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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

RICARDO SANCHEZ,

 Plaintiff,

vs. Case No.: 5:10cv288/RH/EMT

JOSE L. SANCHEZ, JR., et al., 

 Defendants.

ORDER, REPORT AND RECOMMENDATION

Plaintiff Ricardo Sanchez (“Plaintiff”) is a federal inmate who proceeds pro se and in forma 

pauperis. This cause is now before the court upon the motion to dismiss filed by Defendant Jose L.

Sanchez, Jr. (“Defendant Sanchez”) (doc. 77). Plaintiff has responded (docs. 79, 87), and Defendant

Sanchez has replied (doc. 89). The case has been referred to the undersigned for the issuance of all

preliminary orders and any recommendations to the district court regarding dispositive matters. See

N.D. Fla. Loc. R. 72.2(C); see also 28 U.S.C. § 636(b)(1)(B)(C); and Fed. R. Civ. P. 72(b). For the

reasons set forth below, the court recommends that the motion to dismiss be DENIED.

BACKGROUND

Plaintiff initiated this action in September 2010 in the Eastern District of North Carolina,

which district transferred the case to the Northern District of Florida in November 2010 (see docs.

1, 4, 5). After Plaintiff amended his complaint several times (see docs. 21, 26, 44), this court

recommended dismissal of the third amended complaint for the failure to state a claim for relief (doc.

49). The district court rejected in part this court’s recommendation (see doc. 50). While agreeing that

Plaintiff’s allegations did not state a cause of action under the Federal Tort Claims Act, the district

court held that the second amended complaint adequately stated an Eighth Amendment claim on which

relief could be granted under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

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403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)1 (id.). The district court therefore struck the

third amended complaint, reinstated the second amended complaint, and remanded the case to the

undersigned for further proceedings (see id.). Subsequently, this court directed service of the second

amended complaint on the single individual of the three named Defendants whom Plaintiff had

sufficiently identified for service purposes, John Doe Sanchez, UNICOR2[ ] Federal Prison Industries

[“FPI”], Associate Warden (see docs. 51, 54, 55), who has since been identified as Jose L. Sanchez,

Jr. (see docs. 62, 72). The court advised Plaintiff that service on the other two Defendants, John Doe,

UNICOR[ ] FPI Section 3 Factory Manager, and John Doe, UNICOR[ ] FPI Contract Procurement

Coordinator (doc. 26 at 1–2),3 would be directed later if they were identified through discovery (doc.

55).

Plaintiff’s second amended complaint contains the following allegations. Plaintiff was

incarcerated from 2004 until 2006 at the Federal Correctional Institution, Marianna, Florida (“FCIM”)

(doc. 26 at 4). From March 7, 2005, through February 27, 2006, he worked in the UNICOR computer

recycling program, where he unpacked computer monitors that arrived loaded on pallets; he also

disassembled the monitors into their component parts (id. at 11). According to Plaintiff, sometimes

the monitors broke while being handled, which resulted in the release of toxic fumes and gases to

which he was exposed (id.). Plaintiff contends he was refused any safety equipment, including

goggles, respirators, or protective clothing (id.). While working in the computer recycling program,

Plaintiff started developing problems with his breathing, skin, and eyes, as well as constant lowerback pain. According to Plaintiff, in June 2008 he was diagnosed with a cancerous tumor on the right

kidney, and in June 2009 the kidney and part of his pelvis where the cancer had spread were removed

 1 Bivens recognizes a private right of action for money damages against federal actors that engaged in alleged

violations of the Constitution or laws of the United States. Bivens, 403 U.S. at 397.

 2

 UNICOR is a wholly owned, Government corporation, and its mission is in part to provide job skills training to

inmates confined within the Federal Bureau of Prisons (“BOP”). See http://www.bop.gov/inmate programs/unicor.jsp

(last visited July 31, 2014). 

 3

 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those the parties may have assigned.

