Grimage v. Gwara

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL EUGENE GRIMAGE,

Plaintiff,

v. Case No. 3:23-cv-1032-MMH-SJH

SERGEANT A.M. GWARA,

Defendant.

_________________________________

ORDER

I. Status

Plaintiff Michael Eugene Grimage, an inmate of the Florida penal

system, initiated this action on August 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 Sergeant A.M. Gwara as the sole Defendant. See

Complaint at 2. Grimage alleges Sergeant Gwara used excessive force when he

sprayed Grimage with chemical agents. See id. at 3–5.

This matter is before the Court on Sergeant Gwara’s Motion to Dismiss

(Motion; Doc. 14). In support of the Motion, Sergeant Gwara has submitted

exhibits. See Docs. 14-1 through 14-2. Grimage filed a response in opposition

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.

to the Motion. See Plaintiff’s Response to Defendant’s Motion to Dismiss

(Response; Doc. 17). The Motion is ripe for review.

Also before the Court is Grimage’s Motion for Default Judgment (Doc.

20), in which Grimage asks the Court to enter default judgment against

Sergeant Gwara. The Motion for Default Judgment is due to be denied because

Sergeant Gwara timely responded to the Complaint, after waiving service of

process, by filing his Motion to Dismiss (Doc. 14) on January 16, 2024.

II. Grimage’s Allegations2

Grimage alleges that on May 23, 2023, Sergeant Gwara called him to the

cell door and told him to look in another direction. Complaint at 4. “[W]hen

[Grimage] return[ed] to face [Sergeant Gwara], [he] had [a] canister aimed

directly at [Grimage’s] face.” Id. According to Grimage, Sergeant Gwara

sprayed him with chemical agents, which caused Grimage to gasp for air and

“black out.” Id. at 4, 5. He asserts that on a prior occasion, Sergeant Gwara

contaminated his food tray, and he had requested to speak with Sergeant

Gwara’s supervisor to provide evidence of the contamination. Id. at 4. Grimage

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.

2

contends Sergeant Gwara was angry with him because of the food tray

incident. Id.

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

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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 his Motion, Sergeant Gwara argues that Grimage’s claim against him

should be dismissed because Grimage failed to properly exhaust his

administrative remedies, and Sergeant Gwara is entitled to qualified

immunity. See Motion at 6–10. Grimage responds that he exhausted his

administrative remedies, and Sergeant Gwara is not entitled to immunity. See

Response at 2–4.

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)3 (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

3 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,[4] 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, Sergeant Gwara bears “the burden of proving that [Grimage] has

failed to exhaust his available administrative remedies.” Id. at 1082. In

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

7

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).

In evaluating whether Grimage has satisfied the exhaustion requirement, the

Court notes that the Eleventh Circuit has determined that a “prisoner need

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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

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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

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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

Sergeant Gwara argues that Grimage failed to properly exhaust his

administrative remedies. Motion at 8. According to Sergeant Gwara, Grimage

submitted no grievance appeals about the May 23, 2023 use of force; therefore,

Grimage did not complete the FDOC’s three-step grievance process. Id. In

support of his argument, Sergeant Gwara attaches a grievance appeal log. See

Doc. 14-2.

Sergeant Gwara further contends “[t]he grievance appeal specifically

identified by Plaintiff [in the Complaint] as exhausting administrative

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remedies” fails to satisfy the exhaustion requirement because it only concerns

the disciplinary report from the use of force. Motion at 8. Sergeant Gwara

attaches the grievance appeal, relevant formal grievance, and responses to

those grievances as exhibits to his Motion. See Doc. 14-1. The Court

summarizes the grievances and responses below.

On June 7, 2023, Grimage submitted a formal grievance (log #2306-205-

053), stating:

Appellant is appealling [sic] Disciplinary Report Log #

205-231236 due to lack of specifics detailing offense

and for lack of probable cause for use of force

(dispencing [sic] chemical agent).

Sergeant A.M. Gwara alleged that Appellant was in

the “act” of [redacted] and does not detail the type,

which does not suffice Rules of Reporting Official’s DR

Checklist.

Appellant declares that there is [redacted] to support

Sgt. Gwara’s Statement of Facts [redacted] because

Appellant did not have [redacted], external or internal,

documented by [redacted] nor does post use of force

video footage show [redacted] or complaint, or

narration of supervisor, to give validity for dispensing

chemical agent in use of force.

