Harris v. Goodwin

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RICHARD HARRIS,

Plaintiff,

v. Case No. 3:22-cv-1155-MMH-JBT

ASST. WARDEN GOODWIN and

C.O. FOSTER,

Defendants.

_________________________________

ORDER

I. Status

Plaintiff Richard Harris, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on October 24, 2022,1

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

pursuant to 42 U.S.C. § 1983. Harris is proceeding on an amended complaint

(AC; Doc. 7) with exhibits (Docs. 7-1 through 7-2). In the AC, Harris names

Assistant Warden Goodwin and Officer Foster as Defendants. He raises claims

of Eighth Amendment deliberate indifference against both Defendants and

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.

First Amendment retaliation against Foster. AC at 4. Harris requests

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

This matter is before the Court on Goodwin’s Motion to Dismiss. See

Motion to Dismiss (Motion; Doc. 18). In support of the Motion, Goodwin has

submitted exhibits. See Docs. 18-1 through 18-3. Harris filed a response in

opposition to the Motion. See Plaintiff’s Response to Defendant’s Motion to

Dismiss Memorandum of Law Incorporated (Response; Doc. 25). He also

submitted exhibits. See Docs. 25-1 through 25-2. Thus, the Motion is ripe for

review.

II. Harris’s Allegations3

Harris asserts that, on April 16, 2022, between 12:00 a.m. and 12:30

a.m., he notified Foster, the booth technician in the O-dormitory officer’s

station, that he was experiencing chest pain. AC at 2. According to Harris,

Foster told him that he could not “go anywhere until after court[,] which was

more than 30 minutes away and takes an hour or more to complete.” Id. Harris

alleges that he returned to wing 2 of O-dormitory and sat on a bench in the

dayroom. Id. After approximately fifteen to twenty minutes, Harris “passed

3 In considering Goodwin’s Motion, the Court must accept all factual

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

Harris, 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.

2

out” and had a seizure. Id. Harris maintains that Nurse Angela Wilson was

called to O-dormitory; she placed him on a stretcher and transported him to

medical. Id. According to Harris, he told Nurse Wilson that he had chest pain

for thirty minutes before the seizure. Id. Nurse Wilson asked Sergeant Folsom,

“the only other officer working O-dorm with C.O. Foster,” why he did not notify

her about Harris’s chest pain. Id. Sergeant Folsom responded that Harris

“must have told defendant, C.O. Foster, who never mentioned the chest pains

[to Sergeant Folsom].” Id.

Harris asserts that he submitted a grievance about the incident on April

17, 2022. Id. On April 20, 2022, Sergeant R.E. Lindblade allegedly escorted

Harris from O-dormitory to his office, where he had the April 17th grievance.

Id. at 3. Sergeant Lindblade told Harris that “if he didn’t stop with the

grievances and lawsuits, that he would be forced to put his hands on (physically

assault) [Harris].” Id. Harris subsequently received a response to his April 17th

grievance, which stated that the cameras did not show him having a seizure

and that Foster had no knowledge of the incident. Id. According to Harris, he

made two copies of Nurse Wilson’s report to attach to his appeal of the April

17th grievance and to a separate grievance for falsification of documents. Id.

Harris maintains that Sergeant Lindblade “carried out his threats of physical

3

abuse” on May 12, 2022, and further threatened “to sodomize [Harris] with his

walking cane, if he continue[d] writing grievances.” Id.

Harris contends that Foster was deliberately indifferent to his serious

medical need in violation of the Eighth Amendment when she ignored his chest

pain. Id. at 4. He further asserts that Foster’s deliberate indifference

constituted retaliation for Harris’s grievances against prison officials. Id.

Harris asserts that Goodwin violated the Eighth Amendment when he “fail[ed]

to take action to curb the deliberate indifference of C.O. Foster” and falsified

documents to “cover it up.” Id.

III. Summary of the Arguments

In his Motion, Goodwin argues that the Court should dismiss the claim

against him because: (1) Harris failed to properly exhaust his administrative

remedies; (2) Harris fails to state a claim for relief; (3) Goodwin, as a

supervisory official, is not liable under 42 U.S.C. § 1983; (4) Harris is not

entitled to declaratory or injunctive relief; and (5) the Eleventh Amendment

entitles Goodwin to immunity. Motion at 5–23. Harris responds that the Court

should not dismiss his claim because: (1) he exhausted his administrative

remedies, and (2) he states a plausible claim for relief. Response at 1–6.

