Brown v. Williams

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-24604-BLOOM/Otazo-Reyes

KEVIN BROWN,

Plaintiff,

v.

CAPTAIN S. WILLIAMS, et al.,

Defendants.

/

OMNIBUS ORDER ON MOTIONS TO DISMISS

THIS CAUSE is before the Court upon Defendant Sergeant Mosley’s (“Mosley”) Motion

to Dismiss, ECF No. [34], and Defendant Captain S. Williams’ (“Williams”) Motion to Dismiss,

ECF No. [43] (collectively, “Motions”).1 The Court has carefully reviewed the Motions, all

opposing and supporting submissions, the record in this case, the applicable law, and is otherwise

fully advised. For the reasons stated below, the Motions are granted.

I. BACKGROUND

Plaintiff initiated this civil rights action on November 5, 2020. ECF No. [1] (“Complaint”).2

1 Plaintiff Kevin Brown (“Brown”) brings this action against Defendants Mosley and Williams, as well as

Sergeant Wadley (“Wadley”) (collectively, “Defendants”). On January 29, 2021, the Court ordered that the

United States Marshal Service (“USMS”) effectuate service on all Defendants in this action. ECF No. [19].

At this time, service has not been effectuated on Defendant Wadley. See ECF Nos. [19], [22], [24], [26],

[29], & [30]. The Court, however, pursuant to its duty to screen pro se complaints under the Prison

Litigation Reform Act, also reviews whether Plaintiff has stated any cognizable claims against Wadley. See

42 U.S.C. § 1997e(c)(1) (“The court shall on its own motion . . . dismiss any action brought with respect to

prison conditions under section 1983 of this title, . . . by a prisoner . . . if the court is satisfied that the action

. . . fails to state a claim upon which relief can be granted.”); 28 U.S.C. § 1915(e)(2)(b)(ii) (“[T]he court

shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

claim on which relief may be granted[.]”); see also Smith v. Israel, 619 F. App’x 839, 841 n.1 (11th Cir.

2015).

2 On December 30, 2020, Plaintiff filed a document identical to the Complaint entitled “Preliminary

Statement.” See ECF No. [15]. For purposes of this Order, the Court cites to ECF No. [1].

The Complaint alleges that on or about June 30, 2019, Defendant Williams conducted a search of

the dormitory where Plaintiff was housed. Id. ¶ 10. While conducting the search, Defendant

Williams ordered Plaintiff and other inmates “to strip down to their boxers and briefs in the

presence of her and other female officers, then ordered the inmates to leave all their clothing and

shoes, and walk barefooted to quad one.” Id. ¶ 11. Thereafter, on July 2, 2019, Carolyn Brown

(“Ms. Brown”), Plaintiff’s ex-wife, “filed an online grievance to Assistant Warden Scott to address

Williams’ conduct of the strip search.” Id. ¶ 12. The following day, Assistant Warden Scott replied

to Ms. Brown, advising her that the situation was “currently being reviewed.” Id. ¶ 13. Ms. Brown

then “furthered her online grievances” to Deputy Secretary Ricky Dixon and Regional Director

Brian Reid. Id. ¶ 14.

On August 29, 2019, Plaintiff was then transferred from E2102-Upper to D2101-Upper.

Id. ¶ 16. Defendant Mosley escorted Plaintiff to the new cell, which was with “an incompatible

inmate,” who, because of his medical ailments, had been “housed alone for a great period of time.”

Id. Plaintiff alleges that the transfer resulted in “an uncomfortable and stressful environment” for

him. Id. When asked why he was transferred, Defendant Mosley advised Plaintiff that it was due

to “an institutional need.” Id. ¶ 17. On the day of his transfer, Plaintiff spoke with both Defendants

Mosley and Williams, at which time Defendant Williams purportedly threatened Plaintiff by

saying: “I’m going to teach you about having your family sending emails on me.” Id. ¶¶ 18-19.

The two Defendants then walked away “laughing and joking.” Id. ¶ 19.

On September 11, 2019, Plaintiff was transferred to another cell—from D2101-Upper to

H2214-Upper. Id. ¶ 20. That same day, Assistant Warden Peter Heron emailed Ms. Brown,

informing her that he instructed Defendant Mosley to initiate the transfer. Id. ¶ 21. Thereafter,

Defendant Wadley saw Plaintiff on the compound, and threatened Plaintiff that “her girl [referring

to Williams] is going to have someone deal with [Plaintiff] in a way he won’t like if the emails

don’t stop.” Id. ¶ 22. Plaintiff responded that he was “not worried about [Wadley] or [Williams]

doing nothing to me.” Id. ¶ 23. Sometime later, Defendant Williams warned Plaintiff that “Mr.

Heron, Mr. Dixon, Mr. Reid and whoever else you have ‘Brown Sugar’ email can’t stop me. I got

more pull than you think I got. Play with me!” Id. ¶ 24.

On December 15, 2019, Plaintiff was sitting next to his visitor in the visitation park, a

change from the prior practice which required visitors to sit across from inmates. Id. ¶¶ 25-26.

Apparently unaware of the change, Defendant Wadley ordered all inmates to sit across from their

visitors. Id. ¶ 27. Plaintiff’s visitor showed Defendant Wadley an email from Warden Morris

explaining the change in practice. Id. ¶ 29. Defendant Wadley argued with Plaintiff over the email

and left to discuss it with Defendant Williams. Id. ¶ 30. Shortly thereafter, Defendant Wadley

returned and, apparently conceding, told visitors to “sit wherever in the hell y’all want to sit.” Id.

