O'Quinn v. Anderson et al

Filing 64

ORDER granting Defendants Anderson, Grimes, Ford, McNeil, Morris, Mallard, Sikcier, and Swift's 42 56 Motions to dismiss for failure to exhaust administrative remedies; granting Defendants Anderson, Grimes, McNeil, Morris, Mallard, Sikci er, and Swift's 42 56 Motions to Dismiss for Failure to State a Claim; dismissing Defendants Anderson, Grimes, Ford, McNeil, Morris, Mallard, Sikcier, and Swift; Defendant Sykes shall respond to the Amended Complaint by September 25, 2017.. Signed by Judge Brian J. Davis on 9/14/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JOSEPH O'QUINN,
Plaintiff,
vs.
Case No. 3:16-cv-1478-J-39PDB
LIEUTENANT SYKES et al.,
Defendants.
ORDER
I.

Status

Plaintiff is an inmate confined in the Florida penal system.
He is proceeding pro se on an Amended Civil Rights Complaint
(Amended Complaint) (Doc. 37) pursuant to 42 U.S.C. § 1983.

He

filed his original Complaint (Doc. 1) on June 30, 2016, pursuant to
the mailbox rule.

This cause is before the Court on Defendants'

Motion to Dismiss [Anderson, Grimes, Ford, McNeil, Morris, and
Sykes] (Motion One) (Doc. 42)1 and Defendants' Motion to Dismiss
[Mallard, Sikcier, and Swift] (Motion Two) (Doc. 56).2
responded.

Plaintiff

See Order (Doc. 40); Plaintiff's Objection to the

Defendants'

Motion

to

Plaintiff's

Objection

Dismiss
to

the

(Response

Defendants'

One)
Motion

(Doc.
to

49),

Dismiss

1

Defendants also filed a Notice (Doc. 62), with the grievance
appeal and appeal log that were inadvertently not provided with
Motion One and the Declaration of Lawanda Sanders.
2

In this opinion, the Court references the document and page
numbers designated by the electronic filing system.

(Response

Two)

(Doc.

61),

and

Plaintiff's

Objection

to

the

Defendants' Motion to Dismiss (Response Three) (Doc. 63).
II.

Motion to Dismiss

"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'"

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

"A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

the

misconduct alleged."

Id. (citing Twombly, 550 U.S. at 556).

"[T]he

court

tenet

that

a

must

accept

as

true

all

of

the

allegations contained in a complaint is inapplicable to legal
conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice."
Id. (citing Twombly, 550 U.S. at 555).
Defendants

contend

that

Plaintiff

failed

to

exhaust

his

administrative remedies prior to filing suit, and they ask that his
Amended Complaint be dismissed with respect to all Defendants,
except Defendant Sykes.

Motion One at 2 and Motion Two at 2.

Defendants also assert that Plaintiff has failed to state a claim
of failure to protect, or any other claim, that is plausible on its
face.

Motion One at 7-10; Motion Two at 7-11.

2

The Court will

first address the exhaustion matter, and then address the issue of
whether Plaintiff failed to state a claim.
III.

Exhaustion of Administrative Remedies

Defendants move to dismiss the Amended Complaint pursuant to
42 U.S.C. § 1997e(a) with respect to all of the Defendants, except
Defendant Sykes.

Defendants assert that Plaintiff failed to

properly avail himself of the grievance process with regard to his
claims. See the Declaration of Joy Proudman and the Declaration of
Lawanda Sanders and attachments

(Docs. 42-1, 42-2, 62-1, and 62-

2).
The Prison Litigation Reform Act (PLRA) requires exhaustion of
available administrative remedies before a 42 U.S.C. § 1983 action
with respect to prison conditions by a prisoner may be initiated in
this Court.

Title 42 U.S.C. § 1997e(a) provides: "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."
In this instance, Defendants bear the burden of proving a
failure to exhaust available administrative remedies.

Turner v.

Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008), relying on Jones
v.

Bock,

549

U.S.

199

(2007).

Guidelines

are

provided

for

reviewing a prisoner civil rights action for exhaustion compliance:
Before
a
prisoner
may
prison-conditions suit under §
3

bring
a
1983, the

Prison Litigation Reform Act of 1995 requires
that he exhaust all available administrative
remedies. 42 U.S.C. § 1997e(a); see also Booth
v. Churner, 532 U.S. 731, 736, 121 S.Ct. 1819,
1822, 149 L.Ed.2d 958 (2001). The purpose of
the PLRA's exhaustion requirement is to
"afford
corrections
officials
time
and
opportunity to address complaints internally
before allowing the initiation of a federal
case." Woodford v. Ngo, 548 U.S. 81, 93, 126
S.Ct. 2378, 2387, 165 L.Ed.2d 368 (2006)
(quotation omitted). To properly exhaust, a
prisoner
must
"[c]ompl[y]
with
prison
grievance procedures." Jones v. Bock, 549 U.S.
199, 218, 127 S.Ct. 910, 922–23, 166 L.Ed.2d
798 (2007).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th
Cir. 2015).
A number of factors guide the Court.

Initially, the Court

recognizes that exhaustion of available administrative remedies is
"a precondition to an adjudication on the merits" and is mandatory
under the PLRA.

Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.),

cert. denied, 555 U.S. 1074 (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).

