Franklin v. Nixon

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOSHUA D. FRANKLIN,

Plaintiff,

v. Case No. 3:22-cv-528-MMH-JBT

ROBERT W. NICHOLSON, et al.,

Defendants.

________________________________

ORDER

I. Status

Plaintiff Joshua D. Franklin, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on May 9, 2022, by

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

U.S.C. § 1983. Franklin proceeds on an amended complaint (AC; Doc. 15). In

the AC, Franklin presents claims against the following Defendants: Sergeant

Robert W. Nicholson, Sergeant Jackie Morgan, and Officer Christopher J.

Adams.2 He alleges that Defendants violated the Eighth Amendment when

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 On September 22, 2022, the Court dismissed without prejudice the claims

against Defendants Ricky D. Dixon and Sergeant Dustin A. Bullard. See Order (Doc.

16).

they beat him and used chemical agents on December 14, 2021. Id. at 5.

Franklin also asserts that Defendants falsified disciplinary reports of the

incident in violation of his due process rights. Id. at 6. As relief, he seeks

monetary damages. Id.

This matter is before the Court on Defendants’ First Motion to Dismiss

the Complaint (Motion; Doc. 26). In support of the Motion, Defendants have

submitted exhibits. See Docs. 26-1 through 26-2. Franklin filed a response in

opposition to the Motion. See Plaintiff’s Response to Defendant’s Motion to

Dismiss (Response; Doc. 30). Thus, the Motion is ripe for review.

II. Plaintiff’s Allegations3

In the AC, Franklin asserts that on December 14, 2021, officers at

Hamilton Correction Institution (Hamilton CI) conducted a “mass search” of

the G-Dormitory. AC at 5. He alleges that during the search, Sergeant

Nicholson, Sergeant Morgan, and Officer Adams called him into his cell, where

they began to punch and kick him. Doc. 15-1 at 1. Franklin avers that

Defendants wrestled him to the ground and placed him in hand restraints. Id.

3 In considering Defendants’ Motion, the Court must accept all factual

allegations in the AC as true, consider the allegations in the light most favorable to

Franklin, and accept all reasonable inferences that can be drawn from such

allegations. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa

Cnty., 21 F.3d 1531, 1534 (11th Cir. 1994). As such, the facts recited here are drawn

from the AC, and may well differ from those that ultimately can be proved.

2

According to Franklin, after Sergeant Nicholson secured the restraints, he

punched Franklin and sprayed a can of mace in Franklin’s nose and mouth. Id.

Officer Adams allegedly falsified the disciplinary report of the incident by

stating he, not Sergeant Nicholson, used mace. Id. at 2. Franklin also asserts

that Sergeant Morgan omitted Defendants’ use of chemical agents from the

report. Id. at 1. Franklin maintains he sustained psychological damages,

extreme back pain, and increased anxiety and depression because of the

assault. AC at 6.

III. Summary of the Arguments

In their Motion, Defendants argue that the Court should dismiss the

claims against them because: (1) Franklin failed to properly exhaust his

administrative remedies; (2) he fails to state a due process claim upon which

relief can be granted; (3) he cannot recover compensatory and punitive

damages under 42 U.S.C. § 1997e(e) for his due process claim; and (4) the

Eleventh Amendment entitles Defendants to immunity. Motion at 3-16.

Franklin responds that the Court should not dismiss his claim because: (1) he

exhausted his administrative remedies; (2) he states a plausible claim for

relief; (3) he alleges sufficient physical injury to recover monetary damages;

3

and (4) Defendants are not entitled to Eleventh Amendment immunity.

Response at 2-12.

IV. Analysis

A. Exhaustion of Administrative Remedies

1. PLRA Exhaustion

The Eleventh Circuit Court of Appeals has held the exhaustion of

administrative remedies by a prisoner is “a threshold matter” to be addressed

before considering the merits of a case. Chandler v. Crosby, 379 F.3d 1278,

1286 (11th Cir. 2004); see also Myles v. Miami-Dade Cnty. Corr. & Rehab.

Dep’t, 476 F. App’x 364, 366 (11th Cir. 2012)4 (noting that exhaustion is “a

‘threshold matter’ that we address before considering the merits of the case”)

(citation omitted). It is well settled that 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); Porter v. Nussle, 534 U.S.

516, 524 (2002). A prisoner such as Franklin, however, is not required to plead

4 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.”).

4

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

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,[5] 286 F.3d, at 1024 (emphasis in original).

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

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

5

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

(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 [Franklin] 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

6

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).

At step two of the procedure established in Turner, the Court can consider facts

outside the pleadings as long as those facts do not decide the case and the

parties have had sufficient opportunity to develop the record. Bryant, 530 F.3d

at 1376; see also Jenkins v. Sloan, 826 F. App’x 833, 838-39 (11th Cir. 2020).

