UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

Civil Action No.: 3:20-cv-5492-MCR-EM

JOSEPH G. WOOD,

Plaintiff,

vs.

MARSHA NICHOLS (ARNP), 

DR. G. SEMPLE (C.H.O.)

CHARLES MAIORANA (WARDEN)

Defendants.

_______________________________/

DEFENDANTS’, MARSHA NICHOLS, ARNP, GEORGE J. SEMPLE, D.O. 

AND CHARLES MAIORANA, MOTION TO DISMISS

PLAINTIFF’S AMENDED COMPLAINT

Defendants, MARSHA NICHOLS, ARNP (“ARNP Nichols”), GEORGE J. SEMPLE, 

D.O. (referenced as Dr. G. Semple, hereinafter “Dr. Semple”) and CHARLES MAIORANA

(“Warden Maiorana”), by and through the undersigned legal counsel, and pursuant to Fed. R. Civ. 

P. 12(b)(6), move to dismiss Plaintiff’s Amended Complaint as follows:

1. Plaintiff, JOSEPH G. WOOD (“WOOD” or “Plaintiff”), pro se, an inmate with the

Florida Department of Corrections currently housed at the Jefferson Correctional Institution, has 

filed an Amended Complaint [ECF 6] generally alleging, inter alia, that the failure to provide 

adequate medical care and treatment to him while incarcerated at Blackwater River Correctional 

Facility (“BRCF”), namely what he has described as a delay in treating his wrist fracture following

a July 9, 2019 slip and fall, which he contends constituted deliberate indifference to Plaintiff’s 

serious medical condition. [Id. at 4-8]. Plaintiff is claiming that the delay and/or denial of timely 

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care resulted in the inability to have surgery which resulting in a permanent disfigurement to his 

wrist. [Id.]

2. For the reasons set forth in the incorporated Memorandum of Law below, Plaintiff’s 

Amended Complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil 

Procedure, because the Amended Complaint fails to state a claim upon which relief can be granted

as to ARNP Nichols, Dr. Semple and Warden Maiorana.

3. WOOD’s claims fail as a matter of law due to his failure to properly exhaust his 

administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. 

§1997e(a). 

4. Additionally, since failure to exhaust pursuant 42 U.S.C. § 1997e(a) is an 

abatement defense properly raised on motion to dismiss with a Court properly referencing exhibits 

outside the four corners of the complaint, the Court should not convert this motion into a Summary 

Judgment pursuant to Fed. R. Civ. P. 12(d). Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.2008). 

This means that procedurally the defense is treated “like a defense for lack of jurisdiction,” 

that could be raised in a 12(b)(1) motion where the Court makes findings as dispute facts, although 

it is not a jurisdictional matter. Id.

5. The claims Warden Mairoana, in a purely supervisory capacity should be dismissed 

as a matter of law. 

MEMORANDUM OF LAW

In accordance with Local Rule 7.1(E), N.D. Fla., Defendant offers the following 

Memorandum of Law in support of their Motion to Dismiss. 

I. Pleading Requirements and Motion to Dismiss Standard

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Pursuant to the standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), 

to survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint’s “[f]actual allegations must 

be enough to raise a right to relief above the speculative level . . . .” Id. at 555. Those facts must 

“state a claim to relief that is plausible on its face.” Id. at 570. A plaintiff’s complaint must be 

dismissed if the facts alleged “have not nudged [its] claims across the line from conceivable to 

plausible.” Id. The Supreme Court has emphasized that “[t]he plausibility standard is not akin to 

a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 

unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). 

In addition, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 

action will not do.” Twombly, 550 U.S. at 555. “A complaint must contain enough facts to indicate 

the presence of the required elements.” Andela v. Univ. of Miami, 692 F. Supp. 2d 1356, 1370 

(S.D. Fla. 2010) (citing Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). 

“[C]onclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as 

facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th 

Cir. 2002); see also Aldana v. DelMonte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005); 

Day v. Taylor, 400 F.3d 1272 (11th Cir. 2005); Davila v. Delta Airlines, 326 F.3d 1183, 1185 (11th 

Cir. 2003). When, on the basis of a dispositive issue of law, no construction of the factual 

allegations of the complaint will support the cause of action, dismissal of the complaint is 

appropriate. Williams v. Bierman, 46 F. Supp. 2d 1262, 1263 (M.D. Fla. 1999); Marshall Cnty. 

Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1992).

II. Plaintiff’s Disagreement on a Matter of Medical Judgment Provides No Basis for 

Recovery Under Section 1983.

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Plaintiff’s Amended Complaint essentially alleges that he was denied adequate medical 

treatment while he was incarcerated at BRCF and claims that such denial of treatment amounts to 

deliberate indifference actionable under Section 1983. However, Plaintiff’s own speculative 

allegations together with the medical records filed with his Complaint make clear that his claim 

cannot be legally maintained under the instant facts. 

