Hill v. Brock, et al.

Filing 42

ORDER denying 35 Defendants Prock and Tyrell R.'s Motion to Dismiss; denying without prejudice 38 Plaintiff's Motion to Appoint Counsel; directing Defendants to answer 8 the Amended Complaint within twenty days. Signed by Senior Judge Brian J. Davis on 8/29/2024. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
SCIONTI TROY HILL,
Plaintiff,
v.

Case No. 3:22-cv-866-BJD-PDB

OFFICER PROCK et al.,
Defendants.
__________________________________
ORDER
I. Status
Plaintiff, Scionti Troy Hill, an inmate of the Florida Department of
Corrections, is proceeding pro se and in forma pauperis on an Amended
Complaint for the violation of civil rights under 42 U.S.C. § 1983 (Doc. 8; Am.
Compl.). He names four Defendants for an Eighth Amendment violation,
alleging Officers Prock and Tyrell R. used excessive force against him during
a cell extraction on June 16, 2022, at Florida State Prison. See Am. Compl. at
3–5. The other two Defendants—officers Knight and Philbert—Plaintiff alleges
saw what happened but “did nothing to stop it.” Id. at 5. Defendants Knight
and Philbert have answered the Amended Complaint (Docs. 19, 20), but
Defendants Prock and Tyrell R. move to dismiss the claims against them for

Plaintiff’s failure to exhaust his administrative remedies under the Prison
Litigation Reform Act (PLRA) (Doc. 35; Def. Mot.).
Plaintiff was afforded an opportunity to respond to the motion. See Order
(Doc. 36). He filed what purports to be a response (Doc. 37; Pl. Resp.), but he
does not address Defendants’ exhaustion argument. Rather, Plaintiff says he
“simply [wants] to inform [the Court] what has taken place” that presumably
has prevented him from filing a substantive response. See Pl. Resp. He
suggests he has been having trouble receiving mail but acknowledges receipt
of the Court’s order advising him to respond to the Motion to Dismiss. See id.
To the extent Plaintiff contends he has been the “victim of a crime” and asks
the Court to advise him of the “next step to take,” the Court construes
Plaintiff’s filing as one in opposition to the Motion to Dismiss. Additionally,
given Defendants’ sole argument is Plaintiff’s failure to exhaust his
administrative remedies and they rely (primarily) on the same grievance
records Plaintiff filed with his Amended Complaint (Doc. 8-1), the Court can
rule on the motion without additional briefing from Plaintiff.
Also before the Court is Plaintiff’s motion for appointment of counsel
(Doc. 38; Pl. Mot.), which the Court will address briefly before turning to the
Motion to Dismiss. Plaintiff asks the Court to appoint him counsel under 28
U.S.C. § 1915(e)(1) because he is unable to afford counsel, has been granted
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leave to proceed as a pauper, is a prisoner with limited access to materials, and
would be disadvantaged if the case were to proceed to trial. See Pl. Mot. A court
“may request an attorney to represent any person unable to afford counsel,”
but does not have to. See 28 U.S.C. § 1915(e)(1). Indeed, the statute’s use of the
word “may” connotes discretion. See id. See also Bass v. Perrin, 170 F.3d 1312,
1320 (11th Cir. 1999) (“A plaintiff in a civil case has no constitutional right to
counsel.”).
A court may appoint counsel in a civil case only in “exceptional
circumstances.” Bass, 170 F.3d at 1320. In determining whether to appoint
counsel, a court may consider the type and complexity of the case, whether the
plaintiff can adequately investigate and present his case, and whether the case
will require skill in presenting evidence and in conducting cross-examination.
Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (cited with approval in
Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1065 n.11 (11th Cir. 2013)).
At this stage of the proceedings, the Court finds a request under §
1915(e)(1) for a lawyer to represent Plaintiff is not warranted. This case does
not appear more complex than most civil rights cases litigated by prisoners
who are untrained in the law and have limited resources available to them.
Accordingly, the Court will deny Plaintiff’s motion without prejudice. If the

