Kornagay v. Dicdoman et al

Filing 29

ORDER denying 13 Wilburn's Motion to Dismiss; denying 20 Diedeman's Motion to Dismiss; denying 16 Wilburn's Motion to Strike. Response to Complaint due no later than October 17, 2018. Signed by Judge Marcia Morales Howard on 9/10/2018. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ROBERT D. KORNAGAY,
Plaintiff,
v.

Case No. 3:17-cv-795-J-34MCR

OFFICER T. DIEDEMAN AND
SERGEANT J. WILBURN,
Defendants.
ORDER
I. Status
Plaintiff Robert D. Kornagay, an inmate of the Florida penal
system, initiated this action on July 12, 2017, by filing a Civil
Rights Complaint Form (Complaint; Doc. 1) pursuant to 42 U.S.C. §
1983. In the Complaint, Kornagay names the following individuals as
Defendants: (1) Officer T. Diedeman,1 and (2) Sergeant J. Wilburn.
He asserts that the Defendants violated his Eighth Amendment right
when they failed to protect him from inmate assaults on February 4,
2017,

at

Columbia

Correctional

Institution

(CCI).

As

relief,

Kornagay seeks compensatory, punitive and nominal damages as well
as declaratory relief.
Before the Court are Defendant Wilburn's Motion to Dismiss
Plaintiff's Complaint with Prejudice (Wilburn Motion; Doc. 13), and
1

See Order of Special Appointment; Redirecting Service of
Process Upon Defendant Diedeman (Order; Doc. 17) at 1 n.1
(directing the Clerk to correct the spelling of Defendant's name).

Defendant Diedeman's Motion to Dismiss Plaintiff's Complaint with
Prejudice (Diedeman Motion; Doc. 20) with exhibits (Def. Ex.; Docs.
13-1 through 13-8; Docs. 20-1 through 20-7). The Court advised
Kornagay that granting a motion to dismiss would be an adjudication
of the case that could foreclose subsequent litigation on the
matter, and gave him an opportunity to respond. See Order (Doc.
17). Kornagay filed responses in opposition to the motions. See
Motion in Opposition (Doc. 15) with exhibits (P. Ex.; Docs. 15-1
through 15-8); Motion in Opposition (Doc. 23); Amended Motion in
Opposition to Defendants' Motion to Dismiss (Response; Doc. 27).
Also before the Court is Defendant Wilburn's Motion to Strike
Portions of Plaintiff's Response to Defendant's Motion to Dismiss
Plaintiff's Complaint with Prejudice for Failing to State a Cause
of Action (Motion to Strike; Doc. 16). Kornagay filed a response in
opposition to the motion. See Plaintiff's Motion in Opposition to
Defendant's Motion to Strike (Doc. 18; Opposition).

Accordingly,

this matter is ripe for review.
II. Complaint
Kornagay

asserts

that

he

was

involved

in

a

physical

altercation with two inmates at approximately 11:45 a.m. through
2:45 p.m. on February 4, 2017, at CCI. See Complaint at 6-7. He
describes the altercation as a knife fight that lasted over two and
one-half hours as Defendants Diedeman and Wilburn "watched and
cheered" from the officers' station. Id. at 7. He states that he

2

requested Defendants' help when he "became overwhelmed with the
battle." Id. He avers that he explained to Defendants that he was
tired and could not continue to hold off the inmates and therefore
asked to leave the dormitory. See id. Kornagay quotes Diedeman's
response: "You were looking like a real soldier, so don't turn into
a pu**y now. Go see if you could get one of your home boys to help
you, so you can turn this thing into a two on two." Id. Kornagay
maintains that Defendants neither helped him, called for back-up
assistance, nor ordered the assailants to put down their homemade
knives. See id. According to Kornagay, Diedeman directed him to
return to the wing, and one of the assailants "dashed" him with
boiling hot water. Id.
Kornagay states that the armed assailants forced him to
retreat into his cell and lock the door. See id. He maintains that
Diedeman yelled over the intercom "stop being a pu**y," and then
unlocked Kornagay's cell door. Id. at 8. According to Kornagay,
Diedeman continued to press the unlock button in the officers'
station to ensure that Kornagay could not lock his cell door again.
See id. He avers that he "walked out of his cell only to find
himself under the attack again." Id. He declares that he returned
to his cell and locked the door to escape the armed assailants. See
id. Kornagay asserts that Diedeman again unlocked the cell door and
pressed the unlock button. See id. According to Kornagay, he left
his cell again "only to find himself under attack and trapped,"

