Davis v. Lane

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

NATHAN J. DAVIS,

Plaintiff,

v. Case No. 3:23-cv-753-BJD-LLL

WARDEN LANE, et al.,

Defendants.

______________________________

ORDER

I. Status

Plaintiff, Nathan J. Davis, an inmate of the Florida Department of

Corrections (FDC), is proceeding pro se on an Amended Complaint for Violation

of Civil Rights under 42 U.S.C. § 1983 (Doc. 5; Am. Compl.) against three

individuals: the Warden of Suwannee Correctional Institution (Lane); and two

Sergeants (Pope-Jones and Boone). Plaintiff alleges Defendant Pope-Jones

used excessive force against him on May 15, 2023, causing a “busted” lip;

unspecified injuries to his knee, arm, and lower back; and a possible

concussion. See Am. Compl. at 5–6.1 Plaintiff implies that Defendant Boone

1 Plaintiff also alleges Defendant Pope-Jones sprayed him twice with chemical

agents the day before in connection with disciplinary action. See Am. Compl. at 5. It

is unclear whether Plaintiff contends the use of chemical agents constituted excessive

was present at the time but failed to intervene: he alleges that both Defendants

Boone and Pope-Jones were escorting him and other inmates when the incident

occurred. See id. at 5–6. Plaintiff asserts no factual allegations against

Defendant Lane. See generally id. As relief, Plaintiff seeks compensatory

damages and for Defendant Pope-Jones to be terminated. Id. at 6–7.

Defendants jointly move to dismiss Plaintiff’s Amended Complaint (Doc.

35; Def. Mot), asserting the following grounds: they are entitled to immunity

as to any damages claims against them in their official capacities; Plaintiff

failed to exhaust his administrative remedies under the Prison Litigation

Reform Act (PLRA); Plaintiff fails to state a plausible claim against Defendants

Lane and Boone; and, under the PLRA, Plaintiff is not entitled to the relief he

seeks. See Def. Mot. at 1, 9–11. In support of their exhaustion argument,

Defendants provide declarations and grievance records (Docs. 35-1, 35-2; Def.

Exs. 1 & 2). Plaintiff opposes the Motion (Doc. 42) with his own exhibits (Docs.

42-1 to 42-5; Pl. Exs. 1–5).

II. Motion to Dismiss Standard

A defendant may move to dismiss a complaint for a plaintiff’s “failure to

state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In

force under the circumstances. It appears his claims are related to, or arise out of,

solely the conduct that occurred on May 15, 2023.

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ruling on such a motion, the court must accept the plaintiff’s allegations as

true, liberally construing those by a plaintiff proceeding pro se, but need not

accept as true legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Though detailed factual allegations are not required, Rule 8(a) demands “more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A

plaintiff should allege enough facts “to raise a reasonable expectation that

discovery will reveal evidence” supporting the plaintiff’s claims. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 556 (2007).

III. Exhaustion Under the PLRA

The PLRA provides, “[n]o action shall be brought with respect to prison

conditions . . . until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). 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). Although “the PLRA exhaustion

requirement is not jurisdictional[,]” Woodford v. Ngo, 548 U.S. 81, 101 (2006),

“exhaustion is mandatory . . . and unexhausted claims cannot be brought,”

Pavao v. Sims, 679 F. App’x 819, 823 (11th Cir. 2017) 2 (citing Jones, 549 U.S.

at 211). However, prisoners need not affirmatively “demonstrate exhaustion in

2 Any unpublished decisions cited in this Order are deemed persuasive

authority on the relevant point of law. See McNamara v. GEICO, 30 F.4th 1055, 1061

(11th Cir. 2022).

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their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). Rather, because

failure to exhaust is an affirmative defense, the defendant bears the burden.

Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).

Not only is there a recognized exhaustion requirement, “the PLRA . . .

requires proper exhaustion” as set forth in applicable administrative rules and

policies. Woodford, 548 U.S. at 93. As such, “[p]roper exhaustion demands

compliance with the relevant agency’s deadlines and other critical procedural

rules[.]” Id. Generally, to properly exhaust administrative remedies, a Florida

prisoner must timely complete a three-step process as fully set forth in the

Florida Administrative Code (FAC). See Fla. Admin. Code rr. 33-103.001

through 33-103.018. Except for specific, enumerated issues, a prisoner

generally must initiate the grievance process at the first step by filing an

informal grievance within “20 days of when the incident or action being grieved

occurred.” See Fla. Admin. Code rr. 33-103.005(1), 33-103.011(1)(a). If an

informal grievance is denied, a prisoner must proceed to the second step of the

process by filing a formal grievance at the institution within 15 days from “[t]he

date on which the informal grievance was responded to.” See Fla. Admin. Code

rr. 33-103.006(1), 33-103.011(1)(b). The final step of the grievance process

requires a prisoner to submit an appeal to the Office of the Secretary of the

FDC within 15 days “from the date the response to the formal grievance [was]

