Burgess v. Hodgson et al

Filing 92

ORDER granting in part and denying in part 78 Defendant Cruz's Motion to Dismiss; denying 79 Defendant Dunaway's Motion to Dismiss; Defendants Cruz and Dunaway shall answer the Complaint and file a notice within 14 days. See Order for details. Signed by Senior Judge Brian J. Davis on 5/31/2024. (JLD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JEROME BURGESS
a.k.a. Sham’la God Allah,
Plaintiff,
v.

Case No. 3:22-cv-416-BJD-PDB

CHRISTOPHER HODGSON, et al.,
Defendants.
___________________________
ORDER
I.

Status
Plaintiff, an inmate in the Florida Department of Corrections (FDOC)

who is proceeding as a pauper, initiated this case by filing a pro se Civil Rights
Complaint (Doc. 1) against Warden Christopher Hodgson, Dr. Alexis Figueroa,
Nurse Dunaway, Correctional Officer Young, and Dr. Cruz.1 Before the Court
are Motions to Dismiss filed by Defendants Cruz (Doc. 78) and Dunaway (Doc.
79). Plaintiff has responded to both Motions (Docs. 88, 89).

Plaintiff also named Nurse Andrews, but the Court dismissed all claims against
Andrews. See Order (Doc. 90).

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II.

Plaintiff’s Allegations2
In the Complaint, Plaintiff contends that while at Suwannee

Correctional Institution, he was diagnosed with high blood pressure, thyroid
complications, and urinary retention left side paralysis. Doc. 1 at 13. Plaintiff
is also dependent on a wheelchair. Id. Medical staff prescribed Plaintiff
multiple medications and “coude catheters” for his urinary retention to be used
four times per day. Id. From March 2018 to August 2019, Plaintiff filed
multiple grievances about being denied catheters. Id. In response, the Warden,
Cruz, and Figueroa would assure Plaintiff that he would receive the proper
catheters. Id.
During the entire month of October 2018, Plaintiff was denied the use of
coude catheters, which caused him to have 5 seizures. Id. at 14. He suffered “a
great deal of pain, lost his memory, knocked out his left rear tooth, cracked his
left ribs, reinjured his left foot (in which he has foot drop) and reinjured his left
index finger.” Id. This occurred while Plaintiff continued to ask Cruz and
Figueroa why he was not receiving his catheters, to which they responded that
“‘they either forgot to order them or would order them.’” Id.

The Court’s summary focuses on the allegations as to Defendants Cruz and
Dunaway.
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On April 15, 2019, Defendant Dunaway and another unnamed nurse
called Plaintiff “a p*ssy mother f*cker’ and mushing him in the face,
threaten[ed] to have their officer buddies commit bodily harm upon the
Plaintiff if his lawyer continue[d] to e-mail/write letters to Defendants
Hodgson, Figueroa and Cruz.” Id. at 15. Dunaway told Plaintiff that “the
reason she makes sure that the Plaintiff doesn’t receive his coude catheters is
because she hates inmates that sue the state D.O.C. employees.” Id. at 15-16.
On August 28, 2019, Plaintiff was given four coude catheters, but upon
using one, he “noticed the tip of the catheter missing,” and Plaintiff was
bleeding and in severe pain. Id. at 17. While waiting to be seen by the doctor,
“Dunaway came into the prison’s ER-room and told the Plaintiff[,] ‘I told you
I’ll get your ass . . . .’” Id. At the hospital, “the intake nurse and doctor both
agreed that someone deliberately cut the catheter so that it would get stuck.”
Id.
III.

Discussion

Defendants Dunaway and Cruz both argue that Plaintiff failed to
exhaust his administrative remedies prior to filing this case and that the
claims against them should be dismissed because they were not timely served
with process. Additionally, Defendant Cruz contends that Plaintiff fails to state

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a retaliation or deliberate indifference claim against him. Each argument is
addressed in turn.
a. Exhaustion
Exhaustion of administrative remedies by a prisoner is “a threshold
matter” to be addressed before considering the merits of a case. Chandler v.
Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004); see also Myles v. Miami-Dade
Cnty. Corr. & Rehab. Dep’t, 476 F. App’x 364, 366 (11th Cir. 2012).3 Not only
is there an exhaustion requirement, the PLRA “requires proper exhaustion.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006).
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,[4] 286 F.3d, at 1024 (emphasis in original).

