Boggs v. Doe

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KENNETH BOGGS,

Plaintiff,

v. Case No. 3:22-cv-914-MMH-PDB

DOUGLAS JOHNSON,

JOHN GODWIN,

JOHN OR JANE DOE, et al.,

Defendants.

________________________________

ORDER

I. Status

Plaintiff Kenneth Boggs, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on July 26, 2022,1 by

filing a pro se Civil Rights Complaint (Complaint; Doc. 1)2 with exhibits (Doc.

1-1). In the Complaint, Boggs presents claims pursuant to 42 U.S.C. § 1983

against the following Defendants: Sergeant Douglas Johnson (Johnson);

Warden John Godwin (Godwin); and four John or Jane Does. Complaint at 2-

3. Boggs alleges Defendants failed to prevent three inmates from entering his

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 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.

cell and physically assaulting him. See id. at 6-10. As relief, Boggs seeks

monetary damages, as well as declaratory and injunctive relief. Id. at 11, 14.

This matter is before the Court on Defendants Johnson and Godwin’s

Motion to Dismiss Complaint with Prejudice (Motion; Doc. 15). Defendants

submitted exhibits in support of the Motion. See Docs. 15-1 through 15-2.

Boggs filed a response, which he amended, in opposition to the Motion.3 See

Response to Defendants’ Motion to Dismiss (Response; Doc. 22); Amended

Response to Defendants’ Motion to Dismiss (Amended Response; Doc. 20).

Thus, the Motion is ripe for review.

II. Boggs’ Allegations4

Boggs asserts three claims for relief in his Complaint. See generally

Complaint. Specifically, he alleges Defendants: (1) failed to prevent the

assault in violation of his Eighth Amendment right to be free from cruel and

3 On March 17, 2023, the Court ordered Boggs to show cause regarding his

failure to file a response to the Motion. See Doc. 18. In response, Boggs provided

documentation showing that he timely submitted his Response to prison officials for

mailing on January 31, 2023. See Doc. 19 at 1; Doc. 20-1. Because the Court had not

received the Response, Boggs proceeded to file the Amended Response. See Doc. 20.

The Court did ultimately receive the Response, but not until September 7, 2023, as

it appears to have been mailed to the wrong court. See Doc. 22. The Response and

Amended Response raise the same arguments. See generally Docs. 20 and 22.

Because the Court had not received the Response until after beginning work on

resolving the Motion, the Court cites primarily to the Amended Response.

4 In considering the Motion, the Court must accept all factual allegations in

the Complaint as true, consider the allegations in the light most favorable to Boggs,

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.

unusual punishment; (2) obstructed his right to file grievances in violation of

the First Amendment; and (3) failed to comply with FDOC rules and

regulations in violation of his Fourteenth Amendment right to due process.

Id. at 11-13.

As to the specific underlying facts supporting his claims, Boggs alleges

that on February 28, 2022, as inmates at Columbia Correctional Institution

(Columbia CI) returned to their assigned dormitories after breakfast, three

gang-affiliated inmates from F-dormitory entered the line of G-dormitory

inmates. See id. at 6. The three inmates proceeded to the G-dormitory wing

where Boggs was housed, gained access to his cell, and assaulted him. Id. at

6-7. Boggs alleges he sustained severe injuries, including several stab wounds

to his upper body. Id. According to Boggs, the inmates locked his cell after the

assault, and security staff did not check on him until two hours later, at

which point Boggs was transported to a local hospital for treatment. Id. at 7.

Boggs contends Defendant Johnson, the security officer assigned to G-

dormitory, acted with reckless disregard and callous indifference by failing to

follow FDOC policies and procedures in his oversight of G-dormitory. Id. at 8.

