Rukavishnikov v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

VALERY RUKAVISHNIKOV,

Plaintiff,

v. Case No. 3:22-cv-898-MMH-PDB

FLORIDA DEPARTMENT

OF CORRECTIONS,

Defendant.1

________________________________

ORDER

I. Status

Plaintiff Valery Rukavishnikov, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action by filing a pro se Civil

Rights Complaint (Doc. 1)2 under 42 U.S.C. § 1983 with exhibits (Docs. 1-1 to

1-5). Rukavishnikov proceeds on a Second Amended Complaint (Doc. 29).

Rukavishnikov, who alleges he suffers from chronic hepatitis C virus (HCV),

asserts that Defendant FDOC violated the Eighth Amendment, Title II of the

1 Although Rukavishnikov refers to “Defendants” in the plural form multiple

times in the Second Amended Complaint, he names only one defendant in the caption

and “The Parties” section of the pleading: the Florida Department of Corrections. See

Second Amended Complaint (Doc. 29) at 1, 3.

2 For all pleadings and documents filed in this case, the Court cites to the

document and page numbers as assigned by the Court’s Electronic Case Filing

System.

Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation

Act (RA) when it implemented a cost-saving policy that sanctioned the delay of

medically necessary treatment for Rukavishnikov’s chronic HCV infection. Id.

at 2, 16-21. As relief, Rukavishnikov seeks declaratory relief, compensatory

and punitive damages, as well as attorney’s fees and costs. Id. at 19, 21.

This matter is before the Court on FDOC’s Motion to Dismiss (Motion;

Doc. 38) with exhibits (Docs. 38-1 to 38-2). Rukavishnikov filed a response in

opposition to the Motion. See “Motion for Opposition Responce [sic] to

Defendant’s Motion to Dismiss” (Response; Doc. 41). He also submitted

exhibits in support of the Response. See Doc. 41-1. The Motion is ripe for

review.

II. Rukavishnikov’s Allegations3

As to the specific facts underlying his Eighth Amendment, ADA, and RA

claims, Rukavishnikov asserts that he entered FDOC custody in 1993. See

Second Amended Complaint at 11. Rukavishnikov alleges FDOC medical staff

diagnosed him with HCV in 1999, and later referred him to a chronic illness

clinic for monitoring after he developed chronic HCV. Id. He maintains that

3 In considering the Motion, the Court must accept all factual allegations in

the Second Amended Complaint as true, consider the allegations in the light most

favorable to Rukavishnikov, and accept all reasonable inferences that can be drawn

from such allegations. Holland v. Carnival Corp., 50 F.4th 1088, 1093 (11th Cir.

2022). As such, the facts recited here are drawn from the Second Amended Complaint,

and may well differ from those that ultimately can be proved.

chronic HCV is a serious medical need that can cause, inter alia, liver

inflammation, liver fibrosis, cirrhosis, and possible death. Id. at 4-5.

Rukavishnikov asserts that in 2013, a new class of drugs known as direct-

acting antivirals (DAAs) became available to HCV patients. Id. at 7. He alleges

that DAAs are oral medications with few side effects that cure HCV at a rate

of 90 to 95%. Id. According to Rukavishnikov, in 2014, the American

Association for the Study of Liver Diseases and the Infectious Disease Society

of America recommended DAA treatment for all persons with chronic HCV. Id.

at 8. And since 2014, DAA treatment “has been the standard of care for the

treatment of HCV.” Id.

Rukavishnikov contends that from late 2013, when DAAs first became

available, until approximately October 2017, FDOC had a policy and practice

of refusing to provide treatment to HCV-infected inmates in order to save costs.

Id. at 9-10. Despite knowing that DAA treatment was the standard of care for

chronic HCV since 2014, Rukavishnikov alleges FDOC failed to provide DAAs

to him and “thousands of other[] HCV-infected inmates throughout the state,

in contravention of the prevailing standard of care and with deliberate

indifference to the serious medical needs of inmates with chronic HCV in

Florida.” Id. at 10. According to Rukavishnikov, FDOC’s cost-saving policy did

not end until 2017 when FDOC was “court-ordered[] to begin providing DAA[]s

to HCV-infected inmates.” Id. (footnote omitted) (citing to Hoffer v. Jones, 290

F. Supp. 3d 1292 (N.D. Fla. 2017) and Hoffer v. Inch, 382 F. Supp. 3d 1288

(N.D. Fla. 2019)). Rukavishnikov also alleges that he did not learn of DAAs

until FDOC was ordered to provide treatment based on the Hoffer litigation.4

Id. at 8.

