Hamze v. Sergeant Gerow

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ABDELAZIZ HAMZE,

Plaintiff,

v. Case No. 3:21-cv-565-MMH-JBT

WILLIAM MIKEL WARNER, et al.,

Defendants.

________________________________

ORDER

I. Status

Plaintiff Abdelaziz Hamze, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on May 20, 2021,1 by

filing a pro se Complaint for Violation of Civil Rights (Complaint; Doc. 1)2

pursuant to 42 U.S.C. § 1983. Hamze is proceeding on an Amended Complaint

(AC; Doc. 80) with a supplement (Doc. 83). In the AC, Hamze names as

Defendants: (1) Sergeant Charles Orrin Nosbisch; (2) Sergeant William Mikel

Warner; (3) Sergeant Robert Allan Brown; (4) Nurse R. Singletary; (5)

Lieutenant William Hall; (6) Nurse Katherine Dee Burgin; and (7) Warden

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.

Barry V. Reddish. AC at 2–4. He alleges that Defendants physically assaulted

him in violation of the Eighth Amendment. See id. at 3, 6–9. He requests

monetary damages, as well as declaratory and injunctive relief. Id. at 6.

This matter is before the Court on Sergeants Warner, Brown, and

Nosbisch’s Motion to Dismiss (Doc. 84)3 with exhibits (Docs. 84-1 through

84-4), as well as Hamze’s Motion for Evidentiary Hearing (Doc. 102) and

Motion for Leave to Reply (Doc. 115). Hamze filed a response in opposition to

Sergeants Warner, Brown, and Nosbisch’s (collectively Defendants) Motion.

See Plaintiff’s Response to Motion to Dismiss (Doc. 88). And, Defendants

responded to Hamze’s Motions. See Defendants’ Response to Plaintiff’s Motion

for Evidentiary Hearing (Doc. 103); Defendants’ Response to Plaintiff’s Motion

for Leave to Reply (Doc. 116). Thus, the Motions are ripe for review.

3 Sergeants Warner and Brown filed the Motion before Hamze served Sergeant

Nosbisch. Sergeant Nosbisch later notified the Court that he joined the Motion. See

Notice of Adoption (Doc. 111).

2

II. Plaintiff’s Allegations4

Hamze alleges that, on January 20, 2018, at Florida State Prison,

Sergeant Nosbisch approached his cell and notified him that he had a “medical

callout for a sick-call.” AC at 6. According to Hamze, when he arrived at

medical, Nurse Singletary examined him, and “told [him] to say: ‘women rule

the world,’ or ‘they’ll f*** you up.’ []You’re gonna see and next time you say yes

ma’am.’” Id. at 7. He asserts that Nurse Singletary then directed Sergeants

Nosbisch, Brown, and Warner to “‘get him’” and left the room. Id. Sergeants

Nosbisch, Brown, and Warner allegedly punched Hamze several times, and

after he fell to the floor, they continued to kick him in the face, arms, chest,

torso, abdomen, back, and legs. Id. According to Hamze, Sergeant Brown

jumped on his leg and ankle several times. Id. Hamze estimates that he

endured the assault for five minutes, after which Captain Hall entered the

room, falsely declared that Hamze had assaulted corrections staff, and placed

a spit shield on his head. Id. When Hamze returned to his cell, Captain Hall

stated “that this was done on his orders based on the orders of Warden (B.V.

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

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

Hamze, and accept all reasonable inferences that can be drawn from such allegations.

Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa Cnty., 21

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

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

3

Reddish), who wanted to see if [Hamze] had the heart to hit the officers, or only

to write grievances on them.” Id. Hamze contends that Nurses Singletary and

Burgin denied him medical treatment. Id. at 8. Although Hamze states that he

notified Nurse Burgin that he had a broken nose and ankle, she refused to refer

him for an x-ray appointment or to provide him pain medication. Id.

