# Hamze v. Sergeant Gerow

> District Court, M.D. Florida · January 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10114905

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 10, 2024
- **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/10114905

## How later opinions describe it (automated extraction)

- explaining that defendants bear the burden of showing a failure to exhaust
- 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.”
- 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.”

## Opinion text

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
24
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.
26
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.

28
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10114905. Public record. Not legal advice.