# Grimage v. Levai

> District Court, M.D. Florida · July 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10642438

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642438

## How later opinions describe it (automated extraction)

- explaining that defendants bear the burden of showing a failure to exhaust
- explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”
- noting that, “[a]lthough a district court would not be bound to follow any other district court’s determination, the decision would have significant persuasive effects.”
- stating that “it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MICHAEL EUGENE GRIMAGE,

Plaintiff,

v. Case No. 3:23-cv-893-MMH-SJH

CAPTAIN LEVAI, et al.,

Defendants.
_________________________________

ORDER
I. Status
Plaintiff Michael Eugene Grimage, an inmate of the Florida penal
system, initiated this action on July 25, 2023, by filing a pro se Complaint for
Violation of Civil Rights (Complaint; Doc. 1)1 under 42 U.S.C. § 1983. In the
Complaint, he names the following Defendants: (1) Captain Levai, (2) Sergeant
Hoffman, and (3) Sergeant Willis. See Complaint at 2–3. Grimage alleges
Defendants used excessive force in violation of the Eighth and Fourteenth
Amendments. See id. at 3–5.
This matter is before the Court on Defendants’ Motion to Dismiss
(Motion; Doc. 18). In support of the Motion, Defendants have submitted

1 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.
exhibits. See Docs. 18-1 through 18-13. Grimage filed a response in opposition
to the Motion. See Plaintiff’s Response to Defendants’ Motion to Dismiss

(Response; Doc. 21). The Motion is ripe for review.
II. Grimage’s Allegations2
Grimage alleges that on November 26, 2022, Captain Levai kicked him
and “slammed” him to the ground while he was handcuffed. Complaint at 5.

He asserts that Sergeant Hoffman hit him, and he was “picked up in [a] four
man carry; then thrown back in cell where [he] hit [his] head on toilet/sink and
then right arm got caught in guardrail of bunk and shoulder was seriously
injured.” Id. According to Grimage, Sergeant Willis participated in the use of

force. Id. Grimage also asserts that Sergeant Willis drugged him on November
24, 2022, and placed him in confinement “for this planned attack.” Id. From
the use of force, Grimage alleges he sustained a head injury that “causes black
out spells and headaches,” a shoulder injury, and hernia pain.3 Id. He requests

monetary damages. Id.

2 In considering the Motion, the Court must accept all factual allegations in
the Complaint as true, consider the allegations in the light most favorable to
Grimage, 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 Complaint, and may well differ from those
that ultimately can be proved.
3 Grimage asserts he “was kicked in groin area where [he] had hernia surgery
2 months prior.” Complaint at 5.
2
III. Motion to Dismiss Standard
In ruling on a motion to dismiss, the Court must accept the factual

allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see
also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir.
2002). In addition, all reasonable inferences should be drawn in favor of the

plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless,
the plaintiff must still meet some minimal pleading requirements. Jackson v.
BellSouth Telecomms., 372 F.3d 1250, 1262–63 (11th Cir. 2004). Indeed, while
“[s]pecific facts are not necessary[,]” the complaint should “‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570. “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant

3
is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal
quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that

“conclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal”) (quotations, citation, and
original alteration omitted). Indeed, “the tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal

conclusions[,]” which simply “are not entitled to [an] assumption of truth.”
Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion to dismiss, the Court
must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face[.]’” Id. at

678 (quoting Twombly, 550 U.S. at 570). And, while “[p]ro se pleadings are held
to a less stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed,” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998), “‘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
4
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, 132

F.3d 1359, 1369 (11th Cir. 1998), overruled in part on other grounds as
recognized in Randall, 610 F.3d at 709).
IV. Summary of the Arguments
In their Motion, Defendants argue that Grimage’s claims against them

should be dismissed because he failed to properly exhaust his administrative
remedies, and they are entitled to qualified immunity. See Motion at 10–16.
Grimage responds that he exhausted his administrative remedies before he
filed the Complaint, and Defendants are not entitled to immunity. See

Response at 2–5.
V. 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.