3

fled from the armed assailants, secured himself in another cell,
and locked its door. Id. He asserts that the two inmates stood
outside the cell with their weapons "ready and visible" and waved
for the Defendants to unlock the cell door. Id. Kornagay maintains
that Diedeman unlocked the cell door and pressed the unlock button
a third time. See id.
Kornagay maintains that the inmate(s) stabbed him fifteen
times with a homemade knife as "a direct result" of Diedeman
unlocking the cell door. Id. at 9. Kornagay avers that he suffered
a punctured left lung, second-degree chest burn, and excruciating
pain. See id. He states that he was wheelchair-bound for a month,
and spent over two weeks at the Reception and Medical Center (RMC)
with a painful lung infection. See id. He declares that he suffers
from

mental

anguish,

emotional

distress,

anxiety

attacks,

sleeplessness, humiliation, embarrassment, and fear. See id. He
asserts

that

videotape

evidence

supports

his

assertions,

and

attorney James V. Cook sent the Florida Department of Corrections
(FDOC) Secretary and FDOC General Counsel a preservation notice and
requested

that

they

preserve

the

videotape

and

all

evidence

relevant to an anticipated legal action. See id. According to
Kornagay, he exhausted his administrative remedies as to the
claims. See id.

4

III. Summary of Arguments
Defendants

maintain

that

the

Court

should

dismiss

the

Complaint with prejudice because Kornagay failed to exhaust his
administrative remedies, as required by the Prison Litigation
Reform Act (PLRA), before filing the 42 U.S.C. § 1983 lawsuit. See
Wilburn Motion; Diedeman Motion. Kornagay opposes Defendants'
Motions, and asserts that he exhausted his administrative remedies
as to his claims against Defendants. See Response. He states that
his final appeal to the FDOC Secretary was resolved on its merits,
and the issue was referred to the Office of the Inspector General
for an investigation. See id. at 1.
IV. Exhaustion of Administrative Remedies
A. Exhaustion under the PLRA
Exhaustion of available administrative remedies is required
before a 42 U.S.C. § 1983 action with respect to prison conditions
may be initiated in this Court by a prisoner. See 42 U.S.C. §
1997e(a). Nevertheless, a prisoner such as Kornagay is not required
to plead exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007).
Instead, the United States Supreme Court has recognized "failure to
exhaust is an affirmative defense under the PLRA[.]" Id. Notably,
exhaustion of available administrative remedies is "a precondition
to an adjudication on the merits" and is mandatory under the PLRA.
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008); Jones, 549
U.S. at 211; Woodford v. Ngo, 548 U.S. 81, 85 (2006) ("Exhaustion

5

is no longer left to the discretion of the district court, but is
mandatory.") (citation omitted). Not only is there an exhaustion
requirement, "the PLRA exhaustion requirement requires proper
exhaustion." Woodford, 548 U.S. at 93.
Because
exhaustion
requirements
are
designed to deal with parties who do not want
to exhaust, administrative law creates an
incentive for these parties to do what they
would otherwise prefer not to do, namely, to
give the agency a fair and full opportunity to
adjudicate their claims. Administrative law
does this by requiring proper exhaustion of
administrative remedies, which "means using
all steps that the agency holds out, and doing
so properly (so that the agency addresses the
issues on the merits)." Pozo,[2] 286 F.3d, at
1024. . . .
Id. at 90. And, "[p]roper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules . . . ." Id.
As such, the United States Supreme Court has emphasized:
Courts may not engraft an unwritten
"special circumstances" exception onto the
PLRA's exhaustion requirement. The only limit
to § 1997e(a)'s mandate is the one baked into
its text: An inmate need exhaust only such
administrative remedies as are "available."
Ross v. Blake, 136 S.Ct. 1850, 1862 (2016).
The determination of whether an inmate exhausted his available
administrative remedies prior to filing a cause of action in
federal court is a matter of abatement and should be raised in a
motion to dismiss. Bryant, 530 F.3d at 1374. The Eleventh Circuit

