Loveland v. Scott et al

Filing 63

ORDER OF DISMISSAL granting 53 Motion to dismiss. Plaintiff's deliberate indifference claim against Defendant Thomas is dismissed as unexhausted. Alternatively, the claim is dismissed for failure to state a claim on which relief may be granted. The Clerk shall enter judgment in favor of defendant and close the file. Signed by Judge John E. Steele on 7/27/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT E. LOVELAND,
Plaintiff,
v.

Case No:

2:15-cv-621-FtM-99CM

SHIRLETTE THOMAS,
Defendant.
ORDER OF DISMISSAL
Presently before the Court is Defendant Shirlette Thomas’
motion to Dismiss Plaintiff’s Amended Complaint for Failure to
Exhaust

Administrative

2016).

Plaintiff responded to the motion (Doc. 58), and it is

ripe for review.

Remedies

(Doc.

53,

filed

September

6,

For the reasons set forth in this Order,

Defendant Thomas’ motion to dismiss is granted, and the amended
complaint is dismissed for Plaintiff’s failure to properly exhaust
his administrative remedies.

Alternatively, the complaint is

dismissed for failure to state a claim upon which relief can be
granted.
I.

Background

Procedural History
On October 5, 2015, while incarcerated at the Lee County Jail,
Plaintiff initiated this action by filing a pro se complaint

against numerous employees of the jail (Doc. 1). 1

The original

complaint was dismissed by the Court on May 20, 2016 for failure
to state a claim upon which relief could be granted (Doc. 42).
Although the defendants had raised an exhaustion defense in their
motion to dismiss (Doc. 22), the Court concluded that it was easier
to dismiss the complaint on the ground that it did not state a
claim (Doc. 42).

Therefore, the Court did not perform a full

analysis of whether Plaintiff had exhausted his administrative
remedies.

Plaintiff was directed to file an amended complaint if

he wished to proceed. Id.
On June 13, 2016, Plaintiff filed an amended complaint,
raising claims against only Defendant Shirlette Thomas (Doc. 45).
Defendant Thomas filed a motion to dismiss Plaintiff’s amended
complaint on the ground that he had not stated a claim upon which
relief could be granted, but she did not re-raise her exhaustion
defense (Doc. 46).

The motion was denied (Doc. 46).

In her

answer and affirmative defenses, Defendant Thomas re-raised the
exhaustion defense (Doc. 50).

The Court ordered briefing on the

exhaustion issue (Doc. 51), and Defendant Thomas filed a motion to

1

It is unclear whether Plaintiff was a pre-trial detainee or
a convicted prisoner while at the Lee County Jail. Nevertheless,
a court looks to the contours of the Eighth Amendment when
analyzing a Fourteenth Amendment deliberate indifference claim.
Taylor v. Adams, 221 F.3d 1254, 1257 n.3 (11th Cir. 2000); Hamm v.
DeKalb County, 774 F.2d 1567, 1573—74 (11th Cir. 1985).

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dismiss

based

upon

Plaintiff’s

failure

to

fully

exhaust

his

administrative remedies (Doc. 53).
Complaint
In his amended complaint, Plaintiff asserts the following:
During the nights between August 19, 2015, and September 2, 2015,
Plaintiff

began

having

hypoglycemic

diabetes (Doc. 45 at 5-6).

episodes

related

to

his

As a result, on September 2, 2015, he

requested a 5-unit decrease in his evening insulin dose. Id.

On

the same day, Physician’s Assistant Defendant Thomas cut both
Plaintiff’s morning and evening insulin doses in half, from 30 and
20 units, to 15 and 10 units respectively (Doc. 45 at 7).

For

approximately one week following the decrease, Plaintiff’s blood
sugar was “excessively high” 24 hours a day. Id.

On September 9,

2015, Defendant Thomas was directed by her supervisor to increase
Plaintiff’s insulin dose. Id.

His morning insulin was increased

to 25 units, but his evening insulin was left at 10 units. Id.
This left Plaintiff with high blood sugar throughout the evening.
Id.

