Blake v. White

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KEVIN LAMAR BLAKE,

Plaintiff,

v.

Case No. 3:23-cv-341-MMH-PDB

WHITE, et al.,

Defendants.

___________________________

ORDER

I. Status

Plaintiff Kevin Lamar Blake, an inmate of the Florida penal system,

initiated this action, in forma pauperis, by filing a pro se Civil Rights

Complaint under 42 U.S.C. § 1983 (Doc. 1; Complaint). Blake is proceeding on

a Second Amended Complaint (Docs. 13 & 13-1; SAC & SAC Attachment)1

against four Defendants – Officer White, Officer H. Carey, Sergeant R. Covey,

and Officer E. Baker.2 SAC at 2-3. He asserts claims of sexual harassment,

failure to intervene, excessive force, retaliation, deliberate indifference to

1 Blake’s factual allegations are set forth on page 5 of Doc. 13 (SAC) and pages

1 and 2 of Doc. 13-1 (SAC Attachment). The Court generally refers to Docs. 13 and

13-1 collectively as “SAC” and will specifically cite to each when appropriate.

2 The Court directs the Clerk to correct the docket to reflect the accurate

spelling for the following listed Defendants – “H. Coovey” to “H. Carey” and “E.

Becker” to “E. Baker.”

conditions of confinement, and “hinderance of observation of religion.” Id. at 3-

4.

This matter is before the Court on Defendants’ Motion to Dismiss (Doc.

19; Motion). Blake filed a Response in opposition to the Motion (Doc. 23;

Response). The Motion is ripe for review.

II. Blake’s Allegations3

In his SAC, Blake alleges that on January 16, 2023, while housed at

Florida State Prison, Defendant White denied him his Religious Diet Program

(RDP) lunch bag because Blake “refused to step to the back of his cell and show

[Defendant White] his penis or spread his buttock[].” SAC at 5. Blake asserts

he immediately told Defendant Carey about Defendant White’s actions and

twice asked Defendant Carey to help, but Defendant Carey “deliberately

disregarded” Blake’s pleas and refused to intervene. Id. According to Blake,

officials never provided him with his lunch bag that day. Id. He asserts that

following these events, he filed a sexual assault complaint under the Prison

Rape Elimination Act (PREA). Id.

3 In considering Defendants’ Motion, the Court must accept all factual

allegations in the SAC as true, consider the allegations in the light most favorable to

Blake, and accept all reasonable inferences that can be drawn from such allegations.

Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa Cnty., 21

F.3d 1531, 1534 (11th Cir. 1994). As such, the facts recited here are drawn from the

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

According to Blake, on January 22, 2023, Defendant Covey came to

Blake’s cell to investigate the January 16, 2023 incident and get a witness

statement. SAC Attachment at 2. Blake contends he requested that Defendant

Covey move him to another wing of the facility to “ensure his safety because

he feared retaliation from” Defendants White and Carey, but Defendant Covey

“refused to intervene” to prevent further incidents even though “it was in his

power and ability to do so.” Id.

Blake further alleges that on January 23, 2023, Defendant Baker

escorted him to the law library, and as he was exiting his cell, Defendant Carey

and Officer Howard entered the cell and stated, “Oh, I’ve been waiting for you

to come out. I got you now.” Id. When Blake returned to his cell following his

call-out, he noticed his cell was in “complete disarray” and his RDP breakfast

bag that he was waiting to eat after his fast was missing. Id. Blake asserts that

Defendant Carey immediately took responsibility for the condition of Blake’s

cell, explaining he did it because Blake’s mother had contacted the facility

about the January 16, 2023 incident involving Defendants White and Carey.

Id. Officials then removed Blake’s body restraints and secured his cell door. Id.

Blake asserts that Defendant Baker then removed Blake’s left-hand restraint

and as Defendant Baker tried to remove the right-hand restraint, Blake

“snatched his arm back through the aperture.” Id. According to Blake,

Defendant Baker pulled on the restraints, causing Blake to scrape his arm. Id.

He asserts he and Defendant Baker “struggled with each other” until

Defendant Carey intervened and sprayed Blake with chemical agents, burning

Blake’s skin and eyes and causing him to choke and cough. Id.

Blake maintains that Lieutenants Young and Morris then escorted him

to the decontamination shower. Id. He advised Young that although he did not

want to go to medical, he wanted officials to document his injuries but he

“doubts” that Nurse Mosley documented anything. Id. Blake contends that

unnamed officials eventually escorted him to Bravo Wing and placed him in a

cell with chemical agents all over the walls. Id. According to Blake, for the next

few days, unnamed officials did not provide him with “healthy comfort items,

sheets, blankets, [a] mattress, pillow, or his property” even though he was

never placed on property restriction. Id. He received his personal property

“several weeks later” and received “proper laundry items” “several days” later.

Id. Blake contends Defendant Baker issued a disciplinary report on January

25, 2023, for battery/attempted battery on an officer, and officials held a

disciplinary hearing on February 1, 2023, which Blake later appealed. Id.

