Hoffman v. Jones

Filing 103

ORDER granting 89 Defendant Gaylord's Motion to Dismiss for Failure to State a Claim; dismissing Plaintiff's claim against Defendant Gaylord with prejudice; directing the Clerk to terminate Defendant Gaylord as a party; referring the case to the Jacksonville Division Civil Pro Bono Appointment Program. Signed by Judge Brian J. Davis on 10/31/2019. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CHESTER R. HOFFMANN,
Plaintiff,
vs.

Case No. 3:17-cv-361-J-39JRK

ANTHONY MCCRAY, et al.,
Defendants.
_____________________________
ORDER
I. Status
Plaintiff, Chester R. Hoffmann, is proceeding on a pro se
Amended Civil Rights Complaint (Doc. 9; Am. Compl.) against Chad
Gaylord and others. Plaintiff alleges Defendant Gaylord, a prison
nurse, was deliberately indifferent to his serious medical needs
in violation of the Eighth Amendment. Am. Compl. at 7, 9. Before
the Court is Defendant Gaylord’s Motion to Dismiss (Doc. 89;
Motion). Plaintiff has responded (Doc. 99; Resp.). Accordingly,
the motion is ripe for this Court’s review.
II. Defendant’s Motion & Standard of Review
Defendant Gaylord seeks dismissal with prejudice, asserting
the

following

defenses:

failure

to

exhaust

administrative

remedies; failure to state a claim; qualified immunity; Eleventh
Amendment immunity; and failure to allege physical injuries. See
Motion at 1.

“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); see also Lotierzo v. Woman’s World Med. Ctr.,
Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). “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.” Iqbal, 556 U.S. at 678. A
plaintiff

should

allege

enough

facts

“to

raise

a

reasonable

expectation that discovery will reveal evidence” supporting the
plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007). In assessing the sufficiency of a complaint, all reasonable
inferences should be drawn in favor of the plaintiff. See Iqbal,
556 U.S. at 678. In addition, when a plaintiff proceeds pro se,
the court must liberally construe the allegations. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Bingham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011).
III. Complaint Allegations
In

his

excessive

Complaint,

force,

which

Plaintiff
occurred

describes
at

two

Hamilton

instances

of

Correctional

Institution (HCI) on October 17, 2016, involving other Defendants.
Am. Compl. at 7. Defendant Gaylord did not participate in either
force incident. Id. at 9, 11-12. After the force incidents, which
included the use of chemical spray, officers brought Plaintiff for
a decontamination shower. Id. at 12. When Plaintiff completed his
2

shower, officers placed a spit shield over Plaintiff’s head. Id.
Plaintiff alleges the officers did so to “hide and cover-up [his]
injuries.” Id.
Before

officers

brought

Plaintiff

inside

the

medical

evaluation room, Plaintiff alleges one of them threatened him by
saying, “how you are treated here depends on what you say and do.”
Id. Plaintiff alleges “the nurse [Gaylord] did not document all
[his] injuries and did not remove the [spit shield] to check the
face for injuries.” Id.1 Plaintiff asserts officers (not Defendant
Gaylord) ignored his subsequent requests to see the doctor. Id. at
13.
As a result of the force incidents, Plaintiff asserts he
suffered a concussion, temporary blindness, respiratory problems,
a pulled muscle, sore fingers, lumps to his head, a “busted nose,”
and black eyes. Id. at 15.
IV. Legal Analysis & Conclusions of Law
A. Exhaustion of Administrative Remedies
Defendant

Gaylord

asserts

Plaintiff

did

not

exhaust

his

administrative remedies because Plaintiff did not timely file his
grievances, he addressed multiple issues in the grievances he

Plaintiff also alleges Defendant Gaylord failed to report
the incidents, suggesting such a failure amounts to a
constitutional violation. See Am. Compl. at 9. In his response to
the motion to dismiss, Plaintiff clarifies he pursues against
Defendant Gaylord one claim for deliberate indifference to serious
medical needs under the Eighth Amendment. See Resp. at 4, 5.
1

