Bowden v. Frost et al

Filing 57

OPINION AND ORDER re: 53 MOTION to Dismiss Second Amended Complaint , 52 Amended Complaint. Defendants' Motion to Dismiss Second [sic] Amended Complaint (Doc. 53) is GRANTED. Bowden's Amended Complaint (Doc. 52) is DISMISSED without prejudice. The Clerk is DIRECTED to terminate any pending motions and deadlines, enter judgment, and close this case. Signed by Judge Sheri Polster Chappell on 2/6/2024. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHRISTOPHER J BOWDEN,
Plaintiff,
v.

Case No.: 2:22-cv-769-SPC-NPM

MOSES FROST, EUCLIDES
RAMOS, ALVIN CASSNER and
KATHLEEN LARSON,
Defendants.

/
OPINION AND ORDER

Before the Court are Defendants’ Motion to Dismiss Second [sic]
Amended

Complaint 1

(Doc.

53)

and

Plaintiff

Christopher

Bowden’s

handwritten response 2 (Doc. 56).
Background
Bowden is a prisoner of the Florida Department of Corrections (FDOC),
and he sues four FDOC officials under 42 U.S.C. § 1983. The Court recounts
the factual background as pled in Bowden’s Amended Complaint, which it
must take as true to decide whether the complaint states a plausible claim. See
Chandler v. Sec’y Fla. Dep’t of Transp., 695 F.3d 1194, 1198-99 (11th Cir. 2012).

Bowden has amended his complaint just once, so there is no second amended complaint in
this case.
2 The Court carefully reviewed Bowden’s response, but portions of it are illegible.
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On August 31, 2022, Captain Moses Frost looked into Bowden’s cell and
told Sergeant Alvin Cassner, “Search his cell. He’s got too much property.”
(Doc. 52 at 3). About ten minutes later, Officer Euclides Ramos appeared and
told Bowden to submit to hand restraints because he was being placed on
property restriction. Bowden was using the toilet at the time, so he did not
immediately comply. About 45 minutes later, Lieutenant Kathleen Larson
came to Bowden’s cell, and Bowden submitted to hand restraints so his cell
could be searched. Larson escorted Bowden to the showers while Ramos and
Cassner began removing items from Bowden’s cell. Larson said, “Bowden, I
don’t know what you and Frost got going on. All I know is I was told to come
down here.” (Id. at 3).
Cassner and Ramos destroyed some of Bowden’s property.

Bowden

demanded that Larson stop them, she ignored Bowden, and Bowden berated
her. Bowden then submitted to a strip search and a spit-hood before returning
to his cell.
Cassner and Ramos discovered no contraband in Bowden’s cell, and
Bowden did not receive a disciplinary report or other written notice of a rule
violation. But still, Bowden was placed on property restriction for the next 72
hours—he slept on the concrete floor and was not allowed hygiene items.
Bowden was also placed on management meal for seven days, and he claims
he was deprived of food during that period.
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Ramos returned Bowden’s

damaged and destroyed property on September 4, 2022. Bowden refused to
accept the property and requested that Ramos summon a supervisor to
photograph it. Ramos refused and left, and Bowden has not seen the property
since.
Bowden claims the property restriction and lack of adequate food was
cruel and unusual punishment under the Eighth Amendment, and that he
suffered sleeplessness, weight loss, emotional harm, anxiety, stress, and
humiliation as a result. Bowden asserts a due-process claim because the
defendants deprived him of property and food without first writing a
disciplinary report.

