CHRISTOPHE v. SASSER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ILMART CHRISTOPHE,

Plaintiff,

v. Case No. 3:24cv112-LC-HTC

SGT. DRAVEN SASSER,

OFFICER JOHN DOE,

Defendants.

_____________________________/

AMENDED REPORT AND RECOMMENDATION1

Plaintiff Ilmart Christophe, a prisoner proceeding pro se and in forma

pauperis, files this action seeking relief under 42 U.S.C. § 1983 against Defendants

Sgt. Draven Sasser and Officer John Doe for spraying him with chemical agents and

assaulting him. Doc. 1. Sasser has filed a motion to dismiss, Doc. 22, on several

grounds, including failure to exhaust.2 Upon consideration of Christopher’s

responses, Docs. 24, 27, the undersigned concludes the motion should be granted

1 The undersigned issued a report and recommendation initially on August 2, 2024. Doc. 26. After

the report and recommendation was docketed, the clerk received a second response to the motion

to dismiss from Christophe. Doc. 27. This amended report and recommendation reflects the

undersigned’s consideration of that second response.

2 Sasser also argues that Christophe’s claim should be dismissed because: (1) Christophe failed to

accurately disclose his prior litigation history; (2) Christophe failed to establish an Eighth

Amendment violation; (3) Sasser is entitled to qualified immunity; (4) Sasser is entitled to

Eleventh Amendment immunity; and (5) Christophe’s request for punitive damages is barred by

18 U.S.C. § 3626. Because Christophe’s excessive force claim is unexhausted, the Court need not

address Sasser’s other arguments.

and this case DISMISSED WITHOUT PREJUDICE for Christophe’s failure to

exhaust his administrative remedies prior to filing suit.

I. Exhaustion Requirement

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall

be brought with respect to prison conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). Exhaustion of all available administrative remedies is a mandatory

precondition to suit. See Booth v. Churner, 532 U.S. 731, 739 (2001). The

exhaustion requirement “applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether they allege

excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

The requirement is not subject to waiver by a court, or futility or inadequacy

exceptions. See Booth, 532 U.S. at 741 n.6. Moreover, the PLRA requires “proper

exhaustion” so that the agency has an opportunity to address the issues on the merits.

Woodford v. Ngo, 548 U.S. 81, 93-94 (2006).

An exhaustion defense under the PLRA is treated as a matter in abatement,

which means procedurally the defense is treated like one for lack of jurisdiction,

although it is not a jurisdictional matter. Turner v. Burnside, 541 F.3d 1077, 1082

(11th Cir. 2008) (quotation marks and citations omitted). “As a result, deciding a

motion to dismiss for failure to exhaust administrative remedies is a two-step

process.” Id. “First, the court looks to the factual allegations in the defendant’s

motion to dismiss and those in the plaintiff’s response, and if they conflict, takes the

plaintiff’s version of the facts as true. If, in that light, the defendant is entitled to

have the complaint dismissed for failure to exhaust administrative remedies, it must

be dismissed.” Id. (citing Bryant v. Rich, 530 F.3d 1368, 1373-74 (11th Cir. 2008)).

“If the complaint is not subject to dismissal at the first step, where the

plaintiff’s allegations are assumed to be true, the court then proceeds to make

specific findings in order to resolve the disputed factual issues related to

exhaustion.” Id. (citing Bryant, 530 F.3d at 1373-74, 1376). “Once the court makes

findings on the disputed issues of fact, it then decides whether under those findings

the prisoner has exhausted his available administrative remedies.” Id. at 1083. “The

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

available administrative remedies.” Id. at 1082 (citing Jones v. Bock, 549 U.S. 199,

216 (2007)).

The grievance procedures promulgated by the Florida Department of

Corrections (“FDOC”) contain three steps.3 First, the inmate must file an informal

grievance with a designated prison staff member. Second, the inmate must file a

3 FDOC regulations include exceptions to this 3-step process for certain situations, none of which

apply here. See Fla. Admin. Code r. 33-103.005 to 33-103.007.

formal grievance with the warden’s office. Third, the inmate must submit an appeal

to the Office of the Secretary. See Fla. Admin. Code r. 33-103.005 to 33-103.007;

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

II. Discussion

Sasser argues Christophe failed to exhaust his administrative remedies

because he filed only an informal grievance regarding the November 2023 incident,

dated March 6, 2024, which was returned without action. In support of the motion,

Sasser relies on the Declaration of Officer C. Davis-Cotton, an Informal Grievance

Coordinator for the FDOC, Doc. 22 at 38-40, the Declaration of Phyllis Rodriguez,

a Formal Grievance Coordinator for the FDOC, Doc. 22 at 47-48, and FDOC

grievance records, Doc. 22 at 41-45, 49-51.

