agreeing with other circuits and holding “a procedural flaw ignored by a prison cannot later be resurrected . . . to defeat exhaustion”
How later courts described this case
- agreeing with other circuits and holding “a procedural flaw ignored by a prison cannot later be resurrected . . . to defeat exhaustion”
- “A few hours’ delay in receiving medical care for emergency needs such as broken bones . . . may constitute deliberate indifference.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
HAROLD DOMBROWSKI,
Plaintiff,
v. Case No. 3:21-cv-1199-BJD-PDB
WILSON et al.,
Defendants.
______________________________
ORDER
I. Status
Plaintiff, Harold Dombrowski, an inmate in the custody of the Florida
Department of Corrections (FDOC), is proceeding pro se and in forma pauperis
on a complaint for the violation of civil rights under 42 U.S.C. § 1983 (Doc. 1;
Compl.). Plaintiff sues the following six individuals based on a slip-and-fall
that occurred in the kitchen at Hamilton Correctional Institution (HCI) on
September 13, 2020: (1) Wilson, a food service director; (2) Cobb, a food service
supervisor; (3) O. Jelks, a corrections officer; (4) K. Fongeallaz, a nurse; (5) J.
Selph, a nurse; and (6) I. Lee, a nurse.1 See Compl. at 3-4, ¶ 23.
1 Defendants Fongeallaz, Selph, and Lee (Medical Defendants) are or were employed
by a healthcare company (alleged by Plaintiff to be Centurion), see Compl. at 2, 4, and
Plaintiff alleges Defendants Wilson and Cobb forced him to work in the
kitchen wearing unauthorized footwear (crocs), which did not have “traction”;
Defendants Cobb and Jelks, who were present when he fell, delayed obtaining
medical treatment for him, believing he was “faking [an] injury”; Defendants
Fongeallaz and Selph discontinued their medical exam when they discovered
Plaintiff had a temperature and, per COVID-19 protocol, placed Plaintiff in
isolation even though he was unable to walk; and the Medical Defendants
denied him pain medication. Id. ¶¶ 17, 20-23, 26, 28, 32-39. When Plaintiff
finally was taken for an x-ray three days later, it was discovered he had broken
his hip. Id. ¶ 43. He had emergency surgery—a total right hip replacement—
at Orlando Regional Medical Center on September 19, 2020. Id. ¶¶ 44-46.
The HCI Defendants move to dismiss the complaint for Plaintiff’s failure
to exhaust his administrative remedies under the Prison Litigation Reform Act
(PLRA) (Doc. 18; HCI Def. Mot.). The Medical Defendants move to dismiss the
complaint for Plaintiff’s failure to state a deliberate indifference claim against
them, and they adopt the HCI Defendants’ argument regarding exhaustion
(Doc. 33; Med. Def. Mot.). Plaintiff opposes both motions (Doc. 27; HCI Resp.)
(Doc. 36; Med. Def. Resp.).
are represented by different counsel than Defendants Wilson, Cobb, and Jelks (HCI
Defendants).
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II. Motion to Dismiss Standard
A defendant may move to dismiss a complaint for a plaintiff’s “failure to
state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In
ruling on such a motion, the court must accept the plaintiff’s allegations as
true, liberally construing those by a plaintiff proceeding pro se, but need not
accept as true legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Though detailed factual allegations are not required, Rule 8(a) demands “more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A
plaintiff should allege enough facts “to raise a reasonable expectation that
discovery will reveal evidence” supporting the plaintiff’s claims. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556 (2007).
III. Analysis
A. Exhaustion
The PLRA provides, “[n]o action shall be brought with respect to prison
conditions . . . until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The purpose of this requirement “is to afford
corrections officials time and opportunity to address complaints internally
before allowing the initiation of a federal case.” Whatley v. Warden, Ware State
Prison, 802 F.3d 1205, 1214-15 (11th Cir. 2015). Exhaustion of available
administrative remedies is “a precondition to an adjudication on the merits.”
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Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). See also Jones v. Bock,
549 U.S. 199, 211 (2007). While “the PLRA exhaustion requirement is not
jurisdictional[,]” Woodford v. Ngo, 548 U.S. 81, 101 (2006), “exhaustion is
mandatory . . . and unexhausted claims cannot be brought,” Pavao v. Sims, 679
F. App’x 819, 823 (11th Cir. 2017) (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. Woodford, 548 U.S. at 93. “Proper exhaustion demands compliance
with an agency’s deadlines and other critical procedural rules[.]” Id. Generally,
to properly exhaust administrative remedies, a Florida prisoner must timely
complete a three-step process as fully set forth in the Florida Administrative
Code (FAC) by filing an informal grievance, then a formal grievance, and then
an appeal to the Office of the Secretary of the FDOC. See Fla. Admin. Code rr.