Rukavishnikov asserts that his condition was such that DAA treatment

was medically necessary for him as early as December 2013. Id. at 13. Despite

this, he maintains FDOC only monitored his condition with routine blood

draws and did not provide him with DAAs or any other treatment for chronic

4 In the Hoffer litigation, the Northern District of Florida certified a class

consisting of “all current and future prisoners in the custody of the [FDOC] who have

been diagnosed, or will be diagnosed, with” HCV. Hoffer v. Jones, 323 F.R.D. 694, 700

(N.D. Fla. 2017). The plaintiffs sued the FDOC Secretary in her official capacity,

alleging the denial of DAAs under a cost-savings policy violated, inter alia, the Eighth

Amendment. Id. at 696. Following an evidentiary hearing, on November 17, 2017, the

court granted the plaintiffs’ request for a preliminary injunction. See Hoffer v. Jones,

290 F. Supp. 3d 1292, 1306 (N.D. Fla. 2017). After resolving issues raised on summary

judgment, on April 18, 2019, the court entered a permanent injunction mandating

that the FDOC provide DAA treatment for all HCV-positive inmates, including those

with only mild or no liver fibrosis, and finding that “[t]he only reason why FD[O]C is

electing not to provide [DAA] treatment is due to the cost of treatment, which is per

se deliberate indifference.” Hoffer v. Inch, 382 F. Supp. 3d 1288, 1302 (N.D. Fla.

2019).

The Secretary appealed, and on August 31, 2020, the Eleventh Circuit vacated

the district court’s permanent injunction; reversed the court’s finding that the

Secretary’s treatment of HCV-positive inmates with no (F0) or mild (F1) fibrosis

violated the Eighth Amendment, “with instructions to award summary judgment to

the Secretary on that issue”; and remanded the rest of the district court’s order, “so

that it can make the findings required by the PLRA.” Hoffer v. Sec’y, Fla. Dep’t of

Corr., 973 F.3d 1263, 1279 (11th Cir. 2020). The Eleventh Circuit reasoned that the

Eighth Amendment does not prohibit prison officials from considering cost in

determining what type of medical treatment to provide, and since the Secretary had

implemented a treatment plan that provides “minimally adequate care,” the plaintiffs

cannot say that her conduct in treating HCV-positive inmates amounted to deliberate

indifference. Id. at 1277-78.

HCV. Id. at 11-12. According to Rukavishnikov, FDOC also denied his repeated

requests for HCV treatment. Id. at 11. In December 2017, Rukavishnikov

alleges he was administered testing to check the stage and progression of his

HCV infection, the results of which showed that he had advanced fibrosis. Id.

at 12. Nevertheless, he alleges he did not begin treatment with DAAs until

August 2018. Id. at 14. Rukavishnikov contends that as a result of FDOC’s

failure to timely provide him with necessary medical care and treatment for

chronic HCV, he has suffered “abnormal fibrosis, significant or severe liver

pain and inflammation activity, mental confusion, disorientation and

depression,” id. at 15, as well as “persistent and extreme fatigue and low

energy, increased muscle weakness, dizziness, joint pain, abdominal

discomfort and distension, poor appetite, and nausea,” id. at 14.

Based on these facts, Rukavishnikov asserts that FDOC’s conduct

amounts to deliberate indifference to his serious medical needs in violation of

the Eighth Amendment. Id. at 2, 10-11. He also alleges that FDOC has failed

to accommodate his chronic HCV disability or provide adequate medical care

under the ADA, and that FDOC’s actions have violated the RA. Id. at 16-22.

III. Summary of the Arguments

In its Motion, FDOC argues that the Court should dismiss the Second

Amended Complaint because (1) Rukavishnikov failed to properly exhaust his

administrative remedies, and (2) the statute of limitations bars

Rukavishnikov’s claims. See Motion at 3-10. Rukavishnikov responds that the

Court should not dismiss his claims because (1) he exhausted his

administrative remedies, and (2) he timely filed this lawsuit within the statute

of limitations. See Response at 7-12.