5
Dep’t, 476 F. App’x 364, 366 (11th Cir. 2012)4 (noting that exhaustion is “a
‘threshold matter’ that we address before considering the merits of the case”)

(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, 524 (2002). A prisoner such as Grimage, 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

4 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.”).
6
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,[5] 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
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)).
Because failure to exhaust administrative remedies is an affirmative

defense, Defendants bear “the burden of proving that [Grimage] has failed to
exhaust his available administrative remedies.” Id. at 1082. In accordance with

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

7
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).
In evaluating whether Grimage has satisfied the exhaustion requirement, the
Court notes that the Eleventh Circuit has determined that a “prisoner need
8
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).
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
9
institutional level. See Fla. Admin. Code R. 33-103.005(1); 33-103.006(3). Or
an inmate can 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). Similarly, 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
10
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. The Parties’ Positions Regarding Exhaustion
Defendants argue that Grimage failed to properly exhaust his
administrative remedies. Motion at 12–13. According to Defendants, Grimage
submitted no appeal grievances about the November 26, 2022 use of force, and

as such, Grimage failed to exhaust his administrative remedies because he did
not complete the FDOC’s three-step grievance process. See id. at 12. In support
of their argument, Defendants attach a grievance appeal log, see Doc. 18-1, as
well as the grievance appeals that Grimage submitted between December 20,

2022, and May 8, 2023, see Docs. 18-2 through 18-7.
11
Defendants further contend although Grimage identifies specific
grievances in his Complaint that he submitted about the use of force, those

grievances fail to satisfy the exhaustion requirement. Motion at 13. They
attach those grievances and the responses to them as exhibits to their Motion.
See Docs. 18-8 through 18-13. The Court summarizes the grievances and
responses below.

The record reflects that Grimage submitted an informal grievance (log
#201-2212-0103) on December 8, 2022, stating:
[Redacted] still going to crucifix you. On 12-7-22,
between 1:00-3:00p Cpt. Levai sped by cell door,
banged, and said and those D.Rs are going to stick. . .
.

Until today (12-8-22) when I got my property (after 9
days of being [redacted]) Cpt. Levai had instructed
staff in H-dorm to not give me reading and writing
material, as a form of retaliation for reporting staff
abuse, as I told you all he would. All this is on video (I
don’t know if audio could hear) but this is becoming
very stressful due to my vulnerability of being
amongst my attacker on a daily basis (Cpt. Levai, Ofc.
Hickox, and Ofc. Hoffman during p.m. which cause me
to be afraid to take shower) Please, investigate and
report this constant harassment from abusers.

Doc. 18-13. A Columbia Correctional Institution (Columbia CI) official denied
the grievance, noting “Captain Levai was interviewed and denies all
allegations made against him.” Id.
12
Grimage then submitted a direct grievance (log #23-6-00347) to the
FDOC Secretary on December 19, 2022. Doc. 18-10 at 2. In the direct grievance,

Grimage stated that he submitted an emergency grievance to a classification
officer about the “threats to cause harm to [him] and denying [redacted]
sustained during staff abuse on 11-26-22.” Id. He also noted prison officials
retaliated against him on December 19, 2022. Id. The FDOC Secretary

returned the grievance without action:
Your request for administrative appeal is in non-
compliance with the Rules of the Department of
Corrections, Chapter 33-103, Inmate Grievance
Procedure. The rule requires that you first submit
your appeal at the appropriate level at the institution.
You have not done so or you have not provided this
office with a copy of that appeal, nor have you provided
a valid or acceptable reason for not following the rules.

Your request for administrative appeal is in non-
compliance with Chapter 33-103, Inmate Grievance
Procedure, which states, “each grievance must address
only one issue or complaint.” Your current request for
administrative appeal addresses more than one issue
and/or complaint.

Furthermore, if you fear staff, you need to file an
informal to the Colonel. The Colonel should have the
opportunity to address these issues regarding staff at
the institution.

When making allegations of staff misconduct, you
need to provide all pertinent information, such as
names, dates, times, places, and specific details, for a
13
proper review.

Id. at 1.
Grimage filed an informal grievance (log #201-2301-0142) on January
10, 2023, stating:
Colonel [redacted] filed an Incident Report on the 11-
26-22 staff abuse . . . . I have not heard of outcome, nor
spoke with Investigator, but almost CM’ed [sic] under
pretense. What’s going on?

