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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

MARK OSTERBACK,

Plaintiff,

v. Case No. 1:20-cv-84-AW-GRJ

MARK INCH, et al.,

Defendants.

_______________________________/

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION

Mark Osterback is an inmate in Florida DOC custody. He has a long history 

of litigation challenging DOC’s practices—particularly policies dealing with bunkspacing requirements. In this case, he sued the DOC Secretary, the prison warden, 

and the Florida Surgeon General, all in their official capacities. ECF No. 1 ¶¶ 1, 3. 

The crux of his complaint is that DOC and DOH are not enforcing regulations aimed 

at preventing overcrowding and the spread of communicable diseases, like COVID19. He seeks declaratory and injunctive relief. 

Osterback contends that DOH and DOC were once required to enforce certain 

state regulations regarding bunk-spacing and inmate-to-sanitary-fixture ratios in 

prison dorms. ECF No. 1 ¶¶ 9-11 (citing F.A.C. Rule 10D-7.005(7) (repealed); 

7.007(3) (repealed)). He alleges that DOC “fraudulently requested repeal of [these] 

rule[s],” ECF No. 1 ¶ 13, and that the department secretaries “have entered into an 

active and continuing conspiracy by” repealing and amending the regulations, 
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lobbying state legislators for statutory changes, and “[f]ailing . . . to ensure

maintenance of sanitary practices and policies in FDC facilities,” ECF No. 1 ¶ 20. 

With the COVID-19 outbreak, Osterback suggests this issue has become more 

critical. ECF No. 1 ¶¶ 25-32. He alleges that overcrowding makes social distancing 

impossible and places him at increased risk. ECF No. 1 ¶¶ 29-31. 

The defendants moved to dismiss, arguing that Osterback lacks standing, has 

not exhausted administrative remedies, and brings claims barred by res judicata and 

the statute of limitations. ECF Nos. 13, 26. The magistrate judge recommended 

dismissal without prejudice based on non-exhaustion. ECF No. 34. Osterback has 

filed objections, which I have considered de novo. ECF No. 37. I have also 

considered DOH’s response to Osterback’s objections. ECF No. 30.

To be sure, Osterback has filed multiple grievances about overcrowding over 

the years. ECF No. 29 at 148-244. His most recent grievance was filed in 2016, ECF 

No. 29 at 218, so unsurprisingly, none mentions COVID-19. But Osterback argues 

his claims are not COVID-specific. See ECF No. 37 at 5-6 (“The Covid pandemic is 

not the issue, it is just one of several potential ‘communicable’ or ‘infectious 

diseases’ that Plaintiff alleged he could contract, as a result of DOC dormitory 

population density.”).

1 So, he argues, his failure to exhaust as to any COVID-19 

1 Osterback does raise concerns (or at least seek relief) unique to the 

pandemic. For example, he seeks a declaratory judgment that prison overcrowding 

“violates the Presidential and Gubernatorial orders requiring this in public places 
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issues is not a problem. He also argues that as to DOH, there is no administrative 

remedy available. 

I agree with the magistrate judge that many of Osterback’s allegations relate 

specifically to COVID protocols and that any claims based on those allegations have 

not been exhausted. Indeed, a fair reading of the complaint is that all current claims 

turn on the COVID situation. But some of Osterback’s allegations arguably relate to 

general concerns about overcrowding, and some of those general concerns may have 

been the subject of fully exhausted grievances. 

The complaint is not clear, but based on Osterback’s representations that he 

wants to present claims not unique to COVID—claims he says have been exhausted 

through the prison grievance process—I conclude that he should be given an 

opportunity to amend.

2 Cf. Jones v. Bock, 549 U.S. 199, 222 (2007) (“A typical 

and gatherings, thereby jeopardizing Plaintiff’s health and placing it extreme risk of 

contracting airborne pathogens such as Covid-19, in violation of the state and federal 

constitutions.” ECF No. 1 ¶ 37. 

