Buckman v. Winningham

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANTONIO L. BUCKMAN,

Plaintiff,

v. Case No. 3:22-cv-903-MMH-PDB

SGT. ANDREW WINNINGHAM,

Defendant.

________________________________

ORDER

I. Status

Plaintiff Antonio L. Buckman, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on August 15, 2022,

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

U.S.C. § 1983. In the Complaint, Buckman names Sergeant Andrew

Winningham as the sole Defendant. He alleges that Sergeant Winningham

acted with deliberate indifference in violation of the Eighth Amendment when

he failed to provide Buckman with mental health services on May 10, 2022.

See Complaint at 7-8. Buckman requests declaratory relief and monetary

damages. Id. at 14.

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.

This matter is before the Court on Defendant’s Motion to Dismiss

(Motion; Doc. 11). In support of the Motion, Defendant has submitted exhibits.

See Doc. 11-1. Buckman filed a response in opposition to the Motion. See

Plaintiff’s Response to Defendant’s Motion to Dismiss (Response; Doc. 12).

Defendant filed a Reply (Doc. 15) with exhibits, see Doc. 15-1. And, Buckman

filed a Surreply (Doc. 16) with exhibits, see Doc. 16-1. Thus, the Motion is ripe

for review.

II. Plaintiff’s Allegations2

Buckman alleges that Sergeant Winningham acted with deliberate

indifference in violation of the Eighth Amendment by denying Buckman access

to mental health services after he declared a “psychological emergency” at

Florida State Prison (FSP). Complaint at 8, 10. Specifically, he asserts that on

May 10, 2022, at approximately 12:45 p.m., he “declared a psychological

emergency through S[ergeant] Winningham.” Id. at 7. Buckman advised

Sergeant Winningham that he was experiencing “psychological issues such as

2 In considering Defendant’s Motion, the Court must accept all factual

allegations in the Complaint as true, consider the allegations in the light most

favorable to Buckman, 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 Complaint, and may well differ from those that ultimately can be

proved.

2

distress due to the environment and stress that was being brought upon [him]”;

however, Sergeant Winningham refused to contact “mental health.” Id. at 7,

10. According to Buckman, he showed Sergeant Winningham a piece of metal

from a battery and stated that he would cut himself if Sergeant Winningham

did not contact mental health. Id. Sergeant Winningham then walked away

from the cell door. Id. Buckman then started to yell that he had a psychological

emergency, but Sergeant Winningham told him to stop yelling and acting

disorderly. Id. Buckman again advised Sergeant Winningham that he had a

psychological emergency and would cut himself. Id. Sergeant Winningham

responded by saying that he did not care. Id.

According to Buckman, every fifteen minutes for the next hour, he

informed Sergeant Winningham of his psychological emergency and

threatened to harm himself. Id. at 11. At approximately 2:00 p.m., Buckman

showed Sergeant Winningham two cuts that he made to his left forearm. Id.

Sergeant Winningham asked, “why [are] you doing that when you [are] moving

today.” Id. Buckman again informed Sergeant Winningham that he had a

psychological emergency. Id. However, Sergeant Winningham refused to

contact mental health and stated that Buckman could continue to cut himself.

Id.

3

Buckman asserts that at approximately 2:10 p.m., he started to bang on

his cell door and scream that he had a psychological emergency. Id. Sergeant

Winningham told Buckman to stop banging on the cell door. Id. Buckman then

cut his left forearm in front of Sergeant Winningham, who laughed and stated,

“cut off your wrist for all I care.” Id. at 11-12. According to Buckman, he made

a total of seven cuts to his left forearm. Id. at 12. Buckman further avers that

he had visited a mental health counselor “that morning about his distress and

thoughts to self-harm.” Id. at 13.

III. Summary of the Arguments

In the Motion, Defendant argues that the Court should dismiss the claim

against him because: (1) Buckman failed to properly exhaust his

administrative remedies, and (2) he cannot obtain declaratory relief for past

actions. Motion at 4-10. Buckman responds that the Court should not dismiss

the claim because he did exhaust his administrative remedies. Response at 3-

6.

IV. Exhaustion of Administrative Remedies

A. 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

4

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)3 (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 Buckman, however, is not required to plead

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

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.”).