The Court does not rely on unpublished opinions as binding precedent; however,
they may be cited in this Order when the Court finds them persuasive on a particular
point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022); see
generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.”).
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Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).
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Woodford, 548 U.S. at 90. And, “[p]roper exhaustion demands compliance with
an agency’s deadlines and other critical procedural rules.” Id.
Because failure to exhaust administrative remedies is an affirmative
defense, a defendant bears “the burden of proving that the plaintiff has failed
to exhaust his available administrative remedies.” Turner v. Burnside, 541
F.3d 1077, 1082 (11th Cir. 2008). A court must employ a two-step process 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. 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).
At step two of the procedure established in Turner, the Court can consider facts
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outside the pleadings as long as those facts do not decide the case and the
parties have had sufficient opportunity to develop the record. Bryant, 530 F.3d
at 1376; see also Jenkins v. Sloan, 826 F. App’x 833, 838-39 (11th Cir. 2020). A
“prisoner need not name any particular defendant in a grievance in order to
properly exhaust his claim.” Parzyck v. Prison Health Servs., Inc., 627 F.3d
1215, 1218 (11th Cir. 2010).
State law “determines what steps are required to exhaust.” Dimanche v.
Brown, 783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218
(stating that “it is the prison’s requirements, and not the PLRA, that define
the boundaries of proper exhaustion”). 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
must submit an informal grievance at the institutional level to a designated
staff member responsible for the specific problem. See Fla. Admin. Code R. 33103.005. 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 through informal and formal grievances, the inmate must file an
appeal to the Office of the FDOC Secretary. See Fla. Admin. Code R. 33103.007. However, under certain specified circumstances, an inmate can
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bypass the informal-grievance stage and start with a formal grievance at the
institutional level. See Fla. Admin. Code R. 33-103.005(1); 33-103.006(3). Or
an inmate can completely bypass the institutional level and proceed directly to
the Office of the FDOC Secretary by filing a “direct grievance.” See Fla. Admin.
Code R. 33-103.007(3). Emergency grievances and grievances of reprisal are
types of “direct grievances” that may be filed with the Office of the FDOC
Secretary. See Fla. Admin. Code R. 33-103.007(3)(a).
Under the first step of the Turner analysis, the Court must review the
allegations in the Motions and Responses and accept as true Plaintiff’s
allegations. See Whatley, 802 F.3d at 1209. In doing so, the Court finds that
dismissal is not appropriate at step one. Thus, the Court turns to the second
step of Turner.
Defendants Cruz and Dunaway both argue that Plaintiff failed to
exhaust his administrative remedies as to his Eighth Amendment claims
against them. They acknowledge that Plaintiff filed formal grievance log
#1811-230-016 regarding the deliberate indifference claims raised in his
Complaint. But Defendants argue that because Plaintiff did not file an appeal
to the Secretary from the “denial of Formal Grievance Log [#]1811-230-016,”
he did not exhaust his administrative remedies. Doc. 78 at 9; Doc. 79 at 9. To
prove their point, Defendants attach a printout summary of the formal,
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informal, and appeal grievances Plaintiff filed during the relevant timeframe.
See Doc. 78-1 at 1; Doc. 79-1 at 1. Notably, formal grievance #1811-230-016 is
not included on this list.
Defendants, however, do not dispute that Plaintiff submitted this formal
grievance regarding the deliberate indifference claims raised in this case.
Instead, Defendants simply assume, without providing any proof, that this
formal grievance was denied. But, because they have failed to provide a copy
of the response to that formal grievance, or any other proof that the formal
grievance was denied, they have failed to meet their burden of showing that
Plaintiff did not exhaust his administrative remedies. Indeed, if that formal
grievance was approved, Plaintiff would not be required to file an appeal. Thus,
Defendants’ request to dismiss the claims against them for Plaintiff’s failure
to exhaust is due to be denied.
b. Retaliation Claim – Defendant Cruz
Defendant Cruz argues that “there are no facts pleaded to support” a
retaliation claim against him. Doc. 78 at 10. Plaintiff responds that Cruz
violated the First Amendment when he “deliberately failed to provide the
Plaintiff with catheters in retaliation for the Plaintiff submitting institutional
grievances and filing lawsuits against [the FDOC].” Doc. 88 at 2 (citing Doc. 1
at 13-17, 21).
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To establish a retaliation claim, a prisoner must
demonstrate “that the prison official’s actions were the
result of his having filed a grievance concerning the
conditions of his imprisonment.” Farrow v. West, 320
F.3d 1235, 1248 (11th Cir. 2003) (internal quotation
marks and citation omitted). [A plaintiff] can prevail
on a retaliation claim if “(1) his speech was
constitutionally protected; (2) [he] suffered adverse
action such that the administrator’s allegedly
retaliatory conduct would likely deter a person of
ordinary firmness from engaging in such speech; and
(3) there is a causal relationship between the
retaliatory action and the protected speech.” Smith v.
Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).
Williams v. Radford, 64 F.4th 1185, 1192 (11th Cir. 2023).
In Plaintiff’s “Claims for Legal Relief,” he lists and discusses only an
Eighth Amendment deliberate indifference claim against Cruz. See Doc. 1 at
21-22. He does not mention retaliation or the First Amendment. See id. In his
factual allegations, he mentions a letter written by his lawyer to Defendants
Hodgson, Figueroa, and Cruz “regarding their denial of coude catheters, [and]
their retaliation against the Plaintiff and told them to stop . . . .” Id. at 15; see
also id. at 16-17 (similar allegations involving a second letter). While Plaintiff
includes allegations of other individuals retaliating against him, he does not
provide any factual allegations that would state a plausible retaliation claim
against Cruz. Nor did he indicate that he was raising a retaliation claim