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(id. at 9, 11–13).4 Plaintiff maintains that his current medical condition developed as a result of

exposure to the toxins in his UNICOR work environment. Plaintiff asserts that Defendant John Doe

Factory Manager directed his work and told Plaintiff there were no safety goggles or respirators

available when Plaintiff complained that the fumes made his eyes water, made him cough, and caused

difficult breathing (id. at 14). Plaintiff also asserts that Defendant Sanchez and Defendant John Doe

Contract Procurement Coordinator were frequently on site monitoring the progress of the program

(id.). According to Plaintiff, “even the Community recyclers knew that these computer monitors

contained toxic components and started shipping the computer monitors to China for breakdown there”

(id. at 15), seemingly suggesting that Defendants Sanchez and John Doe Contract Procurement

Coordinator must have known about the dangers of the recycling program. In his statement of claims,

Plaintiff asserts violations of the right to be free from cruel and unusual punishment and the right to

equal protection.5

 He seeks $20,000,000.00 in damages as relief.

Defendant Sanchez moves for dismissal on several grounds.6

 He first argues that Plaintiff did

not exhaust any administrative remedies prior to filing suit (doc. 77 at 6–7). Additionally, Defendant

Sanchez contends that Plaintiff’s allegations in the second amended complaint fail to state a cause of

action against him under the Eighth Amendment because the allegations are insufficient to show that

Defendant Sanchez “is liable for the misconduct alleged” (id. at 9). Furthermore, even if Plaintiff

 4 Plaintiff indicates that he filed a separate federal lawsuit in Missouri in which he raised claims related to the

diagnosis and treatment of his renal cancer (see doc. 26 at 9). The court takes judicial notice of the order granting the

Defendants’ motion for summary judgment in Sanchez v. Lappin, Case No. 10-3438-CV-S-ODS-P (W.D. Mo. May

21, 2012) (rejecting Plaintiff’s Eighth and Fourteenth Amendment Bivens claims concerning medical treatment for

a kidney tumor). 

 5

 Plaintiff also asserts a claim for the violation of his right to due process under the Fifth Amendment (doc. 26

at 16). The court notes that Plaintiff’s allegations concerning his conditions of confinement do not implicate

procedural due process, and it concludes it should not address these allegations under a substantive due process

analysis. It is well established that if a constitutional claim is covered by a specific constitutional provision, the claim

must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due

process. County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) (citations

omitted). The Eighth Amendment’s prohibition against cruel and unusual punishment governs Plaintiff’s claim that

he was subjected to unsafe working conditions while he was confined in the custody of the BOP at FCIM. See Farmer

v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The court therefore does not address Plaintiff’s

due process claim separately. 

 6

 Defendant Sanchez states that he reads the district court’s order as remanding only Plaintiff’s Eighth Amendment

claim (doc. 77 at 1 n.1). Accordingly, in his motion Defendant Sanchez addresses only this claim. 

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exhausted his administrative remedies and stated a cause of action upon which relief could be granted,

the second amended complaint is still subject to dismissal because Defendant Sanchez is entitled to

qualified immunity. “Thus, a quick dismissal of this suit as to Defendant Jose L. Sanchez, Jr. would

serve the purposes of justice and judicial economy, and comply with the reasons for qualified

immunity.” (doc. 77 at 3). Defendant Sanchez also contends that, at most, Plaintiff’s allegations

implicate negligence, which does not give rise to a constitutional claim and that as a supervisor he is

not liable for a Bivens claim. According to Defendant Sanchez, “[f]or these reasons, dismissal of

Plaintiff’s complaint in its entirety, with prejudice, is appropriate” (id.).

Plaintiff filed a response to Defendant Sanchez’s motion (doc. 79), in which he submits that

he exhausted his administrative remedies concerning the events at FCIM after he was transferred to

a BOP facility in Butner, North Carolina. In support, he references his initial complaint and attached

exhibits (doc. 1), and he points to documents attached to his response (doc. 79 at 4–13). Because

Plaintiff failed to address all of Defendant Sanchez’s arguments for dismissal, the court directed

Plaintiff to file an amended response that did so, and it directed Defendant to file a reply to the

response once it was filed (doc. 80). Plaintiff’s second response is titled “Motion to Dismiss