With regard to Defendant Godwin, he asserts that Godwin, warden of

Columbia CI, failed to maintain order and proper training for his subordinate

officers, and failed to safeguard inmate health and safety. Id. at 9. The four

John or Jane Doe Defendants consist of: (1) the Officer-in-Charge who

allowed the three inmates to enter the line of G-dormitory inmates; (2) the

“Security[9]-Nine Staff” who failed to monitor inmate movement and

maintain an accurate count of inmates returning to their assigned

dormitories; (3) the booth technician who granted access to the G-dormitory

wing and Boggs’ cell; and (4) the grievance coordinator at Columbia CI who

failed to log Boggs’ informal and formal grievances concerning the February

28, 2022 incident. Id. at 6-10. As a result of Defendants’ alleged actions,

Boggs states he has suffered permanent physical and mental injuries. Id. at

7.

III. Summary of Arguments

In the Motion, Defendants Johnson and Godwin argue the Court should

dismiss Boggs’ claims with prejudice because (1) Boggs failed to exhaust his

administrative remedies; (2) Boggs fails to state First Amendment, Eighth

Amendment, or Fourteenth Amendment claims upon which relief can be

granted; (3) Defendants are entitled to Eleventh Amendment immunity and

qualified immunity; (4) Defendant Godwin, as a supervisory official, is not

liable under 42 U.S.C. § 1983; and (5) Boggs is not entitled to the relief he

requests. See Motion at 4-32. Boggs responds that the Court should not

dismiss his claims because: (1) he exhausted his administrative remedies; (2)

he states plausible claims for relief; and (3) Defendants are not entitled to

qualified immunity. See Amended Response at 2-20.

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)5 (noting that exhaustion is a

“threshold matter” that must be addressed first) (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, 532 (2002). A

prisoner such as Boggs, 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

5 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.”).

“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,[6] 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,

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

1084 (11th Cir. 2008) (quoting Goebert v. Lee Cnty., 510 F.3d 1312, 1322-23

(11th Cir. 2007)). In Ross, the Supreme Court identified three circumstances

in which an administrative remedy would be considered “not available.” Ross,

578 U.S. at 643-44. First, “an administrative procedure is unavailable when

(despite what regulations or guidance materials may promise) it operates as

a simple dead end—with officers unable or consistently unwilling to provide

any relief to aggrieved inmates.” Id. at 643. Next, “an administrative scheme

might be so opaque that it becomes, practically speaking, incapable of use.”

Id. Finally, a remedy may be unavailable “when prison administrators thwart

inmates from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” Id. at 644.

Because failure to exhaust administrative remedies is an affirmative

defense, Defendants Johnson and Godwin bear “the burden of proving that

[Boggs] has failed to exhaust his available administrative remedies.” Turner,

541 F.3d 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 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, Boggs submitted grievance records with the Complaint. See Doc.

1-1 at 2-8. Likewise, Defendants Johnson and Godwin submitted grievance

records as exhibits to their Motion. See Docs. 15-1 through 15-2. The parties

neither dispute the accuracy of these grievance records, nor request an

evidentiary hearing. Bryant, 530 F.3d at 1377 n.16. Thus, the Court

considers the grievance records solely for purposes of addressing the parties’

competing contentions regarding exhaustion. In evaluating whether Boggs

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) (citations

omitted).

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. 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 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. Summary of Parties’ Positions on Exhaustion

Defendants Johnson and Godwin contend that Boggs’ claims against

them must be dismissed because Boggs failed to properly follow FDOC’s

three-step sequential grievance process before filing this lawsuit. See Motion

at 4-10. In support of this contention, they have provided a record of all

grievances Boggs submitted between January 1, 2022, and July 26, 2022. See

Docs. 15-1 through 15-2. Viewing the exhibits in chronological order, the

record consists of: (1) search results from FDOC’s Inmate Grievance database

for all grievances submitted by “Inmate Number” “292040” between January

1, 2022, and July 26, 2022; (2) a formal grievance Boggs submitted on April

12, 2022, with prison officials’ response; and (3) a grievance appeal Boggs

submitted on May 5, 2022, with prison officials’ response. Id. According to

Defendants Johnson and Godwin, this evidence shows Boggs did not submit

any informal grievances between February 28, 2022 (the date of the incident)

and July 26, 2022 (when Boggs filed this lawsuit). See Doc. 15 at 10 (citing

Doc. 15-1 at 1).

