Dalton v. Severson et al

Filing 76

OPINION AND ORDER granting 65 defendants' Motion for Summary Judgment. The Clerk shall terminate any pending motions, enter judgment accordingly, and close the case. Signed by Judge John E. Steele on 4/1/2016. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RIVERS D. DALTON,
Plaintiff,
v.

Case No: 2:13-cv-734-FtM-29MRM

L.
SEVERSON,
Warden
at
Charlotte
State
Prison,
individually and in their
official capacities and C.O.
REINECK,
Defendants.

OPINION AND ORDER
This matter comes before the Court upon review of Defendants’
motion for summary judgment. (Doc. #65, Motion.)

Attached to

Defendants’ motion are the following supporting exhibits: copies
of pertinent inmate grievances and responses thereto (Doc. #65-1,
OAG 1-4, OAG 21-23); internal movement form for inmate Tyler Reed
depicting cell movements from
2013

(Doc.

#65-1,

OAG

5);

May 23, 2012 through February 1,
Florida

Department

of

Corrections

Inspector General Grievance Log Form (Doc. #65-1, OAG 6); internal
movement form for Plaintiff depicting cell movements from August
13, 2012 through December 28, 2012 (Doc. #65-1, OAG 7); Florida
Department of Corrections Daily Security Roster from the year 2012
dated October 6, October 8, October 24, for the day and evening
shifts of October 25, for the day and evening shifts of October 26

(Doc. #65-1, OAG 8-12, OAG 15, OAG 20); Department of Corrections
Housing Unit Log dated October 25-26, 2012 (Doc. #65-1, OAG 1314);

Affidavit

of

L.

Severson

(Doc.

#65-1,

OAG

16-17);

and

Affidavit of Thomas Reid (Doc. #65-1, OAG 18-19). 1
Plaintiff
motion.

filed

several

responses

opposing

Defendants’

(See Docs. #66, #67, #71, hereinafter “Pl’s Response”.)

Plaintiff attaches supporting evidence including: his affidavit
(Doc. #71-1, Pl’s Aff.); Refusal for HIV testing form dated October
29, 2012 (Doc. #71-2, hereinafter “Pl’s Test Refusal Form”);
Department

of

Corrections’

Office

of

Health

Services

Abrasion/Laceration Protocol Form completed October 25, 2012 (Doc.
#71-3 at 1-2, hereinafter “Pl’s Medical Form”); and Plaintiff’s
Department

of

Corrections

Mental

Health

November 2, 2012 (Doc. #71-4 at 1-2).

Screening

Form

dated

This matter is ripe for

review.
I.
Rivers Dalton, an inmate in the custody of the Secretary of
the

Florida

Department

of

Corrections,

initiated

this

action

proceeding pro se by filing a Prisoner Civil Rights Complaint Form
under 42 U.S.C. § 1983 (Doc. #1, Complaint.)

The Complaint alleges

a violation of Plaintiff’s Eighth Amendment rights under the United

1The

Court will also refer to the Defendants’ bate stamps
affixed to the bottom of their exhibits, e.g. OAG 1- OAG 23, for
consistency in citations.

- 2 -

States Constitution stemming from defendants’ failure to protect
Plaintiff from two different cellmates’ attacks, on two different
dates in October of 2012, and a deliberate indifference to a
serious medical condition against Defendant Reineck for failing to
timely escort Plaintiff to the medical department after the second
attack, while Plaintiff was confined at Charlotte Correctional
Institution.
On December 11, 2014, the Court entered an order granting in
part and denying in part defendants’ motion to dismiss.
#53).

(See Doc.

The Court granted defendants’ motion to the extent Eleventh

Amendment

immunity

precluded

Plaintiff

from

seeking

monetary

damages against the defendants in their official capacities.
at 2.)

(Id.

The Court also determined that Plaintiff’s request for

injunctive relief was moot due to his transfer from Charlotte
Correctional Institution. (Id.)

Defendants’ motion was otherwise

denied for further development on the failure to protect claims
against Defendants Reineck 2 and Severson stemming from both attacks
in October, and a deliberate indifference to a serious medical
condition against Reineck.
Defendants

now

move

for

summary

judgment.

Initially,

Defendants argue that Plaintiff did not fully and properly exhaust

2 At

the motion to dismiss stage, Defendant Reineck had
properly conceded that the Complaint plausibility stated a failure
to protect claim against himself. (See Order at 3.)

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his administrative grievances with regard to the second attack in
October because he did not appeal the denial of his initial
grievance.

(Motion at 2-4.)