On October 1, 2015, Defendant Thomas raised Plaintiff’s

insulin dosage back to the 20 units that initially caused the
hypoglycemic episodes. Id. at 8.

Two weeks later, Defendant

Thomas was removed from Plaintiff’s insulin orders and his blood
sugar was controlled.

Id.

As a result of the incorrect insulin

dosage, Plaintiff developed a case of neuropathy.

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Plaintiff suffered headaches, muscle cramps, dehydration,
blurred

vision,

weight

loss,

neuropathy,

and

an

increased

hemoglobin AIC because of his incorrect insulin dosage (Doc. 45 at
6).

He did not eat some of his food in an attempt to control his

blood sugar, resulting in hunger and weight loss. Id. at 8.
Plaintiff asserts that Defendant Thomas’ failure to provide
him with adequate insulin was deliberately indifferent to his
serious medical condition (Doc. 45 at 6).

He seeks an order from

the Court reprimanding Defendant Thomas and monetary damages for
pain and suffering in the amount of one million dollars.
also seeks legal fees and the costs of litigation.

Plaintiff

Id.

Motion to Dismiss
Defendant Thomas asserts that Plaintiff was aware of the
grievance procedure for medical complaints at the Lee County Jail,
but failed to complete it (Doc. 53 at 3).

In support of her motion

to dismiss, Defendant Thomas has submitted: a copy of the “Armor
Correctional Health Services, Inc. Grievance Mechanism for Health
Complaints” (Doc. 37-1, “Health Grievance Procedure”); Plaintiff’s
“Intake and Screening Assessment” (Doc. 37-2, “Intake”); Armor
Regional
Aff.”);

Manager

Andrew

Plaintiff’s

Small’s

Grievance

Affidavit

Report

(Doc.

(Doc.

37-3,

37-4,

“Small

“Grievance

Report”); and Plaintiff’s Grievances and Responses on this issue
(Doc. 37-4).

In his response in opposition to Defendant Thomas’

motion to dismiss, Plaintiff submitted a copy of the grievance

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procedure set forth in the Lee County Jail inmate handbook (Doc.
58-1) and copies of the grievances he has submitted (Doc. 58-2).
II.

Legal Standards

Under § 1997e(a) of the Prison Litigation Reform Act (PLRA):
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).

The United States Supreme Court has noted

that exhaustion must be “proper.”
93 (2006).
deadlines

Woodford v. Ngo, 548 U.S. 81,

“Proper exhaustion demands compliance with an agency’s
and

other

critical

procedural

rules

because

no

adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.”
91.

Id. at 90-

In other words, an institution’s requirements define what is

considered exhaustion.

Jones v. Bock, 549 U.S. 199, 218 (2007).

Thus, prisoners must do more than simply initiate grievances;
they must also appeal any denial of relief through all levels of
review that comprise the administrative grievance process.
v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008).

Bryant

Additionally, the

Supreme Court has recently explained that “the PLRA’s text suggests
no limits on an inmate’s obligation to exhaust—irrespective of any
‘special circumstances.’

And that mandatory language means a

court may not excuse a failure to exhaust, even to take such

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circumstances into account.”
(2016).

Ross v. Blake, 136 S. Ct. 1850, 1856

Furthermore, an inmate who files an untimely grievance

or simply spurns the administrative process until it is no longer
available fails to satisfy the exhaustion requirement of the PLRA.
Johnson v. Meadows, 418 F.3d 1152, 1157-59 (11th Cir. 2005);
Additionally, “[t]he only facts pertinent to determining whether
a prisoner has satisfied the PLRA’s exhaustion requirement are
those that existed when he filed his original complaint.”

Smith

v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012).
The PLRA’s exhaustion requirement is designed to “afford [ ]
corrections officials time and opportunity to address complaints
internally before allowing the initiation of a federal case.”
Porter v. Nussle, 534 U.S. 516, 524-25 (2002).

A grievance

suffices to exhaust a claim if it puts the prison on adequate
notice of the problem for which the prisoner seeks redress. To
provide adequate notice, the prisoner must provide the level of
detail required by the prison’s regulations. Jones v. Bock, 549
U.S. 199, 218 (2007).

