Diaz v. Inch

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-23889-BLOOM

SCOTTY SANTOS DIAZ,

Plaintiff,

v.

SGT. INEZ MARTIN,

WARDEN JOSE COLON,

DR. FRANCK PAPILLON,

Defendants.

/

ORDER ON DEFENDANTS’ MOTION TO DISMISS

PLAINTIFF’S AMENDED COMPLAINT

THIS CAUSE is before the Court upon Defendants, Sergeant Inez Martin’s and Warden

Jose Colon’s, Motion to Dismiss, ECF No. [29] (“Motion”). The Court carefully reviewed the

Motion, all opposing and supporting submissions, the record in this case, the applicable law, and

is otherwise fully advised. For the reasons stated below, the Motion is denied in part and granted

in part.

I. BACKGROUND

Plaintiff is an inmate at the Dade Correctional Institution (“Dade CI”) and initiated this

civil rights action pursuant to 42 U.S.C. § 1983 on September 22, 2020. ECF No. [1] (Complaint).

After screening the Complaint under the Prison Litigation Reform Act (“PLRA”), the Court

determined that the excessive force claim against Defendant Martin to proceed and all other claims

were dismissed without prejudice. See ECF No. [9] at 17. Plaintiff filed a First Verified Amended

Complaint under 42 U.S.C. § 1983 (“Amended Complaint”). ECF No. [16] at 5-31.1 After

1 The Court relies on the pagination generated by the electronic CM/ECF database, which appears in the

subsequent screening, a claim of deliberate indifference to a serious medical need against

Defendant Colon was determined to be sufficiently pleaded along with the excessive force claim

against Defendant Martin,2 see ECF No. [18] at 12-13.

Plaintiff makes the following allegations in his Amended Complaint. Plaintiff is visually

impaired and suffers from severe stage Open Angle Glaucoma. He previously underwent surgery

to repair his vision and lost total sight in one eye. Id. at 9-10. On May 1, 2020, while housed at

Dade CI, Plaintiff was on his way to morning meal when Defendant Martin approached him and

asked why he was not wearing the blue homemade face mask issued to all inmates. Id. Plaintiff

politely advised Defendant Martin that someone took his blue face mask; however, the face mask

he was wearing was “an actual approved medical appliance issued by the medical department.” Id.

Despite being told four days earlier that inmates cannot be denied meals, id. at 11, Defendant

Martin told Plaintiff that he was not going to eat without his blue mask, id. at 8. After Plaintiff

again reminded Defendant Martin that he no longer had a blue mask, she responded “I don’t care

what happen[ed] to it,” “you’re not going to eat without it,” “now get out of my line or I’m going

to spray you.” Id. at 9. Plaintiff requested to speak with a captain or a lieutenant and advised

Defendant Martin that he was hungry and did not have any food to eat. Id. Defendant Martin

became angry and again threatened to spray Plaintiff if he did not move from the line. Id.

In fear of being sprayed, Plaintiff stepped out of line, lay down on the sidewalk on his back

in a horizontal position, and placed his blind cane across his stomach and both of his arms on the

ground. Id. Defendant Martin became even angrier, shouting “I’m going to spray you” and “I don’t

headers of all court filings.

2 Plaintiff’s claims for deliberate indifference to a serious medical need against Dr. Frank Papillon and his

due process claim against Defendant Martin were dismissed for failure to state a claim. See ECF No. [18]

at 13.

care who you want to speak to.” Id. Plaintiff pleaded with Defendant Martin not to spray his eyes,

telling her that he had already lost total sight in one of his eyes from Glaucoma. Id. Defendant

Martin then took her can of chemical agent out, placed the nozzle directly under Plaintiff’s

protective eyewear, and violently sprayed into Plaintiff’s surgically repaired eyes for a long period

of time. Id. at 9-10. As a result of the spraying, Plaintiff experienced severe pain and was unable

to breathe or see any light for several hours. Id. at 10. Plaintiff previously filed complaints and

grievances against Defendant Martin for her assaults on disabled inmates but nothing was done to

stop the abuse on disabled adult inmates. Id. at 10-11.

As a result of the spraying incident, Plaintiff was placed in administrative confinement and

erroneously charged with disobeying a verbal order. Id. at 12. Plaintiff was dragged to an empty

shower stall for decontamination. Id. Plaintiff advised the prison nurse that he had extreme pain in

his eyes and was having difficulty breathing. Id. Plaintiff requested to see a doctor for his

Glaucoma but was denied any further medical treatment by a physician. Id. In her report on the

use of chemical spray incident, Defendant Martin lied, writing that Plaintiff became angry and

waved his blind cane towards her in an aggressive manner. Id. at 12-13. Eyewitness statements

confirmed Plaintiff’s version of the events, affirming that he never became angry and never waved

his cane at Defendant Martin. Id. at 13. On May 5, 2020, Plaintiff was found guilty of disobeying

an order at the Disciplinary Report (“DR”) hearing. Id. at 14.