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returned to the inmate.” See Fla. Admin. Code rr. 33-103.007(1), 33-

103.011(1)(c). Unless grieving certain matters, an inmate must follow these

steps “in order and within the time limits set forth in [the FAC], and must

either receive a response or wait a certain period of time before proceeding to

the next step” if no response is received. Pavao, 679 F. App’x at 824.

When confronted with an exhaustion defense, courts in the Eleventh

Circuit employ a two-step process:

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. . . . 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.

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

(citing Turner, 541 F.3d at 1082–83).

Defendants acknowledge Plaintiff filed grievances about Defendant

Pope-Jones’s alleged assault on May 15, 2023, but they argue he did not

complete the three-step grievance process before initiating this action. See Def.

Mot. at 6–7. A review of the relevant grievance records show that Plaintiff

initiated the three-step grievance process by filing an informal grievance on

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May 15, 2023. See Def. Ex. 1 at 7.3 His informal grievance was denied, so he

appealed to the Office of the Warden on May 22, 2023. Id. at 5, 7. The Warden’s

office also denied his grievance, so Plaintiff proceeded to the final step by filing

an appeal with the Office of the Secretary on June 18, 2023. Id. at 4, 6. A

representative of the Secretary’s Office denied Plaintiff’s appeal on July 10,

2023. Id. at 3. Plaintiff initiated this action before the Office of the Secretary

mailed the response to him—on June 23, 2023 (“mailbox rule”).

Generally, when a plaintiff initiates a civil action before receiving a

response to a grievance he was required to file—or waiting the response time—

he has not “properly exhausted” his administrative remedies in accordance

with “applicable administrative rules.” See Woodford, 548 U.S. at 93. Applying

this general rule in consideration solely of dates and the official result of each

grievance, Plaintiff initiated this action prematurely. However, a substantive

review of the June 8, 2023 response to Plaintiff’s formal grievance suggests he

may not have had to file an appeal to the Office of the Secretary at all.

Although the Warden’s office technically “denied” Plaintiff’s grievance,

Plaintiff was informed as follows: “[Y]our allegations have been previously

documented and reported to the appropriate OIC [officer in charge], as well as

3 Plaintiff relies on the same grievances, in part, in support of his argument

that he exhausted his administrative remedies. See Pl. Ex. 1

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the Office of the Inspector General [(OIG)]. . . . You may or may not receive an

interview . . . .” See Def. Ex. 1 at 6; Pl. Ex. 1 at 7.4 Plaintiff received this

response before he filed his original complaint in this case. However, based on

the response from the Warden’s office, technically there was nothing more for

Plaintiff to have done after the Warden’s office told him his allegations had

been reported to the OIG, regardless of the official result (i.e., the grievance

being “denied”) or Plaintiff’s subsequent grievance filings. See, e.g., Lanier v.

Smith, No. 3:08-cv-833-J-12JRK, 2009 WL 1758904, at *1 (M.D. Fla. June 19,

2009) (denying the defendants’ motion to dismiss given the plaintiff’s grievance

efforts resulted in his allegations being “referred to the [OIG] for review and

consideration”). 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.”);

Luckey v. May, No. 5:14-cv-315-MW-GRJ, 2016 WL 1128426, at *11 (N.D. Fla.

Feb. 17, 2016), report and recommendation adopted sub nom., 2016 WL

1169481 (Mar. 22, 2016) (finding the plaintiff exhausted his administrative

4 Even though Plaintiff initiated this action before receiving the formal

response to his appeal, that response also indicated his allegations were already

“under review by the Departmental Staff.” See Doc. 35-1 at 3; Doc. 42-1 at 5.

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remedies where he filed an informal grievance, which was “approved” from the

standpoint that his allegations had been referred to the OIG).

