# Avery

> District Court, M.D. Florida · January 9, 2026

URL: https://www.frixlaw.com/law-library/cases/11242410

## Case

- **Full name:** Thaddeus Anderson, Jr. v. Robin Weiss
- **Court:** District Court, M.D. Florida
- **Decided:** January 9, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11242410

## How later opinions describe it (automated extraction)

- explaining that defendants bear the burden of showing a failure to exhaust
- noting that a prisoner must exhaust administrative remedies before challenging the conditions of confinement, and concluding that the PLRA demands “proper exhaustion”

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11242410. Public record. Not legal advice.