The undersigned has reviewed the Declarations and records and agrees

Christophe has failed to exhaust his administrative remedies. As argued by Sasser,

Christophe submitted only one informal grievance related to the November 2023

incident. That grievance, submitted to prison officials on March 6, 2024, was

returned without action as untimely. Doc. 22 at 42; see Fla. Admin. Code r. 33-

103.011(1)(a) (stating informal grievances “[m]ust be received within 20 days of

when the incident or action being grieved occurred”). A grievance returned without

action does not satisfy the PLRA’s exhaustion requirement. See, e.g., Johnson v.

Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005) (“We agree with those circuits that

have concluded that an untimely grievance does not satisfy the exhaustion

requirement of the PLRA.”); Pavao v. Sims, 679 F. App’x 819, 825 (11th Cir. 2017)

(noting grievances returned without action for non-compliance with procedural rules

are not sufficient to exhaust). Because the FDOC reasonably found the grievance to

be untimely, this Court must do so as well.4 See Mraz v. Pagan-Delgado, 2018 WL

4326864, at *3 (N.D. Fla. Aug. 29, 2018), report and recommendation adopted,

2018 WL 4326818 (N.D. Fla. Sept. 10, 2018) (“Here, the Secretary’s Office

enforced that bar, and so must this Court.”). Also, Christophe did not seek review

of the grievance response by filing a request for administrative review or appeal, as

he could have done under Fla. Admin. Code r. 33-103.006.

Moreover, although Christophe stated in the March 2024 informal grievance

(and argues in his second response) that he originally filed a grievance in December

2023 regarding the alleged excessive force and never received a response, Doc. 22

at 42; Doc. 27, the FDOC has no record of the December 2023 grievance, and

Christophe has presented no evidence to the Court that he filed an earlier informal

grievance. See Doc. 22 at 39 (declaration of Officer Davis-Cotton stating that

Christophe did not file any informal or formal grievances regarding the incident with

4 Christophe could have also moved for an extension of time to file the grievance, but there is no

evidence he did so. See Fla. Admin. Code r. 33-103.011(2) (authorizing the reviewing authority

or Secretary to grant an extension of time upon a showing that it was not feasible to file the

grievance within the relevant period and that the inmate made a good faith effort to file in a timely

manner).

Sasser before March 6, 2024). Regardless, under the FDOC’s grievance procedures,

if a grievance is not answered, the inmate must still proceed to the next step in the

grievance process after the time for the institution to respond to the informal

grievance expires. See Fla. Admin. Code r. 33-103.011(4). There is no evidence

Christophe took that second step.

Thus, under the first step of the Turner analysis, the undersigned finds that

Christophe has not exhausted his excessive force claim. Also, because Christophe’s

responses, Docs. 24 & 27, do not raise any disputes of fact for the Court to resolve,

there is no need for the Court to proceed to the second step of Turner.

Accordingly, it is RECOMMENDED:

1. That Defendant Draven Sasser’s motion to dismiss, Doc. 22, be

GRANTED, and this case be DISMISSED WITHOUT PREJUDICE for Plaintiff’s

failure to exhaust his administrative remedies.

2. That the clerk close the file and terminate all pending motions.5

At Pensacola, Florida, this 6th day of August, 2024.

/s/ Hope Thai Cannon

HOPE THAI CANNON

UNITED STATES MAGISTRATE JUDGE

5 Because Christophe failed to exhaust his administrative remedies, the claim against the unserved

Doe Defendant should also be dismissed. See Escobar v. Crosby, 363 F. Supp. 2d 1361, 1366

(S.D. Fla. 2005) (noting dismissal of prisoner’s claims against unserved defendants was

appropriate based on both the prisoner’s failure to effect timely service under Federal Rule of Civil

Procedure 4(m) and his failure to exhaust administrative remedies).

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed within

fourteen (14) days of the date of the Report and Recommendation.  Any different

deadline that may appear on the electronic docket is for the court’s internal use only

and does not control.  An objecting party must serve a copy of its objections upon

all other parties.  A party who fails to object to the magistrate judge’s findings or

recommendations contained in a report and recommendation waives the right to

challenge on appeal the district court’s order based on the unobjected-to factual and

legal conclusions.  See 11th Cir. Rule 3-1.