Oliver v. Whitehead

• Decision Date: 03 January 2017
• Docket Number: Case No. 3:14-cv-1506-J-39JRK
• Parties: WARREN OLIVER, Plaintiff, v. OFFICER WHITEHEAD, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

WARREN OLIVER, Plaintiff, v. OFFICER WHITEHEAD, et al., Defendants.

Case No. 3:14-cv-1506-J-39JRK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

January 3, 2017

ORDER

I. Status

Plaintiff is an inmate confined in the Florida penal system. He is proceeding pro se on an Amended Civil Rights Complaint (Amended Complaint) (Doc. 11) pursuant to 42 U.S.C. § 1983. He is currently confined at Tomoka Correctional Institution (TCI). He filed his original Complaint (Doc. 1) on December 8, 2014, pursuant to the mailbox rule.

There are several motions to dismiss pending: (1) Defendant Hale's Motion to Dismiss (Hale's Motion) (Doc. 24)¹; Defendant Oliveros' Motion to Dismiss (Oliveros' Motion) (Doc. 55); Whitehead's Motion to Dismiss (Whitehead's Motion) (Doc. 56); and Espino and Musselman's Motion to Dismiss (Espino and Musselman'sMotion) (Doc. 59).² See Order (Doc. 12). Plaintiff responded to all of the motions. See Plaintiff's Opposition to Hale's Motion to Dismiss (Response to Hale) (Doc. 29); Plaintiff's Opposition to Whitehead and Oliveros' Motion to Dismiss (Response to Whitehead and Oliveros) (Doc. 60); and Plaintiff's Opposition to Espino and Musselman's Motion to Dismiss (Response to Espino and Musselman) (Doc. 61).

II. Motion to Dismiss

"To survive a motion to dismiss, a 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 Atlantic 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." Id. (citing Twombly, 550 U.S. at 556). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).

III. Exhaustion of Administrative Remedies

Defendants Hale, Whitehead, Espino and Musselman contend that Plaintiff failed to exhaust his administrative remedies prior to filing suit regarding his claim of inadequate heating at Florida State Prison (FSP), and they seek the dismissal of that claim pursuant to 42 U.S.C. § 1997e(a). Hale's Motion at 4-6; Whitehead's Motion at 4-6; Espino and Musselman's Motion at 4-5. More specifically, the Defendants assert that Plaintiff failed to properly exhaust the inadequate heating issue alleged in this lawsuit. See Defendant Hale's Exhibit A, Declaration of Catherine Heller (Doc. 24-1) and Defendant Hale's Exhibit B, Declaration of Shirley A. Johnson (24-2); Defendant Whitehead's Exhibit A, Declaration of Catherine Heller (Doc. 56-1) and Defendant Whitehead's Exhibit B, Declaration of Shirley A. Johnson (Doc. 56-2). Upon review, the motions to dismiss for failure to exhaust administrative remedies, a matter in abatement, are due to be denied. An explanation follows.

The exhaustion of available administrative remedies is required before a 42 U.S.C. § 1983 action with respect to prison conditions by a prisoner may be initiated in this Court. There are guidelines for reviewing a prisoner civil rights action:

Before a prisoner may bring a prison-conditions suit under § 1983, the Prison Litigation Reform Act of 1995 requires that he exhaust all available administrative remedies. 42 U.S.C. § 1997e(a); seealsoBooth v. Churner, 532 U.S. 731, 736, 121 S.Ct. 1819,1822, 149 L.Ed.2d 958 (2001). The purpose of the PLRA's exhaustion requirement is to "afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 2387, 165 L.Ed.2d 368 (2006) (quotation omitted). To properly exhaust, a prisoner must "[c]ompl[y] with prison grievance procedures." Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 922-23, 166 L.Ed.2d 798 (2007).

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th Cir. 2015).