Regardless of the official response an inmate receives to a grievance that

prompts a referral to the OIG (i.e., “approved,” “returned,” or “denied”), the

Southern District has observed, “Federal district courts throughout the State

of Florida have found that a prisoner exhausts his administrative remedies if

he or she starts the grievance process set forth in the [FAC] and then has that

grievance referred to the OIG.” Ham v. Salmon, No. 20-cv-81071-RAR, 2022

WL 1555080, at *4 (S.D. Fla. May 17, 2022) (citing cases). The court reasoned

as follows:

The Court finds it illogical that two plaintiffs who alleged the same

type of violations and had the same result (i.e., referral to [the]

OIG) would have different exhaustion outcomes based purely on

the language used in the responses they received from prison

officials [i.e., “approved,” “returned,” or “denied”]. The exhaustion

provision of the PLRA requires a plaintiff to dutifully and rigidly

exhaust all available remedies before filing suit—even when

“pursuing administrative procedures would be futile.”

Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). But

the Court will not adopt such a constrained view of the PLRA

where the determinative factor in satisfying exhaustion turns on

the specific language used by a prison official in response to a

grievance.

Id. at *6.

The Court finds the Southern District’s reasoning particularly

persuasive, keeping in mind the purpose of exhaustion: to “affor[d] corrections

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officials time and opportunity to address complaints internally before allowing

the initiation of a federal case.” See Woodford, 548 U.S. at 93 (alteration in

original) (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)). Here, by timely

filing grievances about the alleged incident involving Defendant Pope-Jones,

Plaintiff afforded FDC officials an opportunity to investigate and address his

complaints before seeking judicial relief. Thus, Defendants’ Motion to Dismiss

will be denied as to exhaustion.

IV. Remaining Arguments

First, Defendants invoke Eleventh Amendment immunity as to any

damages claims against them in their official capacities. See Def. Mot. at 4–5.

Plaintiff opposes the Motion with respect to his claims against Defendants

Pope-Jones and Boone, although his argument is unclear and suggests

confusion about the law or Defendants’ position. See Pl. Resp. at 1–2. When a

plaintiff sues a state actor in his official capacity for damages, “the action is in

essence one for the recovery of money from the state.” Zatler v. Wainwright,

802 F.2d 397, 400 (11th Cir. 1986). As such, “the state is the real, substantial

party in interest and is entitled to invoke its sovereign immunity from suit

even though individual officials are nominal defendants.” Id. (finding the

Secretary of the FDC was immune from suit in his official capacity). To the

extent Plaintiff seeks damages from Defendants in their official capacities,

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they are entitled to Eleventh Amendment immunity and Defendants’ Motion

will be granted on this basis.

Second, Defendants argue Plaintiff fails to state a plausible claim

against Defendants Lane and Boone. See Def. Mot. at 8. They explain that

Plaintiff does not describe any unconstitutional conduct by these Defendants

or otherwise articulate a plausible legal theory upon which to impose liability

against them. See id. As to Defendant Lane, Defendants’ Motion will be

granted. Plaintiff asserts no factual allegations against Defendant Lane in his

Amended Complaint. In his Response, Plaintiff suggests Defendant Lane was

deliberately indifferent to a serious risk of harm, asserting Lane knew of

Defendant Pope-Jones’s proclivity for using excessive force on inmates. See Pl.

Resp. at 3. Plaintiff may not introduce new allegations or theories of liability

through his Response. See, e.g., Escutia v. Carnival Corp., No. 23-24230-CIV,

2024 WL 1931703, at *24 (S.D. Fla. Mar. 13, 2024), report and recommendation

adopted, 2024 WL 3201006 (June 27, 2024) (“[The court] will not consider these

new allegations [raised in the response] for purposes of evaluating a dismissal

motion.” (citing cases)).

Nonetheless, even had Plaintiff asserted such an allegation in his

Amended Complaint—or were granted leave to amend his pleading to add this

allegation—Plaintiff’s claim against Defendant Lane still would fail. A prison

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official may not be held liable under § 1983 on a theory of vicarious liability.

See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003), abrogated in part

on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). See also

Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (“It is axiomatic, in [§]

1983 actions, that liability must be based on something more than a theory of

respondeat superior.”). A claim against a supervisor arises only “when the

supervisor personally participates in the alleged constitutional violation or

when there is a causal connection between actions of the supervising official

and the alleged constitutional deprivation.” Id.

Absent personal participation in a constitutional violation, the requisite

causal connection “can be established when a history of widespread abuse puts

the responsible supervisor on notice of the need to correct the alleged

deprivation, and he fails to do so.” See id.; Cottone, 326 F.3d at 1360. A plaintiff

relying on the “history of widespread abuse” theory must demonstrate the past

deprivations were “obvious, flagrant, rampant and of continued duration,” such

that the supervising official was on notice of the need to take corrective action.

See Crawford, 906 F.2d at 671. “A single incident of a constitutional violation

is insufficient to prove a policy or custom . . . .” Craig v. Floyd Cnty., Ga., 643

F.3d 1306, 1311 (11th Cir. 2011).