Also, on 12-7-22, I submitted formal grievance (See
CLO collect grievance between 7:00a-11:00a H-1207).
asserting (what I could remember/relayed by
witnesses) that on 11-26-22, time approximate
between 5:00p-7:00p I attempted to getaway [sic] from
hallucinated demonic figure. Cpt. Levai grabbed me
and yelled “Mother F[*****]” and kneed me in groin
(where I’d recently had [redacted]) like UFC fighter,
threw me to the ground. Then Sargeant [sic] Hoffman
came down with knee in same [redacted] and also
landed blow to head. I attempted to jump from 2nd
floor to escape pain, but lifted and aggressively thrown
back in cell 2219 . . . causing my head to strike toilet,
back hitting edge of steel bunk, and jamming my
shoulder in the process. And on 12-9-22, I submitted
Informal #201-2212-0105 and a formal requesting
retention of video for further autherative [sic] review,
pursuant to . . . Rule Ch. 33-602.210 of which I have
not received Response to either formal said. I was told
by Secretary’s Office to submit this to you to be
investigate to also prevent further misconduct.

14
Doc. 18-11. Citing Rule 33-103.014(1)(a), a Columbia CI official returned the
grievance without action because it addressed more than one issue or

complaint. Id.
On January 22, 2023, Grimage filed a formal grievance (log #2301-201-
102):
Plaintiff is appealling [sic] Informal Grievance # 201-
2301-0142, due to Responding official (sexton) lack of
comprehension or recognition, that this complaint is
solely addressing the 11-26-22 staff assault.

CLEARLY, Plaintiff asked about the Incident Report
submitted and grievances inquiring about the
investigation and preservance [sic] of evidence,
proving staff assault on 11-26-22. Plaintiff explained
his condition on 11-26-22 and the results thereof.

AT NO TIME in Grievance #201-2301-0142 do [sic]
Plaintiff [raise] any other issue(s) NOT concerning
Defendants’ attack on Plaintiff on 11-26-22[.]

It appears this is a[n] intentional delay to obstruct
justice and to conceal evidence for the furthering of
Administrative Review.

Remedy Sought: Preserve evidence (video/audio) of
attack by staff on Plaintiff (11-26-22) and update
Plaintiff on the investigation incident by [redacted].
These actions make me want to continue pursuit of
justice. I am not one of the
incompetence[sic]/illiterates[.]

Doc. 18-12 at 2. The Columbia CI Warden responded in pertinent part:
15
The response you received within Informal Grievance
Log# 201-2301-0142 was reviewed and determined to
adequately address your issue.

201-2301-0142 was answered in error but was
answered the correct action. Informal Grievance
should have been returned for being non-compliance
[sic] with Chapter 33-103.014(1)(v) asking questions,
seeking assistance.

Based on the foregoing, your request for
administrative remedy is denied.

Id. at 1.
Grimage appealed to the FDOC Secretary (log #23-6-06533), stating:
Complainant is submitting this Grievance to the Office
of the Secretary, due to this Institution’s failure to
address dire issue(s) timely.

In Grievance #23-6-00347, Representative A. Johns
instructed me to file an “Informal Grievance” to the
Colonel. Then I submitted Grievance #201-2301-0142
and someone “other than the Colonel” advertently
returned grievance because I explained details of 11-
26-22 staff assault committed against me and
grievances not responded to (pertaining to assault)
submitted to grievance box in confinement. Then I
submitted formal grievance #2301-201-102, and I have
been denied a response as of this 20th day of February.

Also, due to assault on 11-26-22, I’ve submitted
[redacted] and Grievance #201-2212-0270 to
[redacted] concerning [redacted] 11-26-22) and
possible [redacted] to newly [redacted] and [redacted]
and said I’ll be [redacted] again, but have not
[redacted] as of this day (2-20-23).
16
Subsequently after my release from confinement (1-
10-23), I was given a [redacted] later they know I have
a [redacted], then placed in an unassigned room G-
4205L for 8 days (1-10-23 thru 1-17-23), then forced to
sleep on dayroom table for over 9 hours (because they
REFUSED to assign me to a new [redacted], because
they assigned someone else to G-4205L, during a
lockdown (stabbing)) forcing me to call TIPS and
Florida Cares, due to this mistreatment! Then on 1-30-
23, RE-CONFINING me for incident on 11-26-22 and
denying me an opportunity to call and assist Private
Investigator (hired by family to help me get out of
prison on actual innocence claim) telling me “They
don’t care about my legal issues in person and telling
in Grievance # 2302-201-072, that denying phone call
to legal advisor(s) is no “irreparable harm” when my
family is paying a $100 an hour for services!
Preposterous!

