Lumpkin

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JYRONE LUMPKIN,

Plaintiff,

v. Case No. 3:24-cv-1138-TJC-PDB

SERGEANT TOBY FORNSHELL,

Defendant.

ORDER

I. Status

Plaintiff, an inmate of the Florida penal system, is proceeding on a pro se

Amended Civil Rights Complaint (Doc. 20; Amended Complaint) against

Sergeant Toby Fornshell. Plaintiff contends that on October 26, 2023, he “got

into a heated conversation with a nurse and [Defendant] who forcefully

esco[]rted [him] to the First Floor B-Wing Shower,” where Defendant punched

Plaintiff “on the back left side of [his] head” causing the “right side of [his]

mouth [to] hit the shower frame door” and “knocked out/chipped” a tooth. Id. at

6. Based on these alleged actions, Plaintiff claims that Defendant violated his

Eighth and Fourteenth Amendment rights by using excessive force on him. Id.

at 5.1 Plaintiff seeks monetary damages as relief. Id. at 6.

Defendant filed a Motion to Dismiss Amended Complaint with Prejudice

(Doc. 23; Motion). Defendant argues that Plaintiff failed to exhaust his

administrative remedies before filing this case; he failed to disclose his

litigation history; and his request for punitive damages is statutorily barred.

See generally id. Plaintiff filed a Response to Motion to Dismiss (Doc. 26;

Response). The Motion is ripe for review.

II. Exhaustion2

The Prison Litigation Reform Act (PLRA) requires that Plaintiff exhaust

his available administrative remedies before pursuing a § 1983 claim about

1 In the section of the Amended Complaint addressing the relief requested,

Plaintiff states that he seeks “punitive damage[s] for mental health and psychological

abuse [for] telling [him] d[ue] to [his] tooth being gone now [he] would be a better d*ck

sucker which is also sexual harassment.” Amended Complaint at 6. Plaintiff did not

raise a “sexual harassment” claim in this case; he only raises an excessive force claim.

Id. at 5. Regardless, his assertion is insufficient to state a claim. See Pete’s Towing Co.

v. City of Tampa, Fla., 648 F. Supp. 2d 1276, 1287 (M.D. Fla. 2009) (“[V]erbal threats

and harassment are generally not actionable under § 1983. A threat constitutes an

actionable constitutional violation only when the threat is so brutal or cruel as to shock

the conscience or if the threat exerts coercive pressure on the plaintiff and [he] suffers

the deprivation of a constitutional right.”); see also Hernandez v. Florida Dep’t of

Corr., 281 F. App’x 862, 866 (11th Cir. 2008) (finding that the plaintiff’s “allegations

of verbal abuse and threats by the prison officers did not state a claim because the

defendants never carried out these threats and verbal abuse alone is insufficient to

state a constitutional claim”).

2 Because the Court finds that this case is due to be dismissed for Plaintiff’s

failure to exhaust his administrative remedies, the Court need not address

Defendant’s other arguments.

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”). A prisoner need not “specially plead or

demonstrate exhaustion in [his] complaint[]” because a “failure to exhaust is an

affirmative defense under the PLRA[.]” Jones v. Bock, 549 U.S. 199, 216 (2007).

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. 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)3 (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.

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.”).

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 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, the defendant bears “the burden of proving that the plaintiff has failed

to exhaust his available administrative remedies.” Turner, 541 F.3d at 1082.

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).

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 FDOC provides inmates with a three-

step grievance process for exhausting administrative remedies. As the Eleventh

Circuit has described it:

The grievance procedure applicable to Florida

prisoners is set out in § 33-103 of the Florida

Administrative Code. Section 33-103 contemplates a

three-step sequential grievance procedure: (1) informal

grievance; (2) formal grievance; and then (3)

administrative appeal. Dimanche, 783 F.3d at 1211.

Informal grievances are handled by the staff member

responsible for the particular area of the problem at the

institution; formal grievances are handled by the

warden of the institution; and administrative appeals

are handled by the Office of the Secretary of the FDOC.

See Fla. Admin. Code. §§ 33-103.005-103.007. To

exhaust these remedies, prisoners ordinarily must

complete these steps in order and within the time limits

set forth in § 33-103.011, and must either receive a

response or wait a certain period of time before

proceeding to the next step. See id. § 33-103.011(4).

Pavao, 679 F. App’x at 824. Generally, an informal grievance “[m]ust be

received within 20 days of when the incident or action being grieved occurred”;

a formal grievance must be received within 15 calendar days of “[t]he date on

which the informal grievance was responded to”; and a grievance appeal “[m]ust

be received within 15 calendar days from the date the response to the formal

grievance is returned to the inmate.” Fla. Admin. Code r. 33-103.011(1)(a),

(b)(1), (c).

However, 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 a

“grievance of an emergency nature” or a “medical grievance.” Fla. Admin. Code

r. 33-103.005(1). 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 an 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, 836 (11th Cir. 2020)

(citing Fla. Admin. Code 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).