When a prison’s grievance procedures are

silent or incomplete as to factual specificity, “a grievance
suffices if it alerts the prison to the nature of the wrong for
which redress is sought.” Doe v. Wooten, No. CV107–2764, 2010 WL
2821795, at *2 (N.D. Ga. July 16, 2010).

Section 1997e(a) of the

PLRA requires a prisoner to provide in his administrative grievance

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as much relevant information about his claims as he can reasonably
provide. Brown v. Sikes, 212 F.3d 1205, 1210 (11th Cir. 2000).
In Bryant v. Rich, the Eleventh Circuit Court of Appeals
directs the district courts to consider failure to exhaust in a
motion to dismiss instead of a motion for summary judgment. 530
F.3d 1368, 1374-75 (11th Cir. 2008) (“[A]n exhaustion defense . .
. is not ordinarily the proper subject for a summary judgment;
instead it should be raised in a motion to dismiss, or be treated
as such if raised in a motion for summary judgment.”) (internal
quotation omitted).
the

defendant

In cases, such as the instant one, in which

alleges

that

a

prisoner

has

not

exhausted

his

administrative remedies, courts are permitted to hear evidence
outside of the record. Id. at 1377 n. 16.

Accordingly, the parties

may submit documentary evidence concerning the exhaustion issue
and doing so will not require the conversion of the motion to
dismiss into one for summary judgment. Id.
district

court

may

resolve

factual

In addition, the

questions

concerning

a

plaintiff’s alleged failure to exhaust, as long as the factual
disputes do not decide the merits and the parties had sufficient
opportunity to develop a record.
the

facts

relating

to

Bryant, 530 F.3d at 1376.

whether

Plaintiff

exhausted

Here,
his

administrative remedies do not bear on the merits of his claims
against

Defendant

Thomas.

Also,

Plaintiff

had

sufficient

opportunity to develop (and did develop) a record on this issue.

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Accordingly, this Court will consider the evidence submitted by
both sides relating to the issue of exhaustion.
To determine whether a complaint should be dismissed for
failure

to

exhaust

administrative

remedies,

the

court

first

considers the factual allegations in the defendant’s motion to
dismiss

and

those

in

the

plaintiff’s

response,

and

if

they

conflict, the court must accept, for purposes of the motion, the
plaintiff’s version of the facts as true. See Turner v. Burnside,
541 F.3d 1077, 1082 (11th Cir. 2008).

If, in that light, the

defendant is entitled to have the complaint dismissed for failure
to exhaust administrative remedies, it must be dismissed.

Id.

If

the court determines that the complaint is not subject to dismissal
at step one, “the court then proceeds to make specific findings in
order

to

resolve

exhaustion.” Id.

the

disputed

factual

issues

related

to

“Once the court makes findings on the disputed

issues of fact, it then decides whether under those findings the
prisoner has exhausted his available administrative remedies.” Id.
III. Analysis
Grievance Process
The

medical

Correctional

provider

Health

at

Services,

the
Inc.)

Lee

County

provides

administrative remedy process for health complaints.

Jail
a

(Armor

three-step
The prisoner

must first give the grievance to administrative staff (step one)
(Small Aff. at ¶ 5).

Thereafter, senior health care management

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personnel are required to address the grievance in a written
response.

Id.

If the grievance is not resolved, the inmate may

appeal the grievance to the facility administrator or designee
(step two).

Id.

If the grievance remains unresolved, the inmate

may appeal to a regional representative of Armor Correctional
Health Services, Inc. (step three).
Andrew

Small

attests

that

Id. at ¶ 6.

this

three-step

procedure

was

available to Plaintiff during his incarceration at the Lee County
Jail and that it was explained to him during his intake health
screening and health assessment processes.

Id. at ¶¶ 7-8.

Even

though the medical provider on the date of Plaintiff’s intake was
not Armor, Small attests that the grievance procedure explained to
Plaintiff at intake was the same as that required by Armor (Small
Aff. at n. 1).

