jones and Wexford maintained the

policy despite their knowledge of the serious risk to inmates with HCV,

including Lowe. Id. at 7-8. As a result of the policy, Lowe and other inmates

“suffered damages, including permanent physical injuries, pain, suffering,

disability, and aggravation of [] pre-existing condition[s].” Id. at 8-9.

Based on these allegations, Lowe asserts two claims in his SAC. In Count

One, Lowe alleges Jones was deliberately indifferent to a serious medical need

when she instituted and enforced a policy that delayed necessary treatment for

Lowe’s HCV infection in violation of the Eighth Amendment. Id. at 6-8. In

Count Two, Lowe asserts Wexford was deliberately indifferent to a serious

medical need when it enforced a policy that delayed necessary treatment for

Lowe’s HCV infection in violation of the Eighth Amendment. Id. at 8-9.

III. Summary of the Arguments

In the Jones Motion, Jones contends that the Court should dismiss the

claim against her for the following reasons: (1) Lowe failed to exhaust his

administrative remedies; (2) Lowe fails to state a claim upon which relief can

be granted; and (3) Jones is entitled to qualified immunity. See generally Jones

Motion. In the Wexford Motion, Wexford asserts that the Court should dismiss

the claim against it because: (1) Lowe failed to exhaust his administrative

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remedies, and (2) Lowe fails to state a claim upon which relief can be granted.

See generally Wexford Motion. Because failure to exhaust administrative

remedies is a threshold issue,5 the Court will first consider Jones’s and

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Wexford’s Motions as to this issue before turning to the question of whether he

states viable claims.

IV. Exhaustion of Administrative Remedies

A. PLRA 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 such as Lowe 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 v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Not

5 See Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004) (considering

failure to exhaust administrative remedies to be a threshold matter because a district

court must dismiss a prisoner’s suit if it finds he has failed to exhaust administrative

remedies).

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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,[6] 286 F.3d, at 1024 (emphasis in original).

5F

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

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

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, 578 U.S. 632, 648 (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

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

7

(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 [Lowe] 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).

In evaluating whether Lowe has satisfied the exhaustion requirement, the

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Court notes that the Eleventh Circuit has determined that 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).

B. 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 at the institutional level to a designated

staff member responsible for the specific problem. 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 through formal and informal grievances, 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

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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 FDOC

Secretary. See Fla. Admin. Code R. 33-103.007(3)(a).

Florida Administrative Code Rule 33-103.011 provides time frames for

the submission of grievances. Informal grievances must be received within

twenty days from the date on which the grieved incident or action 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 FDOC Secretary must be received within fifteen

days from the date that 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

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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). A grievance can be

returned without action if it: is untimely; “addresses more than one issue or

complaint;” is “so broad, general or vague in nature that it cannot be clearly

investigated, evaluated, and responded to;” is “not written legibly and cannot

be clearly understood;” is a supplement to a previously-submitted grievance

that has been accepted for review; does not “provide a valid reason for by-

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

acceptable;” or does not include the required attachments. See Fla. Admin.

Code R. 33-103.014(1).

C. Analysis

1. Lowe’s Exhaustion Efforts

In his SAC, Lowe provides records of his exhaustion efforts. Docs. 55-1

through 55-4. He alleges that he submitted a formal grievance on September

30, 2019, grieving “the fact that the medical department intentionally delayed

treating [him] with DAA[]s to cure [his] Hep-C because of cost.” SAC at 2; Doc.

55-1. Lowe further grieved that the delay resulted in “damage to [his] liver

which takes away from [his] day to day living.” Doc. 55-1. He claims Union

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Correctional Institution (UCI) denied his grievance on October 9, 2019. SAC at

2; Doc. 55-2. The grievance response states in pertinent part:

Inmate LOWE, reviewed records indicate that your

last liver ultrasound noted a negative exam. The

diagnostic that would show the damage, was

completed in August, and the results have been

explained to you.

You are being treated in accordance with FDC policy

and procedure.

******************

Based on the above information, your grievance is

denied.

Doc. 55-2. On October 24, 2019, Lowe appealed the denial of his grievance. SAC

at 2-3; Doc. 55-3. According to Lowe, the appeal was returned without action

on November 19, 2019. SAC at 3; Doc. 55-4. The response to his appeal states

in pertinent part:

Appeal Returned without Action:

Your administrative appeal to this office is in non-

compliance with Chapter 33-103, Inmate Grievance

Procedure. You are grieving a delay in treatment for

your Hepatitis C that was completed in May 2019.