IV. Analysis

A. Exhaustion of Administrative Remedies

1. PLRA Exhaustion

The Eleventh Circuit Court of Appeals has held the exhaustion of

administrative remedies by a prisoner is “a threshold matter” to be addressed

before considering the merits of a case. Chandler v. Crosby, 379 F.3d 1278,

1286 (11th Cir. 2004); see also Myles v. Miami-Dade Cnty. Corr. & Rehab.

Dep’t, 476 F. App’x 364, 366 (11th Cir. 2012)5 (noting that exhaustion is a

“threshold matter” that must be addressed first) (citation omitted). It is well

settled that the Prison Litigation Reform Act (PLRA) requires an inmate

wishing to challenge prison conditions to first exhaust all available

administrative remedies before asserting any claim under 42 U.S.C. § 1983.

See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532 (2002). A prisoner

5 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

such as Rukavishnikov, however, is not required to plead exhaustion. See

Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the United States Supreme

Court has recognized that “failure to exhaust is an affirmative defense under

the PLRA[.]” Id. Notably, exhaustion of available administrative remedies is

“a precondition to an adjudication on the merits” and is mandatory under the

PLRA. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Not only is there

an exhaustion requirement, the PLRA “requires proper exhaustion.” Woodford

v. Ngo, 548 U.S. 81, 93 (2006).

Because exhaustion requirements are designed to deal

with parties who do not want to exhaust,

administrative law creates an incentive for these

parties to do what they would otherwise prefer not to

do, namely, to give the agency a fair and full

opportunity to adjudicate their claims. Administrative

law does this by requiring proper exhaustion of

administrative remedies, which “means using all steps

that the agency holds out, and doing so properly (so

that the agency addresses the issues on the merits).”

Pozo,[6] 286 F.3d, at 1024 (emphasis in original).

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

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

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

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

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

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

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

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

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

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

(11th Cir. 2008) (quoting Goebert v. Lee Cnty., 510 F.3d 1312, 1322-23 (11th

Cir. 2007)). In Ross, the Supreme Court identified three circumstances in

which an administrative remedy would be considered “not available.” Ross, 578

U.S. at 643. First, “an administrative procedure is unavailable when (despite

what regulations or guidance materials may promise) it operates as a simple

dead end—with officers unable or consistently unwilling to provide any relief

to aggrieved inmates.” Id. Next, “an administrative scheme might be so opaque

that it becomes, practically speaking, incapable of use.” Id. Finally, a remedy

may be unavailable “when prison administrators thwart inmates from taking

advantage of a grievance process through machination, misrepresentation, or

intimidation.” Id. at 644.

Because failure to exhaust administrative remedies is an affirmative

defense, FDOC bears “the burden of proving that [Rukavishnikov] has failed

to exhaust his available administrative remedies.” Turner, 541 F.3d at 1082.

In accordance with Eleventh Circuit precedent, a court must employ a two-step

process when examining the issue of exhaustion of administrative remedies.

After a prisoner has exhausted the grievance

procedures, he may file suit under § 1983. In response

to a prisoner suit, defendants may bring a motion to

dismiss and raise as a defense the prisoner’s failure to

exhaust these administrative remedies. See Turner,

541 F.3d at 1081. In Turner v. Burnside we

established a two-step process for resolving motions to

dismiss prisoner lawsuits for failure to exhaust. 541

F.3d at 1082. First, district courts look to the factual

allegations in the motion to dismiss and those in the

prisoner’s response and accept the prisoner’s view of

the facts as true. The court should dismiss if the facts

as stated by the prisoner show a failure to exhaust. Id.

Second, if dismissal is not warranted on the prisoner’s

view of the facts, the court makes specific findings to

resolve disputes of fact, and should dismiss if, based

on those findings, defendants have shown a failure to

exhaust. Id. at 1082-83; see also id. at 1082 (explaining

that defendants bear the burden of showing a failure

to exhaust).

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015).

At step two of the procedure established in Turner, the Court can consider facts

outside the pleadings as long as those facts do not decide the case and the

parties have had sufficient opportunity to develop the record. Bryant, 530 F.3d

at 1376; see also Jenkins v. Sloan, 826 F. App’x 833, 838-39 (11th Cir. 2020).

