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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LAVAROS DAVIS,

Plaintiff,

v. Case No. 3:20cv5935-MCR-HTC

SGT. DANIELS, et al.,

Defendants.

_________________________/

ORDER and

REPORT AND RECOMMENDATION

This matter is before the Court on Defendants’ motion to dismiss Plaintiff’s 

complaint for failure to exhaust administrative remedies as required under 42 U.S.C. 

§ 1997e(a) of the Prison Litigation Reform Act (“PLRA”). ECF Doc. 25. 

Alternatively, Defendants move, at a minimum, for dismissal of Plaintiff’s 

declaratory relief and Fourteenth Amendment claims. Id. Upon consideration of 

Plaintiff’s response, (ECF Doc. 33), Defendants’ reply, (ECF Doc. 36), and 

Plaintiff’s sur-reply (ECF Doc. 37)1

, the undersigned recommends the motion be 

DENIED in part because Plaintiff properly exhausted his administrative remedies

1 Plaintiff titles his reply as a “motion to reply to Defendant’s reply to Plaintiff’s reply.” ECF Doc. 

37 at 1. However, upon review, it is clear the filing is not a motion, but simply a reply. Although 

Plaintiff did not move to file a sur-reply, the Court has nonetheless considered it. Thus, the clerk 

will be directed to terminate the motion.

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and GRANTED in part as to Plaintiff’s declaratory relief and Fourteenth 

Amendment claims.

I. BACKGROUND

Plaintiff Lavaros Davis, an inmate of the Florida Department of Corrections 

(“FDOC”), proceeding pro se and in forma pauperis, brings this action under 42 

U.S.C. § 1983, asserting claims against Defendants Lieutenant Nousiaine, Sergeant 

Daniels, Colonel Vaughn, and Colonel Newcomb for alleged use of excessive force 

arising out of an incident occurring at Santa Rosa Correctional Institution (“SCRI”)

on August 6, 2020.

II. FAILURE TO EXHAUST

As stated above, Defendants move to dismiss this action on the ground that 

Plaintiff failed to exhaust his administrative remedies. The crux of Defendants’ 

argument is that a formal grievance Plaintiff filed, which referenced an incident 

occurring on August 8, rather than August 6, was insufficient to give the agency 

notice of the subject incident. As discussed below, the undersigned disagrees. 

A. Legal Standard

The PLRA provides that “[n]o action shall be brought with respect to prison 

conditions under § 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). Exhaustion of all available 

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administrative remedies is a mandatory precondition to suit. See Booth v. Churner, 

532 U.S. 731, 739 (2001). The exhaustion requirement “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 (2002). Exhaustion is required whether the plaintiff seeks 

declaratory and injunctive relief, monetary damages, or both. See Booth, 532 U.S. 

at 734, 741. The requirement is not subject to waiver by a court or futility or 

inadequacy exceptions. See id. at 741 n. 6. 

Moreover, the PLRA requires “proper exhaustion” so that the agency has an 

opportunity to address the issues on the merits. Woodford v. Ngo, 548 U.S. 81, 93-

94 (2006); see also id. at 95 (“The benefits of exhaustion can be realized only if the 

prison grievance system is given a fair opportunity to consider the grievance. The 

prison grievance system will not have such an opportunity unless the grievant 

complies with the system’s critical procedural rules”). “Requiring exhaustion allows 

prison officials an opportunity to resolve disputes concerning the exercise of their 

responsibilities before being haled into court. This has the potential to reduce the 

number of inmate suits, and also to improve the quality of suits that are filed by 

producing a useful administrative record.” Jones v. Bock, 549 U.S. 199, 204 (2007). 

Additionally, a plaintiff must exhaust his available administrative remedies as 

to each claim set forth in his complaint. See Martinez v. Minnis, 257 F. App’x 261, 

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265 n. 5 (11th Cir 2007) (finding prisoner who filed grievance concerning numerous 

claims failed to exhaust a retaliation claim because grievance “did not mention 

retaliation or use any words synonymous with or indicating retaliation, nor did it 

provide the BOP with notice of allegedly retaliatory action or the opportunity to 

correct it”). A court must dismiss an action if it is satisfied that an inmate failed to 

properly exhaust his available administrative remedies before filing suit. See 

Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). 

The defense of failure to exhaust should be treated as a matter in abatement. 

See 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,’ 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).