5

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,[4] 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

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

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

6

(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, Defendant bears “the burden of proving that [Buckman] 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

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

7

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).

In evaluating whether Buckman 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).

B. 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

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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.

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

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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

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).

C. The Parties’ Positions Regarding Exhaustion

Defendant argues that Buckman failed to properly exhaust his

administrative remedies. Motion at 4. According to Defendant, Buckman did

not file any informal or formal grievances about the denial of mental health

10

services, “instead moving straight to the grievance appeal stage which resulted

in his grievance appeal being properly returned without action as not in

compliance with the inmate grievance procedure.” Id. at 9. Defendant attaches

to the Motion the grievance appeal that Buckman submitted on June 6, 2022:

Grievant is proceeding to the next step, whereas

grievant has filed three different grievances at the

institutional level, yet his grievances are being thrown

away by Ms. Thompson the grievance coordinator and

the time has expired for a response. Such is in

accordance with Ch. 33-103.

STATEMENT OF FACTS

On May 10, 2022, while housed on D-wing at

approximately 12:00pm – 1:00pm[,] I declared a

psychological emergency through Sgt. A. Winningham

due to the fact that I was experiencing distress. I

informed the said officer I was thinking about self-

harming myself and need to talk to someone [and] be

moved to another wing. Sgt. Winningham said he was

not going to assist me with my psychological

emergency so I may as well cut. Sgt. Winningham then

left my cell door at that time[.] I repeatedly stated

under the cell door loud and clear that I had a psych-

emergency and was gonna cut. The said officer stated

get off the cell door being disorderly. At that time I

self-inflicted one cut to my left forearm and yelled

under the cell door so that the wing audio could hear

that I cut and had a psychological emergency and that

Sgt. Winningham was denying me such. Sgt.

Winningham then approached my cell door and said[,]

where I don’t see nothing[.] I then showed him the cut

and threat[ened] to inflict more if he didn’t call for

assistance. He said he was not calling mental health

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but the l[ieutenant] to have me put on camera and

chemical agents used against me. I was den[ied]

mental health assistance for 2½ hours. Denied medical

after cutting myself several time[s]. I was seen by

medical days later on 5-16-22 or 5-17-22. Medical lied

and said date of injury [is] unknown when I told them

the date [and] time. I seek that D-wing audio [and]

wing video of 2nd floor be p[r]eserved for litigation

purposes starting at 12:30pm – 3:30pm on 5-10-22.

Doc. 11-1 at 3. On June 15, 2022, the 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.

Our records reflect that all grievances received from

you by FSP involving complaints against staff have

been responded to and returned to you.

Based on the foregoing information, your appeal is

returned without action.

Id. at 4.

In response to Defendant’s argument, Buckman contends that he filed

two formal grievances at the institutional level on May 11, 2022 and May 19,

2022, respectively; however, they were “thrown away.” Response at 5. When

Buckman did not receive “any receipts” for his formal grievances, he submitted

12

an appeal to the Secretary. Id. According to Buckman, he properly complied

with Rule 33-103.011(4), which provides that when the time limit for

responding to grievances has expired, the grievant may proceed to the next

step of the process. Id.

Defendant replies that Buckman’s “self-serving, unsupported” allegation

about the destruction of his grievances “lacks credibility.” Reply at 9. According

to Defendant, Buckman filed numerous grievances at FSP, all of which

received responses. Id. Defendant argues that the grievance coordinator “never

interfered with [Buckman’s] grievance process,” id. at 8, nor could she have

interfered with the process “as the system is a closed loop,” id. at 10.

Defendant attaches to his Reply declarations and records regarding

Buckman’s exhaustion efforts. See Doc. 15-1. Defendant provides reports of the

informal grievances, formal grievances, and grievance appeals that Buckman

submitted between May 1, 2022 and August 18, 2022. Doc. 15-1 at 1, 14, 26-

27. The reports demonstrate that Buckman submitted twelve informal

grievances, five formal grievances, and five grievance appeals during that time

frame. Id. Defendant also attaches as exhibits copies of the grievances, appeals,

and responses. Id. at 2-13, 15-25, 28-38.

Defendant submits the declaration of Alan McManus, the bureau chief

13

of the FDOC Office of Policy Management and Inmate Appeals. Id. at 39.