Defendants further argue that with

regard the early October attack involving inmate Solider, the day
Plaintiff submitted his inmate grievance alleging that he feared
for his life from his cellmate, Solider’s threats, he was removed
from the cell.

With regard to the second attack by inmate Reed

on Plaintiff on October 25, 2012, defendants point to the record
to

show

that

defendant

Reineck

did

not

Plaintiff alleges the incident occurred.

work

the

shift

when

Thus, Reineck argues

there is no genuine dispute of material fact concerning his failure
to

protect

Plaintiff,

or

his

deliberate

indifference

to

Plaintiff’s medical need following the attack because he was not
working the shift when the incident occurred.
In

Response,

concerning

the

Plaintiff

early

appears

October

attack

to

abandon

involving

inmate

because none of his responses address this incident.
#66, #67, #71.)

any

claim
Solider

(See Docs.

Turning to the incident at the end of October,

Plaintiff argues that he did exhaust his claim, but does not
provide any copy of the related appeal.

Additionally, Plaintiff

maintains that Reineck watched the late-October fight outside of
the cell, did nothing to protect him or intervene, and failed to
bring him for medical treatment after.

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II.
“Summary judgment is appropriate only if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Moton v.

Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)(internal quotations
and citations omitted).

See also, Fed. R. Civ. P. 56(c)(2).

“The

moving party may meet its burden to show that there are no genuine
issues of material fact by demonstrating that there is a lack of
evidence to support the essential elements that the non-moving
party must prove at trial.”

Moton, 631 F.3d at 1341 (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

The standard

for creating a genuine dispute of fact requires the court to “make
all reasonable inferences in favor of the party opposing summary
judgment,” Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.
2000)(en

banc)(emphasis

added),

not

to

make

all

possible

inferences in the non-moving party=s favor.
To avoid the entry of summary judgment, a party faced with a
properly supported summary judgment motion “bears the burden of
persuasion” and must come forward with extrinsic evidence, i.e.,
affidavits,

depositions,

answers

to

interrogatories,

and/or

admissions, and Aset forth specific facts showing that there is a
genuine issue for trial.”

Beard v. Banks, 548 U.S. 521, 529

(2006)(citations omitted); Celotex, 477 U.S. at 322; Hilburn v.
Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999).

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If there is a conflict in the evidence, the non-moving party=s
evidence is to be believed and “all justifiable inferences” must
be drawn in favor of the non-moving party.

Beard, 548 U.S. at 529

(citations omitted); Shotz v. City of Plantation, Fl., 344 F.3d
1161, 1164 (11th Cir. 2003).

“A court need not permit a case to

go to a jury, however, when the inferences that are drawn from the
evidence,

and

‘implausible.’”

upon

which

the

non-movant

relies,

are

Cuesta v. School Bd. of Miami-Dade County, 285

F.3d 962, 970 (11th Cir. 2002) (citations omitted).

Nor are

conclusory allegations based on subjective beliefs sufficient to
create a genuine issue of material fact.

Leigh v. Warner Bros.,

Inc., 212 F.3d 1210, 1217 (11th Cir. 2000).

“When opposing parties

tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling
on a motion for summary judgment.”
380 (2007).

Scott v. Harris, 550 U.S. 372,

In the summary judgment context, however, the Court

must construe pro se pleadings more liberally than those of a party
represented by an attorney.

Loren v. Sasser, 309 F.3d 1296, 1301

(11th Cir. 2002).
III.
A.

Exhaustion of Administrative Remedies

Defendants point to the Department of Correction’s procedures
on inmate grievance filing and argue that Plaintiff failed to fully

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and properly exhaust his administrative remedies regarding the
second attack in October because he did not file an appeal of the
denial of his initial grievance.

Plaintiff contends that he did

exhaust his claim.
The Prison Litigation Reform Act, which amended The Civil
Rights of Institutionalized Persons Act, provides as follows:
(a) Applicability of administrative remedies.
No action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner
confined in any jail, prison, or other
correctional
facility
until
such
administrative remedies as are available are
exhausted.
42 U.S.C. ' 1997e(a)(emphasis added).

Although prisoners are not

required to plead exhaustion, Jones v. Bock, 549 U.S. 199, 216
(2007), “[t]here is no question that exhaustion is mandatory under
the PLRA, and that unexhausted claims cannot be brought in court.”
Id. at 211; see also Bingham v. Thomas, 654 F.3d 1171, 1175 (11th
Cir. 2011).
To “properly exhaust” administrative remedies, a prisoner
must complete the administrative review process, as set forth in
the applicable prison grievance process.

