Chestnut v. Williams

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

GENARD DENEZ CHESTNUT,

Plaintiff,

v. Case No. 3:22-cv-1349-BJD-LLL

COLIN WILLIAMS, et al.,

Defendants.

_________________________________

ORDER

I. Status

Plaintiff, Genard Denez Chestnut, is a state inmate proceeding on a

counseled complaint for damages against six individuals arising out of an

alleged assault by officers at Florida State Prison (FSP) on December 7, 2018,

and subsequent efforts to minimize or conceal the assault (Doc. 1). Plaintiff

alleges the December 7, 2018 assault was only one of many at FSP, where he

experienced “a pattern of abuse by a group of security officers who routinely

indulge[d] in brutal acts against prisoners . . . in retaliation for . . . [writing]

grievances on abuse.” See Doc. 1 at 6. He brings the following claims under 42

U.S.C. § 1983: retaliation; excessive force; supervisor liability; failure to

intervene; failure to protect; and conspiracy. Id. at 7-10. He also brings a claim

for abuse or neglect of a vulnerable adult under Florida Statutes section

415.1111. Id. at 11.

Before the Court are the following motions: (1) Defendants Williams,

Lola, and Atteberry’s Motion to Strike (Doc. 12), with Plaintiff’s response in

opposition (Doc. 16); (2) Defendant Burgin’s Motion to Dismiss (Doc. 28), with

Plaintiff’s response in opposition (Doc. 29); and (3) Defendant Singletary’s

Motion to Dismiss (Doc. 35), with Plaintiff’s response in opposition (Doc. 36).

II. Motion to Strike

Defendants Williams, Lola, and Atteberry, who filed answers (Docs. 13-

15), move to strike paragraphs 13-17 and 20-21 of the complaint under Rule

12(f) for containing “immaterial, impertinent, and scandalous matter.” See

Doc. 12 at 1-2. The contested allegations are set forth in the introductory facts

section labeled, “Culture of Violence at [FSP].” See Doc. 1 at 2-4. Defendants

claim these allegations are not only “immaterial, impertinent, and

scandalous,” but also “unsupported” and unrelated to Plaintiff’s claims. See

Doc. 12 at 2. In response, Plaintiff notes the allegations “provide the context

and atmosphere for the specific allegations rendered against Defendants” or

relevant and important background material. See Doc. 16 at 4-7.

Motions to strike generally are disfavored and usually denied unless the

disputed allegations have “no possible relation to the controversy.” Augustus

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v. Bd. of Pub. Instruction, 306 F.2d 862, 868 (5th Cir. 1962). See also Seibel v.

Soc’y Lease, Inc., 969 F. Supp. 713, 715 (M.D. Fla. 1997) (“Motions to strike

will usually be denied unless the allegations have no possible relation to the

controversy and may cause prejudice to one of the parties.”). Upon review, the

Court finds the allegations at issue cannot be said to have “no possible relation

to the controversy.” See Augustus, 306 F.2d at 868. As such, the motion to

strike will be denied.

III. Motions to Dismiss

Defendants Burgin and Singletary were nurses providing medical care

for inmates at FSP at the relevant times. See Doc. 1 at 2. Plaintiff alleges

Defendant Singletary “minimally treated [him] . . . [and] failed to fully

document [his] injuries,” and “it was arranged” for Defendant Burgin “to

document a wholly fictitious account of the post use of force examination.” Id.

at 5-6. Plaintiff does not assert a deliberate indifference claim against the

nurse-Defendants, but rather, he alleges they conspired with other Defendants

to violate his constitutional rights “by acts designed to achieve a personal goal

and carry out a criminal purpose,” presumably to “cover-up the assault.” Id. at

6, 10.

Defendants Burgin and Singletary seek dismissal of the conspiracy claim

against them on the ground that Plaintiff makes “no particularized allegations

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that a conspiracy exist[ed].” See Doc. 28 at 6; Doc. 35 at 6. They further argue

he did not exhaust his administrative remedies. See Doc. 28 at 7; Doc. 35 at 8.

Defendant Burgin, but not Defendant Singletary, invokes qualified immunity.

See Doc. 28 11. Plaintiff counters that he alleges enough facts that, accepted

as true, permit the reasonable inference a conspiracy existed, and he exhausted

his administrative remedies. See Doc. 29 at 6-7; Doc. 36 at 3-5. He further

argues Defendant Burgin cannot invoke qualified immunity because she was

not a government official but rather a privately retained nurse under contract

to provide medical services to inmates. See Doc. 29 at 11.