Plaintiff was placed in administrative confinement for eighteen (18) days and his requests

for sick-calls to treat the exacerbation of his pre-existing Glaucoma were ignored. Id. at 14-15. On

May 18, 2020, Plaintiff was released from confinement. Id. at 15. Plaintiff continued to file sick-

calls, grievances, and a “formal complaint”3 regarding the excessive force incident and requesting

3 Plaintiff advises on June 5, 2020, he sent the “formal complaint” via “certified mail directly to both

Warden Colon . . . and the institutions inspector Ms. Ryan.” Id. at 16. On July 20, 2020, Plaintiff confirmed

to see a specialist for his pre-existing and deteriorating Glaucoma. Id. at 12. On June 4, 2020,

Nurse Mercedes evaluated Plaintiff and determined that Dr. Altamirano needed to examine him.

Id. at 18. Dr. Altamirano determined that both of Plaintiff’s eyes were infected and prescribed him

antibiotic eye drops and Plaintiff signed a blue consult for an appointment with optometry. Id. On

June 24, 2020, a week after submitting a sick-call for his still-infected eyes, Nurse Mercedes

advised Plaintiff he would be seen by a doctor. Id. On July 16, 2020, thirteen (13) days after

submitting a sick-call for his eyes and twenty-two (22) days after being told he would be seen by

a doctor, Dr. Altamirano examined Plaintiff’s eyes, prescribed Excedrin and “more antibiotics,”

advised Plaintiff “he would speak to the (C.H.O.) for consult with the optometrist,” and signed a

blue consult request form. Id. at 19.

On or about July 18, 2020, Plaintiff approached Defendant Colon inside of the C-2

dormitory and showed Defendant Colon his infected eyes and personally asked him to do two

things: investigate Defendant Martin’s May 1, 2020 chemical spray “assault” and advise medical

that Plaintiff was in need of treatment. Id. at 16-17. Defendant Colon responded that he was not

advised of the “assault” and that he neither received nor read Plaintiff’s “formal complaint,” but

he stated he would email medical. Id. at 17. Plaintiff alleges that Defendant Colon “lied about [not]

receiving Plaintiff’s formal complaint” and “he never e-mailed the medical department neither.”

Id. (alteration added). Plaintiff alleges that due to the “formal complaint” along with his previous,

ongoing lawsuit regarding deliberate indifference to his severe stage Open Angle Glaucoma,4

through an inmate request to the legal mail representative that a copy of the “formal complaint” had been

received in Defendant Colon’s mailbox. Id. at 17.

4 The Court takes judicial notice of Plaintiff’s previously filed civil rights actions, Diaz v. Inch, No. 19-cv-

23954-BB (S.D. Fla. filed Sept. 24, 2019) and Diaz v. Centurion of Florida, LLC, No. 19-cv-24067-MGC

(S.D. Fla. filed Oct. 2, 2019). Error! Main Document Only.See United States v. Glover, 179 F.3d 1300,

1302 n.5 (11th Cir. 1999) (“A court may take judicial notice of its own records and the records of inferior

courts”) (citation omitted).

Defendant Colon had knowledge of Plaintiff’s serious medical condition prior to personally

observing Plaintiff’s infected eyes. Id. at 16, 18.

On August 5, 2020, more than ninety (90) days after the chemical spray use of force and

after filing “flurries of grievances, seven sick-call request[s], . . . oral request[s] to both security

and medical staff, [and] . . . a formal complaint to the Florida Department of Corrections Inspector

General,” Plaintiff was transported to Bascom Palmer Eye Institute for an appointment with an eye

specialist. Id. at 20 (alterations added). On August 20, 2020, plaintiff underwent surgery on his

right eye to alleviate the pain and lower the pressure. Id. During the three-month period between

the chemical spray use of force and the surgery, Plaintiff suffered from extreme pain and

discomfort. Id. at 24. The unnecessary delay in receiving adequate treatment caused further

damage to Plaintiff’s vision. Id.

II. LEGAL STANDARD

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

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.” Fed. R. Civ. P. 12(b)(6).

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

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. Ctny. 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)

(alterations in original). 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. 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. 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. See Jones, 549 U.S. at

216. The Eleventh Circuit Court of Appeals considers exhaustion of administrative remedies as a

matter in abatement and not generally 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. (footnotes

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 Amended Complaint on four grounds: (1) Heck v.

Humphrey, 512 U.S. 477 (1994) bars Plaintiff’s excessive force claim against Defendant Martin;

(2) Plaintiff failed to exhaust his administrative remedies as to his deliberate indifference claim

against Defendant Colon; (3) Plaintiff failed to state a claim for supervisor liability based on

deliberate indifference against Defendant Colon; and (4) the doctrine of qualified immunity bars

Plaintiff’s claims. See ECF No. [29]. The Court addresses each argument in turn.