2

Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).
6

has explained the two-step process that the Court must employ when
examining the issue of exhaustion of administrative remedies.
After a prisoner has exhausted the
grievance procedures, he may file suit under §
1983. In response to a prisoner suit,
defendants may bring a motion to dismiss and
raise as a defense the prisoner's failure to
exhaust these administrative remedies. See
Turner, 541 F.3d at 1081.[3] In Turner v.
Burnside we established a two-step process for
resolving motions to dismiss prisoner lawsuits
for failure to exhaust. 541 F.3d at 1082.
First, district courts look to the factual
allegations in the motion to dismiss and those
in the prisoner's response and accept the
prisoner's view of the facts as true. The
court should dismiss if the facts as stated by
the prisoner show a failure to exhaust. Id.
Second, if dismissal is not warranted on the
prisoner's view of the facts, the court makes
specific findings to resolve disputes of fact,
and should dismiss if, based on those
findings, defendants have shown a failure to
exhaust. Id. at 1082–83; see also id. at 1082
(explaining that defendants bear the burden of
showing a failure to exhaust).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th
Cir. 2015); see Pavao v. Sims, 679 F. App'x 819, 823-24 (11th Cir.
2017) (per curiam).
B. Exhaustion under Florida's Prison Grievance Procedure
The FDOC provides an internal grievance procedure for its
inmates. See FLA. ADMIN. CODE r. 33-103.001 through 33-103.018.
Generally, to properly exhaust administrative remedies, a prisoner
must complete a three-step sequential process. First, an inmate

3

Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
7

must submit an informal grievance to a designated staff member at
the institutional level. See FLA. ADMIN. CODE r. 33-103.005. If the
issue is not resolved, the inmate must submit a formal grievance at
the institutional level. See FLA. ADMIN. CODE r. 33-103.006. If the
matter is not resolved at the institutional level, the inmate must
file an appeal to the Office of the Secretary of the FDOC. See FLA.
ADMIN. CODE r. 33-103.007.
However, under specified circumstances, an inmate can bypass
the informal-grievance stage and start with a formal grievance at
the institutional level. See FLA. ADMIN. CODE r. 33-103.005(1); 33103.006(3). Or, an inmate can completely bypass the institutional
level and proceed directly to the Office of the Secretary of the
FDOC by filing a "direct grievance." See FLA. ADMIN. CODE r.
33-103.007(6). Emergency grievances and grievances of reprisal are
types of "direct grievances" that may be filed with the Office of
the Secretary. See FLA. ADMIN. CODE r. 33-103.007(6)(a). In a
direct grievance to the Secretary, the inmate "must clearly state
the

reason

for

not

initially

bringing

the

complaint

to

the

attention of institutional staff and by-passing the informal and
formal grievance steps of the institution or facility . . . ." FLA.
ADMIN. CODE r. 33-103.007(6)(a)2. If the Secretary determines that
the grievance does not qualify as one of the types of direct
grievances described in the rule, the grievance must be returned to
the inmate, stating the reasons for its return and advising the

8

inmate to resubmit the grievance at the appropriate level. See FLA.
ADMIN. CODE r. 33-103.007(6)(d). If the grievance is returned to
the

institution

or

facility

for

further

investigation

or

a

response, the inmate may, after receiving the response, re-file
with the Secretary if he is not satisfied with the response. See
FLA. ADMIN. CODE r. 33-103.007(7).
Florida Administrative Code Rule 33-103.011 provides time
frames for submission of grievances. Generally, the following time
limits are applicable. Informal grievances must be received within
twenty days from the date on which the incident or action that is
the subject of the grievance occurred. See FLA. ADMIN. CODE r. 33103.011(1)(a). Formal grievances must be received no later than
fifteen