Plaintiff signed the intake form indicating that

the

procedure

grievance

was

explained

to

him

(Doc.

37-2).

Defendant urges that the undisputed evidence shows that Plaintiff
did not complete steps two and three of the grievance procedure
for medical complaints, and as a result, his claims are unexhausted
(Small Aff. at ¶ 11).
Grievances 2
It is uncontested that, on September 2, 2015 and September 3,
2015, Plaintiff filed a total of three grievances, each complaining

2

Plaintiff initiated this action on October 5, 2015,
complaining of activity that occurred during August and September

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about Defendant Thomas’ adjustments to his insulin dosage (Doc.
37-4 at 6-8).

The first grievance complained that, when Plaintiff

requested a five-unit decrease in his insulin, Defendant Thomas
ordered a fifteen unit decrease which, according to Plaintiff,
“makes no sense.” (Doc. 58-2 at 1).
on

the

same

day,

calling

He filed a second grievance

Defendant

“nonsensical” (Doc. 58-2 at 2).

Thomas’

prescription

The following day, Plaintiff

filed a grievance complaining that because Defendant Thomas had
changed his morning insulin dose to fifteen units (instead of to
twenty-five units as he had requested) “for no logical reason,” he
was forced to suffer from high blood sugar from “before lunch” to
1:30 (Doc. 58-2 at 3).
On September 9, 2015, Rhonda Mason, the director of nursing,
responded to Plaintiff’s September 2, 2015 and September 3, 2015
grievances (Doc. 37-4 at 9).

Mason assured Plaintiff that he was

being cared for by a professional healthcare provider, and that,
after reviewing his chart, Plaintiff’s morning insulin dosage was
adjusted to 25 units, effective on that date.

Id.

Plaintiff asserts that on September 11, 2015, he filed a
second grievance complaining that he had not received a response

of 2015. In order to survive dismissal for failure to exhaust,
Plaintiff must have first exhausted each of his claims prior to
that date. 42 U.S.C. § 1997e(a).
Accordingly, only grievances
filed by Plaintiff prior to October 5, 2015 will be considered.

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to his September 2, 2015 and September 3, 2015 grievances—he
further complained that he was suffering from blurred vision,
muscle cramps, and headaches because of unregulated insulin (Doc.
58-2).

Defendant Thomas does not acknowledge receiving this

grievance, nor does it show up on the Grievance Report filed by
the defendant.

Nevertheless, it appears that the grievance was

responded to by Mason and that Plaintiff was instructed to report
to sick call (Doc. 58-2 at 4).

However, to the extent that the

September 11, 2015 document was an actual grievance, Plaintiff
does

not

assert

that

he

appealed

Mason’s

response

to

it.

Accordingly, it is undisputed that the new issues grieved on
September 11, 2014 were not exhausted.
On September 14, 2015, Plaintiff asserts that he appealed
Mason’s response to his September 2, 2015 and September 3, 2015
grievances, and that “no remedy has come forth from his request”
(Doc. 58-2 at 5).

Plaintiff asserts that he filed a second appeal

to the facility commander regarding Mason’s letter (presumably the
letter written in response to Plaintiff’s September 2, 2015 and
September 3, 2015 grievances) on September 24, 2015 (Doc. 58-2 at
6).

Neither

of

Plaintiff’s

alleged

appeals

show

up

on

the

Grievance Report filed by Defendant Thomas, and it does not appear
that a response was provided to either appeal (Doc. 58-2 at 5-6).

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Arguments
a.

Plaintiff did not exhaust his deliberate indifference
claim against Defendant Thomas

Plaintiff admits that he did not follow the proper medical
grievance procedures for the Lee County Jail.

In response to

Defendant

of

Thomas’

motion

to

dismiss

for

lack

exhaustion,

Plaintiff makes two arguments that his failure to do so should be
excused.

First, he urges that, because his insulin dosage was

eventually corrected, filing a grievance through Armor’s grievance
procedure would have been futile (Doc. 58 at 4).

This argument

is unavailing; an exhaustion requirement cannot be waived based
upon a prisoner’s belief that pursuing administrative procedures
would be futile.