Blake alleges Defendants’ actions violated his rights under the First

Amendment (retaliation and religious freedom) and Eighth Amendment

(excessive force, failure to intervene, and sexual harassment). SAC at 3-4. The

Court also construes Blake’s allegations about unnamed officials moving him

to a cell covered in chemical agents and denying him “healthy comfort items”

as an Eighth Amendment claim of deliberate indifference to the conditions of

his confinement. Blake contends Defendant Baker’s use of force resulted in

Blake suffering “several scars” and the use of chemical agents, cell extraction,

property restriction, and retaliation has caused Blake to experience paranoia

and sleep deprivation. Id. at 5. As relief, he requests compensatory and

punitive damages. 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 Atl. 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

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

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. Defendants’ Motion

In their Motion, Defendants argue the following: (a) Blake failed to

exhaust his administrative remedies; (b) Blake fails to state a claim under the

First Amendment; (c) Blake fails to state a claim under the Eighth

Amendment; (d) they are entitled to qualified immunity; (e) Blake is not

entitled to compensatory damages; and (f) Blake is not entitled to punitive

damages. See generally Motion.

a. Exhaustion

Defendants argue Blake failed to exhaust his administrative remedies

because officials did not approve any informal or formal grievances regarding

the January 16, 2023 allegations. Motion at 10. They acknowledge that Blake

filed one direct emergency grievance containing assertions about the January

16, 2023 sexual harassment, denial of his RDP lunch, and Defendant Carey’s

failure to intervene. Id. But, according to Defendants, the Bureau of Inmate

Appeals did not decide the direct grievance on the merits, but instead

“approved” it only to the extent that it forwarded his allegations “for action by

the Warden of the institution” and thus it did not waive any procedural defects.

Id. at 10-11. Defendants also argue that Blake filed no informal, formal, or

grievance appeal containing allegations about his January 16, 2023 claims of

excessive force and deliberate indifference. Id. at 11-13. In support of their

argument, Defendants provide the declarations of formal grievance coordinator

Phyllis Rodriguez, informal grievance coordinator C. Davis-Cotton, and

operation analyst Lawanda Sanders-Williams, as well as direct emergency

grievance (log # 23-6-02961) and the Secretary’s response thereto. See Docs.

19-1 through 19-3.

Blake argues that he exhausted his administrative remedies for all his

claims. Response at 3. According to Blake, the Secretary’s approval of direct

emergency grievance (log # 23-6-02961) exhausted his administrative remedies

for his claims about the January 16, 2023 incident. Id. As to his claims for

excessive force and deliberate indifference, Blake maintains that the events

giving rise to those claims occurred on January 23, 2023, not January 16, 2023,

and “he filed numerous grievances [about those allegations] but they were

either lost, misfiled, not processed, or otherwise thrown away.” Id.

The Prison Litigation Reform Act (PLRA) requires Blake to exhaust his

available administrative remedies before pursuing a § 1983 claim about prison

conditions. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect

to prison conditions under section 1983 . . . until such administrative remedies

as are available are exhausted.”); see also Woodford v. Ngo, 548 U.S. 81, 92-93

(2006) (noting that a prisoner must exhaust administrative remedies before

challenging the conditions of confinement, and concluding that the PLRA

demands “proper exhaustion”). Nevertheless, Blake need not “specially plead

or demonstrate exhaustion in [his] complaint[].” 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.

Importantly, exhaustion of available administrative remedies is “a

precondition to an adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368,

1374 (11th Cir. 2008); see also Jones, 549 U.S. at 211. The Supreme Court has

instructed that while “the PLRA exhaustion requirement is not

jurisdictional[,]” Woodford, 548 U.S. at 101, “exhaustion is mandatory . . . and

unexhausted claims cannot be brought,” Pavao v. Sims, 679 F. App’x 819, 823

(11th Cir. 2017) (per curiam) (citing Jones, 549 U.S. at 211).4 Not only is there

a recognized exhaustion requirement, “the PLRA . . . requires proper

exhaustion” as set forth in applicable administrative rules and policies of the

institution. Woodford, 548 U.S. at 93.

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.”).

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).”

Id. at 90 (citation omitted). Indeed, “[p]roper exhaustion demands compliance

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

In Ross v. Blake, the Supreme Court 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.’” 136 S. Ct. 1850, 1862 (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 Court identified three circumstances in which an administrative

remedy would be considered “not available.” Ross, 136 S. Ct. at 1859. 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 1860.

Because failure to exhaust administrative remedies is an affirmative

defense, Defendants bear “the burden of proving that [Blake] has failed to

exhaust his available administrative remedies.” Turner v. Burnside, 541 F.3d

1077, 1082 (11th Cir. 2008). The Eleventh Circuit has articulated a two-step

process that the Court must employ when examining the issue of exhaustion

of administrative remedies.

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.5 Bryant, 530 F.3d

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

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 Florida Department of Corrections

(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.

5 In an unpublished decision, the Eleventh Circuit suggests that a pro se

plaintiff must receive notice of his opportunity to develop the record on exhaustion.

See Kinard v. Fla. Dep’t of Corr., No. 24-10359, 2024 WL 4785003, at *7 (11th Cir.

Nov. 14, 2024) (per curiam). Here, the Court notified Blake that he had forty-five days

to respond to any motion to dismiss. See Order (Doc. 15) at 3. Blake responded to the

Defendants’ Motion (Doc. 23) and addressed the exhaustion argument by relying on

the grievance records attached to Defendants’ Motion. He does not suggest that he

requires additional discovery. As such, Blake has received notice and an opportunity

to develop the record on exhaustion.