The Amended Complaint is noticeably silent as to any specific allegations as to Dr. Semple 

and Warden Maiorana with regard to WOOD’s medical care, whether individually or within 

official capacity. Such deficiency is fatal to Plaintiff’s claims. Plaintiff essentially alleges he was 

improperly cared for by ARNP Nichols and non-party “Dr. Smith.” However, the nature of such 

claims – a disagreement over matters of medical judgment – does not permit recovery under § 

1983, regardless. Plaintiff’s Amended Complaint, especially when compared to the chronology 

of treatment rendered by ARNP Nichols at the detention facility, the diagnostic imaging of (5)

areas of his right upper extremity, the outside consultations with orthopedic surgeon Erwin 

Bennett, M.D. and hand specialist James Piorkowski, M.D., demonstrate the comprehensive 

repeated medical attention to Plaintiff’s medical conditions for which he now complains. [ECF 1

at 17-31, 39-41, 43]. Notably, the last treatment record from the hand specialist on October 1, 

2019 (the date before and after Plaintiff’s referenced grievances) reflects: a) a history that Plaintiff 

has a typical malunion for a distal radius Colles’-type fracture treated conservatively with a splint, 

is able to use his wrist to lift heavy things and do spray automobiles, which are things he is planning 

to do when he gets out; b) physical exam of really quite good motion in both flexion and extension,

no real fracture tenderness, finger sensation intact; c) an assessment of closed fracture of distal 

end of right radius with routine healing and malunited distal radius fracture with good function

and minimal discomfort; and e) a planned release to full activity with no indication for further 

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surgical treatment. [Id. at 30-31]. There is no indication from the BRCF records or outside 

specialist’s records to support Plaintiff’s layman, speculative contention that treatment at BRCF 

was inadequate, much less plausibly deliberately indifferent to give rise to a claim under § 1983. 

A section 1983 claim “does not lie if a prisoner’s complaint is directed at the wisdom or 

quality of medical treatment he received in prison, even if that treatment is so negligent as to 

amount to medical malpractice.” Brown v. Prison Health Servs., Inc., 2008 WL 131168, at *3 

(S.D. Ga. 2008) (quoting Brinton v. Gaffney, 554 F. Supp. 388, 389 (E.D. Pa. 1983)). Indeed, the 

Eleventh Circuit has dismissed claims for deliberate indifference where the plaintiff alleged that 

he was monitored by prison medical staff regularly, was referred to specialists, received treatment

and was prescribed pain medications and antibiotics. See e.g., Coney, v. Grayer, 195 Fed.Appx. 

847 (2006)(unpublished). 

The deliberate indifference standard is demanding, and merely negligent diagnosis or 

treatment is insufficient to meet the standard as a matter of law. See Estelle, 429 U.S. at 102-04; 

Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995). “Medical malpractice does not become a 

constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. To rise 

to the level of deliberate indifference to a serious medical need, the “treatment must be so grossly 

incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to 

fundamental fairness.” Tedesco v. Minnis, 119 F. Supp. 2d 1320, 1326 (M.D. Fla. 2000) (citing

Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)).

It is well-established that matters of medical judgment do not support a Section 1983 claim. 

See Faison v. Rosado, 129 Fed. Appx. 490, 492 (11th Cir. 2005) (“Although [Plaintiff] might not 

agree with the method of treatment provided, matters of medical judgment do not give rise to a § 

1983 claim.”). A plaintiff is not entitled to demand a particular type of treatment as long as a 

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physician exercises his professional judgment as to the appropriate course of action and provides 

some form of treatment, such as this Plaintiff himself admits in his [Amended] Complaint. Wright 

v. Collins, 766 F.2d 841 (4th Cir. 1985); Campbell v. Sacred Heart Hosp., 496 F. Supp. 692 (E.D. 

Pa. 1989); Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). “A difference 

of opinion over matters of medical judgment does not give rise to a constitutional claim.” Tedesco 

v. Minnis, 119 F. Supp. 2d 1320, 1327 (M.D. Fla. 2000). Thus, Plaintiff’s disagreement concerning 

the course of his treatment is not actionable under § 1983.

Where an inmate has received medical treatment but his claim is that the treatment provided 

was not adequate, as is the case here, courts should be reluctant to question the appropriateness of 

the healthcare providers’ medical judgments. Harris v. Coweta County, 21 F.3d 388, 393 (11th 

Cir. 1994); see also Estelle, 429 U.S. at 106 (inmate failed to state a claim of deliberately 

indifferent medical care despite his contentions that other diagnostic techniques and treatment 

could have been pursued). The instant matter is exemplary of the type of medical judgment claim 

that should be dismissed as a matter of law. 

Plaintiff has failed to demonstrate at the pleading stage that ARNP Nichols, much less Dr. 

Semple and Warden Maiorana, acted wantonly or with the conscious disregard of Plaintiff’s 

condition that is required to establish a deliberate indifference claim. Plaintiff has failed to show 

that any of the Defendants conduct was so “grossly incompetent, inadequate, or excessive as to 

shock the conscience or to be intolerable to fundamental fairness.” Rogers v. Evans, 792 F.2d 

1052, 1058 (11th Cir. 1986). Though Plaintiff disagrees with Defendants’ manner of treatment, 

this difference of medical opinion does not rise to the level of deliberate indifference. See Waldrop 

v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1980). 