Here, Defendants submitted declarations and grievance records as exhibits to

their Motion. See Docs. 26-1 through 26-2. When neither party requests an

evidentiary hearing, courts may decide a motion to dismiss on the basis of

affidavits and other documents. Bryant, 530 F.3d at 1377 n.16. Here, the

parties do not request an evidentiary hearing. Thus, the Court considers the

grievance records solely for purposes of addressing the parties’ competing

contentions regarding exhaustion. In evaluating whether Franklin has

satisfied the exhaustion requirement, the 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).

7

2. 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

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.

8

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

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

9

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).

3. Franklin’s Exhaustion Efforts

With their Motion, Defendants provide declarations and records

regarding Franklin’s exhaustion efforts. See Doc. 26-1 through 26-2. In her

declaration, Amanda Rewis, a correctional services assistant administrator for

the FDOC, avers that Franklin submitted only two informal grievances

between December 14, 2021, and May 12, 2022, based on her review of “the

available grievance records stored int the FDC’s Central database and that of

Florida State Prison . . . .” Doc. 26-1 at 2-3. She states that Franklin submitted

one informal grievance to Hamilton CI that it returned for failure to comply

with Administrative Rule 33-103.014. Id. at 3. According to Rewis, Franklin

submitted a second informal grievance to Florida State Prison (FSP) that it

denied. Id. Rewis maintains that Franklin “filed no formal grievances or

10

appeals regarding alleged abuse.” Id.

Defendants also submitted the declaration of Lawanda Sanders, an

operation analyst for the FDOC Bureau of Inmate Grievance Appeals. Doc. 26-

2 at 2. She avers that, according to her review of the available records in the

FDOC’s central database and from FSP, Franklin filed one direct grievance to

the Office of the FDOC Secretary between December 14, 2021, and May 31,

2022. Id. at 2-3. The grievance was returned “as not in compliance with

Chapter 33-103.” Id. at 3.

Defendants attach as an exhibit the direct grievance (#22-6-14227) that

Franklin submitted on May 9, 2022:

I am filing this grievance on an incident that took

place December 14, 2021 at Hamilton CI . . . Sergeants

Nicholson, Jackie Morgan, Dustin Bullard, and Officer

C. Adams who all committed excessive force by staff,

cruel and unusual punishment, and violation of due

process in falsifying court documents as the camera[’]s

audio and video in G-Dormitory and H-Dormitory

during the time of the incidents show that the

statement of facts written by these officials were not

true, and witnesses[,] including staff[,] can testify to

the excessive force by staff on December 14, 2021. On

the morning of December 14, 2021[,] while conducting

a mass search of G1[,] I was in compliance with the

orders to strip down to my boxers when Sgt. Nicholson,

Jackie Morgan, and Officer Adams called me back into

my room and began spraying me, wrestling me (with

cameras being unable to see) and punching me with

closed fists while trying to break my neck. I was

11

escorted to H-Dorm and placed on strip in cell H1122

when later that night in retaliation[,] Sgt. Bullard

came to my door[,] opened my flap[,] and used chemical

agents without following the procedures in Ch. 33-601

regarding use of chemical agents. His statement of

facts on the DR also can be contradicted by the

audio/video surveillance in H1. I am suing these

Defendants under a § 1983 asking for the injunctive

relief of reversal of all decisions including CM1

approval and transport/transfer to general population

in Region One, or for $50,000 damages awarded or a

jury trial as the incident is recorded on Vine.com,

Skype.com/gov, and WebPACER as I am an inmate

recently returned from Leon County Jail with

programmed DNA that allows me to be watched by

state officials whom viewed the entire incident. I’m

asking for the remedy of reversal and quashing of all

decisions only which would do away with the entire

case in the federal courts. Otherwise[,] this grievance

will count as a Notice of Intent to Sue and Exhaustion

of Administrative Remedies according to 11th Circuit

Court rules. I did not file a grievance out of fear of

reprisal at Hamilton CI. Remedy Requested: Reversal

of CM1 approval and transfer to GP in Region One (out

of this region).

Id. at 5. On May 18, 2022, the Office of the FDOC Secretary responded:

Your request for administrative appeal is in non-

compliance with the Rules of the Department of

Corrections, Chapter 33-103, Inmate Grievance

Procedure. The rule requires that you first submit

your grievance at the appropriate level at the

institution. You have not done so, or you have not

provided this office with a copy of that grievance, nor

have you provided a valid or acceptable reason for not

following the rules.

12

Upon receipt of this report, if you are within the

allowable time frames for processing a grievance, you

may resubmit your grievance at your current location

in compliance with Chapter 33-103, Inmate Grievance

Procedure.

Based on the foregoing information, your grievance is

returned without action.

Id. at 4.

4. Turner Step One

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

allegations in the Motion and Response and accept as true Franklin’s

allegations. See Whatley, 802 F.3d at 1209. If Franklin’s allegations in the

Response show a failure to exhaust, then dismissal would be appropriate. See

id.

The Court now turns to the allegations in the Motion and Response

concerning Franklin’s exhaustion efforts. Defendants assert that Franklin

failed to file informal or formal grievances at the institutional level regarding

the December 14th assault. Motion at 8. Instead, he filed a direct grievance

with the Office of the FDOC Secretary that it returned without action for

failure to comply with procedural requirements. Id. Therefore, they contend

that Franklin did not properly exhaust administrative remedies because he did

not comply with the FDOC’s grievance procedure. See id. at 8-9.