3

filed, and he did not grieve a failure to provide medical care
against Defendant Gaylord. See Motion at 5. In response, Plaintiff
contends

he

Secretary

filed

of

the

an

emergency

Florida

grievance

Department

directly

of

with

Corrections

the

(DOC),

permitting him to bypass the informal and formal grievance steps.
See Resp. at 3. Plaintiff asserts his grievance was denied. Id.
The Prison Litigation Reform Act (PLRA) requires exhaustion
of

available

administrative

remedies

before

a

prisoner

may

initiate a § 1983 action with respect to prison conditions. See 42
U.S.C. § 1997e(a) (“No action shall be brought with respect to
prison

conditions

administrative

under

remedies

section
as

are

1983

.

available

.

.

are

until

such

exhausted.”).

Exhaustion of available administrative remedies is “a precondition
to an adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368,
1374 (11th Cir. 2008). See also Jones v. Bock, 549 U.S. 199, 211
(2007). Not only is there a recognized exhaustion requirement,
“the PLRA . . . requires proper exhaustion” as set forth in
applicable administrative rules and policies. Woodford v. Ngo, 548
U.S.

81,

compliance

93

(2006).

with

an

As

such,

agency’s

“[p]roper
deadlines

exhaustion
and

other

demands
critical

procedural rules[.]” Id. at 90.
Under Florida law, proper exhaustion requires a prisoner to
complete a three-step grievance process. See Fla. Admin. Code r.
33-103.001 through 33-103.018. However, a prisoner may bypass the
4

first

two

grievances

steps
of

in

the

reprisals,

case

of

[and]

“[e]mergency

protective

grievances

management,”

and

among

others. Fla. Admin. Code r. 33-103.007(3)(a). A prisoner permitted
to bypass the first two steps may proceed directly to the third
step by filing a grievance with the office of the Secretary of the
DOC. Id. When a prisoner files a grievance directly with the
Secretary’s office, he must do so “within 15 calendar days from
the date on which the incident or action which is the subject of
the grievance occurred.” Fla. Admin. Code Ann. r. 33-103.011(d).
A review of the grievance documents (Doc. 89-1; Def. Ex. A)
shows Plaintiff filed an emergency grievance directly with the
Secretary’s office on October 28, 2016, eleven days after the
incidents. See Def. Ex. A at 1-4. In the grievance, Plaintiff wrote
he was “very upset . . . and afraid” to submit the grievance at
the institutional level because he was unsure whom he could trust.
Id. at 4. Plaintiff reported the two use-of-force incidents. He
also said the officers placed a “bag over [his] face” and then
brought him to the medical examination room. Id. at 2.
Plaintiff does not identify the medical provider by name but
says the “doctor” did not remove the spit shield (mask), which
would have allowed the medical provider to see other signs of
force, including a black eye and a lump on the side of his head.
Id. Plaintiff notes, the officers “had the doctor scared to say
anything.” Id. Plaintiff concludes by saying he was considering
5

filing a lawsuit regarding not only the excessive force incidents
but also for a denial of medical care. Id. at 4. The Secretary’s
office responded to Plaintiff’s emergency grievance on December
20, 2016. Id. at 6. The responding employee denied the grievance
and informed Plaintiff, “[t]he subject of [his] grievance [was]
currently under review by the Departmental Staff.” Id.
By filing the emergency grievance directly to the Secretary,
bypassing the first two steps of the grievance process, Plaintiff
exhausted his administrative remedies. Plaintiff timely filed his
grievance within fifteen days of the incidents. See id. at 1.
Moreover, the Secretary’s office reviewed and denied his grievance
on the merits; it was not returned without action for a violation
of any procedural rules, such as addressing multiple issues or
being untimely.2 Id. at 6. Contrary to Defendant’s representation,
Plaintiff did file a grievance about Defendant Gaylord’s actions,

