# D'Alessandro v. Emanoilidis

> District Court, M.D. Florida · August 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10113728

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10113728

## How later opinions describe it (automated extraction)

- recognizing that the FDOC uses a three-step process for inmate grievances that includes an informal grievance, formal grievance, and appeal
- explaining that defendants bear the burden of showing a failure to exhaust
- affirming sua sponte dismissal for failure to exhaust when a federal inmate submitted a written complaint and appealed the decision, but filed his lawsuit before he received the final decision on his appeal
- stating that “it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JOSEPH L. D’ALESSANDRO, III,

Plaintiff,

v. Case No. 3:22-cv-807-MMH-PDB

G. EMANOILIDIS, et al.,

Defendants.
________________________________

ORDER
I. Status
Plaintiff Joseph L. D’Alessandro, III, an inmate in the custody of the
Florida Department of Corrections (FDOC), initiated this action on July 11,
2022, by filing a pro se Complaint for Violation of Civil Rights (Complaint; Doc.
1)1 pursuant to 42 U.S.C. § 1983. In the Complaint, D’Alessandro names as
Defendants: (1) G. Emanoilidis, Mental Health Director of Florida State Prison
(FSP); (2) Smith, Counselor at FSP; (3) M. Collins, ARNP at FSP; and (4)
Carrie Connell, RN at FSP. He alleges that Defendants acted with deliberate
indifference to his serious medical needs in violation of the Eighth

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.
Amendment. Complaint at 3. As relief, D’Alessandro requests monetary
damages. Id. at 5, 8.

This matter is before the Court on Emanoilidis, Collins, and Smith’s
Motion to Dismiss (Smith Motion; Doc. 17) and Connell’s Motion to Dismiss
(Connell Motion; Doc. 33). D’Alessandro filed responses in opposition to the
Motions. See Smith Response (Doc. 19); Connell Response (Doc. 36). Thus, the

Motions are ripe for review.
II. Plaintiff’s Allegations2
D’Alessandro alleges that on May 27, 2022, correctional officers escorted
him from K-wing to medical after he cut his left arm. Complaint at 5. Medical

treated his wound, and officers placed him in a holding cell. Id. D’Alessandro
advised Smith that he was suicidal and would continue to cut himself. Id.
Smith stated that he would notify Emanoilidis, but Smith would not place
D’Alessandro on self-harm observation status (SHOS). Id. D’Alessandro

advised Emanoilidis of the same. Id. According to D’Alessandro, he “was told

2 In considering Defendants’ Motions, the Court must accept all factual
allegations in the Complaint as true, consider the allegations in the light most
favorable to D’Alessandro, 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
to cut [him]self, and [Emanoilidis] wasn’t going to provide any treatment for
[his] suicidal and psychological problems.” Id.

D’Alessandro asserts that officers then escorted him to C-wing. Id. at 5-
6. “In [the] hall going to C-wing, [he] had another psychotic episode, as a
flashback of a prior situation that occurred in C-wing. . . .” Id. at 6.
D’Alessandro declared another psychological emergency for suicidal feelings

and hallucinations. Id. He fell to the floor, and officers used “necessary force”
to move him inside his cell, remove his hand restraints, and lock the cell door.
Id. According to D’Alessandro, he informed the officers of his suicidal ideations
while a “handheld audio/video camera” monitored the cell. Id. D’Alessandro

states that Emanoilidis arrived at his cell and observed him cutting his arm.
Id. Nevertheless, Emanoilidis ignored him and walked away. Id. D’Alessandro
continued to cut his arm and lost consciousness. Id. He awoke to officers
placing him in restraints, after which they transported him to medical. Id. At

medical, Collins applied lidocaine to D’Alessandro’s arm and stitched the
wound. Id. D’Alessandro contends that Collins and Connell failed to clean or
disinfect the wound before stitching it. Id. He “was [] placed on [SHOS].” Id.
After approximately twenty-four hours, D’Alessandro’s left arm began to

swell and ooze puss. Id. at 7. On May 30, 2022, he notified Emanoilidis that he
3
had an infection. Id. According to D’Alessandro, Emanoilidis called Collins,
who prescribed antibiotics to treat the infection. Id. D’Alessandro also informed