Defendant’s Claim of Qualified Immunity” (doc. 87) (emphasis in original), which only opposes the

defense of qualified immunity.7 Defendant Sanchez filed a “Response to Plaintiff’s Motion to Dismiss

Defendant’s Claim of Qualified Immunity,” treated by the court as a reply, in which Defendant Sanchez

states that he relies on all of the facts and arguments presented in the motion to dismiss, reiterates the

assertion of entitlement to qualified immunity, and again requests that Plaintiff’s second amended

complaint be dismissed with prejudice (doc. 89). The reply does not address Plaintiff’s arguments

and documents, as presented in his initial response, that he in fact exhausted his administrative

remedies prior to filing suit.

 7 Despite Plaintiff’s failure to comply with the court’s instructions to respond fully to Defendant Sanchez’s

motion in a single response, in light of his pro se status, the court considers both of Plaintiff’s responses to the motion

to dismiss (docs. 79, 87). 

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DISCUSSION

Statute of Limitations

Defendant Sanchez does not assert a statute of limitations defense. The court notes the

following, however. Bivens suits have the same statute of limitations as suits brought under 42 U.S.C.

§ 1983. Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996). In cases in which Florida is the forum

state, as here, a § 1983 or Bivens plaintiff has four years to file suit. See Chappell v. Rich, 340 F.3d

1279, 1283 (11th Cir. 2003). “[U]nder our Bivens case law, an action accrued at the time the plaintiff

knew or had reason to know of his claims.” Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998). 

Accordingly, this action accrued at the time Plaintiff knew or had reason to know of his claims, and

he had four years from that date in which to commence suit. 

Plaintiff asserts that he was exposed to toxic materials while working in the recycling program

at FCIM from March 7, 2005, through February 27, 2006, subjecting him to cruel and unusual

punishment and the denial of equal protection (doc. 26 at 13–14). More specifically, Plaintiff

contends that he experienced respiratory, skin, and back pain problems for “several months during his

final year” at FCIM (id. at 12), and was denied equal protection in that he was not provided the same

safe working conditions that would have been provided “citizens of the community [used] as a labor

force” (id. at 14). To the extent Plaintiff asserts civil rights violations with respect to circumstances

that existed and symptoms that he experienced while he was housed at FCIM and worked in the

recycling program from March 2005–February 2006, the court concludes that those circumstances and

symptoms were sufficient to give him reason to know of any cruel and unusual punishment or equal

protection claims. Thus an action for such claims accrued no later than February 27, 2006, making

the claims untimely filed—and thus time-barred—when Plaintiff initiated this case more than four

years later on September 21, 2010 (see doc. 1 at 6).8 Plaintiff also asserts that on June 27, 2008, he

was diagnosed with renal cancer which resulted from his exposure to toxic materials at FCIM between

 8 Additionally, even if Plaintiff’s equal protection claim were not time-barred, no claim would lie. Plaintiff asserts

that he was not treated the same as private sector workers who worked in the computer recycling industry. This claim

is based on the treatment of individuals outside the prison system who are not within Defendants’ control. Thus

Plaintiff has not demonstrated: (1) that “he is similarly situated with other prisoners who received” more favorable

treatment; and (2) that his discriminatory treatment was based on some constitutionally protected interest such as race. 

Sweet v. Secretary, Dept. of Corrections, 467 F.3d 1311 (11th Cir. 2006) (citing Jones v. Ray, 279 F.3d 944, 946–47

(11th Cir. 2001)).

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March 2005 and February 2006. The court concludes that June 27, 2008, the date of his cancer

diagnosis, is the date Plaintiff knew or should have known of any claim of cruel and unusual

punishment related to this diagnosis.9

 This Eighth Amendment claim therefore was timely filed.

 Failure to Exhaust Administrative Remedies

The court first considers Defendant Sanchez’s contention that Plaintiff’s claims should be

dismissed because he failed to exhaust administrative remedies prior to filing this action, as required

by 42 U.S.C. § 1997e(a). According to Defendant Sanchez, “a review of the BOP’s administrative

remedy records reveals that Plaintiff has not filed any administrative remedies regarding any of the

issues raised against the Bivens defendants in the present case” (doc. 77 at 7) (emphasis added). 

