McKinnon

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

HENRY OLIVER MCKINNON, III,

Plaintiff,

v.

Case No. 3:24-cv-478-JEP-LLL

LT. BIRDSONG,

Defendant.

___________________________________

ORDER

I. Status

Plaintiff Henry Oliver McKinnon, III, an inmate of the Florida penal

system, initiated this action by filing a pro se Complaint for Violation of Civil

Rights under 42 U.S.C. § 1983 (Doc. 1).1 He is proceeding in forma pauperis

(“IFP”) on a Second Amended Complaint (Doc. 9). In the Second Amended

Complaint, Plaintiff named four defendants in their individual and official

capacities and he raised claims under the Eighth Amendment and several

administrative codes. Id. at 1–3, 4, 5–7. As relief, he requested monetary

damages, disciplinary action against two Defendants, and a “redo” on his state

court criminal appeal and “freedom.” Id. at 10–11. On December 13, 2024,

1 For all pleadings and documents filed in this case, the Court cites to the

document and page numbers as assigned by the Court’s Electronic Case Filing

System.

pursuant to its screening obligation, the Court dismissed Plaintiff’s claims

against the Secretary of Florida Department of Corrections, Sergeant Tollick,

and the Head of Keefe Warehouse, dismissed all Plaintiff’s official capacity

claims against all defendants, and dismissed Plaintiff’s requests for relief in

the form of disciplinary actions against Defendants and immediate release.

Doc. 10. Accordingly, the case is proceeding only on Plaintiff’s Eighth

Amendment excessive force claim against Defendant Lieutenant Birdsong

(“Defendant”) in his individual capacity. See id.

Before the Court is Defendant’s motion to dismiss (Doc. 35; Motion).

Plaintiff filed a response opposing the Motion (Doc. 37; Response). The Motion

is ripe for review.

II. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept as true the

factual allegations set forth in the complaint. 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 still must 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 plaintiff pleads

factual content that 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).

III. Plaintiff’s Allegations2

Plaintiff alleges that on January 4, 2024, while detained at Florida State

Prison (FSP), Defendant tried speaking to Plaintiff while he was on the toilet,

and Plaintiff asked him to go away. Doc. 9 at 5. Plaintiff states that Defendant

got mad because Plaintiff refused “his homosexual demands and orders.” Id.

According to Plaintiff, Defendant “mace[d]” him, and ordered a five-man team

to beat him, attempt to “knock out [his] left eyeball,” and rob him. Id. at 5–6,

10, 12. Plaintiff alleges the use of force resulted in eight or nine stitches over

his left eye, a twisted right ankle, and “serious pain” to his left wrist. Id. at 10.

IV. Discussion

Defendant argues the Court should dismiss the claims against him

because: (1) Plaintiff has failed to exhaust his administrative remedies; (2)

Plaintiff failed to disclose litigation history; (3) Plaintiff failed to state a claim;

(4) Plaintiff failed to allege more than de minimus injury; and (5) punitive

damages are statutorily barred. See generally Motion.

2 Because this case is proceeding only as to the Eighth Amendment claim

against Lt. Birdsong for excessive use of force, the Court focuses its summary on the

allegations involving that claim.

A. Exhaustion of Administrative Remedies

1. PLRA Exhaustion

The Prison Litigation Reform Act (PLRA) requires exhaustion of

available administrative remedies before a 42 U.S.C. § 1983 action regarding

prison conditions may be initiated by a prisoner in a district court. 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”). Still, prisoners are not required to “specially plead or

demonstrate exhaustion in their complaints.” 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)3 (citing Jones, 549 U.S. at 211). Not only is there a recognized

exhaustion requirement, “the PLRA . . . requires proper exhaustion” as set

forth in the 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

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.’” 578 U.S. 632, 648 (2016). For an administrative remedy to

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. Gov’t Emps. Ins. Co., 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.”).

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, 578 U.S. at 643. 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 644.

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 district courts

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).

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.