Emanoilidis that he felt suicidal, but Emanoilidis discharged D’Alessandro
from SHOS. Id. An “unknown mental health professional” counseled
D’Alessandro and told him that he “was to have individual
therapy/counsel[l]ing once a week.” Id. D’Alessandro asserts that he has visited

the mental health professional on only two occasions. Id. He concludes
Emanoilidis canceled his remaining appointments and discontinued his
medications. Id.
Based on the above, D’Alessandro seemingly alleges that Emanoilidis

and Smith acted with deliberate indifference to his serious medical needs when
they failed to prevent D’Alessandro from cutting his arm. See id. at 3, 5. He
also asserts that Collins and Connell acted with deliberate indifference to his
serious medical needs when they failed to disinfect his wound. See id.

III. Summary of the Arguments
In the Motions, Defendants argue that the Court should dismiss the
claims against them because D’Alessandro failed to properly exhaust his
administrative remedies, and he fails to state a claim upon which relief can be

granted. Smith Motion at 4-10; Connell Motion at 1-2. D’Alessandro responds
4
that the Court should not dismiss the claims because he exhausted his
administrative remedies, and he alleges sufficient facts to state a deliberate

indifference claim against Defendants. Smith Response at 3-7; Connell
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
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.

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
516, 524 (2002). A prisoner such as D’Alessandro, 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 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).

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

6
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
(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 [D’Alessandro] 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
7
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
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 D’Alessandro 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).
8
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
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.
9
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
10
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
In the Complaint, D’Alessandro asserts that he filed grievances about
the pertinent events at FSP. Complaint at 10. He specifically avers:

I filed both informal and formal grievances at the
[i]nstitutional level[] to no avail . . . . I am in the
process of having formal grievance submitted to the
Secretary[] FDC.

Id. D’Alessandro maintains that he never received responses to his informal
and formal grievances, see id., and grievances “submitted by any and all close
management inmates at [FSP] are not being turned into the grievance
coordinators if the[y] allege any complaints of prison staff misconduct,” id. at
11.
In the Smith Motion, Defendants argue that the Complaint on its face
demonstrates D’Alessandro did not to complete the grievance procedure before
11
he filed this case. Smith Motion at 4.5 By his own admission, D’Alessandro “is
still working through the formal grievance procedure. . . .” Id. at 5. As such,

they contend that the Court should dismiss the Complaint without prejudice
because D’Alessandro failed to exhaust his administrative remedies. Id.
D’Alessandro responds that he exhausted his administrative remedies.
Smith Response at 3; Connell Response at 3. According to D’Alessandro, he

filed informal and formal grievances “to the Warden’s office at Florida State
Prison,” but he never received responses. Smith Response at 3; Connell
Response at 3-4. In response to the Smith Motion, D’Alessandro states that he
“then proceeded [to] the filing of his complaint at bar and at the same time he

proceeded to submit a[] formal appeal grievance to the Secretary of FDC at the
central office level. . . .” Id. (emphasis added). However, in response to the
Connell Motion, he asserts that he “then proceeded with the filing of his
complaint at bar. But before doing so he did submit another formal grievance

to the Secretary of FDC at the central office level. . . .” Connell Response at 4
(emphasis added).

5 Connell incorporates by reference the failure to exhaust argument in the
Smith Motion. Connell Motion at 1. Therefore, the Court will cite only to the Smith
Motion for purposes of its exhaustion analysis.
12
D. Turner Step One
Under the first step of the Turner analysis, the Court must review the

allegations in the Motions and Responses and accept as true D’Alessandro’s
allegations. See Whatley, 802 F.3d at 1209. If D’Alessandro’s allegations in the
Responses show a failure to exhaust, then dismissal would be appropriate. See
id.