The grievance records provided by Defendants show that Boggs was

transferred from Columbia CI to Cross City Correctional Institution (Cross

City CI) after the incident. See Doc. 15-2 at 2-7. While housed at Cross City

CI, Boggs submitted a formal grievance regarding the incident on April 12,

2022. Id. at 2-3. In his formal grievance, in addition to describing the

February 28, 2022 incident, Boggs asserted that he previously submitted an

informal grievance about the matter on March 14, 2022, but received no

response. Id. at 2 (“Complainant filed at this stated level on date of: (03-14-

2022), stemming from incident occurring date of: (02-28-2022), that will be

documented below under the (Argument & Issues) section, which a timely

response wasn’t provided by expiration date of: (03-29-2022), which

Complainant then proceeded “TO THE NEXT STEP,” in accordance with not

receiving (Informal) timely . . . See, (FAC)33-103.005(4)(a), which his

(Formal) Grievance were filed, in accordance with . . . (FAC)33-103.006(2)(h)),

on date of: (03-29-2022), which he still haven’t received an response[.]”). On

April 14, 2022, Cross City CI denied the formal grievance, stating in

pertinent part:

Your Request for Administrative Remedy has been

received, reviewed and evaluated.

The subject of your grievance is currently being

reviewed by the investigative section of the Office of

the Inspector General. A copy of your complaint will

be forwarded to that section to be included as a part

of the current review. Upon completion of this review,

information will be provided to appropriate

administrators for final determination and handling.

After review of the grievance log there is no informal

or formal grievances submitted on 3/14/2022.

As this process was initiated prior to the receipt of

your grievance, your request for action by this office

is DENIED.

You may obtain further administrative review of your

complaint by obtaining form DC1-303, Request for

Administrative Remedy or Appeal, completing the

form, providing attachments as required by

paragraphs 33-103.007(3)(a) and (b), F.A.C., and

forwarding your complaint to the Bureau of Policy

Management and Inmate Appeals, 501 South

Calhoun Street, Tallahassee, Florida 32399-2500.

Id. at 4. Boggs appealed the denial of his formal grievance on May 5, 2022. Id.

at 5-6. On May 17, 2022, the FDOC Secretary provided the following

response:

Your appeal has been reviewed and evaluated. The

subject of your grievance was previously referred to

the Office of the Inspector General. It is the

responsibility of that office to determine the amount

and type of inquiry that will be conducted. This

inquiry/review may or may not include a personal

interview with you. Upon completion of this review,

information will be provided to appropriate

administrators for final determination and handling.

As this process was initiated prior to the receipt of

your appeal, your request for action by this office is

denied.

Id. at 7.

In response to the above evidence, Boggs avers that he submitted an

informal grievance, dated March 14, 2022, and a formal grievance, dated

March 29, 2022, at Columbia CI. See Amended Response at 4; see also

Complaint at 10. Boggs states that he did not receive a response to either

grievance because an “unidentified and unknown prison official (grievance

coordinator) attempted to thwart [Boggs’] actions by not logging” or

submitting the grievances. See Amended Response at 4, 9. According to

Boggs, officials at Columbia CI hindered his efforts and rendered the

grievance process unavailable to him. Id. at 9. Boggs asserts that he

nevertheless completed the three-step grievance process because he filed a

formal grievance and a grievance appeal after he was transferred to Cross

City CI. Id. Finally, Boggs appears to argue that the Office of the Inspector

General’s (OIG) ongoing investigation demonstrates proper exhaustion. Id. at

8-9.

3. Turner Step One

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

allegations in the Motion and Amended Response and accept as true Boggs’

allegations. See Whatley, 802 F.3d at 1209. If Boggs’ allegations show a

failure to exhaust, then dismissal would be appropriate. Id. But, Boggs

alleges that he timely submitted an informal grievance7 at Columbia CI on

March 14, 2022. See Amended Response at 4; see also Complaint at 10. And

he further alleges that he filed a formal grievance and grievance appeal at

Cross City CI. See Amended Response at 9; see also Docs. 15-1 through 15-2.