Jones, 549 U.S. at 218.

A prisoner cannot satisfy the exhaustion requirement by filing an
untimely

or

otherwise

grievance or appeal.

procedurally

defective

administrative

Woodford, 548 U.S. at 92-103.

However, an

administrative remedy that was not discovered, and which could not

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have been discovered through reasonable effort, until it was too
late for it to be used is not an “available” remedy.
Lee County, 510 F.3d 1312, 1324 (11th Cir. 2007).

Goebert v.

A remedy is not

available if it is unknown or unknowable because such remedy is
not “capable for use for the accomplishment of a purpose.”
at 1323.

Id.

Inmates are not required to “craft new procedures when

prison officials demonstrate . . . that they will refuse to abide
by the established ones.”

Turner v. Burnside, 541 F.3d 1077, 1083

(11th Cir. 2008)(citations omitted).
Whether an inmate has exhausted his available administrative
remedies is a factual issue that is properly made by the court.
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008).

Thus,

“[e]ven though a failure-to-exhaust defense is non-jurisdictional,
it is like a defense for lack of jurisdiction in one important
sense:

Exhaustion

of

administrative

remedies

is

a

matter

in

abatement, and ordinarily does not deal with the merits.”

Id.

(footnote,

The

internal

quotations,

and

citations

omitted).

defense of exhaustion is properly raised in a motion to dismiss as
a “matter of judicial administration.”

Id. at 1375.

Thus, the

court is permitted to look beyond the pleadings to decide disputed
issues of fact in connection with the exhaustion defense.

Id. at

1377 n.16.
Pursuant to the Florida Administrative Code Chapter 33-103,
Plaintiff is required to exhaust all available administrative

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remedies before pursuing a civil rights action.

Specifically, the

Florida Department of Corrections provides a three-step grievance
procedure.

First, an inmate must normally file either an informal

grievance or formal grievance depending on the nature of his
complaint.

Fla. Admin. Code 33-103.006-.007.

If the inmate’s

issue is not resolved at the institutional level, the inmate must
file an appeal to the Office of the Secretary of the Florida
Department of Corrections.

Id. at 33-103.007. Additionally, an

inmate may bypass the filing of an informal and formal grievances
and

file

emergency

grievances,

grievances

of

reprisal,

and

grievances of a sensitive nature directly with the Office of the
Secretary.
The

Id. at 33-103.007(6).

following

grievances

facts

concerning

1210-510-140.

the

are

undisputed:

October

Plaintiff

incidents:

filed

two

1210-510-039

and

(See Complaint, Doc. #1-1 at 11-12; Motion at 3.)

The first grievance dated October 10, 2012, pertained to inmate
Solider’s threats (although Solider is unnamed in the grievance),
to which Severson responded the same day, and “approved” the
grievance.

(Id.)

Inmate Solider was removed from Plaintiff’s

cell on October 10, and inmate Reed was moved into the cell.

(See

OAG 005.)
Plaintiff’s second grievance dated October 29, 2012, was
filed after inmate Reed’s attack and in the grievance he requested
a room change due to “threats” and “altercations” with Reed. (See

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Complaint, Doc. #1-2 at 1-2.)

That same day, Severson responded

and denied Plaintiff’s grievance as moot because staff advised him
that the two inmates were already separated from each other on
October 26, 2012.

(Id.)

In other words, either Plaintiff, or

inmate Reed, was moved to another cell prior to the date Plaintiff
filed the grievance.

(Id.)

Defendants contend that Plaintiff’s

failure to appeal the “denial” of this grievance means that he did
not fully and properly exhaust administrative remedies.

The Court

disagrees.
Defendants are correct that the Department of Corrections
rules concerning exhaustion of administrative remedies require
that an inmate pursue an appeal to the Office of the Secretary if
the inmate’s issue raised in the grievance is not resolved at the
institutional

level.

Here,

however,

Plaintiff’s

grievance

concerning the second October attack was for all purposes resolved.
Plaintiff requested that he be moved from inmate Reed’s cell due
to Reed’s threats and altercations.
grievance,
Severson.

a

cell

change

had

By the time he filed the

already

happened,

as

noted

by

Thus, the result Plaintiff sought, i.e. separation from

inmate Reed, was essentially done, irrespective of Severson’s
“denial” of Plaintiff’s grievance.

In other words, there was no

adverse determination in his grievance for Plaintiff to appeal.
Therefore, the Court denies defendants’ motion to the extent they

- 10 -

contend Plaintiff failed to exhaust his administrative remedies
concerning the second October attack.
B.