However, the ordinary three-step procedure does not always apply. For

example, an inmate may skip the informal and formal grievance steps and file

a direct emergency grievance with the Office of the Secretary, if the issue

involves an emergency, reprisal, protective management, admissible reading

material, release date calculations, banking issues, sexual abuse committed by

the warden, or HIPAA violations. Fla. Admin. Code r. 33-103.007(3)(a). When

a prisoner files a direct emergency grievance with the Secretary, he must do so

“within 15 calendar days from the date on which the incident or action which

is the subject of the grievance occurred.” Fla. Admin. Code r. 33-103.011(d).

Here, accepting Blake’s view of the facts as true, the Court finds

dismissal of the claims against Defendants 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 in which the Court considers the parties’ disputes

about exhaustion and makes findings of fact.

In resolving those disputes, the Court first addresses Blake’s efforts to

exhaust his January 16, 2023 claims of sexual harassment, denial of his RDP

lunch bag, and failure to intervene. The evidentiary material shows that on

January 17, 2023, Blake submitted to the Secretary a direct emergency

grievance (log # 23-6-02961), which stated in pertinent part:

Direct grievance

Issue: PREA/Sexual Abuse Grievance/Complaint

Against Staff/8th Amendment Right Violation/14th

Amendment Right Violation

Note: Due to the nature and urgency of this incident I

am filing this grievance directly to the Central Office.

Explanation: On Monday January 16, 2023 starting . .

. between 10:30 am [and] continuing on between 12:00

noon-12:30pm ending in the grievant being sexually

harassed and denied the right to receive his R.D.P.

(Religious Diet Program) lunch bag by Ofc. White,

whom sexually harassed Grievant by requesting to

either see his penis or to spread his buttock[]. This

le[]d to Grievant being refused the opportunity to

receive his food because he refused to step to the back

window and show Ofc. White his penis or spread his

buttock[]. Grievant spoke with Sgt. H. Carey to

provide intervention against Ofc. White’s sexual

approaches and to provide him his food. Instead of Sgt.

H. Carey providing intervention[,] he allowed Ofc.

White to not feed the Grievant. Grievant asserts that

this is a direct violation of . . . his 1st, 8th, and 14th

Amendment rights . . . .

Doc. 19-3 at 2. On January 31, 2023, the Secretary’s Office responded to the

direct grievance (log # 23-6-02961) as follows:

Your request for administrative review has been

received and evaluated. Your PREA allegations have

been forwarded to the Warden at your facility in order

that immediate action regarding your allegations may

be taken.

Based on the forgoing, your appeal is approved in as

much as action was taken to affect immediate action

on your allegations. This does not necessarily

substantiate your allegations.

Doc. 19-3 at 1.

The parties do not dispute the contents of Blake’s direct emergency

grievance (log # 23-6-02961) or the Secretary’s response/approval, and they

also agree that Blake did not otherwise proceed through the FDOC’s standard

three-step process for the January 16, 2023 events. However, they dispute

whether Blake’s direct emergency grievance (log # 23-6-02961) and the

Secretary’s response were sufficient to exhaust those claims. The Court finds

that they were.

Notably, courts have repeatedly recognized that when the Secretary

marks an “emergency grievance” as “approved” and refers it for investigation,

the inmate has sufficiently exhausted his administrative remedies See, e.g.,

Hardin v. Jones, 3:18-cv-3-J-32-JBT, 2020 WL 325649, at *3-4 (M.D. Fla. Jan.

21, 2020) (refusing to dismiss for lack of exhaustion because the prisoner filed

an emergency grievance that was referred to the inspector general); Luckey v.

May, 5:14-cv-315-MW-GRJ, 2016 WL 1128426, at *9-10 (N.D. Fla. Feb. 17,

2016) (finding that a prisoner’s “emergency grievance exhausted his

administrative remedies” because it was deemed “approved” and “referred to

the Office of the Inspector General”);6 see also Tierney v. Hattaway, 3:20-cv-

6 The Court notes that although decisions of other district courts are not

binding, they 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.”).

5738/LAC/ZCB, 2022 WL 18159995, at *2 (N.D. Fla. Dec. 9, 2022) (concluding

that prisoner sufficiently exhausted when his grievance was “approved” and

referred to the inspector general). Indeed, when a grievance has been

“approved” in any circumstance, there is nothing more for an inmate to do. Of

import here, the Secretary did not refuse the grievance or direct Blake to

resubmit it at the appropriate level. It was accepted as an emergency and

addressed on the merits. Given the Secretary “approved” Blake’s direct

emergency grievance, it would have been counterintuitive for him to otherwise

proceed through the three-step grievance procedure. See Fulmore v. Leigh,

8:12-cv-1705-T-30-EAJ, 2014 WL 2441864, at *7 (M.D. Fla. May 30, 2014)

(explaining that the administrative exhaustion doctrine does not “require[ ]

inmates to undertake additional action upon approval of a grievance in order

to complete the review process”). And the Court finds no difference between

the Secretary’s decision to refer Blake’s direct grievance to the Warden for

investigation rather than the Office of the Inspector General. Thus, Blake

exhausted his January 16, 2023 claims for sexual assault, denial of his RDP

lunch, and failure to intervene.

