Avery

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

THADDEUS ANDERSON, JR.,

Plaintiff,

v.

Case No. 3:24-cv-100-HES-SJH

ROBIN WEISS,

Defendant.

ORDER

I. Status

Plaintiff, 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. He is proceeding on a Third Amended Complaint against one

Defendant — Psychologist Robin Weiss.! Doc. 68. He asserts that Defendant

acted deliberately indifferent to his serious mental health needs, violating his

rights under the Eighth Amendment.

Defendant Weiss previously moved to dismiss the Third Amended

Complaint, arguing that Plaintiff failed to exhaust his administrative remedies

1 Because the Court found Plaintiff failed to state a claim for relief against

Jason Avery, the Court dismissed Plaintiffs claims against Avery with prejudice. See

Doc. 83. In Defendant Weiss’s first motion to dismiss, see Doc. 71, Weiss only alleged

that Plaintiff failed to exhaust his administrative remedies, which the Court found

was an insufficient argument to support dismissal at that time, see Doc. 83.

because the one grievance Plaintiff filed regarding his claim against Weiss (log

# 2312-135-027) was denied as untimely filed. See Doc. 71. The Court denied

that motion, finding that Weiss failed to disprove Plaintiffs allegation that he

filed another grievance (log # 2311-135-055) to fully exhaust his claim against

Weiss. See Doc. 83.

Before the Court is Defendant Weiss’s Renewed Motion to Dismiss or

Alternatively Motion for Judgment on the Pleadings, see Doc: 88 (Motion); with

exhibits, see Doc. 88-1. In the Motion, Defendant Weiss reasserts that

Plaintiffs Third Amended Complaint should be dismissed because he failed to

exhaust his administrative remedies.? See generally Doc. 88. Plaintiff has

responded to the Motion. See Docs. 92, 93. The Motion is ripe for review.

II. Plaintiffs Allegations

Plaintiff alleges that on August 21, 2023, while housed at Suwannee

Correctional Institution’s Main Unit, he declared a mental health emergency

due to his suicidal ideation and intent to self-harm. Doc. 68 at 7. Plaintiff

asserts that Avery saw Plaintiff had cut his wrists, but he failed to place

Plaintiff on self-harm observation status (SHOS).

2 Because Defendant Weiss raised an exhaustion defense in his earlier motion

to dismiss, Federal Rule of Civil Procedure 12(g)(2) does not prevent Weiss from filing

another Rule 12 motion raising an exhaustion argument. Cf. Brooks v. Warden, 706

F. App’x 965, 969 (11th Cir. 2017) (“Because [the defendant] did not raise the

exhaustion defense in his first motion to dismiss under Rule 12, he ‘must not make

another motion under this rule raising that defense.”’).

According to Plaintiff, after his interaction with Avery, on September 26,

2023, officials placed Plaintiff in SHOS. Jd. at 9, 23. Plaintiff alleges that on

October 2, 2023, while Plaintiff was still in SHOS, Defendant Weiss ignored

Plaintiffs pleas that he felt suicidal and had thoughts of hurting himself, and

instead discharged Plaintiff from SHOS, placing Plaintiff in danger. Id. at 9.

He contends that the same day he was discharged, Plaintiff harmed himself

again due to Weiss’s deliberate indifference in failing to protect him. Id.

As a result of Weiss’s alleged inactions and actions, Plaintiff asserts he

suffered several self-inflicted cuts to his wrists, which required sutures. Id. at

10. As relief, he requests, injunctive and declaratory relief as well as monetary

damages. Jd. at 11.

It. Discussion

Exhaustion

The Prison Litigation Reform Act (PLRA) requires Plaintiff 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, Plaintiff 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

PLRAJ.]” 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). 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

opportunity to adjudicate their claims.

Administrative law does this by requiring proper

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.”).

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[.]” Jd.

Because failure to exhaust administrative remedies is an affirmative

defense, Defendant bears “the burden of proving that [Plaintiff] 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.* 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 US. 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 mstitutional 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

4 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 Plaintiff that he had forty-five

days to respond to any motion to dismiss. See Order (Doc. 13) at 3. Plaintiff responded

to Defendant Weiss’s Motion (Docs. 92, 93) and addressed the exhaustion argument.

He does not suggest that he requires additional discovery. As such, Plaintiff has

received notice and an opportunity to develop the record on exhaustion.

Secretary. See Fla. Admin. Code R. 33-103.007.

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

example, a prisoner may skip the informal grievance step and immediately file

a formal grievance for issues pertaining to various things, including “medical

grievances” or “a formal grievance of a medical nature.” Fla. Admin. Code r.

33-103.005(1); Fla. Admin. Code r. 33-103.008. If a prisoner can bypass the

informal grievance step, he must typically file the formal grievance with the

warden within 15 days from the date on which the incident or action being

grieved occurred. Fla. Admin. Code r. 33-103.011(1)(b). A response must be

provided to the inmate within 20 days of receipt of the formal grievance. Fla.

Admin. Code r. 33-103.006(6). “If the inmate is unsatisfied with the resolution

of a formal grievance, he may appeal the grievance to the Office of the

Secretary using Form DC1-303 (same form as a formal grievance).” Jenkins v.