III. WOOD failed to properly exhaust his administrative remedies.

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Plaintiff contends that he exhausted all available administrative remedies under the 

grievance procedures at BRCF [ECF 6 at 13-15; ECF 1 at 37, 44-54]. Notably, Plaintiff concedes 

to knowing these procedures and the requirements [ECF 1; 6 generally]. 

A. Standard on Motion to Dismiss for Failure to Exhaust Available Administrative 

Remedies under the Prison Litigation Reform Act

The standard on a Motion to Dismiss for Failure to Exhaust Available Administrative 

Remedies under the PLRA was articulated by this court:

In Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008), the Eleventh Circuit 

outlined the procedure district courts should follow when presented with a 

motion to dismiss for failure to exhaust administrative remedies under the 

Prison Litigation Reform Act (“PLRA”). The court held that the defense of 

failure to exhaust should be treated as a matter in abatement. Id. at 1374. 

“This means that procedurally the defense is treated ‘like a defense for lack 

of jurisdiction,’ although it is not a jurisdictional matter.” Turner v. 

Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (quoting Bryant, 530 F.3d 

at 1374). Because exhaustion is a matter in abatement, “it should be raised 

in a motion to dismiss, or be treated as such if raised in a motion for 

summary judgment.” Bryant, 530 F.3d at 1374-75 (citation and internal 

quotation omitted).

Deciding a motion to dismiss for failure to exhaust administrative remedies 

involves two steps. Turner, 541 F.3d at 1082. First, the court looks to the 

factual allegations in the defendants' motion, and those in the plaintiff's 

response. Id. If they conflict, the court accepts the plaintiff's version as true. 

“If, in that light, the defendant is entitled to have the complaint dismissed

for failure to exhaust administrative remedies, it must be dismissed.” Id.; 

see also Bryant, 530 F.3d at 1373-74.

If the complaint is not subject to dismissal at the first step, where the 

plaintiff's allegations are assumed to be true, “the court proceeds to make 

specific findings in order to resolve the disputed factual issues related to 

exhaustion.” Turner, 541 F.3d at 1082 (citing Bryant, 530 F.3d at 1373-74, 

1376). “The defendants bear the burden of proving that the plaintiff has 

failed to exhaust his available administrative remedies.” Id. Upon making 

findings on the disputed issues of fact, the court then decides whether, under 

those findings, the plaintiff has exhausted his available administrative 

remedies.

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Crespo v. Scott, 5:14CV195-MW-CJK, 2017 WL 1196464, at *4 (N.D. Fla. Mar. 1, 2017), 

report and recommendation adopted, 5:14CV195-MW/CJK, 2017 WL 1196446 (N.D. Fla. Mar. 

29, 2017). 

Factual disputes concerning the exhaustion of administrative remedies may be decided by 

the court sitting as fact-finder, “so long as the factual disputes do not decide the merits and the 

parties have sufficient opportunity to develop a record.” Bryant, 530 F.3d at 1373–74, 1376. Even 

though evidence may be presented to support or refute a contention that a prisoner has not 

exhausted the grievance process, exhaustion is a “matter in abatement and not generally an 

adjudication on the merits,” thus, it should be raised and treated as a motion to dismiss, not a 

summary judgment motion. Id., at 1374–75.1

B. Exhaustion Requirement

The Prison Litigation Reform Act (“PLRA”) provides in relevant part that “[n]o action 

shall be brought with respect to prison conditions under section 1983 of this title, or any other 

Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). See Porter v. 

Nussle, 534 U.S. 516, 524–25, (2002) (“Beyond doubt, Congress enacted § 1997e(a) to reduce the 

quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections 

officials time and opportunity to address complaints internally before allowing the initiation of a 

federal case.”).

“Exhaustion is a precondition to litigation in federal courts, and courts do not have the 

discretion to waive the § 1997e(a) requirement.” Mason v. Bridger, 261 Fed. Appx. 225, 228 (11th 

1 When motions to dismiss are based on issues not enumerated under Rule 12(b), then Rule 43(c) governs "which 

permits courts to hear evidence outside of the record on affidavits submitted by the parties." Bryant, 530 F.3d at 

1377, n. 16.

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Cir. 2008) (citing Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 1824 (2001)); Johnson v. 

Meadows, 418 F.3d 1152, 1155 -1156 (11th Cir. 2005) (“[The Act] entirely eliminates judicial 

discretion and instead mandates strict exhaustion, ‘irrespective of the forms of relief sought and 

offered through administrative avenues.’” (quoting Booth at 741 n.6).2 Further, “[t]he requirement 

is not subject to waiver by a court or futility or inadequacy exceptions.” Vinci v. Culpepper, at *2 

(citing Booth at 741 n.6). See also Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir. 1998) (“The 

judicially created futility and inadequacy doctrines do not survive the PLRA's mandatory 

exhaustion requirement.”).

The PLRA “applies to all inmate suits about prison life, whether they involve general 

circumstances or particular episodes, and whether they allege excessive force or some other 

wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992 (2002).

To exhaust administrative remedies, the PLRA requires that inmates comply with 

grievance procedures, including time deadlines. Woodford v. Ngo, 548 U.S. 81, 90-93, 126 S.Ct. 