Accepting Boggs’ view of the facts as true, the Court cannot dismiss Boggs’

claims at the first step of the Turner analysis.

4. Turner Step Two

As dismissal would not be appropriate based on Boggs’ allegations in

the Complaint and Amended Response, the Court next turns to the second

prong of the Turner analysis. Here, the Court finds Boggs failed to properly

exhaust his administrative remedies because he did not comply with the

FDOC’s sequential three-step grievance process. See Dimanche, 783 F.3d at

1211 (recognizing that the FDOC uses a three-step sequential process for

inmate grievances that includes an informal grievance, formal grievance, and

appeal); Bryant, 530 F.3d at 1378 (“To exhaust administrative remedies in

accordance with the PLRA, prisoners must ‘properly take each step within

the administrative process.’”) (quoting Johnson v. Meadows, 418 F.3d 1152,

7 The Court notes that Boggs does not argue that he could have bypassed the

informal grievance step of the administrative process. See Fla. Admin. Code R. 33-

103.005(1); 33-103.006(3).

1158 (11th Cir. 2005)). The record before the Court contains no evidence

supporting Boggs’ assertion that he filed an informal grievance regarding the

February 28, 2022 incident. Instead, the search results from the FDOC’s

Inmate Grievance database show that Boggs did not submit any informal

grievances in 2022 before he filed this lawsuit. See Doc. 15-1 at 1. Although

Boggs counters that he timely submitted an informal grievance on March 14,

2022, he failed to submit a copy of the informal grievance with his Complaint

or Amended Response. Nor has Boggs provided specific details regarding the

informal grievance, such as its contents or the efforts Boggs undertook to

submit the informal grievance to Columbia CI prison officials. In addition,

Boggs has not identified any other evidence that would call into question the

search results from the FDOC’s Inmate Grievance database. As such, based

on the undisputed record evidence, the Court finds that Boggs did not file an

informal grievance. In failing to do so, Boggs did not complete the steps

required to exhaust as determined by state law. See Pavao v. Sims, 679 F.

App’x 819, 825 (11th Cir. 2017) (finding plaintiff’s efforts to exhaust were

insufficient because he failed to file an informal grievance and therefore, “did

not comply with the sequential three-step grievance procedure”).

To the extent that Boggs suggests any failure to exhaust should be

excused because the grievance process was unavailable to him, that

argument also fails. “While the burden is on the defendant to show an

available administrative remedy, once that burden has been met, the burden

of going forward shifts to the plaintiff, who, pursuant to Turner, must

demonstrate that the grievance procedure was ‘subjectively’ and ‘objectively’

unavailable to him.” Geter v. Baldwin State Prison, 974 F.3d 1348, 1356

(11th Cir. 2020) (citing Turner, 541 F.3d at 1085); id. at 1356 n.14 (“But once

the [prison official] has established that the inmate failed to resort to

administrative remedies, the onus falls on the inmate to show that such

remedies were unavailable to him.” (quoting Rinaldi v. United States, 904

F.3d 257, 268 (3d Cir. 2018))). Here, Boggs asserts grievance officials at

Columbia CI thwarted his grievance efforts by failing to log and respond to

his March 14, 2022 informal grievance and March 29, 2022 formal grievance.

See Amended Response at 4, 9, 14-15; see also Complaint at 10, 12.