Hamze further alleges that Warden Reddish shut down the fixed wing

camera system in C-dorm and the medical area during the assault. Id. He also

maintains that Warden Reddish tampered with institutional logs to reflect

that Sergeant Nosbisch worked in M-dorm, not J-dorm. Id. According to

Hamze, “[t]his is why [Nosbisch] identified himself to me as Gerow[5] and then

entered on the MINS report that he was assigned to M wing, where officer

James Gerow was actually assigned.” Id. at 9.

III. Summary of the Arguments

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

claims against them because Hamze failed to properly exhaust his

administrative remedies. Doc. 84 at 8–12. They also contend that to the extent

Hamze sues Defendants for damages in their official capacities, the claims

5 In his initial Complaint, Hamze named Sergeant Gerow as a Defendant and

identified Sergeant Gerow as the individual who escorted him from his cell to medical.

See Complaint at 2, 7.

4

against them should be dismissed. Id. at 12–13. Hamze responds that the

Court should not dismiss the claims against Defendants because he did

exhaust his available administrative remedies and he sues Defendants for

injunctive relief in their official capacities. Doc. 88 at 1–7.

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)6 (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.

6 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 Hamze, 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,[7] 286 F.3d, at 1024 (emphasis in original).

7 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 [Hamze] 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 Hamze 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

Defendants assert that Hamze did not submit any grievances about the

January 20th assault. Doc. 84 at 8. “The closest [Hamze] came was to

submitting a timely formal grievance regarding the DR from the incident.” Id.

However, they argue that this grievance did not concern the claims of excessive

force raised against Defendants in the AC, and, as such, Hamze did not

properly exhaust his administrative remedies as to those claims. See id. at

8–9.

With their Motion, Defendants provide declarations and records

regarding Hamze’s exhaustion efforts. See Docs. 84-1 through 84-4. In a sworn

declaration, Sabrina Hoover, a classification officer at the Northwest Florida

Reception Center, states that between January 20, 2018, and June 1, 2021,

11

Hamze filed no informal or formal grievances “regarding the allegations

described in his complaint for excessive force against him by the defendants.”

Doc. 84-1 at 2. Hoover bases this statement on her review of the available

grievance records “in the FDC’s Central database and that of Florida State

Prison. . . .” Id. Lawanda Sanders-Williams, an operation analyst for the FDOC

Bureau of Policy Management and Inmate Appeals, also states under penalty

of perjury that between January 20, 2018, and June 1, 2021, Hamze filed “no

appeals of any kind” regarding the allegations raised in the AC. Doc. 84-2 at 2.

Defendants also attach as an exhibit the formal grievance that Hamze

submitted at Santa Rosa Correctional Institution (SRCI) on February 5, 2018,

in which he addresses the disciplinary report from the January 20, 2018

incident:

This is an appeal of DR # 205-180180 with the

following errors in the process thereof:

1) It is a false report by Srgt. Nosbish for an infraction

alleged in the Medical Department where he was not

present at the infraction time, Jan. 20, [20]18 at 3:08

pm or around it. This is proven by the evidence

proffered in the investigation of this DR to include:

a. The B wing camera showing that the staff that

pulled me out of my cell for medical were Srgt. Gerow

[and] Officer A. Williams ONLY.

b. The camera records of the Medical Dept. showing

12

that ONLY Srgt. Gerow was the one escorting me into

medical while Srgt. Nosbish never entered Medical

anytime around the infraction (before or after). And

particularly that the only staff that entered the ER

room (where the infraction scene was) were ONLY

Srgts. Brown, Warner, Gerow [and] Nurse Jackson

and another short, black-haired nurse, followed by

Srgt. Williams afterwards. Until[] the infraction

alleged was declared to be concluded [and] the

handheld camera arrived with the Lt. Hall, NO other

staff were present. Nurse Singletary was not present

in the ER room either, also signifying the falsehood of

this DR.

2) The investigation of the DR was in violation of Ch.