Failure to Protect Claims

The Supreme Court made clear that Aprison officials have a
duty . . . to protect prisoners from violence . . . .@

Farmer v.

Brennan, 511 U.S. 825, 833 (1994); see also Doe v. Ga. Dep=t of
Corr., 245 F. App=x 899 (11th Cir. 2007).

A violation of the

Eighth Amendment occurs when a prison official acts with deliberate
indifference to a substantial risk of harm to an inmate.
511 U.S. at 828.

Farmer,

ADeliberate indifference is not the same thing

as negligence or carelessness.@

Maldonado v. Snead, 168 F. App=x

373 (11th Cir. 2006)(citing Ray v. Foltz, 370 F.3d 1079, 1083 (11th
Cir. 2004)).

AMerely negligent failure to protect@ an inmate from

an attack does not give rise to a ' 1983 claim.
352 F.3d 1346, 1350 (11th Cir. 2003).

Carter v. Galloway,

A plaintiff must demonstrate

that the defendant was aware of specific facts from which an
inference could be drawn that a substantial risk of serious harm
exists and that the prison official drew that inference.

Purcell

v. Toombs County, 400 F.3d 1313, 1319-20; Carter, 352 F.3d at 1349.
In other words, to show that an official had subjective knowledge,
the court is to inquire whether the defendant was aware of a
“particularized threat or fear felt by [the plaintiff].”
1350.
he

Id. at

“An official=s failure to alleviate a significant risk that

should

have

perceived

but

did

- 11 -

not,

while

no

cause

for

commendation, cannot . . . be condemned as the infliction of
punishment” and does not give rise to a constitutional violation.
Farmer, 511 U.S. at 838.

Whether an official had requisite

knowledge is a question of fact that may be demonstrated by
circumstantial evidence.
1.

Id. at 842.

Early October Incident involving inmate Solider

The

following

facts

are

material

and

unless

specified

otherwise are undisputed.

On September 18, 2012, Plaintiff was

assigned

in

to

Correctional.
for

bunk

A3207U

the

(See OAG 007.)

disciplinary

“A

dormitory”

at

Charlotte

Because Plaintiff was classified

confinement

status,

his

privileges

were

restricted and he was closely monitored by security checks every
thirty

minutes.

(See

e.g.,

OAG

013-014.)

According

to

the

Complaint, Plaintiff communicated with “security officers” asking
that they move him on October 6, 2012, during the 5:00 p.m. to
11:00 p.m. shift and again on Monday, October 8, 2012.
at 3-5.

Complaint

According to the Florida Department of Corrections’ Daily

Security Roster, Reineck was not working the 5:00 p.m. to 11:00
p.m. shift on October 6 and was not working at all on October 8.
(OAG 8-9.)
On October 10, 2012, Plaintiff filed an inmate grievance
complaining of threats from his cellmate Solider, which Severson
reviewed and granted that same day. (See Complaint, Doc. #1-1.)
Plaintiff’s cellmate named Solider was removed from the cell that

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same day and inmate Reed was moved into the cell. (See OAG 005
(showing inmate Tyler Reed moved into cell A3207 on October 10,
2012).)
A review of the record shows no genuine issue of material
fact concerning defendants’ failure to protect Plaintiff during
the early October incident with Plaintiff’s cellmate, Solider.

As

noted supra, Plaintiff’s response to defendants’ motion does not
mention this incident and therefore appears to abandon this claim.
Nevertheless, defendants’ evidence shows that Reineck was not
working during the shift Plaintiff claims he verbally asked unidentified “security officers” to move him from the cell due to
his cellmate’s threats.

Thus, there is no evidence to support a

finding that Reineck had the requisite knowledge that Plaintiff
was in fear of his cellmate named Solider.
Likewise, the evidence of record reveals that Severson was
first notified by written inmate grievance dated October 10 that
Plaintiff feared Solider, and Solider was removed from Plaintiff’s
cell on the same day the grievance was submitted.

Consequently,

Reineck and Severson are entitled to the entry of summary judgment
in their favor concerning the early October incident.
2.

Late October Incident involving inmate Reed

The following facts are material and are undisputed, unless
noted otherwise.

On October 10, 2012, inmate Reed was moved into

Plaintiff’s cell when inmate Solider was moved out of the cell.

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(See OAG 005 (showing inmate Tyler Reed moved into cell A3207 on
October 10, 2012).)