WHEREFORE, Complainant is asking for your
assistance in these matters, caused by reporting staff
assault that evident [sic] (video/audio) on 11-26-22.

Doc. 18-9 at 2. The FDOC Secretary responded:
Your request for administrative appeal is in non-
compliance with Chapter 33-103, Inmate Grievance
Procedure, which states, “each grievance must address
only one issue or complaint.” Your current request for
administrative appeal addresses more than one issue
and/or complaint.

If you do not understand the grievance procedure, you
should seek the assistance of another inmate or staff
member.

17
The grievance/appeal process is not to be utilized for
correspondence purposes.

Based on the foregoing information, your appeal is
returned without action.

Id. at 1.
Lastly, on May 8, 2023, Grimage submitted an appeal grievance (log #23-
6-15090) to the FDOC Secretary. Doc. 18-8 at 2. He stated that he submitted a
formal request on April 17, 2023, to have video and audio evidence of various
assaults—including the November 26, 2022 use of force—retained, but he
never received a response. Id. The FDOC Secretary returned Grimage’s
grievance without action because it addressed more than one issue or
complaint, and the FDOC’s records did not reflect that Grimage filed a formal
grievance on or after April 17, 2023. Id. at 1.
In response to Defendants’ Motion, Grimage contends that he exhausted
his administrative remedies because he “proceeded through the proper

channels of the grievance process, all the way to the Secretary’s Office, twice.”
Response at 4.
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 Grimage’s
18
allegations. See Whatley, 802 F.3d at 1209. If Grimage’s allegations in the
Response show a failure to exhaust, then dismissal would be appropriate. See

id.
The Court now turns to the allegations in the parties’ respective filings
concerning Grimage’s exhaustion efforts. Defendants assert that “none of
Plaintiff’s pertinent grievance appeals have been related to the underlying use

of force,” and as such, they fail to satisfy the exhaustion requirement. Motion
at 12. According to Defendants, the grievances that Grimage references in his
Complaint similarly fail to satisfy the exhaustion requirement. Id. at 13.
Grimage responds that he has proceeded “through the proper channels of the

grievance process . . . concerning the violations alleged in the Complaint.”
Response at 4. Accepting Grimage’s view of the facts as true, the Court cannot
dismiss the Complaint at the first step of the Turner analysis.
5. Turner Step Two

As dismissal would not be appropriate based on the allegations in the
Motion and Response, the Court next turns to the second prong of the Turner
analysis. The Court finds that Defendants have failed to meet their burden of
establishing that Grimage did not properly exhaust his administrative

remedies. See Turner, 541 F.3d at 1082 (“The defendants bear the burden of
19
proving that the plaintiff has failed to exhaust his available administrative
remedies.”). First, while Defendants argue that Grimage failed to exhaust his

administrative remedies because he did not file any pertinent grievance
appeals, this argument, by itself, is unavailing. The FDOC has a three-step
grievance process that concludes with the inmate’s submission of a grievance
appeal. However, an inmate need not proceed to the appeal step if he or she

received an approved informal or formal grievance. See, e.g., Dombrowski v.
Wilson, No. 3:21-cv-1199-BJD-PDB, 2023 WL 2403857, at *3 (M.D. Fla. Mar.
8, 2023)6 (finding that the plaintiff exhausted his administrative remedies
because his informal grievances were approved); see also Tierney v. Hattaway,

No. 3:20-cv-5738-LAC-ZCB, 2022 WL 18159995, at *2 (N.D. Fla. Dec. 9, 2022)
(“Given that [the plaintiff’s] informal grievance was ‘approved,’ and the matter
referred to the [OIG], it would have been pointless for [him] to appeal by filing
a formal grievance.”).