days

from

the

date

of

the

response

to

the

informal

grievance. See FLA. ADMIN. CODE r. 33-103.011(1)(b). Similarly,
grievance appeals to the Office of the Secretary must be received
within fifteen days from the date the response to the formal
grievance is returned to the inmate. See FLA. ADMIN. CODE r.
33-103.011(1)(c). Additionally, Rule 33-103.011(4) provides:
The
time
limit
for
responding
to
grievances and appeals may be extended for a
reasonable period agreeable to both parties if
the extension is agreed to in writing by the
inmate. Unless the grievant has agreed in
writing to an extension, expiration of a time
limit at any step in the process shall entitle
the complainant to proceed to the next step of
the grievance process. If this occurs, the
complainant must clearly indicate this fact
when filing at the next step. If the inmate
does not agree to an extension of time at the
9

central office level of review, he shall be
entitled to proceed with judicial remedies as
he would have exhausted his administrative
remedies. The Bureau of Policy Management and
Inmate Appeals will nevertheless ensure that
the grievance is investigated and responded to
even though an extension has not been agreed
to by the inmate.
FLA. ADMIN. CODE r. 33-103.011(4).
According to Rule 33-103.014, an informal grievance, formal
grievance, direct grievance, or grievance appeal "may be returned
to the inmate without further processing if, following a review of
the grievance, one or more ... conditions are found to exist." FLA.
ADMIN. CODE r. 33-103.014(1). The rule provides an enumerated list
as "the only reasons for returning a grievance without a response
on the merits." See FLA. ADMIN. CODE r. 33-103.014(1)(a)-(x). Some
of the reasons for returning a grievance are as follows: the
grievance "addresses more than one issue or complaint" or "is so
broad, general or vague in nature that it cannot be clearly
investigated, evaluated, and responded to" or "is not written
legibly and cannot be clearly understood" or is a supplement to a
previously-submitted grievance that has been accepted for review;
and the inmate "did not provide a valid reason for by-passing the
previous levels of review as required or the reason provided is not
acceptable," or "used more than two (2) additional narrative
pages." See FLA. ADMIN. CODE r. 33-103.014(1)(a), (b), (c), (f),
(q), (t).

10

C. Analysis of Kornagay's Efforts to Exhaust
In the Complaint, Kornagay asserts that the Defendants failed
to protect him from the inmate assaults on February 4, 2017. He
also avers that he fully exhausted his claims through completion of
the administrative grievance process. Nevertheless, Defendants
maintain that the Court should dismiss the claims against them
because Kornagay failed to exhaust his administrative remedies, as
required by the PLRA, before filing this § 1983 lawsuit. As the
initial step in the two-part process for deciding motions to
dismiss for failure to exhaust under the PLRA, the Eleventh Circuit
has instructed:
District courts first should compare the
factual allegations in the motion to dismiss
and those in the prisoner's response and,
where there is a conflict, accept the
prisoner's view of the facts as true. "The
court should dismiss if the facts as stated by
the prisoner show a failure to exhaust." Id.[4]
Pavao, 679 F. App'x at 823-24. Within this framework, the Court
will compare the factual assertions in Defendants' Motions5 and
those in Kornagay's Response. Thus, a chronology of Kornagay's
exhaustion efforts is as follows.
Kornagay asserts that he submitted an informal grievance about
the February 4, 2017 incident on February 7th. See Response at 4;

4

Whatley, 802 F.3d at 1209.

5

The factual assertions in Defendants' Motions are strikingly
similar. See Wilburn Motion; Diedeman Motion.
11

P. Ex. C, Kornagay's Declaration, at 1-2. He declares that he
submitted a formal grievance to the RMC Warden on February 18th
when

he

did

grievance.

not

See

receive

id.

a

timely

According

to

response

Kornagay,

to

he

the

informal

never

received

responses to the informal and formal grievances.6 See P. Ex. C at
2.
Kornagay

submitted

an

emergency

grievance

to

the

FDOC

Secretary on February 9th because he feared his life would be in
danger if he was transferred back to CCI. See P. Ex. B, #17-607887; P. Ex. C; Def. Ex. 1. In the grievance, Kornagay described
the February 4th incident, and requested an investigation, an
interview with the Inspector, and preservation of the videotape.
See id. The RMC mailroom received the grievance on February 13th,
and the Bureau of Policy Management and Inmate Appeals (Bureau)
received it on February 23rd. See P. Ex. B; Def. Ex. 1. On February
24th, the Bureau responded and returned it to Kornagay for failure
to follow the grievance procedure. See id. The Bureau determined it
was not an emergency and advised Kornagay that the institution
should be given the opportunity to respond to the issue, and
therefore, he needed to resubmit the grievance at the proper level