A. Standard of Review

A defendant may move to dismiss a complaint for a plaintiff’s “failure to

state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In

ruling on such a motion, the court must accept the plaintiff’s allegations as

true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Though detailed factual

allegations are not required, Rule 8(a) demands “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Id. A plaintiff should allege

enough facts “to raise a reasonable expectation that discovery will reveal

evidence” supporting the plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007).

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B. Exhaustion

The Prison Litigation Reform Act (PLRA) provides, “[n]o action shall be

brought with respect to prison conditions . . . until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of

available administrative remedies is “a precondition to an adjudication on the

merits.” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Although

prisoners need not affirmatively “demonstrate exhaustion in their complaints,”

Jones v. Bock, 549 U.S. 199, 216 (2007), and “the PLRA exhaustion

requirement is not jurisdictional[,]” Woodford v. Ngo, 548 U.S. 81, 101 (2006),

“exhaustion is mandatory . . . and unexhausted claims cannot be brought,”

Pavao v. Sims, 679 F. App’x 819, 823 (11th Cir. 2017) (citing Jones, 549 U.S.

at 211).

Not only is there a recognized exhaustion requirement, “the PLRA . . .

requires proper exhaustion” as set forth in applicable administrative rules and

policies. Woodford, 548 U.S. at 93. As such, “[p]roper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules[.]”

Id. Generally, to properly exhaust administrative remedies, a Florida prisoner

must timely complete a three-step process as fully set forth in the Florida

Administrative Code (FAC). See Fla. Admin. Code rr. 33-103.001 through 33-

103.018. Except for specific, enumerated issues, a prisoner generally must

initiate the grievance process at the first step by filing an informal grievance

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within “20 days of when the incident or action being grieved occurred.” See Fla.

Admin. Code rr. 33-103.005(1), 33-103.011(1)(a). If an informal grievance is

denied, a prisoner must proceed to the second step of the process by filing a

formal grievance at the institution within 15 days from “[t]he date on which

the informal grievance was responded to.” See Fla. Admin. Code rr. 33-

103.006(1), 33-103.011(1)(b). The third and final step of the grievance process

requires a prisoner to submit an appeal to the Office of the Secretary of the

Florida Department of Corrections within 15 days “from the date the response

to the formal grievance [was] returned to the inmate.” See Fla. Admin. Code

rr. 33-103.007(1), 33-103.011(1)(c).

A prisoner may bypass both the first and second steps of the process and

“proceed directly to the Office of the Secretary” when seeking to grieve issues

related to an emergency, a reprisal, protective management, reading material,

sentence structure (such as release date), or his prison bank account. See Fla.

Admin. Code rr. 33-103.005(1), 33-103.007(3). A grievance filed at any step of

the process may be returned to the prisoner without action or processing for

certain enumerated procedural deficiencies. See Fla. Admin. Code r. 33-

103.014(1). But if a prisoner submits a grievance that does not comply with the

grievance process because it is late, filed at the wrong step, or otherwise infirm,

and the grievance is processed and substantively addressed, prison officials

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may not later challenge exhaustion on those procedural grounds. See, e.g.,

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1215 (11th Cir. 2015)

(agreeing with other circuits and holding “a procedural flaw ignored by a prison

cannot later be resurrected . . . to defeat exhaustion”). In other words, in ruling

on an exhaustion defense, a court may not enforce a procedural rule that prison

officials themselves ignored or overlooked when processing a grievance. Id.

When confronted with an exhaustion defense, courts in the Eleventh

Circuit employ a two-step process:

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. . . . 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 1209 (citing Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008)).

Because failure to exhaust is an affirmative defense, the defendant bears the

burden. Turner, 541 F.3d at 1082.

With supporting grievance records (Docs. 28-3, 35-1), Defendants Burgin

and Singletary argue Plaintiff “failed to timely or properly follow the grievance

procedures” because his one grievance about the incident was “returned,” and

it did not mention medical care, medical providers, or a cover-up. See Doc. 28

at 10-11; Doc. 35 at 11. Plaintiff disagrees, asserting he satisfied his exhaustion

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obligation by timely filing a grievance directly to the Office of the Secretary on

December 20, 2018, which was “denied,” not “returned.” See Doc. 29 at 10; Doc.

36 at 6. He provides a copy of the grievance appeal and response (Doc. 29-1).