The Supreme Court has stated that "failure to

exhaust is an affirmative defense under the PLRA[.]"
U.S. at 216.

Jones, 549

Although, "the PLRA exhaustion requirement is not

jurisdictional[,]"

Woodford, 548 U.S. at 101, "exhaustion is

mandatory under the PLRA[;]" therefore, "unexhausted claims cannot
be brought."

Pavao v. Sims, 679 F. App'x 819, 823 (11th Cir. 2017)

(per curiam) (citation omitted).
4

As recognized by this Court,
"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.'" 136 S. Ct. 1850, 1862
(2016). For an administrative remedy to be
available, the "remedy must be 'capable of use
for the accomplishment of [its] purpose.'"
Turner v. Burnside, 541 F.3d 1077, 1084 (11th
Cir. 2008) (quoting Goebert v. Lee Cty., 510
F.3d 1312, 1322–23 (11th Cir. 2007)).
In Ross,[3] the Supreme Court identified
three circumstances in which administrative
remedies would be considered unavailable.
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. In this situation, some
mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it."
Id. Third, an administrative remedy is
unavailable "when prison administrators thwart
inmates from taking advantage of a grievance
process
through
machination,
misrepresentation, or intimidation." Id. at
1860.
Davis v. Sec'y, Dept. of Corr., No. 3:15-CV-649-J-34JRK, 2017 WL
1885366, at *3–4 (M.D. Fla. May 9, 2017).
In reviewing the question of exhaustion, "[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.

3

Smith v. Terry, 491 F. App'x 81, 83 (11th

Ross v. Blake, 136 S.Ct. 1850 (2016).
5

Cir. 2012) (per curiam) (citing Harris v. Garner, 216 F.3d 970, 981
(11th Cir. 2000) (en banc)).

Indeed, "[t]he time the [PLRA] sets

for determining whether exhaustion of administrative remedies has
occurred is when the legal action is brought, because it is then
that the exhaustion bar is to be applied."

Wheeler v. Davis, No.

5:14CV271/WS/CJK, 2017 WL 1029119, at *3 (N.D. Fla. Feb. 6, 2017)
(report and recommendation) (quoting Goebert v. Lee Cty., 510 F.3d
1312, 1324 (11th Cir. 2007)) (emphasis in Wheeler), report and
recommendation adopted by No. 5:14CV271-WS/CJK, 2017 WL 1027035
(N.D. Fla. Mar. 16, 2017).
Thus, the relevant question before this Court is whether
Plaintiff properly exhausted available administrative remedies as
of June 30, 2016.

The question of availability of the procedure

goes to whether the administrative procedure was available before
June 30, 2016, prior to the filing of the initial complaint.

To

construe the exhaustion requirement otherwise would render the PLRA
"a toothless scheme."
Not

only

is

Woodford, 548 U.S. at 95.

there

an

exhaustion

requirement,

exhaustion requirement requires proper exhaustion."

PLRA

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
6

"the

administrative remedies, which "means using
all steps that the agency holds out, and doing
so properly (so that the agency addresses the
issues on the merits)." Pozo,[4] 286 F.3d, at
1024. . . .
Id. at 90 (emphasis added).

In fact, "[p]roper exhaustion demands

compliance with an agency's deadlines and other critical procedural
rules."

Id.

There

are

no

disputed

issues

of

fact

as

to

whether

administrative remedies were available to Plaintiff and whether he
exhausted all available administrative remedies with respect to
Defendant Sykes.

Plaintiff's Exhibit A (Doc. 51-1).

Plaintiff

properly exhausted his administrative remedies with regard to
Defendant Sykes as he grieved the matter and his grievance was
approved.
The Court must now make findings on the disputed issues of
fact to decide whether administrative remedies were available to
Plaintiff,

and

if

so,

whether

he

properly

exhausted

his

administrative remedies with regard to the remaining Defendants.5
The Florida Department of Corrections (FDOC) provides an

4

Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.), cert. denied,
537 U.S. 949 (2002).
5

Since the parties have not requested an evidentiary hearing
on this issue and they have submitted evidence for the Court's
consideration, the Court proceeds to resolve the material questions
of fact based on the documents before the Court. Bryant, 530 F.3d
1377 n.16 (recognizing that a district court may resolve material
questions of fact on the submitted papers when addressing the
PLRA's exhaustion of remedies requirement).
7

internal

grievance

procedure.

See

Chapter

33-103,

Florida

Administrative Code (F.A.C.). Thus, to determine whether Plaintiff
exhausted his administrative remedies, this Court must examine the
relevant documents to determine whether the incidents in question
were grieved.

If these incidents were grieved and the documents

complied with the deadlines and other procedural rules as set forth
in the F.A.C., the issues raised therein are exhausted.
Generally, the FDOC provides a three-step grievance procedure.
In
Florida,
the
grievance
process
consists of a three-step procedure. An inmate
must first file an "informal grievance ... to
the staff member who is responsible in the
particular area of the problem." Fla. Admin.
Code Ann. § 33–103.005(1). The second step
requires the inmate file a formal grievance
with the warden. Id. § 33–103.006(1)(a). If
the inmate is unsuccessful at this point, he
may submit an appeal to the Secretary of the
DOC. Id. § 33–103.007.
Kozuh v. Nichols, 185 F. App'x 874, 877 (11th Cir. 2006) (per
curiam), cert. denied, 549 U.S. 1222 (2007).
Of initial significance, if Plaintiff filed a grievance and
attempted to exhaust his administrative remedies, he would have
needed to submit an initial grievance with the appropriate staff,
a formal grievance with the warden, and then an appeal to the
Secretary to properly grieve the matter in compliance with the
procedural requirements of the administrative grievance process.
Plaintiff filed an "Emergency Grievance" with the Secretary of
the FDOC, but it was returned without action as being in non-

8

compliance with the Rules.
& 51-5); (Doc. 62-1).

