Daniels v. Reddish et al
Filing
52
ORDER granting in part and denying in part 20 Motion to Dismiss; granting in part and denying in part 21 Defendant Reddish's Motion to Quash and Dismiss Plaintiff's Amended Complaint; dismissing Defendants Barry Reddish and Mark Taylor; denying without prejudice Plaintiff's request for leave to amend the operative complaint. Signed by Judge Marcia Morales Howard on 9/12/2016. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RONNIE DANIELS,
Plaintiff,
v.
Case No. 3:15-cv-719-J-34MCR
BARRY REDDISH,
et al.,
Defendants.
ORDER
I. Status
This matter is before the Court on Defendants Taylor, McCloud,
Clark, Bennett, Groves, and Eunice’s Motion to Dismiss Plaintiff’s
Amended Complaint (Defendants’ Motion; Doc. 20) and Defendant Barry
Reddish’s Motion to Quash Service and Dismiss Plaintiff’s Amended
Complaint (Reddish’s Motion; Doc. 21). Plaintiff filed his response
in opposition to the Motions on December 28, 2015. See Plaintiff’s
Combined Response in Opposition to Defendants’ Motions to Dismiss
the Amended Complaint (Response; Doc. 27); Notice of Filing Medical
Records (Doc. 34). Defendants’ Motion and Reddish’s Motion are ripe
for review.
II. Amended Complaint for Damages1
In the Amended Complaint for Damages (Amended Complaint; Doc.
18), Plaintiff Ronnie Daniels names the following individuals as
1
The Court’s recitation of the facts will focus on only those
assertions that are relevant to the exhaustion issue.
Defendants: (1) Barry Reddish, the Warden of Union Correctional
Institution (UCI);
(2) Mark Taylor, a corrections trainee at UCI;
(3) Sergeant Herbert McCloud; (4) Lieutenant Casey Clark; (5)
Sergeant
William
Bennett;
(6)
Jay
Groves,
a
UCI
corrections
officer; (7) Douglas Eunice, a UCI corrections officer; and (8)
Nurse Jane Doe. Daniels asserts that the Defendants violated his
federal constitutional rights under 42 U.S.C. § 1983. Specifically,
he contends that the Defendants violated his Eighth Amendment right
to be free from cruel and unusual punishment when: Taylor, McCloud,
Clark, Bennett, Groves, and Eunice assaulted him on February 6,
2012, and failed to intervene to protect him while other officers
abused him that day (count one); Clark, McCloud, and Bennett, as
supervisors, participated in the alleged physical abuse that day,
and failed to intervene and report the violations (count two);
Nurse Jane Doe failed to “treat” Daniels’ medical needs and
injuries after the alleged assault (count four), see Amended
Complaint at 15, ¶ 133; and Warden Reddish was deliberately
indifferent to a known “serious risk of harm to [Daniels]” (count
five), see id. at 16-17. Daniels also asserts that Defendants
Taylor, McCloud, Clark, Bennett, Groves, and Eunice conspired to
violate his federal constitutional rights when they: agreed not to
report
the
alleged
assault;
coordinated
“false
stories
on
a
fictitious assault on an officer by [Daniels],” (count three), id.
at 14, ¶ 128; submitted erroneous written reports, in which they
2
coordinated
inaccurate
details;
and
wrote,
corroborated
or
permitted a false disciplinary report so that Daniels would be
punished in order for their flawed reports to seem credible.
III. Summary of the Arguments
In Defendants’ Motion, Defendants Taylor, McCloud, Clark,
Bennett, Groves, and Eunice assert that dismissal of the Amended
Complaint is warranted because Daniels failed to timely serve
Defendants McCloud, Groves, and Eunice, and further failed to
exhaust his administrative remedies. With regard to service of
process, Defendants McCloud, Groves, and Eunice assert that Rule
4(m) of the Federal Rules of Civil Procedure required that Daniels
serve them within 120 days after the filing of the Complaint for
Damages (Complaint; Doc. 1). Because Daniels filed the Complaint on
June 15, 2015, Defendants assert he was required to effect service
of process no later than October 13, 2015.2 They state that Daniels
did not perfect service of process upon them until: October 20,
2015, for Defendants Eunice and Groves, and October 21, 2015, for
Defendant McCloud. Therefore, Defendants McCloud, Groves, and
Eunice argue that they should be dismissed from the lawsuit for
Daniels’ failure to timely perfect service upon them.
