O'Quinn v. Anderson et al
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
Case No. 3:16-cv-1478-J-39PDB
LIEUTENANT SYKES et al.,
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.
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
See Order (Doc. 40); Plaintiff's Objection to the
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.
In this opinion, the Court references the document and page
numbers designated by the electronic filing system.
Defendants' Motion to Dismiss (Response Three) (Doc. 63).
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
Id. (citing Twombly, 550 U.S. at 556).
allegations contained in a complaint is inapplicable to legal
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).
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
Motion One at 7-10; Motion Two at 7-11.
The Court will
first address the exhaustion matter, and then address the issue of
whether Plaintiff failed to state a claim.
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
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-
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
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
administrative remedies as are available are exhausted."
In this instance, Defendants bear the burden of proving a
failure to exhaust available administrative remedies.
Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008), relying on Jones
reviewing a prisoner civil rights action for exhaustion compliance:
prison-conditions suit under §
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
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
grievance procedures." Jones v. Bock, 549 U.S.
199, 218, 127 S.Ct. 910, 922–23, 166 L.Ed.2d
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th
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.")
The Supreme Court has stated that "failure to
exhaust is an affirmative defense under the PLRA[.]"
U.S. at 216.
Although, "the PLRA exhaustion requirement is not
Woodford, 548 U.S. at 101, "exhaustion is
mandatory under the PLRA[;]" therefore, "unexhausted claims cannot
Pavao v. Sims, 679 F. App'x 819, 823 (11th Cir. 2017)
(per curiam) (citation omitted).
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, the Supreme Court identified
three circumstances in which administrative
remedies would be considered unavailable.
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
misrepresentation, or intimidation." Id. at
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.
Smith v. Terry, 491 F. App'x 81, 83 (11th
Ross v. Blake, 136 S.Ct. 1850 (2016).
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.
construe the exhaustion requirement otherwise would render the PLRA
"a toothless scheme."
Woodford, 548 U.S. at 95.
exhaustion requirement requires proper exhaustion."
U.S at 93.
Because exhaustion requirements are designed
to deal with parties who do not want to
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, 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
administrative remedies were available to Plaintiff and whether he
exhausted all available administrative remedies with respect to
Plaintiff's Exhibit A (Doc. 51-1).
properly exhausted his administrative remedies with regard to
Defendant Sykes as he grieved the matter and his grievance was
The Court must now make findings on the disputed issues of
fact to decide whether administrative remedies were available to
administrative remedies with regard to the remaining Defendants.5
The Florida Department of Corrections (FDOC) provides an
Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.), cert. denied,
537 U.S. 949 (2002).
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).
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
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.
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-
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
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
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
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
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
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,
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
information, guidance or assistance."
See F.A.C. § 33-103.014(1)(v).
Plaintiff's Exhibit K (Doc.
Plaintiff was advised that
classification officer using an Inmate Request form.
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
Sikcier, and Swift.
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
inferences, Plaintiff had access to the grievance process and
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.
submitted documents for review, although not in compliance with the
Indeed, Plaintiff's grievances and grievance appeals were
specifically rejected for non-compliance with the administrative
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.
42 U.S.C. § 1997e(a).
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 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,
exhaustion of available administrative remedies is required before
a 42 U.S.C. § 1983 action with respect to prison conditions by a
prisoner may be initiated in this Court, and Plaintiff failed to
properly avail himself of this process.
Defendants Anderson and Mallard
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
With regard to Plaintiff's claim of deliberate indifference,
indifference to a known, substantial risk of
serious harm to an inmate violates the
Cnt'y], 268 F.3d  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.
Brennan, 511 U.S. 825, 834 844-845, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994)
plaintiff must show that the constitutional
violation caused the injury. Marsh, 268 F.3d
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
Amended Complaint at 6.
Warden Mallard is "next in line in the chain of command" and
"responsible for the training[.]" Id.
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.
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
Motion One at 7; Motion Two at 7.
The Eleventh Circuit
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
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).
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.
v. Fla. Dep't of Labor & Emp't Sec., 133 F.3d 797, 801 (11th Cir.
1998) (finding supervisory liability requires something more than
There is no suggestion that Defendants Anderson and
Plaintiff submits, however, that there is a causal connection
between the Defendants' actions or inactions and the alleged
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
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).
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
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.
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
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
Furthermore, a warden may rely on the common sense of corrections
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).