Here, Rukavishnikov submitted grievance records as exhibits to his original

Complaint as well as his Response. See Docs. 1-1 to 1-5; Doc. 41-1. Likewise,

FDOC has submitted declarations and grievance records with its Motion. See

Docs. 38-1 to 38-2. The parties neither dispute the accuracy of this record

evidence, nor request an evidentiary hearing. Bryant, 530 F.3d at 1377 n.16.

Thus, the Court considers the record evidence solely for purposes of addressing

the parties’ competing contentions regarding exhaustion. In evaluating

whether Rukavishnikov has satisfied the exhaustion requirement, the Court

notes that the Eleventh Circuit has determined that a “prisoner need not name

any particular defendant in a grievance in order to properly exhaust his claim.”

Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218 (11th Cir. 2010)

(citations omitted).

2. Florida’s Prison Grievance Procedure

State law “determines what steps are required to exhaust.” Dimanche v.

Brown, 783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218

(stating that “it is the prison’s requirements, and not the PLRA, that define

the boundaries of proper exhaustion”). The FDOC provides an internal

grievance procedure for its inmates. See Fla. Admin. Code R. 33-103.001

through 33-103.018. Generally, to properly exhaust administrative remedies,

a prisoner must complete a three-step sequential process. First, an inmate

must submit an informal grievance at the institutional level to a designated

staff member responsible for the specific problem. See Fla. Admin. Code R. 33-

103.005. If the issue is not resolved, the inmate must submit a formal grievance

at the institutional level. See Fla. Admin. Code R. 33-103.006. If the matter is

not resolved through formal and informal grievances, the inmate must file an

appeal to the Office of the FDOC Secretary. See Fla. Admin. Code R. 33-

103.007. However, under certain specified circumstances, an inmate can

bypass the informal grievance stage and start with a formal grievance at the

institutional level. See Fla. Admin. Code R. 33-103.005(1); 33-103.006(3). For

instance, an inmate may skip the informal grievance stage and file a formal

grievance for medical issues or to allege an ADA violation. See id. An inmate

can also completely bypass the institutional level and proceed directly to the

Office of the FDOC Secretary by filing a “direct grievance.” See Fla. Admin.

Code R. 33-103.007(3). Emergency grievances and grievances of reprisal are

types of “direct grievances” that may be filed with the Office of the FDOC

Secretary. See Fla. Admin. Code R. 33-103.007(3)(a).

Florida Administrative Code Rule 33-103.011 provides time frames for

the submission of grievances. Informal grievances must be received within

twenty days from the date on which the grieved incident or action occurred.

See Fla. Admin. Code R. 33-103.011(1)(a). Formal grievances must be received

no later than fifteen days from the date of the response to the informal

grievance. See Fla. Admin. Code R. 33-103.011(1)(b). If an inmate is permitted

to bypass the informal grievance stage and begin with a formal grievance at

the institutional level, the formal grievance must be received no later than

fifteen days from the date on which the incident or action being grieved

occurred. Id. Grievance appeals to the Office of the FDOC Secretary must be

received within fifteen days from the date that the response to the formal

grievance is returned to the inmate. See Fla. Admin. Code R. 33-103.011(1)(c).

According to Rule 33-103.014, an informal grievance, formal grievance,

direct grievance, or grievance appeal “may be returned to the inmate without

further processing if, following a review of the grievance, one or more . . .

conditions are found to exist.” Fla. Admin. Code R. 33-103.014(1). The rule

provides an enumerated list as “the only reasons for returning a grievance

without a response on the merits.” See Fla. Admin. Code R. 33-103.014(1)(a)-

(y). A grievance can be returned without action if it: is untimely; “addresses

more than one issue or complaint”; is “so broad, general or vague in nature that

it cannot be clearly investigated, evaluated, and responded to”; is “not written

legibly and cannot be clearly understood”; is a supplement to a previously-

submitted grievance that has been accepted for review; does not “provide a

valid reason for by-passing the previous levels of review as required or the

reason provided is not acceptable”; or does not include the required

attachments. See Fla. Admin. Code R. 33-103.014(1).