2378 (2006) (PLRA exhaustion requirement requires “proper exhaustion” and “demands 

compliance with an agency’s deadlines and other critical procedural rules”). The Supreme Court 

in Woodford interpreted "exhausted" to mean "proper exhaustion," and held that an "untimely or 

otherwise procedurally defective" grievance would not properly exhaust remedies. Id. at 83-84 

(2006)(emphasis added). This means that "a prisoner must complete the administrative review 

process in accordance with the applicable procedural rules, including deadlines, as a precondition 

to bringing suit in federal court." Id. at 88 (Emphasis added). Thus, "where an inmate's grievance 

is denied for failure to timely file, he is barred from bringing a federal action on his claim, as he 

2 Accordingly, “[e]xhaustion is required whether the plaintiff seeks declaratory and injunctive relief, monetary 

damages, or both.” Small v. Barton, 2008 WL 5055657 (N.D. Fla. 2008) (citing Booth, 532 U.S. at 734, 121 S.Ct. at 

1825).

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did not fully and properly exhaust his administrative remedies." Davis v. Florida Dept. of 

Corrections, 264 Fed. Appx. 827, 828 (11th Cir. 2008) (citing Minnis v. Meadows, 418 F.3d 1152, 

1154 (11th Cir. 2005)("an untimely administrative grievance does not satisfy the exhaustion 

requirement of the PLRA.") (emphasis added).

The Supreme Court has noted that in cases where state prisoners raised federal law claim, it 

is the correctional facility’s grievance process that must be exhausted. See Jones v. Bock, 549 U.S. 

199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“Compliance with prison grievance procedures... 

is all that is required by the PLRA to ‘properly exhaust’”).

In Florida, the procedural rules an inmate must follow in order to properly exhaust their 

administrative remedies are promulgated by the Florida Department of Corrections and contained 

the Florida Administrative Code. See Fla. Admin. Code Chapter 33-103 ("Inmate Grievances").

To properly grieve an issue, an inmate must file a written informal grievance using Form DC6-

236, [R. 33-103.005]. If the inmate is dissatisfied with the result of the informal grievance, he must 

next file a written formal grievance with the Warden's office using Form DC1-303, [R. 33-

103.006]. Finally, if the inmate feels that the grievance has still not been satisfactorily resolved, 

he must submit a written appeal to the State Office of the Secretary ("Central Office") using Form 

DC1-303. [R. 33-103.007]. See e.g. Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218 

(11th Cir. 2010). [R. 33103.005, 33-103.006, and 33-103.007].

If an inmate is filing a medical grievance, he may bypass use of an initial informal 

grievance and begin his medical complaint with a formal grievance to the institutional warden. See

Fla. Admin. Code R. 33-103.006(3)(e). This is known as a formal "Grievance of a Medical 

Nature," Id. at R. 33-103.008. If the inmate is dissatisfied with the result of the medical formal 

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grievance, the inmate may appeal to the Office of the Secretary. Id. at R. 33-103.007. See 

Thompson v. Nichols, 3:11CV423/RV/CJK, 2015 WL 1484807, at *3 (N.D. Fla. 2015).

An inmate may not initiate a grievance with the Office of the Secretary except in cases of 

emergencies, reprisals, HIPAA violations, and other limited situations defined by R. 

33.103.007(6). In such cases, the direct grievance "shall state . . . that the grievance concerns 

either an emergency or is a grievance of a reprisal . . . [or] HIPAA" and "must clearly state the 

reason for by-passing the informal and formal grievance steps of the institution or facility[.]" Id.

The rules establish strict time frames for inmates to file grievances. Pursuant to Rule 33-

103.011 ("Time Frames for Inmate Grievances"), informal grievances must be received "within 

20 days of the when the incident or action being grieved occurred," and formal grievances 

(including direct formal grievances of a medical nature) must be received "no later than 15 

calendar days" from either: (1) the date on which the informal grievance was responded to; or (2) 

the date on which the incident or action being grieved occurred if an informal grievance was not 

filed. [R. 33-103.011(1)(a), and (b)]. Direct grievances to the Central Office must also be received 

within 15 days from the date on which the incident or action being grieved occurred. [See R. 33-

103.011(1)(d)].

Grievance appeals to the Office of the Secretary "[m]ust be received within 15 calendar 

days from the date the response to the formal grievance is returned to the inmate." R. 33-

103.011(1)(c). To eliminate issues with mailing, the rules make provisions for appeals to the 

Secretary to be receipted locally at the institution/facility, See R. 33103 .006(8).

C. Plaintiff’s Grievances.

Although Plaintiff does not attach any grievances to the Amended Complaint, Plaintiff

attached (5) grievances, appeals and the administrative responses as part of the original Complaint, 

which Plaintiff seemingly relies, therefore the same are part of the Court record. [ECF 1 at 37, 44-

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54]. Although not a model of clarity, Plaintiff makes references to the denial of proper treatment 

following his July 9, 2019 injury, but any cursory mention of specific dates of treatment

demonstrates that Plaintiff’s grievances are untimely. Additionally, Plaintiff repeatedly makes

general references to other grievances, sick calls and request forms, but did not attach the same to 

his pleading. [Id.]. 