Plaintiff's Exhibits E & F (Doc. 51-4

By definition, an emergency grievance is

"[a] grievance of those matters which, if disposed of according to
the regular time frames, would subject the inmate to substantial
risk of personal injury or cause other serious and irreparable harm
to the inmate." F.A.C. § 33-103-002(4).

An inmate may proceed

directly to this step if he is submitting an emergency grievance
and he (1) states at the beginning of Part A of Form DC1-303 that
the grievance concerns an emergency; and (2) clearly states "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[.]" Id. § 33103.007(6)(a)(1)-(2).
In this instance, the reviewer found no valid reason within
the grievance for by-passing the lower levels and determined the
grievance to be in non-compliance with the rules.6

Id. § 33-

103.014(1)(f) ("[t]he inmate did not provide a valid reason for bypassing the previous levels of review as required or the reason
provided is not acceptable.").

Thus, the grievance was returned

without action.

6

Unlike the inmate in Dimanche v. Brown, 783 F.3d 1204, 121213 (11th Cir. 2015), Plaintiff did not clearly state his reason for
by-passing the required routine steps for exhausting his
administrative remedies.
9

Plaintiff filed a grievance with the Warden, but it too was
returned without processing for non-compliance with the Rules.
Plaintiff's Exhibit H (Docs. (51-7, 51-8). The grievance was found
not to have the appropriate attachment or sound reasons not to have
them pursuant to F.A.C. § 33-103-014(1)(g). The responder provided
Plaintiff with additional information, notifying him that his
appeal had been responded to on September 30, 2015, and informing
him that he could send an inmate request to his classification
officer and could refile the grievance in compliance with the
rules.

Response (Doc. 51-8).

Finally, Plaintiff filed a December 4, 2015 grievance with the
Warden seeking a good adjustment transfer and/or a transfer out of
the region, and sought to press criminal charges against two
inmates.

Plaintiff's Exhibit J (Doc. 51-9).

See also Plaintiff's

Exhibit G (Doc. 51-6), Request for Administrative Remedy or Appeal
addressed to the Secretary and described as refiled December 4,
2015.

This grievance was also returned without processing for

failure to comply with the Rules.

Plaintiff's Ex. K (Doc. 51-9).

It was returned without processing because it was deemed that he
was

"using

the

grievance

process

to

information, guidance or assistance."
51-9).
he

See F.A.C. § 33-103.014(1)(v).

could

obtain

the

information

10

ask

questions

or

seek

Plaintiff's Exhibit K (Doc.
Plaintiff was advised that

requested

by

contacting

his

classification officer using an Inmate Request form.

Response

(Doc. 51-9).
Given these facts, even assuming the grievances constituted
attempts to exhaust administrative remedies with regard to the
August 27, 2015 incident at Hamilton Correctional Institution
(HCI), Plaintiff failed to comply with critical procedural rules to
exhaust his available administrative remedies.

As such, there was

not proper exhaustion.
Plaintiff has not demonstrated that he has exhausted his
administrative
Defendants

remedies

Anderson,

Sikcier, and Swift.

with

respect

Grimes,

Ford,

to

his

McNeil,

claims

Morris,

against
Mallard,

Indeed, upon review, the documents before the

Court demonstrate otherwise.

Plaintiff never properly grieved his

claims and the institutional records demonstrate that Plaintiff
never properly and completely grieved his claims by complying with
the critical procedural rules.
Upon review, the Court finds that the administrative process
was available to Plaintiff;7 it did not operate as a simple dead
end, it was clearly capable of use, and prison administrators did
not

thwart

the

misrepresentation,

use
or

of

the

process

intimidation.

through

Based

on

machination,

all

reasonable

inferences, Plaintiff had access to the grievance process and

7

This is evidenced by Plaintiff's use of the grievance
process to file an informal grievance against Defendant Sykes that
was approved and resulted in an internal investigation.
11

submitted documents for review, although not in compliance with the
Rules.

Indeed, Plaintiff's grievances and grievance appeals were

specifically rejected for non-compliance with the administrative
rules.

Plaintiff has not shown that he properly filed a grievance

against these Defendants concerning the events that occurred at HCI
and fully exhausted his administrative remedies in compliance with
the procedural rules prior to bringing his civil rights action.
An

inmate

plaintiff

administrative remedies.

is

required

to

42 U.S.C. § 1997e(a).

exhaust

available

Plaintiff has not

provided the Court with copies of any grievances or grievance
responses or other information demonstrating proper exhaustion of
administrative remedies, using all steps that the agency holds out,
and doing so properly so that the agency addresses the issues on
the merits.