Bowden’s original complaint also included a First

Amendment retaliation claim, but he abandoned that claim in his Amended
Complaint.
Legal Standard
When considering a motion to dismiss under Rule 12(b)(6), courts must
accept all factual allegations in the complaint as true and view them in a light
most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The preferential standard of review, however, does not let all pleadings
adorned with facts survive to the next stage of litigation. The Supreme Court
has been clear on this point—a district court should dismiss a claim when a
party does not plead facts that make the claim facially plausible. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when
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a court can draw a reasonable inference, based on facts pled, that the opposing
party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678. This
plausibility standard requires “more than a sheer possibility that a defendant
has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557 (internal quotation
marks omitted)). And a plaintiff must allege more than labels and conclusions
amounting to a formulaic recitation of the elements of a cause of action.
Twombly, 550 U.S. at 555.
Bowden files his Complaint under 42 U.S.C. § 1983. To state a § 1983
claim, a plaintiff must allege that (1) the defendant deprived him of a right
secured under the Constitution or federal law, and (2) the deprivation occurred
under color of state law. Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.
2011) (citing Arrington v. Cobb Cty., 139 F.3d 865, 872 (11th Cir. 1998)). In
addition, a plaintiff must allege and establish an affirmative causal connection
between the defendant’s conduct and the constitutional deprivation. Marsh v.
Butler Cty., Ala., 268 F.3d 1014, 1059 (11th Cir. 2001).
Discussion
Defendants seek dismissal of Bowden’s Amended Complaint for failure
to exhaust administrative remedies and failure to state a claim. The Court
will first review the law and facts relevant to exhaustion. Then, the Court will
examine Bowden’s claims to determine whether they are exhausted and
sufficiently pled.
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A. The law governing exhaustion
Under the Prison Litigation Reform Act (PLRA), before a prisoner may
bring a claim challenging the conditions of his confinement, he must exhaust
available administrative remedies. 42 U.S.C. § 1997e.

The purpose of

administrative exhaustion “is to put the administrative authority on notice of
all issues in contention and to allow the authority an opportunity to investigate
those issues.”

Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004)

(cleaned up).

The PLRA requires “proper exhaustion,” which “demands

compliance with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S.
81, 90-91 (2006).
The Eleventh Circuit has established a two-step process for deciding a
motion to dismiss for failure to exhaust administrative remedies:
First, the court looks to the factual allegations in the defendant’s
motion to dismiss and those in the plaintiff’s response, and if they
conflict, takes the plaintiff’s version of the facts as true. If, in that
light, the defendant is entitled to have the complaint dismissed for
failure to exhaust administrative remedies, it must be dismissed…
If the complaint is not subject to dismissal at the first step, where
plaintiff’s allegations are assumed to be true, the court then
proceeds to make specific findings in order to resolve the disputed
factual issues related to exhaustion. The defendants bear the
burden of proving that the plaintiff has failed to exhaust his
available administrative remedies. Once the court makes findings
on the disputed issues of fact, it then decides whether under those
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findings the prisoner has exhausted his available administrative
remedies.
Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008).
The Florida legislature delegated the establishment of administrative
remedies for aggrieved inmates to the FDOC. Chandler, 379 F.3d at 1287. The
FDOC created a three-step grievance process. To exhaust it, a prisoner must
(1) file an informal grievance to the responsible staff member; (2) file a formal
grievance with the warden’s office; and (3) appeal the formal grievance to the
Secretary of the FDOC. Id. at 1288.
B. Bowden’s grievances
The relevant facts are not in dispute, but the parties interpret and
characterized them differently. Bowden submitted six informal grievances,
and five of them are attached as exhibits to his Amended Complaint. FDOC
officials returned all six grievances without processing. Defendants argue the
grievances did not comply with FDOC rules, while Bowden claims the reasons
given for the returns were pretextual. The key issue here is whether Bowden
took advantage of all available remedies—a remedy is not available if the
authority blocks access to it.
Bowden submitted grievances 510-2209-0047 and 510-2209-0048 on
September 2, 2022. A grievance officer returned them because they were
illegible. Bowden attached grievance ‘0047 as an exhibit to his Amended

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Complaint, and it is indeed illegible. Neither party presented grievance ‘0048
to the Court, but Bowden does not dispute that it is illegible. Bowden’s receipt
of the returned grievances was delayed by his transfer to another prison.
Bowden received the returned grievances and rewrote and resubmitted
them on September 26, 2022, and they were assigned numbers 119-220-0463
and 119-2209-0464. An official returned grievance ‘0463 because it included
multiple issues in violation of FDOC rules.

