Nelson v. Sgt. Starling

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JONATHAN WILLIAM NELSON,

Plaintiff,

v. Case No. 3:22-cv-1306-MMH-JBT

SGT. STARLING, et al.,

Defendants.

________________________________

ORDER

I. Status

Plaintiff Jonathan Nelson, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on November 28,

2022, by filing a pro se Civil Rights Complaint (Complaint; Doc. 1)1 with

exhibits (Doc. 1-1). In the Complaint, Nelson names Sergeant Brian Starling

and Officer Carl Bedford as Defendants. Complaint at 2. This matter is before

the Court on Defendants’ Motion to Dismiss with Incorporated Memorandum

of Law (Motion; Doc. 17). Nelson filed a response (Response; Doc. 26) in

opposition to the Motion. Thus, the Motion is ripe for review.

1 For all pleadings and documents filed in this case, the Court cites to the

document and page numbers as assigned by the Court’s Electronic Case Filing

System.

II. Nelson’s Allegations

In the Complaint, Nelson alleges Defendants violated his Eighth

Amendment rights when they refused his request to declare a psychological

emergency on September 3, 2022, at Florida State Prison (FSP). See Complaint

at 3, 5. Nelson also alleges Defendants denied him “immediate medical

attention” and left him covered with blood when he cut himself “to relieve

stress.” Id. at 5. As relief, Nelson seeks injunctive relief and monetary

damages. Id.

III. Summary of Arguments

In the Motion, Defendants argue the Court should dismiss the Complaint

due to Nelson’s failure to exhaust administrative remedies. See Motion at 1-7.

Defendants assert that the grievances Nelson submitted concerning the

September 3, 2022 incident fail to satisfy exhaustion requirements because

they were all returned without action. Id. at 5-7. Nelson responds that the

Court should not dismiss his claims because he “utilized the grievance process

all the way to Central Office in Tallahassee, upon realizing []his . . . grievance

[was] of a sensitive nature.” See Response at 3.

IV. Analysis

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)2 (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 Nelson, 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).

2 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.”).

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,[3] 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.

Because failure to exhaust administrative remedies is an affirmative

defense, Defendants bear “the burden of proving that [Nelson] 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.

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

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, Nelson submitted grievance records with the Complaint. See Doc. 1-1.

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 Nelson

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).

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.

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).

C. Nelson’s Grievance Records

The grievance records Nelson submitted with his Complaint consist of:

(1) a direct grievance that Nelson submitted to the FDOC Secretary on

September 5, 2022, with response; and (2) an informal grievance Nelson

submitted on September 29, 2022, with response. See Doc. 1-1. As described

below, both grievances were returned without action. Id. at 2, 3.

Following the September 3, 2022 incident, Nelson initially submitted a

grievance directly to the FDOC Secretary on September 5, 2022. See Doc. 1-1

at 1. In the direct grievance, Nelson specified that he bypassed the grievance

process at the institutional level because he believed he would “be adversely

affected by the submission of a grievance at [the] institution and subject to

retaliation and physical harm by staff.” Id. (cleaned up). As to the factual basis

for the direct grievance, Nelson alleged he tried to declare a psychological

emergency and “bit open [his] arm spraying blood everywhere” on September

3, 2022. Id. According to Nelson, Defendant Starling witnessed the incident,

but refused to get Nelson psychological or medical assistance, causing Nelson’s

arm to be infected. Id. Nelson alleged Defendant Starling threatened to return

another day to “[d]eal” with him and also “claimed to have [written] [Nelson] a

false D.R. [Disciplinary Report].” Id. According to Nelson, Defendant Starling

also instructed Defendant Bedford and other FSP staff “not to help [Nelson].”

Id. After Defendant Starling left to go home, FSP night staff arranged for

Nelson to receive medical treatment. Id. Nelson stated he was “in fear for [his]

[l]ife from [Defendant] Starling making good on [h]is threats of D.R.’s and

[h]urting [him].” Id.

On September 15, 2022, the FDOC Secretary returned the grievance

without action, stating in pertinent part:

Note: This grievance is not accepted as a grievance of

reprisal.

Your request for administrative appeal is in non-

compliance with the Rules of the Department of

Corrections, Chapter 33-103, Inmate Grievance

Procedure. The rule requires that you first submit

your grievance at the appropriate level at the

institution. You have not done so, or you have not

provided this office with a copy of that grievance, nor

have you provided a valid or acceptable reason for not

following the rules.

Furthermore, if you fear staff, you need to file an

informal to the Colonel. The Colonel should have the

opportunity to address these issues regarding staff at

the institution.

Upon receipt of this response, if you are within the

allowable time frames for processing a grievance, you

may resubmit your grievance at your current location

in compliance with Chapter 33-103, Inmate Grievance

Procedure.

Based on the foregoing information, your grievance is

returned without action.

Id. at 2. After his direct grievance was returned without action, Nelson

submitted an informal grievance at the institutional level on September 29,

2022. He stated in the informal grievance:

[O]n 9-3-22[,] Officer Bedford received [a] request and

call from Chaplain [a]bout my [b]rother calling to tell

me my 2 [a]unt’s died[.] When [I] received this [call] . .

. [I] [b]egan [h]aving [a] mental [b]reakdown. Sgt.

Starling [a]nd Officer Bedford came . . . [to] my cell . .

. [I] declared [a] psych emergency [and] then [b]it my

[a]rm open spraying [b]lood everywhere[,] to which

[b]oth Sgt. Starling [a]nd Officer Bedford witnessed

[a]nd refused to [h]elp me [a]s [a] cruel punishment to

inflict further pain on me neglecting [their] duty and

violating procedures [a]nd rules set [a]t [FSP] . . . . Sgt.