Next, the Court considers Blake’s efforts to exhaust his claims of

excessive force and deliberate indifference. The parties first disagree about the

date these claims arose. Defendants provide the declarations of Davis-Cotton

and Rodriguez who state that officials did not approve any informal or formal

grievances “related to the January 16, 2023 claims of excessive use of force” or

“deliberate indifference.” Doc. 19-1 at 1-2. They also rely on the declaration of

Sanders-Williams who attests that “Blake did not file any proper appeals

regarding the January 16, 2023 claims of excessive use of force[] and deliberate

indifference.” Doc. 19-2 at 1.

But in his SAC and Response, Blake asserts that his claims of excessive

force and deliberate indifference arose from events that occurred on January

23, 2023, thus his approved direct emergency grievance (log # 23-6-02961),

which he submitted on January 17, 2023, understandably did not contain

allegations about those claims. Response at 3. According to Blake, after

January 23, 2023, he submitted “numerous grievances” about those events,

“but they were either lost, misfiled, not processed, or otherwise thrown away.”

Id. To that end, he appears to argue that officials rendered the grievance

process for those claims unavailable, relieving him of any obligation to

complete the procedure for his excessive force and deliberate indifference

claims.

Contrary to Defendants’ position, the record here shows that Blake’s

claims of excessive force and deliberate indifference arose from events that

Blake alleges occurred on January 23, 2023. Thus, the declarations and

evidence Defendants present to dispute exhaustion of a January 16, 2023

excessive force or deliberate indifference claim are irrelevant and not

dispositive of Blake’s exhaustion efforts for the January 23, 2023 events at

issue here. As such, Defendants have not shown that Blake failed to exhaust

his administrative remedies as to those claims, and Defendants’ Motion is due

to be denied as to their exhaustion argument.

b. First Amendment

Retaliation

In their Motion, Defendants argue Blake fails to state a plausible claim

of retaliation against Defendants White and Carey. Motion at 14. “The core of

[a retaliation claim brought pursuant to 42 U.S.C. § 1983] is that the prisoner

is being retaliated against for exercising his right to free speech.” O’Bryant v.

Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (citation omitted). It is firmly

established that “an inmate is considered to be exercising his First Amendment

right of freedom of speech when he complains to the prison’s administrators

about the conditions of his confinement.” Smith v. Mosley, 532 F.3d 1270, 1276

(11th Cir. 2008). An inmate may pursue a cause of action against a prison

official who retaliates against him for engaging in that protected speech. Id.

To establish a retaliation claim, a prisoner must

demonstrate “that the prison official’s actions were the

result of his having filed a grievance concerning the

conditions of his imprisonment.” Farrow v. West, 320

F.3d 1235, 1248 (11th Cir. 2003) (internal quotation

marks and citation omitted). [A plaintiff] can prevail

on a retaliation claim if “(1) his speech was

constitutionally protected; (2) [he] suffered adverse

action such that the administrator’s allegedly

retaliatory conduct would likely deter a person of

ordinary firmness from engaging in such speech; and

(3) there is a causal relationship between the

retaliatory action and the protected speech.” Smith v.

Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).

Williams v. Radford, 64 F.4th 1185, 1192 (11th Cir. 2023). As to the third

prong, a plaintiff must do more than make “general attacks” upon a

defendant’s motivations and must articulate “affirmative evidence” of

retaliation to show the requisite motive. Crawford-El v. Britton, 523 U.S. 574,

600 (1998) (citations omitted). “In other words, the prisoner must show that,

as a subjective matter, a motivation for the defendant’s adverse action was the

prisoner’s grievance or lawsuit.” Jemison v. Wise, 386 F. App’x 961, 965 (11th

Cir. 2010) (per curiam) (citation omitted).

Here, Blake’s retaliation claims are based on two sets of circumstances.

First, he asserts that on January 16, 2023, Defendant White refused to give

Blake his RDP lunch bag in retaliation for Blake’s refusal to expose his

genitals. SAC at 5. However, in the prison context, the purpose of a First

Amendment retaliation claim is to protect a prisoner’s right to advise prison

administrators about confinement conditions, and a prisoner may maintain a

claim of retaliation by alleging that an official’s actions were “the result of [the

inmate] having filed a grievance concerning th[ose] conditions of his

imprisonment.” Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003). The

Eleventh Circuit has not extended those protections to an inmate’s verbal

refusal to submit to a guard’s sexual advances. See Charest v. Sunny-Aakash,

LLC, No. 8:16-cv-2048-T-30JSS, 2017 WL 4169701, at *6 (M.D. Fla. Sept. 20,

2017) (acknowledging the Eleventh Circuit’s undecided position and citing

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 389 (5th Cir. 2007)

(holding that a single, express rejection of sexual advances does not constitute

“protected activity” for purposes of a retaliation claim)).

In his Response, Blake asserts, for the first time, that Defendant White

refused to provide him with his RDP lunch immediately after Blake verbally

threatened to submit a PREA complaint against Defendant White. Response

at 3. However, Blake was twice afforded leave to file an amended complaint

(see Docs. 10, 12), and he never asserted these facts about Defendant White’s

purported motive to deny Blake of his RDP lunch. Blake cannot survive a

motion to dismiss by expanding factual allegations for the first time in his

response to a motion. See Regalado v. Dir., Ctr. for Disease Control, No. 22-

12265, 2023 WL 239989, at * 1 (11th Cir. Jan. 18, 2023) (affirming dismissal

of § 1983 complaint as moot where plaintiff's jurisdictional claims “were never

properly before the district court as he only raised them in opposition to the

motion to dismiss and did not seek leave to amend his complaint”); Huls v.