(when your formal grievance was received on 9/30/19)

Please be advised that you are outside the timeframe

to grieve this issue and the Institution should have

returned your formal grievance.

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Formal grievances must be received no later than 15

calendar days from: 1. The date on which the informal

grievance was responded to; or 2. The date on which

the incident or action being grieved occurred.

Just because the Institution failed to return your

formal grievance does not negate our office from

returning your appeal.

Therefore, your appeal is being returned without

action.

Doc. 55-4.

According to Lowe, he attempted to exhaust administrative remedies.

SAC at 2. Nevertheless, he argues that he did not need to exhaust

administrative remedies because “[t]he nature of the deprivation here – refusal

to provide an available and timely cure to HCV – is such that no administrative

remedy was available.” Id.

In the Jones Motion, Jones argues Lowe did not properly exhaust

available administrative remedies because he failed to file a timely grievance.

Jones Motion at 8. According to Jones, Lowe’s September 30, 2019 formal

grievance was untimely because he did not file it within fifteen calendar days

from February 26, 2018, when Lowe began receiving DAA treatment. Id. Jones

contends the appeal was returned on timeliness grounds, id., and therefore,

the Office of the FDOC Secretary did not waive the procedural defect, id. at 9.

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Wexford raises similar arguments in the Wexford Motion. Wexford Motion at

12-13. Additionally, Wexford argues Lowe also failed to identify Wexford in

his formal grievance as “the party responsible for delaying his DAA treatment.”

Id.

2. Turner Step One

Under the first step of the Turner analysis, the Court must review the

allegations in the Motions and the SAC and accept as true Lowe’s allegations.

See Whatley, 802 F.3d at 1209 (quoting Turner, 541 F.3d at 1082). If Lowe’s

allegations in the SAC show a failure to exhaust, then dismissal would be

appropriate. See id.

The Court now turns to the allegations in the SAC and the Motions

concerning Lowe’s exhaustion efforts. The parties agree that Lowe filed a

formal grievance, and UCI denied his grievance. SAC at 2; Jones Motion at 8;

Wexford Motion at 13. Lowe subsequently filed an appeal that the Office of the

FDOC Secretary returned without action because it considered the grievance

to be untimely. SAC at 3; Jones Motion at 8-9; Wexford Motion at 13. However,

Lowe asserts he did not have available administrative remedies because of the

nature of his injury, and his “attempts to exhaust administrative remedies

were futile because no administrative remedy was or could be made available

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that would turn back time and provide him with timely DAA treatment.” SAC

at 3. Accepting Lowe’s view of the facts as true, the Court cannot dismiss the

SAC at the first step of the Turner analysis.

3. Turner Step Two

As dismissal would not be appropriate based on the allegations in the

SAC and the Motions, the Court turns next to the second prong of the Turner

test. Lowe argues that he did not need to exhaust administrative remedies

because he had no available administrative remedies. SAC at 2-3; Response to

Jones Motion at 4; Response to Wexford Motion at 4. Lowe grieves the undue

delay of his DAA treatment, and he requests compensation for damages. SAC

at 2; Response to Jones Motion at 4; Response to Wexford Motion at 4. Lowe

contends “[n]o administrative remedy can turn back the clock and undo the

damage that was done to [his] body.” Response to Jones Motion at 5; Response

to Wexford Motion at 4.

In Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998), the Eleventh

Circuit Court of Appeals interpreted the term “available” as used in the PLRA

to resolve a prisoner’s claim that he had no available administrative remedies

where he sought money damages and for the Ensign Amendment7 to be

6F

7 Pub. L. No. 104-208, § 614, 110 Stat. 3009 (Sept. 30, 1996).

15

declared unconstitutional. The court noted pre-PLRA section 1997e(a)

“granted district courts discretion whether to require a prisoner to exhaust

administrative remedies.” Id. at 1323. Moreover, pre-PLRA section 1997e(a)

only required “‘exhaustion of such plain, speedy, and effective administrative

remedies as available.’” Id. at 1326 (quoting 42 U.S.C. § 1997e(a)(1) (1994))

(emphasis added). In 1996, Congress enacted the mandatory exhaustion

requirement “to curtail frivolous and abusive prisoner litigation,” and removed

the terms “plain, speedy, and effective” from the PLRA’s text. Id. at 1324. In

turn, the Hawk court concluded Congress “no longer wanted courts to examine

the effectiveness of administrative remedies but rather to focus solely on

whether an administrative remedy program is ‘available’ in the prison

involved.” Id. at 1326. The court ultimately found:

[T]he term “available” in section 1997c(a) is used to

acknowledge that not all prisons actually have

administrative remedy programs. Some state penal

institutions may not have an administrative remedy

program to address prison conditions, and thus there

are no “available” administrative remedies to exhaust.