A. Heck v. Humphrey Bar

Defendant Martin argues that because disciplinary charges stemming from the May 1, 2020

chemical spray use of force have not been expunged or overturned, Plaintiff’s claim for excessive

use of force is barred by Heck, 512 U.S. at 487 (1994) and Edwards v. Baliosk, 520 U.S. 641, 645-

46 (1997). ECF No. [29] at 7-14.

In Heck, the Supreme Court held that “when a state prisoner seeks damages in a § 1983

suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed

unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.”

Heck, 512 U.S. at 487.

“The Supreme Court has applied Heck to prisoners’ claims challenging prison disciplinary

actions[.]” Richards v. Dickens, 411 F. App’x 276, 278 (11th Cir. 2011) (citing Edwards v. Balisok,

520 U.S. 641, 646 (1997)). But it has done so only in cases where the disciplinary action involved

the loss of good-time credits that would have shortened a prisoner’s term of incarceration. See

Edwards, 520 U.S. at 646-48 (holding Heck barred a prisoner’s complaint because it would

necessarily invalidate the loss of good-time credits); see also Wilkinson v. Dotson, 544 U.S. 74,

81-82 (2005) (explaining Heck would bar claims that would necessarily shorten the length of

confinement).

The Eleventh Circuit has not extended Heck to apply to all disciplinary proceedings that

might contradict disciplinary committee findings—only those that relate to the fact or duration of

a prisoner’s confinement. See, e.g., Davis v. Hodges, 481 F. App’x 553, 555 (11th Cir. 2012)

(reversing district court’s judgment that Heck barred § 1983 claim); Roberts v. Wilson, 259 F.

App’x 226, 229 (11th Cir. 2007) (finding Heck and Baliosk barred § 1983 claim where plaintiff

lost good time credits and disciplinary adjudication never invalidated); Robinson v. Satz, 260 F.

App’x 209, 212 (11th Cir. 2007) (finding § 1983 claim not actionable where a conclusion that

plaintiff’s “due process rights were violated by the parole commission’s procedures would mean

that he is entitled to reinstatement of his gain-time credits”).

Here, Defendant Martin admits that Plaintiff was not deprived of good-time credits. ECF

No. [29] at 12. At the time of Plaintiff’s disciplinary confinement, he did not have any good-time

credit accumulated, meaning Heck is inapplicable because the confinement did not lengthen his

sentence. See Muhammad v. Close, 540 U.S. 749, 754 (2004) (explaining Heck does not apply to

all disciplinary proceedings and only those that necessarily lengthen incarceration).

Defendant Martin points to the “inconsistent factual allegation” requirement, which she

admits is “not universal” but suggests that it should apply here. Id. at 8 (citing Dixon v. Hodges,

887 F.3d 1235, 1239 (11th Cir. 2018) (“[W[here the allegation in the § 1983 complaint is a specific

one that both necessarily implies the earlier decision is invalid and is necessary to the success of

the § 1983 suit itself.”).5 Defendant Martin argues that the Rooker-Feldman doctrine prohibits

federal courts other than the Supreme Court from reviewing final judgments

The Court disagrees. The Heck bar does not apply “[w]hen a plaintiff alleges a fact that, if

true, would conflict with the earlier punishment, but that fact is not necessary to the success of his

§ 1983 suit[.]” In Dixon itself, the case Defendant Martin cites for support, the Eleventh Circuit

5 Defendant Martin also argues that because a plaintiff may seek mandamus review of an administrative

prison disciplinary report, those decisions are necessarily quasi-judicial. Thus, the Rooker-Feldman

doctrine prohibits “another full review of the incident” because “second-guessing a quasi-judicial state

disciplinary panel, where there is ‘some (or any) evidence’ to support its holding, is equivalent to assuming

that the decision was invalid . . . something federal district courts are not permitted to do.” ECF No. [29] at

14 (citing Siegel v. LePore, 234 F.3d 1163, 1172 (11th Cir. 2000). Defendant Martin’s argument cites no

case law from this circuit or any other circuit in support of her contention that the Rooker-Feldman doctrine

prohibits federal district courts from reviewing § 1983 complaints that may implicate the findings of a

prison’s disciplinary action. Thus, the argument is without merit.

held that Heck and Baliosk did not bar the plaintiff’s § 1983 complaint. The facts resemble the

facts now before the Court and merit inclusion:

The gravamen of Dixon’s § 1983 complaint is that Pollock used excessive force

against him. The success of this claim is not necessarily dependent on whether

Dixon lunged at Pollock or not. His disciplinary punishment, of course, establishes

that he did. But that factual finding is not determinative of whether Pollock used

excessive force against Dixon. It is logically possible both that Dixon lunged at

Pollock and that Pollock used excessive force against him. Because ‘there is a

version of the facts which would allow the [punishment] to stand’ alongside a

successful § 1983 suit, Heck does not control.