A plain reading of Plaintiff’s allegations in the Amended Complaint and review of the 

previously filed attachments demonstrate that WOOD failed to comply with the grievance and 

appeals procedure and his claims are therefore barred by the apparent failure to comply with the 

administrative process and exhaust his administrative remedies. 

WOOD alleges that on September 14, 2019, he filed a Request for Administrative Remedy 

or Appeal the Secretary Florida Department of Corrections (#19-6-34554)3, which was received 

by the Office of the Secretary on September 23, 2019. [ECF 1 at 54]. Within the grievance, Plaintiff 

mentions that on July 15, 2019, an officer contacted Medical Emergency due to an incident on July 

9, 2019 involving WOOD and a serious injury (broken arm). He further states that on July 17-18, 

2019, ARNP Nichols refused to treat him with proper care. [Id.]. There is no mention of Dr. 

Semple or Warden Maiorana. Notwithstanding the discussion as to the adequacy of the care as 

argued supra, based upon the alleged treatment date(s), or failure to render the same as to ARNP 

Nichols, Plaintiff was required to submit this medical grievance within (20) days, or by August 7, 

2019 at the latest. Plaintiff failed to do so. Therefore, Plaintiff’s submission on September 14, 

2019 is untimely. Moreover, in the Secretary’s response on September 26, 2019, this grievance 

was determined to be filed in non-compliance with Chapter 33-103.006, Inmate Grievance 

Procedure in that a) Plaintiff failed to provide a copy of the formal grievance filed at the 

3

It appears that Plaintiff’s Grievance #19-6-34554 continues to a second page, however only page 1 was attached to 

ECF 1. 

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institutional level as required by the rule or b) Plaintiff’s reason for by-passing the that level of the 

grievance procedure was not acceptable. [ECF 1 at 37]. The appeal was returned without action. 

[Id.]. 

WOOD claims that on September 30, 2019, he submitted another appeal to the Secretary, 

Florida Department of Corrections (#19-6-35754), which was also determined to be filed in noncompliance with Chapter 33-103.006, Inmate Grievance Procedure by failing to provide a copy of 

the formal grievance filed at the institutional level as required by the rule or the reason for bypassing the that level of the grievance procedure is not acceptable and that the Secretary’s records 

did not reflect a medical related formal grievance had been received by the Department. [ECF 1 at 

45, 47]. In this grievance, without providing any dates, Plaintiff mentions having been denied any 

relief at BRCF by medical staff “Ms. Nichols” and “Mr. Smith.” [ECF 45]. He states that he filed 

sick calls, request forms and prior grievances over the last month, however, Plaintiff does not 

attach any of those grievances to his Complaints. [Id.]. Plaintiff mentions speaking with an 

unspecified “Medical Director” on September 20, 2019 but makes no complaint of any treatment

of lack thereof on that date, only that a non-party, “Doctor Mr. Smith” was present and failed to 

answer truthfully as to his assigned job description. [Id.]. Grievances are limited to one issue or 

complaint. See Fla. Admin. Code. with Chapter 33-103.006. Plaintiff makes multiple accusations 

without providing the requisite specificity. For all of the foregoing reasons, Plaintiff did not 

properly comply with grievance procedure requirements and failed to exhaust. 

WOOD claims that on October 6, 2019, he submitted a formal grievance (#1910-185-063) 

to the Warden at BRCF. [ECF 1 at 48]. Within the grievance in familiar fashion, Plaintiff recites 

that on July 15, 2019, an officer contacted Medical Emergency due to an incident on July 9, 2019 

involving WOOD and a serious injury (broken arm). He further states that on July 17, 2019, ARNP 

Case 3:20-cv-05492-MCR-EMT Document 19 Filed 09/04/20 Page 13 of 22
Nichols and “Doctor Mr. Smith” refused to treat him with proper care, except to wrap his broken 

arm up into a splint, give ibuprofen and sent him back to the dormitory4. [Id.]. There is no mention 

of Dr. Semple or Warden Maiorana. Plaintiff was required to submit this grievance by August 6, 

2019. He failed to do so and thus the grievance was untimely. 

Nevertheless, Dr. Semple received, reviewed and evaluated the grievance with the 

following response provided on October 23, 2019, which was signed off by Warden Maiorana: 

Review of your record reveals that the medical evaluation and care 

provided to you for the injury to your arm was appropriate and

adequate. You were referred to specialists for your injury. The 

recommendations made by the specialists have been followed by our 

clinician. If you feel you want to or need to be re-evaluated, sign up for 

sick call. 

Based on the foregoing, the grievance was denied. [ECF 1 at 49]. Thereafter, Plaintiff had 15 

days to appeal to the Secretary. Despite the fact that this grievance was not filed timely at the 

facility level, there is no indication Plaintiff complied with the time requirements of R. 33-

103.011(1)(c) in the appeal to the Secretary for Grievance #1910-185-063.