¶ 31. Some of the visitors applauded Plaintiff, who, basking in his victory, looked toward

Defendant Wadley and smiled. Id. at ¶¶ 32-33. In response, Defendant Wadley told Plaintiff, “We

got something for you.” Id. ¶ 34. Plaintiff was then “placed in administrative confinement pending

a disciplinary report for reasons unrelated to the claims in this [C]omplaint.” Id. ¶ 35.

Based on the following allegations, Plaintiff claims that Defendants violated his

constitutional rights by retaliating against him after his ex-wife filed “online grievances”

complaining about the June 30, 2019 strip search. Specifically, Plaintiff claims that Defendants

retaliated against him, “in violation of [P]laintiff’s rights to redress of grievances under the [F]irst

and [F]ourteenth Amendment” when: (1) Defendants Mosely and Williams transferred Plaintiff to

a cell with an incompatible inmate; (2) Defendants Williams and Wadley threatened Plaintiff; and

(3) Defendants Williams and Wadley conspired to physically harm Plaintiff. See ECF No. [1]

¶¶ A1-A3.

On March 15, 2021 and April 14, 2021, Defendants Mosley and Williams filed their

respective Motions, ECF Nos. [34] & [43], arguing that the Complaint is subject to dismissal on

three bases: (1) Plaintiff failed to exhaust his administrative remedies prior to filing his civil suit;

(2) the Complaint fails to allege a First Amendment retaliation claim; and (3) the Defendants are

entitled to qualified immunity.3 Plaintiff filed a Response to each Motion, ECF Nos. [45] & [52],

to which Defendants filed Replies, ECF Nos. [50] & [53]. The Motions are ripe for consideration.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(6)4

The Federal Rules of Civil Procedure require a pleading to contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Although a complaint “does not need detailed factual allegations,” it must provide “more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on

“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (alteration

in original) (quoting Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555. These elements are required

to survive a Rule 12(b)(6) motion, which requests dismissal for “failure to state a claim upon which

relief can be granted.”

When reviewing a motion under Rule 12(b)(6), a court generally must accept the plaintiff’s

3 Because Defendants Mosley and Williams raise the identical arguments, the Court addresses them

together.

4 As it pertains to the claim against Defendant Wadley, the standard for determining whether a complaint

states a claim upon which relief can be granted is the same under § 1915(e)(2)(B) or Rule 12(b)(6) of the

Federal Rules of Civil Procedure. See Pullen v. Sec’y, Dep’t of Corr., No. 19-11797-C, 2019 WL 5784952,

at *1 (11th Cir. 1997).

allegations as true and evaluate all plausible inferences derived from those facts in plaintiff’s favor.

See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d 1076, 1084

(11th Cir. 2002). “‘Pro se pleadings are held to a less stringent standard than pleadings drafted by

attorneys’ and are liberally construed.” Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011)

(quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)). “Yet even in the

case of pro se litigants this leniency does not give a court license to serve as de facto counsel for

a party, or to rewrite an otherwise deficient pleading in order to sustain an action.” Campbell v.

Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (quoting GJR Invs., Inc. v. Cnty. of

Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)).

Nonetheless, courts “are not bound to accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty.

Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the

factual allegations in the complaint ‘obvious alternative explanation[s],’ which suggest lawful

conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental

Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). On

a 12(b) motion, courts are generally limited to the facts contained in the complaint and attached

exhibits, including documents referred to in the complaint that are central to the claim. See

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Maxcess, Inc. v.

Lucent Techs., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (“[A] document outside the four

corners of the complaint may still be considered if it is central to the plaintiff’s claims and is

undisputed in terms of authenticity.” (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir.

2002))).

B. Prison Litigation Reform Act (“PLRA”) Exhaustion Requirement

Under the PLRA, a prisoner confined in a jail may not bring a § 1983 action until

administrative remedies, as are available, are exhausted. See 42 U.S.C. § 1997e(a). The exhaustion

requirement applies to all inmate suits about prison life, and the inmate who alleges harm suffered

from prison conditions must file a grievance and exhaust the remedies available under a state or

jail’s grievance procedures as a prerequisite to a federal § 1983 action. See Johnson v. Meadows,

418 F.3d 1152, 1155-56 (11th Cir. 2005). Further, the PLRA requires “proper exhaustion,” which

demands compliance with a state’s deadlines and other procedural rules. See Woodford v. Ngo,

548 U.S. 81, 90-91, 93 (2006); see also Porter v. Nussle, 534 U.S. 516, 532 (2002).

The PLRA entirely eliminates judicial discretion and instead mandates strict exhaustion,

“irrespective of the forms of relief sought and offered through administrative avenues.” Booth v.

Churner, 532 U.S. 731, 741 n.6 (2001). Further, the Supreme Court has repeatedly reaffirmed that

“[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims

cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at

524).

Failure to exhaust administrative remedies is an affirmative defense under the PLRA and

inmates are not required to specially plead exhaustion in their complaints. Jones v. Bock, 549 U.S.

199, 216 (2007). The Eleventh Circuit Court of Appeals considers exhaustion of administrative

remedies as a matter in abatement and not an adjudication on the merits; therefore, an exhaustion

defense “should be raised in a motion to dismiss, or be treated as such if raised in a motion for

summary judgment.” Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008) (quoting Ritza v. Int’l

Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368-69 (9th Cir. 1988)).

