Dimanche v. Brown

• Citation: 783 F.3d 1204
• Decision Date: 17 April 2015
• Docket Number: No. 12–13694.,12–13694.
• Parties: Moliere DIMANCHE, Jr., Plaintiff–Appellant, v. Jerry BROWN, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

783 F.3d 1204

Moliere DIMANCHE, Jr., Plaintiff–Appellant

v.Jerry BROWN, et al., Defendants–Appellees.

No. 12–13694.

United States Court of Appeals, Eleventh Circuit.

April 17, 2015.

Thomas A. Burns, Burns, PA, Tampa, FL, Moliere Dimanche, Jr., Taylor CI Main, Perry, FL, for Plaintiff–Appellant.

Cedell Ian Garland, Anne F. McDonough, Pam Bondi, Daniel Andrew Johnson, Office of the Attorney General, Tallahassee, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and ROSENTHAL,^* District Judge.

Opinion

ROSENTHAL, District Judge:

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires state-prison inmates suing prison officials for federal civil-rights violations first to exhaust the state's administrative remedies. Although federal law sets the exhaustion requirement, state law determines what steps are required to exhaust. The first steps in Florida's prescribed grievance process are to submit an informal, then a formal, grievance to designated officials within the correctional institution. A Florida inmate may bypass this requirement and submit a grievance directly to the Secretary of the Florida Department of Corrections if the complaint is reprisal for filing grievances and if certain conditions are satisfied. This appeal requires us to decide if the grievance filed by Moliere Dimanche, Jr. met those conditions. Dimanche sued 16 prison officials in federal court, alleging that he was subjected to harsh treatment in retaliation for filing grievances about prison conditions. The district court dismissed the suit because Dimanche did not file an internal grievance raising this complaint at the institutional level but instead submitted it directly to the Secretary. The court also dismissed for failure to state a claim under 28 U.S.C. § 1915(e)(2). Our review shows that Dimanche did satisfy the exhaustion requirement because he met the conditions for filing a grievance directly with the Secretary. We also conclude that his complaint stated at least some claims that should not have been dismissed without either explanation or leave to amend. Accordingly, we reverse and remand.

I. BACKGROUND

Dimanche, an inmate in the Florida state prison system, filed this § 1983 suit in October 2011 against a number of officials working at the Liberty Correctional Institution (“Liberty C.I.”) and its Quincy Annex. Dimanche alleged cruel and unusual punishment, due process violations, and First Amendment retaliation.

Dimanche's amended federal complaint alleged that on July 3, 2010, several Liberty C.I. correctional officers, at the direction of Acting Warden Colonel Jerry Brown, sprayed him with “an overwhelming amount” of teargas in retaliation for filing grievances about prison conditions. [R8, ¶ 1]. Dimanche alleged that he was gassed the day after he finished 60 days of segregated confinement imposed as a disciplinary sentence. He was supposed to have been released into the general population on July 2. Dimanche alleged that instead of releasing him, Acting Warden Colonel Brown ordered that he remain in disciplinary confinement past his scheduled release date so that the guards could gas him there.

Dimanche alleged that the gassing began on July 3 when a guard approached his cell door yelling “grieve this!,” accompanied by obscenities. [Id., ¶ 6]. Dimanche alleged that Sergeant Matthew Clark then “stag[ed] a minor disturbance” to “deceiv[e] the confinement surveillance, which does not record audio, into portraying” Dimanche as behaving “disruptive[ly].” [Id. ]. Captain J.S. Barton and a guard approached the cell and explained to Dimanche that he “was about to be gassed for writing grievances.” [Id., ¶ 7]. Captain Barton repeatedly told Dimanche that he would get “another gassing” for every grievance he filed “until [Barton] could have [Dimanche] committed to a Close Management Facility,” where he would be “gassed to death.” [Id., ¶¶ 7–8]. Another guard later repeated this threat.

Dimanche alleged that Captain Barton then ordered Sergeant Clark to gas Dimanche. Instead of receiving a short burst of inflammatory spray, however, Dimanche received “three direct [more than five-second] bursts” of teargas, a chemical irritant “meant to quell riots.” [Id., ¶ 9]. Dimanche alleged that he could not breathe. He also alleged that he did not receive a shower, which was supposed to be promptly provided after gassing, or medical treatment, and that he suffered pain for a week afterwards.