Plaintiff alleges that he submitted an appeal to the Secretary, Florida Department of 

Corrections (#19-6-39560)

5

on October 24, 2019, which was received on November 6, 2019. [ECF 

1 at 50, 51]. This appeal was also determined by the Secretary to be filed in non-compliance with 

Chapter 33-103.006, Inmate Grievance Procedure by failing to provide a copy of the formal 

grievance filed at the institutional level as required by the rule or the reason for by-passing the that 

level of the grievance procedure is not acceptable and that the Secretary’s records did not reflect 

4 Although not pertinent to the discussion as to Plaintiff’s exhaustion of administrative remedies, Plaintiff’s 

allegations on October 6, 2019 are contradicted by his own medical records that show that he had x-rays of his right 

arm, right shoulder, right elbow, right wrist and right hand on July 15, 2019, which were read by ARNP Nichols on 

July 17, 2019; he was referred to an orthopedic surgeon, Dr. Bennett, for evaluation, which was completed August 

8, 2019; and was referred to and seen by a hand specialist, Dr. Pirokowski on August 29, 2017 and October 1, 2019. 

[ECF 1 at 17-31, 39-41, 43]

5 Plaintiff’s appeal does not make mention to Grievance #1910-185-063.

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that Plaintiff provided any appeal log numbers or dates that he submitted appeals to that office. 

[Id. at 51]. Plaintiff was given 15 days from November 13, 2019 to resubmit his compliant 

grievance at his current location. [Id.]. There is no indication that Plaintiff complied, therefore 

Plaintiff has failed to exhaust his administrative remedies.

On December 1, 2019, Plaintiff submitted a grievance addressed to the Warden (#19-6-

42776)

6

. [Id. at 52]. Within the same, Plaintiff again recounts his July 9, 2019 injury, that he was 

sent for x-rays on July 16, 2019 and saw “the doctor” on July 17, 2019, the following day. Plaintiff 

does not appear to mention ARNP Nichols, Dr. Semple or Warden Maiorana, specifically. 

Plaintiff references “an attached form 19-6-35754.” [Id.]. Grievance #19-6-35754 was returned to 

Plaintiff by the Secretary on October 9, 2019, which gave Plaintiff 15 days to resubmit at the local 

facility in compliance with Chapter 33-103, Inmate Grievance Procedure. [ECF 1 at 47]. 

Notwithstanding the fact that the Grievance #19-6-35754 was deficient, there is no indication that 

Plaintiff complied with the October 9, 2019 directive from the Secretary. 

The Secretary responded on December 11, 2019 indicating that the grievance was 

inadvertently forwarded to the Office of the Secretary and was returned without action. [Id. at 53]. 

Plaintiff was given 15 days from the mail-stamped date (December 18, 2019) to resubmit his 

grievance at his current location and was directed to attach a copy of the response and any relevant 

attachments to his re-filed grievance. Notwithstanding the remoteness from the subject incident 

or his treatment dates to this time frame, there is no indication that Plaintiff complied with this 

directive. 

WOOD has not shown compliance with the grievance requirements despite his knowledge 

of the same and the availability of the procedure with clear directives from the Secretary, Florida 

6 The copy of Plaintiff’s Grievance #19-6-42776 attached to his initial Complaint is almost entirely illegible. 

Case 3:20-cv-05492-MCR-EMT Document 19 Filed 09/04/20 Page 15 of 22
Department of Corrections to cure deficiencies. In failing to properly exhaust his administrative 

remedies, his instant claim is barred. 

IV. Plaintiff’s claims against Warden Maiorana should be dismissed as he, as a nonmedical professional is entitled to rely upon the medical judgment of the practitioner

regarding Plaintiff’s medical needs and Warden Maiorana is entitled to immunity 

from suit in his individual and official capacity. 

A. Reliance upon Medical Judgment

Plaintiff has also sued Warden Maiorana for deliberate indifference to his serious medical 

need. Warden Maiorana was only involved in Plaintiff’s medical treatment to the extent that he 

signed off on Dr. Semple’s October 23, 2019 response to Plaintiff’s grievance. [ECF 49]. In this 

circumstance, where the Warden is “not a medical professional, nor directly involved in 

[plaintiff’s] medical care,” the plaintiff “must establish that Warden Maiorana was responsible for 

his constitutional deprivation in a supervisory capacity.” Sealey v. Pastrana, 399 F. App’x 548, 

552 (11th Cir. 2010). 

“[S]upervisors can be held liable for subordinates’ constitutional violations on the basis of 

supervisory liability under” Section 1983. Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 

2007). “Supervisory liability under § 1983 occurs ‘when the supervisor personally participates in 

the alleged constitutional violation or when there is a causal connection between the actions of the 

supervising official and the alleged constitutional deprivation.’” Id. (quoting Cottone v. Jenne, 326 

F.3d 1352, 1360 (11th Cir.2003)).

A causal connection may be established when: 1) a “history of widespread 

abuse” puts the responsible supervisor on notice of the need to correct the 

alleged deprivation, and he or she fails to do so; 2) a supervisor’s custom or 

policy results in deliberate indifference to constitutional rights; or 3) facts 

support an inference that the supervisor directed subordinates to act 

unlawfully or knew that subordinates would act unlawfully and failed to 

stop them from doing so.

Id.