33-601.304 because:

a. It mentions a staff member[,] Singletary[,] whose

statement was not obtained.

b. It leaves out obtaining statements of staff present

at the scene, all of whom were listed as witnesses,

including Jackson, Gerow, Brown [and] Warner.

3) It does not provide any disposition of the evidence

requested, the videotape records of B-wing [and]

Medical [and] the staff shown.

4) Srgt. Nosbish’s witness statement was not obtained,

other than the Report itself, which violates Ch. 33-

601.304. A disciplinary team may not rely on the

statement of the DR report as evidence if the charging

officer does not provide a sworn statement in support

thereof. And even afterwards the obtaining of that

sworn statement, the team may not rely solely on the

testimony of the charging officer without “some” other

evidence, for a conviction.

13

5) This DR was served on Tuesday the 23rd at 11:30

pm, more than 72 hrs after the time it was written, at

F.S.P. where DRs are served 24/7 within or without

business hours. This delay is inexcusable.

6) Adding to the falsity of this DR is stating at its end:

“No injuries noted,” while the handheld camera, the

report of Dr. Gonzalez who pulled me out for urgent

care Monday Jan. 22, 2018 at 9:50 am or around it,

prove [and] show that I had significant injuries.

Doc. 84-4 at 6–7. On February 13, 2018, SRCI responded:

Your request for administrative remedy or appeal has

been received, reviewed and evaluated.

Disciplinary report #205-180180 has been reviewed.

You have not presented any information that was not

already considered or would change the decision made

by the disciplinary hearing team.

You are grieving DR log #205-180180, battery or

attempted battery on an officer, based on your claim

that Sgt. Nosbisch was not present at the alleged

incident.

You state that camera will show Sgt. Gerow was the

sergeant present and Officer A. Williams was also

present. You also state that Nurse Singletary was not

present. You also believe that not all witnesses were

not given witness statements to complete.

I reviewed the DC6-151 and you did not call any

evidence, including the camera, so the disciplinary

team did not have that evidence to review. I also

reviewed the DC6-112B witness dispositions forma

[sic] and noted that you did not call any witnesses. You

also refused to appear at the hearing so the

14

disciplinary team made its decision based on the

evidence and witness statements it had. The

statement of facts indicates that LPN Singletary was

present and she provided a witness statement

attesting that. Sgt. Nosbisch attested also that he was

attempting to escort you back to your cell when you

spit in his face.

Based on the above information, your grievance is

denied.

Id. at 5.

Hamze filed an appeal on February 15, 2018, stating in pertinent part:

This is a 2nd appeal of DR #205-180180 based on:

1) The warden’s response states that Form DC6-151

[and] DC6-112B indicate that I did not call any

evidence or witnesses. First, it is the duty of the

serving officer to ensure the completion of these forms

and obtain a signature or refusal regarding witnesses

and evidence. See Ch. 33-601.304(2)(f). In this case,

the DR was not properly served according to Ch. 33

because:

A. The serving officer did not document on the DR his

name, ID#, time of service, but left all these entries

blank.

B. He was not the one that collected my statement

[and] forms DC6-151 [and] DC6-112B as he was

required, but it was Srgt. Willis who collected them.

There is videotape evidence proving that, besides the

DR report itself (not signed for service).

(Note that I did not raise this in the 1st appeal because

I did not know that my evidence [and] witnesses

15

requested were not reviewed based on a certain [and]

obvious malfesance [sic]. In highlighting this

misconduct, I assert again that I did request evidence

[and] witnesses in properly filled [and] signed DC6-

151 [and] DC6-112B form. The fact that they may have

been maliciously exonerated does not excuse not

reviewing my evidence [and] witnesses cited in the

first appeal.)