Thus, Defendant Sanchez asserts, “the court lacks subject matter jurisdiction because Plaintiff failed

to exhaust his administrative remedies” (id.).

Title 42 U.S.C. § 1997e(a) provides for mandatory exhaustion of prison condition claims

brought by inmates, whether the claims are filed pursuant to § 1983 or, as in this case, as a Bivens

action. Alexander v. Hawk, 159 F.3d 1321, 1324–26 (11th Cir. 1998). A failure-to-exhaust defense

is non-jurisdictional10; nevertheless, it is “like a defense for lack of jurisdiction in one important

sense: Exhaustion of administrative remedies is a ‘matter[ ] in abatement, and ordinarily [does] not

deal with the merits.’” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (quoting 5C Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1360 at 78 n.15 (3d ed. 2004));

see also Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (“[W]e have held that the failure to

exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement. .

. .”); Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (observing that the defense of failure

to properly exhaust available administrative remedies under the PLRA is treated procedurally like a

defense for lack of jurisdiction although it is not a jurisdictional matter). An exhaustion issue

ordinarily should be considered in a motion to dismiss and is not the proper subject for a summary

 9 In his claim for damages under the Federal Tort Claims Act, a copy of which is attached to the second amended

complaint, Plaintiff states that he learned of his cancer diagnosis on June 24, 2008 (doc. 26 at 4). Whether the date

was June 24 or June 27 is not material here. 

 10 The Supreme Court has confirmed that exhaustion under the PLRA is not a jurisdictional prerequisite.

Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378, 2392, 165 L. Ed. 2d 368 (2006) (stating that it is “clear that the PLRA

exhaustion requirement is not jurisdictional”). 

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judgment motion. Bryant, 530 F.3d at 1374–75; see also Solliday v. Federal Officers, 413 F. App’x

206, 208 n.3 (11th Cir. 2011) (citing Bryant, 530 F.3d at 1374–75). 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.” Id. at 1373–74, 1376. 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 defendant’s motion, and those in the plaintiff’s response, if any. 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, “the

court proceeds to make specific findings in order to resolve the disputed factual issues related to

exhaustion.” Turner, 541 F.3d at 1082. 

Based on the foregoing discussion, the court concludes that Defendant Sanchez errs in arguing

that this action is due to be dismissed, presumably pursuant to Fed. R. Civ. P. 12(b)(1), for lack of

subject matter jurisdiction on the ground Plaintiff failed to exhaust his administrative remedies. 

Nevertheless, Defendant Sanchez’s having raised the issue of failure to exhaust as set forth in 42

U.S.C. § 1997e and presented evidence in support of dismissal based on this theory—and Plaintiff’s

having had an opportunity to respond and submit evidence in opposition—the court shall consider this

aspect of Defendant Sanchez’s motion as having been brought pursuant to Rule 12(b)(6). See

Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 n.2 (9th Cir. 1995) (treating improper

dismissal under Rule 12(b)(1) as dismissal under Rule 12(b)(6)).

Title 42 U.S.C. § 1997e(a) states 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.” This 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,” and mandates strict exhaustion, “irrespective of the forms of relief sought and offered

through administrative avenues.” Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005)

(internal quotation marks and citations omitted); see also Alexander, 159 F.3d at 1325–28 (holding

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that prisoner asserting Bivens claim must exhaust available administrative remedies, even when those

remedies are futile or inadequate). Furthermore, exhaustion of administrative remedies means proper

exhaustion of such remedies, that is, under the terms of and according to the time set by BOP

regulations. See Woodford, 548 U.S. at 93–94. 

The BOP provides a four-level administrative grievance procedure for prisoner complaints. 