Dixon, 887 F.3d at 1239-40 (per curiam) (alteration in original) (footnote and omitted) (quoting

Dyer v. Lee, 488 F.3d 876, 883 (11th Cir. 2007). The “inconsistent factual allegation” rule only

applies in a narrow set of circumstances where the underlying conviction and the § 1983 complaint

are “logically contradictory.” Dyer, 488 F.3d at 884; id. (“Indeed, the factual scenario that would

force the two to contradict each other requires such a tightness of events as to be almost

implausible—no violent act of the plaintiff could be unprovoked and no excessive force by the

defendants could go unanswered.”).

Here, like in Dixon, the success of Plaintiff’s excessive force claim is not dependent upon

whether or not Plaintiff “[swung] his cane threateningly” at Defendant Martin. ECF No. [29] at

11. It is logically possible that Plaintiff swung his cane at Defendant Martin and disobeyed her

order to retrieve his blue mask and that Defendant Martin used excessive force against Plaintiff

when she sprayed chemical agents on Plaintiff’s surgically-repaired eye. See Dixon, 887 F.3d at

1239-40; see also Hunter v. City of Leeds, 941 F.3d 1265, 1276 n.12 (11th Cir. 2019) (“Because

it is logically possible that [plaintiff] pointed his gun at [defendant], and that [defendant]

nonetheless used excessive force in response, the Heck bar does not apply.”).

In sum, because Plaintiff’s disciplinary confinement did not prolong his incarceration and

because the “inconsistent factual allegation” rule does not apply, Heck does not bar Plaintiff’s

claim.6

B. Exhaustion of Administrative Remedies

Defendant Colon argues that Plaintiff failed to exhaust administrative remedies as to the

deliberate indifference claim against him. See ECF No. [29] at 14-21. In support, Defendant Colon

advises that Plaintiff was required to provide “as much relevant information” as reasonably

possible in his grievances. ECF No. [29] at 20 (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th

Cir. 2000)). Because Plaintiff did not name Defendant Colon in any grievances or appeals, he

failed to “put Warden Colon on notice” that he intended to hold Defendant Colon responsible for

deliberate indifference. Id. Moreover, the fact that Plaintiff named other prison and medical

officials in his grievances “could not have put Dade C.I. and [FDOC] officials ‘on notice of all of

the issues in contention and allow [administrators] an opportunity to investigate those issues’ as

they pertain to Warden Colon.” Id. at 21 (quoting Harvard v. Inch, 411 F. Supp. 3d 1220, 1224

(N.D. Fla. 2019) (second alteration in original). Defendant Colon asserts that allowing Plaintiff to

proceed with his deliberate indifference claim defies the purpose of the PLRA’s exhaustion

requirement. ECF No. [29] at 16-17 (quoting Harvard, 411 F. Supp. 3d at 1224 (“allowing claims

to proceed without any level of detail would thwart the purpose of the PLRA’s exhaustion

requirement.”).

The Florida Department of Corrections (“FDOC”) grievance procedures require an inmate

to: “(1) file an informal grievance to the staff member responsible for the particular area of the

6 Defendants argue further that the deliberate indifference claim is also barred by Heck “based on Warden

Colon’s failure to take disciplinary actions against Sgt. Martin or otherwise act on Plaintiff’s ‘Formal

Complaint’ for the May 1, 2020 incident.” ECF No. [29] at 14. The Court summarily rejects Defendants’

wholly unsupported and conclusory argument.

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). “[I]f an inmate is filing

a medical grievance . . . the initial informal grievance step may be omitted.” Id. (citing Fla Admin

Code. Ann. r. 33-103.006(3)(e)).“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)).

Plaintiff’s many grievances and appeals render it undisputed that he was aware of the rules

of administrative exhaustion and regularly availed himself of the process. See generally ECF No.

[29-1]. There is also no dispute that Plaintiff filed and exhausted grievances as he complains that

continuing to delay treatment to his documented Open Angle Glaucoma constitutes deliberate

indifference. See ECF No. [29-1] at 53 (Grievance Appeal # 20-6-25352 to the Secretary of the

FDOC) (“This delay in treating my serious medical condition clearly amounts to deliberate

indifference and violates the 8th and 14th amendments to the United States Constitution.”); id. at

56 (Formal Grievance # 2006-463-168) (“My vision is rapidly deteriorating and the pain has

become unbearable, to continually delay follow-up treatment and/or failure to carry out the

specialist orders is an act of deliberate indifference toward my prediagnosed serious medical

needs.”); id. at 59 (Grievance Appeal # 20-6-27817 to the Secretary of the FDOC) (“Due to the

documented and urgent nature of my current medical condition it is an act of deliberate

indifference to continually delay treating my painful and debilitating condition.”).

As a preliminary issue, the PLRA does not require plaintiffs to specially plead exhaustion.