The record evidence shows that Plaintiff did not

properly exhaust his administrative remedies with regard to his
claims concerning the events at HCI on August 27, 2015.
In light of the above, Plaintiff failed to exhaust his
administrative remedies before filing a lawsuit to seek judicial
redress. Therefore, the Court concludes that Motion One and Motion
Two should be granted for Plaintiff's failure to exhaust his
administrative remedies against Defendants Anderson, Grimes, Ford,
McNeil,

Morris,

Mallard,

Sikcier,

and

Swift.

Simply

put,

exhaustion of available administrative remedies is required before
a 42 U.S.C. § 1983 action with respect to prison conditions by a

12

prisoner may be initiated in this Court, and Plaintiff failed to
properly avail himself of this process.
IV.
In

his

Defendants Anderson and Mallard

Preliminary

Statement

of

the

Amended

Complaint,

Plaintiff generally claims that the Defendants were deliberately
indifferent to his safety in violation of the Eighth and Fourteenth
Amendments to the United States Constitution. Amended Complaint at
6.

With regard to Plaintiff's claim of deliberate indifference,
"A
prison
official's
deliberate
indifference to a known, substantial risk of
serious harm to an inmate violates the
[Fourteenth] Amendment."
Marsh[v. Butler
Cnt'y], 268 F.3d [1014] at 1028 [11th Cir.
2001]. A Fourteenth Amendment violation occurs
when a substantial risk of serious harm, of
which the official is subjectively aware,
exists and the official does not respond
reasonably to the risk. Id. Furthermore, such
risk must be an objectively substantial risk
of serious harm to prisoners, and the prison
official must respond to that risk in an
objectively unreasonable manner.
Farmer v.
Brennan, 511 U.S. 825, 834 844-845, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994)
Finally, a
plaintiff must show that the constitutional
violation caused the injury. Marsh, 268 F.3d
at 1028.

Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003).
Plaintiff describes Defendant Warden Anderson as being the
head warden at HCI and responsible for the actions of his lower
ranking officers.

Amended Complaint at 6.

Defendant Assistant

Warden Mallard is "next in line in the chain of command" and
"responsible for the training[.]" Id.

13

Plaintiff asserts that

Defendants Anderson and Mallard were "in charge of the training of
the lower ranking officers."

Id. at 7.

Plaintiff contends it was

Anderson and Mallard's duty to train the officers to use the F.A.C.
and to comply with the rules of conduct.

Id.

In the statement of

facts, Plaintiff presents no factual allegations in support of his
claims against Defendants Anderson and Mallard.

Id. at 7-9.

In response, Defendants Anderson and Mallard submit that they
should be dismissed from this action because supervisory officials
are not liable under section 1983 for the unconstitutional acts of
their subordinates on the basis of respondeat superior or vicarious
liability.
provides

Motion One at 7; Motion Two at 7.
guidance

for

employing

the

The Eleventh Circuit

rigorous

standard

establishing supervisory liability in a civil rights action:
"Supervisory liability under section 1983 may
be shown by either the supervisor's personal
participation in the acts that comprise the
constitutional violation or the existence of a
causal connection linking the supervisor's
actions with the violation." Lewis v. Smith,
855 F.2d 736, 738 (11th Cir. 1988) (per
curiam). Personal participation occurs when,
for example, the supervisor inflicts the
injury himself. See Hewett v. Jarrard, 786
F.2d 1080, 1087 (11th Cir. 1986). A causal
connection can be established "when facts
support an inference that the supervisor
directed the subordinates to act unlawfully or
knew
that
the
subordinates
would
act
unlawfully and failed to stop them from doing
so." Mercado v. City of Orlando, 407 F.3d
1152, 1158 (11th Cir. 2005) (quotation
omitted). This standard is quite rigorous. Id.
Smith v. LePage, 834 F.3d 1285, 1298 (11th Cir. 2016).

14

for

Acknowledging this strict limitation on supervisory liability,
the Court recognizes that Defendants Anderson and Mallard may not
be held liable under a theory of respondeat superior.

See Braddy

v. Fla. Dep't of Labor & Emp't Sec., 133 F.3d 797, 801 (11th Cir.
1998) (finding supervisory liability requires something more than
stating

a

claim

superior).
Mallard

of

liability

under

a

theory

of

respondeat

There is no suggestion that Defendants Anderson and

personally

participated

in

the

alleged

violation.

Plaintiff submits, however, that there is a causal connection
between the Defendants' actions or inactions and the alleged
federal

constitutional

deprivation.

The

question

is

whether

Plaintiff has pled "enough facts to state a claim to relief that is
plausible on its face."

Twombly, 550 U.S. at 570.

In reviewing this claim, the Court recognizes that a warden,
"the person charged with directing the governance, discipline, and
policy

of

the

regulations"

prison

bears

and

the

enforcing

responsibility

its
of

orders,
taking

rules,

and

appropriate

measures to improve prisoner safety, particularly if his failure to
do so would create a climate that preordained the use of excessive
force and abhorrent acts.

Mathews v. Crosby, 480 F.3d 1265, 1275

(11th Cir. 2007), cert. denied, 552 U.S. 1095 (2008).