“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 the record.” Id. at 1376. (citations

omitted) (footnote call numbers omitted). The Eleventh Circuit created a two-step process to guide

this analysis:

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.

This process is analogous to judgment on the pleadings under Federal Rule of Civil

Procedure 12(c).

If the complaint is not subject to dismissal at the first step, where the plaintiff’s

allegations are assumed to be true, the court then proceeds to make specific findings

in order to resolve the disputed factual issues related to exhaustion. The defendants

bear the burden of proving that the plaintiff has failed to exhaust his available

administrative remedies. Once the court makes findings on the disputed issues of

fact, it then decides whether under those findings the prisoner has exhausted his

available administrative remedies.

Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (citations omitted).

III. DISCUSSION

Defendants seek dismissal of the Complaint on three grounds: (1) Plaintiff failed to exhaust

administrative remedies prior to filing his civil suit; (2) Plaintiff failed to allege the elements

necessary to satisfy a First Amendment retaliation claim; and (3) the doctrine of qualified

immunity bars Plaintiff’s claims. See ECF Nos. [34] & [43]. The Court addresses each argument

in turn.

A. Exhaustion of Administrative Remedies

“The grievance procedures promulgated by the Florida Department of Corrections

(“FDOC”) require an inmate to (1) file an informal grievance to the staff member responsible for

the particular area of the problem, Fla. Admin. Code Ann. r. 33-103.005(1)(a); (2) file a formal

grievance with the warden’s office, id. at r. 33-103.006(1); and (3) submit an appeal to the Office

of the Secretary of the FDOC, id. at r. 33-103.007(1).” Parzyck v. Prison Health Servs., Inc., 627

F.3d 1215, 1218 (11th Cir. 2010); see also Dimanche v. Brown, 783 F.3d 1204, 1211 (11th Cir.

2015). “To exhaust these remedies, prisoners ordinarily must complete these steps in order and

within the time limits set forth in § 33-103.011 and must either receive a response or wait a certain

period of time before proceeding to the next step.” Pavao v. Sims, 679 F. App’x 819, 824 (11th

Cir. 2017) (per curiam) (citing Fla. Admin. Code Ann. r. 33-103.011(4)).

“Informal grievances must be received by the institution within 20 days of when the

incident or action being grieved occurred.” Jenkins v. Sloan, 826 F. App’x 833, 836 (11th Cir.

2020) (per curiam) (citing Fla. Admin. Code Ann. r. 33-103.011). “For formal grievances, the form

must be received by the institution no later than 15 days from either the incident or the date of the

response to the informal grievance, depending on what route the formal grievance is following.”

Id. The inmate’s appeal to the Office of the Secretary “[m]ust be received within 15 calendar days

from the date the response to the formal grievance is returned to the inmate.” Fla. Admin. Code

Ann. r. 33-103.011(c).

i. The Informal Grievance

On September 7, 2019, Plaintiff filed informal grievance # 401-1909-057 regarding the

alleged retaliatory August 29, 2019 cell transfer. ECF No. [34-4] at 1-2, [43-4] at 1-2 (“Informal

Grievance”); Affidavit of Kevin Brown, ECF No. [45] at 5 ¶ 2; Affidavit of Alan McManus, ECF

No. [34-1] ¶ 18. On September 16, 2019, the Informal Grievance was denied because the “issue

was addressed by the housing sergeant on 9/11/19 at 10am with your move to H2 2145.” Id.

Defendants maintain that Plaintiff failed to exhaust his administrative remedies by failing to appeal

the denial of his Informal Grievance. ECF Nos. [34] & [43]. Plaintiff disagrees. ECF Nos. [45] &

[52].

Plaintiff responds that he “appealed [the Informal Grievance] within the time frame

[allotted] by dropping it in the grievance box located at the center gate while at Everglades

Correctional Institution.” ECF No. [45] at 5. Plaintiff states that because he did not receive a

response to his appeal within twenty-five days, he “filed an appeal to Tallahassee by placing [his]

grievance in a sealed envelope.” Id. Defendant Mosley disagrees that any appeal was filed. In

support of his position, he points to the affidavit of Alan McManus, Bureau Chief of the Bureau

of Policy Management and Inmate Appeals, who provided sworn testimony that “[t]here is no

record of any escalation or appeal of this denial[,]” and that the Informal Grievance “does not

satisfy Plaintiff’s obligation to grieve the incident contained in his complaint.” ECF No. [34-1] at

¶ 18; see also Appeals Activity, ECF No. [34-3].

As to Defendant Williams’ claim, Plaintiff maintains that in September 2019, he

filed a grievance pursuant to Fla. Admin. Code r. 33-103.007 directly with the Federal Department

of Corrections (“FDOC”) regarding the threats made by Defendants Williams and Wadley because

of Ms. Brown’s emails. ECF No. [52] at 6. Plaintiff asserts that he dropped the letter in the

grievance box located at Everglades Correctional Institution and that the FDOC never responded.

