# McKinnon

> District Court, M.D. Florida · May 12, 2026

URL: https://www.frixlaw.com/law-library/cases/11368718

## Case

- **Full name:** Henry Oliver McKinnon, III v. Lt. Birdsong
- **Court:** District Court, M.D. Florida
- **Decided:** May 12, 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/11368718

## Opinion text

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

24

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11368718. Public record. Not legal advice.