13

Franklin responds that he filed “a formal grievance #22-6-14227 which

was returned without action.” Response at 3. He subsequently filed an appeal

to the Office of the FDOC Secretary “in institution mailing log number

#22052050908 . . . which was also denied.” Id. According to Franklin, he

properly exhausted administrative remedies because he timely presented the

issues to the FDOC before commencing suit. Id. at 6. Accepting Franklin’s view

of the facts as true, the Court cannot dismiss the AC at the first step of the

Turner analysis.

5. Turner Step Two

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

Motion and Response, the Court next turns to the second prong of the Turner

analysis. Franklin asserts that he filed a formal grievance and appealed the

result of the formal grievance to the Office of the FDOC Secretary. Response

at 3. He cites the mailing log number of the appeal and the number of the

formal grievance. Id. at 3, 6. It appears that Franklin has misapprehended the

grievance process. He refers to his “formal grievance #22-6-14277 which was

returned without action.” Id. at 6. Yet, the record demonstrates the direct

grievance that the Office of the FDOC Secretary returned without action has

a log number identical to the number of the “formal grievance” that Franklin

14

alleges he filed. Docs. 26-1 at 4; 26-2 at 4-5. Similarly, Franklin contends he

filed an appeal of the formal grievance “in institution mailing log number

#22052050908.” Response at 3. However, Franklin’s direct grievance includes

the same institutional mailing log number. Doc. 26-2 at 5. As such, the Court

finds Franklin’s Response refers to the direct grievance and response attached

to the Defendants’ Motion.

Based on the record, Franklin failed to properly exhaust his

administrative remedies because he did not comply with the FDOC’s grievance

procedure. While he submitted a direct grievance about the assault, the Office

of the FDOC Secretary returned it without action because he did not include

his formal grievance as required nor did he provide a valid reason for bypassing

previous levels of review. Doc. 26-2 at 4; see Fla. Admin. Code R. 33-

103.014(1)(f)-(g). “Proper exhaustion demands compliance with an agency’s

deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90.

Therefore, Franklin did not properly exhaust his administrative remedies

because his grievance about the incident failed to comply with FDOC

procedural requirements.

15

Even assuming the informal grievances filed at Hamilton CI and FSP

concerned the assault,6 Franklin still would not have properly exhausted his

administrative remedies because he did not file a formal grievance or appeal.

Doc. 26-1 at 3. In failing to do so, he did not complete the requisite steps to

exhaust as determined by state law. See Dimanche, 783 F.3d at 1211

(recognizing that the FDOC uses a three-step process for inmate grievances

that includes an informal grievance, formal grievance, and appeal).

In addition, Franklin argues that since the filing of the direct grievance

on May 9, 2022, he has filed additional grievances regarding the incident.

Response at 6. However, “an inmate alleging harm suffered from prison

conditions must file a grievance and exhaust the remedies available under that

procedure before pursuing a § 1983 lawsuit.” Brown v. Sikes, 212 F.3d 1205,

1207 (11th Cir. 2000) (emphasis added). Franklin filed his Complaint on May

9, 2022. Complaint at 1; see Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir.

1993) (applying the mailbox rule to a pro se prisoner’s § 1983 complaint).

Accordingly, any grievances filed after that date are not pertinent to the

Court’s determination of whether Franklin satisfied the PLRA’s exhaustion

6 Neither the Defendants’ Motion nor their exhibits clarify whether Franklin

filed the informal grievances about the assault. See generally Motion; Docs. 26-1

through 26-2.

16

requirement. See Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012) (“The

only facts pertinent to determining whether a prisoner has satisfied the

PLRA’s exhaustion requirement are those that existed when he filed his

original complaint.”). As such, Defendants’ Motion to Dismiss is due to be

granted based upon the contention that Franklin failed to exhaust

administrative remedies.

B. Defendants’ Remaining Arguments

Because Franklin’s claims against Defendants are due to be dismissed

for failure to satisfy the PLRA’s exhaustion requirement, the Court need not

address Defendants’ arguments that Franklin fails to state a due process claim

upon which relief can be granted, he cannot recover monetary damages under

42 U.S.C. § 1997e(e) for his due process claim, and the Eleventh Amendment

entitles Defendants to immunity. Therefore, as to these issues, the Motion is

due to be denied without prejudice.

Accordingly, it is now

ORDERED:

1. Defendants Robert W. Nicholson, Jackie Morgan, and Christopher

J. Adams’ Motion to Dismiss (Doc. 26) is GRANTED to the extent Defendants

17

seek dismissal for Franklin’s failure to exhaust his administrative remedies.

In all other respects, the Motion is denied without prejudice.

2. Plaintiff Joshua D. Franklin’s Amended Complaint (Doc. 15) is

DISMISSED WITHOUT PREJUDICE.

3. 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 5th day of

July, 2023.

United States District Judge

Jax-9 6/20

C: Joshua D. Franklin, #Q22579

Counsel of record

18