Opinion

Dombrowski v. Wilson

Court
District Court, M.D. Florida
Filed
Mar 8, 2023
Cited by
0 cases
Authority
More cited than 19.9%

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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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