2
Plaintiff, through counsel, filed the Complaint on June 15,
2015. At that time, the allowable time for serving a defendant was
120 days. The rule was amended in 2015, and reduced the time from
120 days to 90 days. See Fed. R. Civ. P. 4(m).
3
As to the issue of exhaustion, Defendants assert that Daniels'
claims against them should be dismissed without prejudice because
Daniels failed to exhaust his administrative remedies, as required
by the Prison Litigation Reform Act (PLRA), before filing the 42
U.S.C. § 1983 lawsuit. In support of their Motion, Defendants
submitted Daniels’ April 30, 2012 grievance. See Def. Ex. A,
Request for Administrative Remedy or Appeal, dated April 30, 2012.
Defendants maintain that an “untimely, improper, and incomplete
grievance,” such as the grievance filed by Daniels on April 30,
2012, does not satisfy the exhaustion requirements of the PLRA.
Defendants’ Motion at 2. In particular, Defendants assert that
Daniels’ grievance was untimely submitted to the Office of the
Secretary because it was dated April 30, 2012 (83 days after the
abuse allegedly occurred), and the Office of the Secretary did not
receive it until May 4, 2012 (87 days after the abuse allegedly
occurred). See id. at 7. Additionally, Defendants contend that
Daniels failed to identify specific acts of wrongdoing in his
grievance that form the basis of his § 1983 claims as to: (a)
Defendant Taylor in count one; (b) Defendants McCloud, Clark, and
Bennett - claims in count two relating to them supervising the
alleged abuse or failing to stop or report the alleged abuse; and
(c) Defendants Taylor, McCloud, Clark, Bennett, Groves, and Eunice
- conspiracy claim in count three.
4
In
Reddish’s
Motion,
Defendant
Reddish
makes
similar
assertions. He seeks dismissal, arguing that Daniels failed to
timely serve him with process, and failed to exhaust available
administrative remedies. With regard to service, he asserts that
Daniels did not perfect service of process upon him until October
15, 2015, and maintains that Daniels has not demonstrated good
cause for the delay. Next, with regard to exhaustion, Reddish
states that Daniels did not grieve the issues underlying his claims
against Reddish.
In response to Defendants’ Motions, Daniels asserts that the
Court resolved the issue relating to untimely service on December
9, 2015, the same day that the Defendants filed their Motions. See
Response at 1, ¶ 3. As to exhaustion, Daniels opposes the Motions
and asserts that: (1) he pled compliance with the exhaustion
requirements of the PLRA, see id. at § 5; (2) the reviewing
authority of the Florida Department of Corrections (FDOC) chose to
treat Daniels’ late grievance as timely filed and did not return
the grievance, but instead forwarded it to the Office of the
Inspector General, and formally denied relief for the stated reason
that an investigation into the matter had already been initiated
prior to the filing of the grievance, see id. at 4; (3) Daniels’
grievance contained sufficient facts to alert the prison about the
incident; see id. at 6-7; (4) Daniels “did not elaborate his
medical complaint in the direct grievance” because a grievance of
5
a medical nature must be filed at the institutional level, and he
“reasonably anticipated a threatened reprisal for filing that
grievance at the institutional level and could not do so,” and
therefore
the
grievance
process
was
“unavailable
as
to
that
matter,” see id. at 8; and (5) it is improper for the Court to
grant the Rule 12(b)(6) Motions and dismiss the case, see id. at 912, because “Defendants are far from having discharged their burden
of proof as to exhaustion of administrative remedies” and Plaintiff
can amend his Amended Complaint, if necessary to maintain the
action, see id. at 12. Daniels also opposes Reddish’s Motion and
asserts that the Court should not find Daniels to be “noncompliant”
with the PLRA exhaustion requirement merely because he failed to
name Warden Reddish in the grievance. See id. at 8-9. Accordingly,
Daniels requests that the Court deny Defendants and Reddish’s
Motions, or in the alternative, permit him leave to amend the
operative complaint “so far as necessary to maintain his action.”