According to Rule 33-103.014, an informal grievance, formal grievance,

direct grievance, or grievance appeal “may be returned to the inmate without

further processing if, following a review of the grievance, one or more . . .

conditions are found to exist.” Fla. Admin. Code R. 33-103.014(1). The rule

provides an enumerated list as “the only reasons for returning a grievance

without a response on the merits.” See Fla. Admin. Code R. 33-103.014(1)(a)–

(y). A grievance can be returned without action if it: is untimely; “addresses

more than one issue or complaint”; is “so broad, general or vague in nature that

it cannot be clearly investigated, evaluated, and responded to”; is “not written

legibly and cannot be clearly understood”; is a supplement to a previously-

submitted grievance that has been accepted for review; does not “provide a

valid reason for by-passing the previous levels of review as required or the

reason provided is not acceptable”; or does not include the required

attachments. See Fla. Admin. Code R. 33-103.014(1).

2. The Parties’ Positions Regarding Exhaustion

In his Second Amended Complaint, Plaintiff asserts he exhausted his

administrative remedies as to his Eighth Amendment claim against

Defendant. See Doc. 9 at 11–13. Presumably in support of his claim of

exhaustion, Plaintiff attached Informal Grievance 205-2409-0679. Id. at 9.

Defendant, however, argues Plaintiff failed to exhaust his

administrative remedies with respect to any Eighth Amendment claim. Motion

at 5–7. Specifically, Defendant states the attached Informal Grievance does not

grieve the issue remaining in his Second Amended Complaint. Id. at 5.

Defendant further states that Plaintiff submitted no “informal or formal

grievances complaining of improper sexual conduct by any officer” and likewise

provided evidence that he submitted no informal or formal grievance from

January 4, 2024, to the date of filing, which grieved the use of excessive force

on January 4, 2024. Id. at 7; Doc. 35-1 at 1, 4, 9. Defendant suggests that while

Plaintiff submitted three appeals, only two of those appeals reference the

January 4, 2024 incident, and of those two, they both grieve the property loss,

not excessive use of force. Motion at 7.

With his Motion, Defendant provides declarations and records regarding

Plaintiff’s exhaustion efforts. See Docs. 35-1 through 35-4. In a sworn

declaration, Teresa Winstead, a grievance coordinator at Charlotte

Correctional Institution, states that between January 4, 2024 and May 2, 2024,

Plaintiff submitted fifteen informal grievances and one formal grievance, and

that not one of those grievances “related to PREA allegations or excessive use

of force that occurred on January 4, 2024.” Doc. 35-1 at 1. Lawanda Sanders-

Williams, an Operations Analyst for the FDOC Bureau of Policy Management

and Inmate Appeals, states that in the same time period, Plaintiff filed two

appeals “related to the allegations raised in his complaint,” one of which was

returned without action, and the second which “appealed two informal

grievances related to property return, and only referenced the January 4, 2024

incident.” Doc. 35-3 at ¶¶2–3. All grievances and appeals were attached to the

relevant declarations. See Docs. 35-1 at 4–30; 35-3 at 6–19.

Defendant also submitted a declaration from Assistant Warden of

Programs at FSP, Jeffrey McClellan, who states that the grievance process at

Florida State Prison “is designed in such a manner that there is no hinderance

nor impediment to any inmate’s utilization of the grievance procedure at any

level.” Doc. 35-2 at ¶2. As support, McClellan outlines the procedure for

submission of grievances. Id. at 1–2. McClellan states that every day a staff

member walks around to collect the grievances with a locked box, which has a

slot only big enough to slip the grievances inside, and that if an inmate has a

grievance the inmate will hold it up to the flap or window then either place it

into the box or have the staff member place it in the box while in the inmate’s

view. Id. at ¶¶3–4. McClellan explains the staff member will continue through

the wing, before continuing to the next wing or to return the box to the

grievance coordinator. Id. at ¶5. According to McClellan,

At no point can any staff member open the grievance

box to remove grievances or prevent an inmate from

placing a grievance into the box without being viewed

on video and breaking FDC policy. The only person

with a key who can open the grievance box is the

grievance coordinator or other assigned staff member

by the Warden, who would not go on the wing.

Id. at ¶¶6–7. McClellan states that the grievance coordinator then unlocks the

box, removes the grievances, logs the grievances, and then sends the

grievances to the appropriate respondents. Id. at ¶8.

