Haliburton v. Inch

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JERRY HALIBURTON,

Plaintiff,

v. Case No. 3:21-cv-625-MMH-LLL

RICKY D. DIXON1 and CENTURION

OF FLORIDA, LLC.,

Defendants.

________________________________

ORDER

I. Status

Plaintiff Jerry Haliburton, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on June 18, 2021, by

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

§ 1983. As Defendants, Haliburton sues Ricky D. Dixon, Secretary of the

FDOC, and Centurion of Florida, LLC (Centurion). Complaint at 2. Haliburton,

who alleges he suffers from Hepatitis C virus (HCV), argues that Defendants

1 Because Haliburton appears to sue Mark Inch only in his official capacity as

the Secretary of the FDOC, a position he no longer holds, the Court substitutes Ricky

D. Dixon, the current Secretary, as the proper party Defendant. Fed. R. Civ. P.

25(d)(1). However, a claim against Dixon in his official capacity is essentially a claim

against the FDOC. Thus, in Dixon’s Motion to Dismiss and Haliburton’s Response

thereto, the parties refer to Defendant Dixon as Defendant FDOC. See Docs. 31, 37.

In any event, even if Haliburton sues either Inch or Dixon in their individual

capacities, that fact does not affect the Court’s analysis or the outcome of this Order.

Dixon as Secretary of the FDOC and Centurion violated his Eighth

Amendment right to be free from cruel and unusual punishment, as well as his

right under Title II of the Americans with Disabilities Act (ADA), and

Defendant Dixon violated Section 504 of the Rehabilitation Act (RA) when

Defendants refused to provide Haliburton with lifesaving HCV treatment

because of a cost-saving policy. Id. at 5-7. As relief, Haliburton seeks injunctive

relief, compensatory and punitive damages, and attorney’s fees and costs. Id.

at 8.

Before the Court are Defendants Centurion’s and FDOC’s Motions to

Dismiss. See Defendant Centurion of Florida, LLC’s Amended Motion to

Dismiss (Doc. 29; Centurion Motion), with Exhibit (Doc. 29-1); Motion to

Dismiss by Defendant Florida Department of Corrections (Doc. 31; FDOC

Motion), with Exhibits (Doc. 31-1 and Doc. 31-2). Haliburton filed a Response.

See Plaintiff’s Response in Opposition to Defendants[’] Motion[s] to Dismiss

(Doc. 37; Haliburton Resp.), with Exhibit (Doc. 37-1). Haliburton also filed a

Motion for Leave to Amend. See Plaintiff’s Motion for Leave to Amend Civil

Rights Complaint (Doc. 30), with Exhibit (Doc. 30-1). Defendant Centurion

filed a response in opposition to Haliburton’s Motion to Amend. See Defendant

Centurion of Florida, LLC’s Response to Plaintiff’s Motion for Leave to File

Amended Complaint (Doc. 32). The Motions are ripe for review.

II. Haliburton’s Allegations

In his Complaint, Haliburton alleges that in 1998, while housed at Union

Correctional Institution, medical officials determined Haliburton suffered from

HCV. Complaint at 6. He contends that HCV is a serious medical condition

that can cause decompensated cirrhosis of the liver, cancer, and death. Id. at

5. According to Haliburton, after his diagnosis, doctors declared him a qualified

individual with a disability and recommended he undergo a liver biopsy and

other medical treatments; however, Defendants declined to provide him

“access to any type of medical treatment for his H[CV] infection i.e. interferon,

liver biopsy, or otherwise.” Id. at 6.

Haliburton asserts that Dixon, in his official capacity as the Secretary of

the FDOC, has failed to ensure that Haliburton received medical treatment for

HCV. Id. at 5. According to Haliburton, Defendant Dixon has instead

“implemented the customary practice of delaying medical treatment to

[Haliburton] and other prisoners in his custody then ultimately denying

[Haliburton] medical treatment for his hepatitis C [ ] solely based upon costs

for treatment.” Id. at 5-6.

Haliburton asserts that between September 2013 and August 2016,

Centurion contracted with the FDOC to provide medical treatment to prisoners

in FDOC custody. Id. at 6. He maintains that Centurion was aware of his HCV

diagnosis and need for medical treatment. Id. But according to Haliburton,

Centurion followed a cost-saving policy and practice of refusing HCV treatment

to Haliburton and other prisoners. Id. at 6-7.

Haliburton contends that because of Defendants’ denial of HCV

treatment, he “has sustained decompensate[d] cirrhosis of the liver which

require[s] a liver transplant.” Id. at 7. Based on these facts, Haliburton asserts

that Defendants’ conduct amounts to deliberate indifference to his serious

medical needs in violation of the Eighth Amendment. Id. at 5-7. He also alleges

that Defendants have failed to accommodate his disabilities and provide

adequate medical care under the ADA, and Dixon’s actions also have violated

the RA. Id. at 6-7.