3. Rukavishnikov’s Exhaustion Efforts

In support of its argument that Rukavishnikov failed to exhaust his

administrative remedies before filing this lawsuit, FDOC submits the

Declaration of FDOC Grievance Officer Marcia G. Miller (Miller Decl.), see

Doc. 38-1 at 1, and the Declaration of FDOC Operation Analyst Lawanda

Sanders-Williams (Sanders-Williams Decl.), see Doc. 38-2 at 1. Miller states in

relevant part that:

2. At the request of the Office of the Attorney

General, I have reviewed available grievance records

stored in FDC’s Central database and at Union C.I. for

Valery Rukavishnikov, DC# 193920, between January

1, 2011, and August 15, 2022. . . .

3. During that time period, Mr. Rukavishnikov did

not receive any approved informal or formal

grievances related to receiving DAA medications for

his HCV infection.

Miller Decl. at 1.7

Based on her review of Rukavishnikov’s grievance records from January

1, 2011, to August 15, 2022, Sanders-Williams states in her declaration that

FDOC’s Bureau of Policy Management and Inmate Appeals “received two

submissions from Mr. Rukavishnikov related to receiving DAA medication for

treatment of his HCV infection,” see Sanders-Williams Decl. at 1, which are

quoted below:

7 The Court notes that Miller’s Declaration includes grievance summary logs,

which list all grievances Rukavishnikov filed during the time period between January

1, 2011, and August 15, 2022. See Doc. 38-1 at 2-27. The summary logs identify each

grievance by type (i.e., “class code”), but do not otherwise set forth the actual content

of each grievance. As such, it is difficult to discern which of the listed grievances

concerned treatment of Rukavishnikov’s chronic HCV.

a. 2019 Formal Grievance and Grievance Appeal

On September 6, 2019, Rukavishnikov submitted a formal grievance

(#1909-213-042) to Union Correctional Institution (Union CI):

This is a grievance to exhaust[] administrative

remedies in regard to HCV (Hepatitis C) treatment

pursuant to Hoffer v. Jones, Case No 4:17-cv-24-

MW/CAS.

Pursuant to my medical condition the treatment I’ve

received was unsuccessful in regard to HCV. I am in

need of further treatment for this serious medical

state of health considering my age and the amount of

time expoused [sic] to the virus. Becaus[e], I still have

a sever [sic] – alarming problems concerning my liver

and my kidneys which apparently being affected too.

Occasionally I feel a sharp pain in upper-right side of

my liver and I am constantly experiencing a steady

aching pain of my kidneys which occures [sic] in my

lower back. In my case perhaps a stronger direct

acting antivirus (DAA) such as “Harvony” is necessary

to completely get rid of any Hepatitis C virus or

symptoms in order to help the liver to heal it-self,

rebuild it-self, and restor [sic] its proper function.

On June 30 or about I sent inmate request to Health

Services Administrator seeking medical attention for

further treatment of my liver and kidneys.

Unfortunately, I did not get any reply. Additionaly

[sic], to the same HCV medical issue on June 23, or

about I sent inmate request to the medical records

office asking for a copy of my HCV record. I also on 8-

15-19 I sent informal grievance. Regreatfuly [sic], I’ve

still not received any copies I ordered yet. Even the

simple act of request process showes [sic] how the

medical deliberate indifferance [sic] is exercised.

Relief Sought

1) Schedule another treatment perhaps with DAA

drugs such as “Harvony” to prevent further

detariation [sic] of my liver, kidneys, and my health

in general.

2) Please schedule a food diet and some othe [sic]

medication to help restore the liver and kidneys to

their proper functions.

On behalf of many thousand inmates I am enormously

greatful [sic] to Florida DOC authority for their

decidive [sic] action to completely cure HCV apidemic

[sic] in Florida prison population.

See Doc. 38-2 at 7-8. On September 25, 2019, Union CI denied the formal

grievance, stating in pertinent part:

Your request for Administrative Remedy or Appeal

has been received, reviewed and evaluated.

Inmate RUKAVISHNIKOV, your Hepatitis C

Treatment will be handled in accordance with FDC

procedures and applicable treatment protocols.

Reviewed records indicate that you were seen by the

Clinician on July 12, 2019, and are being monitored.

You are being treated in accordance with FDC policy

and procedure.

Based on the above information, your grievance is

denied.

See Doc. 38-2 at 9. Rukavishnikov subsequently submitted a grievance appeal

(#19-6-36799), dated October 10, 2019, in which he stated:

This is an Appeal to the Denial at the Instutional [sic]

leve[l] of Medical Grievance to Ex[h]austed

Administrative Remedies in regard to HCV treatment

[p]ursuant to Hoffer v. Jones, Case No. 4:17 cv 214-

MW/CAS.