2) LPN Singletary was NOT working at F.S.P. on the

date of the infraction Jan. 20, and certainly was not in

the medical department. There is ample evidence to

that including prisons logs [and] forms (which I don’t

have the names of) in addition to the videotape [and]

camera evidence, etc. And requiring a single type of

evidence to prove this fundamental [and] detrimental

fact is not sound where this requirement trifles

substantive proofs and facts, as in here, which all are

readily available [and] reviewable to this office.

3) The logs [and] the above facts also refute [and]

disqualify the statement of Srgt. Nosbish that he was

present [and] attempting to escort me back to my cell.

4) The Warden’s response does not address the false

statement that a reactionary use of force resulted in

NO injuries.

5) It does not address the delay in serving the DR

beyond 72 hrs from the infraction times for no reason.

Id. at 3–4. On February 20, 2018, the Secretary denied his appeal:

Your administrative appeal has been received and

evaluated. The response you received to the issues you

raised at the institutional level is appropriate.

To the extent that you have included new issues at the

16

appeal level, which were not presented at the

institutional level, those issues are returned without

response.

Based on the forgoing [sic], your appeal is denied.

Id. at 2.8

Hamze responds that he properly exhausted his administrative remedies

when he submitted the “DR appeals” because they “challenge the truth of the

DR, and therefore the appropriateness and the lawfulness of the force used,

and further complain of significant injuries resulting from that excessive use

of force.” Doc. 88 at 1. He also argues that the sworn declarations of Hoover

and Sanders-Williams only concern grievances that he filed until June 1, 2021,

even though he initiated this lawsuit “several months later.” Id. at 2. According

to Hamze, he filed numerous, relevant grievances about the incident from

January 25, 2018, to October 5, 2021. See id. at 2, 8–9. Hamze alleges that he

never received responses to those grievances. Id. at 3, 8–9.

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 Hamze’s allegations.

8 In the Motion, Defendants asserted that Hamze’s administrative appeal was

not timely filed, and it was returned without action. Doc. 84 at 3. They later withdrew

the assertion. See Notice of Withdrawal of Certain Assertions (Doc. 89).

17

See Whatley, 802 F.3d at 1209. If Hamze’s allegations in the Response show a

failure to exhaust, then dismissal would be appropriate. See id.

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

concerning Hamze’s exhaustion efforts. Defendants assert that Hamze did not

submit any grievances about the January 20th assault. Doc. 84 at 8. They

argue that although Hamze submitted formal and appeal grievances about a

related disciplinary report, those grievances did not sufficiently exhaust the

issues raised in the Complaint and AC. See id. at 8–9.

Hamze responds that the disciplinary report grievances address the use

of force, and, as such, he contends that the grievances are sufficient to properly

exhaust his administrative remedies. Doc. 88 at 1. Nevertheless, Hamze

seemingly asserts that he did not have available administrative remedies

because he attempted to submit grievances about the use of force at multiple

institutions, but never received responses to those attempted grievances. Id. at

4, 8–9. He also states that he “underwent serious reprisals to include threats,

gassing and unprovoked physical abuse at each of the institutions at which

[he] filed grievances regarding the incident in chief” Id. at 9. Accepting

Hamze’s view of the facts as true, the Court cannot dismiss the AC at the first

step of the Turner analysis.

18

E. Turner Step Two

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

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

analysis. Here, the Court finds Hamze failed to properly exhaust his

administrative remedies because he did not grieve the subject of the excessive

use of force claims raised against Defendants in his AC.

The purpose of administrative exhaustion “is to put the [administrative

authority] on notice of all issues in contention and to allow the [authority] an

opportunity to investigate those issues.” Chandler, 379 F.3d at 1287

(quotations and citation omitted) (alterations in original). To properly exhaust

administrative remedies, “prisoners must complete the administrative review

process in accordance with the [prison’s] applicable procedural rules.” Jones,

549 U.S. at 218 (quotation marks omitted). The FDOC’s rules provide that

informal and formal grievances must be legible, include accurately stated facts,

and address only one issue or complaint; however, it does not include any

requirements regarding the level of detail required for grievances. Fla. Admin.