Id. Defendant William, however, disagrees that any informal grievance was filed directly with the

FDOC, ECF No. [53] at 4, highlighting the “unspecified” nature or date of the grievance

purportedly sent to the FDOC. See ECF No. [53] at 4. Defendant Williams also points out that

Plaintiff’s claim about the “unspecified” direct grievance conflicts with Plaintiff’s affidavit filed

in response to Mosley’s Motion. Specifically, Plaintiff first described appealing the denial of the

Informal Grievance and “ultimately filing an appeal to Tallahassee[,]” ECF No. [45] at 5, but later

takes the position that he filed a grievance directly with the FDOC, ECF No. [52] at 5.5

5 Indeed, it is unclear whether Plaintiff is recharacterizing his alleged appeal of the Informal Grievance or

is alleging that he filed a separate grievance directly with the FDOC. Nevertheless, there is no record of a

direct grievance in either the informal grievance log or the appeals log. See ECF Nos. [43-2] & [43-3].

ii. Turner Step One

As stated above, administrative exhaustion is a three-step process where the prisoner must

first file an informal grievance with a designated staff member, then file a formal grievance with

the institution’s warden, and finally, submit an appeal to the Secretary of the FDOC. See Fla.

Admin. Code Ann. r. 33-103.005-.007. The institution is required to respond within fifteen days

of receiving an informal grievance and within twenty days of receiving a formal grievance. See id.

at r. 33-103.011. For direct grievances to the Secretary of the FDOC, the waiting period is thirty

calendar days. See id. “[E]xpiration of a time limit at any step in the process shall entitle the

complainant to proceed to the next step of the grievance process.” Id.

First, as to Plaintiff’s claim that Defendants Wadley and Williams conspired to physically

harm Plaintiff in retaliation for Ms. Brown’s online grievances, Plaintiff does not dispute that he

failed to exhaust his administrative remedies as to this claim. Therefore, the Court finds that this

claim is unexhausted.

Regarding the purported retaliatory cell transfer, the parties agree that Plaintiff exhausted

the first step of the three-step process by filing the Informal Grievance. Plaintiff claims that he

appealed the denial of the Informal Grievance, received no response, and twenty-five days later

filed an appeal to the Secretary of the FDOC. See ECF No. [45] at 5. Defendants claim that there

is no record of any such appeal to either the institution or the FDOC. See ECF No. [34-1] ¶ 18.

The Court accepts Plaintiff’s allegations of facts as true—namely, that the Plaintiff exhausted his

administrative remedies regarding his complaint that his cell was transferred in retaliation for Ms.

Brown’s emails.

At this phase of the Turner analysis, the Court also accepts Plaintiff’s allegations of

exhaustion regarding his claim that Defendants Williams and Wadley threatened him in retaliation

for Ms. Brown’s emails. Plaintiff argues that “pursuant to chapter 33-103.007”, he filed a

grievance directly to the Secretary of the FDOC regarding threats Defendants Williams and

Wadley made to him in response to Ms. Brown’s emails. ECF No. [52] at 5. Under Florida’s

Administrative Code, “grievances of reprisals . . . may be filed directly with the Office of the

Secretary[.]” Fla. Admin Code r. 33-103.007(3)(a). The Code defines 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.” Fla. Admin. Code r. 33-103.002(9). Taking Plaintiff’s allegations as true, the citation

to Fla. Admin. Code r. 33-103.007, along with the subject matter of the grievance, entitles Plaintiff

to bypass the first two steps because the grievance of reprisal complained of Defendant Williams’

and Wadley’s retaliatory threats.

iii. Turner Step Two6

“If the complaint is not subject to dismissal at the first step, where the plaintiff’s allegations

are assumed to be true, the court then proceeds to make specific findings in order to resolve the

disputed factual issues related to exhaustion.” Arias v. Perez, No. 17-20619-CIV, 2018 WL

10622892, at *2 (S.D. Fla. Feb. 23, 2018), aff’d, 758 F. App’x 878 (11th Cir. 2019). Based on the

Court’s findings, as set forth below, Plaintiff cannot establish that he has exhausted his

administrative remedies.

Plaintiff’ offers no support that he exhausted his administrative remedies other than a self-

serving affidavit. First, Plaintiff’s argument that he appealed the denial of his Informal Grievance

to the institution and to the FDOC is without any substantiation. No record of either appeal appears

6 Plaintiff cites non-binding and out-of-circuit case law for the proposition that where a factual dispute

exists as to whether plaintiff exhausted administrative remedies, the matter cannot be resolved at the motion

to dismiss phase. See ECF No. [52] at 2 (citing Sweet v. Wende Corr. Facility, 253 F. Supp. 2d 492

(W.D.N.Y. 2003). Plaintiff is incorrect. As outlined in detail above, raising failure to exhaust administrative

remedies is proper in a motion to dismiss. The Eleventh Circuit requires district courts to conduct the Turner

two-step analysis. See Montalban v. Doe, 801 F. App’x 710, 715 (11th Cir. 2020).

on appeals activity log. See ECF No. [34-1] ¶ 18; see also ECF Nos. [34-3], [43-3]. Plaintiff does

not provide the date he submitted either appeal nor does he explain the reasons he sought to appeal

the decision. Defendant Mosley’s explanation that Plaintiff was satisfied with the outcome of the

informal grievance and did not appeal it due to being transferred to a new cell is credible. See ECF

No. [34] at 10. Moreover, Plaintiff did not provide copies of the alleged appeals. See Nail v.

Collado, No. 15-23036-CIV, 2019 WL 1034186, at * 5 (S.D. Fla. Mar. 4, 2019) (“Thus, it is clear

that Florida law expected Plaintiff to retain copies of filed grievances throughout his administrative

remedy process.”).