III. Summary of the Arguments

In its Motion, Centurion contends that the Court should dismiss the

claims against it for four reasons: (1) Haliburton’s claims are barred by the

statute of limitations; (2) Haliburton failed to properly exhaust his

administrative remedies; (3) Haliburton fails to state a plausible Eighth

Amendment claim upon which relief can be granted; and (4) Centurion is not

liable under Title II of the ADA. See generally Centurion Motion. In his

Response, Haliburton argues that his claims should not be dismissed because

(1) the continuing violation doctrine permits him to sue on an otherwise time-

barred claim; (2) he did exhaust his administrative remedies; and (3) he has

stated plausible Eighth Amendment and ADA claims against Centurion. See

Haliburton Resp. at 14-18.

In its Motion, the FDOC argues that the Court should dismiss the claims

against it because (1) Haliburton failed to properly exhaust his administrative

remedies and (2) it is entitled to Eleventh Amendment immunity. See

generally FDOC Motion. In his Response, Haliburton argues that the Court

should not dismiss his claims because (1) he did exhaust his administrative

remedies and (2) he has stated a plausible claim for relief against the FDOC.

See Haliburton Resp. at 8-13.

IV. Analysis2

The Prison Litigation Reform Act (PLRA) requires Haliburton to 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, Haliburton need not

2 Because the Court finds that this action is due to be dismissed for

Haliburton’s failure to exhaust his administrative remedies, the Court need not

address Defendants’ other arguments.

“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).3 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

3 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 on a

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.”).

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.

Because failure to exhaust administrative remedies is an affirmative

defense, Defendants bear “the burden of proving that [Haliburton] 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 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. But the ordinary three-step procedure need not apply in all instances.

A prisoner may skip the informal grievance step and immediately file a formal

grievance for issues pertaining to various things, including “medical

grievances” or “a formal grievance of a medical nature.” Fla. Admin. Code r.

33-103.005(1); Fla. Admin. Code r. 33-103.008. If a prisoner is permitted to

bypass the informal grievance step, he must file the formal grievance with the

warden within 15 days from the date on which the incident or action being

grieved occurred. Fla. Admin. Code r. 33-103.011(1)(b). A response must be

provided to the inmate within 20 days of receipt of the formal grievance. Fla.

Admin. Code r. 33-103.006(6). “If the 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).” Jenkins v.

Sloan, 826 F. App’x 833, 835 (11th Cir. 2020) (citing Fla. Admin. Code Ann. R.

33-103.007). The grievance appeal to the Office of the Secretary must be

received within 15 days from the date the response to the formal grievance is

returned to the inmate. Fla. Admin. Code r. 33-103.11(c).

According to Rule 33-103.014, an informal grievance, formal grievance,

direct grievance, or grievance appeal “may be returned to the inmate without

further processing if, following a review of the grievance, one or more . . .

conditions are found to exist.” Fla. Admin. Code R. 33-103.014(1). The rule

provides an enumerated list as “the only reasons for returning a grievance

without a response on the merits.” See Fla. Admin. Code R. 33-103.014(1)(a)-

(y). 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).

Here, Defendants argue Haliburton did not exhaust his administrative

remedies because the Secretary returned his grievance appeal without action.

Centurion Motion at 10; FDOC Motion at 13-14. The FDOC also argues that

Haliburton’s grievances lacked any allegations related to his ADA and RA

claims. FDOC Motion at 14. In support of their arguments, Defendants attach

to their motions a summary printout of Haliburton’s grievance appeals, series

of administrative grievances, and responses. See generally Docs. 29-1; 31-1; 31-

2.

In his Response, Haliburton asserts that he did exhaust his available

administrative remedies. Haliburton Resp. at 11-12. According to Haliburton,

he filed a formal grievance of a medical nature that the warden denied on the

merits and then filed a grievance appeal to complete the grievance process. Id.

at 11-12. He admits that the Secretary returned his appeal as untimely filed

but argues that because the warden denied his formal grievance on the merits

at the institutional level, the Secretary was without authority to return his

appeal without considering it on the merits. Id. at 12. To that end, Haliburton

asserts he gave prison officials an opportunity to address his complaints, and

thus the Court should deny Defendants’ request to dismiss the action based on

exhaustion. Id. In support of his argument, Haliburton attaches to his

Response a formal grievance, his grievance appeal, and the responses thereto.

Doc. 37-1 at 2-5.

Accepting Haliburton’s view of the facts as true, the Court finds

dismissal of the claims against Defendants for lack of exhaustion is not

warranted at the first step of Turner. Thus, the Court proceeds to the second

step of the two-part process and considers Defendants’ arguments about

exhaustion and makes findings of fact.

In resolving the disputed factual issues here, the Court finds that

Haliburton did not complete the administrative process in accordance with the

applicable grievance procedures set forth in Rule 33-103 of the Florida

Administrative Code. The parties do not dispute that Haliburton was

permitted to bypass the informal grievance step and first file a formal

grievance of a medical nature directly with the warden. Indeed, Haliburton

attaches to his Response, and Defendants also attach to their motions, a formal

grievance (log # 2102-213-058) that Haliburton submitted to the warden on

February 16, 2021, which states:

I am filing this formal grievance of medical nature in

which Mr. Jerry L. Haliburton DC # 046651

aggrieve[s] the medical department for their

procrastinating to provide me medical treatment for

my infection hep[atitis]-c for years until my liver has

reached the point of no return (liver cirrhosis)[.] I

continue to experience pain in my liver.