Code R. 33-103.005(2)(b)2; 33-103.006(2)(d)–(f). Where a prison’s grievance

procedure does not require a certain level of specificity, “a grievance suffices if

it alerts the prison to the nature of the wrong for which redress is sought.”

19

Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002), overruled in part on other

grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007); see Harvard

v. Inch, 411 F. Supp. 3d 1220, 1244 (N.D. Fla. 2019).9

In his AC, Hamze asserts that Sergeants Warner, Nosbisch, and Brown

violated the Eighth Amendment when they physically assaulted him. AC at

6–7. The crux of Hamze’s claims against these Defendants is that they

subjected him to constitutionally excessive force. However, his formal and

appeal grievances involve a disciplinary report that Hamze sought to overturn.

Hamze labelled the formal grievance as “DR Appeal,” Doc. 84-4 at 6, and he

alleged “errors in the process,” id. at 6. He asserted that Sergeant Nosbisch

and Nurse Singletary were not present during the incident; corrections staff

did not obtain a witness statement from Sergeant Nosbisch, “other than the

report itself”; corrections staff served him with the disciplinary report more

than seventy-two hours after they wrote it; and the report did not accurately

reflect the injuries that he sustained. Id. at 6–7. It is also evident from the

institutional response that prison officials did not interpret Hamze’s formal

9 The Court notes that although decisions of other district courts are not

binding, they too may be cited as persuasive authority. See Stone v. First Union

Corp., 371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court

would not be bound to follow any other district court’s determination, the decision

would have significant persuasive effects.”).

20

grievance as a complaint about excessive force or an Eighth Amendment

violation, but as a grievance challenging the disciplinary report and

proceedings. In the institutional response, the Warden stated that Hamze did

not present information “that was not already considered or would change the

decision made by the disciplinary hearing team.” Id. at 5. Further, in his

administrative appeal, Hamze focused solely on the allegations stated in his

formal grievance, in addition to alleged deficiencies with the serving document,

id. at 3–4, and in his denial of the appeal, the Secretary concluded that Hamze

received an “appropriate” response to these issues at the institutional level, id.

at 2. A review of the record establishes that the focus of Hamze’s grievances

was the disciplinary report and the process associated with that discipline, not

the alleged use of excessive force. Accordingly, the Court finds that these

grievances did not suffice to alert officials to the issues in contention in

Hamze’s AC. See Berry v. Keith, No. 3:20-CV-261-MMH-JBT, 2021 WL

1561493, at *6 (M.D. Fla. Apr. 21, 2021) (finding plaintiff’s grievances that

challenged a disciplinary report arising from corrections officers’ use of force

did not properly exhaust his Eighth Amendment excessive force claims);

Lawson v. Crutchfield, No. 5:15-CV-150-MP-GRJ, 2016 WL 5219466, at *7

(N.D. Fla. July 5, 2016) (same), report and recommendation adopted, No. 5:15-

21

CV-00150-MP-GRJ, 2016 WL 5219626 (N.D. Fla. Sept. 21, 2016).

In addition, reliable evidence supports the conclusion that Hamze never

submitted any other relevant grievances at the institutional level or to the

Secretary. See Docs. 84-1 at 2 (“During that period [January 20, 2018, to June

1, 2021], inmate Hamze filed no informal or formal grievances regarding the

allegations described in his complaint for excessive force against him by the

defendants.”); 84-2 at 2 (“During that period [January 20, 2018, to June 1,

2021], inmate Hamze filed no appeals of any kind regarding the allegations

raised in his complaint.”); see also Whatley v. Smith, 898 F.3d 1072, 1083 (11th

Cir. 2018) (“The district court permissibly weighed the evidence and credited

the defendants’ affidavits over Mr. Whatley’s exhibits.”). Although Hamze

asserts that he submitted grievances at five different institutions about the

use of force, Doc. 88 at 8–9, he offers no credible evidence to support his claim