Neither does Plaintiff provide any record evidence to support his claim that he filed a

grievance of reprisal against Defendants Williams and Wadley. Plaintiff merely alleges that he

filed the grievance in September 2019. Other than to say that the FDOC never responded, Plaintiff

does not elaborate on the content or context of his grievances.

Plaintiff’s consistent pattern of filing grievances demonstrates that he was not actually

deterred from filing grievances. See Schlicher v. Fla Dep’t of Corrs., 399 F. App’x 538, 539 (11th

Cir. 2010) (affirming dismissal for failure to exhaust where plaintiff argued that prison officials

prevented him from filing grievances through threats, but nonetheless still filed several insufficient

grievances). Plaintiff’s claims that his grievances were never responded to are questionable given

the well-documented history of grievances and responses Defendants submitted. See generally

ECF Nos. [34-1], [34-2], [34-3], [43-1], [43-2], [43-3]. Further, it shows that prior and latter

grievances were tracked in FDOC’s system and responded to, weighing against Plaintiff’s claims

that he filed multiple grievances to which neither the institution nor FDOC responded. Moreover,

Plaintiff makes no claim that the grievance process was unavailable. See Pavao v. Sims, 679 F.

App’x 819, 823 (11th Cir. 2017).

Finally, Plaintiff’s responses to the Motions conflict with one another, casting doubt on

both claims. The Court is left with only Plaintiff’s vague and conclusory statement that he

exhausted his administrative remedies as to the retaliatory cell transfer and the threats. Thus,

Defendants have met their burden of proof to show that Plaintiff did not exhaust his administrative

remedies. Defendants’ Motions are granted for failure to exhaust administrative remedies.

B. First Amendment Retaliation

In the alternative, Defendants Mosley and Williams argue that dismissal is warranted

because the Plaintiff has failed to state a claim for retaliation. Plaintiff alleges that Defendants

violated his First and Fourteenth Amendment rights when they retaliated against him “for the filing

of online grievances.” ECF No. [1] at ¶¶ A(1)-(3). Plaintiff alleges in response to the filing of

online grievances, Defendants Mosley and Williams retaliated against him when they transferred

Plaintiff to a cell with an incompatible inmate, id. at ¶¶ 16, A(2), and Defendants Williams and

Wadley retaliated against him when they threatened and conspired to physically harm Plaintiff, id.

at ¶¶ 19, 22-24, A(1), A(3).

To prevail on a First Amendment retaliation claim, Plaintiff “must establish that (1) he

engaged in constitutionally protected conduct; (2) the defendant’s retaliatory act adversely affected

the protected conduct; and (3) there is a causal connection between the retaliatory act and the

adverse effect on the conduct.” Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013)

(citation omitted). “It is an established principle of constitutional law that an inmate is considered

to be exercising his First Amendment right of freedom of speech when he complains to the prison’s

administrators about the conditions of his confinement.” Smith v. Mosley, 532 F.3d 1270, 1276

(11th Cir. 2008) (citation omitted).

i. Protected speech

Plaintiff has failed to plausibly allege that the online grievances, sent to correctional staff

by his ex-wife Carolyn Brown, were protected speech. “It is an established principle of

constitutional law that an inmate is considered to be exercising his First Amendment right to

freedom of speech when he complains to the prison’s administrators about the conditions of his

confinement.” Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008) (emphasis added) (citing

Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003); see also Hollins v. Samuals, 540 F. App’x

937, 939 (11th Cir. 2013) (“[W]e’ve found no authority holding that the First Amendment protects

a prisoner’s conduct that involves no form of complaint or petition for redress and does not even

involve verbal or written communication with someone.”). The Florida Administrative Code

defines a “grievance” as “[a] written complaint or petition, either informal or formal, by an inmate

concerning an incident or condition within an institution . . . which affects the inmate complainant

personally.” Fla. Admin. Code. Ann. r. 33-103.002(6) (alterations added). Plaintiff asserts that the

acts of retaliation were in response to the “filing of online grievances.” ECF No. [1] at ¶¶ A(1)-

(3). However, Plaintiff did not file the referenced “online grievances.” He is, instead, referring to

a series of “online grievances,” authored and sent by Ms. Brown, in which she complains about

the June 30, 2019 strip search. See id. at ¶¶ 12-15. Plaintiff fails to cite any legal support for the

proposition that he is entitled to seek redress for Ms. Brown’s speech, or, alternatively, that he was

prevented from filing grievances and that Ms. Brown’s speech should be considered his speech.

Accordingly, because Plaintiff has not plausibly alleged that he engaged in constitutionally

protected conduct, Plaintiff’s First Amendment retaliation claims fail.

ii. Adverse action

Plaintiff has also failed to plausibly allege that he suffered an adverse action from either

the cell transfer or the alleged threats. A “plaintiff suffers adverse action if the defendant’s

allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of

First Amendment rights.” Bennet v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005). The Eleventh

Circuit has recognized that, following the filing of grievances, disciplinary confinement7 or a

retaliatory transfer to another facility8 may constitute materially adverse actions.

With respect to the cell transfer, Plaintiff alleges that he was transferred to a cell with an

“incompatible inmate who had been housed alone for a great period of time due to his various

medical issues which resulted in an uncomfortable and stressful environment[.]” ECF No. [1] ¶ 16.