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against Cruz. Thus, Cruz’s Motion is due to be granted to the extent it seeks
dismissal of any retaliation claim against him.
c. Deliberate Indifference Claim – Defendant Cruz
Defendant Cruz argues that Plaintiff fails to state a deliberate
indifference claim against him. See Doc. 78 at 10-14. To prevail on a deliberate
indifference claim, a plaintiff must show: “(1) a serious medical need; (2) the
defendants’ deliberate indifference to that need; and (3) causation between
that indifference and the plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588 F.3d
1291, 1306-07 (11th Cir. 2009).
“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.” Farrow v. West, 320 F.3d 1235,
1243 (11th Cir. 2003). To meet the first prong, the
plaintiff must demonstrate an “objectively serious
medical need”—i.e., “one that has been diagnosed by a
physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize
the necessity for a doctor’s attention,” and, in either
instance, “one that, if left unattended, poses a
substantial risk of serious harm.” Id. (alteration
adopted) (quotations omitted). To satisfy the second,
subjective prong, the plaintiff must prove that the
prison officials “acted with deliberate indifference to
[his serious medical] need.” Harper v. Lawrence Cnty.,
592 F.3d 1227, 1234 (11th Cir. 2010) (quotation
omitted). “To establish deliberate indifference,” a
plaintiff must demonstrate that the prison officials “(1)
had subjective knowledge of a risk of serious harm; (2)
disregarded that risk; and (3) acted with more than
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gross negligence.” Id. (quotation omitted). An inmateplaintiff bears the burden to establish both prongs.
Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir.
2007).
Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1270 (11th Cir. 2020)
(footnote omitted); see Ireland v. Prummell, 53 F.4th 1274, 1287 & n.5 (11th
Cir. 2022). Importantly, for allegedly inadequate medical treatment to rise to
the level of a constitutional violation, the care must be “‘so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.’” Id. at 1271 (quoting Harris v. Thigpen, 941 F.2d 1495,
1505 (11th Cir. 1991)); see also Waldrop v. Evans, 871 F.2d 1030, 1033 (11th
Cir. 1989) (“Grossly incompetent or inadequate care can constitute deliberate
indifference . . . as can a doctor’s decision to take an easier and less efficacious
course of treatment” or a doctor’s failure to respond to a known medical
problem (citations omitted)).
Taking Plaintiff’s allegations as true, he adequately states a deliberate
indifference claim against Cruz. He contends that Cruz was aware of his need
for catheters, yet Cruz repeatedly failed to provide or ensure Plaintiff was
provided with the catheters. Due to the lack of catheters, Plaintiff alleges he
suffered severe harm. At this stage of the litigation, the Court finds that

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Plaintiff has alleged a plausible deliberate indifference claim against Cruz.
Therefore, Defendant Cruz’s Motion is due to be denied in this regard.
d. Timely Service
Defendants Cruz and Dunaway argue that under Federal Rule of Civil
Procedure 4(m), the Court must dismiss the action against them because they
were not served with process within 90 days of the Complaint being filed. Doc.
78 at 14-15; Doc. 79 at 10.
As the docket clearly reflects, the Court entered multiple orders
regarding service of process on Defendants Cruz and Dunaway, initially
beginning twelve days after the Complaint was filed. See Orders (Docs. 6, 8,
11). When the Court’s, the FDOC’s, and the United States Marshal’s efforts
were unsuccessful, the Court ordered Plaintiff to provide additional
information to perfect service on these Defendants. See Order (Doc. 27). When
Plaintiff was unable to do so without discovery, the Court deferred dismissing
the claims against Cruz and Dunaway so as to afford Plaintiff time to conduct
discovery so he could provide identifying information for these Defendants. See
Order (Doc. 31); see also Orders (Docs. 42, 56). When Plaintiff timely provided
additional identifying information for Cruz and Dunaway, the Court again
directed service of process, see Order (Doc. 60), which was successful, see
Returns of Service (Docs. 64, 66).
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Considering the record, the Court denies Defendants’ request to dismiss
the claims against them because they were not timely served under Rule 4(m).
Accordingly, it is
ORDERED:
1.

Defendant Cruz’s Motion to Dismiss (Doc. 78) is GRANTED in

part and DENIED in part. The Motion is GRANTED to the extent that any
retaliation claim against Cruz is DISMISSED without prejudice. The
Motion is otherwise DENIED.
2.

Defendant Dunaway’s Motion to Dismiss (Doc. 79) is DENIED.

3.

Defendants Cruz and Dunaway shall answer the Complaint within

14 days of the date of this Order.
4.

Counsel for Defendants Cruz and Dunaway shall confer with

Plaintiff regarding a proposed schedule for the completion of discovery, if any
is necessary, and the filing of dispositive motions. Within 14 days of the date
of this Order, counsel shall file a notice advising the Court of the proposed
schedule.
DONE AND ORDERED at Jacksonville, Florida, this 31st day of May,
2024. 

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JAX-3 5/28
c:
Jerome Burgess
Counsel of Record

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