Defendants assert that, as D’Alessandro alleges in the Complaint, he
filed informal and formal grievances; however, he has not completed the
grievance procedure because he “is ‘in the process of having formal grievance
submitted to the secretary FDC.’” Smith Motion at 5 (quoting Complaint at

10). D’Alessandro responds that he has exhausted his administrative remedies
because he submitted a grievance appeal to the Secretary when he filed the
Complaint. Smith Response at 3; Connell Response at 4.
Accepting D’Alessandro’s view of the facts as true, the Complaint is

subject to dismissal at the first step of the Turner analysis. “[A]n 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). This is because the inmate must afford the agency a “fair and full
13
opportunity” to address his issues on the merits before he seeks judicial
intervention. Woodford, 548 U.S. at 90. Here, D’Alessandro alleges that he

submitted a grievance appeal when he filed the Complaint on July 11, 2020.
He neither waited for the Secretary to respond to his grievance appeal nor for
the expiration of the thirty-day response time before filing this lawsuit. 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). Therefore, the Complaint is
due to be dismissed because D’Alessandro failed to exhaust his administrative

remedies. See Okpala v. Drew, 248 F. App’x 72, 73 (11th Cir. 2007) (affirming
sua sponte dismissal for failure to exhaust when a federal inmate submitted a
written complaint and appealed the decision, but filed his lawsuit before he
received the final decision on his appeal).

Even if D’Alessandro filed the grievance appeal before filing the
Complaint, see Connell Response at 4 (“Plaintiff then proceeded with the filing
of his complaint at bar. But before doing so he did submit another formal
grievance to the Secretary of FDC at the central office level, after receiving no

responses at the institutional levels. . . .”), he still failed to complete the
14
grievance process and, thus, did not properly exhaust his administrative
remedies. In the Complaint and Responses, D’Alessandro alleges that he never

received responses to his grievances. Complaint at 10; Smith Response at 3;
Connell Response at 4. Because an inmate may only proceed to the next step
of the grievance process (or pursue a civil action) upon expiration of the time
limit to respond at the preceding step, D’Alessandro was required to wait a

minimum of fifty days before filing a civil rights complaint regarding
Defendants’ deliberate indifference: twenty days from the filing of the formal
grievance and thirty days from the filing of the grievance appeal.6 See Fla.
Admin. Code R. 33-103.011(4) (stating “expiration of a time limit at any step

in the process shall entitle the complainant to proceed to the next step of the
grievance process”). The length of time between May 27, 2022,7 and July 11,
2022, however, is forty-five days. Thus, even if he filed a formal grievance and
appeal, but did not receive responses, he could not have completed the FDOC’s

grievance process before filing the Complaint. Accepting D’Alessandro’s view

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 D’Alessandro could
bypass the informal grievance stage.
7 While it appears some of the pertinent events occurred after May 27, 2022,
see Complaint at 5, the Court gives D’Alessandro the benefit of the earliest possible
date that he could have grieved the issue.
15
of the facts as true, he failed to exhaust his administrative remedies, and the
Court must dismiss the Complaint at the first step of the Turner analysis.
Therefore, the Defendants’ Motions are due to be granted on that basis.®
Accordingly, it is now
ORDERED:
1. Defendants Emanoilidis, Collins, Smith, and Connell’s Motions to
Dismiss (Does. 17, 33) are GRANTED to the extent Defendants seek dismissal
for D’Alessandro’s failure to exhaust his administrative remedies. In all other
respects, the Motions are denied without prejudice.
2. Plaintiff Joseph L. D’Alessandro’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 22nd day of
August, 2028.

MARCIA MORALES HOWARD
United States District Judge

8 Because the claims against Defendants are due to be dismissed for failure to
exhaust, the Court need not address Defendants’ remaining arguments.
16

Jax-9 8/18
c: Joseph L. D’Alessandro, III, #B08864
Counsel of record

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113728. Public record. Not legal advice.