The Grievance filed on 9-6-19, Denied on 9-25-19.

Mailed on 9-27-19. Appellant received notice of denial

via institutional mail on 10-01-19.

The opinion of the denial based on statement: On July

12, 2019 appellant was seen by clinician and has been

treated in accordance with FDC policy and procedure.

However, with my great respect to clinician and FDC

policy I still have some worries and concerns in regard

to my liver and kidneys and my health in general.

According to my medical records I’ve been diagnosesed

[sic] with HCV positive since 1999. In 2018 I completed

HCV treatment course. Unfortunately, I still suffer

with some continuing HCV symptoms, such as:

[o]ccasional pain of liver, kidneys, including anoraxia

[sic], malaise, fatigue, easily catching flu, moisture in

the lungs, and breathing problems . . .

Therefore I am asking for another treatment, perhaps

with the stronger Direct Acting Antivirus (DAA) such

as “Harvony” to completely get rid of any Hep. C virus

or symptoms in order to prevent further deterioration

of my liver, kidneys, and my health in general. Also, I

am asking for med. food diet to help the liver heal

itself, rebuild itself, and restore its proper function.

See Doc. 38-2 at 6. On November 25, 2019, the Office of the FDOC Secretary

provided the following response:

Appeal Denied:

Your request for administrative remedy was received

at this office and it was carefully evaluated. Records

available to this office were also reviewed.

In addition, the institution was contacted and they

provided this office with information regarding the

issue you presented.

It is determined that the response made to you by Dr.

Toledo on 9/25/19 appropriately addresses the issue

you presented.

The Department is in the process of identifying and

prioritizing all patients diagnosed with Hepatitis C, in

accordance with HSB 15.03.09, Supplement 3. This

process includes education, screening and evaluation

for appropriateness of treatment, and will provide the

Department with the necessary information needed to

properly stage, monitor, and treat your case.

Should you experience problems, sick call is available

so that you may present your concerns to your health

care staff.

See Doc. 38-2 at 5.

b. 2021 Formal Grievance and Grievance Appeal

On July 26, 2021, Rukavishnikov submitted a formal grievance (#2107-

213-200) to Union CI. He stated in pertinent part:

Pursuant to F.A.C. 33-103, I submit this formal

grievance with the claim of [d]eliberate [i]ndifference

to my serious medical needs by the denial of treatment

for Hepatitus [sic] “C” virus diagnosed in 1999.

This act of [d]eliberate [i]ndifference has resulted in

my present condition of advanced fibrosis of the liver.

Therefore, due to the long delay in treatment and the

resulting advanced fibrosis I now face a high risk of

developing life threatening diseases, cirrosis [sic] and

cancer.

This cruel and unusual punishment is prohibited by

the U.S. Constitution’s 8th Amendment.

Due to my recent discovery that even though I was

finally treated with DAA’s, I still have irreparable

damage as a result of the long delay in treatment.

Therefore, it is my intention to file a 42 USC 1983 civil

lawsuit for compensation against Julie L. Jones (the

former Secretary of the Florida Department of

Corrections), and F.D.O.C. (Florida Department of

Corrections).

I am exhausting my administrative remedies, however

I am open to consider any relief offered.

See Doc. 38-2 at 13. On August 13, 2021, Union CI denied the formal grievance,

stating:

Your request for Administrative Remedy or Appeal

has been received, reviewed and evaluated.

Inmate RUKAVISHNIKOV, please be advised that

reviewed records indicate that an abdominal ultra

sound performed on 3/11/2021 was unremarkable with

no evidence of a discrete mass within the liver. Labs

performed on 6/26/2021 noted a normal AST and ALT

range. Please be advised if you have any further

questions or concerns, you may access sick call and

address them with the health care staff.

Based on the above information, your grievance is

denied.

See Doc. 38-2 at 14. Thereafter, on August 23, 2021, Rukavishnikov submitted

a grievance appeal (#21-6-24838), stating:

Pursuant to F.A.C. 33-103, I submit this appeal to the

Secretary of the Florida Department of Corrections for

the review of the [d]enial of my formal grievance by

Chief Health Officer E. Perez-Lugo and Assistance

[sic] Warden T. Knox, on 8-13-21. (see copies attached)

Both respondents failed to address the issue raised in

my [f]ormal [g]rievance: [d]eliberate indifference to my

serious medical need, by delay of treatment for the

Hepatitis “C” virus, in violation of the U.S.