In January 2011, Dimanche was transferred to the Liberty C.I.'s Quincy Annex. On April 15, 2011, he sent a grievance directly to the Secretary of the FDOC. The grievance was labeled in the lower right hand corner with the words “Reprisal for grievances wrote.” [R1, p. 15]. The grievance began with Dimanche's statement that he was “in fear of [his] life here at Quincy Annex and at Liberty C.I.” and that he had been “gassed in confinement for grievances that [he] wrote.” [Id. ]. He explained that as his “gassing was planned, the confinement officers called the colonel, who told them to hold [Dimanche] until [he] was gassed.” [Id. ]. He also alleged that the gassing was followed by a false disciplinary report and by threats to send him “to C.M. and gas [ ] [him] to death if [he] wrote another grievance.” [Id. ].

He alleged that after he was transferred to the Quincy Annex, guards took his mattress and sheets. When he complained to the “major” at the Annex, he received a retaliatory “false D.R.,” was “reminded what happened the last time [he] wrote grievances,” and was warned “not to lose [his] life over something so stupid.” [Id. ]. Dimanche stated that he feared his “next mistake [would] get [him] killed here.” In his grievance, he asked the Secretary to remove him from both the Liberty C.I. and the Quincy Annex because it was “only a matter of time before I am set up for another false D.R. and I am sent to C.M. to be gassed to death.” [Id. ].

The grievance Dimanche sent directly to the Secretary of the FDOC referred to the “colonel,” who allegedly told the guards to “hold” Dimanche in confinement until he was gassed; to the “major” Dimanche talked to about the guards taking his mattress and sheets; to Officer Bryant, who gave him a “false D.R.” after Dimanche filed a grievance about the mattress and sheets; and to Captain Barton, who allegedly threatened to have Dimanche sent to a close management facility, where he would be “gassed to death if [he] wrote another grievance.” [Id. ].

The Secretary did not respond to the merits of Dimanche's complaint. Instead, on April 28, 2011, M. Solano, acting on the Secretary's behalf but allegedly an employee at the Quincy Annex, mailed the grievance back to Dimanche with the explanation that he had to “first submit [his] appeal at the appropriate level at the institution” before sending the grievance to the Secretary. [R1, p. 14; R8, ¶ 17]. Solano gave Dimanche 15 days from the date of her response to file a grievance with the inspector at the institution.

In this lawsuit, Dimanche alleged that he did not receive Solano's response until “well after the 15 days had expired.” [R8, ¶ 18]. Dimanche did not file a grievance at the institutional level about the July 3, 2010 gassing, the allegedly false disciplinary report, the threats of further reprisals at the Liberty C.I., or the allegedly false disciplinary report and threats at the Quincy Annex. Dimanche alleged that after he sent his grievance to the Secretary, the Quincy Annex Assistant Warden, along with an inspector and guards, threatened to retaliate against him.

The defendants moved to dismiss Dimanche's amended complaint for failure to exhaust. The magistrate judge recommended granting the motion. The judge concluded that Dimanche failed to exhaust because he did not comply with the State's requirements for bypassing the internal grievance steps and instead filing directly with the Secretary of the FDOC. The judge also concluded the failure to exhaust was not excused because the three-step grievance process was available to Dimanche. The judge found that Dimanche did not in fact fear retaliation for filing a grievance within the institution, based on 12 internal grievances he had filed against one or more of the defendants after the July 3, 2010 gassing. Dimanche filed these grievances while he was at the Quincy Annex (where he was transferred in January 2011) or the Liberty C.I. (where he was transferred back in April 2011).

The magistrate judge recommended that Dimanche's complaint be dismissed for failure to exhaust and on the additional ground, not raised by the defendants' motion, that his amended complaint failed to state a claim. The district court adopted the magistrate judge's recommendation and report, dismissing Dimanche's amended complaint for failure to exhaust as well as for failure to state a claim. Neither the magistrate judge nor the district judge explained why Dimanche's amended complaint failed to state a claim.

Dimanche appealed. This case was set for oral argument in April 2014. Before argument, the State notified the court of a factual problem in the record. The State moved to remand so it could supplement the record with additional information about the 12 internal grievances Dimanche had filed against the defendants after he was gassed and before he filed his § 1983 complaint. We granted the State's motion and ordered a limited remand, retaining jurisdiction.

The State supplemented the record with information showing that Dimanche filed grievances against some of the defendants when he was at the Liberty C.I., the Liberty Work Camp, and the Quincy Annex. The district court did not enter findings on the effect of this new evidence, “conclud[ing] that it lack[ed] jurisdiction at [that] time to consider new evidence, to entertain a newly-filed motion to dismiss, or to revisit a judgment that was entered two years ago.” [R98, p. 2]. The district...