Higginbottom v. Carter, 223 F.3d 1259, 1261

(11th Cir. 2000); Booth v. Churner, 532 U.S. 731 (2001) (holding
that a prisoner must exhaust administrative remedies even if the
relief sough (such as money damages) cannot be granted by the
administrative process).
Next, Plaintiff urges that he is not subject to Armor’s threestep grievance procedure because the intake form indicating that
the medical grievance procedure had been explained to him was “an
adhesive contract” with Corizon Healthcare, who was the medical
services provider for Lee County Jail at the time he was booked
into the Lee County Jail (Doc. 58 at 2).

Although Defendant Thomas

recognizes that the medical providers changed during Plaintiff’s

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tenure at the jail, Andrew Small attests that the procedures for
filing a medical grievance under Corizon were identical to those
under Armor (Small Aff. at n.1).

Plaintiff does not dispute that

he signed the intake form indicating that the grievance process
was explained to him (Doc. 37-2 at 3).

Nor does he claim that the

procedures for filing a medical grievance changed during his time
at the Lee County Jail.
Plaintiff does not contend that he followed the Corizon
grievance procedure or otherwise sought to clarify the grievance
procedures with Armor; rather, he asserts that he followed the
two-step non-medical grievance procedure set forth in Lee County
Jail’s prisoner handbook instead (Doc. 58 at 1-2). 3

However, a

failure

a

to

exhaust

unilaterally

(or

is

not

excused

mistakenly)

merely

decides

to

because
follow

a

prisoner
different

grievance procedure than is required by the facility at which he
is held.
a

See Ross v. Blake, 136 S. Ct. 1850 (2016) (holding that

prisoner’s

mistaken

belief

that

an

internal

affairs

investigation served as a substitute for the standard grievance
process did not excuse him from the exhaustion requirement).

3

Defendant Thomas asserts that Plaintiff never proceeded past
the first step of any grievance process. Plaintiff urges that he
completed both steps of the Lee County Jail procedure for the
grievances filed on September 2, 2015 and September 3, 2015.
Because
the
Court
concludes
that
Plaintiff’s
deliberate
indifference claim is unexhausted, the Court will not make a
finding of fact on whether Plaintiff completed the non-medical
grievance procedure for the Lee County Jail.

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Accordingly, accepting Plaintiff’s version of the facts as true,
this issue can be resolved at the first step of the Turner test:
Plaintiff’s mistaken beliefs that he was not required to properly
exhaust his claims because: (1) doing so was futile; and (2) he
could comply with the exhaustion requirement by following the
grievance

procedures

for

non-medical

complaints

against

staff

members of the Lee County Sheriff’s Office (as set forth in the
prisoner’s handbook) do not excuse his failure to properly exhaust
his medical deliberate indifference claim. 4
Nor is this Court persuaded by any construed argument from
Plaintiff that the medical grievance procedure was unavailable for
purposes of the PLRA.

The Ross court distilled three situations

in which an administrative remedy is not “available” under the
PLRA. 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.” 136 S. Ct.
at 1859.

Second, “an administrative scheme might be so opaque

that it becomes, practically speaking, incapable of use.” Id.

4

Plaintiff appears to concede that the medical grievance
procedure was explained to him.
However, to the extent he now
urges that the medical grievance procedure was not explained to
him (notwithstanding his signature otherwise), the Court finds
Defendants’ evidence on this issue (the signed intake form and
Small’s affidavit) more credible than Plaintiff’s assertion that
the intake form was an “adhesive” contract with Corizon.

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Third, a remedy is not available “when prison administrators thwart
inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 1860.
Here, Plaintiff’s arguments regarding availability do not fall
within any of these three “exceptions” to exhaustion.
Accordingly,

the

deliberate

indifference

claim

against

Defendant Thomas is dismissed for Plaintiff’s failure to properly
exhaust his constitutional claims. 42 U.S.C. § 1997e(a).
b.