In his Response, Plaintiff states that Defendant “lied by saying that

[Plaintiff] never fully exhausted all [his] (DOC) Administrative [remedies]”

and that he did exhaust the remedies as “clearly show[n]” by Docs. 35-3 and

35-4. Response at 2. Plaintiff states he exhausted his claim “under main

grievance #2401-205-180 and even past that to risk management” but that he

waited 90 days and never received a response. Id. He also requests this Court

“listen to[]” the declaration of Mr. Bass, and ask what happened to the

inspector general investigation. Id. at 3.

3. Turner Step One

Under the first step of the Turner analysis, the Court must review the

allegations in the Motion and Response and accept as true Plaintiff’s

allegations. See Whatley, 802 F.3d at 1209. If Plaintiff’s allegations in the

Response show a failure to exhaust, then dismissal would be appropriate. See

id.

Accepting Plaintiff’s allegations that he exhausted these claims through

grievances and that some attempts to alert the officials to these allegations

went without response, the Court finds dismissal of the claims against

Defendant 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 and

considers the Defendant’s arguments about exhaustion and makes findings of

fact.

4. Turner Step Two

As dismissal would not be appropriate based on the allegations in the

Motion and Response, the Court turns to the second prong of the Turner

analysis and finds Plaintiff had available administrative remedies that he

failed to properly exhaust before filing this action. The purpose of

administrative exhaustion “is to put the [administrative authority] on notice

of all issues in contention and to allow the [authority] an opportunity to

investigate those issues.” Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir.

2004) (quotations and citation omitted) (alterations in original). However, to

properly exhaust administrative remedies, “prisoners must complete the

administrative review process in accordance with the [prison’s] applicable

procedural rules,” Jones v. Bock, 549 U.S. 199, 218 (11th Cir. 2007) (quotation

marks omitted). Moreover, prisoners must “properly take each step within the

administrative process.” Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008).

The FDOC’s rules require that informal and formal grievances be legible,

include accurately stated facts, and address only one issue or complaint;

however, it does not include any requirements regarding the level of detail

required for grievances. Fla. Admin. Code. R. 33-103.005(2)(b)2; 33-

103.006(2)(d)-(f). Where a prison’s grievance procedure does not require a

certain level of specificity, “a grievance suffices if it alerts the prison to the

nature of the wrong for which redress is sought.” Strong v. David, 297 F.3d

646, 650 (7th Cir. 2002), overruled in part on other grounds by Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 563 (2007); see Harvard v. Inch, 411 F. Supp. 3d

1220, 1244 (N.D. Fla. 2019).4

Initially, a review of all of Plaintiff’s informal and formal grievances

shows that none of the grievances mention any excessive use of force or sexual

harassment by Defendant. See Doc. 35-1 at 4–30. While Plaintiff alleges he

exhausted his claim “under main grievance #2401-205-180,” a review of that

grievance demonstrates Plaintiff was grieving the loss of property, not any

excessive use of force. Id. at 6 (“Dear: Head warden at FSP, this [is] all about

my missing stolen property . . .”) (emphasis added). This grievance thus would

not have provided prison officials notice of any alleged excessive use of force or

sexual misconduct. Similarly, the grievance attached to his Second Amended

Complaint also grieves property loss. See Second Amended Complaint at 9.

Moreover, that grievance was submitted after Plaintiff initiated this action,

and, thus, could not form the basis of exhaustion even if it contained the

allegations raised within his Second Amended Complaint. See McDaniel v.

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

binding, they too 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.”).

Crosby, 194 F. App’x 610, 613 (11th Cir. 2006) (“To the extent [plaintiff] relies

upon the grievances and appeals he submitted after filing his initial complaint,

such grievances and appeals cannot be used to support his claim that he

exhausted his administrative remedies, because satisfaction of the exhaustion

requirement was a precondition to the filing of his suit.”). Accordingly, no

informal or formal grievance submitted by Plaintiff grieved the claim

remaining in this action.