Even if the Court assumes prison officials at Columbia CI thwarted

Boggs’ grievance efforts, Boggs does not allege there were any impediments

to him pursuing the grievance process after his transfer to Cross City CI. See

id. Indeed, Boggs was able to pursue a formal grievance and grievance appeal

at Cross City CI without issue. Boggs offers no explanation as to why he did

not file an informal grievance at Cross City CI, particularly since he believed

his March 14, 2022 informal grievance had not been logged or otherwise

processed by prison officials at Columbia CI. The circumstances here are

similar to those in Bryant, where the Eleventh Circuit Court of Appeals

concluded that two Georgia prisoners failed to exhaust their administrative

remedies even in the face of threats of reprisal from staff at a prior

institution. 530 F.3d at 1373-79. One prisoner, Andrew Priester, alleged that

he was beaten at Rogers State Prison [Rogers] but did not file any grievances,

either at Rogers or a subsequent institution, because his requests for the

pertinent forms were unanswered or denied and because “Rogers officials

deterred him from filing grievances through the threat of violence.” Id. at

1373. Assuming that grievance procedures were unavailable to Priester at

Rogers, the Eleventh Circuit nevertheless concluded that they were available

to him once he transferred to Georgia State Prison (GSP). Id. The court

reached this conclusion despite the fact that a grievance filed at GSP would

have been untimely. Id. The court explained:

[A] grievance filed after Priester’s transfer to GSP

would have been untimely. But the relevant

grievance procedures provide inmates with the

opportunity to request consideration of untimely

grievances for good cause. Thus, Priester could have

exhausted his administrative remedies by filing a

grievance at GSP and then by showing good cause for

its tardiness.

Id. But because Priester did not attempt to file an out-of-time grievance at

GSP and he failed to allege that GSP staff deterred him from doing so

through threats of reprisal, the court concluded that Priester failed to

exhaust available administrative remedies. Id. at 1373, 1377-78. The court

reached the same conclusion as to another prisoner, Gregory Bryant, stating,

Like Priester, Bryant was later transferred to

another prison where the threat of violence was

removed. There, he could have filed an out-of-time

grievance and then shown good cause for its

untimeliness. Because he did not, Bryant failed to

exhaust an administrative remedy that was available

to him.

Id. at 1379; see also Poole v. Rich, 312 F. App’x 165, 167-68 (11th Cir. 2008)

(“Even if we assume that Poole was threatened and that these threats

rendered grievance procedures at Rogers unavailable to Poole, Poole’s

complaint is still due to be dismissed because he has failed to allege that

grievance procedures were unavailable to him once he was no longer

incarcerated at Rogers and was removed from the threats of violence made by

the officials at that prison.”).

Like Priester and Bryant, Boggs could have filed an informal grievance

at Cross City CI after his transfer, but he did not do so. Although such a

grievance likely would have been untimely, Boggs could have requested an

extension of time. Florida’s grievance protocol, like Georgia’s grievance

protocol discussed in Bryant, grants inmates additional time to file a

grievance upon a showing of good cause. See Fla. Admin. Code R. 33-

103.011(2). In addition, FDOC’s grievance procedures allow an inmate to file

a grievance at his or her current institution about an incident that occurred

at a different institution, and “it shall remain the responsibility of the staff at

the inmate’s present location to handle the informal or formal grievance.” See

Fla. Admin. Code R. 33-103.015(4). Nevertheless, Boggs made no effort to file

an out-of-time informal grievance at Cross City CI. Notably, Boggs does not

allege that he was unaware of (or unable to learn about) his ability to request

an extension of time to file a grievance. See Fla. Admin. Code R. 33-

103.015(10) (“A copy of these rules shall be available for access by inmates at

a minimum in the inmate library and from the housing officer of any

confinement unit.”). Because Boggs could have pursued an out-of-time

informal grievance once he arrived at Cross City CI, but failed to do so, the

Court finds that he failed to properly exhaust his available administrative

remedies. See Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999) (“Since

appellant has not sought leave to file an out-of-time grievance, he cannot be

considered to have exhausted his administrative remedies.”); McNeely v.

Sec’y, Fla. Dep’t of Corr., No. 3:16-cv-377-MMH-MCR, 2019 WL 448379, at

*10 (M.D. Fla. Feb. 5, 2019) (finding plaintiff did not exhaust FDOC’s

grievance process where he had available administrative remedies, including

filing an out-of-time grievance following his transfer to a different institution,

that he did not pursue).