Here,

Plaintiff contends that Defendants Anderson and Mallard failed to
train correctional officers; "[a] failure to train amounts to
deliberate indifference when 'the need for more or different

15

training is obvious, such as when there exists a history of abuse
by subordinates that has put the supervisor on notice of the need
for corrective measures, and when the failure to train is likely to
result in the violation of a constitutional right.'" Cooper v. City
of Starke, Fla., NO. 3:10-cv-280-J-34MCR, 2011 WL 1100142, at *5
(M.D. Fla. Mar. 23, 2011) (not reported in F.Supp.2d) (quoting
Belcher v. City of Foley, Ala., 30 F.3d 1390, 1397–98 (11th Cir.
1994)).
Plaintiff's

Amended

Complaint

is

void

of

any

factual

allegations against Defendants Anderson and Mallard. Plaintiff has
not asserted that there is a history of officers failing to comply
with the code of conduct in the prisons.

Plaintiff does not

contend that the need for training was obvious due to other glaring
factors.

On the contrary, he contends that the officers were "not

properly trained, or just simply chose not to obey the rules."
Amended Complaint at 10.
Plaintiff has not adequately alleged that Wardens Anderson and
Mallard were put on notice of the need for corrective measures and
training

to

avoid

violations

of

constitutional

rights.

Furthermore, a warden may rely on the common sense of corrections
officers.

Johnson v. Singer, 3:10-CV-871-J-JRK, 2013 WL 12097617,

at *9 (M.D. Fla. Mar. 24, 2013), aff'd sub nom. Johnson v. Rosier,
578 F. App'x 928 (11th Cir. 2014).
that:

16

Also, it is important to note

any
claim
of
negligent
training and
supervision is insufficient to state a claim
of federal constitutional dimension. See
Harris v. Coweta Cnty., 21 F.3d 388, 393 (11th
Cir.
1994)
(noting
that
"[a]ccidents,
mistakes, negligence, and medical malpractice
are not 'constitutional violation [s] merely
because the victim is a prisoner'") (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976));
see also Rooney v. Watson, 101 F.3d 1378,
1380-81 (11th Cir. 1996) (stating that the
alleged negligence does not transform a state
tort claim into a constitutional deprivation),
cert. denied, 522 U.S. 966 (1997); Cannon v.
Taylor, 782 F.2d 947, 950 (11th Cir. 1986)
(holding
that
negligence
actions
are
actionable under state law, but do not rise to
the level of a constitutional deprivation).
Johnson v. Singer, 2013 WL 12097617, at *9.
In this case, the supervisory claims against Defendants Warden
Anderson and Assistant Warden Mallard fail because there is an
absence of any factual allegations suggesting that Anderson and
Mallard personally participated in the claimed constitutional
violation.

Further, the record discloses no facts suggesting any

causal connection between their actions or inactions and the
alleged

federal

Upon

due

more

than

respondeat superior against Defendants Anderson and Mallard.

Reid

consideration,

constitutional

Plaintiff

has

not

deprivation.
alleged

something

v. Sec'y, Fla. Dep't of Corr., 486 F. App'x 848, 852 (11th Cir.
2012) (noting that supervisory liability may be based on personal
participation or a causal connection between supervisory actions
and the deprivation).

17

Based upon a careful review of the Amended Complaint, there is
no facial plausibility as to Plaintiff's claims against Defendants
Anderson and Mallard.

Plaintiff has failed to state claims of

deliberate indifference against them.

Indeed, Plaintiff has not

pled "enough facts to state a claim to relief that is plausible on
its face."

Twombly, 550 U.S. at 570.

Therefore, Defendant

Anderson's and Defendant Mallard's Motions to Dismiss are due to be
granted.
V.

Defendant Sikcier

Plaintiff names corrections officer Sikcier as a Defendant.
Amended Complaint at 6.
the

housing

officer,

Plaintiff states that Lieutenant Sykes,
was

in

charge

of

inmates'

housing

and

Defendant Sikcier. Id. at 7. The only allegation in the statement
of facts against Defendant Sikcier is that he "did not pass the
paperwork to Lt. Sykes, or did not.

I'm not sure where the

request[s] went after plaintiff put them in the request box."
at 9.

Id.

Plaintiff explains that in July and August of 2015, he

submitted

three

requests

to

Defendant

Sykes

concerning

the

altercations between Plaintiff and inmate Diaz, and requesting to
be separated from Diaz, but Defendant Sykes failed to respond to
these requests, leaving Plaintiff in harm's way.

Id.

As noted by Defendants, Plaintiff is apparently asserting that
although Sikcier was in charge of picking up grievances or requests
from a box, he failed to provide the requests to Defendant Sykes.

18

Motion Two at 10.

Defendants also point out that Plaintiff

acknowledges that he does not know what happened to the requests
once they were put in a box.

Id.

This claim against Defendant Sikcier fails because Plaintiff's
statement of facts fails to allege any facts suggesting that
Defendant

Sikcier

personally

constitutional deprivation.

participated

in

the

alleged

Indeed, Plaintiff admits that he does

not know what happened to the requests once they were placed in the
box.

Plaintiff just knows that he did not receive any responses

from Defendant Sykes.
Based upon a careful review of the Amended Complaint, there is
no facial plausibility as to an Eighth and/or Fourteenth Amendment
claim against Defendant Sikcier.

Plaintiff has not alleged that

Sikcier had subjective knowledge of a substantial risk of harm or
that he ignored such a risk.

At most, Plaintiff has alleged a

negligent failure to process requests, a non-constitutional claim
of negligent deprivation.
state

a

Sikcier.

claim

of

In this case, Plaintiff has failed to

constitutional

dimension

against

Defendant

Indeed, Plaintiff has not pled "enough facts to state a

claim to relief that is plausible on its face."