See 28 C.F.R. § 542.10–542.15; United States Dep’t of Justice, Federal Bureau of Prisons, Program

Statement No. P1330.17. A prisoner must initially seek resolution of his complaint by filing an

informal grievance. See 28 C.F.R. § 542.13(a); BOP Program Statement P1330.17 at 4–5. If

unsuccessful, the inmate then may submit a formal written request to the warden within twenty

calendar days of the date on which the basis for the request occurred. 28 C.F.R. § 542.14(a); BOP

Program Statement P1330.17 at 4–6. An inmate who is not satisfied with the warden’s response may

appeal to the Regional Director. See 28 C.F.R. § 542.15; BOP Program Statement P1330.17 at 6–7. 

The appeal must be submitted within twenty calendar days of the date the warden signed the response. 

See id. An inmate who is not satisfied with the Regional Director’s response may submit an appeal

to the General Counsel for the BOP within thirty calendar days of the date the Regional Director

signed the response. See 28 C.F.R. § 542.15; BOP Program Statement P1330.17 at 6–7. When the

inmate demonstrates a valid reason for delay, these time limits may be extended. 28 C.F.R. § 542.15;

BOP Program Statement P1330.17 at 7. In general, a valid reason for delay means a situation which

prevented the inmate from submitting the request within the established time frame. 28 C.F.R. §

542.14(b). Valid reasons for delay include the following: an extended period in transit, during which

the inmate was separated from documents needed to prepare the request or appeal; an extended period

of time during which the inmate was physically incapable of preparing a request or appeal; an

unusually long period taken for informal resolution attempts; and indication by an inmate, verified by

staff, that a response to the inmate’s request for copies of requested dispositions was delayed. Id.

In support of his contention that Plaintiff failed to exhaust his administrative remedies prior

to filing suit, Defendant Sanchez relies on the declaration of Racheal Jamison, who identifies herself

as an FCIM administrative remedy clerk (doc. 77-1). Ms. Jamison states that she has the ability to

search BOP records and “determine whether an inmate filed an administrative remedy request under

the Administrative Remedy Program while incarcerated at FCI Marianna” (id. at 1) (emphasis added). 

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According to Ms. Jamison, her search “revealed no record of [Plaintiff] filing an administrative

remedy request under the Administrative Remedy Program while incarcerated at FCI Marianna that

pertained to his work at the UNICOR computer recycling factory” (id. at 2). 

The records Plaintiff submitted with his initial complaint and initial response to the motion for

summary judgment are consistent with Ms. Jamison’s assertion that he did not file any administrative

remedy requests while he was incarcerated at FCIM. Rather, Plaintiff’s records reflect that he filed

requests for administrative remedies, and received responses to those requests, while he was housed

at Butner Medical Center (see doc. 79 at 5–12). Thus Defendant Sanchez’s argument in his motion

for dismissal on the ground “Plaintiff has not filed any administrative remedies regarding any of the

issues raised against the Bivens defendants in the present case” (doc. 77 at 7) (emphasis added) is

without foundation. Unfortunately, as noted above, in replying to Plaintiff’s responses to the motion

to dismiss, Defendant Sanchez did not address Plaintiff’s contention and evidence that he in fact

exhausted his administrative remedies prior to filing suit while at Butner Medical Center.

Plaintiff filed his informal grievance complaining of exposure to hazardous materials at FCIM,

in violation of the Eighth Amendment, on August 26, 2009, and received a response on September 18,

2009, indicating that the issue could not be resolved informally (see doc. 79 at 5–6). Next, Plaintiff

submitted a formal written request to the [Complex] Warden on September 23, 2009, who responded

on September 30, 2009, by referring Plaintiff to BOP Program Statement, P1600.09, Occupational

Safety, Environmental Compliance and Fire Protection, Chapter 1 Page 8, Section 5, Inmate Accident

Compensation, for information regarding inmate compensation for injury (id. at 7–8). Plaintiff’s

formal written request appears to have been neither denied nor granted; rather, the response states

“your Request for Administrative Remedy is for informational purposes” (id.). Plaintiff then appealed

to the Regional Director on October 7, 2009 (id. at 9–10). The court could not locate a response by

the Regional Director to this appeal, but presumably Plaintiff was not satisfied with the response

because on December 11, 2009, he filed an appeal with the Central Office (id. at 11). The response

to Plaintiff’s appeal from the Administrator of National Inmate Appeals, dated May 3, 2010, cites

BOP Program Statement 1330.13, which states “‘an inmate raises an issue in a request or appeal that

cannot be resolved through the Administrative Remedy Program, the Bureau will refer the inmate to

the appropriate statutorily-mandated procedures’” (id. at 12). The response goes on to advise Plaintiff

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that the exclusive mechanism for providing compensation for work-related injury is the Inmate

Accident Compensation procedure set forth at 18 U.S.C. § 301 (id.). The response to Plaintiff’s

appeal seems to have been neither denied nor granted, noting simply that it was “for informational

purposes only” (id.). 