Id. at 12.
IV. Service of Process
The Court extended the time for service to October 21, 2015,
as to all of the Defendants. See Endorsed Order (Doc. 22), filed
December 9, 2015; Endorsed Order (Doc. 24), filed December 16,
2015. Therefore, Defendants’ Motion and Reddish’s Motion with
respect to any asserted untimely service upon the Defendants is due
to be denied.
6
V. Exhaustion of Administrative Remedies
Exhaustion of available administrative remedies is required
before a 42 U.S.C. § 1983 action with respect to prison conditions
may be initiated in this Court by a prisoner. See 42 U.S.C. §
1997e(a). Nevertheless, a prisoner such as Daniels is not required
to plead exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007).
Instead, the United States Supreme Court has recognized “failure to
exhaust is an affirmative defense under the PLRA[.]” Id. Notably,
exhaustion of available administrative remedies is “a precondition
to an adjudication on the merits” and is mandatory under the PLRA.
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008); Jones, 549
U.S. at 211; 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). Not only is there an 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,[3] 286 F.3d, at
1024. . . .
3
Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).
7
Id. at 90. And, “[p]roper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules . . . .” Id.
As such, the United States Supreme Court recently emphasized:
Courts may not engraft an unwritten
“special circumstances” exception onto the
PLRA’s exhaustion requirement. The only limit
to § 1997e(a)’s mandate is the one baked into
its text: An inmate need exhaust only such
administrative remedies as are “available.”
Ross v. Blake, 136 S.Ct. 1850, 1862 (2016).
The determination of whether an inmate exhausted his available
administrative remedies prior to filing a cause of action in
federal court is a matter of abatement and should be raised in a
motion to dismiss. Bryant, 530 F.3d at 1374. The Eleventh Circuit
has explained the two-step process that the Court must employ when
examining the issue of exhaustion of administrative remedies.
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. See
Turner, 541 F.3d at 1081.[4] 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
4
Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
8
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; see also id. at 1082
(explaining that defendants bear the burden of
showing a failure to exhaust).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th
Cir. 2015).
The FDOC provides an internal grievance procedure for its
inmates. See FLA. ADMIN. CODE r. 33-103.001 through 33-103.018.
Generally, to properly exhaust administrative remedies, a prisoner
must complete a three-step process. First, an inmate must submit an
informal
grievance
to
a
designated
staff
member
at
the
institutional level. See FLA. ADMIN. CODE r. 33-103.005. If the
issue is not resolved, the inmate must submit a formal grievance at
the institutional level. See FLA. ADMIN. CODE r. 33-103.006. If the
matter is not resolved at the institutional level, the inmate must
file an appeal to the Office of the Secretary of the FDOC. See FLA.
ADMIN. CODE r. 33-103.007.
However, under specified circumstances, an inmate can bypass
the informal-grievance stage and start with a formal grievance at
the institutional level. See FLA. ADMIN. CODE r. 33-103.005(1); 33103.006(3). Or, an inmate can completely bypass the institutional
level and proceed directly to the Office of the Secretary of the
FDOC by filing a “direct grievance.” See FLA. ADMIN. CODE r.
33-103.007(6). Emergency grievances and grievances of reprisal are
types of “direct grievances” that may be filed with the Office of
9
the Secretary. FLA. ADMIN. CODE r. 33-103.007(6). In a direct
grievance to the Secretary, the inmate “must clearly state the
reason for not initially bringing the complaint to the attention of
institutional
staff
and
by-passing
the
informal
and
formal
grievance steps of the institution or facility . . . .” FLA. ADMIN.
CODE r. 33-103.007(6)(a)2. If the Secretary determines that the
grievance does not qualify as one of the types of direct grievances
described in the rule, the grievance must be returned to the
inmate, stating the reasons for its return and advising the inmate
to resubmit the grievance at the appropriate level. See FLA. ADMIN.
CODE r. 33-103.007(6)(d). If the grievance is returned to the
institution or facility for further investigation or a response,
the inmate may, after receiving the response, re-file with the
Secretary if he is not satisfied with the response. See FLA. ADMIN.