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circumstances of the case change significantly (for example, if the case
proceeds to trial), the Court will reconsider the request.
II. Exhaustion Analysis
The PLRA provides, “[n]o action shall be brought with respect to prison
conditions . . . until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). 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). Although “the PLRA exhaustion
requirement is not jurisdictional[,]” Woodford v. Ngo, 548 U.S. 81, 101 (2006),
“exhaustion is mandatory . . . and unexhausted claims cannot be brought,”
Pavao v. Sims, 679 F. App’x 819, 823 (11th Cir. 2017) (citing Jones, 549 U.S.
at 211). However, prisoners need not affirmatively “demonstrate exhaustion in
their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). Rather, because
failure to exhaust is an affirmative defense, the defendant bears the burden.
Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).
Not only is there a recognized exhaustion requirement, “the PLRA . . .
requires proper exhaustion” as set forth in applicable administrative rules and
policies. Woodford, 548 U.S. at 93. As such, “[p]roper exhaustion demands
compliance with the relevant agency’s deadlines and other critical procedural
rules[.]” Id. Generally, to properly exhaust administrative remedies, a Florida
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prisoner must timely complete a three-step process as fully set forth in the
Florida Administrative Code (FAC). See Fla. Admin. Code rr. 33-103.001
through 33-103.018. Except for specific, enumerated issues, a prisoner
generally must initiate the grievance process at the first step by filing an
informal grievance within “20 days of when the incident or action being grieved
occurred.” See Fla. Admin. Code rr. 33-103.005(1), 33-103.011(1)(a). If an
informal grievance is denied, a prisoner must proceed to the second step of the
process by filing a formal grievance at the institution within 15 days from “[t]he
date on which the informal grievance was responded to.” See Fla. Admin. Code
rr. 33-103.006(1), 33-103.011(1)(b). The third and final step of the grievance
process requires a prisoner to submit an appeal to the Office of the Secretary
of the Florida Department of Corrections within 15 days “from the date the
response to the formal grievance [was] returned to the inmate.” See Fla.
Admin. Code rr. 33-103.007(1), 33-103.011(1)(c).
When confronted with an exhaustion defense, courts in the Eleventh
Circuit employ a two-step process:
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. . . . 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.
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Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015)
(citing Turner, 541 F.3d at 1082-83).
Defendants argue Plaintiff did not exhaust his administrative remedies
because he did not follow the three-step grievance process set forth in the FAC.
See Def. Mot. at 1–3. They base their argument primarily on Plaintiff’s
allegations regarding his exhaustion efforts and the two informal grievances
Plaintiff filed with his Amended Complaint, one of which was “returned”
without action because Plaintiff filed it more than 20 days after the incident
occurred, and one of which was “denied.” See id. at 2–3. See also Doc. 8-1; Doc.
35-1. In addition, with their motion, Defendants provide another informal
grievance Plaintiff filed on July 17, 2022, which was “returned” because
Plaintiff’s request was “previously addressed.” See Doc. 35-2.
Defendants contend, “The record does not contain any evidence that
Plaintiff submitted a formal grievance or an appeal related to the incident
alleged in this action.” Def. Mot. at 3. But the “record” to which they refer is
incomplete: they refer solely to the two informal grievances Plaintiff filed with
his Amended Complaint and the one they attach to their motion. See id. at 2–
3, 7. They also point to Plaintiff’s complaint allegations as proof that Plaintiff
did not “pursue the subsequent steps of the grievance process.” Id. at 7.

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In his verified Amended Complaint, Plaintiff alleges he filed a grievance
in which he complained that five officers “physically and sexually abused
[him]” on June 17, 2022, but his “grievance was never returned[,] leading [him]
to believe staff threw it away.” See Am. Compl. at 7. He also alleges he filed a
PREA1 complaint. Id. Although Plaintiff does not say he took steps to follow up
on his missing grievance or explain whether he satisfied the grievance process
set forth in the FAC, he was not required to affirmatively “demonstrate
exhaustion in [his] complaint[].” Jones, 549 U.S. at 216.
Defendants bear the burden to demonstrate Plaintiff did not exhaust his
administrative remedies, but they do not offer the declaration of a grievance
coordinator at the prison or the Office of the Secretary, nor do they provide
copies of grievance logs for the relevant time. See generally Def. Mot. In other
words, there is no “record” that Plaintiff did not file a formal grievance or a
grievance appeal after his informal grievance was denied. The Court will not
draw a negative inference based on the absence of allegations in Plaintiff’s
Amended Complaint when he was under no obligation to affirmatively
demonstrate he exhausted his administrative remedies in accordance with the
FAC. In the absence of evidence affirmatively demonstrating Plaintiff did not

1

Prison Rape Elimination Act.

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exhaust his administrative remedies, the Court cannot dismiss the claims
against Defendants Prock and Tyrell R. on that basis.
Accordingly, it is now
ORDERED:
1.

Defendants Prock and Tyrell R.’s Motion to Dismiss (Doc. 35) is

DENIED.
2.

Plaintiff’s Motion to Appoint Counsel (Doc. 38) is DENIED

without prejudice.
3.

Defendants Prock and Tyrell R. must answer the Amended

Complaint (Doc. 8) within twenty days of the date of this Order.
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
August 2024.

Jax-6
c:
Scionti Troy Hill
Counsel of Record

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