Considering the record before the Court, it is unclear if Grimage was
required to submit a grievance appeal in order to exhaust his administrative

6 The Court notes that although decisions of other district courts are not
binding, they too may be cited as persuasive authority. See Stone v. First Union
Corp., 371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court
would not be bound to follow any other district court’s determination, the decision
would have significant persuasive effects.”).
20
remedies. Defendants provide neither declarations nor grievance logs
demonstrating that Grimage did not submit any relevant informal or formal

grievances that prison officials approved. In this context, the Court does not
conclude that Grimage failed to exhaust his administrative remedies simply
because he did not submit a relevant grievance appeal.
To the extent Defendants argue the grievances that Grimage listed in

his Complaint also do not demonstrate proper exhaustion, the Court is not
convinced that those grievances represent the entirety of Grimage’s relevant
exhaustion efforts. Defendants fail to offer evidence—or even assert—that
Grimage has filed no other informal or formal grievances regarding the use of

force. Indeed, Grimage only listed these grievances in response to the
complaint form’s prompt to “set forth any additional information that is
relevant to the exhaustion of your administrative remedies.” Complaint at 8.
Grimage responded, “My request for video and audio retention under

procedure 602.033, in November mental health staff submitted a[n] incident
report, after seeing footage of prison officials assaulting while handcuffed and
in a[n] unstable state.” Id. Grimage then listed specific grievance numbers. Id.
Neither the Complaint, nor even Grimage’s Response, suggest that these

grievances represent the totality of his efforts to exhaust his administrative
21
remedies as to the use of force. See Complaint at 6–8; Response at 2–4. And, of
course, Grimage was not required to specially plead or demonstrate exhaustion

in the Complaint. See Jones, 549 U.S. at 216.
Moreover, in the identified grievances, Grimage seemingly refers to
other grievances regarding the incident that he submitted. For instance, in
informal grievance log #201-2301-0142, Grimage states he submitted a formal

grievance on December 7, 2022, regarding the use of force. See Doc. 18-11. In
appeal grievance log #23-6-06533, Grimage references a grievance (log #201-
2212-0270) that he submitted about the use of force. See Doc. 18-9 at 2.
However, Defendants again provide neither logs nor declarations to clarify

whether these grievances exist and, if so, how the FDOC responded to them.
In light of the outstanding questions regarding Grimage’s exhaustion efforts,
the Court denies the Motion as to this issue without prejudice to Defendants
reasserting it in a properly supported motion for summary judgment.

B. Qualified Immunity
Defendants alternatively assert that they are entitled to qualified
immunity. Motion at 13–15. The Court notes that although “the defense of
qualified immunity is typically addressed at the summary judgment stage of a

case, it may be . . . raised and considered on a motion to dismiss.” St. George v.
22
Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002). “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, 285 F.3d at 1337). The Eleventh Circuit has stated:
The qualified-immunity defense reflects an
effort to balance “the need to hold public officials
accountable when they exercise power irresponsibly
and the need to shield officials from harassment,
distraction, and liability when they perform their
duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
231 (2009). The doctrine resolves this balance by
protecting government officials engaged in
discretionary functions and sued in their individual
capacities unless they violate “clearly established
federal statutory or constitutional rights of which a
reasonable person would have known.” Keating v. City
of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (quotation
marks and brackets omitted).

As a result, qualified immunity shields from
liability “all but the plainly incompetent or one who is
knowingly violating the federal law.” Lee v. Ferraro,
284 F.3d 1188, 1194 (11th Cir. 2002). But the
doctrine’s protections do not extend to one who “knew
or reasonably should have known that the action he
took within his sphere of official responsibility would
violate the constitutional rights of the [plaintiff].”
Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982)
(internal quotation marks and alteration omitted).

To invoke qualified immunity, a public official
must first demonstrate that he was acting within the
23
scope of his or her discretionary authority. Maddox v.
Stephens, 727 F.3d 1109, 1120 (11th Cir. 2013). As we
have explained the term “discretionary authority,” it
“include[s] all actions of a governmental official that
(1) were undertaken pursuant to the performance of
his duties, and (2) were within the scope of his
authority.” Jordan v. Doe, 38 F.3d 1559, 1566 (11th
Cir. 1994) (internal quotation marks omitted). Here, it
is clear that Defendant Officers satisfied this
requirement, as they engaged in all of the challenged
actions while on duty as police officers conducting
investigative and seizure functions.