Constitution’s 8th Amendment; prohibition of cruel and

unusual punishment.

The ultrasound and AST/ALT ranges cited by the

respondents are irrelevant to my claim because

neither are reliable indicators of the liver fibrosis level

caused by Hep. “C.”

In the Union C.I. medical lab dated 11-27-2017, in

compliance with Court ordered staging for treatment,

it is clearly shown that my fibrosis score is (.71),

fibrosis stage is F-3, advanced fibrosis, borderline F-4.

Even though I was later treated, (also by court order),

I still suffer from advanced fibrosis due to the long

delay in treatment.

Relief Sought

I am exhausting my administrative remedies however,

I am open to consider any compensatory relief offered.

See Doc. 38-2 at 12. On September 17, 2021, the Office of the FDOC Secretary

provided the following response:

Appeal Returned without Action:

Your administrative appeal to this office is in non-

compliance with Chapter 33-103, Inmate Grievance

Procedure. You are grieving a delay in medical

treatment for Hepatitis C that you received in 2018.

Also, you cannot use the grievance process for

monetary gain and/or tort claims.

Please be advised that you are outside the timeframe

to grieve an issue that happened in 2018 and the

Institution should have returned your formal

grievance.

Formal Grievances must be received no later than 15

calendar days from: 1. The date on which the informal

grievance was responded to; or 2. The date on which

the incident or action being grieved occurred.

Just because the Institution failed to return your

formal grievance does not negate our office from

returning your appeal.

Therefore, your appeal is being returned without

action.

See Doc. 38-2 at 11. Rukavishnikov did not submit any other grievances

concerning the claims at issue in this lawsuit.8

4. Turner Step One

Under the first step of the Turner analysis, the Court must review the

allegations in the Motion and Response and accept as true Rukavishnikov’s

allegations. See Whatley, 802 F.3d at 1209. If Rukavishnikov’s allegations

8 Rukavishnikov attaches other grievances as exhibits to his original

Complaint and Response. See Docs. 1-2 to 1-5; Doc. 41-1 at 7-23. These additional

grievances, all filed between September 2021 and March 2022, address three

subjects: (1) requests for health services bulletins, books or pamphlets regarding post-

HCV treatment aftercare, see Docs. 1-3 and 1-4; (2) requests for a “Hepatitis ‘C’ diet”

and/or “liver-friendly vitamins for Hepatitis ‘C’ after treatment care,” see Doc. 1-2;

and (3) requests for medication to resolve kidney pain, see Doc. 1-5. Upon review, the

Court finds that these grievances do not concern the delay of DAA treatment or

Rukavishnikov’s assertions of an ADA or RA violation; as such, these grievances

failed to alert officials to the issues raised in the Second Amended Complaint. See

Chandler, 379 F.3d at 1287 (noting that the purpose of administrative exhaustion “‘is

to put the [administrative authority] on notice of all issues in contention and to allow

the [authority] an opportunity to investigate those issues.’”) (citation omitted).

show a failure to exhaust, then dismissal would be appropriate. Id. But,

Rukavishnikov alleges that he completed the grievance process by filing the

two formal grievances (#2107-213-200 and #1909-213-042) and appealing the

denial of each formal grievance (#21-6-24838 and #19-6-36799). See Response

at 3-5, 7. Accepting Rukavishnikov’s view of the facts as true, the Court cannot

dismiss his claims at the first step of the Turner analysis.

5. Turner Step Two

As dismissal would not be appropriate based on Rukavishnikov’s

allegations in the Response, the Court next turns to the second prong of the

Turner analysis. Here, the Court determines that Rukavishnikov’s 2019 and

2021 formal grievances do not satisfy the PLRA’s exhaustion requirement. In

his 2019 formal grievance and related grievance appeal, Rukavishnikov did not

grieve the delay in receiving DAA treatment or his allegations of ADA or RA

violations. Instead, he used that grievance process to seek a second round of

DAA treatment. As such, the 2019 formal grievance did not satisfy the PLRA’s

exhaustion requirement with respect to the claims Rukavishnikov raises in

this lawsuit.