Llabona, 437 F. App’x 830, 832 n.5 (11th Cir. 2011) (holding that an argument

raised for the first time in response to a motion to dismiss, instead of in an

amended complaint, was not properly raised before the district court and would

not be considered on appeal); Gilmour v. Gates, McDonald & Co., 382 F.3d

1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend [his] complaint

through argument in a brief opposing summary judgment.”). Thus, Blake fails

to state a plausible retaliation claim against Defendant White.

Blake’s second retaliation claim is that on January 23, 2023, while Blake

was in the law library, Defendant Carey trashed his cell and took Blake’s RDP

breakfast bag in retaliation for Blake’s mother “contact[ing] the institution and

inform[ing] them that he and Ofc. White refused to feed him on January 16,

2023 after Ofc. White sexually harassed him.” SAC Attachment at 2. Viewing

these allegations in the light most favorable to Blake, as the Court must, and

assuming Blake’s mother’s complaint to prison officials can be considered

“protected speech” for purposes of a First Amendment claim, Blake fails to

show that Defendant Carey’s actions of taking Blake’s meal and leaving his

cell is “disarray” were so adverse as to deter a person of ordinary firmness from

engaging in such speech. See, e.g., McDuf v. Barlow, No. 3:17cv909-LC-HTC,

2019 WL 2016557, at *6 (N.D. Fla. Apr. 12, 2019), rep. & recommendation

adopted by 2019 WL 2010709, at *1 (N.D. Fla. May 7, 2019) (finding that the

plaintiff could not show that the defendant’s “alleged retaliatory conduct of

denying him a single meal would likely deter a person of ordinary firmness

from exercise of First Amendment rights”).7 As such, Blake fails to state a

plausible retaliation claim against Defendant Carey, and Defendants’ Motion

is due to be granted as to this argument.

Free Exercise Clause

Defendants argue that Blake fails to state a First Amendment claim

under the Free Exercise Clause. Motion at 16-18. According to Defendants,

Blake fails to allege facts showing the denial of his RDP meals posed a

substantial burden on his religious beliefs. Id. at 17.

The Free Exercise Clause prevents the government from discriminating

against an individual’s exercise of religious beliefs or conduct those religious

beliefs motivate. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 532 (1993) (“At a minimum, the protections of the Free Exercise

Clause pertain if the law at issue discriminates against some or all religious

beliefs or regulates or prohibits conduct because it is undertaken for religious

reasons.”). To establish a First Amendment claim under the Free Exercise

7 The Court takes judicial notice of its own records, and of public records within

its own files. See Cash Inn of Dade, Inc. v. Metro. Dade Cnty., 938 F.2d 1239, 1243

(11th Cir. 1991) (district court may take judicial notice of public records within its

files relating to particular case before it or to related cases). In doing so, the Court

recognizes that after the January 23, 2023 events, Blake continued to file complaints,

which shows that Defendant Carey’s actions would not deter a person of ordinary

firmness from exercising his First Amendment rights. Notably, after Defendant

Carey’s alleged conduct on January 23, 2023, Blake filed at least four other civil rights

cases. See Nos. 3:23-cv-660-MMH-J_T; 3:23-cv-682-BJD-MCR; 3:23-cv-1371-HES-

J_T; 3:23-cv-399-BJD-MCR. And Blake likewise admits that he submitted “numerous

grievances” after January 23, 2023. Response at 3.

Clause, a plaintiff must show that the defendant imposed a “substantial

burden” on his sincerely held religious beliefs. See GeorgiaCarry.Org v.

Georgia, 687 F.3d 1244, 1256 (11th Cir. 2012) (“First Amendment Free

Exercise Clause precedent is clear: a plaintiff must allege a constitutionally

impermissible burden on a sincerely held religious belief to survive a motion

to dismiss.”); see also Hoever v. Belleis, 703 F. App’x 908, 912 (11th Cir. 2017);

Wilkinson v. GEO Grp., Inc., 617 F. App’x 915, 917 (11th Cir. 2015); Hernandez

v. Comm’r, 490 U.S. 680, 699 (1989) (“The free exercise inquiry asks whether

government has placed a substantial burden on the observation of a central

religious belief or practice[.]”). A “substantial burden” is defined as something

more than an incidental effect or inconvenience on religious exercise. It “is akin

to significant pressure which directly coerces the religious adherent to conform

his or her behavior accordingly. Thus, a substantial burden can result from

pressure that tends to force adherents to forego religious precepts or from

pressure that mandates religious conduct.” Midrash Sephardi, Inc. v. Town of

Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004); see also Hoever, 703 F. App’x

at 912 (“[A] substantial burden occurs if the conduct complained of completely

prevents the individual from engaging in religiously mandated activity, or . . .

requires participation in an activity prohibited by religion and, at a minimum,

must have something more than an incidental effect on religious exercise.”

(internal quotations and citation omitted)).