When deciding a motion to dismiss for failure to exhaust administrative 

remedies, the Court uses a two-step process. Turner, 541 F.3d at 1082. “First, the 

court looks to the factual allegations in the defendant’s motion to dismiss and those 

in the plaintiff’s response, and if they conflict, takes the plaintiff’s versions of the 

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facts 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.

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

plaintiff’s allegations are assumed to be true, the court then proceeds to make 

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

exhaustion.” Id. It is the defendant’s burden to prove “that the Plaintiff has failed 

to exhaust his available remedies.” Id. “Once the court makes findings on the 

disputed issues of fact, it then decides whether under those findings the prisoner has 

exhausted his available administrative remedies.” Id. at 1083.

B. The Grievances

In Defendants’ motion, Defendants argue Plaintiff failed to exhaust the instant 

excessive force claim because he had “no approved grievances, informal or formal, 

that relate to an incident occurring on August 6, 2020.” ECF Doc. 25 at 9. 

Defendants also argue Plaintiff failed to file any grievance appeals regarding the 

instant claims. Id. In support of the motion, Defendants rely on the Declaration of 

Lisa Vaughn, a Sentence Specialist at SRCI. ECF Doc. 25-1. According to Ms. 

Vaughn, she reviewed Plaintiff’s file for “any informal or formal grievance filed 

during the period of August 6, 2020, through November 3, 2020,” and did not 

identify any applicable grievance. Id. 

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In Plaintiff’s response, Plaintiff disputes those facts and explains he filed one 

informal grievance and two formal grievances related to the August 6, 2020. ECF 

Doc. 33 at 1-2. Plaintiff attaches each of those grievances to the response. Id. 3-8. 

Those grievances show that (1) on August 9, 2020, Plaintiff filed an informal 

grievance, #135-2008-0168, complaining about an alleged excessive force incident 

involving the Defendants and occurring on August 6, 2020, which was denied on 

August 17, 2020; (2) on August 12, 2020, Plaintiff filed a formal grievance, #2008-

135-103, complaining about an excessive use of force incident involving these 

Defendants occurring on August 8, 2020, which was approved on September 1, 

2020; and (3) on August 19, 2020, Plaintiff filed a formal grievance, #2008-135-

133, complaining of an excessive use of force incident involving the Defendants 

occurring on August 6, 2020, which was returned without action on September 9, 

2020, because grievance 2008-135-103 had already been approved.

Based on Defendants’ failure to reference any of these grievances in their 

motion, Plaintiff argues Ms. Vaughn made a false statement in her declaration and 

further contends she did so because she is related to Defendant Colonel Vaughn. Id. 

at 2. 

Subsequently, with approval from the Court, Defendants filed a reply to 

Plaintiff’s response. ECF Doc. 36. In Defendants’ response, Defendants do not 

dispute the authenticity of the grievances relied upon by Plaintiff. Instead, 

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Defendants explain that because the only approved grievance was the August 12, 

first formal grievance, #2008-135-103, which “rais[ed] allegations regarding an 

incident on August 8, 2020,” that grievance “did not put the Department on notice 

of, any incident on August 6, 2020, which is the subject of Plaintiff’s Complaint.” 

Id. 

C. Analysis

Plaintiff’s complaint is not subject to dismissal for failure to exhaust under 

the first step of the Turner analysis because Plaintiff alleges he has exhausted his 

administrative remedies. Thus, the Court must proceed to step two and make 

specific factual findings to resolve the conflict between Defendants’ alleged facts 

and Plaintiff’s alleged facts. 

The grievance procedure that must be followed is determined by the agency –

here, the FDOC. See Jones, 549 U.S. at 218. Under the first step of the FDOC 

procedures, prisoners must file an informal grievance within twenty (20) days of the 

date of the alleged incident. Fla. Admin. Code § 33–103.011(1)(a). Plaintiff 

complied with that step when he filed the August 9, 2020, informal grievance #135-

2008-0464. 

In the August 9, informal grievance, Plaintiff alleges that on August 6, “at 

around 3” in the morning, “the (Lt.) force[d] the extraction team” on him. ECF Doc. 

33 at 6. Plaintiff alleges that the extraction team, consisting of Defendants Vaughn 

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and Daniels, and other officers, used excessive force on him, including “punching” 

him in his head. Id. Defendants do not dispute that the August 9 grievance relates

to the incident at issue in this case, which also alleged the events occurred on August 

6, 2020, at approximately 3:15 A.M., and involved the same cell extraction team and 

circumstances. 