6

Kornagay asserts he could not attach the grievances he
submitted on February 7th and 18th because "once he put them in the
locked grievance box he never received any kind of response to
them," and they were never logged. Opposition at 5; see id. at 4
(citing FLA. ADMIN. CODE r. 33-103.005(4)(b) and (c)).
12

if he was within the allowable time frames for processing. See id.
Kornagay states he did not submit the emergency grievance to
satisfy the exhaustion requirement, but rather as an urgent means
to "save his own life" by requesting that the FDOC not transfer him
back to CCI. Response at 3.
On March 3, 2017, Kornagay submitted a formal grievance to the
Warden and requested preservation of the videotape footage related
to the February 4th incident. See P. Ex. H, Grievance #1703-125043; Def. Ex. 2. On March 20, 2017, Classification Secretary K.
Hauser stated in pertinent part:
The issue of your complaint has previously
been referred to the Office of the Inspector
General
for
appropriate
action.
Upon
completion of necessary action, information
will be provided to appropriate administrators
for final determination and handling. This may
or may not result in a personal interview with
you.
As action has been initiated, you may consider
your
request
for
administrative
remedy
approved from that standpoint. This does not
constitute substantiation of your allegations.
P. Ex. H at 4; Def. Ex. 2. On May 8th, Classification Secretary K.
Hauser submitted an amended response, stating in pertinent part:
Your request for administrative remedy has
been reviewed and evaluated and response
provided by Alisha Washington Grievance
Coordinator Columbia C.I.
Video is kept for 30 days. The retained video
of the incident was turned over to the
Inspector General's Office.

13

The issue of your complaint has previously
been referred to [the] Office of the Inspector
General
for
appropriate
action.
Upon
completion of necessary action, information
will be provided to appropriate administrators
for final determination and handling. This may
or may not result in a personal interview with
you.
As action has been initiated, you may consider
your
request
for
administrative
remedy
approved from that standpoint. This does not
constitute substantiation of your allegations.
Def. Ex. 5 at 1.
Kornagay states that he described his thwarted exhaustion
attempts in a March 16, 2017 letter to the Office of the Inspector
General.7 See P. Ex. D.
I'm filing this complaint relating to the
ongoing
interference/interception
of
my
informal and formal grievances.
As of this moment, I have made multiple
attempts to exhaust my administrative remedies
by completing the three step process. But
every time I file a[n] informal grievance
relating to prison officials at Columbia C.I.
helping the two inmates stab me 13 times on
February 4, 2017, the grievance comes up
missing as if it was never filed. These
grievances are not even being logged in.
On February 7th and 18th, 2017, I filed
informal grievances[8] about the mentioned
issue - while housed at RMC. As of this date,
I never heard anything back. In accordance
with Chapter 33, I moved to the next level of

7

A formal stamp on Kornagay's letter shows that Northwest
Florida Reception Center (NWFRC) received his letter on March 20,
2017. See P. Ex. D.
8

See Response at 4.
14

the grievance process and filed formal
grievances.[9] But as of this date, I never
received any receipt for the grievances, as
required by F.A.C. Chapter 33-103.006(5)(b),
or any kind of response. As of this date, the
only response I ever received was to a direct
formal grievance I wrote to the Secretary of
DOC as a[n] Emergency/Reprisal grievance, Log
# 17-6-07887.[10]
Since I have been at NWFRC, I have filed
multiple grievances about the mentioned issue.
But I'm experiencing the same problems. It is
as if the grievance coordinators at RMC and
NWFRC have been coached to stop all of my
grievances related to this issue. As it is
well known through out the Department of
Corrections, that a[n] inmate cannot pursue
his
claims
in
civil
court
unless
he
exhaust[ed] his administrative remedies.
I'm a[n]
procedure and
to follow the
my grievances
no where else

inmate who knows the grievance
has done everything in my power
grievance procedure. But all of
are being intercepted and I have
to turn.