beyond his self-serving allegations. For example, he fails to provide the

grievance log numbers or to identify what type of grievances he submitted. As

he acknowledges, no such grievances were logged. Doc. 88 at 9; see Docs. 84-1

through 84-2. While a lack of documentation would be consistent with Hamze’s

claim that correctional staff intercepted and destroyed these grievance “a

district court does not clearly err when it makes a choice between two

22

permissible views of the evidence.” Whatley, 898 F.3d at 1083 (quotation marks

omitted). And, even assuming that all five institutions failed to respond to

Hamze’s grievances, “the grievance procedure provides that he could have

‘proceed[ed] to the next step of the grievance process’” after the expiration of

the time to respond to the informal or formal grievances and his failure to do

so renders his claims against Defendants unexhausted. See Turner, 541 F.3d

at 1084 (finding that “a prison’s failure to respond to a formal grievance did

not relieve the prisoner of his obligation to file an appeal when the grievance

procedure provided that prisoners could file an appeal if they did not receive a

response to a formal grievance within 30 days.”); see also Pavao v. Sims, 679

F. App’x 819, 826 (11th Cir. 2017) (finding that “[b]ecause [the plaintiff] could

have proceeded by filing an administrative appeal, the PLRA still requires him

to file an appeal notwithstanding the prison’s lack of response.”). Hamze did

not do so.

To the extent Hamze argues that he exhausted his administrative

remedies because he submitted grievances between June and October 2021,

the Court is not persuaded. “[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,

23

1207 (11th Cir. 2000) (emphasis added). Hamze filed his Complaint on May 20,

2021. Complaint at 17. Accordingly, any grievances filed after that date are not

pertinent to the Court’s determination of whether Hamze satisfied the PLRA’s

exhaustion requirement. See Smith v. Terry, 491 F. App’x 81, 83 (11th Cir.

2012) (“The only facts pertinent to determining whether a prisoner has

satisfied the PLRA’s exhaustion requirement are those that existed when he

filed his original complaint.”). Similarly, Hamze’s declaration of “physical

abuse to the Inspector General in the handheld videotape” also fails to satisfy

the exhaustion requirement. See AC at 12. The FDOC provides an internal

grievance procedure for its inmates, see Fla. Admin. Code R. 33-103.001

through 33-103.018, that provides specific sequential steps for proper

exhaustion. The FDOC rules do not and did not include any provisions for video

grievances.

Hamze seemingly alleges that he did not have available administrative

remedies because corrections staff physically abused and threatened him. See

Doc. 88 at 9. The Eleventh Circuit has recognized that “a prison official’s

serious threats of substantial retaliation against an inmate” for filing a

grievance in good faith can make administrative remedies “unavailable.”

Turner, 541 F.3d at 1085. In doing so, the court explained that a prison

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official’s serious threats of substantial retaliation will excuse the exhaustion

requirement if two conditions are met:

(1) the threat actually did deter the plaintiff inmate

from lodging a grievance or pursuing a particular part

of the process; and (2) the threat is one that would

deter a reasonable inmate of ordinary firmness and

fortitude from lodging a grievance or pursuing the part

of the grievance process that the inmate failed to

exhaust.

Id. In determining whether a plaintiff has made this showing, a court may

“consider[] [a plaintiff’s] history of filing grievances as evidence that the

defendants did not make administrative remedies unavailable to him or . . .

destroy his grievances.” Whatley, 898 F.3d at 1083. “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) (quoting 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))).

