MILLER

v.

WILLIS

36-3; Def. Exs. A-C). To rebut Defendants’ exhaustion defense, Plaintiff filed numerous responses and notices, some with exhibits (Docs. 46, 47, 48, 59, 61, 63).3 Only two such filings will be addressed as relevant and helpful to the exhaustion analysis (Doc. 46; Pl. Resp.) (Doc. 61; Pl. Resp. Supp.). Plaintiff does not oppose Defendants’ motion insofar as they seek dismissal of any claims against them in their official capacities for damages. See generally Pl. Resp.; Pl. Resp. Supp. When a plaintiff sues a state actor in his official capacity, “the action is in essence one for the recovery of money from the state.” Zatler v. Wainwright, 802 F. 2d 397, 400 (11th Cir. 1986). As such, “the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit

II. Exhaustion

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). See also Jones v. Bock, 549 U.S. 199, 211 (2007). While “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). Nevertheless, prisoners are not required to “specially plead or demonstrate exhaustion in their complaints.” See Jones, 549 U.S. at 216. 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 an agency’s deadlines and other critical procedural rules[.]”

Id. Generally, to properly exhaust administrative remedies, a Florida 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 level 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 FDOC 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). A prisoner may bypass the first step of the process when complaining about or seeking assistance related to an emergency, disciplinary action, a reprisal, bank issues, medical needs, gain time, placement in close management, accommodations for disabilities, the return of incoming mail, or sexual abuse. See Fla. Admin. Code rr. 33-103.005(1), 33-103.006(3). A prisoner may bypass both the first and second steps of the process and “proceed directly to the Office of the Secretary” on an issue related to an emergency, a reprisal,

protective management, reading material, sentence structure (such as release date), or the prisoner’s inmate bank account. See Fla. Admin. Code rr. 33- 103.005(1), 33-103.007(3). If a prisoner submits a grievance that does not comply with the grievance process because it is late, filed at the wrong step, or is otherwise infirm, but the grievance is processed and substantively addressed, prison officials may not later challenge exhaustion on those procedural grounds. See, e.g., Whatley v. Warden, Ware State Prison, 802 F. 3d 1205, 1215 (11th Cir. 2015) (agreeing with other circuits and holding “a procedural flaw ignored by a prison cannot later be resurrected . . . to defeat exhaustion”). In other words, in ruling on an exhaustion defense, a court may not enforce a procedural rule that prison officials themselves ignored when processing a grievance. Id.

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. Id. at 1209 (citing Turner v. Burnside, 541 F. 3d 1077, 1082-83 (11th Cir. 2008)). Because failure to exhaust is an affirmative defense, the defendant bears the burden. Turner, 541 F. 3d at 1082. Defendants contend Plaintiff did not “file any grievances regarding the incident,” but they narrowed the timeframe of their search to a six-month period: February 9, 2018, through August 30, 2018. Def. Mot. at 9. Over these six months, Plaintiff did not in fact file any grievances about the subject incident. See generally Def. Exs. A-C. In his responses, Plaintiff contends he did exhaust his administrative remedies by filing grievances in 2020 and 2021. See Pl. Resp. at 1-2; Pl. Resp. Supp. at 2.4 Under the first step of the Turner analysis, the Court accepts as true that Plaintiff exhausted his administrative remedies.

Under the second step of the Turner analysis, the Court considers two grievances Plaintiff provides as evidence that he exhausted his administrative remedies. Plaintiff filed an informal grievance on April 20, 2020 (Doc. 46-1; Pl. Resp. Ex. A). That grievance was denied. See Pl. Resp. Ex. A at 1. Plaintiff does

not allege or show that he proceeded to the next step of the grievance process.⁵ As such, this grievance does not demonstrate Plaintiff exhausted his administrative remedies. Plaintiff filed a formal grievance at Union Correctional Institution on October 8, 2018 (Doc. 61-1; Pl. Resp. Supp. Ex. A). In that grievance, Plaintiff complained about having been abused by officers “[b]ack in March 2018.” See

Pl. Resp. Supp. Ex. A at 1. The incident that is the subject of Plaintiff’s complaint occurred on February 9, 2018. See Am. Compl. at 7. Considering what Plaintiff complains about in his October 8, 2018 grievance, it appears the reference to “March” was a mistake. For instance, he reported that he was

“jumped on by officers” at FSP, which resulted in him being “hospitalized” and caused him to “lose some of his memory.” See Pl. Resp. Supp. Ex. A at 1. The October 8, 2018 grievance was procedurally defective under the FAC because it was filed late, and the issue complained of (staff abuse) should have been submitted through an informal grievance. However, the warden’s office processed the grievance and substantively addressed it. See id. at 2. Indeed, the grievance was “approved.” Id. Accordingly, the Court may not resurrect

The Court finds Defendants fail to carry their burden to show Plaintiff did not exhaust his administrative remedies. Plaintiff complained about the subject incident through a grievance that was processed and approved. As such, Defendants’ motion is due to be denied in part as to exhaustion.

Accordingly, it is ORDERED: 1. Defendants’ motion to dismiss (Doc. 36) is GRANTED in part and DENIED in part as stated in this Order. 2. The claims against Defendant Bosserman are DISMISSED without prejudice for Plaintiff’s failure to timely serve this Defendant. See Fed. R. Civ. P. 4(m). See also Order (Doc. 32). The Clerk is directed to terminate Defendant Bosserman as a party to this action.

3. Plaintiff’s motion (Doc. 63) is DENIED. 4. Defendants Lavoie, Halsey, Willis, Walin, and Dykes must answer the amended complaint (Doc. 12) within twenty days of the date of this Order. 5. The Court directs the Clerk to correct the docket to reflect the proper spelling of Defendants’ last names as follows: Lavoie (nstead of Lavoia), Halsey (instead of Hlasey), and Bosserman (instead of Bassermorn). DONE AND ORDERED at Jacksonville, Florida, this 23rd day of February 2023.

J) é / = fo Atae | bgp

BRIAN. DAVIS

United States District Judge

Jax-6 Willis Miller, #130949 Counsel of Record