Boggs’ suggestion that the OIG’s ongoing investigation obviated the

need for him to exhaust his administrative remedies is unavailing. First, the

Court notes that the OIG investigation has no bearing on the exhaustion

analysis because there is no indication that the investigation was the result

of Boggs’ having filed a grievance. To the contrary, as stated in Cross City

CI’s response to Boggs’ formal grievance, the OIG investigation began before

Boggs had filed his formal grievance. See Doc. 15-2 at 4. As such, the fact of

the OIG investigation does not demonstrate Boggs exhausted his

administrative remedies. See Fleming v. Espino, No. 3:20-cv-853-MMH-JRK,

2021 WL 5083743, at *7 (M.D. Fla. Nov. 2, 2021) (finding that plaintiff had

failed to exhaust his remedies since “[t]here is no evidence supporting even

an inference that the OIG’s investigation was a result of Fleming filing a

grievance”); see also Hersh v. Scott, No. 3:22-cv-408-BJD-LLL, 2023 WL

2242551, at *4 (M.D. Fla. Feb. 27, 2023) (finding OIG’s investigation was “not

relevant to the exhaustion analysis because there is no indication that

investigation resulted from Plaintiff having filed a proper grievance”); Harris

v. Lindblade, No. 3:22-cv-667-BJD-LLL, 2023 WL 5403273, at *5 (M.D. Fla.

Aug. 22, 2023) (concluding OIG’s investigation was “not relevant to the

exhaustion analysis because there is no indication the investigation resulted

from Plaintiff having filed a grievance”). Moreover, even if Boggs did prompt

the OIG investigation, doing so would not excuse him from exhausting his

administrative remedies as required by the Florida Administrative Code.

Compare Pavao, 679 F. App’x at 825 (quoting Dimanche, 783 F.3d at 1210)

(“Pavao’s efforts to seek redress from the Florida state courts or the Inspector

General of the FDOC are not relevant to the question of exhaustion because

they are not part of the prison grievance procedure, and therefore are outside

the ‘boundaries of proper exhaustion.’”); and Schlicher v. Fla. Dep’t of Corr.,

399 F. App’x 538, 539 (11th Cir. 2010) (rejecting the plaintiff’s argument that

writing letters to the Secretary of the FDOC, a federal judge, and the

inspector general, and making verbal complaints to various prison officials,

were sufficient to satisfy the exhaustion requirement); with Luckey v. May,

No. 5:14-cv-315-MW-GRJ, 2016 WL 1128426, at *11 (N.D. Fla. Feb. 17, 2016)

(concluding plaintiff properly exhausted where referral of plaintiff’s

grievances initiated Inspector General Office’s investigation); and Lanier v.

Smith, No. 3:08-cv-833-J-12JRK, 2009 WL 1758904, at *1 (M.D. Fla. June 19,

2009) (same). For these reasons, Boggs did not properly exhaust the

administrative remedies available to him. As such, the Motion is due to be

granted and Boggs’ claims dismissed for failure to exhaust.

B. Defendants’ Remaining Arguments

Because Boggs’ claims against Defendants Johnson and Godwin are

due to be dismissed for failure to satisfy the PLRA’s exhaustion requirement,

the Court need not address Defendants’ remaining arguments that: (1) Boggs

fails to state claims upon which relief can be granted; (2) Defendants are

entitled to Eleventh Amendment immunity and qualified immunity; (3)

Defendant Godwin, as a supervisory official, is not liable under 42 U.S.C. §

1983; and (4) Boggs is not entitled to the relief he requests. See Motion at 10-

32. Therefore, as to these issues, the Motion is due to be denied without

prejudice.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. Defendants Douglas Johnson and John Godwin’s Motion to

Dismiss Complaint (Doc. 15) is GRANTED to the extent Defendants seek

dismissal for Boggs’ failure to exhaust administrative remedies. In all other

respects, the Motion is denied without prejudice.

2. Plaintiff Kenneth Boggs’ 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 file.

DONE AND ORDERED at Jacksonville, Florida, this 18th day of

September, 2023.

United States District Judge

Jax-10

C: Kenneth Boggs, #292040

Counsel of record

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