25

Here, Defendants have established that the FDOC has an

administrative grievance process and that Hamze failed to resort to the

FDOC’s established grievance process. Thus, the burden shifts to Hamze to

“demonstrate that the [FDOC’s] grievance procedure was ‘subjectively’ and

‘objectively’ unavailable to him.” Id. at 1356. Hamze’s vague, conclusory

allegations fail to satisfy this burden. See Doc. 88 at 9 (“It is important to state

that I underwent serious reprisals to include threats, gassing and unprovoked

physical abuse at each of the institutions at which I filed grievances regarding

the incident in chief.”). Moreover, even if Hamze was subjectively deterred

from filing grievances at any of the institutions, he could have bypassed the

institutional level and submitted a grievance of reprisal directly with the

FDOC Secretary’s Office in a sealed envelope. See Fla. Admin. Code R.

33-103.007(3)(a). Hamze does not allege that he filed such a grievance before

initiating this lawsuit. See Doc. 88 at 9. Accordingly, the Court finds Hamze

had available administrative remedies, and he failed to properly exhaust those

remedies as to the excessive force claims against Sergeants Nosbisch, Warner,

and Brown. The Motion is due to be granted on that basis.10

10 Because the claims against Defendants are due to be dismissed for failure to

exhaust, the Court need not address Defendants’ remaining argument.

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F. Motions for Leave to Reply and for Evidentiary Hearing

In resolving the Motion, the Court notes that Hamze has asked the Court

for leave to file a reply in support of his request for an evidentiary hearing on

the issue of exhaustion. See Doc. 115. According to Hamze, he has received

“several conflicting responses from the grievance coordinators and the

classification dep’t regarding the grievance log, including a response to a very

recent request he filed . . . which indicates that a grievance was actually filed

in 5.2021 regarding the incident in chief which the defense excludes from their

log disclosure to the plaintiff. . . .” Id. at 1. In support of his assertion, Hamze

attaches an informal grievance and grievance response, providing the log

number (2105-118-274) of a formal grievance that Hamze submitted in May

2021. Doc. 115-1. The Court has concluded that a reply would not aid in the

resolution of the Motion. Neither the institutional grievance nor the grievance

appeal that correspond to log number 2105-118-274 address the alleged use of

force in this case. See Docs. 116-1 through 116-2. And, as Hamze filed the

grievance after initiating this case, it would not be relevant to the Court’s

exhaustion analysis.

The Court also determined that no evidentiary hearing was warranted.

See Doc. 102. Both parties filed written arguments regarding the exhaustion

27

issue, and they have had ample opportunity to file affidavits, exhibits, and any

other evidence in support of their positions. In addition, the parties completed

some discovery before Defendants moved to dismiss the AC. Although Hamze

contends that he has obtained the log number of a grievance that he filed in

October 2021 regarding the incident, Doc. 102 at 1, the Court notes that he

filed the alleged grievance after he initiated this lawsuit. As such, it would

have no impact on the Court’s analysis. Hamze offers no other reason to

suggest that he would have additional evidence bearing on exhaustion to

present at a hearing. Therefore, his request is denied.

Accordingly, it is now

ORDERED:

1. Defendants Warner, Brown, and Nosbisch’s Motion to Dismiss

(Doc. 84) is GRANTED to the extent Defendants seek dismissal for Hamze’s

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

Motion is denied without prejudice.

2. Plaintiff Hamze’s Motion for Evidentiary Hearing (Doc. 102) and

Motion for Leave to Reply (Doc. 115) are DENIED.

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3. The claims against Defendants Warner, Brown, and Nosbisch are

DISMISSED WITHOUT PREJUDICE.'! The Court directs the Clerk to

terminate Warner, Brown, and Nosbisch as Defendants in the case.

4, Pursuant to Federal Rule of Civil Procedure 54(b), there being no

just reason for delay the Clerk shall enter judgment in accordance with this

order.

DONE AND ORDERED at Jacksonville, Florida, this 10th day of

January, 2024.

MARCIA MORALES HOWARD

United States District Judge

Jax-9 1/3

Abdelaziz Hamze, #L81379

Counsel of record

11 The applicable four-year statute of limitations likely has expired as to

Hamze’s claims against these Defendants. However, the Court dismisses Hamze’s

claims against them without prejudice in the event that he could show otherwise.

29