Browning v. Cook
| Decision Date | 07 December 2022 |
| Docket Number | 5:20-cv-299-RV/MJF |
| Parties | GINO L. BROWNING, Plaintiff, v. JOHNATHAN COOK, et al., Defendants. |
| Court | U.S. District Court — Northern District of Florida |
REPORT AND RECOMMENDATION
Defendant Donald Allen-an officer at the Jackson Correctional Institution (“JCI”)-sprayed Browning with “chemical agents” and, while on a staircase “pushed or let go of” Browning, which caused Browning to fall. Browning asserts two Eighth-Amendment excessive-force claims based on: (1) Allen's use of “chemical agents”; and (2) Allen's involvement in Browning falling down the stairs. Allen moves to dismiss Browning's claims for failure to exhaust his administrative remedies and for failure to state a claim upon which relief can be granted. Doc. 57. Browning has not filed a response in opposition, despite the undersigned affording Browning additional time to do so.[1]See Doc. 60. For the reasons set forth below, the District Court should grant in part and deny in part Allen's motion to dismiss.
On July 20, 2018, JCI's “Rapid Response Team” (“RRT”) entered Browning's dormitory to conduct “cell searches.”[2] Doc. 52 at 5. Sometime later, as the RRT exited the dormitory, an inmate (“Jefferson”) in the cell next to Browning's cell began “cursing and yelling” at the RRT. Id. Browning alleges that a colonel at JCI ordered the RRT-which included Allen and another Defendant, Johnathan Cook-to return to the dormitory and “apply chemical agents” to Jefferson. Id. Allen and Cook then placed “a hand-held video camera” near Jefferson's cell and warned him “to cease his disruptive behavior.” Id. The RRT then descended the stairs near Browning's cell. Id.
Approximately ten minutes later, the RRT, including Allen and Cook, “rushed up the stairs” towards Jefferson's and Browning's cells. Doc. 52 at 5. Instead of spraying Jefferson-the inmate in the cell next to Browning's cell-with “chemical agents,” however, Allen and Cook mistakenly sprayed “chemical agents” on Browning. Id. at 5, 7. Browning acknowledges that the “chemical agents” were “authorized and intended for” Jefferson. Id. at 5.
Allen and Cook then placed Browning in restraints and began escorting Browning to a “shower stall for decontamination.” Id. at 6. Browning alleges that as Allen and Cook escorted him down a flight of stairs, they “either pushed or let go of” Browning. Id. As a result, Browning allegedly “hit the bottom step and floor awkwardly and painfully.” Doc. 52 at 6. Browning alleges that he injured his back, head, and shoulder, and suffered emotional distress. Id. at 6, 14.
Browning asserts two Eighth-Amendment excessive-force claims against Allen: (1) spraying Browning with “chemical agents”; and (2) pushing or permitting Browning to fall down the stairs. Id. at 7, 14.
Federal Rule of Civil Procedure 12(b)(6) authorizes defendants to move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). For a claim to survive dismissal, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“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,” rather than the mere possibility that the defendant acted unlawfully. Id. (citing Twombly, 550 U.S. at 556). That is, the complaint's factual allegations must be “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Doe v. Samford Univ., 29 F.4th 675, 685-86 (11th Cir. 2022) (quotation omitted).
At the motion-to-dismiss stage, courts accept all well-pleaded factual allegations of the complaint as true and evaluate all reasonable inferences derived from those facts in the light most favorable to the plaintiff. Newbauer v. Carnival Corp., 26 F.4th 931, 934 (11th Cir. 2022) (citation omitted). Courts also “hold the allegations of a pro se complaint to less stringent standards than formal pleadings drafted by lawyers.” Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). But federal courts “cannot act as de facto counsel or rewrite an otherwise deficient pleading to sustain an action.” Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th Cir. 2020) (citation omitted).
Allen moves to dismiss Browning's Eighth-Amendment excessive-force claims because: (1) Browning failed to exhaust his administrative remedies; (2) Browning failed to allege a plausible excessive-force claim as to Allen's alleged deployment of “chemical agents”; and (3) Allen is entitled to qualified immunity as to that claim. Doc. 57.