Also, it is important to note
supervision is insufficient to state a claim
of federal constitutional dimension. See
Harris v. Coweta Cnty., 21 F.3d 388, 393 (11th
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)
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
Further, the record discloses no facts suggesting any
causal connection between their actions or inactions and the
respondeat superior against Defendants Anderson and Mallard.
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).
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
Twombly, 550 U.S. at 570.
Anderson's and Defendant Mallard's Motions to Dismiss are due to be
Plaintiff names corrections officer Sikcier as a Defendant.
Amended Complaint at 6.
Plaintiff states that Lieutenant Sykes,
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."
Plaintiff explains that in July and August of 2015, he
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.
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.
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.
This claim against Defendant Sikcier fails because Plaintiff's
statement of facts fails to allege any facts suggesting that
Indeed, Plaintiff admits that he does
not know what happened to the requests once they were placed in the
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.
In this case, Plaintiff has failed to
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
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
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
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
allegations are required to state a cause of action under 42 U.S.C.
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
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
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.
alterations adopted). "It is not, however,
every injury suffered by one prisoner at the
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
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
sounding in negligence: 'Merely negligent
failure to protect an inmate from attack does
not justify liability under [§] 1983.'"
Goodman, 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.
Plaintiff was in a cell with inmate Diaz.
Plaintiff advised Defendant Grimes that Diaz had threatened
information by radioing for help, ordering the cell door rolled
(opened), placing Diaz in handcuffs, and calling officer Morris for
Goodman v. Kimbrough, 718 F.3d 1325 (11th Cir. 2013).
Defendants Ford, Swift and McNeil came to render
threatened his life, and Plaintiff requested protective housing.
Defendants Ford, Swift and McNeil decided to uncuff Diaz and
send him back into the cell.
Plaintiff decided to hit Diaz,
expecting to be placed in confinement for this deed.
this occurred, Defendant Grimes broke his seal on his chemical
agent, but Defendants Ford, Swift and McNeil told Grimes not to
eject the spray.
Thereafter, Plaintiff was handcuffed.
Swift and McNeil made the decision to remove the handcuffs and
place Plaintiff on wing three, located in the same building at HCI.
At this point, Plaintiff told Defendant Ford that Diaz had
threatened him, and Plaintiff wanted to be placed in confinement.
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.
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.
Tobler went back to
his cell, and then returned to Plaintiff's cell and attacked
Plaintiff with a lock and a razor blade.
medical care at the medical department.
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
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.
The Court will first address Plaintiff's allegations against
Plaintiff describes Defendant Grimes as a floor
Amended Complaint at 7.
Based on the allegations set forth in the
reasonable step to protect Plaintiff from known dangers on the
As soon as Plaintiff told Grimes that inmate Diaz had
threatened him, Grimes took all reasonable precautions to ensure
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.
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.
Defendants Ford, Swift and McNeil.
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.
In hopes of being sent to confinement,
Plaintiff states he hit Diaz.
Defendants Ford, Swift and
McNeil told Defendant Grimes not to spray Plaintiff with chemical
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
Plaintiff alleges that he told Defendant Ford that Diaz had
threatened him and Plaintiff desired to be placed in confinement.
Plaintiff further advised Defendant Ford that Diaz was a head
gang member, and Plaintiff would not be safe in wing three.
Plaintiff asked to be placed in confinement, but his request was
Upon review, based on Plaintiff's allegations as stated in the
measured and tempered
response to the volatile situation on the
They responded promptly to Grimes' request for assistance.
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.
Defendants took a measured response by handcuffing Plaintiff, but
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.
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.
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
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
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.
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
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
It is insignificant that Plaintiff did not name a specific
prisoner, Tobler, who eventually committed the battery.
enough that Plaintiff has pled that Defendant Ford was subjectively
aware of Plaintiff's risk from Diaz and his cohorts.
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
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
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.
Plaintiff states that in the months of July and August of
2015, he wrote three requests to Defendant Sykes apprising him of
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
the altercations between Plaintiff and inmate Diaz and requesting
separation before the problem worsened.
that Defendant Sykes failed to respond and left Plaintiff in harms
Given Plaintiff's specific factual assertions (that,
prior to August 27, 2015, Plaintiff alerted the Defendant that he
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
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
Therefore, it is now
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.
Defendants Anderson, Grimes, McNeil, Morris, Mallard,
Sikcier, and Swift's Motions to Dismiss [for failure to state a
claim] (Docs. 42 & 56) are GRANTED.
Mallard, Sikcier, and Swift are dismissed from this action.
Defendant Sykes shall respond to the Amended Complaint by
September 25, 2017.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of
Counsel of Record
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