Plaintiff was only in the cell with the “incompatible inmate” from August 29, 2019 to September

11, 2019, a total of fourteen days. ECF No. [1] ¶¶ 16, 21. See Sherman v. Quest, No. 18-60973-

CIV, 2020 WL 6791100 at *21 (S.D. Fla. Nov. 19, 2020) (an intra-prison transfer to a “fairly-

equivalent (but windowless)” cell “does not constitute an adverse action unless the transfer is

accompanied by something more.”); see also Neitzke v. Williams, 490 U.S. 319, 323-34 (1989)

(“Because the law is clear that prisoners have no constitutionally protected liberty interest in

remaining in a particular wing of a prison . . . [plaintiff] could make no rational argument in law

or fact that his transfer violated due process.”). Plaintiff has failed to allege any facts supporting a

plausible inference that the cell transfer would have deterred an inmate of ordinary firmness from

the exercise of his First Amendment rights.

Moreover, Plaintiff also fails to allege that the purported threats were sufficient to deter a

person of ordinary firmness from exercising his First Amendment rights. Indeed, mere words

without accompanying actions do not constitute an adverse action. See Hernandez v. Fla. Dep’t of

7 See Logan v. Hall, 604 F. App’x 838, 841 (11th Cir. 2015) (per curiam) (finding prisoner stated a claim

where “in retaliation for filing lawsuits and grievances, prison officials deliberately falsified reports, which

resulted in him spending excessive time in disciplinary and close-management confinement and losing his

yard privileges.”); O’Bryant v. Finch, 673 F.3d 1207, 1215-16 (11th Cir. 2011) (per curiam) (stating that

“30 days’ disciplinary confinement” constituted “adverse action” for the purposes of a retaliation claim).

8 See Smith v. Governor for Ala., 562 F. App’x 806, 815 (11th Cir. 2014) (per curiam) (“[P]rison transfers

qualify as adverse actions for purposes of retaliation.”) (citation omitted); see also Smith v. Hebert, 533 F.

App’x 479, 482 (5th Cir. June 28, 2013) (per curiam) (“A transfer to a more dangerous prison as a penalty

for the exercise of constitutional rights has the potential to be such a deterrent.”) (citation omitted).

Corr., 281 F. App’x 862, 866 (11th Cir. 2008) (per curiam) (finding in the Eighth Amendment

context that “verbal abuse and threats by the prison officers did not state a claim because the

defendants never carried out these threats and verbal abuse alone is insufficient to state a

constitutional claim.”); Rodriguez v. Scott, 18-14005-CIV, 2018 WL 9617230 at *5-6 (S.D. Fla.

Mar. 7, 2018) (“[M]ere threatening language and gestures of a custodial officer do not, even if

true, amount to constitutional violations . . . .” (quoting McFadden v. Lucas, 713 F.2d 143, 146

(5th Cir. 1983))). The threats alleged in the Complaint do not threaten physical violence and are

not the type to cause extreme psychological harm. See ECF No. [1] ¶ 19 (“I’m going to teach you

about having your family sending emails on me.”); Id. ¶ 22 (“[Williams] is going to have someone

deal with him in a way he won’t like if the emails don’t stop.”); Id. ¶ 24. “I got more pull than you

think I got. Play with me!”). In fact, Plaintiff alleged in the Complaint that he was “not worried

about [Wadley] or Captain Williams doing nothing [sic] to me.” Id. ¶ 23. As such, Plaintiff has

failed to allege that the threats made by Defendants Wadley or Williams violated his constitutional

rights.

iii. Causation

Lastly, Plaintiff has not alleged a causal connection between Ms. Brown’s “online

grievances” and his cell transfer. Traditional indicia of causation, such as “an unusually suggestive

temporal proximity between the protected activity and the allegedly retaliatory act, or [] a pattern

of antagonism coupled with timing to establish a causal link.” See Lozman v. City of Riviera Beach,

39 F. Supp. 3d 1392, 1405 (S.D. Fla. 2014) (citations omitted). On July 2, 2019, Ms. Brown filed

her first online grievance addressed to Assistant Warden Scott complaining about the presence of

female correctional officers, including Defendant Williams, during the June 30, 2019 strip search.

ECF No. [1] ¶ 10-12. Sometime thereafter, Ms. Brown “furthered her online grievances” to Deputy

Secretary Ricky Dixon and Regional Direction Brian Reid. Id. ¶ 14-15. However, Plaintiff was not

transferred to a different cell until August 29, 2019, nearly two months after the first online

grievance. Id. ¶ 16.

Plaintiff’s allegations do not support an inference that Defendant Williams transferred

Plaintiff in retaliation for Ms. Brown’s emails. Plaintiff has not alleged that prior to his first

transfer, Defendants Williams or Mosely were aware of the online grievances. Nor has Plaintiff

alleged that Defendant Williams either had the authority to transfer inmates or that he personally

participated in the decision to transfer Plaintiff. Moreover, when Plaintiff asked Defendant Mosley

the reason for the transfer, he was told “it was an institutional need.” Id. ¶ 17. As such, Plaintiff

has failed to plausibly allege a causal connection between the “online grievances” and his cell

transfer.

For the foregoing reasons, the Court finds that Plaintiff has failed to plausibly allege a

claim for First Amendment retaliation, and the Motions are granted on this basis.