Defendant’s attorney provides a “composite” exhibit with
numerous grievances, none of which she references by number or
date in the motion, including the October 28, 2016 emergency
grievance. See Motion at 5. Rather, by general reference to the
thirty-five-page exhibit, Defendant’s attorney concludes Plaintiff
did not exhaust his administrative remedies because some
grievances were returned to him without action. Id. It is true
some of Plaintiff’s other grievances were returned to him without
action for various reasons, including untimeliness, failing to
follow administrative guidelines, or for being duplicative of
complaints already under review. See Def. Ex. A at 18, 21, 28, 30,
35. That some of Plaintiff’s grievances were returned without
action does not void the emergency grievance, to which Plaintiff
received an official DOC response before Plaintiff initiated this
action. See Def. Ex. A at 6.
2

6

making more than a “passing” reference to his “trip to the medical
office.” See Motion at 5. While Plaintiff primarily describes the
force incidents, he does complain about the cursory nature of the
physical examination, saying, “[the] doctor checks me over[,]
finds one abrasion on my back and rights [sic] it down[,] not once
removing the mask where he would see other signs, the blood from
my nose, black eye star[t]ing and lumps to my right side of my
head.” Def. Ex. A at 2. Significantly, Plaintiff also claims he
was denied medical care and was considering filing a lawsuit, in
part, because of the denial of medical care. Id. at 4.
Even though Plaintiff does not reference Defendant Gaylord by
name, he was not required to do so. See Fla. Admin. Code r. 33103.005 through 33-103.007. See also Jones v. Bock, 549 U.S. 199,
217

(2007)

(“[N]othing

in

the

statute

imposes

a

‘name

all

defendants’ requirement.”); Parzyck v. Prison Health Servs., 627
F.3d 1215, 1218 (11th Cir. 2010) (“A prisoner need not name any
particular defendant in a grievance in order to properly exhaust
his

claim.”).

Plaintiff’s

emergency

grievance

satisfies

the

“exhaustion requirement[, which] is designed ‘to alert prison
officials to a problem, not to provide personal notice to a
particular official that he may be sued.’” Parzyck, 627 F.3d at
1219 (quoting Jones, 549 U.S. at 219). Accordingly, Defendant
Gaylord’s motion is due to be denied to the extent he seeks

7

dismissal for Plaintiff’s failure to exhaust his administrative
remedies.
B. Qualified Immunity & Failure to State a Claim
Defendant Gaylord argues Plaintiff fails to state a claim
against him for deliberate indifference, which entitles him to
qualified immunity. See Motion at 6-8. Plaintiff responds by
repeating the facts alleged in his Complaint: that Defendant
Gaylord “failed to remove the spit shield, failed to properly
examine Plaintiff for his serious injuries and failed to document
his serious injuries.” Resp. at 4, 5.
An official sued in his individual capacity “is entitled to
qualified

immunity

for

his

discretionary

actions

unless

he

violated ‘clearly established statutory or constitutional rights
of

which

a

reasonable

person

would

have

known.’”

Black

v.

Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting Case v.
Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified immunity
allows government employees to exercise their official duties
without fear of facing personal liability. Alcocer v. Mills, 906
F.3d 944, 951 (11th Cir. 2018). The doctrine protects all but the
plainly incompetent or those who knowingly violate an inmate’s
constitutional rights. Id.
Upon asserting a qualified immunity defense, a defendant
bears the initial burden to demonstrate he was acting within his
discretionary authority at the relevant times. Id. It is undisputed
8

Defendant Gaylord was acting within the scope of his discretionary
duties as a nurse with the DOC at the relevant times. As such, the
burden shifts to Plaintiff, who must demonstrate Defendant Gaylord
violated a constitutional right that was “clearly established” at
the time of the alleged violation. Id.
A claim for deliberate indifference to a serious illness or
injury is cognizable under § 1983. See Estelle v. Gamble, 429 U.S.
97,

104

(1976). “To

show

that

a

prison

official

acted

with

deliberate indifference to serious medical needs, a plaintiff must
satisfy both an objective and a subjective inquiry.” Brown v.
Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (quoting Farrow v.
West, 320 F.3d 1235, 1243 (11th Cir. 2003)). First, the plaintiff
must

allege

he

had

a

serious

medical

need.