Id. 1326-27.

While the PLRA presupposes “the administrative process has authority

to take some action in response to a complaint,” it does not distinguish based

on the particular form of relief sought and offered. Booth v. Churner, 532 U.S.

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731, 736, 741 (2001). Moreover, “the PLRA’s test suggests no limits on an

inmate’s obligation to exhaust – irrespective of any ‘special circumstances.’”

Ross, 578 U.S. at 639.

The Supreme Court has identified three circumstances in which

administrative remedies are considered unavailable. 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. at 643.

Second, “an administrative scheme might be so opaque that it becomes,

practically speaking, incapable of use. In this situation, some mechanism

exists to provide relief, but no ordinary prisoner can discern or navigate it.” Id.

Third, an administrative remedy is unavailable “when prison administrators

thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Id. at 644.

Upon review of the record, the Court concludes that Lowe had available

administrative remedies that he failed to properly exhaust. To the extent Lowe

argues that the Court should find that administrative remedies were

unavailable to him because he brings a particular claim or seeks a particular

form of relief, Lowe’s argument is unconvincing. Lowe asks that the Court

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engage in an analysis similar to the futility and adequacy evaluations that

have been rejected by the Eleventh Circuit Court of Appeals based on Supreme

Court precedent.8 Moreover, both the Supreme Court and the Eleventh Circuit

7F

have consistently rejected requests to carve out exceptions to the PLRA’s

exhaustion requirement for certain claims and forms of relief. See Porter v.

Nussle, 534 U.S. 516, 532 (2002) (holding the PLRA’s exhaustion “applies to

all inmate suits about prison life, whether they involve general circumstances

or particular episodes, and whether they allege excessive force or some other

wrong”); Booth, 532 U.S. at 741 (holding a prisoner seeking only money

damages was required to exhaust administrative remedies even though he

could not receive monetary relief from the prison grievance process); Varner v.

Shepard, 11 F.4th 1252, 1264 (11th Cir. 2021) (declining to carve out an

exception to the exhaustion requirement based on plaintiff’s unique

circumstances). Simply because the FDOC could not provide Lowe with

monetary damages or reverse the damage to his liver does not mean that Lowe

8 “[Plaintiff’s] proffered construction of “remedies as available” would require

courts to evaluate each cause of action and each type of relief sought in each prisoner’s

complaint and determine whether the [Federal Bureau of Prisons] can grant any

adequate relief. This is not what the PLRA provides or what Congress intended[].”

Alexander, 159 F.3d at 1326; see also Booth, 532 U.S. at 741 n.6 (“[W]e stress the

point . . . that we will not read futility or other exceptions into statutory exhaustion

requirements where Congress has provided otherwise.”).

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had no available administrative remedies. See Booth, 532 U.S. at 741

(“Congress has mandated exhaustion clearly enough, regardless of the relief

offered through administrative procedures.[]”) (footnote omitted).

Here, the record reflects the FDOC has an established procedure for

resolving inmate grievances. Jones Motion at 7; Wexford Motion at 12; Fla.

Admin. Code R. 33-103.001 through 33-103.018. The FDOC also offers a

distinct procedure for medical grievances, whereby the inmate can first file a

formal grievance instead of an informal grievance. Fla. Admin. Code R. 33-

103.005(1); 33-103.006(3)(e). The grievance records attached to Lowe’s SAC

demonstrate he ultimately availed himself of these administrative remedies.

Docs. 55-1 through 55-4. Moreover, the FDOC had the authority to take some

action in response to Lowe’s claim9 because, as noted in the UCI’s initial

8F

response to his grievance, Lowe already had a liver ultrasound and a

“diagnostic that would show damage.” Doc. 55-2. Accordingly, the Court finds

Lowe had available administrative remedies and used them.

In the alternative, Lowe contends that his grievance was timely filed.

Response to Jones Motion at 5; Response to Wexford Motion at 4. According to

Lowe, “[a] refusal to provide a medical cure to a chronic infection is not a single

9 See Booth, 532 U.S. at 736.

19

event that triggers a 15-day period within which [he] had to file a grievance.”

Response to Jones Motion at 5; Response to Wexford Motion at 4.

To properly exhaust administrative remedies, “prisoners must complete

the administrative review process in accordance with the applicable procedural

rules, rules that are defined not by the PLRA, but by the prison grievance

process itself.” Jones, 549 U.S. at 218 (internal citation and quotation omitted).