4

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)4 (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.

516, 524 (2002). A prisoner such as Harris, 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

4 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

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,[5] 286 F.3d, at 1024 (emphasis in original).

Woodford, 548 U.S. at 90. And, “[p]roper exhaustion demands compliance with

an agency’s deadlines and other critical procedural rules.” Id.

The United States Supreme Court has instructed that “[c]ourts may not

engraft an unwritten ‘special circumstances’ exception onto the PLRA’s

exhaustion requirement. The only limit to § 1997e(a)’s mandate is the one

baked into its text: An inmate need exhaust only such administrative remedies

as are ‘available.’” Ross v. Blake, 578 U.S. 632, 648 (2016). For an

administrative remedy to be available, the “remedy must be ‘capable of use for

the accomplishment of [its] purpose.’” Turner v. Burnside, 541 F.3d 1077, 1084

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

6

(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, Goodwin bears “the burden of proving that [Harris] 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

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

7

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, Goodwin submitted declarations and grievance records as exhibits to his

Motion. See Docs. 18-1 through 18-3. When neither party requests an

evidentiary hearing, courts may decide a motion to dismiss on the basis of

affidavits and other documents. Bryant, 530 F.3d at 1377 n.16. Here, the

parties do not request an evidentiary hearing. Thus, the Court considers the

grievance records solely for purposes of addressing the parties’ competing

contentions regarding exhaustion. In evaluating whether Harris 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).

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,

8

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

9

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. The Parties’ Positions Regarding Exhaustion

In the AC, Harris asserts that he filed an informal grievance (#231-2204-

10

0108) on April 17, 2022, at Suwannee Correctional Institution (Suwannee CI)

concerning the pertinent events. AC at 5. He alleges that, as a result of the

informal grievance, Sergeant Lindblade threatened him “with physical abuse”

if he continued to exhaust his administrative remedies. Id. According to Harris,

he pursued an appeal of the informal grievance, but “[t]he appeal was not even

processed, a common practice at Suwannee C.I. Annex.” Id. After Harris filed

the appeal, Sergeant Lindblade “carried out his threats of physical abuse . . .

and made further threats. . . .” Id. Based on the above, Harris argues the

grievance process was unavailable to him. Id.

Goodwin contends that Harris failed to properly exhaust his

administrative remedies. Motion at 13. He asserts that while Harris filed an

informal grievance, he failed to pursue a grievance appeal. Id. With his Motion,

Goodwin provides declarations and records regarding Harris’s exhaustion

efforts. See Doc. 18-1 through 18-3. In her declaration, Magen Stofel, a

grievance coordinator at Suwannee CI, avers that Harris submitted four

“Appeals grievances” between April 14, 2022, and June 15, 2022. Doc. 18-1 at

3. She states that three of the grievance appeals were returned for failure to

comply with Rule 33-103.014, and the remaining grievance appeal was denied.

Id. Stofel maintains that Harris “filed no formal grievances or appeals

regarding alleged abuse.” Id. In a sworn declaration, Lawanda Sanders, an

11

operation analyst for the FDOC Bureau of Policy Management and Inmate

Grievance Appeals, confirms these findings. Doc. 18-2 at 2–3. A printout from

the FDOC inmate grievance database reflects Harris failed to file any appeals

grievances between June 16, 2022, and November 18, 2022. Id. at 4.

In addition, Goodwin attaches as an exhibit the informal grievance

(#231-2204-0108) that Harris submitted on April 17, 2022:

On 4/16/22, between the times of 12 a.m. – 1:30 a.m.

(the cameras of O2 dayroom will confirm, which I call

as witness), I went to the officers stations [and] to the

booth technician, C.O. Foster that I had a medical

emergency [and] was having chest pains. She told me,

“It’s finna [sic] be court [and] I ain’t going no where

until after court,” and sent me back in wing 2. I sat on

the bench in the dayroom of O2 for 15 to 20 mins

without court being called or even recall, before I

passed out [and] had a seizure. The nurse came [and]

got me on a stretcher [and] took me to medical [and]

gave me medication for my chest pains [and]

something else to lower my blood pressure. C.O.

