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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DAVID EUGENE GRAHAM,

Plaintiff,

v. CASE NO. 5:10-cv-65-RS-GRJ

J.T. WITALEC, and D. SEARCY,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Pending before the Court is the Motion To Dismiss filed by Defendants J.T.

Witalec and D. Searcy based upon Plaintiff’s failure to exhaust his administrative

remedies. (Doc. 41.) Plaintiff has filed a response to the motion. (Doc. 50.) For the

following reasons, it is RECOMMENDED that the motion to dismiss be GRANTED.

I. Background

Plaintiff is a prisoner in the custody of the Florida Department of Corrections

(“FDOC”) at Union Correctional Institution in Raiford, Florida. Defendants J.T. Witalec

and D. Searcy are both employed by the FDOC at Northwest Florida Reception Center

(“NWFRC”) in Chipley, Florida. Plaintiff is currently operating pursuant to a Third

Amended Complaint. (Doc. 16.) 

According to the factual allegations in the Third Amended Complaint, on January

2, 2010, when Plaintiff was incarcerated at NWFRC, Plaintiff was accused by the

Defendants of inciting a minor disturbance. Plaintiff allegedly cursed NWFRC staff,

yelled into the wing in which his cell was located and kicked his cell door. Defendants

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responded to the disturbance and subdued Plaintiff by means of a chemical agent

spray. After he was sprayed with the chemical agent, Plaintiff alleges he was then

placed by the Defendants in a cold, empty cell with no mattress, linens or footwear and

clad only in boxer shorts for a period of 72 hours in a type of punishment called

“property restriction.” Several disciplinary reports were later filed against Plaintiff based

upon these events.

Plaintiff claims the Defendants violated his Eighth Amendment right to be free

from cruel and unusual punishment by subduing him with a chemical agent spray and

placing him in property restriction. Plaintiff seeks both nominal and punitive damages

against the Defendants.

II. The Defendants’ Motion to Dismiss and Plaintiff’s Response

Defendants filed a motion to dismiss (Doc. 41), seeking dismissal of Plaintiff’s

Third Amended Complaint. The Defendants argue Plaintiff failed to exhaust his

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

U.S.C. § 1997e(a) and therefore his case must be dismissed for lack of jurisdiction.

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Attached to the motion to dismiss is an affidavit of Rebecca Padgham, who is

employed as a Management Analyst I with the FDOC’s Bureau of Inmate Grievance

Appeals. (Doc. 41 Exh. E.) Ms. Padgham attests that her review of the FDOC’s

grievance records reflects Plaintiff filed no grievance appeals between January 2010

and April 2010 relating to his complaint of being sprayed with a chemical agent.

The Defendants also contend the Third Amended Complaint should be dismissed as a sanction

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for what the Defendants contend were Plaintiff’s misrepresentations in a previous filing in this case. (Doc.

37.) The Court need not need address this ground, however, because this case is due to be dismissed for

Plaintiff’s failure to exhaust his administrative remedies.

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Plaintiff did, however, file three grievance appeals during that time period, all of which

challenge various disciplinary reports. In his response, Plaintiff states he was not given

a fair opportunity to exhaust his administrative remedies.

III. Discussion

A. Exhaustion under the PLRA

The PLRA requires a prisoner to exhaust all available administrative remedies

before filing an action challenging prison conditions. “This requirement is a ‘precondition to suit’ that must be enforced even if the available administrative remedies are

‘futile or inadequate.’” Logue v. Pearson, No. CV410-240, 2011 U.S. Dist. LEXIS

66950, at *2-3 (S.D. Ga. 2011)(citing Harris v. Garner, 190 F.3d 1279, 1285-86 (11th

Cir. 2005)). Exhaustion is mandatory under the PLRA, and unexhausted claims are not

permitted. See Jones v. Bock, 549 U.S. 199, 211 (2002). 