33-103.001 through 33-103.018.
A grievance filed at any step of the process may be returned to the
prisoner without action or processing for certain enumerated procedural
deficiencies, including untimeliness. See Fla. Admin. Code r. 33-103.014(1). If
a prisoner submits a grievance that does not comply with the grievance process
because it is late, for example, but the grievance is processed and substantively
addressed, prison officials may not later challenge exhaustion on those
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procedural grounds. See, e.g., Whatley, 802 F.3d at 1215 (agreeing with other
circuits and holding “a procedural flaw ignored by a prison cannot later be
resurrected . . . to defeat exhaustion”). In other words, in ruling on an
exhaustion defense, a court may not enforce a procedural rule that prison
officials themselves ignored when processing a grievance. Id.
Prisoners are not required to “specially plead or demonstrate exhaustion
in their complaints.” See Jones, 549 U.S. at 216. The determination of whether
a prisoner exhausted his available administrative remedies before pursuing a
federal claim is a matter of abatement, properly addressed through a motion
to dismiss. See Bryant, 530 F.3d at 1374-75. As such, the defendant bears the
burden. Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). When
confronted with an exhaustion defense, courts in the Eleventh Circuit employ
a two-step process:
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. . . . 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.
Whatley, 802 F.3d at 1209 (citing Turner, 541 F.3d at 1082-83).
The HCI Defendants offer copies of grievances Plaintiff filed between
September 1, 2020, and March 30, 2021 (Docs. 18-1, 18-2; Def. Exs. A, B). They
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contend those documents show Plaintiff did not exhaust his administrative
remedies because the appeals he filed with the Office of the Secretary were
returned for being facially deficient. HCI Def. Mot. at 8-10. In his response,
Plaintiff contends he exhausted his administrative remedies, and he provides
copies of relevant grievances he filed at each of the three steps of the process
(Doc. 27-1; Pl. Ex.).2 Accepting as true that Plaintiff exhausted his
administrative remedies, as he asserts, the Court cannot resolve the issue at
the first step of the Turner analysis and, therefore, will proceed to the second
step.
Upon review, the Court finds Defendants do not carry their burden
because they have overlooked relevant grievances, focusing solely on appeals
Plaintiff filed with the Office of the Secretary between September 1, 2020, and
March 30, 2021. Plaintiff filed two informal grievances about the September
13, 2020 incident—one complaining about unsafe working conditions in the
kitchen and the other about medical care he received immediately after his
fall. Def. Ex. B at 16-17. He filed these informal grievances on February 26,
2021, well after the deadline set forth in the FAC, but they were not returned
on that basis. Id. Indeed, they both were approved, and Plaintiff was informed
2 Some of the grievances Plaintiff provides with his response are duplicates of those
provided by the HCI Defendants. Where duplicates, the Court will cite the HCI
Defendants’ exhibits.
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his complaints had been referred to the Office of the Inspector General (OIG).
Id.
Once Plaintiff’s informal grievances were approved and his complaints
referred to the OIG, there was nothing more for him to do. See Luckey v. May,
No. 5:14-cv-315-MW-GRJ, 2016 WL 1128426, at *11 (N.D. Fla. Feb. 17,
2016), report and recommendation adopted sub nom., 2016 WL 1169481 (N.D.
Fla. Mar. 22, 2016) (finding the plaintiff exhausted his administrative
remedies where he filed an informal grievance, which was “approved” from the
standpoint that his allegations had been referred to the OIG). See also Tierney
v. Hattaway, No. 3:20-cv-5738-LAC-ZCB, 2022 WL 18159995, at *2 (N.D. Fla.
Dec. 9, 2022) (“Given that [the plaintiff’s] informal grievance was ‘approved,’
and the matter referred to the [OIG], it would have been pointless for [him] to
appeal by filing a formal grievance.”).
Even if the approved informal grievances were not sufficient to fully
exhaust his administrative remedies, Plaintiff completed the three-step
grievance process by filing formal grievances and appeals to the Office of the
Secretary. Def. Ex. B at 23, 26; Pl. Ex. at 4, 9. In response to his formal
grievances, which were denied, Plaintiff was specifically informed, “As you
have failed to provide new or unknown information no further action is deemed
necessary at this time.” Def. Ex. B at 22, 25. Despite being told he needed to
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take no further action, Plaintiff filed appeals to the Office of the Secretary on
April 3, 2021, Pl. Ex. at 4, 9, after the March 30, 2021 cut-off Defendants used
for their search, Def. Ex. A at 1. His appeals were approved. See Pl. Ex. at 5,
10.