Id.

Second,

the

plaintiff must “allege that [the medical provider] . . . acted
with a state of mind that constituted deliberate indifference.”
Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010).
To establish deliberate indifference, [a
plaintiff] must prove (1) subjective knowledge
of a risk of serious harm; and (2) disregard
of that risk (3) by conduct that is more than
mere negligence. Subjective knowledge of the
risk requires that the defendant be “aware of
facts from which the inference could be drawn
that a substantial risk of serious harm
exists, and he must also draw the inference.”
Nam Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla.,
871 F.3d 1272, 1280 (11th Cir. 2017) (internal citations omitted).

9

Allegations of medical negligence are not cognizable under §
1983. Estelle, 429 U.S. at 106 (“Medical malpractice does not
become a constitutional violation merely because the victim is a
prisoner.”). See also Harris v. Thigpen, 941 F.2d 1495, 1505 (11th
Cir. 1991) (“Medical treatment violates the eighth amendment only
when it is ‘so grossly incompetent, inadequate, or excessive as to
shock

the

conscience

or

to

be

intolerable

to

fundamental

fairness.’”). Likewise, “an official’s failure to alleviate a
significant risk that he should have perceived but did not, while
no cause for commendation, cannot . . . be condemned as the
infliction of punishment.” Farmer v. Brennan, 511 U.S. 825, 838
(1994).
Assuming Plaintiff had a serious medical need at the time,
Plaintiff fails to allege Defendant Gaylord acted with deliberate
indifference to that need. Plaintiff alleges only that Defendant
Gaylord failed to “document all [his] injuries and did not remove
the [spit shield] to check the face for injuries.” Am. Compl. at
12. Accepting as true Defendant Gaylord failed to closely inspect
Plaintiff’s face for injuries or failed to document all Plaintiff’s
injuries,

Plaintiff

does

not

allege

Defendant

Gaylord

knew

Plaintiff had injuries serious enough to necessitate immediate
treatment and intentionally ignored those injuries or refused to
provide treatment. To the extent Defendant Gaylord should have

10

discovered injuries that he did not, such an oversight does not
constitute deliberate indifference. See Farmer, 511 U.S. at 838.
Even

if

DOC

guidelines

required

that

Defendant

Gaylord

examine Plaintiff’s entire body including his face, without the
spit shield, a failure to do so amounts to negligence or a simple
violation of internal policies. See Adams v. Poag, 61 F.3d 1537,
1543 (11th Cir. 1995) (“Mere negligence in diagnosing or treating
a

medical

condition

is

an

insufficient

basis

for

grounding

liability on a claim of medical mistreatment under the Eighth
Amendment.”). Moreover, Defendant Gaylord’s failure to remove the
spit shield does not mean he did not

satisfactorily

examine

Plaintiff to the extent Defendant Gaylord, within his medical
judgment, believed necessary. Of note, and as the Court referenced
in its Order on Defendant Harris’s motion for summary judgment,
the spit shield was mesh, and Plaintiff’s face was visible. See
Order (Doc. 90) at 21 (noting the video footage shows Defendant
Gaylord briefly looking through the mesh spit shield to inspect
Plaintiff’s face).
Not only do Plaintiff’s allegations not permit the inference
Defendant Gaylord knew Plaintiff had any serious injuries, it
appears Defendant Gaylord had no reason to even suspect Plaintiff
could have had serious injuries. It is undisputed Defendant Gaylord
was not involved in or present during either force incident. See
Am. Compl. at 11-12, 28, 34. Plaintiff alleges the officers who
11