Accepting Plaintiff’s facts as true, the Court cannot resolve the

exhaustion issue at the first step of the Turner analysis. At the second step of

the Turner analysis, contrary to Plaintiff’s suggestion, see Doc. 29 at 8, the

Court may consider extrinsic evidence to resolve factual disputes, see Bryant,

530 F.3d at 1376 (“Where exhaustion—like jurisdiction, venue, and service of

process—is treated as a matter in abatement and not an adjudication on the

merits, it is proper for a judge to consider facts outside of the pleadings and to

resolve factual disputes so long as the factual disputes do not decide the merits

and the parties have sufficient opportunity to develop a record.” (footnotes

omitted)).

In his December 20, 2018 grievance appeal, Plaintiff complained that

officer-Defendants Williams and Brown “beat[] [him] for several minutes with

metal restraints . . . and [Defendant] Lola . . . kick[ed] [him] in [his] head and

face with boots.” See Doc. 29-1 at 2. He noted he was injured so badly that he

needed stitches. Id. Additionally, Plaintiff complained the officer-Defendants

fabricated disciplinary reports after-the-fact, reporting that he had been

handcuffed in the front rather than the back. Id. The responding official noted

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the grievance “was not accepted as a grievance of an emergency nature,” but

nevertheless Plaintiff’s “appeal [was] reviewed and evaluated.” Id. at 1. The

responding official denied Plaintiff’s grievance because “[t]he subject of [his]

grievance was previously referred to the Office of the Inspector General [(IG)].”

Id.

Accepting that Plaintiff timely filed his December 20, 2018 grievance

appeal to complain about the December 7, 2018 assault, the Court concludes

Plaintiff exhausted his administrative remedies for his claim that prison

officials conspired “to cover-up a criminal assault.” See Doc. 1 at 6. First, the

grievance appeal was addressed on the merits, not returned on procedural

grounds. Indeed, the responding prison official notified Plaintiff that “[t]he

subject of [his] grievance [had been] referred to the [IG’s Office].” See Doc. 29-

1 at 1. The Court will not enforce a procedural bar effectively waived by the

prison. See Whatley, 802 F.3d at 1215.

Moreover, when a prison official informs a prisoner that his grievance

efforts resulted in his allegations having been reported to the IG’s Office for

investigation, the prisoner may be deemed to have exhausted his

administrative remedies under the PLRA. See, e.g., Tierney v. Hattaway, No.

3:20-cv-5738-LAC-ZCB, 2022 WL 18159995, at *2 (N.D. Fla. Dec. 9, 2022);

Ham v. Salmon, No. 20-cv-81071-RAR, 2022 WL 1555080, at *6 (S.D. Fla. May

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17, 2022); Luckey v. May, No. 5:14-cv-315-MW-GRJ, 2016 WL 1128426, at *11

(N.D. Fla. Feb. 17, 2016), report and recommendation adopted sub nom., 2016

WL 1169481 (N.D. Fla. Mar. 22, 2016).

Finally, a prisoner is not required to name all would-be defendants or

mention discrete potential civil rights claims in a grievance to properly exhaust

his administrative remedies so long as he affords the agency a “full and fair

opportunity” to address his issue on the merits. See Jones, 549 U.S. at 217;

Woodford, 548 U.S. at 90. See also Maldonado v. Unnamed Defendant, 648 F.

App’x 939, 953 (11th Cir. 2016) (“The exhaustion requirement, allowing prison

officials to address complaints in the first instance, is satisfied as long as the

inmate’s grievance provides sufficient detail to allow prison officials to

investigate the alleged incident.”).1 In his grievance, Plaintiff mentioned not

only the assault by officers but also an attempt to cover it up through the

falsification of records. See Doc. 29-1 at 2. Such information sufficiently put

prison officials on notice of his complaint, which was referred to the IG’s Office

for investigation. As such, the Court finds Defendants fail to carry their burden

to show Plaintiff did not exhaust his administrative remedies, and their

motions will be denied as to that argument.

1 Any unpublished decisions cited in this Order are deemed persuasive

authority on the relevant point of law. See McNamara v. GEICO, 30 F.4th 1055, 1061

(11th Cir. 2022).