Plaintiff also filed three appeals between January 4, 2024 and May 5,

2024. Doc. 35-3 at 4. Appeal 4-6-05109 involves the rejection of a magazine

subscription, does not reference the January 4 incident or Defendant, and

cannot be said to grieve the remaining claim for relief. See Doc. 35-3 at 4, 8–

12. Appeal 24-6-02496 discusses the January 4, 2024 incident and appears to

grieve both the use of force as well as property loss. Id. at 7. However, a prison

official returned Appeal 24-6-02496 without action because the appeal grieved

more than one issue and should have been initiated at the informal level. Id.

at 6. Because Plaintiff failed to follow the procedural rules and take each step

in the administrative process, Plaintiff did not properly exhaust his

administrative remedies through Appeal 24-6-02496. See Woodford, 548 U.S.

at 90; Jones, 549 U.S. at 218; see also Hersh v. Scott, No. 3:22-CV-408-BJD-

LLL, 2023 WL 2242551, at *2–3 (M.D. Fla. Feb. 27, 2023) (finding that where

grievances were returned without action, “they d[id] not satisfy the exhaustion

requirement”).

Lastly, Plaintiff submitted Appeal 24-6-06305, which states:

This is [a] New Appeal motion for Secretary of (DOC)

very illegal injustic[e] last January 25, 2024[] Denied

Judgement under last grievance Log #2401-205-180.

Because original attcha [sic] informal grievance Log #

205-2309-0442 where I got approved by Sgt[.] Tollick

here at FSP on Sep[t]. 18th, 2023. After this above date

of August 28th 2023 clearly proved that I still had

personal property stored in property room here at

FSP. And this still don[’]t justify the fact that on

January []4th, 2024 when I got mace and gas and the

(5) man Doom squ[ad] Team ran on me and had to[]

get 8 or 9 stitches. Please over my left eye and place[d]

on strip for (4) day. All because I refuse L.T. Birdsong

homosexual advances against my manhood why [sic]

in M-Dorm/cell#1205 and got move[d] to[] this new

room im [sic] currently still in now in C-Dorm/cell

#1127. Just replay cam[e]ra footage between hours of

8:00 to[] 12:15 in morning time on January []4, 2024

for proof that L.T. Birdsong did everything i [sic] just

explain[ed] above and then stole all of my personal

property and threw away all of my trial court

transcripts and Legal paperwork And new cartoon

comic books, magazine, hygenies [sic] and canteen food

items – which have cause[d] over a (9) Thousand

Dollar hardship Against my freedom and pending case

and Appeal in Life under Two my case [numbers]

5D23-2352 from 5th DCA. And New Florida Supreme

court case [number] SC2024-0108 whats [sic] still

pending right now under rehearing. So now (DOC)

Rule of Conduct Chapter #33 608.002 ver#19 do full

apply because no officers should willing tell untruth.

Doc. 35-3 at 14. Prison official, Donald Bass, replied to the grievance as follows:

Your administrative appeal has been reviewed and

evaluated. The response that you received in the

informal grievance at the institutional level has been

reviewed and is found to appropriately address the

concerns that you raised at the institutional level as

well as the Central Office level.

Your appeal has been reviewed and evaluated. The

subject of your grievance was previously referred to

the Office of the Inspector General. 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 the appropriate

administrators for final determination and handling.

Your administrative appeal is denied.

Id. at 13.

By Plaintiff’s own statement, Appeal 24-6-06305 was an appeal of the

“illegal” denial of Formal Grievance 2401-205-180 and Informal Grievance 205-

2309-0442. As discussed above, Formal Grievance 2401-205-180 grieved the

loss of property, as did Informal Grievance 205-2309-0442. See id. at 15 (“[I]

would like for u [sic] to please bring me my [property] . . . I need all of my

missing property”). Thus, this Appeal of those grievances was sufficient to

notify prison officials of the nature of the wrong for which redress was sought:

property loss. While it mentions the January 4, 2024 use of force in the middle

of the appeal, this appeal cannot be said to seek any redress for the wrong of

excessive force, particularly considering Plaintiff had not even mentioned the

use of force in the relevant underlying grievances. Moreover, the respondent of

this grievance indicated he denied the appeal “in response to Inmate

McKinnon’s appeal of informal grievances related to property issues. Because

Inmate McKinnon referenced another issue in his appeal, I also advised him

on the Inspector General investigative process.” This further demonstrates the

reviewer considered this appeal a matter of “property issues.” Doc. 35-4 at ¶3.