Allen contends that Browning's excessive-force claims against him should be dismissed because Browning failed to exhaust his administrative remedies. Doc. 57 at 2-9.
Under the Prison Litigation Reform Act (“PLRA”), a prisoner may not file a section 1983 action “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir. 2015). Exhaustion of such remedies is a mandatory precondition to suit. Ross v. Blake, 578 U.S. 632, 638 (2016); Jones v. Bock, 549 U.S. 199, 211 (2007); Varner v. Shepard, 11 F.4th 1252, 1258 (11th Cir. 2021).
Furthermore, the PLRA requires “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006); Varner, 11 F.4th at 1260. “Proper exhaustion ‘means using all steps that the agency holds out, and doing so properly ” Varner, 11 F.4th at 1260 (quoting Woodford, 548 U.S. at 90). The agency, not the PLRA, determines the proper method of exhaustion. Jones, 549 U.S. at 218 (); Woodford, 548 U.S. at 90 ( that proper exhaustion “demands compliance with an agency's deadlines and other critical procedural rules”).
The FDC's grievance procedure is a three-step process: an inmate must (1) file an informal grievance with a designated prison staff member, (2) file a formal grievance at the institutional level with the warden's office, and (3) submit an appeal to the Office of the Secretary (through the Bureau of Policy Management and Inmate Appeals in the FDC's Central Office). See Fla. Admin. Code R. 33-103.005 to -103.007; see also Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218 (11th Cir. 2010).
Failure to exhaust administrative remedies is an affirmative defense that the defendant bears the burden of proving. See Jones, 549 U.S. at 216; Varner, 11 F.4th at 1257. Exhaustion is analyzed in two steps at the motion-to-dismiss stage. First, a “district court must . . . determine whether the complaint should be dismissed for lack of exhaustion ‘tak[ing] the plaintiff's version of the facts as true.'” Varner, 11 F.4th at 1258 (quoting Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008)). Second, if the complaint is not subject to dismissal at the first step, the court must “make specific findings in order to resolve the disputed factual issues related to exhaustion.” Turner, 541 F.3d at 1082 (citing Bryant v. Rich, 530 F.3d 1368, 137374, 1376 (11th Cir. 2008)). The court then “decide[s] whether under those findings the plaintiff has exhausted his available administrative remedies.” Varner, 11 F.4th at 1258 (quoting Turner, 541 F.3d at 1082-83).
Allen concedes that Browning exhausted “the arguments raised in [his] denied grievance appeal.” Doc. 57 at 8. Allen contends that Browning's exhaustion was not proper, however, because Browning failed to mention Allen, “even by reference,” in any of his grievances. Id. Allen also posits that because Browning did not mention Allen by name in the grievances, despite mentioning other individuals by name, the grievances do not “pertain to” Allen. Id. at 8 n.1.
In his grievances, Browning did not mention Allen's name. Browning instead alleged that after he was sprayed with “chemical agents,” he was “pushed or let go” of on the stairs. Doc. 57-1 at 1-2; see id. at 3. But as noted above, it is the FDC's procedure, not the PLRA's, that determines proper exhaustion. Jones, 549 U.S. at 218; Woodford, 548 U.S. at 90; see Varner, 11 F.4th at 1260. “By extension then, the level of factual specificity that must be included in an administrative petition must [be] interpreted ‘in light of the grievance rules of the particular prison system.'” Harvard v. Inch, 411 F.Supp.3d 1220, 1243 (N.D. Fla. 2019) ().
The FDC requires inmates to “ensure that the form is legible that included facts are accurately stated, and that only one issue or complaint is addressed.” Fla. Admin. Code R. 33-103.005(2)(b)(2); Goldsmith, 357 F.Supp.2d at 1339. Allen does not identify any FDC regulation that requires an inmate to include the name or names of correctional officers who purportedly harmed the inmate. Because the FDC does not require inmates to identify a particular defendant in any grievance, a federal court is not authorized to impose such a requirement. See Jones, 549 U.S. at 218 (...
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