As for Rukavishnikov’s 2021 formal grievance and related grievance

appeal, FDOC does not dispute that this set of grievances addresses the delay

in receiving DAA treatment. But, FDOC argues, and the Court agrees, that the

2021 formal grievance is untimely. Rukavishnikov submitted the 2021 formal

grievance years after he alleges he first learned of the availability of DAAs

(2017) and after he had received treatment (2018). An “untimely grievance

does not satisfy the exhaustion requirement of the PLRA.” See Johnson v.

Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005). Since the FDOC Secretary

returned Rukavishnikov’s appeal without action, citing his failure to timely file

the formal grievance, Rukavishnikov has not properly exhausted his remedies.

The fact that officials at the institutional level responded to

Rukavishnikov’s 2021 formal grievance on the merits does not change the

outcome here. Of course, a prison system can waive strict compliance with its

grievance procedures, in which case “a procedural flaw ignored by a prison

cannot later be resurrected by the District Court to defeat exhaustion.”

Whatley, 802 F.3d at 1215. But “a prison does not waive a procedural defect

unless and until it decides the procedurally flawed grievance on the merits at

the last available stage of administrative review.” Whatley v. Smith, 898 F.3d

1072, 1083 (11th Cir. 2018) (Whatley II). “If a state’s last administrative body

denies a grievance for valid procedural reasons, the court is required to find

that grievance unexhausted under the PLRA.” Whatley, 802 F.3d at 1216

(Vinson, J., concurring). FDOC’s grievance regulations permit a grievance

appeal to be returned without action for a variety of reasons, Fla. Admin. Code

R. 33-103.007(6)(d), including if “[t]he formal grievance was not received

within 15 calendar days of the date on which the incident or action being

complained about occurred, if an informal grievance was not filed pursuant to

subsection 33-103.006(3), F.A.C,” Fla. Admin. Code R. 33.103.014(1)(e). That

is what happened here. The FDOC Secretary returned Rukavishnikov’s 2021

grievance appeal without action because it explicitly found that his 2021

formal grievance was not filed within the 15-day window. Thus, although

officials at the institutional level denied Rukavishnikov’s 2021 formal

grievance on the merits, FDOC did not waive the procedural defect because it

did not decide the procedurally flawed grievance on the merits at the last stage

of review. Whatley II, 898 F.3d at 1083.

In sum, the FDOC began treating Rukavishnikov’s chronic HCV with

DAAs in August 2018. Rukavishnikov alleges that he no longer had detectable

levels of the virus by 2019. See Response at 3. But he did not grieve the delay

in receiving DAAs, or more generally, the delay in receiving HCV treatment,

until July 26, 2021, and the FDOC Secretary determined that Rukavishnikov’s

grievance was untimely. Because Rukavishnikov did not properly exhaust

available administrative remedies before filing suit, the Motion is due to be

granted and Rukavishnikov’s claims dismissed for failure to exhaust.9

9 Insofar as Rukavishnikov alleges that he exhausted his administrative

remedies by filing the grievances in 2021 and 2022 regarding a HCV diet, vitamins,

medication for kidney pain, and health services bulletins or books regarding post-

HCV treatment aftercare, see Response at 4-5, the Court finds that those grievances

are not related to the claims at issue in this lawsuit, and as such, cannot satisfy the

exhaustion requirement.

B. Statute of Limitations

Because Rukavishnikov’s claims against FDOC are due to be dismissed

for failure to exhaust administrative remedies, the Court need not address

FDOC’s remaining argument that Rukavishnikov’s claims are barred by the

statute of limitations. Therefore, as to this issue, the Motion is due to be denied

without prejudice.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. Defendant FDOC’s Motion to Dismiss (Doc. 38) is GRANTED to

the extent FDOC seeks dismissal for Rukavishnikov’s failure to exhaust

administrative remedies. In all other respects, the Motion is denied without

prejudice.

2. Plaintiff Valery Rukavishnikov’s Second Amended Complaint

(Doc. 29) is DISMISSED without prejudice.

3. The Clerk shall enter judgment dismissing this case without

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

DONE AND ORDERED at Jacksonville, Florida, this 15th day of July,

2024.

United States District Judge

24

Jax-10 7/3

c: Valery Rukavishnikov, #193920

Counsel of record