Accordingly, the Court does not find this Appeal sufficient to exhaust the

remaining Eighth Amendment claim.

The Court notes that an investigation by the Office of the Inspector

General (OIG) may be relevant to the exhaustion analysis when a referral to

the OIG is the result of a plaintiff’s properly filed grievance. See Hersh, 2023

WL 2242551, at *3–4 (noting that generally whether a grievance is approved

or denied, the plaintiff exhausts his administrative remedies where he or she

filed a grievance and the allegations are referred to the OIG “in response to

that grievance,” but finding no exhaustion because there was no evidence that

the OIG investigation “resulted from Plaintiff having filed a proper grievance

in compliance with the FAC”); Ham v. Salmon, No. 20-cv-81071-RAR, 2022 WL

1555080, at *4 (S.D. Fla. May 17, 2022) (“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 Florida

Administrative Code and then has that grievance referred to the OIG.”

(emphasis in original)); Fleming v. Espino, No. 3:20-CV-853-MMH-JRK, 2021

WL 5083743, at *7 (M.D. Fla. Nov. 2, 2021) (concluding the OIG investigation

was irrelevant to the exhaustion analysis where there was no indication the

investigation resulted from a grievance filed by the prisoner). Here, the

official’s response indicates that his use of force allegations were “previously

referred” to the OIG, and there is no evidence that the referral was made in

response to any properly filed grievance. Accordingly, the Court finds

Defendant has met his burden to show there was an available administrative

remedy available to Plaintiff, and Plaintiff failed to complete the available

process to exhaust his claim.

To the extent Plaintiff may be suggesting the grievance process was

unavailable to him based on his conclusory allegations that he “filed all the

way up to Bureau of Policy Management and Inmate Appeals. . . and . . . to[]

Risk Management” but did not receive a response, the Court finds Plaintiff’s

argument fails. “While the burden is on the defendant to show an available

administrative remedy, once that burden has been met, the burden of going

forward shifts to the plaintiff, who, pursuant to Turner, must demonstrate that

the grievance procedure was ‘subjectively’ and ‘objectively’ unavailable to

him.” Geter v. Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir.

2020) (citing Turner, 541 F.3d at 1085); id. at 1356 n.14 (“But once the [prison

official] has established that the inmate failed to resort to administrative

remedies, the onus falls on the inmate to show that such remedies were

unavailable to him.” (quoting Rinaldi v. United States, 904 F.3d 257, 268 (3d

Cir. 2018))). First, any vague assertion of unavailability by Plaintiff is belied

by his history of filing grievances. As stated previously, during the time period

at issue, Plaintiff submitted 15 informal grievances, 1 formal grievance, and

three appeals. See Docs. 35-1 at 1; 35-3 at 1, 4. All of these grievances produced

responses. See Doc. 35-1 at 4–30; Doc. 35-3 at 6–19. Plaintiff’s grievance record

during the relevant time period undercuts any assertion that his efforts were

thwarted by prison officials. See Whatley v. Smith, 898 F.3d 1072, 1083 (11th

Cir. 2018) (holding the district court properly considered the plaintiff's history

of filing grievances “as evidence that the defendants did not make

administrative remedies unavailable to him or lose or destroy his grievances.”).