Because Defendant Officers have established
that they were acting within the scope of their
discretionary authority, the burden shifts to [the
plaintiff] to demonstrate that qualified immunity is
inappropriate. See id. To do that, [the plaintiff] must
show that, when viewed in the light most favorable to
him, the facts demonstrate that Defendant Officers
violated [Plaintiff’s] constitutional right and that that
right was “clearly established...in light of the specific
context of the case, not as a broad general
proposition[,]” at the time of Defendant officers’
actions. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct.
2151, 150 L.Ed.2d 272 (2001), overruled in part on
other grounds by Pearson, 555 U.S. 223, 129 S.Ct. 808.
We may decide these issues in either order, but, to
survive a qualified-immunity defense, [the plaintiff]
must satisfy both showings. Maddox, 727 F.3d at
1120–21 (citation omitted).

Jones v. Fransen, 857 F.3d 843, 850–51 (11th Cir. 2017); see King v. Pridmore,
961 F.3d 1135, 1142 (11th Cir. 2020). The Court notes that where the alleged
conditions are particularly egregious, a general constitutional law already
24
identified in decisional law may be applicable such that a reasonable officer
would know that the egregious conditions violate the Constitution. Taylor v.

Riojas, 592 U.S. 7, 8–9 (2020).
Defendants argue that they are entitled to qualified immunity because
Grimage’s allegations are conclusory, and as such, his claims must fail. Motion
at 14. According to Defendants, Grimage “has not provided any background to

justify his claims that the use of force was excessive, rose to the level of a
constitutional violation, or that Defendants acted in a manner outside the
course and scope of their positions.” Id. at 14–15. Grimage responds that
Defendants are not entitled to immunity because “video footage . . . will show

that: while handcuffed his back [sic], in boxer briefs, being non-combative;
Plaintiff was brutalized by way of excessive and unnecessary use of force by
the Defendants.” Response at 4.
Defendants are not entitled to qualified immunity at this stage of the

proceedings. In the Complaint, Grimage alleges that Captain Levai kicked him
and slammed him to the ground while he was handcuffed, and Sergeant
Hoffman hit him. See Complaint at 5. According to Grimage, Sergeants Willis
and Hickox “were involved” in the use of force. Id. He further asserts that he

was picked up in a four-man carry—presumably by Captain Levai, Sergeants
25
Hoffman, Willis, and Hickox—and thrown into his cell. Id. As a result, he hit
his head on the sink and caught his right arm in the bunk’s guardrail. Id.

Grimage sustained significant injuries to his head, groin, and shoulder from
the use of force. Id.
Accepting Grimage’s allegations with respect to each Defendant and
considering those allegations independently, the Court finds that Grimage has

alleged facts sufficient to state plausible excessive force claims against each
Defendant. Grimage asserts each Defendant participated in the use of force
while he was handcuffed. Grimage also alleges he suffered physical injuries as
a result of the use of force. Because Grimage has stated plausible Eighth

Amendment claims against each Defendant, they are not entitled to qualified
immunity at this stage of the litigation. See Skrtich v. Thornton, 280 F.3d
1295, 1303 (11th Cir. 2002) (“[G]overnment officials may not use gratuitous
force against a prisoner who has been already subdued or, as in this case,

incapacitated.”), overruled on other grounds by Pearson v. Callahan, 555 U.S.
223 (2009). Accordingly, Defendants’ Motion is due to be denied.

26
Therefore, it is now
ORDERED:
1. Defendants’ Motion to Dismiss (Doc. 18) is DENIED without
prejudice to Defendants reasserting their arguments 1n a properly supported
motion for summary judgment.
2. Defendants shall respond to the Complaint (Doc. 1) no later than
August 12, 2024. Upon the filing of their answers, the Court, by separate
Order, will set deadlines for discovery and the filing of dispositive motions.
DONE AND ORDERED at Jacksonville, Florida, this 19th day of
July, 2024.

United States District Judge

Jax-9 7/9
Michael Eugene Grimage, #415545
Counsel of record

27

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642438. Public record. Not legal advice.