Also Warden Davis, see and hear (video/audio) on 5-

23-23, between 11:30am-11:59am, which I declare by

the penalties of perjury, that you will hear/see Sgt.

Gwara send Sgt. Carlson (deliverer of this DR) to

specifically call for Cpt. Night and [redacted] of his

choice, then maliciously thereafter yell “Inmate

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Grimace [redacted] then state did [redacted].” This

was his excuse for use of force. [Redacted] discovered

and/or documented. Please stand on physical truth

evidence.

NOTE: Appellant was not provided DR findings and

actions, by [sic] the true facts are documented and on

audio/video and cannot be disputed. Therefore, this

DR should be overturned due to lack of support for

Statement of Facts.

Doc. 14-1 at 4. The Florida State Prison (FSP) Warden returned the grievance

without action, noting it did not comply with Rule 33-103.014(1)(a) because it

addressed more than one issue or complaint: disciplinary report log #205-

231326 and the “circumstances of a use of force.” Id. at 3.

Grimage appealed to the FDOC Secretary (log #23-6-19636):

Appellant is appealling [sic] Grievance Log #2306-205-

053 because in Statement of Facts of Disciplinary

Report Log# 205-231326 it clearly details that use of

force was used because Appellant disobeyed a verbal

order.

So to contend against these allegation [sic] (use of force

due to disobedience) Appellant “has to” address both

issue [sic] because different appeals for same named

infraction is improper according to Chapter 33-601.

Clearly on Request for Administrative Appeal, I

stated: No [redacted] revealed and/or noted any

[redacted] to support reporting officer’s use of force

(dispense chemical agent) and Appellant declared

specifically to Warden Davis he would see and hear

prior to this alleged infraction’s initiation, that

13

Reporter had [redacted].

Therefore, returning Appellant’s appeal without

action is premature because D.R.#205-231326

thoroughly cannot be contended without disputing

both issues in said D.R. (cause and action taken).

Id. at 2. The FDOC Secretary approved Grimage’s appeal:

Your request for administrative appeal has been

received and evaluated. The disciplinary report you

received on 05/23/2023 for violation (6-1): Disobeying

an order, has been overturned. Our decision to

overturn the disciplinary report was based on

technical errors made in the processing of same. The

institution has been advised of this decision and any

necessary adjustments will be made to your inmate

file.

Based on the above information, your appeal to this

office is approved.

Id. at 1.

In response to Sergeant Gwara’s Motion, Grimage contends that he

properly exhausted his administrative remedies. See Response at 3. He refers

to the approved grievance appeal that overturned his disciplinary report to

support his argument. Id. at 2–3. He also asserts that he filed grievance log

#23-6-20109, in which he alleged Sergeant Gwara made “sexually degrading

threats” and “explained the use of force in this case.” Id. According to Grimage,

the FDOC Secretary approved the grievance. Id.

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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

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.

Accepting Grimage’s view of the facts as true, the Court finds dismissal

of the claim against Sergeant Gwara for lack of exhaustion is not warranted at

the first step of Turner. Thus, the Court proceeds to the second step of the two-

part process and considers Sergeant Gwara’s arguments about exhaustion and

makes findings of fact.

5. Turner Step Two

At the second prong of the Turner analysis, the Court finds that Sergeant

Gwara has failed to meet his 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 proving that the plaintiff has failed to

exhaust his available administrative remedies.”). Although Sergeant Gwara

argues that Grimage failed to exhaust his administrative remedies because he

did not file any pertinent grievance appeals, this argument, by itself, is not

15

persuasive. 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)5 (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.”).

Based on the record before the Court, it is unclear if Grimage needed to

submit a grievance appeal in order to properly exhaust his administrative

remedies. Sergeant Gwara submits neither declarations nor grievance logs

demonstrating Grimage failed to receive an approved informal or formal

grievance regarding the incident. Accordingly, the Court does not conclude that

5 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.”).

16

Grimage failed to exhaust his administrative remedies merely because he did

not submit a relevant grievance appeal.

Insofar as Sergeant Gwara argues the grievances that Grimage listed in

his Complaint also do not demonstrate proper exhaustion, the Court is

uncertain whether those grievances represent the entirety of Grimage’s

relevant exhaustion efforts. Grimage only identified the formal grievance and

grievance appeal in response to the complaint form’s prompt to set forth which

claims the grievance procedure at his correctional facility covers. Complaint at

6. Grimage responded, “Claim that Defendant wrongfully submitted falsifying

Report #205-231326 alleging self-injurious behavior, where medical does not

report any signs of injury (externally/internally), therefore disqualifying

Defendant’s reason for unnecessary and excessively malicious use of force. See

Grievance #2306-205-053 and Responses to it by Secretary #23-6-19636.” Id.