CODE r. 33-103.007(7).
Florida Administrative Code Rule 33-103.011 provides time
frames for submission of grievances. Direct grievances to the
Office of the Secretary “[m]ust be received within 15 calendar days
from the date on which the incident or action which is the subject
of the grievance occurred.” FLA. ADMIN. CODE r. 33-103.011(1)(d).
According
to
Rule
33-103.014,
an
informal
grievance,
formal
grievance, direct grievance, or grievance appeal “may be returned
to the inmate without further processing if, following a review of
the grievance, one or more ... conditions are found to exist.” FLA.
10
ADMIN. CODE r. 33-103.014(1). The rule provides an enumerated list
as “the only reasons for returning a grievance without a response
on the merits.” See FLA. ADMIN. CODE r. 33-103.014(1)(a)-(x). Some
of the reasons for returning a grievance are as follows: the
grievance “addresses more than one issue or complaint” or “is so
broad, general or vague in nature that it cannot be clearly
investigated, evaluated, and responded to” or “is not written
legibly and cannot be clearly understood”; the inmate “did not
provide a valid reason for by-passing the previous levels of review
as required or the reason provided is not acceptable”; or the
“direct grievance to the Office of the Secretary was not received
within 15 calendar days of the date that the incident or action
being grieved occurred.” See FLA. ADMIN. CODE r. 33-103.014(1)(a),
(b), (c), (f), (h).
In the Amended Complaint, Daniels asserts that the Defendants
physically
abused
him
on
February
6,
2012,
while
he
was
incarcerated at UCI. Also, he avers that he “fully exhausted” his
claims through completion of the administrative grievance process,
see Amended Complaint at 1, ¶ 4; 11, ¶ 110, and in doing so, he
“managed
to
secure
the
relief
that
he
requested
-
that
the
Department investigate the assault on him[,]” see id. at 11, ¶ 110.
Nevertheless, Defendants maintain that the Court should dismiss the
claims
against
them
because
Daniels
failed
to
exhaust
his
administrative remedies, as required by the PLRA, before filing the
11
42 U.S.C. § 1983 lawsuit. In support of their argument, Defendants
submitted
Daniels’
April
30,
2012
direct
grievance,
titled
grievance of a sensitive nature: staff abuse.5 See Def. Ex. A.
First, Defendants assert that Daniels’ grievance was untimely
submitted to the Office of the Secretary because it was dated April
30, 2012, and the Office of the Secretary did not receive it until
May 4, 2012, which was more than fifteen days after the alleged
abuse on February 6, 2012.6 See Defendants’ Motion at 7.
In
the
grievance,
Daniels
described
events
“following
a
confrontation with a trainee.”
This should be construed as a grievance
of a sensetive [sic] nature: Staff Abuse.
On 2/6/12 at Union C.I., S.W.U. I was
being escorted by a Lt. and 3 brown shirt
C.O.’s
to
confinement
following
a
confrontation with a trainee. We were met at
gate one by the Admin. Lt.[7] The Admin. Lt.
took a hold on my cuffed hands which were
behind me and said “I’ll teach you about
5
The parties agree that Florida Administrative Code Rule 33103.007(6) permits the filing of emergency grievances and
grievances of reprisal, known in the FDOC as “grievances of a
sensitive nature.” See Response at 3; Defendants’ Motion at 7-8.
6
Florida Administrative Code Rule 33-103.011, titled “Time
frames for Inmate Grievances,” provides: “When determining the time
frames for grievances in all cases, the specified time frame shall
commence on the day following the date of the incident or response
to the grievance at the previous level. For example, if an incident
occurred on December 1, fifteen days from that date would be
December 16.”
7
Daniels avers that the Administrative Lieutenant that he
refers to in the grievance is Defendant Clark. See Response at 6;
Amended Complaint at 4, ¶ 37.
12
hitting one of my Officers,” and levered my
cuffed hands until I was forced to bend
fo[r]ward whereupon he brought his knee up
into my left rib-cage. The other Lt. and the 3
Sgt’s [8] began to hit me. In the next 80 yards
the Admin. Lt. kneed me 10 times and the other
4 C.O.’s [9]hit me countless times.
Fortunately, there were two ambulances at
the ICU and I was taken to Shands of
Gain[e]sville D.O.A., where I was revived,
stabilized and moved to Jax. Memorial. I
suffered several broken ribs, both my lungs
collapsed, and I was torn, bru[i]sed and
battered from head to toe. My next of kin was
called by the hospital[’]s social worker and
told that I was not expected to live.
