Blake v. Harrell

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KEVIN LAMAR BLAKE,

Plaintiff, .

v. Case No. 3:21-cv-81-HES-JBT

LT, HARRELL, et al.,

Defendants.

ORDER

I. Status

_ Plaintiff Kevin Lamar Blake, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on J anuary 21, 2021,

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

Plaintiff sues seven Defendants in their individual capacities — Lieutenant

Harrell, Sergeant Stokes, Sergeant Dimauro, Officer Nash, Officer Thady,

Officer Burnette, and Officer Shaw. Id. at 2-4. Plaintiff alleges that Defendants

violated his rights under the Eighth and Fourteenth Amendments. See

generally id. As relief, he requests declaratory relief as well as compensatory

and punitive damages. Id. at 7.

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

Summary Judgment! (Motion; Doc. 37) with exhibits (Docs. 37-1 through 37-

14; Docs. 39-1 through 39-2). The Court advised Plaintiff 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 Plaintiff to respond to any dispositive motion. See Doc. 6;

see also Doc. 36. Plaintiff filed a Response. See Doc. 58. The Motion is ripe for

review.

II. Plaintiff's Complaint

Plaintiff alleges that on January 2, 2019, while housed at Suwannee

Correctional Institution, he was standing at his cell door listening as other

inmates made loud noises and disturbed the quad. Doc. 1 at 7. According to

Plaintiff, during the disturbance, Defendant Burnette entered Plaintiff's quad

and advised the inmates to step away from their cell doors. Id. Plaintiff asserts

he immediately tried to heed Burnette’s instruction, but Burnette approached

Plaintiff's cell and advised Plaintiff he was on property restriction. Id. Plaintiff

contends that Defendant Nash arrived to help Burnette place Plaintiff on

property restriction. Id. at 8. Plaintiff claims that he was asked to strip down

' Although the Motion is titled as a “partial” summary judgment, the Motion

seeks dismissal of all claims, and thus referring to the Motion as “partial” seems to

be a typographical error.

to his underwear and submit to hand restraints. Id. He alleges that Nash

removed Plaintiff from his cell and had Plaintiff kneel on the ground, so Nash

could watch Plaintiff as Burnette conducted a cell search. Id.

According to Plaintiff, Burnette and Defendant Thady searched

Plaintiff's cell, during which they threw out Plaintiffs state issued and

personal property. Id. Plaintiff claims that during the search, Thady stated, “If

it was me I'd put him on strip.” Id. Upon hearing that threat, Plaintiff

immediately lay flat on the floor outside his cell, and as Plaintiff did that,

“Nash placed, to Plaintiff's knowledge, his knee in [Plaintiffs] back and applied

pressure.” Id. He asserts that several other officers then entered the quad to

assist with the use of force. Plaintiff claims officers placed him in leg restraints

and Defendant Stokes and another officer picked Plaintiff up and carried him

into his cell and placed him face down on the front bunk. Id. Plaintiff contends

that the officers then exited the cell and left Plaintiff in his cell with hand and

leg restraints still on and while wearing only his underwear. Id.

According to Plaintiff, he declared a psychological emergency, moved his

arms so that his hand restraints were to the front of his body, and explained

to the use-of-force camera that officers had illegally placed him on property

restriction and he needed to see mental health because he was suicidal. Id.

Plaintiff argues that he told Defendant Harrell that he was not refusing to

comply with orders to remove the shackles and place his hand restraints back

behind his back, but he first needed assurance that if he did so, he would

receive mental health care. Id. at 9. When Harrell denied Plaintiffs mental

health request, Defendant Dimauro administered three bursts of chemical

agents into Plaintiff's cell as Defendant Stokes held a shield. Id. Plaintiff then

took a decontamination shower and was escorted to medical for a post-use-of-

force exam. Id.