See Jones, 549 U.S. at 216. The requirements of exhaustion are defined by the FDOC, not the

PLRA. Id. at 219. Under the FDOC’s grievance procedures, the only requirement as to the level

of factual specificity is that “[i]ncluded facts must be accurately stated” and “[e]ach grievance

must address only one issue or complaint.” Fla. Admin. Code Ann. r. 33-103.006(2)(e)-(f).

Defendant Colon submitted sixty-three (63) pages of Plaintiff’s grievances and appeals

filed after May 1, 2020. See generally ECF No. [29-1]; see also ECF No. [29-3] ¶ 14 (“The exhibits

. . . are all of Inmate Diaz’s grievances since May 1, 2020 that have been appealed to the Bureau

to this date[.]”). He also submitted an affidavit from Alan McManus, Bureau Chief of Policy

Management and Inmate Appeals. See ECF No. [29-3]. McManus’s affidavit concludes that after

reviewing Plaintiff’s appeals and related documents, he “found no appeals to the Secretary (or

grievances attached to them) that name or otherwise implicate Warden Colon in any incidents or

events involving [Plaintiff] on or around May 1, 2020.” Id. at 3. However, McManus also avers

that Plaintiff “does allege or make reference to ‘deliberate indifference’ by other, specific prison

administrators, health care providers, and generally, to no specific person or entity.” Id. at 4.

First round of grievances. On June 12, 2020, Plaintiff filed a medical formal grievance

pursuant to Fla. Admin. Code Ann. r. 33-103.006, which permits bypassing the informal grievance

step. ECF No. [29-1] at 55 (Formal Grievance # 2006-463-168). In the formal grievance addressed

to the Warden, Plaintiff complained of delays in treatment for his severe stage Open Angle

Glaucoma and sought a “return to Larkin Specialty Eye Clinic for the purpose of pain management

and retina evaluation as prescribed by the specialist without any further unnecessary delays.” Id.

at 56. Plaintiff cautioned that further delay was an act of deliberate indifference toward his

previously diagnosed medical condition but no individual was named in the grievance for causing

the delay. Id. On July 1, 2020, the formal grievance was denied. Id. at 57. On July 7, 2020, Plaintiff

appealed the denial to the Secretary of the FDOC urging that the “untreated glaucoma [WILL]

result in [irreversible] damage.” Id. at 53 (Appeal # 20-6-25352) (first alteration in original)). On

July 10, 2020, the appeal was denied. Id. at 54.

Second round of grievances. On July 7, 2020, Plaintiff filed a medical formal grievance

complaining about delay in treatment of his “rapidly deteriorating” Glaucoma and an unrelated

condition. Id. at 62 (Formal Grievance # 2007-463-043). Plaintiff requested no further delays

because his medical needs were “potentially [irreversible] and/or life threatening.” Id. On July 21,

2020, the formal grievance was denied. Id. at 63. On July 27, 2020, Plaintiff appealed the denial

to the Secretary of the FDOC, advocating that he “already lost [his] right eye due to the same

delays caused by both the medical staff and security,” and that the consults the specialist prescribed

on January 17, 2020 are “urgent.” Id. at 58 (Appeal # 20-6-27817). Plaintiff requested to be seen

by an ophthalmologist or optometrist without any further unnecessary delay. Id. at 60. The

grievance was stamped as “received” on August 6, 2020. See id. at 58. More than thirty (30)

calendar days passed without a response from the FDOC. See id. at 61 (denying appeal on

November 8, 2020, more than thirty calendar days after the receipt). “Unless the grievant has

agreed in writing to an extension, expiration of a time limit at any step in the process shall entitle

the complainant to proceed to the next step of the grievance process.” Fla. Admin. Code Ann. r.

33-103.011(4). On September 22, 2020, Plaintiff initiated the present action.

Under the first step in Turner, the Court must compare the parties’ factual allegations and

if they conflict, take the plaintiff’s version of the facts as true. Here, there is no factual conflict as

to whether Plaintiff availed himself of the administrative procedures. Defendant Colon does not

dispute that Plaintiff exhausted administrative remedies; rather, Defendant Colon argues that the

administrative remedies were not exhausted as to him. ECF No. [29] at 18; see ECF No. [29-1].

Plaintiff maintains that as long as prison officials were alerted to his problem, he was not required

to specifically provide notice to Defendant by naming him in his grievances. ECF No. [40] at 11-

12 (citing Parzyck, 627 F.3d at 1218 and Jones, 549 U.S. at 218). The only question before the

Court is whether Plaintiff was required to specifically grieve his claim of deliberate indifference

as to Defendant Colon. As such, the Court proceeds to step two of the Turner analysis.

After reviewing the grievances and the McManus Affidavit, it is clear that after the May

1, 2020 excessive force incident, Plaintiff exhausted several rounds of grievances complaining of

deliberate indifference to his pre-existing medical condition: severe stage Open Angle Glaucoma.