The prison’s requirements define the boundaries of proper exhaustion. Id. at

923. “‘Courts must give deference to prison officials regarding the

interpretation and application of their own grievance procedures so long as the

procedures provide inmates with a meaningful opportunity to present

grievances,’ and provided that the application of the grievance rules was not

‘clearly erroneous, arbitrary or intended to prevent plaintiff from exercising

his right of access to the courts.’” Stephens v. Corizon, LLC, No. 3:20-cv-70-

BJD-PDB, 2021 WL 2981317, at *8 (M.D. Fla. July 14, 2021) (quoting Jones v.

Frank, No. 07-cv-141-BBC, 2008 WL 4190322, at *3 (W.D. Wis. Apr. 14, 2008));

see also White v. Moore, 789 So. 2d 1118, 1120 (Fla. 1st DCA) (2001) (noting

that courts defer to an agency’s interpretation of a rule that it administers).

The Court finds that the FDOC’s interpretation of its rule was not clearly

erroneous, arbitrary or intended to prevent plaintiff from exercising his right

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of access to the courts. Lowe grieved a delay in DAA treatment. Doc. 55-1. UCI

determined that Lowe filed an untimely grievance on September 30, 2019,

when his DAA treatment ended in May 2019. Doc. 55-4. Accordingly, the Court

cannot find that the FDOC arbitrarily interpreted its rules by counting fifteen

days from the end of the course of treatment that the FDOC had allegedly

delayed providing to him.10

9F

Wexford raises the additional argument in its Motion to Dismiss that

Lowe failed to properly exhaust administrative remedies because he did not

identity Wexford in his formal grievance “as the party responsible for delaying

his DAA treatment.” Wexford Motion at 13. However, the Court need not

address this argument because the Court has determined, regardless of any

10 In support of his argument, Lowe also cites to Kinard v. Centurion of Fla.,

LLC, No. 3:19-cv-490-J-34JRK, 2020 WL 3542650, at *1 (M.D. Fla. June 30, 2020);

however, the facts in Kinard are distinguishable from the facts in this case. In Kinard,

the plaintiff filed his grievance during the period in which the FDOC denied him DAA

treatment. Id. at *9. At that time, “[p]rison officials were still capable of resolving the

ongoing deprivation of Kinard’s medical care.” Id. Moreover, the FDOC did not find

the grievance to be untimely filed on appeal. Id. Here, Lowe did not file his grievance

until more than a year after he began receiving DAA treatment and months after his

DAA treatment ended. SAC at 4; Docs. 55-1 through 55-2. While UCI rejected Lowe’s

grievance on the merits, the Office of the FDOC Secretary found Lowe’s grievance to

be untimely. Docs. 55-2; 55-4. Therefore, the FDOC did not waive the procedural

defect in Lowe’s case. See Whatley v. Smith, 898 F.3d 1072, 1083 (11th Cir. 2018)

(“[W]e hold that a prison does not waive a procedural defect unless and until it decides

the procedurally flawed grievance on the merits at the last available stage of

administrative review.”).

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attempt to identify a defendant, Lowe failed to properly exhaust available

administrative remedies, and his SAC is due to be dismissed.11

10F

Jones and Wexford ask the Court to dismiss Lowe’s SAC with prejudice

because he cannot now timely file a grievance. Jones Motion at 10; Wexford

Motion at 13. However, Lowe may still file for an extension of time, see Fla.

Admin. Code R. 33-103.011(2), or the FDOC could waive compliance with its

procedures. Therefore, Lowe’s SAC will be dismissed without prejudice.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. Defendant Wexford Health’s Motion to Strike (Doc. 63) is

DENIED.

2. Defendants Jones and Wexford Health’s Motions to Dismiss (Docs.

59, 60) are GRANTED to the extent Defendants seek dismissal for Lowe’s

failure to exhaust his administrative remedies.

3. Plaintiff Danny L. Lowe’s Second Amended Complaint (Doc. 55) is

DISMISSED WITHOUT PREJUDICE.

11 The Court also need not address Jones’s qualified immunity claim or Jones’s

and Wexford’s assertions that Lowe failed to state a claim for relief.

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4. The Clerk shall enter judgment dismissing this case without

prejudice, terminating any pending motions, and closing the case.

DONE AND ORDERED at Jacksonville, Florida, this 21st day of

June, 2022.

MARCIA MORALES HOWARD

United States District Judge

Jax-9

C: Counsel of record

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