used force against him placed the spit shield over his face to
“cover-up” his injuries. Id. at 12. And, the medical records (Docs.
99-3, 99-4; Pl. Ex. C, Pl. Ex. D) suggest Defendant Gaylord knew
only of the use of chemical spray, not the use of physical force,
lending credence to Plaintiff’s suggestion of a “cover-up.” In the
emergency room record, Defendant Gaylord noted the reason for the
medical examination as “post use of force by security[,] chemical
agents applied.” Pl. Ex. C at 2. There is no reference to physical
force being used against Plaintiff. Id. The physical examination
revealed only an abrasion on Plaintiff’s back, which was not
bleeding. Id.; see also Pl. Ex. D at 2. Plaintiff exhibited no
signs or symptoms of acute distress and voiced no complaints. Pl.
Ex. C at 2.3
In sum, Plaintiff asserts no facts permitting a reasonable
inference that Defendant Gaylord “acted with a state of mind that
constituted deliberate indifference,” Richardson, 598 F.3d at 737,

Accepting as true Plaintiff’s allegation that a Defendantofficer threatened him against reporting what happened, see Am.
Compl. at 12, his failure to voice complaints is not surprising.
In his response to Defendant Gaylord’s motion, Plaintiff suggests
Defendant Gaylord “contribut[ed] to the cover up of [Plaintiff’s]
injuries and the use of excessive force.” See Resp. at 5. However,
Plaintiff does not allege in his Complaint that Defendant Gaylord
was complicit in any plan to conceal the alleged events or his
injuries. See Am. Compl. at 12. In fact, in the grievance documents
Plaintiff provides in support of his Complaint, he attributes the
nurse’s failure to thoroughly examine him to intimidation by the
other Defendant-officers. Id. 28, 34. Plaintiff states, “I think
they have the nurse scared to say anything.” Id.
3

12

or that the physical examination was “so grossly incompetent,
inadequate, or excessive as to shock the conscience,” Harris, 941
F.2d 1495. As such, Defendant Gaylord is entitled to qualified
immunity, and his motion is due to be granted.4
V. Case Status & Appointment of Counsel
This case is in a posture to proceed to settlement conference
and, if necessary, trial. Accordingly, the Court finds Plaintiff
is entitled to the appointment of counsel.5 This Court has broad
discretion in determining whether the appointment of counsel is
appropriate in a civil rights action. Defendants are represented
by

counsel,

the

parties

demand

a

jury

trial,

and

there

are

sufficiently complex factual and constitutional issues involved in
this litigation. Plaintiff will require the assistance of counsel
at a settlement conference and, if the case does not settle, at
pretrial conference and trial. Therefore, the Court will refer

In light of the Court’s ruling on qualified immunity, the
Court will not address the remainder of Defendant’s arguments
raised in his motion.
4

The Court ruled on Defendants McCray, Davis, Mosely, North’s
and Defendant Harris’s motions for summary judgment on July 26,
2019. See Order (Doc. 90). Defendant Moots, who Plaintiff
identified as John Doe “C” in his Complaint, see Am. Compl. at 5,
12, filed an Answer on October 13, 2019 (Doc. 101). Plaintiff’s
allegations against Defendant Moots are similar to those against
the Defendants who moved for summary judgment. To the extent
Plaintiff’s claim against Defendant Moots requires the parties to
exchange additional discovery, the Court will allow the parties
time to do so after Plaintiff is appointed counsel, upon notice by
the parties.
5

13

this case to the Jacksonville Division Civil Pro Bono Appointment
Program.
Accordingly, it is now
ORDERED:
1.

Defendant

Gaylord’s

Motion

to

Dismiss

(Doc.

89)

is

GRANTED.
2.

Plaintiff’s claim against Defendant Gaylord is DISMISSED

with prejudice.
3.

The Clerk of Court is directed to terminate Defendant

Gaylord from this action.
4.

This case is referred to the Jacksonville Division Civil

Pro Bono Appointment Program so the designated deputy clerk of
the Court may seek counsel to represent Plaintiff.
DONE AND ORDERED at Jacksonville, Florida, this 31st day of
October, 2019.

Jax-6
c:
Chester R. Hoffmann
Counsel of Record

14