Sloan, 826 F. App’x 833, 835 (11th Cir. 2020) (citing Fla. Admin. Code Ann. R.

33-103.007). The grievance appeal to the Office of the Secretary must be

received within 15 days from the date the response to the formal grievance is

returned to the inmate. Fla. Admin. Code r. 33-103.11(c).

Defendant Weiss argues that Plaintiff failed to exhaust his

administrative remedies for his claim against Weiss because the two

administrative grievances Plaintiff filed were either denied as untimely filed

or did not reference Plaintiffs claim against Weiss. See Doc. 88 at 14. In

response to Weiss’s argument, Plaintiff asserts that he exhausted his

administrative remedies, seemingly relying on the arguments he made in

response to Weiss’s first motion to dismiss, and the Court’s prior Order on this

issue. See Doc. 93 at 2; Doc. 83 at 11.

Here, accepting Plaintiffs view of the facts as true, the Court finds

dismissal of the claim against Defendant Weiss 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 his response to Weiss’s first motion to dismiss, Plaintiff alleged that

he exhausted his administrative remedies for his claims against Weiss through

two formal grievances — formal medical grievance (log # 2312-135-027); and

formal medical grievance (log # 2311-135-055). Doc. 82 at 2. As explained in

the Court’s prior Order, it is undisputed that formal medical grievance (log #

2312-135-027) was returned as untimely, and thus Plaintiff did not exhaust

his administrative remedies through that grievance. See Doc. 83 at 10.

Now, Weiss attaches to his current Motion a copy of formal medical

grievance (log # 2311-135-055) to prove that Plaintiff did not exhaust his

administrative remedies through that grievance either. Notably, Weiss argues

that in that grievance, Plaintiff did not reference his claims against Weiss,

making it insufficient for purposes of exhaustion.

In formal medical grievance (log # 2311-135-055), Plaintiff alleged the

following:

On 8-21-23 mental health counselor (B-Avery) refused me Mr.

Anderson, Thaddeus [ ] proper mental health care.

*violation of: (delibrate [sic] indifference) (8*4 Amendment) (ch-33-

mental health F.A.C.) (code of conduct F.A.C.)

* On 8-21-23 I Mr. Anderson was have [sic] a mental health crisis

and felt very suicide [sic], and starting cutting my wrist. I caught

myself and declared a[] mental health emergency

Counselor B-Avery shows up and pulls me out to evaluate me. “See

Avery’s notes on (8-21-23)”

*Avery states depressed, miss his family, cuts on left wrist, “on

record” and I wasn’t placed on SHOS [ ]

*self-harm or suicidal actions I was suppose to be place on “self-

harm, observation status which is (SHOS). This same counselor

(Avery) has placed inmates on (SHOS) for only verbally stating

they are suicide [sic].

*Placing me on (SHOS) would’ve prevented further self harm on

9/26/23

*Counselor B-Avery violated and refused a serious medical need,

and acted deliberate indifference to me.

Doc. 88-1 at 6.

On November 30, 20238, the warden denied formal medical grievance (og

# 2311-135-055), stating:

You were seen by MHP Avery, on 08/21/23 for a mental health

emergency. Records document that you had a superficial self-

inflicted wound which you stated you did for attention because you

wanted to make a phone call. You denied suicidal intentions and

stated you did not want to go to SHOS. You received proper mental

health treatment.

Doc. 88-1 at 5. Plaintiff then completed the administrative grievance process

for those allegations by filing an administrative appeal (log # 23-6-38425), see

Doc. 88-1 at 8, which was also denied, see id. at 7.

Upon review, the Court finds that formal medical grievance (log # 2311-

135-055) contains no allegations regarding Plaintiffs claims that on October 2,

2023, Weiss was deliberately indifferent to Plaintiffs mental health needs and

failed to protect him. Indeed, the grievance neither mentions events that

occurred on October 2, 2023, nor Defendant Weiss’s alleged actions or

inactions. As such, this grievance would not have placed prison officials on

notice of Plaintiffs claims against Defendant Weiss. See Whatley, 802 F.3d at

1214-15 (“The purpose of the PLRA’s exhaustion requirement is to ‘afford

corrections officials time and opportunity to address complaints internally

before allowing the initiation of a federal case.” (quoting Woodford, 548 U.S.

at 93)). Thus, the Court finds Plaintiff failed to exhaust his claim against

Defendant Weiss and the Motion is due to be granted as to this argument.5

5 Because the Court finds that Defendant Weiss’s Motion is due to be granted

as to his exhaustion argument, the Court need not address his failure to state a claim

argument.

10

Accordingly, it is

ORDERED AND ADJUDGED:

1. Defendant Weiss’s Renewed Motion to Dismiss Plaintiffs Third

Amended Complaint or Alternatively Motion for Judgment on the Pleadings

(Doc. 88) is GRANTED to the extent that Plaintiffs claims against

Defendant Weiss are DISMISSED without prejudice for Plaintiffs failure

to exhaust his administrative remedies.

2. The Clerk shall enter judgment dismissing this case without

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

DONE AND ORDERED at Jacksonville, Florida, this day of

on 5, 2026.

United States District Judge

Jax-7

C: Thaddeus Anderson, Jr., #J42152

Counsel of record

11