This is particularly true where the use of force incident had been referred to

the OIG at some point, showing that prison officials were not simply trying to

thwart his efforts to bring that issue to light. Second, Plaintiff provides no

details about his attempts which allegedly yielded no responses, such as when

or how he submitted them, what he wrote in them, or how they would have

been different from those discussed here. To the extent that Plaintiff is

suggesting these were actual grievances that may be missing from those

presented here, it strains credulity that there were grievances related to the

allegations in this action that were not routed to the grievance coordinator

given that he successfully filed so many other grievances and considering the

process as outlined in the McClellan declaration. Even if his attempts were in

the form of grievances, Plaintiff does not state he attempted to proceed to the

next step of the grievance process when he did not receive a timely response

from the appropriate prison official. See Fla. Admin. Code R. 33-103.011(4)

(notifying inmates how to proceed if they do not receive a timely response to a

grievance at any step: expiration of a time limit at any step in the process shall

entitle [an inmate] to proceed to the next step of the grievance process”); see

also Turner, 541 F.3d at 1084 (finding that a prison’s failure to respond to a

formal grievance did not relieve the prisoner of his obligation to file an appeal

when the grievance procedure provided that prisoners could file an appeal if

they did not receive a response to a formal grievance within thirty days.). If

Plaintiff’s attempts were letters to these individuals outside of the grievance

process, they are irrelevant to the exhaustion analysis. See Pavao, 679 F. App’x

at 825 (quoting Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015))

(“Pavao’s efforts to seek redress from the Florida state courts or the Inspector

General of the FDOC are not relevant to the question of exhaustion because

they are not part of the prison grievance procedure, and therefore are outside

the ‘boundaries of proper exhaustion.’ ”); Schlicher v. Fla. Dep’t of Corr., 399 F.

App’x 538, 539 (11th Cir. 2010) (rejecting the plaintiff’s argument that writing

letters to the Secretary of the FDOC, a federal judge, and the inspector general,

and making verbal complaints to various prison officials, were sufficient to

satisfy the exhaustion requirement). Accordingly, Plaintiff therefore fails to

demonstrate that the grievance process was unavailable to him.

For the above reasons, the Court finds Defendant has carried his burden

to demonstrate Plaintiff did not exhaust his administrative remedies for the

Eighth Amendment claim remaining before the Court. Accordingly, Plaintiff’s

Eighth Amendment claim of excessive use of force is due to be dismissed.

B. Defendant’s Additional Arguments for Dismissal

Because Plaintiff’s only remaining claim against Defendant is due to be

dismissed for failure to satisfy the PLRA’s exhaustion requirement, the Court

need not address Defendant’s arguments that Plaintiff failed to disclose his

litigation history, failed to state a claim, failed to allege more than de minimus

injury, and is barred from recovering punitive damages.

C. Request to Revoke IFP Status

Defendant also asks the Court to revoke Plaintiff’s IFP status. Defendant

cites to three cases to suggest Plaintiff is barred from proceeding as a pauper

under 28 U.S.C. § 1915(g): (1) McKinnon v. St. Johns Cnty., No. 3:11-cv-1028

(M.D. Fla. Oct. 27, 2011); (2) McKinnon v. St. Johns Cnty., No. 11-15342-B

(11th Cir. 2012); and (3) McKinnon v. Sec’y, Fla. Dep’t of Corr., et al., No. 3:13-

cv-553 (M.D. Fla. Oct. 31, 2013).

Initially, the Court notes Defendant cites no case law to support his

request for revocation of Plaintiff’s IFP status, and the Court finds none. The

Eleventh Circuit has stated, “Once a district court has made an initial finding

of imminent danger, it retains the authority to revisit that determination and

revoke IFP status when new evidence bearing on the IFP determination comes

to light.” McLeod v. Sec’y, Fla. Dep’t of Corr., 778 F. App’x 663, 665 (11th Cir.

2019). However, that is not the situation here. Defendant seems to merely

disagree with the Court’s September 23, 2024 order. Finding no legal basis to

revoke Plaintiff’s IFP status at this stage, the Court denies the request.

Accordingly, it is

ORDERED:

1. Defendant’s Motion to Dismiss (Doc. 35) is GRANTED to the

extent that Defendant seeks dismissal for Plaintiff’s failure to exhaust his

administrative remedies. In all other respects, the Motion is denied without

prejudice.

2. The Clerk shall enter judgment dismissing all remaining claims in

this case without prejudice, terminate any pending motions, and close the case.

DONE AND ORDERED at Jacksonville, Florida, this 8th day of May,

2026.

JORDAN E. PRATT

UNITED STATES DISTRICT JUDGE

JaxP-12

C: Henry Oliver McKinnon, J28012

Counsel of Record

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