After the exam, Plaintiff was escorted back to his cell, submitted to

removal of the leg restraints, and walked into his cell. Id. Plaintiff argues that

he again refused to submit to the removal of his hand restraints, advising

officers that they needed to address his psychological emergency first. Id. He

claims that Harrell again denied Plaintiff mental health care. Id. According to

Plaintiff, everyone except Defendant Shaw then left the quad, and Shaw

persuaded Plaintiff to surrender the hand restraints but his psychological

emergency was never addressed. He claims he was placed on a 72-hour

property restriction and argues that he was never issued a disciplinary report

to justify the restriction. Id.

Plaintiff claims that Defendants’ use of chemical agents, failure to

intervene in the use of chemical agents, and deliberate indifference to his

psychological emergency violated his rights under the Eighth Amendment. Id.

at 3, 6. He also claims that Defendants violated his Fourteenth Amendment

due process rights when they ordered a 72-hour property restriction without

issuing a disciplinary report justifying the punishment.? Id. at 3, 6. He asserts

that because of Defendants’ conduct, he experienced sleep deprivation, was

unjustly exposed to chemical agents, and suffered two small abrasions on his

inner left and right ankles. Id. at 7.

III. Defendants’ Motion

Defendants raise five arguments in their Motion: (1) Plaintiff failed to

exhaust his administrative remedies; (2) Plaintiff cannot prove a constitutional

violation; (3) Plaintiff's request for damages is barred because he cannot prove

a physical injury; (4) Defendants are entitled to qualified immunity; and (5)

the Eleventh Amendment bars any claim for damages against Defendants in

their official capacities. See generally Doc. 37

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 (llth Cir. 2008). For the reasons below, the Court finds that

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

Plaintiff also references “equal protection.” See Doc. 1 at 6. Because the

Complaint does not appear to raise a separate equal protection claim, it appears

Plaintiff, when raising his due process claim, simply listed other rights afforded

under the Fourteenth Amendment.

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

arguments.

IV. Law

The PLRA requires that Plaintiff 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, Plaintiff 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

(lith 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 complhance

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.” 1386S. 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.8d 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 [Plaintiff] 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 (Lith 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. 33-108.005 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(8)(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 erievance 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).

V. Analysis

Defendants request dismissal of Plaintiffs claims against them because

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

Doc. 37 at 7-11. They argue that “Plaintiff failed to file a single grievance

regarding his conditions of confinement, being placed on property restriction

for no reason, the use of force, and failure to protect” claims. Id. at 11. In

support of their assertion, Defendants provide logs of all the informal and

formal grievances Plaintiff submitted between J anuary 2, 2019, the day the

alleged incidents occurred, and January 21, 2021, the day Plaintiff filed this

action. See Does. 37-13, 39-1. They also provide copies of several grievances

filed during that time. See Doc. 37-13 at 5-18: Doc. 39-1 at 5-30.

In his Response and Complaint, Plaintiff briefly describes the steps he

took to exhaust his administrative remedies:

Plaintiff started at the institutional level on the

request form. Plaintiff never received receipt or

response so Plaintiff continued the grievance

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procedure by filing a formal grievance to the warden.

Again no receipt or response was ever provided.

Plaintiff again continued the grievance procedure by

filing a formal grievance to the Secretary of the Dept.

of Corr. No receipt or response was ever provided so

Plaintiff proceeded with this action.

Doc. 1 at 11; see also Doc. 58 at 5. Thus, read liberally, Plaintiff argues that he

completed the FDOC’s three-step grievance procedure and exhausted his

administrative remedies. He also seems to assert that even if he did not

exhaust his claims, he did not have to do so because prison officials’ failure to

provide him with receipts for his grievances or respond hindered his ability to

exhaust and rendered the grievance procedure unavailable. Indeed, in his

Response, Plaintiff argues

The appeal and grievance logs provided by []

Defendants only show that the erievance were not

processed not that [] Plaintiff didn’t file any. Once []

Plaintiff pushed the grievances out of his cell to be

collected by classification officers it is their

responsibility to make sure the grievances make it to

their appropriate destination. That responsibility

rests with the grievance coordinator. As shown by the

appeal and grievance logs provided by [] Defendants,

[| Plaintiff is the type of inmate that grieves every

aspect of his prison condition and by this incident

playing a major part in that condition it was

undoubtedly provided. The question is, what

happened to the grievance [] Plaintiff filed.