Further, the PLRA’s exhaustion requirement contains a procedural default

component; prisoners must comply with the applicable deadlines, or good-cause

standards for failure to comply, contained in the administrative grievance procedures. 

Johnson v. Meadows, 418 F.3d 1152, 1158 (11 Cir. 2005). “‘[A] prisoner who does not

th

properly take each step within the administrative process has failed to exhaust state

remedies, and thus is foreclosed by § 1997e(a) from litigating. . . . [T]o exhaust

remedies, a prisoner must file complaints and appeals in the place, and at the time, the

prison’s administrative rules require.’” Id. (quoting Pozo v. McCaughtry, 286 F.3d 1022,

1024-25 (7 Cir. 2002)). th

To exhaust administrative remedies in Florida, a prisoner in FDOC custody must

complete the administrative review process established under regulations promulgated

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by the Secretary of the FDOC. FLA. STAT. ANN. § 944.09(1)(d) (“The department has

authority to adopt rules ... to implement its statutory authority. The rules must include

rules relating to ... [g]rievance procedures which shall conform to 42 U.S.C. § 1997e.”). 

Under the administrative review process established by the Secretary of the FDOC, a

prisoner must: (1) file an informal grievance with a designated prison staff member, (2)

file a formal grievance with the warden's office, and then (3) submit an appeal to the

Secretary of the FDOC. Chandler v. Crosby, 379 F.3d 1278, 1288 (11 Cir. th

2004)(citing FLA. ADMIN. CODE ANN. §§ 33-103.001 to -103.019). Once a prisoner has

completed this process, he then has properly exhausted his administrative remedies.

Id.

In the Eleventh Circuit, the defense of failure to exhaust under the PLRA is

considered a matter in abatement under Fed. R. Civ. P. 12 and thus is treated like a

defense of lack of jurisdiction. Bryant v. Rich, 530 F.3d 1368, 1374, 1376 (11 Cir. th

2008). Deciding a motion to dismiss for failure to exhaust administrative remedies

requires a two-step process as established in Turner v. Burnside, 541 F.3d 1077, 1082

(11 Cir. 2008). The Court first “looks to the factual allegations in the defendant’s th

motion to dismiss and those in the plaintiff’s response, and if they conflict, takes

plaintiff’s version of the 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. at 1082. If the complaint is not subject to dismissal through the first

step, the Court “proceeds to make specific findings in order to resolve the disputed

factual issues related to exhaustion.” Id.

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B. Plaintiff’s Grievances and Grievance Appeals

Defendants contend that Plaintiff did not complete the required administrative

remedy process described above with respect to the Eighth Amendment claims he

seeks to advance in this lawsuit. Plaintiff filed a formal grievance with the Warden of

NWFRC on January 12, 2010 (the “Formal Grievance”), which was assigned formal

grievance #1001-110-027, contending he was subjected to cruel and unusual

punishment on January 2, 2010 when he was sprayed with a chemical agent and

placed on 72 hour property restriction. (Doc. 41 Exh. A.) Plaintiff’s Formal Grievance

was returned without further action on February 1, 2010 because it addressed more

than one issue or complaint. (Id.) 

On January 19, 2010, before the Warden at NWFRC had responded to his

Formal Grievance, Plaintiff filed grievance appeal #10-6-02709 (“Grievance Appeal #1")

with the Secretary of the FDOC, which was nearly identical to his Formal Grievance. 

(Doc. 41 Exh. B.) Grievance Appeal #1 was returned to Plaintiff without action on

January 28, 2010 for Plaintiff’s failure to attach a copy of the institutional response to

his Formal Grievance, as required by the relevant regulation. (Id.) The Secretary’s

response to Grievance Appeal #1 also included a notation that “review of the grievance

database indicates that you filed formal grievance #1001-110-027 at Northwest Florida

Reception Center on 1/12/10. The response will be forwarded to you at your current

facility.” (Id. at 2.) 