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Plaintiff does not allege that Defendant Lane personally participated in

the alleged assault by Defendant Pope-Jones, knew the assault would occur, or

authorized it. Moreover, Plaintiff does not describe a single other incident of

excessive force by Defendant Pope-Jones against other inmates of which

Defendant Lane was aware, such that Defendant Pope-Jones’s conduct could

be described as “obvious, flagrant, [or] rampant.” See Crawford, 906 F.2d at

671. An allegation of a policy or custom may not be conclusory to survive a

motion to dismiss. See Rankin v. Bd. of Regents of the Univ. Sys. of Ga., 732 F.

App’x 779, 783 (11th Cir. 2018) (reasoning that the “claim [against the

supervisor] fail[ed] because most of the allegations supporting it [were]

conclusory, and to the extent some [were] based on facts, they [were] limited to

[the plaintiff’s] own experience”). As such, the claim against Defendant Lane

will be dismissed.

However, the claim against Defendant Boone will not be dismissed at

this juncture. As a pro se litigant, Plaintiff is entitled to the benefit of liberal

construction of his pleading. Liberally construed, Plaintiff’s Amended

Complaint can be read to infer that Defendant Boone was present when

Defendant Pope-Jones assaulted him but failed to intervene. See Am. Compl.

at 5–6. “[A]n officer who is present at the scene and who fails to take reasonable

steps to protect the victim of another officer’s use of excessive force can be held

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personally liable for his nonfeasance.” Sears v. Roberts, 922 F.3d 1199, 1205–

06 (11th Cir. 2019) (quoting Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th

Cir. 2002)). Whether Defendant Boone was in a position to have intervened is

a question of fact more appropriately addressed at a later stage in the

proceedings and on a more complete record.

Finally, Defendants argue Plaintiff’s requested relief is unavailable in

an action governed by the PLRA. See Def. Mot. at 1. Specifically, they contend

Plaintiff may not recover compensatory damages because he sustained only de

minimis injuries, and he may not have Defendant Pope-Jones terminated from

his employment. Id. at 9, 11. As to the former argument, Defendants’ Motion

will be denied. Plaintiff alleges, and the Court must accept, that he sustained

multiple injuries, including a concussion and damage to his arm that still

prevents him from “rotat[ing it] properly.” See Am. Compl. at 6. The Court

declines to conclude at this juncture that these injuries, if proven, are de

minimis. The Eleventh Circuit has observed:

[The PLRA] was not intended to allow only those prisoner-

plaintiffs with severe physical injuries to recover compensatory or

punitive damages. And our circuit’s Eighth Amendment case law

allows a prisoner to recover for greater than de minimis physical

injury even if it falls short of requiring professional medical

attention.

Thompson v. Smith, 805 F. App’x 893, 904 (11th Cir. 2020) (internal citations

omitted). If Plaintiff indeed suffered a concussion and can prove as much, that

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injury alone is more than de minimis. See, e.g., Flanning v. Baker, No. 5:12-cv-

337-MW-CJK, 2016 WL 4703868, at *6 (N.D. Fla. Aug. 16, 2016), report and

recommendation adopted, 2016 WL 4703862 (Sept. 7, 2016) (“A concussion and

migraine headaches may be considered more than de minimis injuries.”).

As to the latter argument (re termination of Defendant Pope-Jones’s

employment), Defendants’ Motion will be granted. The PLRA “places

substantial restrictions on the judicial relief that prisoners can seek . . . .”

Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015) (quoting Al-Amin v.

Smith, 637 F.3d 1192, 1195 (11th Cir. 2011)). For instance, district courts

generally will not interfere with matters of prison administration, including

employee discipline.

Accordingly, it is now

ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 35) is GRANTED in part

and DENIED in part. The Motion is GRANTED as follows: (1) any official-

capacity claims for damages are dismissed; (2) any claims against Defendant

Lane are dismissed; and (3) Plaintiff’s request that Defendant Pope-Jones be

terminated is stricken. The Motion is otherwise DENIED.

2. Defendants Pope-Jones and Boone must answer the Amended

Complaint (Doc. 5) within twenty days of the date of this Order.

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3. The Clerk shall terminate Defendant Lane as a party to this

action.

DONE AND ORDERED at Jacksonville, Florida, this 17th day of June

2025.

J) ‘ ‘4

fd Aacawé.. | a OAL.

BRIAN/, DAVIS

United States District Judge

Jax-6

Cc: Nathan J. Davis

Counsel of Record

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