With respect to an Eighth Amendment claim founded on his cancer diagnosis, Plaintiff appears

to have pursued the administrative remedies process in the sequence set forth by 28 C.F.R. §§

542.10–542.15. Additionally, as minimally required, it appears that Plaintiff “alert[ed] prison

officials to the problem and [gave] them the opportunity to resolve it before being sued.” Parzyck v.

Prison Health Servs., Inc., 627 F.3d 1215, 1219 (11th Cir. 2010) (citing Jones v. Bock, 549 U.S. 199,

219, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007)). The timing of the filing of Plaintiff’s grievances,

however, seems problematic. Plaintiff apparently did not initiate the informal grievance procedure

until August 26, 2009, or file a request for administrative remedy with the Complex Warden until

September 23, 2009, which dates were well over one year after he was diagnosed with renal cancer

in June 2008 and several months after the cancerous kidney was removed in June 2009. As noted, a

formal written request to the warden must be filed within twenty calendar days of the date on which

the basis for the request occurred, 28 C.F.R. § 542.14(a), unless an extension is granted for a valid

reason for the delay. 28 C.F.R. § 542.15. It appears that the administrative remedies procedure was

not timely initiated in this case and that no extensions were granted. The court notes, however, that

the requests/appeal were not rejected for being untimely; indeed, the responses do not appear to deny

the requests at all but rather they state that they were being provided “for informational purposes”

only. Defendant Sanchez does not argue that the complaint is subject to dismissal for the failure to

exhaust administrative remedies in accordance with the time requirements set out in the applicable

BOP regulations. Nor have the parties developed the record with respect to the timeliness of

Plaintiff’s efforts to exhaust all administrative remedies that were available to him prior to filing suit. 

Defendant Sanchez “bear[s] the burden of proving that the plaintiff has failed to exhaust his available

administrative remedies.” Turner, 541 F.3d at 1082–83. As the court is unable to conclude at this

time that Defendant Sanchez has satisfactorily met this burden, it does not recommend dismissal for

the failure to timely exhaust administrative remedies. Rather, the court believes this matter should be

left for later consideration, if properly raised, upon an adequately developed record. 

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Failure to State a Claim for Relief

Defendant Sanchez also argues that Plaintiff’s claims against him fail to state a claim for relief. 

According to Defendant Sanchez, Plaintiff has failed to “plead factual allegations that create a

reasonable inference that Defendant Sanchez is liable for the misconduct alleged” (doc. 77 at 9).

Based on Plaintiff’s allegations, Defendant Sanchez submits, Plaintiff never spoke with Defendant

Sanchez, and Defendant Sanchez only visited the computer recycling work area to monitor the program

due to the BOP’s excitement about it (id.).11

The district court has already spoken on the issue of whether Plaintiff has stated an Eighth

Amendment claim for relief against FCIM prison officials for intentionally exposing him to

carcinogens, and it concluded that he has. In so finding, the district court stated

The plaintiff Ricardo Sanchez alleges that while he was an inmate at the Federal

Correctional Institution in Marianna, Florida, prison officials required him to work in

the computer-recycling program, that this exposed Mr. Sanchez to carcinogens, that

prison officials knew this and proceeded anyway, and that as a result Mr. Sanchez

developed renal cancer. 

(doc. 50 at 1).

Continuing, the district court stated

The complaints include abundant detail about the hazardous nature of the materials to

which Mr. Sanchez was exposed and how he was exposed to them. And the 

complaints adequately allege that officials knew of the hazard and proceeded anyway.