Neither the Complaint, nor even Grimage’s Response, suggest that these

grievances represent the totality of his efforts to exhaust his administrative

remedies as to the use of force. See Complaint at 6–8; Response at 2–3. And

Sergeant Gwara fails to offer evidence or assert that Grimage has filed no other

informal or formal grievances regarding the use of force.

17

Moreover, in his Complaint and Response, Grimage states he filed a

grievance appeal (log #23-6-20109) that the FDOC Secretary approved. See

Complaint at 8; Response at 3. According to Grimage, the grievance appeal

concerned “sexually degrading threats upon Plaintiff” from Sergeant Gwara,

and it “explained the use of force in this case.” Response at 3. Sergeant Gwara

has not attached this grievance and response to his Motion.6 While the

grievance may not have alerted officials to the issues in contention in

Grimage’s Complaint, the Court does not have sufficient evidence to reach this

conclusion without evaluating the relevant grievance and response. Based on

the above, the Court denies the Motion as to the exhaustion issue without

prejudice to Sergeant Gwara reasserting it in a properly supported motion for

summary judgment.

B. Qualified Immunity

Sergeant Gwara alternatively asserts that he is entitled to qualified

immunity. Motion at 8–10. 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.

6 The grievance appeal log reflects that the FDOC Secretary approved

grievance log #23-6-20109. See Doc. 14-2 at 4. The subject of the grievance is redacted.

See id.

18

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

19

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 principle

20

already 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).

Sergeant Gwara argues that he is entitled to qualified immunity because

Grimage’s allegations are conclusory, and as such, his claim must fail. Motion

at 9. According to Sergeant Gwara, Grimage “has not provided any background

to justify his claim[] that the use of force was excessive, rose to the level of a

constitutional violation, or that Defendant acted in a manner outside the

course and scope of his position.” Id. at 10. Grimage responds that Sergeant

Gwara is not entitled to immunity because he “clearly detailed in the

statement of claim how his 8th Amendment constitutional right was violated

by the declaration made in this case.” Response at 4.

Accepting Grimage’s allegations with respect to Sergeant Gwara as true,

the Court finds that Grimage has alleged facts sufficient to state a plausible

excessive force claim against Sergeant Gwara. Grimage alleges that Sergeant

Gwara called him to the cell door and told him to look in another direction to

distract him. Complaint at 4. “[W]hen [Grimage] return[ed] to face [Sergeant

Gwara], [he] had [a] canister aimed directly at [Grimage’s] face,” and Sergeant

Gwara sprayed him with chemical agents. Id. Grimage also alleges he has

21

breathing problems as a result of the use of force. Because Grimage has stated

a plausible Eighth Amendment claim against Sergeant Gwara, he is not

entitled to qualified immunity at this stage of the litigation. See Sconiers v.

Lockhart, 946 F.3d 1256, 1265 (11th Cir. 2020) (noting the excessive force

standard “requires a prisoner to establish two elements—one subjective and

one objective: the official must have both ‘acted with a sufficiently culpable

state of mind’ (the subjective element), and the conduct must have been

‘objectively harmful enough to establish a constitutional violation.’” (quoting

Hudson v. McMillian, 503 U.S. 1, 8 (1992)); see also Thomas v. Bryant, 614

F.3d 1288, 1311 (11th Cir. 2010) (recognizing “prior decisions of this court and

other circuit courts of appeals . . . have concluded that where chemical agents

are used unnecessarily, without penological justification, or for the very

purpose of punishment or harm, that use satisfies the Eighth Amendment’s

objective harm requirement.”). Accordingly, his Motion is due to be denied.

Therefore, it is now

ORDERED:

1. Plaintiff’s Motion for Default Judgment (Doc. 20) is DENIED.

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2. Defendant’s Motion to Dismiss (Doc. 14) is DENIED without

prejudice to reasserting his arguments in a properly supported motion for

summary judgment.

3. Defendant shall respond to the Complaint (Doc. 1) no later than

August 26, 2024. Upon the filing of his answer, the Court, by separate Order,

will set deadlines for discovery and the filing of dispositive motions.

DONE AND ORDERED at Jacksonville, Florida, this 25th day of

July, 2024.

United States District Judge

Jax-9 7/23

C: Michael Eugene Grimage, #415545

Counsel of record

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