Doc. 58 at 5-6.

Here, the Court finds that Plaintiffs allegations that he exhausted his

administrative remedies and that the FDOC’s failure to provide him with

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grievance receipts rendered the process unavailable, 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).3 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 Plaintiff did

not complete the administrative grievance process in accordance with the

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

Plaintiff alleges that on some unspecified date he submitted an informal

grievance at the institutional level. Docs. 1 at 11, 58 at 5. The alleged events

occurred on January 2, 2019, and thus, Plaintiff had until January 22, 2019,

to begin the three-step grievance process by filing an informal grievance.

According to the record, Plaintiff filed three informal grievances between

January 2, 2019, and January 22, 2019, none of which contained allegations

about the January 2, 2019, events forming his current claims. See Doc. 39-1 at

The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive ona

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022):

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.”).

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1. First, on January 13, 2019, Plaintiff submitted an informal grievance (log #

230-1901-0088) complaining about the facility’s new laundry procedure. See id.

at 5. Second, on January 14, 2019, Plaintiff submitted an informal erievance

(log # 230-1901-0093) complaining about Defendant Burnette making a

disrespectful comment to Plaintiff on January 14, 2019. See id. at 6. Finally,

on January 21, 2019, Plaintiff submitted his third January 2019 informal

grievance (log # 230-1901-0138) complaining about not receiving milk with his

meals. See id. at 7. As such the record shows Plaintiff took no steps to properly

initiate the first step of the FDOC’s grievance process with respect to the

claims raised in his Complaint.

Plaintiff also alleges that on some unspecified date he submitted a formal

grievance to the warden. Doc. 1 at 11. Considering the ten-day response time

for any informal grievance and the fifteen-day deadline to file a formal

grievance following the expiration of that response time, Plaintiff had until

February 16, 2019, to file a formal grievance with the warden. According to the

record, Plaintiff did not submit any formal grievances in February 2019. See

Doc. 387-13 at 1. As such, the record shows Plaintiff took no steps to properly

initiate the second step of the FDOC’s grievance process regarding the claims

in this case, even assuming he never received a response to any informal

grievance. And while Plaintiff alleges that he, again on some unspecified date,

submitted a grievance to the Secretary, the Court finds that the undisputed

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evidence that Plaintiff did not complete the first two steps of the three-step

grievance process is enough to decide the issue of exhaustion. As such, the

Court finds that Plaintiff failed to exhaust his administrative remedies as to

any claim in his Complaint.

To the extent that Plaintiff suggests he should be relieved of any

obligation to complete the applicable grievance process because it was

unavailable, that argument also fails. He asserts that the record is void of any

evidence that he exhausted his administrative remedies because grievance

officials failed to log his grievances, declined to provide him with receipts after

he submitted his grievances, and refused to respond. According to Plaintiff,

once he submits grievances, “it is the [classification officers’] responsibility to

make sure the grievances make it to their appropriate destination.” Doc. 58 at

5. However, Plaintiffs assumption that officials refused to log or document

Plaintiffs grievances about these claims does not amount to the type of

intimidation that would render a grievance process unavailable. “While the

burden is on [] [D]efendant to show an available administrative remedy, once

that burden has been met, the burden of going forward shifts to [] [P}laintiff,

who, pursuant to Turner, must demonstrate that the grievance procedure was

‘subjectively’ and ‘objectively’ unavailable to him.” Geter v. Baldwin State

Prison, 974 F.3d 1348, 1356 (11th Cir. 2020) (citing Turner, 541 F.3d at 1085).