In
1988
F.D.O.C.
signed
an
ICC
[(Interstate Compact)] contract stating that
the Dept. would protect me from physical harm,
yet on 2/6/12 it was C.O.’s that very nearly
killed me. The only thing that will stop me
from accepting my brother’s offer to hire an
attorney to sue F.D.O.C.’s Secretary and
U.C.I.’s Warden is a transfer back to Ky.
where I will be safe. Because of what happened
at U.C.I. my life is in danger every minute I
am in F.D.O.C.
Also, at Jax. Memorial[,] I was in a coma
for over 4 weeks.
Def. Ex. A. On May 16, 2012, the FDOC responded to Daniels’
grievance, stating in pertinent part:
Your appeal has been reviewed and evaluated.
The subject of your grievance is currently
8
Daniels asserts that two of the sergeants that he references
in the grievance are Defendants McCloud and Bennett. See Response
at 6; Amended Complaint at 5, ¶¶ 45, 46.
9
Daniels states that two of the corrections officers that he
refers to in the grievance are Defendants Groves and Eunice. See
Response at 6; Amended Complaint at 5, ¶¶ 45, 46.
13
being reviewed by the investigative section of
the Office of the Inspector General. A copy of
your complaint will be forwarded to that
section to be included as a part of the
current review. Upon completion of this
review, information will be provided to
appropriate
administrators
for
final
determination and handling.
Any further correspondence regarding this
issue should be directed to the Inspector
General’s Office.
As this process was initiated prior to the
receipt of your grievance, your request for
action by this office is denied.
Defendants’ Ex. A, Part B - Response, dated May 16, 2012.
In his Response to Defendants' motions, Daniels explains that
“the Reviewing Authority exercised its discretion to accept and
process Plaintiff’s grievance instead of returning it without
action.” Response at 4 n.1. This Court agrees. Daniels explained in
the grievance that he had been hospitalized for four weeks as a
result of injuries sustained in the confrontations and that he had
ongoing concerns about retaliation by corrections officials. See
Def. Ex. A. The FDOC “reviewed and evaluated” the grievance, and
ultimately denied it because the investigative section of the
Office of the Inspector General was in the process of reviewing the
“subject” presented in Daniels’ grievance. See id. Thus, the FDOC
chose to process the grievance and not return it to Daniels as
untimely filed. As such, the FDOC forwarded it to the Office of the
Inspector General as a supplement to the investigation. Indeed, as
Daniels notes, the FDOC ultimately granted the relief he requested
14
in that he was returned to Kentucky under the Interstate Compact.
See Response at 4. Given these circumstances, this Court concludes
that
Defendants’
requests
to
dismiss
the
case
based
on
the
untimeliness of Daniels’ grievance are due to be denied.
Defendants also assert that Daniels failed to identify in his
grievance the specific acts of wrongdoing that form the basis of
his § 1983 claims as to: (1) Defendant Taylor in count one; (2)
Defendants McCloud, Clark, and Bennett in count two; and (3)
Defendants Taylor, McCloud, Clark, Bennett, Groves, and Eunice in
count three. Also, Defendant Reddish asserts that Daniels did not
file any grievances regarding his claims against Reddish. As to
this issue, the United States Supreme Court has stated: “The level
of detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to claim, but
it is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.” Jones, 549 U.S. at 218. The FDOC
rules provide that the inmate must include accurately stated facts,
and the grievance will be returned if it is “so broad, general or
vague in nature that it cannot be clearly investigated, evaluated,
and
responded
to.”
FLA.
ADMIN.
CODE
r.
33-103.007(2)(e);
33-103.014(1)(a).