Plaintiff exhausted his administrative remedies as to the deliberate indifference claim against

Defendant Colon. “A prisoner need not name any particular defendant in a grievance in order to

properly exhaust his claim.” Parzyck, 627 F.3d at 1218 (citing Jones, 549 U.S. at 219). Moreover,

“the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal

notice to a particular official that he may be sued[.]” Jones, 549 U.S. at 219 (quoting Johnson v.

Johnson, 385 F.3d 503, 522 (5th Cir. 2004)).

Following the May 1, 2020 excessive force incident, Plaintiff fully exhausted two rounds

of administrative grievances complaining about delays in medical treatment for his pre-existing

Glaucoma. Separately, and in accordance with Fla. Admin. Code Ann. r. 33-103.006(2)(f),

Plaintiff grieved the May 1, 2020 excessive force incident involving Defendant Martin as well as

the DR he received because of it for disobeying an order. If it were proper to dismiss a lawsuit

unless “every known fact was included in a grievance,” it would render administrative exhaustion

“‘unworkable’ because ‘[i]t would be a rare case in which defendants could not find some facts

that allegedly was not included in a grievance, thus potentially leading to a fact-intensive litigation

over exhaustion at the outset of nearly every prisoner case.” Harvard, 411 F. Supp. 3d at 1244

(quoting Goldsmith v. White, 357 F. Supp. 2d 1336, 1338-39 (N.D. Fla. 2005)).

On the record before the Court, Plaintiff adhered to the exhaustion requirements outlined

in FDOC’s procedures. Defendant Colon has not carried his burden to show that Plaintiff failed to

exhaust his administrative remedies as to Plaintiff’s deliberate indifference claim against

Defendant Colon. Thus, dismissal on that basis is not warranted.

C. Deliberate Indifference and Supervisor Liability

Defendant Colon argues that Plaintiff’s Complaint should be dismissed because it fails to

plead facts sufficient to give rise to a claim of deliberate indifference. ECF No. [29] at 3, 21-27.

He also alleges that Plaintiff’s claim is “fundamentally a supervisory liability claim which may

not lie because Plaintiff has failed to allege that Warden Colon personally participated in any

alleged constitutional violation or that there was any causal connection” between Defendant

Colon’s actions and any constitutional violation. Id. at 27. In support, Defendant Colon contends

that the “grievances and appeals” attached to the Amended Complaint do not implicate him in

violating Plaintiff’s Eighth Amendment rights. See id. at 24. Moreover, Plaintiff’s allegation that

Defendant Colon “saw firsthand the condition of Plaintiff’s eyes is inconsequential” for two

reasons: (1) it was over two and a half months after the chemical spray incident and (2) Defendant

Colon is not a medical expert. Id. at 25.

To state a claim for deliberate indifference to a serious medical need, a plaintiff must

demonstrate: (1) a serious medical need; (2) a showing that the prison official acted with deliberate

indifference to that need; and (3) causation between that indifference and the plaintiff’s injury. See

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009). Supervisory liability arises

only “when the supervisor personally participates in the alleged unconstitutional violation or when

there is a causal connection between the actions of a supervising official and the alleged

constitutional deprivation.” Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (quotation

marks and citation omitted). “The necessary causal connection can be established ‘when a history

of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged

deprivation, and he fails to do so.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (quoting

Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003)). Plaintiff may establish a causal

connection by showing that: (1) “a history of widespread abuse puts the responsible supervisor on

notice of the need to correct the alleged deprivation and he fail[ed] to do so”; (2) “the supervisor’s

improper custom or policy le[d] to deliberate indifference to constitutional rights”; or (3) “facts

support an inference that the supervisor directed the subordinates to act unlawfully or knew that

the subordinates would act unlawfully and failed to stop them from doing so.” Douglas v. Yates,

535 F.3d 1316, 1322 (11th Cir. 2008).

The Court previously screened the Amended Complaint under 28 U.S.C. § 1915 of the

PLRA. See generally ECF No. [18]. The same standards govern dismissal for failure to state a

claim under Fed. R. Civ. P. 12(b) and dismissal for failure to state a claim under

§ 1915(e)(2)(B)(ii). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Liberally

construing Plaintiff’s pro se Amended Complaint, see Haines v. Kerner, 404 U.S. 519, 520 (1972)

(per curiam), the Court determined that Plaintiff' “stated a plausible claim for relief on his

deliberate indifference of a serious medical need claim against Defendant Colon.” ECF No. [18]

at 11.

To recapitulate, the Court determined that Plaintiff plausibly alleged a serious medical

need, see ECF No. [9] at 2, and that Defendant Colon had knowledge of Plaintiff’s condition, see

ECF No. [18] at 11. See also ECF No. [16] at 12 (“Defendant Warden Colon is already familiar

with Plaintiff’s serious medical condition through previously filed preliminary injunctions . . . for,

‘Failure to treat Plaintiff’s serious medical needs’” (citing Diaz v. Inch, No. 1:19-cv-23954-BB,

(S.D Fla. Sept. 24, 2019), ECF No. [5] (Order directed to Warden of Dade C.I. Regarding Inmate

Allegations of Deliberate Indifference to Serious Medical Needs))).