Here, Blake fails to state a plausible Free Exercise claim against

Defendants White and Carey. He bases his claims on (1) Defendant White’s

January 16, 2023 refusal to provide Blake with his RDP lunch after Blake

declined to expose his genitals, and (2) Defendant Carey’s January 23, 2023

destruction of Blake’s cell and the taking of his RDP breakfast after Blake’s

family contacted the facility. But even viewing these allegations in the light

most favorable to Blake, he has failed to plausibly suggest that Defendant

White’s and Defendant Carey’s interference with his receipt of RDP meals on

two days substantially interfered with his ability to practice his religious

beliefs. See, e.g., Moore v. Nunn, No. 3:19-cv39/MCR/EMT, 2019 WL 7485332,

at *8 (N.D. Fla. Aug. 27, 2019), rep. & recommendation adopted by Moore v.

Nunn, 2020 WL 61044, at *1 (N.D. Fla. Jan. 6, 2020) (finding the plaintiff’s

allegation that the defendant “defiled” five meals over a five-day period did not

state a First Amendment Free Exercise of Religion claim). Blake does not

allege or suggest that the purpose of Defendant White’s and Defendant Carey’s

actions was to hinder Blake’s religious practice. Instead, he plainly asserts

Defendants White’s and Carey’s denial or taking of his RDP meal bags were in

retaliation for actions wholly unrelated to Blake’s religion. Thus, Blake has

failed to state a plausible First Amendment claim under the Free Exercise

Clause, and Defendants’ Motion is due to be granted as to this argument.

c. Eighth Amendment

Sexual Harassment and Failure to Intervene

Defendants argue that Blake fails to state a sexual harassment claim

under the Eighth Amendment because he did not assert that Defendant

White’s comments caused Blake to suffer any injuries. Motion at 26.

Defendants also argue that Blake fails to state a failure to intervene claim

against Defendants Carey and Covey because he failed to allege facts showing

they were subjectively aware that Defendant White’s verbal threats posed a

substantial risk of harm. Id. at 20.

“[S]evere or repetitive sexual abuse of a prisoner by a prison official can

violate the Eighth Amendment.” Sconiers v. Lockhart, 946 F.3d 1256, 1267

(11th Cir. 2020). But no binding precedent has established that a correctional

officer’s verbal threats of sexual harassment, without more, rise to the level of

a constitutional violation. Watkins v. Azael, No. 22-11648, 2023 WL 4422527,

at *7 (11th Cir. July 10, 2023). Indeed, “verbal taunts . . . [h]owever distressing”

cannot establish a claim under the Eighth Amendment. Edwards v. Gilbert,

867 F.2d 1271, 1273 n.1 (11th Cir. 1989)). And a “prison officers’ threats that

were never carried out [are likewise] insufficient to state a constitutional

violation.” Hernandez v. Fla. Dep’t of Corr., 281 F. App’x 862, 866 (11th Cir.

2008). To that end, the Eleventh Circuit, in an unpublished opinion, explained

that “given the binding precedents concerning verbal statements (in a single

incident) without accompanying actions, [it] cannot say that [verbal sexual

harassment]” amounts to conduct that violates the constitution. Watkins, 2023

WL 4422527, at *8 (finding verbal sexual threats did not present exceptionally

rare case that would give a reasonable correctional officer fair notice of its

illegality for purposes of qualified immunity).

Here, Blake does not allege that Defendant White sexually assaulted

him. Rather, his allegations involve Defendant White’s verbal taunts and

sexual comments. Defendant White’s alleged statements, “though

unacceptable and unrelated to any legitimate governmental objective, [are] the

type of verbal harassment or taunting that is not actionable” under the Eighth

Amendment. See In re: Eric Watkins Litigation, 829 F. App’x 428, 431 (11th

Cir. 2020); see also Allen v. McDonough, 4:07-CV-469/RH/GRJ, 2011 WL

4102525, at *6 (N.D. Fla. Aug. 17, 2011) (explaining that “sexual comments

and gestures to [the p]laintiff . . . do not rise to the level of a constitutional

violation under the Eighth Amendment”); Miller v. Johnson, 2:20-cv-458, 2023

WL 5358606, at *4 (M.D. Ala. July 26, 2023) (explaining that “sexual

harassment devoid of any contact or touching does not violate the Eighth

Amendment”). Thus, Blake has failed to state a plausible Eighth Amendment

sexual harassment claim against Defendant White and Defendants’ Motion is

due to be granted as to this argument.

To that end, since the Court finds that Defendant White’s verbal sexual

harassment, while unacceptable, did not amount to a constitutional violation,

Blake’s claim that Defendant Carey failed to intervene during Defendant

White’s alleged sexual harassment must also fail. See, e.g., Mobley v. Palm

Beach Cnty. Sheriff Dep’t,783 F.3d 1347, 1357 (11th Cir. 2015) (“[A] police

officer has no duty to intervene in another officer’s use of force when that use

of force is not excessive.”); Kinght v. Gray, No. 3:19-cv-779-BJD-JBT, 2024 WL

1174708, at *22 (M.D. Fla. Mar. 19, 2024) (determining that because the

plaintiff failed to establish a claim of sexual abuse, his claim that another

officer failed to intervene in the abuse also failed). Likewise, because the Court

has found Blake failed to state a retaliation claim regarding Defendant White’s

January 16, 2023 refusal to provide Blake’s RDP lunch, Blake also fails to

adequately allege that Defendant Carey failed to intervene in that conduct.

Finally, Blake claims that Defendant Covey failed to intervene in

Defendant White’s sexual harassment because Defendant Covey declined to

move Blake to another prison wing during his January 22, 2023 investigation.

