United States District Court

for the

Southern District of Florida

Nathaniel Brown, Plaintiff,

v.

Jose Colon and others, Defendant.

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)

)

)

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Civil Action No. 20-22147-Civ-Scola

Order

This matter is before the Court upon an independent review of the record 

and a screening of the complaint (ECF No. 27-1) pursuant to 28 U.S.C. § 1915(e) 

and 28 U.S.C. § 1915A. Plaintiff Nathaniel Brown is a state inmate at Dade 

Correctional Institution (“Dade CI”) who has nominally filed a petition for writ of 

habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2243. (ECF No. 27-1, at 17.)

While Plaintiff purports to seek relief pursuant to 28 U.S.C. §§ 2241 and 2243, 

the thrust of his complaint is that state officials have displayed deliberate 

indifference to the Plaintiff’s medical needs by failing to adequately prevent his 

exposure to COVID-19 at Dade CI. Accordingly, it appears the Plaintiff in fact 

seeks relief pursuant to 42 U.S.C. § 1983. (ECF No. 10, at 1.) Although this 

matter was automatically referred to United States Magistrate Judge Lisette M. 

Reid pursuant to Administrative Order 2019-2, the Court sua sponte withdrew 

the referral on September 22, 2020. (ECF No. 36.)

I. Background

On May 22, 2020, the Plaintiff filed his first petition for writ of habeas 

corpus pursuant to 28 U.S.C. §§ 2241 and 2243 (ECF No. 1) and amended his 

petition that same day (ECF No. 3). On June 16, 2020, the Plaintiff filed a motion 

to amend his pleading (ECF No. 6) which was granted by Magistrate Judge Reid 

(ECF Nos. 8, 9). Upon review of the Plaintiff’s second amended pleading, 

Magistrate Judge Reid noted that Plaintiff’s complaint was deficiently plead, as 

it appeared to seek relief pursuant to 42 U.S.C. § 1983 and not pursuant to 28 

U.S.C. §§ 2241 and 2243. (ECF Nos. 10, 11.) Accordingly, the Plaintiff was 

ordered to file a third amended complaint which corrected certain deficiencies 

identified by the Court by July 7, 2020. (ECF No. 11.) On July 8, 2020, the 

Plaintiff filed a motion to amend complaint, with an amended complaint as an 

attachment to the motion (ECF No. 27, 27-1) and on July 10, 2020, Magistrate 

Judge Reid deemed the attachment to the Plaintiff’s motion as responsive to the 

Courts earlier order; thus, the Plaintiff’s proposed amended complaint became 

the operative pleading. (ECF No. 29.) While the Plaintiff continues to suggest in 

Case 1:20-cv-22147-RNS Document 37 Entered on FLSD Docket 09/23/2020 Page 1 of 4
his third amended complaint that he is seeking relief pursuant to 28 U.S.C. §§ 

2241 and 2243 his allegations that state officials have displayed deliberate 

indifference to the Plaintiff’s medical needs by failing to adequately prevent his 

exposure to COVID-19 at Dade CI suggest he continues to seek relief pursuant 

to 42 U.S.C. § 1983. 

Specifically, in the third amended complaint, the Plaintiff alleges that: (1) 

he is medically vulnerable due to having cancer and other medical conditions; 

(2) the Defendant has known about the COVID-19 pandemic since March 2020 

but only recently ordered testing; (3) 29 officers and 27 inmates have tested 

positive for COVID-19 which is spreading rapidly in and around Dade CI; and (4) 

the Defendant has failed to ensure social distancing, proper sanitization, and 

other preventative measures. [ECF No. 27-1, at 3-6]. He asserts a claim for 

deliberate indifference under the Eighth Amendment and seeks emergency 

release to protect him from this alleged imminent danger. [ECF No. 27-1, at 1, 

7].

The Plaintiff further alleges in his third amended complaint that: (1) his 

claim arose at Dade CI; (2) Dade CI has a grievance procedure; and (3) he did not 

file a grievance concerning the allegations raised in his third amended complaint

at Dade CI or any other prison because “this is an emergency release habeas 

corpus.” [ECF No. 27-1, at 13-17].