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Here, the Amended Complaint fails to plead sufficient facts to establish that Warden 

Maiorana violated WOOD’s constitutional rights on this one occasion. A single instance of 

violation of constitutional rights will not suffice to hold a supervisor liable for her acts, or for her 

policies. Nonetheless, “supervisory officials are entitled to rely on medical judgments made by 

medical professionals responsible for prisoner care.” Williams v. Limestone Cty., Ala., 198 F. 

App’x 893, 897 (11th Cir. 2006) (citing Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993); 

White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988)).

Here, there are no allegations of widespread abuse that would put Warden Maiorana on 

notice of the need to correct the alleged deprivation of adequate medical care, and the facts do not 

support an inference that they directed subordinates to act unlawfully. Dr. Semple clearly indicates 

in the grievance response that review of Plaintiff’s records revealed that the medical evaluation 

and care provided to you for the injury to your arm was appropriate and adequate and including 

referrals to specialists and thereafter recommendations made by the specialists were followed by 

the facility clinician. [ECF 1 at 49].

As a non-medical supervisor, Warden Maiorana was entitled to rely on Dr. Semple’s 

medical judgment. Plaintiff has not shown how Warden Maiorana was deliberately indifferent to 

Plaintiff’s serious medical need other than his bald assertions that as Warden, he should have seen 

that Plaintiff was taken to medical appointments and that the medical staff at BRCF were providing 

adequate care. Such allegations simply do not give rise to a legally cognizable claim against a 

non-medical supervisor. 

B. Warden Maiorana is immune from suit in his official capacity as a prison official 

pursuant to the Eleventh Amendment to the U.S. Constitution.

Plaintiff’s Amended Complaint alleges that he is suing Warden Maiorana in his “official 

capacity.” See Am. Compl., ECF 6 at 12. Plaintiff seeks monetary and punitive damages for relief 

Case 3:20-cv-05492-MCR-EMT Document 19 Filed 09/04/20 Page 17 of 22
against this Defendant. Id. The Eleventh Amendment absolutely bars suits for damages against 

state actors. See, e.g., Gamble v. Florida Dep’t of Health & Rehab. Servs., 779 F.2d 1509, 1511 

(11th Cir. 1986). There is no dispute that the Florida Department of Corrections, and its employees, 

are state actors. Accordingly, this Defendant is entitled to sovereign immunity for monetary 

damages that Plaintiff seeks from this Defendant in his official capacity.

To the extent the Amended Complaint seeks monetary damages against this Defendant in 

his individual capacity, “qualified immunity shields government officials from individual-capacity 

suits for actions taken while performing a discretionary function so long as their conduct does not 

violate a ‘clearly established’ constitutional right.” Montanez v. Carvajal, 889 F.3d 1202, 1207 

(11th Cir. 2018). This shield allows officials to carry out their discretionary duties without the fear 

of personal liability or harassing litigation. Manners v. Cannella, 891 F.3d 959, 967 (11th Cir. 

2018). Qualified immunity protects from suit “all but the plainly incompetent or one who is 

knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) 

(quotation marks omitted). The applicability of qualified immunity presents a question of law for 

a court to decide. Sims v. Metro. Dade Cty., 972 F.2d 1230, 1234 (11th Cir. 1992).

To be entitled to qualified immunity, an officer must establish that he was acting within his 

discretionary authority during the incident. Manners, 891 F.3d at 967. The officer proves that he 

acted within his discretionary authority “by showing objective circumstances which would compel 

the conclusion that his actions were undertaken pursuant to the performance of his duties and 

within the scope of his authority.” Roberts v. Spielman, 643 F.3d 899, 903 (11th Cir. 2011) 

(quotation marks omitted). Here, Warden Maiorana was acting within his discretionary authority 

when he signed off on Plaintiff’s single grievance prepared by Dr. Semple [ECF 1 at 49]. As a 

Case 3:20-cv-05492-MCR-EMT Document 19 Filed 09/04/20 Page 18 of 22
warden, he is authorized to sign off on grievances directed to him at the facility level as a reviewing 

authority under Fla. Admin. C. 33-103.002(15). 

If an officer establishes that he was acting within his discretionary authority, the burden 

shifts to the plaintiff to show that the officer violated a constitutional right, and that the 

constitutional right was clearly established at the time of the alleged deprivation of the right. 

Montanez, 889 F.3d at 1207.

The Eleventh Circuit employs two methods for determining whether a reasonable officer 

would know that his conduct is unconstitutional. Id. at 1291. First, a right is clearly established if, 

under the relevant caselaw at the time of the violation, “a concrete factual context exists so as to 

make it obvious to a reasonable government actor that his actions violate federal law.” Id. 

(quotation marks omitted). Relevant caselaw is limited to the case law Supreme Court of the United 

States, published case law by the Eleventh Circuit Court of Appeals, and the highest court of the 

state under which the claim arose. Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011). 

Alternatively, the Court may examine the officer’s conduct to determine “whether that conduct 

lies so obviously at the very core of what the [Constitution] prohibits that the unlawfulness of the 

conduct was readily apparent to the officer, notwithstanding the lack of fact-specific case law.” 