An inmate may also skip the informal and formal grievance steps and file

a direct 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 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, Defendant argues that Plaintiff filed only one grievance relating to

the underlying incident with Defendant—an “emergency grievance” to the

Secretary’s Office on October 29, 2023.4 Motion at 4. Defendant argues that

because that grievance was “returned without action,” and Plaintiff failed to file

any other grievances relating to the incident, he failed to exhaust his

administrative remedies prior to filing this case. See id. at 6-7.

The following is a summary of the evidence Defendant submitted to

support his argument. Jeffrey McClellan, an Assistant Warden of Programs at

Florida State Prison, authored a Declaration (Doc. 23-1), advising that between

October 26, 2023, and October 31, 2024, Plaintiff did not submit any informal

or formal grievances relating to the October 26, 2023 incident with Defendant.

Id. at 1-2; see also id. at 5-6 (informal and formal grievance summaries).

Further, Lawanda Sanders-Williams, an Operation Analyst I with the Bureau

of Policy Management and Inmate Appeals, reviewed Plaintiff’s grievance

appeals filed between October 26, 2023, and October 31, 2024, and located one

relevant grievance appeal submitted by Plaintiff on October 29, 2023. Doc. 23-

2 at 1.5 In that grievance appeal, Plaintiff states he was filing an “emergency

4 Plaintiff dated the “emergency grievance” October 29, 2023, but it was not

received by the Secretary’s Office until November 13, 2023. See Doc. 23-2 at 7.

5 Ms. Sanders-Williams’s Declaration includes a scrivener’s error. She states

that the incident between Plaintiff and Defendant occurred on November 1, 2023 (Doc.

23-2 at 1), but she checked for grievance appeals filed between October 26, 2023, and

October 31, 2024 (id.); the grievance appeal she attaches to her Declaration clearly

grievance” due to “retaliation by staff” at Florida State Prison. Id. at 7. He

describes the incident that transpired with Defendant on October 26, 2023, and

explains that he “was afraid to write a grievance d[ue] to being retaliated

against again by staff members.” Id. He concludes, however, that he has

“written grievances to the IG Office as well as an informal to the institution on

this same day.” Id. at 8.

Plaintiff’s “emergency grievance” was “returned without action.”6 Id. at 6.

The response states:

Note: This grievance is not accepted as a grievance of an

emergency nature.

Your appeal has been reviewed and evaluated. The subject

of your grievance was previously referred to the Office of the

Inspector General [(OIG)]. It is the responsibility of that office to

determine the amount and type of inquiry that will be conducted.

This inquiry/review may or may not include a personal interview

with you. Upon completion of this review, information will be

provided to appropriate administrators for final determination and

handling.

reflects the incident occurred on October 26, 2023 (id. at 7); and she notes that Plaintiff

authored the grievance appeal on October 29, 2023, days prior to November 1, 2023

(id. at 1).

The Court further notes that according to the grievance appeal log, the next

grievance appeal filed by Plaintiff was received by the Secretary’s Office on December

6, 2023. Doc. 23-2 at 4 (noting this grievance appeal was about “sexual harassment”

and was approved). Neither party addresses this grievance appeal nor provides copies

of it. Regardless, the Court found above that Plaintiff fails to state or raise a “sexual

harassment” claim. See supra n.1. Thus, the Court assumes this grievance appeal is

not relevant to the excessive force claim raised in this case.

6 The response was authored on November 15, 2023, and “mailed/filed with

agency clerk” on November 17, 2023. Doc. 23-2 at 6.

Id.

Plaintiff asserts that in his emergency grievance, he indicates that he

filed an informal grievance on that same day, but the grievance process is

“corrupt” and staff failed to properly process his informal grievance. See

Response at 2-3, 5-7. He contends that “the only way” the OIG could have

become aware of the incident to start an investigation “is if the institution

received [his] formal or informal grievances at the institutional level and sent

the claims and allegations to the [OIG].” Id. at 2-3.

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

dismissal for lack of exhaustion is not warranted at the first step of Turner.

Thus, the Court proceeds to the second step and considers the parties’ disputes

about exhaustion and makes findings of fact.

Because Plaintiff’s “emergency grievance” was “returned without action,”

this grievance cannot be said to have satisfied his exhaustion requirements. See

Jones v. Inch, No. 3:21CV512-RV-HTC, 2021 WL 3134272, at *5 (N.D. Fla. June

21, 2021), rep. & recommendation adopted, No. 3:21CV512-RV-HTC, 2021 WL

3131675 (N.D. Fla. July 23, 2021) (“A grievance that is returned for failure to

comply . . . cannot serve as an exhaustion of administrative remedies.” (citing

cases finding the same)). Indeed, filing a non-compliant grievance does not

satisfy the exhaustion requirement regardless of whether it puts the institution

“on notice” of the inmate’s claims. See Woodford, 548 U.S. at 90 (recognizing

that the law requires “proper exhaustion of administrative remedies, which

means using all steps that the agency holds out, and doing so properly”)

(internal quotations and citation omitted). And here, the Secretary’s Office

explicitly relied on a procedural defect—that Plaintiff’s grievance did not

qualify as an “emergency” and thus he could not bypass the first two steps in

the grievance process—to return without action his “emergency grievance,”

rather than resolving the merits of Plaintiff’s complaints. See Varner v.