Of import, the Court may “consider|] [Plaintiffs] history of filing grievances as

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evidence that [] [D]efendants did not make administrative remedies

unavailable to him or... destroy his grievances.” Whatley v. Smith, 898 F.3d

1072, 1083 (11th Cir. 2018).

Here, Plaintiff has an extensive record of filing grievances. Indeed, he

admits that he is the “type of inmate that grieves every aspect of his prison

condition[s],” and the record evidence supports that statement. Doc. 58 at 5.

The evidence shows that between the date of the alleged incident (January 2,

2019) and the date he filed this action (January 21, 2021), Plaintiff submitted

seventy-four informal grievances, Doc. 39-1 at 1-4, and fifty-eight formal

grievances, Doc. 37-13 at 1-4. None of those 132 grievances contained any

allegations involving the January 2, 2019, claims in the Complaint. And

Plaintiffs conclusory assertion that officials did not log the grievances he

submitted about the January 2, 2019, events but did log these other 132

grievances during the relevant time period is unpersuasive.

The Court notes that in March 2019, Plaintiff submitted two informal

grievances (log # 230-1903-0169 and log #230-1904-0002) alleging that on

March 21, 2019, he witnessed Sergeant Foust take a grievance from Plaintiff's

cell flap and place it in his pocket. Doc. 39-1 at 10, 13. Officials denied both

grievances after interviewing Foust who stated he removed a “kite” (or prison

note) from Plaintiff's cell door. Id. at 10, 13. But even if the object Foust placed

in his pocket on March 21, 2019, was a grievance, Plaintiff does not argue, and

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there is no evidence, that Foust’s actions deterred Plaintiff from filing any

future grievances. Notably, on exactly the same day that Foust allegedly

pocketed Plaintiffs grievance, Plaintiff submitted his first grievance

complaining about Foust’s alleged actions. See Doc. 39-1 at 10. After the

alleged Foust event, Plaintiff submitted 120 more grievances, four of which he

submitted while still at Suwannee C.I. Doc. 37-13 at 1-4; Doc. 39-1 at 1-4. In

October 2019, Plaintiff was transferred to Wakulla Annex and then to Santa

Rosa Correctional Institution in November 2019. Doc. 39-1 at 1. Plaintiff

continued to avail himself of the grievance process at both those facilities, yet

again none of those grievances involved the events of J anuary 2, 2019. Thus,

even if Plaintiff felt Suwannee CI. officials hindered his ability to grieve his

claims, he does not allege how the grievance process was unavailable to him

once he was no longer incarcerated at Suwannee CI. See Poole v. Rich, 312 F.

App'x 165, 167-68 (11th Cir. 2008) “Even if we assume that Poole was

threatened and that these threats rendered grievance procedures at Rogers

[State Prison] unavailable to Poole, Poole’s complaint is still due to be

dismissed because he has failed to allege that grievance procedures were

unavailable to him once he was no longer incarcerated at Rogers and was

removed from the threats of violence made by the officials at that prison.”).

Because Plaintiff was actively availing himself of the grievance

procedure during the relevant timeframe, the Court finds that Plaintiff was

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not deterred or thwarted from pursuing his administrative remedies. Thus, the

Court finds that neither Plaintiffs allegations nor the record show that the

administrative remedies were unavailable to Plaintiff. Defendants have

carried their burden to show that Plaintiff 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 Plaintiffs failure to exhaust.

Accordingly, it is

ORDERED AND ADJUDGED:

1. Defendants’ Motion for Summary Judgment (Doc. 387) is

GRANTED to the extent it seeks dismissal for Plaintiffs failure to exhaust

his administrative remedies.

2. 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 257 day of

a ~oA, 2022.

HA Y E. SCHLESENGET

United States Distyict Judge

Jax-7 □

C: Kevin Lamar Blake, #X8376

Shirley Wilson Durham,

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