Bowden objects because the

response did not include instructions on how to correct the grievance, but the
Court finds the reason given for the return—“this grievance is being returned
for having multiple issues”—self-explanatory. (Doc. 52-1 at 3).
Grievance ‘0464 complained about the confiscation and loss of Bowden’s
property. It was returned “due to time frames.” (Doc. 52-1 at 5). Bowden takes
issue with this return because it was a resubmission of the timely but illegible
‘0048 grievance, and Bowden submitted it the same day he received the
returned ‘0048. Bowden has a point here. Informal grievances—including
refiled grievances—generally must be filed within 20 days of the incident
grieved. Fla. Admin. Code 33-103.011(1) and 33-103.014(2). But the rules also
state that extensions to the time periods “shall be granted” when filing within
the time period was not “feasible.” Fla. Admin. Code 33-103.011(2). It was not
feasible for Bowden to refile the grievance within 20 days of the incident

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because he did not know the initial grievances were returned until after the
deadline passed.
Bowden submitted grievances 119-2210-0241 and 119-2210-0285 on
October 18, 2022. Both grievances complained about the return of grievance
‘0464 as untimely because Bowden submitted it immediately after receiving
the returned grievance ‘0048. The grievance officer apparently accepted that
explanation. He returned grievance ‘0241 and instructed Bowden to submit
another grievance with a list of his missing property. Grievance ‘0285 was
returned because it was duplicative of grievance ‘0241. The officer’s response
to grievance ‘0241 implicitly granted Bowden an extension of time to grieve the
underlying issue (the loss of his property) and gave him instructions on how to
proceed. The grievance process thus remained available to Bowden, but he did
not file a supplemented grievance as instructed.
C. Conditions of confinement
To succeed on his Eighth Amendment conditions-of-confinement claim,
Bowden must establish an objective component and a subjective component.
Under the objective component, Bowden “must prove that the conditions are
sufficiently serious to violate the Eighth Amendment: that is, he must show
that ‘extreme’ conditions created an unreasonable risk—one that society
chooses not to tolerate—of serious damages to the detainee’s future health or
safety.” Ellis v. Pierce Cty., Ga., 415 F. App’x 215, 217 (11th Cir. 2011) (cleaned
8

up).

Under the subjective component, Bowden must show deliberate

indifference, which has three components: “(1) subjective knowledge of a risk
of serious harm; (2) disregard of that risk; (3) by conduct that is more than
mere negligence.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011)
(internal quotations and citation omitted). The defendant “must both be aware
of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Saunders v. Sheriff
of Brevard Cty., 735 F. App’x 559, 564 (11th Cir. 2018) (internal quotation and
citation omitted).
Bowden claims he was placed on property restriction for 72 hours and
management meals for seven days. While on property restriction, Bowden was
deprived of hygiene items and had to sleep on the floor.

He had trouble

sleeping due to insects, rats, and lack of warmth. Bowden also alleges he was
deprived of food for seven days while on management meal, “receiving only an
empty brown bag and a cup of whatever drink was served.” (Doc. 52 at 4).
1. Exhaustion
Bowden’s grievances mentioned that he was put on property restriction
and management meals, but only in relation to a due-process claim. Bowden
made no attempt to seek an administrative remedy for an Eighth Amendment
violation. The grievances did not describe the discomfort, lack of sleep, and
lack or food he now alleges. Seven days without food is a particularly egregious
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claim. It could certainly satisfy the Eighth Amendment’s “cruel and unusual”
standard, but Bowden did not report this claim to prison officials. The Court
finds it implausible Bowden would omit such an extreme deprivation from his
grievances. But even accepting the allegation as true, Bowden failed to give
FDOC officials a fair opportunity to investigate and address it. Bowden thus
failed to exhaust his Eighth Amendment claim.
2. Pleading sufficiency
Apart from the food deprivation, Bowden’s allegations would not support
an Eighth Amendment claim even if Bowden exhausted them. The Eleventh
Circuit has rejected Eighth Amendment claims based similar allegations. In
Turner v. Warden, GDCP, the court found that an inmate left in a strip cell for
ten days without clothing failed to establish an unreasonable risk of harm to
his health or safety. 650 F. App’x 695, 701 (11th Cir. 2016). Turner’s complaint
that he was cold was not enough because “a prisoner’s mere discomfort,
without more, does not offend the Eighth Amendment.” Id. (quoting Chandler
v. Crosby, 379 F.3d 1278, 1295 (11th Cir. 2004). Likewise, in O’Connor v.
Kelley, the Eleventh Circuit found no Eighth Amendment violation when an
inmate felt uncomfortably cold while in strip-cell status. 644 F. App’x 928, 932
(11th Cir. 2016).