Shepard, 11 F.4th 1252, 1261 (11th Cir. 2021) (finding that a prisoner’s “claim

in his grievances [wa]s procedurally defaulted” because the prison “rejected the

grievance as” untimely, thus explicitly relying on “the grievance’s procedural

defect as a basis for denying” it); see also Whatley v. Smith, 898 F.3d 1072, 1084

(11th Cir. 2018) (holding that to preserve an exhaustion defense, the prison

must “explicitly rely on the grievance’s procedural shortcomings as an adequate

and independent ground for denying the grievance at the administrative level”).

Thus, Plaintiff’s “emergency grievance” fails to satisfy the exhaustion

requirement.

To the extent Plaintiff attempts to demonstrate exhaustion by relying on

the fact that the issue had been previously referred to the OIG for an

investigation, such argument fails. Although the Secretary’s Office’s response

notes that the subject of Plaintiff’s “emergency grievance” was previously

referred to the OIG, there is no evidence to suggest that the OIG’s investigation

resulted from Plaintiff’s proper use of the grievance process. Indeed, there is no

record of Plaintiff submitting any other grievances relating to this issue.

Plaintiff indicates in his “emergency grievance” that he submitted an informal

grievance that same day and also submitted a grievance to the OIG. So the

investigation may have stemmed from Plaintiff’s complaint directly to the OIG.

Or it could have resulted from the FDOC’s regular practice of reviewing all uses

of force. See Fla. Admin. Code R. 33-602.210(10)(a)-(f) (requiring the warden or

his designee and the OIG to review every use of force to determine whether it

was lawful and procedurally appropriate). Regardless, based on the facts

presented here, the OIG investigation cannot act as a substitute for Plaintiff

properly completing the grievance process. See Fleming v. Espino, No. 3:20-cv-

853-MMH-JRK, 2021 WL 5083743, at *7 (M.D. Fla. Nov. 2, 2021) (finding that

plaintiff had failed to exhaust his remedies since “[t]here is no evidence

supporting even an inference that the OIG’s investigation was a result of [the

plaintiff] filing a grievance”); see also Hersh v. Scott, No. 3:22-cv-408-BJD-LLL,

2023 WL 2242551, at *4 (M.D. Fla. Feb. 27, 2023) (finding OIG’s investigation

was “not relevant to the exhaustion analysis because there is no indication that

investigation resulted from [the p]laintiff having filed a proper grievance”).

Indeed, that the Secretary’s Office’s response indicates the issue was already

referred to the OIG indicates only that the OIG “may have substantively

reviewed [Plaintiff’s] complaint outside of the grievance process, not that the

Secretary’s Office addressed and resolved the merits of [Plaintiff’s] excessive

force claims.” Moultrie v. James, No. 24-12561, 2025 WL 3528695, at *4 (11th

Cir. Dec. 9, 2025) (citing Woodford, 548 U.S. at 90, 93).

To the extent Plaintiff argues that the grievance process was unavailable

to him because he submitted an informal grievance that was never logged or

responded to, his argument likewise fails. When an inmate does not receive a

timely response to an informal or formal grievance, the inmate is permitted to

proceed to the next level of the grievance process. See Fla. Admin. Code r. 33-

103.011(4) (“Unless the grievant has agreed in writing to an extension,

expiration of a time limit at any step in the process shall entitle the complainant

to proceed to the next step of the grievance process. If this occurs, the

complainant must clearly indicate this fact when filing at the next step.”). Thus,

if Plaintiff submitted an informal grievance at the institutional level and did

not timely receive a response, Plaintiff could have proceeded to the next level of

review and “clearly indicate[d]” such circumstances. Plaintiff did not do that

here. See Bracero v. Sec’y, Fla. Dep’t of Corr., 748 F. App’x 200, 204 (11th Cir.

2018) (“The grievance procedure permitted [the plaintiff] . . . to proceed with

the next step in the three-step process after the expiration of the prison’s time

to respond to a grievance,” and “[w]hile the PLRA does not require prisoners to

grieve a breakdown in the grievance process, [the plaintiff] has not shown such

a breakdown[, a]nd the PLRA required him to pursue the procedures that were

available to him”). The record reflects that Plaintiff had access to all levels of

the grievance process, see Doc. 238-1 at 5-6; Doc. 23-2 at 4, but he failed to

properly comply with the grievance procedures before filing this case.

Accordingly, it is ORDERED:

1. Defendant’s Motion to Dismiss Amended Complaint with Prejudice

(Doc. 23) is GRANTED to the extent that this case is DISMISSED without

prejudice for Plaintiffs failure to exhaust his administrative remedies. The

Motion is otherwise DENIED as moot.

2. The Clerk shall enter judgment dismissing this case without

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

DONE AND ORDERED at Jacksonville, Florida, this 18** day of March,

2026.

□ Cimotbeg g. Corrig □□

TIMOTHY J. CORRIGAN

Senior United States District Judge

JAX-3 3/13

Jyrone Lumpkin, # N20850

Counsel of Record

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