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C. Conspiracy

Plaintiff names Defendants Burgin and Singletary only in Count VI,

which is a conspiracy claim under § 1983. See Doc. 1 at 10. “A plaintiff claiming

a § 1983 conspiracy must [allege] the defendants ‘reached an understanding’

to violate [his] constitutional rights.” Grider v. City of Auburn, Ala., 618 F.3d

1240, 1260 (11th Cir. 2010). “[T]he linchpin for conspiracy is agreement, which

presupposes communication.” Bailey v. Bd. of Cnty. Comm’rs of Alachua Cnty.,

Fla., 956 F.2d 1112, 1122 (11th Cir. 1992). As with any claim for the violation

of a constitutional right, a conspiracy claim under § 1983 must be based on

more than vague and conclusory allegations. Allen v. Sec’y, Fla. Dep’t of Corr.,

578 F. App’x 836, 840 (11th Cir. 2014) (citing Twombly, 550 U.S. at 555). “It is

not enough to simply aver in the complaint that a conspiracy existed.” Id.

(quoting Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984)). See also

Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of

a complaint, they must be supported by factual allegations.”); Twombly, 550

U.S. at 556 (holding, in the context of a conspiracy claim brought under the

Sherman Act, “an allegation of parallel conduct and a bare assertion of

conspiracy will not suffice”).

Here, Plaintiff alleges “simply . . . that a conspiracy existed” as

demonstrated by Defendants Burgin’s and Singletary’s “parallel conduct,” i.e.,

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misrepresenting or omitting facts in medical reports. See Allen, 578 F. App’x

at 840; Twombly, 550 U.S. at 556. Plaintiff does not allege Defendants Burgin

or Singletary personally participated in any communications or reached an

agreement to violate his rights. See Bailey, 956 F.2d at 1122. Instead, he

alleges Defendant Singletary—apparently acting alone—“failed to fully

document [his] injuries,” and “it was arranged” for Defendant Burgin “to

document a wholly fictitious account of the post use of force examination.” See

Doc. 1 at 5-6. The allegation of an “arrange[ment]” suggests the interference

by or participation of others in Defendant Burgin’s conduct, but Plaintiff does

not assert Defendant Burgin herself was involved in such an arrangement, nor

does he specify what communications, if any, occurred to that end. See id.

Additionally, Plaintiff does not allege Defendant Burgin willfully reached an

understanding with others to violate his rights as opposed to being coerced or

forced to falsify a record. See id. Accordingly, the Court finds Defendants’

motions are due to be granted to the extent that Plaintiff fails to state a

plausible conspiracy claim against them.2

2 Defendant Burgin invokes qualified immunity. See Doc. 28 at 11. Plaintiff

argues she is a private contractor, not a public official who may invoke qualified

immunity. See Doc. 29 at 11. Defendant Burgin does not address her employment

status in her motion to dismiss, see Doc. 28 at 12, but in her certificate of interested

persons and corporate disclosure statement (Doc. 37), she acknowledges she was

employed by Centurion at the relevant times. Given the Court’s ruling on Defendant

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In his counseled responses, Plaintiff requests leave to amend should the

Court find he fails to state a plausible conspiracy claim against Defendants

Burgin and Singletary. See Doc. 29 at 7; Doc. 36 at 5. This request is not

properly before the Court because Plaintiff has not filed a motion seeking such

relief, see Fed. R. Civ. P. 7(b) (“A request for a court order must be made by

motion.”), nor has he set forth the substance of any proposed amendment, see

Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999) (“A motion for leave to

amend should either set forth the substance of the proposed amendment or

attach a copy of the proposed amendment.”). As such, the Court will not

entertain the request but will dismiss the conspiracy claims against

Defendants Burgin and Singletary without prejudice to afford Plaintiff an

opportunity to submit a proper motion to amend if he so chooses.

Accordingly, it is now

ORDERED:

1. Defendants Williams, Lola, and Atteberry’s Motion to Strike (Doc.

12) is DENIED.

Burgin’s argument that Plaintiff fails to state a plausible conspiracy claim, the Court

finds it need not address the qualified immunity argument.

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2. Defendant Burgin’s Motion to Dismiss (Doc. 28) is GRANTED in

part to the extent that Plaintiff fails to state a plausible conspiracy claim

against her.

3. Defendant Singletary’s Motion to Dismiss (Doc. 35) is GRANTED

in part to the extent that Plaintiff fails to state a plausible conspiracy claim

against her.

4. The conspiracy claims against Defendants Burgin and Singletary

are DISMISSED without prejudice subject to Plaintiffs right to file a

proper motion to amend within twenty days of the date of this Order if he so

chooses.

5. The Clerk shall terminate Defendants Burgin and Singletary as

parties to this action.

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

January 2024.

Zh. OW -

A Aas | tA eran

BRIAN/J DAVIS

United States District Judge

Jax-6

C:

Counsel of Record

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