McManus avers that after a review of the available records in FDOC’s Central

Office, he has determined “that there was no hindrance impeding Inmate

Buckman’s utilization of the grievance procedure at any level; informal, formal,

or appeal. All grievances that Inmate Buckman submitted were responded to

and returned to him per Rule 33-103.001.” Id. As to Buckman’s allegation that

the grievance coordinator destroyed his grievances, McManus states that Rule

33-103.006(3) allows an inmate to bypass the informal-grievance stage and file

a grievance of reprisal in a sealed envelope with the reviewing authority. Id.

at 39-40. According to McManus, the record does not demonstrate that

Buckman filed a grievance of reprisal “regarding allegations of staff

misconduct.” Id. at 40.

In her declaration, Amanda McGregor, grievance coordinator at FSP,

avers that she reviewed the grievance process for inmates in confinement and

close management. Id. at 42. She explains that the mail room staff carry the

grievance box through the confinement and close management housing areas,

which “are recorded with video and audio recording.” Id. “The box is enclosed

and locked with a slot large enough to place a grievance inside.” Id. McGregor

states that the inmate will hold his grievance through the flap or up to the

14

window when mail room staff bring the grievance box to his cell. Id. The inmate

either places the grievance into the box or the mail room staff will place it into

the box “in view of the inmate.” Id. According to McGregor, the grievance

coordinator is the only person with a key to the grievance box. Id. Once the

grievance coordinator receives the box, she unlocks it, removes the grievances,

logs them, and sends them to the appropriate respondents. Id. McGregor avers

that she has neither destroyed inmate grievances nor known of a staff member

who destroyed inmate grievances. Id.

In his Surreply, Buckman argues that “the nature of his complaint” did

not require him to file an informal grievance. Surreply at 4. Instead, he filed

two formal grievances and “receiving no return receipts in two (2) days[,] [he]

knew that his complaints were thrown away by the grievance coordinator Ms.

McGregor.” Id. Buckman argues that he then proceeded to the next step of the

grievance process in compliance with Rule 33-103.011(4). Id. According to

Buckman, he “is not implying that the grievance process at ‘FSP’ was

unavailable,” only that McGregor destroyed two formal grievances. Id. at 6. He

maintains that “if she didn’t destroy the grievance as she alleged in her

affidavit, ‘then who destroyed the grievance is the big question for the jury.’”

Id.

15

Buckman attaches as an exhibit a previous grievance appeal he

submitted that he contends “establishes a pattern of destroying inmate’s

complaints by Ms. McGregor.” Surreply at 7. The grievance appeal, submitted

on February 15, 2023, states in relevant part:

This is a complaint to central office. Grievant is by-

passing the institutional level due to the fact that

Grievant has provided the institution with ample

[amount] of time to respon[d] to his complaint that was

submitted between 12-13-22 [and] 12-18-22

concerning Sgt. Neagu’s deliberate indifference to

Grievant’s mental health needs[,] where Grievant was

denied his psychological emergency from

approximately 12:00pm – 4:00pm on 12-12-22 in which

Grievant verbally informed Sgt. Neagu out loud that if

he continues to deny Grievant his mental health

assistance, he was going to self-harm himself by

cutting his wrist. Sgt. Neagu stated he didn’t care and

wasn’t going to call for no assistance. About 30

minutes later Grievant cut his wrist three (3) x’s then

showed them to the said sergeant in which he just

looked and said[,] so. At that time Grievant again

stated out loud that he had cut and was seeking a

psychological emergency. Sgt. Neagu continued to

deny Grievant assistance in which Grievant cut four

more times to equal seven lacerations. Thereafter,

Nurse Miller conducted her rounds in issuing meds[.]

I informed her that I had declared a psychological

emergency and was denied so I cut. She stated she

would send a nurse down to see me. No nurse came on

12-13-22. I showed Ms. Miller again, with no results.

[T]o be seen by medical on 12-14-22[,] I submitted a

sick call to have my injuries reported and documented

by Nurse S. Mally. It shall be noted Grievant

submitted two separate grievances on different days

16

concerning this issue such was between 12-13-22 – 12-

16-22 and the second being on Dec. 20, 2022[.] No

receipt was ever mailed to me. I have followed the

rules and initiated informal grievances inquiring

about this specific grievance with no results[.] I feel

that my complaints w[ere] thrown away[.] I further

seek that the institution preserve the audio [and]

video of H-wing first floor 1100 side between 10:30am

– 4:00pm on 12-12-22.