Because that August 9, informal grievance was denied, Plaintiff was required 

to file a formal grievance within fifteen (15) days of the denial. Fla. Admin. Code 

§§ 33-103.006(1)(a) and (2)(g), 33-103.011(1)(b)(1). Plaintiff also completed this 

second step. As stated above, Plaintiff filed two formal grievances. The first formal 

grievance, #2008-135-103, was filed on August 12, 2020. ECF Doc. 33 at 8. 

Defendants argue this formal grievance was insufficient to put the agency on notice 

of the incident, which comprises the subject of this suit, because Plaintiff identified 

the incident as occurring on August 8, rather than August 6. Defendants’ argument 

fails. A review of the contents of the grievance shows that it is about the very same 

incident that brings the Plaintiff to this Court. 

Like the facts alleged in the complaint and the August 9 informal grievance, 

Plaintiff asserts that after he failed to put his hands through the flap, the Lieutenant

determined that Plaintiff was refusing to “cuff up” and, in response, the cell 

extraction team, consisting of Sergeant Daniels, Colonel Vaughn, Colonel 

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Newcomb, assaulted him. Id. The fact that Plaintiff had a “slip of the pen” in the 

date that incident occurred when he wrote that formal grievance is of no import. 

The purpose of the PLRA's exhaustion requirement “is to put [the agency] on 

notice of all of the issues in contention and allow the [authority] an opportunity to 

investigate those issues.” Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) 

(citations omitted). This Court has stated that a grievance suffices to exhaust a claim 

“if it alerts the prison to the nature of the wrong for which redress is sought.” 

Harvard, 411 F. Supp. 3d at 1248 (quoting Strong v. David, 297 F.3d 646, 650 (7th 

Cir. 2002)). Plaintiff’s August 12, 2020, formal grievance, regardless of the date 

error, clearly provided such notice. 

Defendants’ attempt to shape Plaintiff’s typo into a failure to provide notice 

is misguided. Indeed, courts have been unwilling to apply the notice requirement so 

stringently. See Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1219 (11th 

Cir. 2010) (finding that although the plaintiffs “first grievance did not name a 

particular defendant, it accomplished § 1997e(a)'s purpose by alerting prison 

officials to the problem and giving them the opportunity to resolve it before being 

sued”); see Jones, 549 U.S. at 219 (concluding that exhaustion is not per se 

inadequate simply because an individual later sued was not named in the 

grievances”).

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In Edwards v. Schrubbe, 807 F. Supp. 2d 809, 812 (E.D. Wis. 2011), the 

defendants argued plaintiff failed to timely exhaust because he put the “wrong date”

on the inmate complaint when he meant to complain of an ongoing issue. The court 

explained that “[t]he institution-complaint examiner, the reviewing authority, and 

the defendants here have all taken an unreasonably narrow view of plaintiff's inmate 

complaint by focusing exclusively on the date plaintiff wrote in the box labeled ‘date 

of incident or denial of request.’” Edwards, 807 F. Supp. 2d at 812. It was clear to 

the court, when “[r]eading the complaint as a whole,” . . . “that plaintiff was 

complaining about an ongoing denial of medical treatment rather than one isolated 

incident,” and, therefore, Plaintiff timely exhausted. Id. 

Likewise, Defendants have taken an unreasonably narrow view of Plaintiff’s 

first formal grievance. Defendants’ position is not only untenable, but it is contrary 

to how the agency treated the formal grievance. Namely, when the Warden returned 

the second formal grievance, #2008-135-133, without action, the Warden explained 

he was doing so because “this issue was previously addressed and reported to the 

office of the inspector general in relation to the grievance #2008-135-103 [i.e. 

Plaintiff’s approved grievance]. . . . ECF Doc. 33 at 5 (emphasis added). Thus, the 

Warden also treated the two grievances as involving the same incident, regardless of 

the differing dates. The Warden’s position undermines Defendants’ argument that 

the first formal grievance was insufficient to provide the agency notice of the subject 

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of this suit. See Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1213-14 

(11th Cir. 2015) (“district courts may not find a lack of exhaustion by enforcing 

procedural bars that the prison declined to enforce.”).

Because the first formal grievance was approved, Plaintiff was not required to 

file an appeal - the third step of the FDOC grievance procedure to appeal. See 

Williams v. Dep't of Corr., 678 F. App'x 877, 881 (11th Cir. 2017) (holding that a 

plaintiff is not required to appeal from a grant of relief to exhaust his administrative 

remedies); Norman v. Maddox, No. 4:20-CV-437-MW-MJF, 2021 WL 2144251, at 

*5 (N.D. Fla. Apr. 27, 2021), report and recommendation adopted, No. 4:20CV437-

MW/MAF, 2021 WL 2139423 (N.D. Fla. May 26, 2021) (same); Harvard, 411 F. 

