The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
SOL HOKE,
Plaintiff,
v. Case No.: 4:21cv128-MW/MAF
SHAVONNA MURPHY, et al.
Defendants.
_________________________/
ORDER ACCEPTING REPORT AND RECOMMENDATION
This Court has considered, without hearing, the Magistrate Judge’s Report
and Recommendation, ECF No. 91, and has also reviewed de novo Defendants’
objections, ECF No. 92. Defendants raise several objections, none of which merits
any modification of the Report and Recommendation. Each objection is addressed
in turn.
First, Defendants argue that the Magistrate Judge should have “dismissed”
Plaintiff’s mooted claims for declaratory and injunctive relief with prejudice rather
than simply denying Defendants’ motion to dismiss them as moot. See ECF No. 92
at 3. However, what Defendants request is not possible. This Court previously
determined that Plaintiff’s claims for injunctive and declaratory relief are moot. See
ECF No. 29. Dismissal of claims based on mootness is jurisdictional, Sierra Club v.
EPA, 315 F.3d 1295, 1299 (11th Cir. 2002), and dismissal for lack of jurisdiction is
always without prejudice because this Court cannot reach the merits of the claims,
Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th
Cir. 2008). Accordingly, the Magistrate Judge properly denied Defendants’ motion
to dismiss Plaintiff’s injunctive and declaratory claims as moot, and any effort to
dismiss Plaintiff’s claims with prejudice is improper. To the extent there is any
ambiguity in its earlier orders, this Court now makes plain that its prior dismissal of
Plaintiff’s claims for declaratory and injunctive relief as moot, ECF No. 29 at 2, is
without prejudice.
Second, Defendants assert that the Magistrate Judge erred in construing
Plaintiff’s complaint as suing them in both their official and individual capacities.
However, Defendants fail to provide any binding authority establishing that the
Magistrate Judge’s liberal interpretation of the pro se prisoner Plaintiff’s claim to
include an individual capacity claim is impermissible. This Court’s own review
uncovered no authority supporting this assertion. Given the liberal interpretation this
Court must afford to a pro se litigant’s pleadings, and without binding authority to
the contrary, this Court finds that the Magistrate Judge’s construal of Plaintiff’s suit
to include both official- and individual-capacity claims is appropriate.1 Further,
1 Other courts have liberally construed pro se prisoner filings to include both official- and
individual-capacity claims. Brown v. Crow, No. 2:14-CV-899-MHT, 2017 WL 2858286, at *1
(M.D. Ala. Apr. 18, 2017), report and recommendation adopted, No. 2:14CV899-MHT, 2017 WL
2837011 (M.D. Ala. June 30, 2017).
Defendants’ inclusion of a footnote in its motion to dismiss claiming to reserve the
right to raise personal-capacity defenses later, see ECF No. 82 at 10—despite the
Magistrate Judge expressly construing the complaint to include such claims in its
screening report and recommendation, see ECF No. 28 at 1—is insufficient to merit
dismissal on those grounds here.
Third, Defendants argue that the Magistrate Judge should have looked at the
discrepancies between the factual allegations in their motion to dismiss and those in
Plaintiff’s response to determine that he did not exhaust his administrative remedies
prior to filing suit. However, Defendants’ argument improperly shifts the burden to
Plaintiff to establish exhaustion. The process for determining whether Defendant
established the defense of exhaustion is as follows:
First, the court looks to the factual allegations in the defendant’s motion
to dismiss and those in the plaintiff’s response, and if they conflict,
takes the plaintiff's version of the facts as true. If, in that light, the
defendant is entitled to have the complaint dismissed for failure to
exhaust administrative remedies, it must be dismissed.
Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015). However, Defendants’
motion to dismiss does not include factual allegations regarding their grievance
procedure—instead, it points to facts that Plaintiff failed to allege regarding the
grievance procedure at the subject facility. See ECF No. 82 at 11–13. Defendants’
observation that Plaintiff failed to consistently allege details regarding the grievance
procedure—without factual allegations of their own—does not satisfy their burden
of proving that Plaintiff failed to exhaust his administrative remedies.
Fourth, Defendants describe the grievance procedure at their institution and
argue that these allegations are sufficient to establish their exhaustion defense. ECF
No. 92 at 8. Tellingly, Defendants do not acknowledge that they are alleging these
facts for the first time in their objection to the Report and Recommendation. This
fact is fatal to their objection. This Court has the discretion to decide whether to
consider and evaluate new arguments that a party did not raise before the magistrate
judge. Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1259 (11th Cir.
2022). This Court declines to do so here, where Plaintiff could have responded to
negate the exhaustion defense had Defendants properly raised these allegations and
argument.