Doc. 37-1 at 2; Doc. 31-1 at 5; Doc. 29-1 at 9. On February 23, 2021, officials

denied Haliburton’s formal grievance (log # 2102-213-058), explaining:

Your request for Administrative Remedy or Appeal

has been received, reviewed, and evaluated.

Inmate HALIBURTON, please, be advised that your

Hepatitis C treatment was handled in accordance with

FDC procedures and applicable treatment protocols.

Based on the above information, your grievance is

denied.

You may obtain further administrative review of your

complaint by obtaining Form DC1-303, Request for

Administrative Remedy or Appeal, completing the

form, and providing attachments as required by

Chapter 33-103, Request for Administrative Remedy

or Appeal, completing the form, and providing

attachments as required by Chapter 33-103 and

forwarding your appeal to the Bureau of Inmate

Grievance Appeals, . . . within 15 calendar days of this

mailed response.

Doc. 37-1 at 3; Doc. 31-1 at 6; Doc. 29-1 at 10.

On March 3, 2021, Haliburton submitted to the Secretary a grievance

appeal (log # 21-6-07258), stating:

This is an appeal of the formal grievance in which I

Mr. Jerry L. Haliburton # 046651 complain of the

inadequate medical treatment given [to] him for his

hepatitis-c infection which has resulted in irreversible

damage to his liver to wit cirrhosis. Primarily,

Haliburton complain[s] that medical staff at Union

Correctional intentionally procrastinated in providing

Haliburton with any form of medical treatment to him

for his hepatitis infection until his liver commenced

cirrhosis . . . .

The response given at the institutional level does not

deny Haliburton’s claim of delay for medical treatment

nor does the response address any of Haliburton’s

concerns . . . . Thus, Haliburton request[s]

administrative review of the medical department

failure to provide Haliburton adequate medical

treatment in any form for his hepatitis-c infection

before he got cirrhosis of the liver. Haliburton will also

note in this appeal that liver cirrhosis is not detectable

via ultrasound examination.

Doc. 37-1 at 4; Doc. 31-1 at 4; Doc. 29-1 at 8. The Secretary returned the appeal

(log # 21-6-07258) on April 19, 2021, advising:

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

Hepatitis C. Records reviewed indicate that you

received and completed treatment in 2018.

Please be advised that you are outside the timeframe

to grieve an issue that happened in 2018 and the

Institution should have returned your formal

grievance.

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. 37-1 at 5; Doc. 31-1 at 3; Doc. 29-1 at 7.

Haliburton does not dispute that he received and completed his HCV

treatment in 2018 and then waited three years to submit his formal grievance

at the institutional level. Although officials denied Haliburton’s formal

grievance on the merits, the Secretary found his appeal to be untimely filed.

Haliburton argues that the Secretary waived its ability to return his appeal for

procedural defects because the institutional level responded to his formal

complaint on the merits. But “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 the administrative review.” Whatley v. Smith, 898

F.3d 1072, 1083 (11th Cir. 2018). Further, “‘[c]ourts 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)).4

4 The Court notes that although decisions of other district courts are not

binding, they may be cited as persuasive authority. See Stone v. First Union Corp.,

371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court would

not be bound to follow any other district court’s determination, the decision would

have significant persuasive effects.”).

Because the Secretary, as the last available stage of administrative

review, did not deny Haliburton’s appeal on the merits, the FDOC did not

waive its application of this procedural defect. Haliburton began the grievance

process three years after his HCV treatment. He makes no argument

explaining why he waited so long to avail himself of the administrative process

nor does he argue that his administrative remedies were unavailable to him.

Thus, the Court finds that the Secretary’s interpretation of its grievance rules

was not clearly erroneous, arbitrary, or intended to prevent Haliburton from

exercising his right of access to the courts. As such, Haliburton failed to

properly exhaust his administrative remedies and his Complaint is due to be

dismissed.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. Defendants Centurion’s and FDOC’s Motions to Dismiss (Docs. 29;

31) are GRANTED to the extent Defendants seek dismissal for Haliburton’s

failure to exhaust his administrative remedies.

2. Haliburton’s Complaint (Doc. 1) is DISMISSED WITHOUT

PREJUDICE.5

5 The applicable four-year statute of limitations has likely run as to

Haliburton’s claims. See McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008).

Nevertheless, the Court dismisses Haliburton’s claims without prejudice in the event

that Haliburton could show otherwise.

3. Haliburton’s Motion for Leave to Amend Civil Rights Complaint

(Doc. 30) is DENIED. He seeks to amend his Complaint to allege more specific

allegations for the same claims against the same Defendants. Id. at 2.

However, his proposed amendment would not cure his failure to exhaust those

claims.

4, The Clerk shall enter judgment dismissing this case without

prejudice, terminate any pending motions, and close the case.

DONE AND ORDERED at Jacksonville, Florida, this 28th day of

November, 2022.

United States District Judge

Jax-7

C: Jerry Haliburton, #046651

Counsel of record

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