On October 24, 2012, defendant Reineck worked

the 5:00 a.m. to 5:00 p.m. shift as the housing officer in Dorm A.
(See OAG 010.)

On October 25, the night the incident between

Plaintiff and Reed occurred, Reineck was listed to work again
during

the

day

shift,

but

other

scheduled to work the night shift.

correctional

officers

(See OAG 011-012.)

were

At 11:20

p.m. on October 25, Plaintiff declared a “medical emergency.”
(See OAG 013.)

Both Plaintiff and inmate Reed were removed from

the cell and segregated into separate showers.

(Id.)

The medical

department treated both Plaintiff and inmate Reed for “minor
abrasions.”
The

(See OAG 14.)

record

contains

no

genuine

issue

of

material

fact

concerning defendants’ failure to protect Plaintiff from inmate
Reed.
warned

Despite Plaintiff’s allegations in his Complaint that he
several

correctional

officials

on

October

24,

2012,

sometime between 4 p.m. to 12:00 a.m., that Reed threatened to
kill him, there is no evidence showing that Plaintiff provided any
notice (orally or written) to either Severson or Reineck that he
feared inmate Reed during the two week time period prior to the
evening of October 25 3 when he declared a medical emergency.

3 Notably,

To

the Complaint alleges the inmate Reed incident
occurred on October 26.
(Complaint at 5.)
Considering the
evidence shows the incident occurred around 11:00 p.m. on October
25, the Court understands why Plaintiff wrote October 26.

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the contrary, the evidence shows that Reineck did not work the
night shift on October 24 when Plaintiff claims to have warned
unnamed officers.

(See OAG 010.)

Turning to the evening of the incident, Reineck was not
present on October 25 at 11:00 p.m. because other correctional
officials were working.

(See OAG-011, 4 012.)

Plaintiff’s self-

serving allegations in the Complaint that Reineck watched the
October

25

incident

from

outside

of

the

cell

and

failed

to

intervene, which are unsupported by any evidence of record, are
insufficient to create a genuine issue of material fact.
According to the Housing Unit Log, Plaintiff declared a
medical

emergency

on

October

25

at

11:09

p.m.

Correctional

officials responded to Plaintiff’s emergency and segregated both
inmates into separate showers.

The medical records show that both

inmates were treated for minor abrasions.

Plaintiff’s medical

form entitled “abrasion/laceration protocol” dated October 25 also

4 Defendants

explain that Reineck worked the day shift on
October 25.
(See Motion at 7 (citing OAG 011).)
Defendants’
exhibit cited in support thereof shows only an officer “Alberto
Benavides” working the day shift on October 25.
(OAG 11.)
It
appears defendants inadvertently redacted more information than
necessary. The Court may nonetheless issue this Opinion and Order
granting defendants’ motion for summary judgment because the fact
that Reineck worked the day shift on October 25 is important, but
not necessarily material to what happened the evening of October
25. Defendants’ exhibits show that Reineck was not working on the
evening of October 25 when the incident between Plaintiff and
inmate Reed occurred because other correctional officials were
scheduled. (See OAG 012-014.)

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indicate similar “abrasions,” an old human bite mark, and another
human bite marks, but “no bleeding.”

(Complaint, Doc. #1-3.)

Both Plaintiff and inmate Reed told medical staff at this time
that they were “not fighting.”

(See OAG 014.)

The record contains no genuine dispute of material fact
concerning defendant Reineck’s failure to protect Plaintiff, or
any

delay

in

escorting

Plaintiff

for

medical

treatment

from

injuries he sustained from the October 25 incident because he was
not working the night shift when the incident occurred.

The

correctional authorities who worked the night shift on October 25,
quickly responded to Plaintiff’s declared medical emergency and
separated the two inmates.
Defendant Severson’s first involvement with the late October
attack was on October 29 when he denied as moot Plaintiff’s inmate
grievance dated October 25.

Severson denied the grievance as moot

because Plaintiff was already separated from inmate Reed.

The

October 25 grievance Severson reviewed after the incident occurred
was the first notice Severson had concerning any issue between
Plaintiff and his cellmate Reed.

There is no evidence to support

a finding that Plaintiff ever told either Severson or Reineck that
he feared inmate Reed prior to the October 25 incident and that
they failed to take protective measures.

Thus, defendants are

entitled to the entry of summary judgment in their favor.

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ACCORDINGLY, it is hereby
ORDERED:
1.

Defendants’ motion for summary judgment (Doc. #65) is

GRANTED.
2.

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of April, 2016.

SA: ftmp-1
Copies: All Parties of Record

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1st

day