Foster’s actions showed a deliberate indifference to my

health [and] safety [and] by not following proper

protocol placed me at risk to have a stroke or heart

attack. She’s in direct violation of 33-208.002(8), as

well as my U.S. Constitutional Eighth Amendment

Right. A copy of this grievance has been made [and]

will be attached to my Complaint.

Doc. 18-3 at 2. On April 23, 2022, Suwannee CI denied the grievance:

Camera was reviewed and does not support your

allegations. Officer Foster was interviewed and has no

knowledge of your allegations.

Id.

12

Harris responds that, after Sergeant Lindblade threatened him for filing

the April 17th grievance, he “began to have copies of his grievances and their

attachments, made by [the] law library (before submitting them; so he’d have

proof) as exhibits to his motions.” Response at 3. He asserts that, on May 11,

2022, he made copies at the law library of two grievances before he submitted

them “to the institution[’]s lock box”: an informal grievance about falsifying

documents and the appeal of his April 17th grievance. Id. at 4. The next day,

May 11, 2022, Sergeant Lindblade allegedly assaulted Harris. Id. According to

Harris, Sergeant Lindblade’s threats rendered the grievance process

unavailable. See id. at 3. Moreover, he argues that the grievance process

operates “as a simple dead end, with prison officials unable or consistently

unwilling to provide any relief to aggrieved inmates. . . .” 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 Harris’s allegations.

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

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

asserts that although Harris filed an informal grievance, he failed to pursue

an appeal. Motion at 13. Therefore, he contends that Harris did not properly

exhaust administrative remedies because he did not comply with the FDOC’s

13

grievance procedure. See id. Harris responds that he filed an informal

grievance on April 17, 2022, and an appeal on May 11, 2022. Response at 3–4.

He maintains that he never received a response to the grievance appeal, id. at

4, and he did not have available administrative remedies, id. at 3. Accepting

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

step of the Turner analysis.

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. On review of the record, the Court finds that Goodwin has met his

burden of establishing that Harris failed to properly exhaust his

administrative remedies. The grievance records submitted by Goodwin

demonstrate that Harris filed an informal grievance concerning the pertinent

events. Doc. 18-3 at 2. However, he failed to file a formal grievance or grievance

appeal. See Docs. 18-1 at 2–3; 18-2 at 2–4. While Harris alleges that he pursued

an appeal of the informal grievance, his assertion is unavailing. Harris neither

summarizes the contents of the appeal grievance that he allegedly submitted,

nor does he say how or why, beyond mere speculation, he believes it was not

“processed.” AC at 5. Harris states that he began to make copies of his

grievances, including the alleged appeal, so he would have proof that he

14

submitted them. Response at 3. Yet, Harris does not provide the Court with a

copy of the grievance appeal. As such, the Court finds Harris did not appeal

the informal grievance, and in failing to do so, he did not complete the requisite

steps to exhaust as determined by state law. See Dimanche, 783 F.3d at 1211

(recognizing that the FDOC uses a three-step process for inmate grievances

that includes an informal grievance, formal grievance, and appeal). Therefore,

Harris did not properly exhaust his administrative remedies because he failed

to comply with FDOC procedural requirements.

Next, Harris contends the grievance process was unavailable to him

because prison officials threatened him. He specifically asserts that Sergeant

Lindblade threatened him twice about filing grievances and lawsuits. AC at 3.

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 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

15

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 v. Smith, 898 F.3d 1072, 1083 (11th Cir.

2018). “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))).