But, even if Defendant White’s comments amounted to a constitutional

violation, a failure to intervene claim requires that Defendant Covey be

present and capable of intervening at the time of the constitutional violation.

And Blake’s allegations that Defendant Covey failed to intervene days after

Defendant White’s actions are insufficient to state a claim for relief. See, e.g.,

Hadley v Gutierrez, 526 F.3d 1324, 1331 (11th Cir. 2008) (“[I]t must [ ] be true

that the non-intervening officer was in a position to intervene yet failed to do

so.”). Thus, Blake fails to state a failure to intervene claim against Defendants

Carey and Covey, and Defendants’ Motion is due to be granted as to this

argument.

Excessive Force

Defendants argue that Blake fails to state an excessive force claim

against Defendants Baker and Carey because, in accordance with the FDOC’s

policy, Blake’s resistance to the removal of his hand restraints made it

necessary for Defendant Baker to apply physical force and for Defendant Carey

to use chemical agents. Motion at 24. They also assert that Defendants Baker

and Carey used no more force than necessary to restore discipline and security.

Id. at 25.

In Sconiers v. Lockhart, 946 F.3d 1256, 1265 (11th Cir. 2020), the

Eleventh Circuit reviewed “the principles applicable to Eighth Amendment

excessive-force” claims. In doing so, the court instructed:

The Eighth Amendment, among other things,

prohibits “cruel and unusual punishments.” U.S.

Const. amend. VIII. As the Supreme Court has

explained, “the unnecessary and wanton infliction of

pain” qualifies under the Eighth Amendment as

proscribed “cruel and unusual punishment.” Hudson

v. McMillian, 503 U.S. 1, 5 (1992). Nevertheless, the

Supreme Court has instructed that what rises to the

level of an “unnecessary and wanton infliction of pain”

differs based on the type of Eighth Amendment

violation alleged. Id.

Since [the plaintiff] asserts excessive-force . . .

claims, “the core judicial inquiry” requires [the Court]

to consider “whether force was applied in a good-faith

effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Wilkins, 559 U.S. at

37 (citation and quotation marks omitted).[8] This

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.” Hudson, 503 U.S. at 8

(cleaned up).

With respect to the subjective element, “to have

a valid claim on the merits of excessive force in

violation of [the Eighth Amendment], the excessive

force must have been sadistically and maliciously

applied for the very purpose of causing harm.”

Johnson v. Breeden, 280 F.3d 1308, 1321 (11th Cir.

2002); see also Thomas v. Bryant, 614 F.3d 1288, 1304

(11th Cir. 2010).

As for the objective component of an excessive-

force violation, it focuses on whether the official’s

actions were “harmful enough,” Hudson, 503 U.S. at 8,

or “sufficiently serious,” Wilson v. Seiter, 501 U.S. 294,

298 (1991), to violate the Constitution. “Not every

malevolent touch by a prison guard gives rise to a

federal cause of action.” Wilkins, 559 U.S. at 37. “The

Eighth Amendment’s prohibition of ‘cruel and

unusual’ punishments necessarily excludes from

constitutional recognition de minimis uses of physical

force, provided that the use of force is not of a sort

repugnant to the conscience of mankind.” Id. at 37-38.

Instead, the Eighth Amendment prohibits force that

8 Wilkins v. Gaddy, 559 U.S. 34 (2010) (per curiam).

offends “contemporary standards of decency,”

regardless of whether “significant injury is evident,”

though the extent of injury may shed light on the

amount of force applied or “whether the use of force

could plausibly have been thought necessary.”

Wilkins, 559 U.S. at 37 (citation and internal

quotation marks omitted).

Id. at 1265-66; see also McKinney v. Sheriff, 520 F. App’x 903, 905 (11th Cir.

2013) (per curiam). In determining whether an officer’s use of force was applied

maliciously and sadistically for the purpose of causing harm, courts consider

five distinct factors:

(1) the extent of injury; (2) the need for application of

force; (3) the relationship between that need and the

amount of force used; (4) any efforts made to temper

the severity of a forceful response; and (5) the extent

of the threat to the safety of staff and inmates, as

reasonably perceived by the responsible officials on the

basis of facts known to them.

Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999) (quoting Whitley v.

Albers, 475 U.S. 312, 321 (1986); Hudson, 503 U.S. at 7). When considering

these factors, courts “must also give a ‘wide range of deference to prison

officials acting to preserve discipline and security,’ including when considering

‘[d]ecisions made at the scene of a disturbance.’” Cockrell v. Sparks, 510 F.3d

1307, 1311 (11th Cir. 2007) (quoting Bennett v. Parker, 898 F.2d 1530, 1533

(11th Cir. 1990)).

Notably, a lack of serious injury, while not dispositive, is relevant to the

inquiry. Wilkins, 559 U.S. at 38; Smith v. Sec’y, Dep’t of Corr., 524 F. App’x

511, 513 (11th Cir. 2013) (per curiam). The United States Supreme Court has

explained:

“[T]he extent of injury suffered by an inmate is

one factor that may suggest ‘whether the use of force

could plausibly have been thought necessary’ in a

particular situation.” Ibid.[9] (quoting Whitley, supra,

at 321). The extent of injury may also provide some

indication of the amount of force applied. . . . An

inmate who complains of a “‘push or shove’” that

causes no discernible injury almost certainly fails to

state a valid excessive force claim. Id. at 9 (quoting

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.