Fils, 647 F.3d at 1291 (quotation marks omitted). This second method, known as obvious clarity, 

is a narrow exception to the general rule that only caselaw and specific factual scenarios can clearly 

establish a constitutional violation. Id.; see also Coffin, 642 F.3d at 1015 (stating that obvious 

clarity cases are rare).

Clearly established law “should not be defined at a high level of generality” and “must be 

particularized to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quotation marks 

omitted). Although there need not be a case directly on point for a right to be clearly established, 

Case 3:20-cv-05492-MCR-EMT Document 19 Filed 09/04/20 Page 19 of 22
“existing precedent must have placed the statutory or constitutional question beyond debate.” Id. 

at 551 (quotation marks omitted). While “general statements of the law are not inherently incapable 

of giving fair and clear warning to officers,” the unlawfulness must be apparent in the light of preexisting law. Id. at 552 (quotation marks omitted); see also Vaughan v. Cox, 343 F.3d 1323, 1332 

(11th Cir. 2003) (stating that the “salient question . . . is whether the state of the law gave the 

defendants fair warning that their alleged conduct was unconstitutional”) (quotation marks 

omitted)). “[I]f case law, in factual terms, has not staked out a bright line, qualified immunity 

almost always protects the defendant.” Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009). The 

Eleventh Circuit “has often been reluctant to reject qualified immunity for deliberate indifference 

to medical need claims that ‘are highly fact-specific.’” Gilmore v. Hodges, 738 F.3d 266, 280 (11th 

Cir. 2013).

As Warden Maiorana has established that he was acting within his discretionary authority, 

the burden shifts to the plaintiff to show that the warden violated a constitutional right, and that 

the constitutional right was clearly established at the time of the alleged deprivation of the right. 

In the instant case, the general assertions from Plaintiff in his Amended Complaint – that the 

warden failed to provide oversight to medical provider, failed to insure proper care is rendered and 

that inmates were transported to outside medical appointments – are insufficient to demonstrate a 

legally cognizable claim that Warden Mairoana’s conduct was unconstitutional. As such, he is 

entitled to immunity. 

V. Conclusion

Since WOOD has not exhausted his administrative remedies for his deliberate indifference 

claims against Dr. Semple, ARNP Nichols and Warden Maiorana by filing a timely, compliant

grievance(s) or appeal(s), WOOD’s lawsuit should be dismissed with prejudice. The Supreme 

Case 3:20-cv-05492-MCR-EMT Document 19 Filed 09/04/20 Page 20 of 22
Court of the United States has held that an inmate must comply with grievance procedures, 

including time deadlines of a prison in order to properly ‘exhaust’ administrative remedies and 

failing to miss a deadline or follow procedures is fatal to a prisoner’s Section 1983 claim which 

WOOD here has failed to do for all of his claims. Woodford, 548 U.S. 81 at 90-93; See also Jones, 

549 U.S. 199 at 218.

Moreover, Plaintiff has failed to state a claim upon which relief can be granted pursuant to 

42 U.S.C. § 1983 for the alleged deliberate indifference to his serious medical needs. Based on 

the foregoing, Plaintiff’s Amended Complaint should be dismissed as a matter of law as Plaintiff 

has failed to exhaust his administrative remedies prior to filing suit pursuant to 42 U.S.C. § 1997(e)

and Plaintiff has also failed to state a claim upon which relief can be granted pursuant to Rule 

12(b)(6) of the Federal Rules of Civil Procedure.

Finally, all of Plaintiff’s claims against Warden Maiorana should be dismissed as he is 

immune from suit as a prison official. 

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(B) and (F)

Pursuant to Local Rule 7.1(B), an attorney conference with unrepresented (pro se) parties 

in custody is not required before the filing of a motion in this Court. The foregoing motion and 

memorandum of law complies with Local Rule 7.1(F) as, combined, the sections contain only 

6,415 words.

Respectfully submitted this 4

th day of September, 2020.

By: s/ Jeffery R. Lawley 

Jeffery R. Lawley, Esq.

Florida Bar No.: 596027

Email: jrl@bclmr.com

BILLING, COCHRAN, LYLES,

 MAURO & RAMSEY, P.A.

SunTrust Center, 6th Floor

515 East Las Olas Boulevard

Case 3:20-cv-05492-MCR-EMT Document 19 Filed 09/04/20 Page 21 of 22
Fort Lauderdale, FL 33301

Tel: 954-764-7150

Fax: 954-764-7279

Attorneys for Defendants

Marsha Nichols, ARNP, Warden Charles 

Maiorana and George J. Semple, D.O. 

I hereby certify that on this 4

th day of September, 2020, I electronically filed a true and 

correct copy of the foregoing with the Clerk of the Northern District Court by using the CM/ECF 

system. I further certify that I mailed the foregoing document by first-class mail to the following 

non-CM/ECF participant: 

Joseph G. Wood - DC#894702

Plaintiff, pro se

Jefferson Correctional Institution 

Inmate Mail/Parcels

1050 Big Joe Road

Monticello, Florida 32344

By: /s/ Jeffery R. Lawley

Jeffery R. Lawley

Fla. Bar No. 0596027

jrl@bclmr.com

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