Here, Goodwin has established that the FDOC has an administrative

grievance process and that Harris failed to resort to the FDOC’s established

grievance process. Therefore, the burden shifts to Harris to “demonstrate that

the [FDOC’s] grievance procedure was ‘subjectively’ and ‘objectively’

unavailable to him.” Id. at 1356. Assuming Sergeant Lindblade’s threats would

deter a reasonable inmate from using the grievance process, they did not

16

actually deter Harris. He contends Sergeant Lindblade threatened him on

April 20, 2022, and assaulted him on May 12, 2022. AC at 2–3. But Harris filed

an informal grievance about falsified documents on May 11, 2022, Doc. 25-1 at

3–4, and filed four grievance appeals between April 14, 2022, and June 15,

2022, Docs. 18-1 at 2–3; 18-2 at 2–3. As such, Harris was not actually deterred

from exercising his administrative remedies. Moreover, even if Harris was

subjectively deterred from filing grievances at Suwannee CI, 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). Harris does not contend that he was unaware of his ability

to bypass the institutional grievance process. To the contrary, Harris’s

allegations in the AC suggest he is familiar with the grievance process. See,

e.g., AC at 2 (alleging Foster disliked him for “writing grievances and bringing

legal claims against F.D.O.C. staff”). Nevertheless, it appears that he did not

submit such a grievance.

Harris also argues that the grievance process operates as a dead end

because he has filed sixty-six grievances since 2017, but prison officials have

only approved five grievances. Response at 5. However, Harris points to no

facts suggesting that any of the grievances which prison officials denied had

merit or were improperly denied. And, “the exhaustion requirement cannot be

17

waived based upon the prisoner’s belief that pursuing administrative

procedures would be futile.” Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th

Cir. 2000) (per curiam). Based on the above, the Court finds Harris had

available administrative remedies that he failed to exhaust before initiating

this lawsuit. Accordingly, Goodwin’s Motion to Dismiss is due to be granted

based upon the contention that Harris failed to exhaust the required

administrative remedies.

V. Goodwin’s Remaining Arguments

Because Harris’s claims against Goodwin are due to be dismissed for

failure to satisfy the PLRA’s exhaustion requirement, the Court need not

address his remaining arguments. Therefore, as to these issues, the Motion is

due to be denied without prejudice.

VI. Dismissal of Claims Against Foster

The Court addresses the status of Harris’s claims against the remaining

Defendant, Foster. On December 1, 2022, the Court directed service of process

on all Defendants. See Order (Doc. 8). The FDOC advised the Court that Foster

was no longer an employee, see Doc. 23, and on March 27, 2022, the FDOC

filed a sealed notice providing Foster’s full name and last known address, see

Doc. S-26. The Court redirected service of process on Foster at her last known

address, which the United States Marshals Service (USMS) returned as

18

unexecuted. See Doc. S-28. Thereafter, the Court directed Harris, by June 1,

2023, to show cause why the claims against Foster should not be dismissed

from this action. See Order to Show Cause (Doc. 29). Harris responded to the

Court’s Order, arguing that he lacks the resources available to the FDOC and

that the FDOC should account for its employee’s actions. See Response to

Order to Show Cause (Doc. 33). He also has requested that the Court enter

default judgment against Foster “for hiding from [the] process server.”

Plaintiff’s Show of Cause and Request for Entry of Default Against Defendant

Foster (Doc. 49).

Upon review of the record, the Court finds the FDOC and the USMS have

used reasonable efforts to effect service of process on Foster. See Richardson v.

Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (finding that district court must

determine whether a former prison employee can be located with reasonable

effort, and if efforts do not prove successful, may properly dismiss claims

against unserved defendant). After the FDOC advised the Court that Foster

was no longer an FDOC employee, it provided the Court with her full name

and last known address. The USMS then used reasonable efforts to serve

Foster at that last known address, which proved unsuccessful. Moreover,

beyond Harris’s conclusory, self-serving allegation, no evidence suggests that

Foster has avoided service intentionally. Thus, Harris’s request for entry of

19

default is due to be denied, and the Court will dismiss without prejudice the

claims against Foster.

Accordingly, it is now

ORDERED:

1. Defendant Assistant Warden Goodwin’s Motion to Dismiss (Doc.

18) is GRANTED to the extent he seeks dismissal of the claims against him

based on Harris’s failure to exhaust administrative remedies. In all other

respects, the Motion is denied without prejudice.

2. The claims against Defendant Officer Foster are DISMISSED

WITHOUT PREJUDICE.

3. The Clerk shall enter judgment dismissing this case without

prejudice, terminate any pending motions, and close the case.

DONE AND ORDERED at Jacksonville, Florida, this 12th day of

January, 2024.

United States District Judge

Jax-9 12/18

C: Richard Harris, #L24755

Counsel of record

20