In the Amended Complaint, Daniels asserts that Defendant
Taylor, a corrections trainee, assaulted him on February 6, 2012,
at UCI. See Amended Complaint at 3-4, ¶¶ 19-36. Daniels describes
15
the assault: “Suddenly, Taylor grabbed Daniels by his head and
pulled him 10-15 feet and rammed his head into the wall outside the
shower room.” See id. at 4, ¶ 30. In the grievance, Daniels stated
that he had “a confrontation with a trainee” prior to being
escorted to confinement. See Def. Ex. A. Although he referenced “a
confrontation with a trainee” (not yet identified as Defendant
Taylor), Daniels did not state that the “trainee” struck or injured
him. Indeed, he provided no information whatsoever about the
"confrontation" or the trainee's actions. Instead, he focused on
what transpired after the confrontation. Under these circumstances,
Daniels failed to provide enough factual detail in his grievance to
enable the FDOC to conduct a thorough investigation of the alleged
acts of wrongdoing that he is asserting in the operative complaint
against Defendant Taylor (i.e., grabbing Daniels’s head and pulling
him 10-15 feet and ramming his head into the wall). Additionally,
Daniels failed to provide in the grievance as much relevant
information as he reasonably could have provided. See Brown v.
Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (“[W]hile § 1997e(a)
requires that a prisoner provide as much relevant information as he
reasonably can in the administrative grievance process, it does not
require that he do more than that.”). The Court finds that Daniels
failed to provide any relevant information as to Taylor when it was
reasonably available to him. Therefore, despite Daniels' allegation
that he exhausted his administrative remedies as to Taylor, the
16
Court determines that in fact he did not do so. Defendant Taylor’s
request for his dismissal under count one is due to be granted.10
Next, Defendants McCloud, Clark, and Bennett assert that
Daniels failed to properly exhaust certain claims (supervising the
alleged abuse, failing to stop the alleged abuse, and failing to
report the alleged abuse) under count two, and therefore seek
dismissal of those claims against them. See Motion at 13. In the
grievance, Daniels refers to an Administrative Lieutenant and three
sergeants, see Def. Ex. A; he later identified the Administrative
Lieutenant as Clark and two of the sergeants as McCloud and
Bennett, see Amended Complaint at 13-14; see also Response at 6.
The Eleventh Circuit has instructed that the failure to identify a
particular defendant in a grievance is not fatal. Brown, 212 F.3d
at 1208 (stating "a prisoner cannot provide that which he does not
have; he cannot identify those whose identities are unknown to
him"). Because Daniels' grievance provided sufficient "relevant
information" relating to Defendants McCloud, Clark and Bennett for
prison officials to identify the persons involved and investigate
the incident, Defendants’ request for the dismissal of the abovedescribed claims under count two is due to be denied.11
10
The Court will dismiss Defendant Taylor from the action
because Daniels failed to sufficiently exhaust claims against him
under counts one and three.
11
Notably, Daniels’ grievance includes sufficient facts
pertaining to their alleged participation in what the Court refers
to as the second alleged assault that day. Daniels describes three
17
Defendants Taylor, McCloud, Clark, Bennett, Groves, and Eunice
assert that Daniels failed to properly exhaust his conspiracy claim
under count three,12 and therefore seek dismissal of those claims.
The Court finds that Daniels’ grievance was insufficient to exhaust
his administrative remedies with respect to his conspiracy claim
against the Defendants because he neither included any facts
relating to a conspiracy nor an agreement among the Defendants to
violate his rights nor identified any wrongdoing that could form
the basis for a conspiracy. Therefore, Defendants’ request for the
dismissal of the conspiracy claims under count three is due to be
granted.
Defendant Reddish asserts that Daniels failed to properly
exhaust his claims under count five, and therefore seeks his
dismissal from the instant action. In the Amended Complaint,
Daniels asserts that Defendant Reddish, as the UCI Warden, was
deliberately indifferent to a known serious risk of harm to
Daniels. See Amended Complaint at 16-17. The Court finds that
alleged assaults: Taylor assaulted him outside the shower room, see
Amended Complaint at 4, ¶ 30; Clark, McCloud, Bennett, Groves, and
Eunice assaulted him during an escort to confinement, see id. at 56, which is the subject of his grievance; and Clark, McCloud,
Bennett, Groves, and Eunice beat him in the infirmary, see id. at
6,¶ 59.