A prison official’s intentional delay of medical care is evidence of deliberate indifference.

See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The Eleventh Circuit has held that “‘failure to

provide prompt attention’ to serious medical needs ‘by delaying necessary medical treatment for

nonmedical reasons’ shows deliberate indifference.” Sparks v. Ingle, 724 F. App’x 692, 694 (11th

Cir. 2018) (quoting Thomas v. Town of Davie, 847 F.2d 771, 772-73 (11th Cir. 1988)). Defendant

Colon argues that the lapse of time between the May 1, 2020 excessive force incident and July 18,

2020 renders Plaintiff’s allegations “inconsequential.” ECF No. [29] at 25. However, the fact that

Plaintiff’s injuries were so obvious and apparent two and a half months after being chemically

sprayed speaks to the seriousness of the initial injury and the risk of subsequent worsening without

medical intervention. See Kuhne v. Fla. Dep’t of Corr., 745 F.3d 1091, 1096 (11th Cir. 2014) (“A

serious medical need is ‘one that has been diagnosed by a physician as mandating treatment or one

that is so obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.’” (quoting Mann, 588 F.3d at 1307 (11th Cir. 2009))). The fact that Defendant Colon is

not a medical professional is not relevant where he personally saw Plaintiff’s infected eyes and,

after assuring Plaintiff he would email the medical department, failed to do so. See Estelle, 429

U.S. at 104-05; see also Hoffer v. Sec'y, Fla. Dep't of Corr., 973 F.3d 1263, 1272 (11th Cir. 2020)

(“‘Choosing to deliberately disregard’ an inmate's complaints of pain ‘without any investigation

or inquiry,’ we have held, constitutes deliberate indifference.” (quoting Taylor v. Hughes, 920 F.3d

729, 734 (11th Cir. 2019))).

Plaintiff has alleged sufficient facts to infer that Defendant Colon was aware of Plaintiff’s

Open Angle Glaucoma and that he had personal knowledge of Plaintiff’s deteriorating condition

when he spoke with Plaintiff on or about July 18, 2020. Defendant Colon’s failure to ensure

Plaintiff received prompt medical treatment for his obviously infected eyes caused Plaintiff to

suffer further unnecessary pain before he eventually underwent surgery over a month later.

To the extent the supervisory liability claim against Defendant Colon is based on a theory

other than his personal participation in the alleged unconstitutional conduct, the deliberate

indifference claim fails. Plaintiff has not alleged facts to support either a history of widespread

abuse such that it would put Defendant Colon on notice or an inference that Defendant Colon had

an improper custom or policy which led to the deliberate indifference. Similarly, Plaintiff has not

alleged any facts to support an inference that Defendant Colon directed his subordinates to act

unlawfully or that he knew subordinates were acting unlawfully and he failed to stop them.

Viewed in the light most favorable to Plaintiff, as the Court must on a motion to dismiss,

the Amended Complaint sufficiently states a supervisor liability claim for deliberate indifference

to a serious medical need against Defendant Colon in his individual capacity based on his personal

participation in the constitutional deprivation.

D. Qualified Immunity

“The doctrine of qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Because qualified immunity is

‘an immunity from suit rather than a mere defense to liability,’” the Supreme Court has “stressed

the importance of resolving immunity questions at the earliest possible stage in litigation.” Id. at

231-32 (quoting Mitchell v. Forsyth, 472 U.S. 511 (1985) and Hunter v. Bryant, 502 U.S. 224, 227

(1991)). The doctrine shields “all but the plainly incompetent or those who knowingly violate the

law.” Ghates v. Khokhar, 884 F.3d 1290, 1296 (11th Cir. 2018) (quoting Ashcroft v. al-Kidd, 563

U.S. 731, 743 (2011))

“Qualified immunity offers complete protection for individual government officials

performing discretionary functions ‘insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’” Randall v.

Scott, 610 F.3d 701, 714 (11th Cir. 2010) (quoting Harlow, 457 U.S. at 818). The parties do not

dispute that Defendants were acting pursuant to their discretionary functions. See ECF Nos. [29]

at 27-32, [40] at 14-16; Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013) (finding that

when plaintiff did not dispute that defendants were acting pursuant to their discretionary authority

at the time of the alleged constitutional violation, defendants met their burden). The burden then

shifts to the plaintiff to rebut the 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 v. City of Miami,

382 F.3d 1220, 1231 (11th Cir. 2004) (citing Harlow, 457 U.S. at 819). “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, Defendants are not

entitled to qualified immunity. Defendant Martin argues that she is entitled to qualified immunity

because “Plaintiff steered his case into Heck territory and the disciplinary records show that Sgt.