Twombly, 550 U.S.

at 570. Therefore, Defendant Sikcier's Motion to Dismiss is due to
be granted.

19

VI.

Failure to Protect

The Court has already determined that Defendants Anderson,
Mallard and Sikcier's motions to dismiss are entitled to being
granted. Thus, the Court will address whether Plaintiff has failed
to state a claim for failure to protect against Defendants Grimes,
Ford, McNeil, Morris, Sykes, and Swift.

Defendants contend that

Plaintiff has failed to state a claim for failure to protect and
the Amended Complaint should be dismissed.
Plaintiff complains that the Defendants violated his Eighth
Amendment right to be free from cruel and unusual punishment when
they failed to take reasonable steps to protect him from known
dangers on the wings of the institution, and as a result of their
deliberate

indifference

to

his

safety

needs,

inmate

Diaz's

associate assaulted Plaintiff on wing three. An official must know
of and disregard an excessive risk to an inmate's health or safety,
the official must be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and the
official must draw that inference.
825, 1979 (1994).

Farmer v. Brennan, 511 U.S.

The Eleventh Circuit, however, "'requires proof

of an affirmative causal connection between the official's acts or
omissions and the alleged constitutional deprivation' in § 1983
cases."

Rodriguez v. Sec'y, Dep't of Corr., 508 F.3d 611, 625

(11th Cir. 2007) (quoting Zatler v. Wainwright, 802 F.2d 397, 401
(11th Cir. 1986)).

In fact, more than conclusory and vague

20

allegations are required to state a cause of action under 42 U.S.C.
§ 1983.

See L.S.T., Inc., v. Crow, 49 F.3d 679, 684 (11th Cir.

1995) (per curiam); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th
Cir. 1984). In the absence of a federal constitutional deprivation
or violation of a federal right, Plaintiff cannot sustain a cause
of action against the Defendants under 42 U.S.C. § 1983.
The Eleventh Circuit set forth requirements for an Eighth
Amendment violation:
The Eighth Amendment "imposes a duty on
prison officials" to "take reasonable measures
to guarantee the safety of the inmates."
Caldwell v. Warden, FCI Talladega, 748 F.3d
1090, 1099–100 (11th Cir. 2014) (quoting
Farmer v. Brennan, 511 U.S. 825, 832, 114
S.Ct. 1970, 1976 (1994) (quotation marks
omitted
and
alterations
adopted)).
In
particular, under the Eighth Amendment,
"prison officials have a duty ... to protect
prisoners from violence at the hands of other
prisoners." Farmer, 511 U.S. at 833, 114 S.Ct.
at
1976
(quotation
marks
omitted
and
alterations adopted). "It is not, however,
every injury suffered by one prisoner at the
hands
of
another
that
translates
into
constitutional liability for prison officials
responsible for the victim's safety." Id. at
834, 114 S.Ct. at 1977.
A prison official violates the Eighth
Amendment "when a substantial risk of serious
harm, of which the official is subjectively
aware, exists and the official does not
respond reasonably to the risk." Carter v.
Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003)
(quotation marks omitted and alterations
adopted) (emphasis added). . . .
"The second element - that [a prison
official] evidenced a deliberate indifference
to a serious risk that [a prisoner] would be
21

injured - forms the crux of the matter at
hand." Id. The prison official must "actually
(subjectively) know[ ] that an inmate is
facing a substantial risk of serious harm, yet
disregard[ ] that known risk by failing to
respond to it in an (objectively) reasonable
manner." Rodriguez v. Sec'y for Dep't of
Corr., 508 F.3d 611, 617 (11th Cir. 2007).
With regard to the subjective component of the
defendant's actual knowledge, the defendant
"must both be aware of facts from which the
inference could be drawn that a substantial
risk of serious harm exists, and [s]he must
also draw the inference." Farmer, 511 U.S. at
837, 114 S.Ct. at 1979.
Moreover, this must be shown by "conduct
that is more than gross negligence." Townsend
v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th
Cir. 2010). "[T]he deliberate indifference
standard - and the subjective awareness
required by it - is far more onerous than
normal
tort-based
standards
of
conduct
sounding in negligence: 'Merely negligent
failure to protect an inmate from attack does
not justify liability under [§] 1983.'"
Goodman,[8] 718 F.3d at 1332 (quoting Brown v.
Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990)).
Losey v. Thompson, 596 F. App'x 783, 788-89 (11th Cir. 2015).
In the statement of facts, Plaintiff alleges that during the
evening of August 27, 2015, Defendant Grimes was passing out mail.
Amended Complaint at 7.
Id.

Plaintiff was in a cell with inmate Diaz.

Plaintiff advised Defendant Grimes that Diaz had threatened

Plaintiff's

life.

Id.

Defendant

Grimes

responded

to

this

information by radioing for help, ordering the cell door rolled
(opened), placing Diaz in handcuffs, and calling officer Morris for

8

Goodman v. Kimbrough, 718 F.3d 1325 (11th Cir. 2013).
22

assistance.
assistance.

Id.
Id.

Defendants Ford, Swift and McNeil came to render
at

8.

Plaintiff

told

them

that

Diaz

had

threatened his life, and Plaintiff requested protective housing.
Id.