The Court finds Plaintiff exhausted his administrative remedies because
his informal grievances were approved, and he nevertheless completed the
three-step grievance process. As such, Defendants’ motions are due to be
denied as to exhaustion.
B. Deliberate Indifference
A claim for deliberate indifference to a serious illness or injury is
cognizable under § 1983. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To
state a claim, a plaintiff first must allege he had a serious medical need. Brown
v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). Next, the plaintiff must
“allege that the prison official, at a minimum, acted with a state of mind that
constituted deliberate indifference.” Richardson v. Johnson, 598 F.3d 734, 737
(11th Cir. 2010). Finally, the plaintiff must allege facts showing a causal
connection between the defendant’s conduct and his resulting injuries. Mann
v. Taser Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009), overruled in part
on other grounds by Hope v. Pelzer, 536 U.S. 730, 739 (2002).
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A prison official who delays medical care for an inmate who is in pain
from a serious injury may be found to have been deliberately indifferent.
Brown v. Hughes, 894 F.2d 1533, 1537-38 (11th Cir. 1990). This is especially
true in the case of a broken bone. See id. See also Harris v. Coweta Cnty., 21
F.3d 388, 394 (11th Cir. 1994) (“A few hours’ delay in receiving medical care
for emergency needs such as broken bones . . . may constitute deliberate
indifference.”). “With [a broken bone], it may be that deliberately indifferent
delay, no matter how brief, would render defendants liable as if they had
inflicted the pain themselves.” Brown, 894 F.2d at 1538. In Brown, the court
held the district court improperly granted summary judgment in favor of the
defendant, a prison guard, because the plaintiff claimed he informed the
defendant he suspected his foot was broken and his foot swelled, but the guard
ignored him, and the plaintiff did not receive medical treatment until hours
later. Id. at 1358-59.
The Medical Defendants argue Plaintiff alleges no more than “simple
negligence” against them. Med. Def. Mot. at 6. In his response, Plaintiff faults
the Medical Defendants for the five-hour delay in getting any medical attention
after his fall. Med. Def. Resp. at 2. He also says the Medical Defendants “denied
[him] pain medication or treatment for his femoral neck fracture.” Id. Plaintiff
does not allege in his complaint that the Medical Defendants were responsible
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for the initial five-hour delay; he faults Defendants Cobb and Jelks for that.
See Compl. ¶ 26. But Plaintiff does allege Defendants Fongeallaz and Selph
discontinued a physical examination when they discovered he had a
temperature even though he was brought to the medical unit on a stretcher
after having fallen five hours previously. Id. ¶¶ 30-34. He also alleges the
Medical Defendants denied him pain medication despite him being in so much
pain he could not walk. Id. ¶¶ 35-37. Plaintiff alleges he was unable to retrieve
his food trays for three days and defecated in his clothing. Id. ¶¶ 38-39.
Even if the Medical Defendants suspected Plaintiff had COVID-19,
Plaintiff alleges facts permitting the reasonable inference they were
deliberately indifferent to a serious medical need. He alleges he was in such
severe pain after falling that he could not walk on his own, yet the Medical
Defendants permitted him to stay in an isolation cell for three days with no
physical examination or treatment. His pain became so severe that he
eventually was “crying in pain” on his cell floor, which prompted a corrections
officer to declare a “medical emergency.” Id. ¶¶ 40-41. Plaintiff’s allegations go
beyond simple negligence. What Plaintiff alleges is more akin to medical care
that was “so cursory as to amount to no treatment at all.” See Ancata v. Prison
Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985). See also McElligott v.
Foley, 182 F.3d 1248, 1256-57 (11th Cir. 1999) (recognizing that negligently
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diagnosing an injury is not deliberate indifference but ignoring a prisoner’s
need for “further diagnosis of and treatment for... severe pain” may constitute
deliberate indifference). Whether the Medical Defendants acted appropriately
under the circumstances is best addressed on a more complete record at
summary judgment.
Accordingly, it is now
ORDERED:
1. Defendants Wilson, Cobb, and Jelks’s motion to dismiss (Doc. 18)
is DENIED.
2. Defendants Fongeallaz, Selph and Lee’s motion to dismiss (Doc.
33) is DENIED.
3. Defendants must answer the complaint (Doc. 1) within twenty
days of the date of this Order.
DONE AND ORDERED at Jacksonville, Florida, this 8th day of March
2023.
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BRIAN/J . DAVIS
United States District Judge
Jax-6
Harold Dombrowski
Counsel of Record
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