Fifth, Defendants argue that Plaintiff’s allegations fall short of establishing a
viable First Amendment retaliation claim. Specifically, Defendants contend that
[i]f as Plaintiff alleged Defendant Murphy threatened to drug him and
continue to rape him if he reported the abuse, there could be no adverse
effect on his protected speech and no deterrence because he also alleged
she continued to rape him anyway from the first instance in mid-
January 2018 until his departure April 10, 2018.
ECF No. 92 at 9. Defendants’ argument frames Plaintiff’s factual allegations too
narrowly. Construing Plaintiff’s allegations in the light most favorable to him and
drawing all reasonable inferences in his favor—as this Court must—Plaintiff alleges
that Defendant Murphy sexually assaulted him, threatened to sexually assault him
again if he reported it, and continued to sexually assault him after he attempted to
file a grievance. See ECF No. 23. These allegations are sufficient to demonstrate that
Defendant Murphy’s alleged conduct would have deterred a person of “ordinary
firmness” from exercising his First Amendment right to file a grievance and that
there exists a causal connection between Plaintiff’s right to file a grievance and the
alleged sexual assaults. See Jacoby v. Baldwin Cnty., 666 F. App’x 759, 762 (11th
Cir. 2016) (unpublished).
Sixth, Defendants argues that Plaintiff’s Eighth Amendment claims should
fail because Plaintiff is a pretrial detainee and his claim is governed instead by the
Fourteenth Amendment. ECF No. 92 at 10–11. Because this Court previously
interpreted this claim under the Eighth Amendment, Defendants insist that the
Magistrate Judge’s “retroactive determination of the applicable Fourteenth
Amendment in place of the inapplicable Eighth Amendment claims is unfair.” Id. at
11. However, Defendants fail to acknowledge that the standards for evaluating
Plaintiff’s claims, whether under the Eighth Amendment or the Fourteenth
Amendment, are the same. E.g., Cook ex rel. Est. of Tessier v. Sheriff of Monroe
Cnty., 402 F.3d 1092, 1115 (11th Cir. 2005). Accordingly, this Court cannot discern
any prejudice Defendants may have suffered from the miscited constitutional
provision included in prior rulings. Defendants’ objection fails.2
Seventh, Defendants argue that “[b]ecause the Court did not make a relevant
Due Process Clause of the Fourteenth Amendment determination only a
determination under the inapplicable Eighth Amendment, the state tort claims
including mental and emotional damages should not proceed but should be
dismissed.” ECF No. 92 at 11. Defendants fail to provide any authority for this
assertion, likely because, as set out above (and acknowledged in Defendants’ own
motion), the standards for evaluating Plaintiff’s claims under either the Eighth
Amendment or the Fourteenth Amendment are the same.
Eighth, Defendants contend that Plaintiff’s “allegations lack dates and negate
his claim because he made no report to law enforcement until long after Defendant
Murphy left FSH. He should not be given a pass for failing to sufficiently allege
timing.” Defendants again attempt to put the burden to prove exhaustion on
Plaintiff—which is squarely foreclosed by binding caselaw. See Turner v. Burnside,
541 F.3d 1077, 1082 (11th Cir. 2008).
2 To the extent that Defendants’ lone statement that “[t]he complaint is a shotgun pleading”
is sufficient to raise an objection to the Magistrate Judge’s finding to the contrary, this Court finds
that the complaint is not a shotgun pleading. Plaintiff’s complaint does not fail “to articulate claims
with sufficient clarity to allow the defendant to frame a responsive pleading.” See Lampkin-Asam
v. Volusia Cnty. Sch. Bd., 261 F. App’x 274, 277 (11th Cir. 2008) (unpublished).
Ninth, Defendants repeat their objection that the Magistrate Judge’s
“retroactive determination of the applicable Fourteenth Amendment” in the Report
and Recommendation “in place of the inapplicable Eighth Amendment” cited in the
screening report and recommendation “is unfair.” ECF No. 92 at 14. This argument
is baseless because, as explained above, the standards for evaluating Plaintiff’s
claims under either the Eighth Amendment or the Fourteenth Amendment are the
same.
Accordingly,
IT IS ORDERED:
1. The Report and Recommendation, ECF No. 91, is accepted, over
Defendants’ objections, as this Court’s opinion.
2. Defendants’ motion to dismiss, ECF No. 82, is GRANTED in part and
DENIED in part.
a. Specifically, Defendants’ motion is GRANTED as to Plaintiff’s
official capacity claims, which are DISMISSED without
prejudice.
b. The remainder of Defendants’ motion is DENIED.
3. The case is referred to the Magistrate Judge for further proceedings in
light of this order.
SO ORDERED on April 18, 2023.
s/Mark E. Walker ____
Chief United States District Judge