Defendants Ford, Swift and McNeil decided to uncuff Diaz and

send him back into the cell.

Id.

Plaintiff decided to hit Diaz,

expecting to be placed in confinement for this deed.

Id.

When

this occurred, Defendant Grimes broke his seal on his chemical
agent, but Defendants Ford, Swift and McNeil told Grimes not to
eject the spray.

Id.

Thereafter, Plaintiff was handcuffed.

Id.

Defendants Ford,

Swift and McNeil made the decision to remove the handcuffs and
place Plaintiff on wing three, located in the same building at HCI.
Id.

At this point, Plaintiff told Defendant Ford that Diaz had

threatened him, and Plaintiff wanted to be placed in confinement.
Id.

Plaintiff explained to Defendant Ford that Diaz was "a head

gang member," and moving Plaintiff to wing three was not going
resolve the problem or protect Plaintiff from danger. Id. At this
juncture, Plaintiff asked Defendant Ford if he could be placed in
confinement, but Plaintiff's request was declined.

Id.

On August 27, 2015, Plaintiff moved to wing three.

Id. at 9.

On the morning of August 28, 2015, when the doors were rolled,
Plaintiff went to get coffee and saw inmate Diaz on the window
"giving sign language" to inmate Tobler.

Id.

Tobler went back to

his cell, and then returned to Plaintiff's cell and attacked

23

Plaintiff with a lock and a razor blade.
medical care at the medical department.

Id.

Plaintiff received

Id.

Plaintiff alleges that in months of July and August, 2015, he
wrote three requests to Defendant Sykes to apprise him of the
altercations between Plaintiff and inmate Diaz and to request
separation.
Id.

Id.

Defendant Sykes did not respond to the requests.

Plaintiff states that Defendant Sikcier failed to pass on the

paperwork to Defendant Sykes, although Plaintiff also states that
he does not know what happened to the requests after placement into
the request box.

Id.

The Court will first address Plaintiff's allegations against
Defendant Grimes.

Plaintiff describes Defendant Grimes as a floor

officer,

under

working

Amended Complaint at 7.
Amended

Complaint

the

supervision

of

Defendant

McNeil.

Based on the allegations set forth in the

against

Defendant

Grimes,

he

took

every

reasonable step to protect Plaintiff from known dangers on the
wing.

As soon as Plaintiff told Grimes that inmate Diaz had

threatened him, Grimes took all reasonable precautions to ensure
Plaintiff's safety.

He immediately radioed for help, ordered the

cell door to be rolled open, handcuffed Diaz, and called for
assistance. Indeed, once Plaintiff alerted Defendant Grimes to the
danger from inmate Diaz, Defendant Grimes immediately reacted to
the information and took appropriate measures to protect Plaintiff
and obtain aid from his superiors and co-workers.

24

Plaintiff has

not pled enough facts to state a claim to relief that is plausible
on its face against Defendant Grimes. Therefore, Defendant Grimes'
Motion to Dismiss is due to be granted.
Next,

the

Court

will

address

Defendants Ford, Swift and McNeil.

the

allegations

against

Plaintiff describes Defendant

Ford as the acting duty warden for security at HCI, Defendant Swift
as the head sergeant, and Defendant McNeil as the security sergeant
in G dormitory.

Amended Complaint at 7.

When Defendant Grimes

radioed for assistance, Defendants Ford, Swift and McNeil promptly
responded. Id. at 8. When Plaintiff asked for protective housing,
these Defendants made the decision to un-cuff Diaz and send him
back to the cell.

Id.

In hopes of being sent to confinement,

Plaintiff states he hit Diaz.

Id.

Defendants Ford, Swift and

McNeil told Defendant Grimes not to spray Plaintiff with chemical
spray.

Id.

Although Plaintiff was briefly placed in handcuffs,

Defendants Ford, Swift and McNeil ordered the handcuffs to be
removed, and they transferred Plaintiff to wing three in the same
building.

Id.

Plaintiff alleges that he told Defendant Ford that Diaz had
threatened him and Plaintiff desired to be placed in confinement.
Id.

Plaintiff further advised Defendant Ford that Diaz was a head

gang member, and Plaintiff would not be safe in wing three.

Id.

Plaintiff asked to be placed in confinement, but his request was
denied.

Id.

25

Upon review, based on Plaintiff's allegations as stated in the
Amended

Complaint,

Defendants

measured and tempered
wing.

Ford,

Swift

and

McNeil

made

a

response to the volatile situation on the

They responded promptly to Grimes' request for assistance.

Grimes

had

handcuffed

Diaz

and

removed

him

from

the

cell.

Plaintiff was also outside of the cell. Defendants Ford, Swift and
McNeil decided to return Diaz to the cell.

At that point,

Plaintiff became the aggressor and hit inmate Diaz.

Again, the

Defendants took a measured response by handcuffing Plaintiff, but
not

directing

Defendants

that

decided

he
to

be

chemically

protect

sprayed.

Plaintiff

by

Instead,

moving

him

the
to

a

different wing from inmate Diaz. Defendants Ford, Swift and McNeil
took reasonable steps to protect Plaintiff from a known danger on
the wing of the institution (Plaintiff's cell mate inmate Diaz) by
removing Plaintiff from the cell and the wing.