Supp. 3d at 1248 (holding that Florida prisoner, whose informal grievance was 

approved by the defendants, “did not need to appeal his grant in order to exhaust his 

administrative remedies”). Thus, Plaintiff has exhausted his administrative 

remedies. 

III. DECLARATORY RELIEF

Defendants argue Plaintiff’s claims for declaratory relief must be dismissed 

because Plaintiff seeks a declaration of wrongdoing regarding past conduct. ECF 

Doc. 25 at 9-10. Citing Plaintiff’s complaint, Defendants highlight that Plaintiff has 

been placed in confinement for protective review by the institutional classification 

team and he is no longer in the institution that this incident took place. ECF Doc. 

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25 at 9-10. As an initial matter, Defendants have provided no support for these 

factual allegations. Defendants cite to the complaint to support these facts, but no 

such facts are contained in the complaint. To the contrary, according to the 

complaint, Plaintiff is still housed at Santa Rosa Correctional Facility where the 

incident occurred.

2

Regardless, Defendants are correct that Plaintiff is not entitled to this 

declaratory relief regarding past conduct. See Hitchcock v. USAA Cas. Ins. Co., No. 

618CV1986ORL28EJK, 2020 WL 364600, at *2 (M.D. Fla. Jan. 22, 2020); Regency 

of Palm Beach, Inc. v. QBE Ins. Corp., No. 08-81442-CIV, 2009 WL 2729954, at 

*4 (S.D. Fla. Aug. 25, 2009) (“The point of a declaratory judgment is to permit 

‘actual controversies to be settled before they ripen into violations of law,’ not to 

adjudicate past conduct.” (quoting Great Lakes Reinsurance (UK) PLC v. TLU 

Limited, 07-61259-Civ, 2008 WL 828122 (S.D. Fla. Mar. 27, 2008)). Thus, to the 

extent Plaintiffs seeks relief for past conduct in the form of a declaration that 

Defendants violated his constitutional rights, such relief is improperly sought. 

IV. FOURTEENTH AMENDMENT CLAIM

Defendants also argue Plaintiff’s claim that Defendants violated his rights 

under the Fourteenth Amendment of the United States Constitution should be 

2 This can also be confirmed through a search of the institution’s website. See 

http://www.dc.state.fl.us/offenderSearch/detail.aspx?Page=Detail&DCNumber=M63150&TypeS

earch=AI

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dismissed. The undersigned agrees. The Supreme Court has established that

“[w]here a particular Amendment provides an explicit textual source of 

constitutional protection against a particular sort of government behavior, that 

Amendment . . . must be the guide for analyzing such a claim.” Albright v. Oliver, 

510 U.S. 266, 266 (1994) (internal quotations omitted). Plaintiff alleges Defendants 

violated his Eighth and Fourteenth Amendment rights. ECF Doc. 1. A claim for 

excessive force arises under the Eighth Amendment for prisoners serving a sentence. 

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (“In its prohibition of “cruel and 

unusual punishments,” the Eighth Amendment places restraints on prison officials, 

who may not, for example, use excessive physical force against prisoners”). Thus, 

Plaintiff’s claim under the Fourteenth Amendment should be dismissed. 

Accordingly, it is ORDRED:

1. The clerk is directed to correct the docket entry for ECF Doc. 37 to 

identify the filing as a reply to ECF Doc. 36, rather than as a motion, and to terminate 

the motion.

It is respectfully RECOMMENDED:

1. Defendants’ Motion to dismiss (ECF Doc. 25) be DENIED in part and 

GRANTED in part. 

2. Plaintiff’s Fourteenth Amendment claims and claims for declaratory 

relief be DISMISSED.

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3. This matter be referred to the undersigned for further proceedings. 

Done at Pensacola, Florida, this 26th day of October 2021.

/s/ Hope Thai Cannon

HOPE THAI CANNON

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within 

fourteen (14) days of the date of this report and recommendation. Any different 

deadline that may appear on the electronic docket is for the Court’s internal use only 

and does not control. A copy of objections shall be served upon the Magistrate Judge 

and all other parties. A party failing to object to a Magistrate Judge’s findings or 

recommendations contained in a report and recommendation in accordance with the 

provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the 

district court’s order based on unobjected-to factual and legal conclusions. See 11th

Cir. R. 3-1; 28 U.S.C. § 636.

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