C. Conspiracy to Harm Plaintiff

To make a showing of a successful § 1983 claim for conspiracy, a plaintiff must allege a

conspiracy that resulted in the actual denial of some underlying constitutional rights. Grider v. City

of Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir. 2010). The plaintiff must show that the parties

“reached an understanding to deny the plaintiff his or her rights.” Id. (quoting Bendiburg v.

Dempsey, 909 F.2d 463, 468 (11th Cir.1990)). Additionally, the plaintiff must establish that the

conspiratorial acts impinge upon the federal right. See Bendiburg, 909 F.2d at 468 (citing

N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1563 (11th Cir. 1990)). To avoid dismissal on a motion to

dismiss, a plaintiff must make particularized allegations that a conspiracy exists. See Hansel v. All

Gone Towing Co., 132 F. App’x. 308, 309 (11th Cir. 2005) (per curiam) (citing GJR Invs., Inc. v.

Cnty. of Escambia, 132 F.3d 1359, 1370 (11th Cir. 1998)).

In the Complaint, Plaintiff claims that Defendants Wadley and Williams conspired to

physically harm Plaintiff due to the filing of the online grievances. Id. ¶ A3. According to the

Complaint, Defendant Wadley told Plaintiff, “her girl [referring to Williams] is going to have

someone deal with [Plaintiff] in a way he won’t like if the emails don’t stop.” ECF No. [1] ¶ 22.

Later, following the disagreement between Defendant Wadley, Plaintiff, and Plaintiff’s visitor

over whether the visitor and Plaintiff could sit next to each other, Defendant Wadley left to confer

with Defendant Williams over the visitation policy. When Defendant Wadley returned, Plaintiff

and his visitor were permitted to sit next to each other. Defendant Wadley told Plaintiff, “We got

something for you[,]” id. ¶ 34, and Plaintiff states he was then placed in administrative

confinement, see id. ¶ 35. However, Plaintiff admits the administrative confinement was “pending

a disciplinary report for reasons unrelated to the claims in this [C]omplaint.” Id. ¶ 35.

Here, Plaintiff fails to allege that he was denied an underlying constitutional right, nor does

he allege that Defendants Wadley and Williams “reached an understanding” to deny Plaintiff his

rights. See Grider, 618 F.3d at 1260. Plaintiff’s allegations are wholly vague and conclusory as to

his claim that Defendants Wadley and Williams conspired to harm him and, as such, are due to be

dismissed. See Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) (“A complaint may

justifiably be dismissed because of the conclusory, vague and general nature of the allegations of

conspiracy.”).

D. Qualified Immunity

Defendants Mosley and Williams argue that even if Plaintiff stated a plausible claim for

First Amendment retaliation, they are nonetheless entitled to qualified immunity because they have

not violated a clearly established right. See ECF Nos. [34] at 13-22 and [43] at 12-20. Qualified

immunity offers complete protection for government officials sued in their individual capacities if

their conduct ‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th

Cir. 2004) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)); see also Storck v.

City of Coral Springs, 354 F.3d 1307, 1313 (11th Cir. 2003). “The purpose of this immunity is to

allow government officials to carry out their discretionary duties without the fear of personal

liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is

knowingly violating the federal law.” Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003) (quoting

Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). The qualified immunity doctrine therefore

represents “a balance between the need for a remedy to protect citizens’ rights and the need for

government officials to perform their duties without the fear of constant, baseless litigation.”

Kingsland, 382 F.3d at 1231 (citation omitted). Accordingly, “[q]ualified immunity is, as the term

implies, qualified. It is not absolute.” Id. at 1233.

“Generally speaking, it is proper to grant a motion to dismiss on qualified immunity

grounds when the ‘complaint fails to allege the violation of a clearly established constitutional

right.’” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019) (quoting St. George v. Pinellas

Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002)). To prevail on a motion to dismiss based on qualified

immunity, “the public official must first prove that he was acting within the scope of his

discretionary authority when the allegedly unconstitutional acts took place.” Storck, 354 F.3d at

1314 (citing Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)).

“A government official acts within his discretionary authority if his actions were

(1) undertaken pursuant to the performance of his duties; and (2) within the scope of his authority.”

Mikko v. City of Atlanta, Ga., 857 F.3d 1136, 1144 (11th Cir. 2017) (citing Lenz v. Winburn, 51

F.3d 1540, 1545 (11th Cir. 1995)). “In applying each prong of this test, [courts] look to the general

nature of the defendant’s action, temporarily putting aside the fact that it may have been committed

for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or

under constitutionally inappropriate circumstances.” Holloman ex rel. Holloman v. Harland, 370

F.3d 1252, 1266 (11th Cir. 2004). “In other words, ‘a court must ask whether the act complained

of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of

an official’s discretionary duties.’” Mikko, 857 F.3d at 1144 (quoting Harbert Int’l, Inc. v. James,

157 F.3d 1271, 1282 (11th Cir. 1998)). “Once the public official has established that he was acting

within the scope of his discretionary authority, the burden shifts to the plaintiff to establish that

qualified immunity does not apply.” Storck, 354 F.3d at 1314 (citing Lee, 284 F.3d at 1194).