Thus, Defendant's

Motions to Dismiss are due to be granted in this regard.
It is evident, however, that Plaintiff's complaint has alleged
facts that, if true, are sufficient to establish a substantial risk
of inmate-on-inmate violence with respect to Plaintiff's claim that
he told Defendant Ford that Diaz was a head gang member and
Plaintiff would not be safe on wing three of the same building.

Of

note, wing three was not a confinement wing, and the doors were
rolled open on that wing the following day. It is significant that
Plaintiff alleges in his Amended Complaint that he saw Diaz

26

conferring with Tobler through a window prior to the attack, and
Tobler returned from his cell five minutes later and attacked
Plaintiff with a lock and a razor blade.

Thus, the allegations

show that the inmates were not completely segregated, as Plaintiff
could see Diaz and Tobler; the doors of the cells were not locked
during the day; and weapons or weapon-like items were readily
available on the wing.
Plaintiff also alleges that Defendant Ford disregarded a known
risk by failing to respond to it in an objectively reasonable
manner.

Plaintiff alleges that he told Defendant Ford that Diaz

was a head gang member, that he threatened Plaintiff's life, and
Plaintiff would not be safe in the same building with inmate Diaz.9
Plaintiff also requested to be placed in confinement.

Therefore,

Plaintiff has adequately alleged that Defendant Ford was aware that
Plaintiff faced a substantial risk of harm by being housed in the
same building with Defendant Diaz and his cohorts:
This determination is consistent with a recent
Eleventh Circuit decision, holding that a
prisoner had sufficiently presented a jury
question
as
to
defendants'
subjective
knowledge of a risk of harm based on evidence
that the prisoner verbally informed an
assistant warden "on at least two occasions
that his life had been threatened by members
of his former gang and that, to avoid injury,
he needed either to be transferred to another

9

It is insignificant that Plaintiff did not name a specific
prisoner, Tobler, who eventually committed the battery.
It is
enough that Plaintiff has pled that Defendant Ford was subjectively
aware of Plaintiff's risk from Diaz and his cohorts.
27

prison or to be placed in protective custody;"
and informed the warden, by means of a written
form, "that he feared for his safety in the
compound and requested a transfer." Rodriguez
v. Sec'y for Dep't of Corr., 508 F.3d 611, 618
(11th Cir.2007).
Ogles v. Trimble, No. 5:15-CV-00054 (MTT), 2016 WL 491848, at *4
(M.D. Ga. Jan. 5, 2016) (not reported in F.Supp.2d), report and
recommendation adopted by 2016 WL 498255 (M.D. Ga. Feb. 8, 2016).
The duty under the Eighth Amendment is reasonable safety.
Plaintiff has alleged enough facts to state a claim to relief that
is plausible on its face.

Plaintiff's Amended Complaint has set

forth sufficient factual matter to support the conclusion that the
alleged conditions at HCI posed a substantial risk of serious harm
to Plaintiff and could bear out an Eighth Amendment violation
against Defendant Ford for failure to respond reasonably to the
alleged risk.10
Plaintiff names Lieutenant Sykes, the housing officer in
charge of housing inmates, as a Defendant. Amended Complaint at 7.
Plaintiff asserts that Defendant Sykes failed to execute his
position as housing officer by leaving Plaintiff in harms way. Id.
at 9.

Plaintiff states that in the months of July and August of

2015, he wrote three requests to Defendant Sykes apprising him of

10

It is important to note that Plaintiff failed to properly
exhaust his administrative remedies against Defendant Ford. Thus,
the failure to protect claim raised against Defendant Ford is due
to be dismissed without prejudice for failure to exhaust
administrative remedies.
28

the altercations between Plaintiff and inmate Diaz and requesting
separation before the problem worsened.

Id.

Plaintiff alleges

that Defendant Sykes failed to respond and left Plaintiff in harms
way.

Id.

Given Plaintiff's specific factual assertions (that,

prior to August 27, 2015, Plaintiff alerted the Defendant that he
was

in

danger

and

that

Defendant

Sykes

was

informed

of

the

altercations between Plaintiff and inmate Diaz, and that Plaintiff
feared for his life when the Defendant failed to move either Diaz
or Plaintiff), he has pled "enough facts to state a claim to relief
that

is

plausible

on

its

face."

Twombly,

550

U.S.

at

570.

Therefore, Defendant Sykes' Motion to Dismiss as to Plaintiff's
Eighth Amendment failure to protect claim is due to be denied, and
the parties will be given an opportunity to further develop the
facts.
Therefore, it is now
ORDERED:
1.

Defendants

Anderson,

Grimes,

Ford,

McNeil,

Morris,

Mallard, Sikcier, and Swift's Motions to Dismiss [for failure to
exhaust administrative remedies] (Docs. 42 & 56) are GRANTED with
respect to the request to dismiss the action pursuant to 42 U.S.C.
§ 1997e(a).
2.

Defendants Anderson, Grimes, McNeil, Morris, Mallard,

Sikcier, and Swift's Motions to Dismiss [for failure to state a
claim] (Docs. 42 & 56) are GRANTED.
29

3.

Defendants

Anderson,

Grimes,

Ford,

McNeil,

Morris,

Mallard, Sikcier, and Swift are dismissed from this action.
4.

Defendant Sykes shall respond to the Amended Complaint by

September 25, 2017.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of
September, 2017.

sa 8/24
c:
Joseph O'Quinn
Counsel of Record

30