1973)).[10]

Injury and force, however, are only imperfectly

correlated, and it is the latter that ultimately counts.

An inmate who is gratuitously beaten by guards does

not lose his ability to pursue an excessive force claim

merely because he has the good fortune to escape

without serious injury.

Wilkins, 559 U.S. at 37-38. The Eleventh Circuit has stated:

A plaintiff who suffers only de minimis injury does not

necessarily lack a claim for excessive force under §

1983. Stephens,[11] 852 F.3d at 1328 n.33; Saunders v.

Duke, 766 F.3d 1262, 1270 (11th Cir. 2014). However,

the resulting injuries can be evidence of the kind or

degree of force that was used by the officer. See

Crocker v. Beatty, 995 F.3d 1232, 1251 (11th Cir.

2021).

9 Hudson, 503 U.S. at 7.

10 See Johnson, 481 F.2d at 1033 (“Not every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s

constitutional rights.”).

11 Stephens v. DeGiovanni, 852 F.3d 1298 (11th Cir. 2017).

Charles v. Johnson, 18 F.4th 686, 700 (11th Cir. 2021).

Here, Blake fails to state a claim of excessive force against Defendants

Baker and Carey. In his SAC, Blake alleges that when Defendant Baker was

trying to remove his right-hand restraint, Blake “snatched his arm back

through the aperture.” SAC Attachment at 2. He then asserts that he and

Defendant Baker “struggled with each other” until Defendant Carey

“intervened by spraying [Blake] with chemical agents.” Id. Viewing these

allegations in the light most favorable to Blake, one cannot reasonably infer

that Defendant Baker’s and Defendant Carey’s actions were motivated by

anything more than a need to restore discipline. See, e.g., Bouvier v. City of

Covington, Ga., No. 23-11410, 2023 WL 8015792, at *4 (11th Cir. Nov. 20,

2023) (finding officers’ ten-second application of a taser to a physically

resistant plaintiff was not excessive as it was not “wholly disproportionate to

the situation”).

In his Response, Blake again admits he disobeyed Defendant Baker’s

attempt to remove his hand restraint and pulled his arm away from Defendant

Baker’s grasp. Response at 6. But he does not mention Defendant Carey’s

alleged use of chemical agents. And, for the first time, he states that Defendant

Baker grabbed and bent his right arm “as if he was attempting to break” it;

and Defendant Carey “reacted by grabbing at [Blake’s] [left] arm and pulling

as well.” Id. Blake also maintains that since he was already secured inside his

cell, his possession of the handcuffs and “security keys” presented no safety

risk to prison authorities; and thus, while the amount of force Defendants

Baker and Carey used “seem[ed] minimal,” it was excessive and unnecessary.

Id. But as stated, the Court afforded Blake two opportunities to amend his

allegations, and his Response to the Motion is not the proper avenue to

supplement or add to the claims asserted in his SAC. See Regalado, No. 22-

12265, 2023 WL 239989, at * 1; Huls, 437 F. App’x at 832 n.5; Gilmour, 382

F.3d at 1315. As such, the Court will not consider the new facts and arguments

Blake attempts to raise for the first time in his Response. Blake fails to state

a plausible excessive force claim against Defendants Baker and Carey, and

Defendants’ Motion is due to be granted as to this argument.

Conditions of Confinement

Blake also appears to allege that following his decontamination shower,

unnamed officials moved him to a cell covered in chemical agents and denied

him “healthy comfort items” for a few days. SAC Attachment at 2. Although

Defendants do not reference these allegations as being a separate claim, to the

extent that Blake is asserting an Eighth Amendment claim of deliberate

indifference to the conditions of his confinement, he fails to state such a claim.

Indeed, Blake fails to allege sufficient facts to connect any Defendant to his

allegations about being placed in a cell covered in chemical agents. Also, the

circumstances Blake describes about being denied “healthy comfort items” for

a few days, fail to demonstrate conditions that pose a risk of serious damage to

his health or safety. And he fails to allege facts showing any named Defendants

knew of an excessive risk to his health and safety. See Hernandez v. Fla. Dep’t

of Corr., 281 F. App’x 862, 865 (11th Cir. 2008) (“The challenged condition must

be extreme and must pose an unreasonable risk of serious damage to the

prisoner’s future health or safety.”). Thus, liberally construing Blake’s

allegations as raising a claim regarding the conditions of his confinement

following his decontamination shower, Blake has failed to state a plausible

claim for relief based on those facts. And any such claim is due to be dismissed.

d. Remaining Arguments

Because the Court finds Defendants’ Motion is due to be granted as to

their argument that Blake fails to state any plausible claim for relief, the Court

need not address Defendants’ qualified immunity or compensatory and

punitive damages arguments.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. The Clerk is directed to correct the docket to reflect the accurate

spelling for the following listed Defendants – “H. Coovey” to “H. Carey” and “E.

Becker” to “E. Baker.”

2. Defendants’ Motion to Dismiss (Doc. 19) is GRANTED.

3. All claims against all Defendants and this case are DISMISSED

with prejudice.

4. The Clerk shall enter judgment dismissing this case with

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

DONE AND ORDERED at Jacksonville, Florida, this 27th day of

January, 2025.

MARCIA MORALES HOWARD

United States District Judge

Jax-7

C: Kevin Lamar Blake, #X83762

Counsel of record

35