II. Legal Standard

Under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e(a) “no 

action shall be brought with respect to prison conditions under section 1983 of 

this title . . . until such administrative remedies as are available are exhausted.” 

Accordingly, “[a] district court may dismiss an action sua sponte . . . if an 

affirmative defense—including failure to exhaust—appears on the face of the 

complaint.” Booth v. Allen, 758 F. App’x 899, 901 (11th Cir. 2019) (per curiam) 

(citations omitted); see also Whatley v. Warden, 802 F.3d 1205, 1209 (11th Cir. 

2015) (“The court should dismiss if the facts as stated by the prisoner show a 

failure to exhaust.”); see also 42 U.S.C. 1997e(c). 

III. Analysis

From a review of the Plaintiff’s third amended complaint, a lack of 

exhaustion is facially apparent. (ECF No. 27-1, at 17) (acknowledging the Plaintiff 

has not filed a grievance as “this is an emergency release habeas corpus.”). 

Indeed, there is no question that Dade CI has a grievance procedure that Plaintiff 

should have utilized. See Owens v. Centurion Med., 778 F. App’x 754, 755-56 

(11th Cir. 2019) (per curiam) (referring to Dade CI’s grievance process); Nail v. 

Case 1:20-cv-22147-RNS Document 37 Entered on FLSD Docket 09/23/2020 Page 2 of 4
Collado, No. 15-23036-Civ-Moreno, 2019 WL 1034186, at *4 (S.D. Fla. Mar. 4, 

2019) (Moreno, Mag. J.) (“The grievance process applicable to Florida prisoners 

is set out in Section 33-103 of the Florida Administrative Code.”). Accordingly, 

where a prisoner alleges on the face of his complaint that he has failed to exhaust 

his administrative remedies before filing his complaint, the “district court [is] 

required to dismiss [the] complaint.” Klug v. Rivera, 674 F. App’x 937, 938 (11th 

Cir. 2017) (per curiam). As the Plaintiff’s complaint on its face makes clear that 

the Plaintiff has failed to exhaust his administrative remedies, the Court 

dismisses his complaint.

The Court notes, however, that failure to exhaust is not always fatal under 

the PLRA. For instance, had Plaintiff alleged that Dade CI officials prevented him 

from filing a grievance thereby making such procedures unavailable to him “for 

§ 1997e(a) purposes,” the Court need not dismiss the complaint. See Dollar v. 

Coweta Cty. Sheriff Office, 446 F. App’x 248, 252 (11th Cir. 2011) (per curiam)

(internal quotes omitted) (noting a Plaintiff who was allegedly “prevented” from 

filing a grievance may have satisfied § 1997e’s exhaustion requirement). As 

Plaintiff has failed to raise any such allegations, the Plaintiff’s failure to exhaust 

administrative remedies is not excusable.

Finally, even if the third amended complaint were more properly 

characterized as a hybrid §§ 1983/2241 action, see, e.g., Muhammad v. Close, 

540 U.S. 749, 750-51 (2004) (per curiam), the PLRA’s exhaustion requirement 

would still apply to both of the Plaintiff’s claims, see Swain v. Junior, 961 F.3d 

1276, 1281, 1292 (11th Cir. 2020). As stated above, the Plaintiff has not 

exhausted his administrative remedies and therefore the complaint should be 

dismissed. 

IV. Conclusion

For the reasons stated above, the Court therefore dismisses the Plaintiff’s 

third amended complaint without prejudice for failure to exhaust 

administrative remedies. (ECF Nos. 27, 27-1.) The Clerk is directed to close this 

case and any pending motions, if any are denied as moot. The Clerk is further 

directed to mail a copy of this order to the Plaintiff at the below address. 

Done and ordered, in chambers, in Miami, Florida, on September 22, 

2020.

Robert N. Scola, Jr.

United States District Judge

Case 1:20-cv-22147-RNS Document 37 Entered on FLSD Docket 09/23/2020 Page 3 of 4
Copies, via U.S. Mail, to

Nathaniel Brown 

109140 

Dade Correctional Institution 

Inmate Mail/Parcels 

19000 SW 377th Street 

Florida City, FL 33034 

PRO SE

Case 1:20-cv-22147-RNS Document 37 Entered on FLSD Docket 09/23/2020 Page 4 of 4