On February 19, 2010 Plaintiff filed another grievance appeal (“Grievance

Appeal #2") with the Secretary of the FDOC, which was assigned grievance appeal

#10-6-06521. (Doc. 41 Exh. C.) In Grievance Appeal #2, Plaintiff stated he had filed

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his Formal Grievance at NFWRC on January 12, 2010 and it had been more than 30

days and he had yet to receive a response. (Id.) He further stated that if there had

been a response to his Formal Grievance by the NWFRC Warden, he had not been

forwarded a copy of that response at his current facility, Santa Rosa Correctional

Institution. (Id.) Grievance Appeal #2 was returned to Plaintiff without action on March

4, 2010 for his failure to follow the FDOC’s procedures for properly appealing a

grievance. (Id.) Plaintiff was also given a courtesy copy of the response by the

NWFRC Warden to his Formal Grievance and was also given an additional 15 days

within which to appeal the NWFRC Warden’s handling of his Formal Grievance. (Id.)

Plaintiff then filed grievance appeal #10-6-06547 (“Grievance Appeal #3") on

February 25, 2010. (Doc. 41 Exh. D.) This grievance appeal related to the action that

had been taken on his Formal Grievance at NFWRC. (Id.) Plaintiff’s specific issue with

the denial of his Formal Grievance was that his grievance was correct because it only

included one issue – the single incident. (Id.) The Secretary’s March 4, 2010 response

to Grievance Appeal #3 advised that the appeal being returned as non-compliant with

the appropriate regulations, along with a notation that Plaintiff “failed to follow

instructions [he] received at the institution/facility level before processing your appeal to

this office. Furthermore, you have addressed issues in 2 disciplinary reports (125-

100004 and 125-100001). A separate grievance must be filed on each.” (Id.) 

C. Legal Analaysis

The Court concludes for the following reasons that Plaintiff did not exhaust his

remedies with respect to the Eighth Amendment claims advanced against the

Defendants in his Third Amended Complaint. While Plaintiff submitted a formal

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grievance to the Warden of NWFRC complaining about the Defendants’ actions on

January 2, 2010, Plaintiff did not, however, complete the administrative review process

established under regulations promulgated by the Secretary of the FDOC. 

Plaintiff’s three grievance appeals to the Secretary of the FDOC were all properly

returned without action because of Plaintiff’s failure to properly follow the three step

process established by the Secretary and codified in the Florida Administrative Code.

FLA. ADMIN. CODE ANN. §§ 33-103.001 to -103.019. Plaintiff was required to comply with

the procedural requirements established by the Secretary for filing a grievance,

Johnson v. Meadows, 418 F.3d 1152, 1158 (11 Cir. 2005), including the requirement th

that each grievance must only address a single issue. Lawson v. McDonough, No.

4:04-cv-00105-MP-AK, 2006 WL 3844474, at *22 (N.D. Fla. Dec. 27, 2006)(Florida

state prisoner’s federal constitutional claim found unexhausted where the grievance

was returned without action because the grievance included more than one issue and

the prisoner did not re-file the grievance). Plaintiff’s Formal Grievance was deficient

because it addressed more than one issue in violation of FLA. ADMIN. CODE ANN. §

33-103.006 and all three of Plaintiff’s grievance appeals were deficient because the

appeals either violated the single issue rule or failed to attach the institutional response.

Plaintiff was provided with the opportunity to cure these deficiencies and to re-file his

formal grievance with the Warden of NWFRC but failed to do so. 

Accordingly, because Plaintiff failed to properly present his claims to the

Secretary of the FDOC through the administrative review process established by the

Secretary of the FDOC, Plaintiff has failed to properly exhaust the claims in the Third

Amended Complaint. The Court, therefore, concludes that Plaintiff’s claims should be

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DISMISSED for failing to exhaust his administrative remedies. 

IV. Recommendation

For the foregoing reasons it is respectfully RECOMMENDED that the Motion To

Dismiss (Doc. 41) should be GRANTED and this case should be DISMISSED.

IN CHAMBERS this 20 day of January 2012. th

 s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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