As in Turner and O’Connor, Bowden’s discomfort and

difficulty sleeping while on property restriction is not an extreme deprivation
that created a risk of serious harm.
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Bowden also fails to plead any facts demonstrating deliberate
indifference. Bowden alleges that he “was placed” on property restriction and
management meals; he does not allege that any defendant participated in
those decisions. Nor does Bowden allege he reported his discomfort and trouble
sleeping to any defendant, or that any defendant was responsible for or aware
of the deprivation of food.

Subjective knowledge of a risk of harm is an

essential element of deliberate indifference. Bowden’s failure to allege facts
showing that any Defendant knew of the alleged deprivations is another fatal
deficiency of this claim.
D. Due process
Bowden next claims Defendants’ failure to prepare a disciplinary report
before taking his property and imposing property restriction and management
meals violated his right to procedural due process. The Due Process Clause of
the Fourteenth Amendment prohibits a State from depriving “any person of
life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. “A procedural due process claim consists of two elements: (I) deprivation
by state action of a protected interest in life, liberty, or property, and (II)
inadequate state process.” Reed v. Goertz, 598 U.S. 230, 236 (2023).
A valid conviction constitutionally deprives a prisoner of his liberty and
subjects him to the rules of the prison system. Meachum v. Fano, 427 U.S. 215,
224 (1976). Those rules can create liberty interests protected by the Due
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Process Clause, but those interests are generally limited to freedom from
restraint that “imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S.
472, 483-84 (1995). “Discipline by prison officials in response to a wide range
of misconduct falls within the expected perimeters of the sentence imposed by
a court of law.” Id.
1. Exhaustion
Bowden complained about a lack of procedural due process in grievance
‘0463, but that grievance was returned because it included multiple issues.
Bowden filed subsequent grievances, but they were about confiscation of
Bowden’s property, not due process. Bowden thus abandoned his due-process
claim during the grievance process. This claim is unexhausted.
2. Pleading sufficiency
Even if Bowden had exhausted this claim, the Amended Complaint does
not allege facts sufficient to support it. Bowden argues he had a protected
liberty interest in access to clothing, bedding, and personal property because
Fla. Admin. Code 33-601.800(10)(a)-(c) states that inmates in close
management “shall” be provided each. But those rules give prison officials
discretion to remove the items from an inmate’s cell to prevent the inmate from
harming himself or others or destroying property.

What is more, the

deprivation of access to property for 72 hours and seven days of management
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meals do not constitute an “atypical and significant hardship on the inmate in
relation to ordinary incidents of prison life.” Sandin, 515 U.S. 484 (holding
that 30 days of administrative confinement was not an atypical and significant
hardship).
Because Bowden does not allege he was deprived of a protected liberty
interest, he failed to state a due process claim.

Bowden’s claims that

Defendants violated certain administrative rules by failing to prepare required
forms are not cognizable. § 1983 claims must be based on violations of federal
law—violations of state laws and regulations are not actionable.
E. Conclusion
Bowden’s failure to exhaust the administrative remedies available to
him is fatal to his claims.

And even if Bowden had exhausted those

administrative remedies, he did not state a claim under either the Eighth or
Fourteenth Amendments. The Court will thus dismiss this action without
prejudice. The Court will close this case because Bowden already amended his
complaint once, and because an amendment could not cure Bowden’s failure to
exhaust administrative remedies.
Accordingly, it is now
ORDERED:
Defendants’ Motion to Dismiss Second [sic] Amended Complaint (Doc.
53) is GRANTED. Bowden’s Amended Complaint (Doc. 52) is DISMISSED
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without prejudice. The Clerk is DIRECTED to terminate any pending
motions and deadlines, enter judgment, and close this case.
DONE and ORDERED in Fort Myers, Florida on February 6, 2024.

SA: FTMP-1
Copies: All Parties of Record

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