Doc. 16-1 at 2. On February 28, 2023, the 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.

Our records reflect that all grievances received from

you involving complaints against staff have been

responded to and returned to you.

Based on the foregoing information, your appeal is

returned without action.

Id. at 1.

D. 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 Buckman’s

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

17

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

id.

The Court now turns to the allegations in the parties’ respective filings

concerning Buckman’s exhaustion efforts. Defendant asserts that Buckman

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

the denial of mental health services. Motion at 9. Instead, he filed a grievance

appeal with the Secretary that it returned without action for failure to comply

with procedural requirements. Id. Therefore, Defendant contends that

Buckman did not properly exhaust his administrative remedies because he

failed to comply with the FDOC’s grievance procedure. See id.

Buckman responds that he filed two formal grievances, on May 11, 2022

and May 19, 2022. Response at 5. He contends that these grievances were

“thrown away,” and he never received responses to them. Id. According to

Buckman, he then proceeded to the next step of the grievance process in

accordance with Rule 33-103.011(4). Id. Buckman argues that in his grievance

appeal, he provided a valid explanation for bypassing the institutional step of

the grievance process. Id. Accepting Buckman’s view of the facts as true, the

Court cannot dismiss the Complaint at the first step of the Turner analysis.

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E. Turner Step Two

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

Motion, Response, Reply, and Surreply, the Court next turns to the second

prong of the Turner analysis. The parties primarily dispute whether Buckman

filed two formal grievances on May 11, 2022, and May 19, 2022, about the

denial of mental health services. See Response at 5; Reply at 13. Buckman

contends that he submitted grievances on these dates; however, he maintains

that McGregor destroyed them.5 Response at 5; Surreply at 6. Defendant

asserts that Buckman did not file any relevant grievances at the institutional

level. Motion at 9; Reply at 7.

The Court finds that Defendant has met his burden of establishing that

Buckman failed to properly exhaust his administrative remedies. The

grievance records submitted by Defendant demonstrate that Buckman did not

file any formal grievances on May 11th and May 19th or any grievances at the

institutional level about the denial of mental health services alleged in the

Complaint. Doc. 15-1 at 14-25. Although Buckman contends McGregor

5 Buckman does not dispute that McGregor was the grievance coordinator

when he allegedly filed the formal grievances despite referring to the grievance

coordinator as “Ms. Thompson” in the Complaint and relevant grievance appeal.

Complaint at 12; Doc. 11-1 at 3. Instead, in the Surreply, he specifically alleges that

McGregor destroyed his grievances. Surreply at 6.

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destroyed the May 11th and May 19th grievances, his assertion is unavailing.

Buckman neither summarizes the contents of the formal grievances that he

allegedly submitted on those dates, nor does he say how he submitted them or

why, beyond mere speculation, he believes they were destroyed.

Reliable evidence supports the conclusion that Buckman never

submitted any relevant grievances about the May 10, 2022 incident at the

institutional level. Between May 1, 2022 and August 18, 2022, Buckman filed

approximately seventeen grievances at the institutional level. Doc. 15-1 at 1-

25. All of these grievances produced responses. Id. Buckman’s history of filing

grievances, by itself, is “evidence that the defendants did not make

administrative remedies unavailable to him or . . . destroy his grievances.”

Whatley v. Smith, 898 F.3d 1072, 1083 (11th Cir. 2018). Further, as

established by McGregor’s sworn declaration, a grievance system was in place

at FSP at the relevant time. Doc. 15-1 at 42. McGregor avers that she has never

destroyed grievances or witnessed other staff members destroy grievances. Id.

at 42. Although Buckman attaches a grievance to his Surreply that he

submitted on February 23, 2023, wherein he writes that his informal and

formal grievances “w[ere] thrown away,” Doc. 16-1 at 2, his self-serving,

20

unsupported statement by itself fails to establish that McGregor destroyed

grievances, Doc. 15-1 at 1-25.