Id. at 2-3. The Office of the Chief Inspector General responded on
March 27th, in pertinent part:
The Office of the Chief Inspector General
received your complaint on March 27, 2017, in
which you expressed concerns about the
handling of your grievances at Columbia
Correctional
Institution,
Reception
and
Medical
Center,
and
Northwest
Florida
Reception Center - Annex.
After having had the opportunity to
review your concerns, by copy of this letter,
we are referring your complaint to the
Inspector General for the Department of

9

10

See P. Ex. G; Def. Ex. 3.
See P. Ex. B; Def. Ex. 1.
15

Corrections for
appropriate.

review

and

action

deemed

Id. at 4, Chief Inspector General Correspondence #2017-03-27-0007.
According to Kornagay, he called the TIPS hotline and reported
the February 4, 2017 incident as well as "the fact that prison
officials were intercepting all of [his] grievances about the
issue." P. Ex. C at 3; Response at 5. He states that Ms. Knight
with the Inspector General's Office spoke with him the next day in
a recorded interview. See id. He declares that Ms. Knight directed
him to keep filing grievances about the incident. See P. Ex. C at
3; Response at 6. He maintains that he followed Ms. Knight's advice
and submitted another informal grievance on March 5th, but never
received a response. See Response at 6; P. Exs. E; F.
Kornagay asserts that he submitted a formal grievance to the
Warden on March 15, 2017, complaining about the February 4th
incident and requesting preservation of the videotape and an
investigation. See P. Ex. G, Grievance #1703-125-112; Def. Ex. 3.
In the grievance, he explained in pertinent part:
I, Robert D. Kornagay, hereby moves to
the next level in the grievance process
because prison officials at Columbia C.I. has
[sic] failed to address my grievance in a
timely manner. (In fact, none of my informal
grievances
about
this
issue
has
been
answered).
P. Ex. G at 1; Def. Ex. 3. On March 16th, Classification Secretary
K. Hauser returned the grievance without further processing and
stated in pertinent part:
16

This is a duplicate grievance of grievance
#1703-125-043
which
was
received
on
03/07/2017. You will be responded to in a
timely manner regarding this issue.
Your grievance is being returned without
further processing per ch. 33-103.014(1)(q)[.]
The inmate has filed a supplement to a
grievance or appeal that has already been
accepted.[11] An exception will be made when
the
supplement
contains
relevant
and
determinative
information
that
was
not
accessible to or known by the inmate at the
time the original grievance or appeal was
filed.
P. Ex. G at 4; Def. Ex. 3.
On March 21st, Kornagay submitted a grievance to the FDOC
Secretary and requested preservation of the videotape footage. See
Def. Ex. 5. On April 6th, W. Millette stated that the appeal was
referred to the Warden for appropriate handling and action. See id.
On March 22nd, Kornagay complained to the FDOC Secretary in
grievance #17-6-13354 that NWFRC officers misconstrued grievance
#1703-125-112 as a supplement to #1703-125-043. See P. Ex. A; Def.
Ex. 4. He states that the grievances addressed separate issues:
videotape preservation and the February 4th incident. See Response
at 6-7; P. Exs. A; G; H; Def. Exs. 2; 3; 4. On April 6th, W.
Millette responded as follows:
Your appeal has been reviewed and evaluated.
The subject of your grievance was previously
referred to the Office of the Inspector
General. It is the responsibility of that
office to determine the amount and type of

11

See P. Ex. H; Def. Ex. 2.
17

inquiry
that
will
be
conducted.
This
inquiry/review may or may not include a
personal interview with you. Upon completion
of this review, information will be provided
to appropriate administrators for final
determination and handling.
As this process was initiated prior to the
receipt of your appeal, your request for
action by this office is denied.
P. Ex. A at 4; Def. Ex. 4.
Kornagay acknowledges that, throughout the grievance process,
he did not identify the officers or inmates involved in the
February 4th incident because he did not know their names until
months later. See Response at 3-4, 8. As to this issue, the United
States Supreme Court has stated: "The level of detail necessary in
a grievance to comply with the grievance procedures will vary from
system to system and claim to claim, but it is the prison's
requirements, and not the PLRA, that define the boundaries of
proper exhaustion." Jones, 549 U.S. at 218. The FDOC rules provide
that the inmate must include accurately stated facts, and the
grievance will be returned if it is "so broad, general or vague in
nature that it cannot be clearly investigated, evaluated, and
responded

to."