Martin acted within the scope of her discretionary authority in applying chemical spray to

Plaintiff[.]” ECF No. [29] at 32. Defendant Martin’s argument fails. The Eleventh Circuit has

stated that “a defense of qualified immunity is not available in cases alleging excessive force in

violation of the Eighth Amendment, because the use of force ‘maliciously and sadistically to cause

harm’ is clearly established to be a violation of the Constitution by the Supreme Court decisions

in Hudson [v. McMillian, 503 U.S. 1 (1992)] and Whitley [v. Albers, 475 U.S. 312 (1986)].” Skrtich

v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002) (citing Johnson v. Breeden, 280 F.3d 1308,

1321-22 (11th Cir. 2002)). Although “there is no per se rule barring qualified immunity in Eighth

Amendment cases,” Bowden v. Stokely, 576 F. App’x 951, 955 (11th Cir. 2014), with regard to

claims of excessive force, “[t]he only question . . . is whether the plaintiff has alleged facts

sufficient to survive a motion to dismiss[,]” Skrtich, 280 F.3d at 1301.

The Court previously determined that Plaintiff alleged facts from which a plausible

inference could be drawn that Defendant Martin used excessive force when she “deliberately

sprayed a chemical agent directly into Plaintiff’s eyes despite him not resisting or attacking her in

any manner.” ECF No. [9] at 8. As a result of the incident, Plaintiff suffered extreme pain and

discomfort and eventually required surgery to fix the damage done to his right eye. Id. at 9; see

McReynolds v. Ala. Dep’t of Youth Servs., 204 F. App’x 819, 822 (11th Cir. 2006) (denying motion

to dismiss on qualified immunity for excessive force claim where plaintiff made sufficient

allegations to allow inference of defendants’ malicious and sadistic intent during assault on

plaintiff).

Accepting the facts alleged as true and drawing all reasonable references in favor of

Plaintiff, Defendant Colon is not entitled to qualified immunity at the motion to dismiss stage. See

Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019) (“[I]t 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.’” (citing St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th

Cir. 2002))). Plaintiff alleged Defendant Colon was deliberately indifferent when, after personally

observing Plaintiff’s infected eyes, he failed to email medical as promised. A prison official’s

intentional delay of medical care is evidence of deliberate indifference. See Estelle, 429 U.S. at

104-05. The Eleventh Circuit has held that “‘failure to provide prompt attention’ to serious medical

needs ‘by delaying necessary medical treatment for nonmedical reasons’ shows deliberate

indifference.” Sparks, 724 F. App’x at 694 (quoting Thomas, 847 F.2d at 772-73). Moreover, the

case law has established that “both long and short delays can be inexcusable, depending on the

medical need and the reason for the delay.” Alsobrook v. Alvarado, 477 F. App’x 710, 713 (11th

Cir. 2012); see Harris v. Coweta Cnty., 21 F.3d 388, 393-94 (11th Cir. 1994) (holding that

evidence of a several week delay in treating a painful hand condition created a genuine issue of

material fact about deliberate indifference).

The Court previously determined that Plaintiff properly alleged violations of his

constitutional rights under the Eighth Amendment. See ECF Nos. [9] at 17, [18] at 12-13. It was

clearly established that “correctional officers could not use force maliciously or sadistically for the

very purpose of causing harm.” Skrtich, 280 F.3d at 1304-05 (citing Whitley, 475 U.S. at 320-21).

It was clearly established that Plaintiff had a constitutional right to receive adequate medical care.

Estelle, 429 U.S. at 104-05. It is also “well-settled that prison officials’ deliberate indifference to

prisoners’ serious medical needs gives rise to a constitutional claim.” Harris, 21 F.3d at 393.

Therefore, the Court finds that Defendants are “not entitled to the defense of qualified immunity

at this stage of the case.” St. George, 285 F.3d at 1338.

Case No. 20-cv-23889-BLOOM

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [29], is

GRANTED IN PART AND DENIED IN PART as follows:

1. The Motion as to Plaintiff's excessive force claim against Defendant Martin and

Plaintiff's supervisor liability for deliberate indifference against Defendant Colon

based on his personal participation in the constitutional deprivation is denied.

2. The Motion as to Plaintiff's supervisor liability claim for deliberate indifference

against Defendant Colon for failing to ensure his staff adhered to Dade CI policies

and procedures following Plaintiff's May 1, 2020 injury is granted.

3. Defendants shall respond to Plaintiff's Amended Complaint, ECF No. [16], on or

before June 21, 2021.

DONE AND ORDERED in Chambers at Miami, Florida, on June 7, 2021.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Scotty Santos Diaz, Pro Se

# 670614

Dade Correctional Institution

Inmate Mail/Parcels

19000 SW 377th Street

Florida City, FL 33034

25