Buckman also does not offer a convincing explanation as to why

McGregor would destroy the May 11th and May 19th formal grievances but

would allow all of his other grievances to proceed. According to Buckman,

McGregor destroys grievances “to protect her fellow officer[]s when the

complaint is serious.” Surreply at 7. However, Buckman filed an arguably

equally serious formal grievance on July 22, 2022, about correctional officers’

excessive use of force, during which he sustained “nerve damage in the hands

[and] wrists of both arms, lacerations to both wrist[s] [and] back injury.” Doc.

15-1 at 22. Officials responded on July 26, 2022 that his allegations of staff

misconduct were “documented and reported for appropriate review and

disposition.” Id. at 23. As such, the record belies Buckman’s statement that

McGregor or others threw away grievances perceived to be serious.

Considering the pleadings and the record evidence, the Court credits

Defendant’s affidavits and exhibits over Buckman’s assertions and exhibit.

Buckman submitted an appeal grievance about the May 10, 2022 denial of

mental health services, which the Secretary returned without action because

Buckman did not attach his formal grievance as required or provide a valid

21

reason for bypassing previous levels of review. Doc. 11-1 at 4; see Fla. Admin.

Code R. 33-103.014(1)(f)-(g). The Court finds that Buckman did not file formal

grievances on either May 11, 2022, or May 19, 2022, nor did he file any informal

or formal grievances about the denial of mental health services between May

10, 2022, and the filing of the Complaint. As such, he bypassed the institutional

level of review, and in doing so, failed to comply with the FDOC’s grievance

process. 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).6 The Court further finds that McGregor did not

destroy the alleged May 11th and May 19th grievances, and Buckman had

available administrative remedies. Therefore, he did not provide a valid reason

for bypassing the previous levels of review as determined by the Office of the

FDOC Secretary. See Doc. 11-1 at 3 (“Grievant is proceeding to the next step,

whereas grievant has filed three different grievances at the institutional level,

yet his grievances are being thrown away by Ms. Thompson the grievance

coordinator and the time has expired for a response.”); Fla. Admin. Code R. 33-

6 An inmate can bypass the informal grievance stage and start with a formal

grievance at the institutional level when he files a medical grievance. See Fla. Admin.

Code R. 33-103.006(3)(e). The Court presumes a grievance concerning the denial of

mental health services would qualify as a medical grievance, and Buckman could

bypass the informal grievance stage. However, Buckman does not argue that he

bypassed the institutional level by filing a direct medical grievance.

22

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

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

Accordingly, Buckman did not properly exhaust his administrative remedies

because he failed to comply with the FDOC’s grievance procedure.

Lastly, to the extent Buckman requests an evidentiary hearing, the

Court will not conduct a hearing. See Surreply at 1 (“The Plaintiff . . . hereby

moves this Honorable Court for an order denying the Defendant’s Motion to

Dismiss, but in the alternative grant his request for an evidentiary hearing.”).7

Both parties filed written arguments regarding the exhaustion issue, and they

have had ample opportunity to file affidavits and exhibits in support of their

positions. Buckman fails to explain why these proceedings did not provide him

a sufficient opportunity to present his evidence or offer any reason to suggest

that he would have additional evidence bearing on exhaustion to present at a

hearing. In other words, he has not made “an explicit request for the district

court to gather a key document from the defendant[] and perform a specific

evidentiary hearing. . . .” McIlwain v. Burnside, 830 F. App’x 606, 611 (11th

Cir. 2020). Accordingly, the Court finds Buckman had available administrative

7 A request for affirmative relief, such as an evidentiary hearing, is not

properly before the Court when it is simply imbedded in a response to a motion, or as

in this case, in a surreply.

23

remedies, and he failed to properly exhaust the claim against Sergeant

Winningham. Based on the above, the Motion is due to be granted on that

basis.

Accordingly, it is now

ORDERED:

1. Defendant Sergeant Andrew Winningham’s Motion to Dismiss

(Doe. 11)is GRANTED to the extent Defendant seeks dismissal for Buckman’s

failure to exhaust his administrative remedies. In all other respects, the

Motion is denied without prejudice.

2. Plaintiff Antonio L. Buckman’s Complaint (Doc. 1) 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 lst day of

August, 2023.

United States District Judge

8 Because the claims against Defendant are due to be dismissed for failure to

exhaust, the Court need not address Defendant’s remaining argument.

24

Jax-9 7/31

c: Antonio L. Buckman, #Q09285

Counsel of record

25