In undertaking a review concerning the exhaustion of administrative remedies, the Court must employ a two-step process:

After a prisoner has exhausted the grievance procedures, he may file suit under § 1983. In response to a prisoner suit, defendants may bring a motion to dismiss and raise as a defense the prisoner's failure to exhaust these administrative remedies. SeeTurner,[³] 541 F.3d at 1081. 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; seealsoid. at 1082 (explaining that defendants bear the burden of showing a failure to exhaust).

Whatley, 802 F.3d at 1209.

A number of factors guide the Court. Initially, the Court recognizes that exhaustion of available administrative remedies is "a precondition to an adjudication on the merits" and is mandatory under the Prison Litigation Reform Act. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.), cert. denied, 555 U.S. 1074 (2008); Jones v. Bock, 549 U.S. 199, 211 (2007); Woodford v. Ngo, 548 U.S. 81, 85 (2006) ("Exhaustion is no longer left to the discretion of the district court, but is mandatory.") (citation omitted). The Supreme Court has stated that "failure to exhaust is an affirmative defense under the PLRA[.]" Jones v. Bock, 549 U.S. at 216. However, "the PLRA exhaustion requirement is not jurisdictional[.]" Woodford v. Ngo, 548 U.S. at 101. See Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (recognizing that the defense "is not a jurisdictional matter").

Further, a prisoner must completely exhaust his remedies prior to initiating a suit in federal court. If he fails to complete the process, the civil rights complaint must be dismissed. This is true even if he thereafter exhausts his administrative remedies after initiating his action in federal court. See Oriakhi v. United States, 165 F. App'x 991, 993 (3d Cir. 2006) (per curiam); Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003); McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam); Medina-Claudio v. Rodiguez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002); Jacksonv. Dist. of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999); Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 538 (7th Cir. 1999).

Additionally, not only is there a recognized exhaustion requirement, "the PLRA exhaustion requirement requires proper exhaustion." 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)." Pozo,[⁴] 286 F.3d, at 1024. . . .

Id. at 90. In fact, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules." Id.

Of import, the Court recognizes that Plaintiff is not required to plead exhaustion. Thus, the Amended Complaint was not dismissed on its face. Plaintiff avers that he exhausted his administrative remedies and references the grievances attached to his Response to Hale (Doc. 29-1). Plaintiff also references the Affidavit of Adrian Chisholm (Doc. 29-1), a fellow inmate, who states that, foryears, officers have removed grievances from the grievance box at FSP.

There are disputed issues of fact as to whether Plaintiff exhausted all available administrative remedies. Thus, the Court must now make findings on the disputed issues of fact to decide whether he properly exhausted his administrative remedies.⁵

The FDOC provides an internal grievance procedure. See Chapter 33-103, Florida Administrative Code (F.A.C.). Thus, to determine whether Plaintiff exhausted his administrative remedies, this Court must examine relevant documents to determine whether the incidents in question were grieved. If these incidents were grieved and the documents complied with the deadlines and other procedural rules as set forth in the F.A.C., the issues raised therein are exhausted.

Generally, the FDOC provides a three-step grievance procedure. The Eleventh Circuit succinctly described the administrative grievance procedure available to the inmates confined in the Florida penal system, including the procedure for medical grievances:

In Florida, the grievance process consists of a three-step procedure. An inmate must first file an "informal grievance ... to the staff member who is responsible in the particular area of the problem." Fla. Admin. Code Ann. § 33-103.005(1). The second step requires the inmate file a formal grievance with the warden. Id. § 33-103.006(1)(a). If the inmate is unsuccessful at this point, he may submit an appeal to the Secretary of the DOC. Id. § 33-103.007.

Medical grievances require only a two-step procedure: the inmate must file a formal grievance at the institutional level with the chief health officer. If the inmate is unsuccessful, he may file an appeal with the Secretary. Id. § 33-103.008.

Kozuh v. Nichols, 185 F. App'x 874, 877 (11th Cir. 2006) (per curiam), cert. deni...