12
Daniels asserts that Defendants Taylor, McCloud, Clark,
Bennett, Groves, and Eunice conspired to violate his federal
constitutional rights when they: agreed not to report the alleged
assault; coordinated false stories; submitted erroneous written
reports with inaccurate details; and wrote a false disciplinary
report. See Amended Complaint at 14-15.
18
Daniels’ grievance was insufficient to exhaust his administrative
remedies with respect to his claim against Defendant Reddish. In
the grievance, Daniels neither included any facts relating to the
Warden’s knowledge of risk to him nor any suggestion that he
participated in or supervised any wrongdoing that could form the
basis for a claim against him. Indeed, the grievance contains no
indication of wrongdoing by Warden Reddish. Therefore, Defendant
Reddish’s request for the dismissal of claims against him under
count five is due to be granted, and the Court will dismiss
Defendant Reddish from the instant action.
To the extent that Daniels, who is represented by counsel,
seeks leave to amend the operative complaint as an alternative to
a possible dismissal, see Response at 2-3, 12, the Court will deny
the request without prejudice. Preliminarily, the Court notes that
a request for affirmative relief, such as a request for leave to
amend a pleading, is not properly made when simply included in a
response to a motion. See Fed. R. Civ. P. 7(b)(1); see also
Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) ("Where a
request for leave to file an amended complaint simply is imbedded
within an opposition memorandum, the issue has not been raised
properly.") (quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222
(11th Cir. 1999)). Additionally, Daniels has failed to comply with
Rule 3.01(g), Local Rules, United States District Court, Middle
District of Florida.
19
Moreover, even if it were proper to include a request for
leave to amend in the Response, the request is otherwise due to be
denied based upon Daniels' failure to satisfy the requirement that
"[a]
motion
for
leave
to
amend
should
either
set
forth
the
substance of the proposed amendment or attach a copy of the
proposed amendment." Long v. Satz, 181 F.3d 1275, 1279 (11th Cir.
1999); see also McGinley v. Fla. Dep't of Highway Safety and Motor
Vehicles, 438 F. App'x 754, 757 (11th Cir. 2011) (affirming denial
of leave to amend where plaintiff did not set forth the substance
of the proposed amendment); United States ex. rel. Atkins v.
McInteer, 470 F.3d 1350, 1361-62 (11th Cir. 2006) (same). Thus, to
the extent Daniels' request in the Response is a request to amend
the operative complaint, the Court will not entertain Daniels'
request for relief included in the Response.
Therefore, it is now
ORDERED:
1.
Defendants Taylor, McCloud, Clark, Bennett, Groves, and
Eunice’s Motion to Dismiss Plaintiff’s Amended Complaint (Doc. 20)
is PARTIALLY GRANTED for Plaintiff’s failure to properly exhaust
the
prison’s
administrative
remedies
relating
to
his
claims
involving: (a) Defendant Taylor in count one, and (b) Taylor,
McCloud, Clark, Bennett, Groves, and Eunice in count three (the
conspiracy claims). The Motion is DENIED as to Daniels' claims
(supervising the alleged abuse, failing to stop the alleged abuse,
20
and failing to report the alleged abuse) in count two against
Defendants McCloud, Clark, and Bennett.
2. Defendant Barry Reddish’s Motion to Quash Service and
Dismiss
Plaintiff’s
Amended
Complaint
(Doc.
21)
is
PARTIALLY
GRANTED only to the extent that the Court will dismiss Defendant
Reddish for Plaintiff’s failure to exhaust his administrative
remedies as to claims against Reddish.
3.
Defendants’ requests to dismiss (Docs. 20, 21) based on
their assertions that Daniels failed to timely serve them and
failed to submit a timely grievance are DENIED.
4.
Defendants Barry Reddish and Mark Taylor are DISMISSED
without prejudice from this action. Judgment to that effect will be
withheld pending adjudication of the action as a whole. See Fed. R.
Civ. P. 54.
5.
To the extent that Plaintiff seeks leave to amend the
operative complaint, the request is DENIED without prejudice.
DONE AND ORDERED at Jacksonville, Florida, this 12th day of
September, 2016.
sc 9/9
c:
Counsel of Record
21
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