Starling [a]nd Officer Bedford pretend[ed] nothing

was wrong . . . . Sgt. Starling threatened to come see

me personally . . . . Since then, Sgt. Starling has [a]s

[a] retaliation made sure [I] never [a]m [a]llowed to go

to recreation [a]nd calls me snitch when he [p]asses my

door.

Id. at 3. On October 3, 2022, the informal grievance was returned:

Your grievance is being returned without processing

in accordance with DC Rule Ch. 33-103.014(1)(b)

which states the grievance is so broad, general or

vague in nature that it cannot be clearly investigated,

evaluated and responded to. You need to provide us

with specific information (names, dates, times) so it

can be adequately investigated. In order to receive

administrative review, you must correct the defects

and resubmit within the allow[ed] time frame.

Id.

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 Nelson’s allegations.

See Whatley, 802 F.3d at 1209. If Nelson’s allegations show a failure to

exhaust, then dismissal would be appropriate. Id. But, Nelson alleges that he

exhausted his administrative remedies by filing the direct grievance. See

Response at 3; see also Complaint at 3 (asserting that “the grievance process

is completed”). Accepting Nelson’s view of the facts as true, the Court cannot

dismiss Nelson’s claims at the first step of the Turner analysis.

E. Turner Step Two

As dismissal would not be appropriate based on Nelson’s allegations, the

Court next turns to the second prong of the Turner analysis. The parties agree

that Nelson filed a direct grievance and an informal grievance regarding the

September 3, 2022 incident. The only dispute is whether those grievances were

properly returned without action for failure to comply with the grievance

procedures. Upon review, the Court finds that Nelson failed to exhaust his

administrate remedies.

Nelson alleges that he satisfied the exhaustion requirement by filing the

direct grievance. See Response at 2-4. Though Nelson labels it a grievance of a

“sensitive nature” in his Response, id. at 2, the specific type of direct grievance

Nelson submitted was a grievance of reprisal because his stated reason for

bypassing the institutional level grievance process was a fear of retaliation and

physical harm by FSP staff. See Fla. Admin. Code Ann. R. 33-103.002(9)

(defining a grievance of reprisal as “[a] grievance submitted by an inmate

alleging that staff have taken or are threatening to take retaliatory action

against the inmate for good faith participation in the inmate grievance

procedure”). However, Nelson failed to provide any factual support for his

belief that he would be subject to retaliatory action or physical harm if he were

to pursue the grievance process at FSP. Nor did Nelson allege that the

September 3, 2022 incident was retaliation for a prior grievance. And while

Nelson alleged in the direct grievance that Defendant Starling threatened to

“deal” with him and claimed to have issued a false disciplinary report, Nelson

did not assert these alleged actions were taken in reprisal for grievances

Nelson previously filed or to prevent Nelson from pursuing the grievance

process in connection with the September 3, 2022 incident.

As such, Nelson’s direct grievance did not qualify as a grievance of

reprisal, and the FDOC Secretary properly returned it without action. See

Gipson v. Renninger, 750 F. App’x 948, 950, 952-53 (11th Cir. 2018) (finding

the Secretary properly returned a direct grievance without action where the

inmate’s statement that he “believe[d] that there will be some adverse actions

(retaliations) if the officers are placed on notice at the institutional level” did

not qualify as a grievance of reprisal because the inmate failed to provide

“factual support for his allegations of threats of retaliatory action by prison

staff”); Dimanche, 783 F.3d at 1212-13 (finding the Secretary improperly

returned a direct grievance without action where the plaintiff clearly identified

the grievance as a grievance of reprisal, explained that he had been “gassed”

for writing grievances, identified the acting warden and inspector as well as

other individuals who had retaliated against him, and described being

threatened with being “gassed to death” if he wrote more grievances). Because

prison officials returned the direct grievance without action, it does not satisfy

the exhaustion requirement. See Wallace v. Jones, No. 3:17-cv-214-TJC-JBT,

2018 WL 4145929, at *3 (M.D. Fla. Aug. 30, 2018) (“If a grievance is returned

without action, the inmate has failed to ‘properly’ complete the grievance

process”) (citing Bryant, 530 F.3d at 1379).

Likewise, Nelson’s informal grievance does not satisfy the exhaustion

requirement because it, too, was returned without action for failure to comply

with procedural requirements. See Doc. 1-1 at 3 (returning Nelson’s informal

grievance on grounds that it was “so broad, general or vague in nature that it

cannot be clearly investigated, evaluated and responded to”); Johnson v.

Meadows, 418 F.3d 1152, 1157-58 (11th Cir. 2005) (“[U]nless the prisoner

completes the administrative process by following the rules the state has

established for that process, exhaustion has not occurred.”) (quoting Pozo, 286

F.3d at 1023).

Notably, Nelson points to no other records showing that he submitted

another informal grievance concerning the September 3, 2022 incident or that

he completed the required three-step grievance process by filing a formal

grievance and a grievance appeal after the return of his informal grievance.

Thus, based on the undisputed record evidence, Nelson 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, 418 F.3d at 1158)). For these

reasons, the Motion is due to be granted and Nelson’s claims are due to be

dismissed for failure to exhaust.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. Defendants’ Motion to Dismiss (Doc. 17) is GRANTED.

2. Plaintiff Jonathan William Nelson’s claims against Defendants

Brian Starling and Carl Bedford are 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 12th day of

January, 2024.

MARCIA MORALES HOWARD

United States District Judge

Jax-10 1/4

C: Jonathan William Nelson, #U51846

Counsel of record

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