2 As one example, Osterback appears to make a claim based on the repeal of 

or non-compliance with state administrative rules, ECF No. 1 ¶ 37(a)(iii), (c). He 

seeks the following:

(a) [A] Declaratory Judgment that:

. . .

(iii) The repeal of 64E-26.005(7) and 64E-26.007(3) has allowed 

open-bay dorms to become overcrowded, giving rise to 

unhealthy, unsafe living conditions and unnecessary exposure to 

airborne pathogens such as Covid-19, in violation of the state and 

federal constitutions.
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PLRA suit with multiple claims . . . may combine a wide variety of discrete 

complaints, about interactions with guards, prison conditions, generally applicable 

rules, and so on, seeking different relief on each claim. There is no reason failure to 

exhaust on one necessarily affects any other.”).

As to Osterback’s argument that there is no available administrative remedy 

against DOH, this is no excuse for not exhausting. The PLRA requires full 

exhaustion “regardless of the relief offered through administrative procedures.” 

Booth v. Churner, 532 U.S. 731, 741 (2001) (“[W]e will not read futility or other 

exceptions into statutory exhaustion requirements where Congress has provided 

otherwise.”); see also Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998)

(“Since exhaustion is now a pre-condition to suit, the courts cannot simply waive 

those requirements where they determine they are futile or inadequate.”). The 

purpose of the exhaustion requirement is to “allow[] a prison to address complaints 

about the program it administers before being subjected to suit.” Jones, 549 U.S. at

219; accord Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005) (“Congress 

. . .

(c) A permanent injunction requiring that Defendants adhere to the 

sanitary fixture-to-inmate ratios of 64E-26.005(7) and the bunk spacing 

and alignment provisions of 64E-26.007(3) (as they existed prior to 

repeal) which were promulgated in response to federal civil rights 

litigation concerning inmate health and safety in state/local detention 

facilities.

ECF No. 1 ¶ 37.
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intended to afford prison officials time to address grievances internally before 

allowing a prisoner to initiate a federal lawsuit.”). So as DOH points out, regardless 

of who is ultimately responsible for enforcing inmate-spacing requirements, the 

complaint must first go through the prison grievance process. ECF No. 30 at 5-6 

(citing Vandiver v. Martin, 48 Fed. App’x. 517, 519 (6th Cir. 2002)); see also Jones, 

549 U.S. at 219 (noting that “exhaustion is not per se inadequate simply because an 

individual later sued was not named in the grievances.”).

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Osterback’s other objections are all variations on the same theme: that he 

exhausted his claims “because he had been grieving and complaining (to both DOC 

and DOH) for decades [about] the lack of proper spacing and alignment of bunks.” 

ECF No. 37 at 5. He says that he filed grievances in 2009 and 2016 about the 

overcrowding issues in his current complaint, and he acknowledges that he 

previously raised these claims in a suit against DOC and DOH in 2016. ECF No. 37 

at 3 (citing Osterback v. Rick Scott and Celeste Philip, M.D., Case No. 4:16cv105-

MW/CAS, (N.D. Fla. 2016)); id. (Osterback’s acknowledging “[t]here is essentially 

no difference between the claims in that case and that brought in the instant 

complaint, except the circumstance of the recent Covid-19 pandemic”). If he indeed 

3 Osterback also argues that DOC and DOH did not raise an exhaustion 

defense in his 2016 lawsuit. But exhaustion is an affirmative defense that can be 

waived, and the departments’ not raising it in that case does not prevent them from 

raising it here. So Osterback’s argument does not help here either. 
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makes such claims clear in a new complaint, he will likely face statute-of-limitations 

issues and other defenses. But that can wait until a clearer pleading is presented. 

It is now ORDERED:

The report and recommendation (ECF No. 34) is adopted in part. The motions 

to dismiss (ECF Nos. 13, 26) are GRANTED. The complaint is dismissed without 

prejudice. Osterback may file an amended complaint within 14 days bringing only 

claims that were fully exhausted when he initiated this case. His failure to file an 

amended complaint will result in a final order of dismissal. 

SO ORDERED on May 10, 2021. 

s/ Allen Winsor

United States District Judge