FLA.

ADMIN.

CODE

r.

33-103.007(2)(e);

33-103.014(1)(b). Although Kornagay failed to identify the two
inmates and the officers, he provided a detailed account of what
transpired that day, including the locations and times. Moreover,
the FDOC referred the issue to the Inspector General for an
investigation.
18

Accepting Kornagay's responsive assertion (that he exhausted
administrative remedies) as true, a dismissal is not warranted. As
previously

discussed,

if

dismissal

is

not

warranted

on

the

prisoner's view of the facts (first step), the court makes specific
findings to resolve any factual disputes (second step), and should
dismiss if, based on those findings, Defendants have shown a
failure to exhaust. Turner, 541 F.3d at 1082-83. As to the second
step in the two-part procedure, Defendants bear the burden of
proving

that

Kornagay

failed

to

exhaust

his

available

administrative remedies as to Kornagay's Eighth Amendment claims
against them. See id. at 1082 (citation omitted). Defendants have
not

met

their

burden.

On

this

record,

Kornagay

sufficiently

exhausted the claims, and provided documentation showing that he
notified the appropriate authorities when he did not receive
responses to his informal and formal grievances. Notably, the FDOC
referred the issues related to the February 4, 2017 incident to the
Inspector General's Office for investigation. As such, Defendants'
Motions as to exhaustion are due to be denied.
D. Defendant Wilburn's Motion to Strike
Defendant Wilburn objects to Kornagay's assertions that the
FDOC intercepted his grievances, and therefore moves to strike the
allegations as scandalous pursuant to Rule 12(f)(2), Federal Rules
of Civil Procedure (Rule(s)). See Motion to Strike at 1. Kornagay
filed a response in opposition to the motion. See Opposition. Upon

19

review, the Court determines that the Motion to Strike is due to be
denied because it is procedurally improper. Rule 12(f)(2) provides
that, upon motion by a party, the Court "may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter." However, only material found in a "pleading"
may be stricken pursuant to Rule 12(f). See Jeter v. Montgomery
Cty., 480 F. Supp. 2d 1293, 1296 (M.D. Ala. 2007). Rule 7(a)
defines which documents constitute pleadings.12 See Scarborough v.
Principi,

541

U.S.

401,

417

(2004)

(noting

that

Rule

7(a)

"enumerat[es] permitted 'pleadings'"). A response in opposition to
a motion to dismiss is not considered a pleading. See Jeter, 480 F.
Supp. 2d at 1296 ("From Rules 12(f) and 7(a), it follows perforce
that a response in opposition to a motion to dismiss is not a
'pleading.'").

Defendant's

Motion

to

Strike

is

directed

at

Kornagay's response to his motion to dismiss - a filing that does
not constitute a pleading. Thus, the remedy provided in Rule 12(f)
is not available.

12

Specifically, Rule
pleadings are allowed":

7(a)

provides

that

"[o]nly

(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated
counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
20

these

as

a

In consideration of the foregoing, it is now
ORDERED:
1.

Wilburn's Motion to Dismiss Plaintiff's Complaint with

Prejudice (Doc. 13) and Defendant Diedeman's Motion to Dismiss
Plaintiff's Complaint with Prejudice (Doc. 20) are DENIED.
2.

Defendant

Wilburn's

Motion

to

Strike

Portions

of

Plaintiff's Response to Defendant's Motion to Dismiss Plaintiff's
Complaint with Prejudice for Failing to State a Cause of Action
(Doc. 16) is DENIED.
3.

Defendants, no later than October 17, 2018, must answer

or otherwise respond to the Complaint.
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
September, 2018.

sc 8/23
c:
Robert D. Kornagay
Counsel of Record

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