The allegations against Defendant Thomas do not state a
claim upon which relief may be granted

Even were this Court to conclude that the Armor grievance
procedures were “unavailable,” so as to excuse Plaintiff’s failure
to utilize them, he still has not exhausted a cognizable 42 U.S.C.
§ 1983 claim.

It is clear from Plaintiff’s amended complaint

that this deliberate indifference action is primarily predicated
on events that occurred after he filed his September 2, 2015 and
September 3, 2015 grievances.
9-9-15,

after

numerous

Plaintiff complains that, “on about

requests,

complaints

and

grievances

pertaining to the harmful effects of [Defendant Thomas’] cut in
insulin, Defendant Thomas was directed by her supervisor to raise
Plaintiff’s insulin due to the severity of his blood sugar.” (Doc.
45 at 7).

However, complains Plaintiff, his insulin “was only

increased to 25 units” on that date.

Id.

As discussed above,

Plaintiff filed three grievances directed towards the insulin

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adjustment during the week prior to September 9, 2015—two of which
were filed before the implementation of the insulin reduction, and
one filed on the day the reduction was implemented.
Thomas

could

not

have

contemplated

a

deliberate

Defendant

indifference

action arising from Plaintiff’s September 2, 2015 and September 3,
2015

grievances

because

the

grievance

expressed

only

a

disagreement with her dosage recommendations.
Moreover, Plaintiff’s requests were not ignored. See Thomas
v. Town of Davie, 847 F.2d 771, 772-32 (11th Cir. 1988) (deliberate
indifference may be shown when a prison ignores without explanation
a prisoner’s serious medical condition).

Rather, the health care

providers at the Lee County Jail, including Defendant Thomas,
responded to Plaintiff’s demands for insulin adjustments, albeit
not in the manner he preferred.

Accordingly, Plaintiff merely

disagrees with the treatment he was provided.

The courts have

long recognized that an inmate’s disagreement with a health care
provider’s

choice

indifference

of

claim.

treatment
Estelle

does

v.

not

Gamble,

state
429

a

U.S.

deliberate
97

(1976)

(holding that “matter[s] of medical judgment” do not give rise to
a § 1983 claim; and upon reinstating a district Court’s dismissal
of a complaint which alleged that “more should have been done” to
diagnose and treat a back injury, the Court stated that “A medical
decision

not

to

order

an

X-ray,

or

like

measures,

does

not

represent cruel and unusual punishment. At most it is medical

- 16 -

malpractice”); Ledoux v. Davies, 961 F.2d 1536 (10th Cir. 1992)
(inmate’s claim he was denied medication was contradicted by his
own statement, and inmate’s belief that he needed additional
medication other than that prescribed by treating physician was
insufficient to establish constitutional violation);
Lucas, 537 F.2d 857, 860 n. 5 (6th

Westlake v.

Cir. 1976)(“Where a prisoner

has received some medical attention and the dispute is over the
adequacy of the treatment, federal courts are generally reluctant
to second guess medical judgments and to constitutionalize claims
which sound in state tort law”).
In addition to being subject to dismissal as unexhausted,
Plaintiff’s deliberate indifference claim is dismissed for failure
to state a claim on which relief can be granted.

28 U.S.C. §

1915(e)(2)(ii). 5
ACCORDINGLY, it is hereby
ORDERED:
1.

Defendant

Thomas’

motion

to

dismiss

for

exhaust administrative remedies (Doc. 53) is GRANTED.
deliberate

indifference

dismissed as unexhausted.

claim

against

Defendant

failure

to

Plaintiff’s
Thomas

is

Alternatively, the claim is dismissed

for failure to state a claim on which relief may be granted.

5

Under 28 U.S.C. § 1915(e)(2)(ii) a court is required to
dismiss a case filed in forma pauperis at any time if it is
determined that the action fails to state a claim on which relief
may be granted.

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2.

With no remaining claims or defendants, the Clerk of

Court is directed to terminate any pending motions, close this
case, and enter judgment in favor of the defendant.
DONE and ORDERED in Fort Myers, Florida on this
of July, 2017.

SA: OrlP-4
Copies: All Parties of Record

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27th

day