Here, Plaintiff does not dispute that Defendants Mosley and Williams were acting within

the scope of their discretionary function when the alleged retaliatory acts occurred. See generally

ECF Nos. [1], [45], and [52]. Where a plaintiff does not dispute that the defendants were acting

pursuant to their discretionary authority at the time of the alleged constitutional violations, the first

prong of the qualified immunity analysis is satisfied. See Morton v. Kirkwood, 707 F.3d 1276,

1281 (11th Cir. 2013); see also Williams v. Brown, 347 F. App’x 429, 435 (11th Cir. 2009) (finding

defendant “acted within his discretionary authority” when he transferred the plaintiff to another

facility). Additionally, Plaintiff concedes that Defendant Mosely was “in charge of housing” and

that Defendant Mosely advised Plaintiff that the cell transfer was due to “an institutional need.”

Id. ¶¶ 7, 17. Thus, because Defendants Mosley and Williams satisfied the discretionary authority

requirement, the burden shifts to Plaintiff to establish that qualified immunity is inapplicable here.

The United States Supreme Court has outlined a two-part test to determine whether a

plaintiff can meet its burden of rebutting a qualified immunity defense. First, the court must

determine whether, “[t]aken in the light most favorable to the party asserting the injury, [] the facts

alleged show the officer’s conduct violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194,

201 (2001). Second, if a constitutional right would have been violated under the plaintiff’s version

of the facts, the court must then determine “whether the right was clearly established.” Id. Courts

“may consider these two prongs in either order; an official is entitled to qualified immunity if the

plaintiff fails to establish either.” Piazza v. Jefferson Cnty., Ala., 923 F.3d 947, 951 (11th Cir.

2019) (citing Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1344 (11th Cir. 2016)).

Moreover, “only Supreme Court cases, Eleventh Circuit caselaw, and [Florida] Supreme

Court caselaw can ‘clearly establish’ law in this circuit.” Thomas ex rel. Thomas v. Roberts, 323

F.3d 950, 955 (11th Cir. 2003) (citing Hamilton By & Through Hamilton v. Cannon, 80 F.3d 1525,

1532 n.1 (11th Cir. 1996)). The essence of this inquiry is the “public official’s objective

reasonableness, regardless of his underlying intent or motivation.” Kingsland, 382 F.3d at 1231-

32 (citing Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982); Lee, 284 F.3d at 1195). “To be clearly

established, the contours of an asserted constitutional right ‘must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.’” Jones v. Cannon,

174 F.3d 1271, 1282 (11th Cir. 1999) (quoting Anderson v. Creighton, 483 U.S. 635 (1987)).

Indeed, “in the light of pre-existing law, the unlawfulness must be apparent.” Anderson, 483 U.S.

at 640. “Qualified immunity ‘gives ample room for mistaken judgments’ but does not protect ‘the

plainly incompetent or those who knowingly violate the law.’” Kingsland, 382 F.3d at 1231-32

(quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

Nonetheless, “[t]he Supreme Court and [the Eleventh Circuit] have stated that a plaintiff

cannot strip a § 1983 defendant of his qualified immunity by citing to general rules or abstract

rights.” Jones, 174 F.3d at 1282 (citing Anderson, 483 U.S. at 639); see also Walker v. Schwalbe,

112 F.3d 1127, 1132 (11th Cir. 1997) (“Plaintiffs may not discharge their burden [of showing that

a right is clearly established] by referring to general rules and abstract rights.”). “Qualified

immunity focuses on the actual, specific details of concrete cases.” Walker, 112 F.3d at 1132.

Indeed, “‘clearly established law’ should not be defined ‘at a high level of generality’” but “must

be ‘particularized’ to the facts of the case” because otherwise, “‘[p]laintiffs would be able to

convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.’” White v. Pauly, 137 S. Ct. 548, 552 (2017)

(citations omitted).

Construing the allegations in the light most favorable to Plaintiff, the Court cannot

conclude that Defendants Mosley and Williams violated any constitutional right, much less one

that was clearly established at the time of the challenged conduct. As explained, Plaintiff has failed

to allege that the online grievances sent by Ms. Brown to correctional staff qualify as Plaintiff’s

protected speech, that Defendants Mosley and Williams had Plaintiff transferred to another cell or

that the intra-prison transfer qualifies as unlawful conduct, or that there is a causal connection

between Mss. Brown’s online grievances and Plaintiff’s cell transfers. See supra Section III.B; see

also Neitzke, 490 U.S. at 323-34; Smith, 532 F.3d at 1276. Plaintiff has also failed to plausibly

allege that Defendant Williams’ purported threats rise to the level of a constitutional violation, or

that Defendant Williams conspired with Defendant Wadley to physically harm Plaintiff in

retaliation for Ms. Brown’s emails. See supra Section III.B-C. Hernandez, 281 F. App’x at 866;

Fullman, 739 F.2d at 557. Consequently, Defendants Mosley and Williams are entitled to dismissal

of this action based on qualified immunity grounds.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant Sergeant Mosley’s Motion to Dismiss, ECF No. [34], is GRANTED.

2. Defendant Captain S. Williams’ Motion to Dismiss, ECF No. [43], is GRANTED

3. Plaintiff’s Complaint, ECF No. [1], is DISMISSED with prejudice as to claims

against Sergeant Mosley and Captain S. Williams. Plaintiff’s Complaint is

DISMISSED without prejudice as to his claim against Sergeant Wadley.

4. All pending motions shall be DENIED as moot.

Case No. 20-cv-24604-BLOOM/Otazo-Reyes

5. The Clerk is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Miami, Florida, on June 11, 2021.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Kevin Brown, Pro Se

#11417

Desoto Annex

Inmate Mail/Parcels

13617 SE Highway 70

Arcadia, FL 34266

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