Thus, for example, the very first complaint alleged that prison officials “knew of the

significant hazardous work environment,” “took no precautionary measure,” and

“knowingly and affirmatively creat[ed] a dangerous environment” that “they knew to

be dangerous.” ECF No. 1, at 4. The complaint alleged that the officials acted with

“deliberate indifference to Plaintiff’s safety,” id., a conclusion that easily followed

from the allegation that the officials deliberately exposed Mr. Sanchez to a known risk. 

Later versions of the complaint did not use the same language but w e r e f u l l y

consistent; Mr. Sanchez has said from the outset that prison officials willfully exposed

him to carcinogens. 

 11 Defendant Sanchez acknowledges the more specific allegations that Plaintiff has made against Defendant John

Doe Factory Manager, including that this Defendant had day-to-day contact with Plaintiff, directed his work, and failed

to provide him with protective equipment despite knowing of Plaintiff’s complaints that he suffered problems with

watering eyes, coughing, and breathing.

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A well-trained pleader could have said it better, but for a Spanish-speaking inmate

working with limited assistance from other inmates, this is good enough. This order

reinstates the second amended complaint—the most recent version that best alleges an

Eighth Amendment claim under Bivens.

(id. at 2–3).

Thus the district court has already ruled that Plaintiff has stated a claim for relief under the

Eighth Amendment against FCIM prison officials who willfully exposed him to carcinogens. 

Plaintiff’s specific, albeit spare and inartfully pleaded, allegation that Defendant Sanchez [and

Defendant John Doe Contract Procurement Coordinator] were at the plant “frequently monitoring the

progress of the computer breakdown” program (doc. 26 at 14) was considered by the district court

when it reached this ruling. In light of the district court’s findings, supra, and taking into account

Plaintiff’s other allegations, including his description of allegedly unconstitutional actions taken by

Defendants “collective[ly]” (id.), this court believes Plaintiff’s assertion is sufficient to place

Defendant Sanchez among the prison officials against whom a claim has been stated.12 This court

therefore recommends that Defendant Sanchez’s request to be dismissed from this action on the ground

Plaintiff has failed to state a claim for relief against him be denied. 

Qualified Immunity

Defendant Sanchez also claims his entitlement to qualified immunity. According to Defendant

Sanchez, “Plaintiff was not required to work or to work in the recycling factory” (doc. 77 at 15)

(emphasis in original). Moreover, Defendant Sanchez contends, Plaintiff has not alleged that

“Defendant Sanchez was aware of any broken computers, Plaintiff’s contact with them or any danger

associated with them based on the safety equipment and clothing that was available to Plaintiff” (id.). 

 12 Supporting that conclusion are statements in Plaintiff’s second response describing Defendant Sanchez as

an “Associate Warden overseeing the daily operations in the computer recycling program” who knew of the complaints

of BOP inmates and staff working in the recycling program concerning the risk of exposure to toxic materials and their

requests for protective equipment yet who failed to take any action (see doc. 87 at 5–8).

The court’s conclusion that an Eighth Amendment claim for relief against Defendant Sanchez has been stated

also disposes of the argument that the conduct alleged by Plaintiff amounts to no more than negligence. Additionally,

as to Defendant Sanchez’s argument that he is not subject to supervisory liability in this Bivens actions (see doc. 77

at 18–21), the court notes that, as a general proposition and to the extent Plaintiff alleges supervisory liability by

Defendant Sanchez in this case, this is correct. See Cottone v. Jenne, 362 F.3d 1352, 1360 (11th Cir. 2003). In large

part, however, Plaintiff’s allegations appear to implicate Defendant Sanchez’s personal involvement in the violation

of his Eighth Amendment rights. 

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“The question is not whether Plaintiff was exposed to hazardous toxins[;] it is whether Defendant

Sanchez compelled him to be exposed while knowing of the risk and being deliberately indifferent to

it. Plaintiff does not make these allegations nor does his Second Amended Complaint allege facts that

tend to make this scenario plausible[;] rather, the facts he does allege make it implausible.” (id.).

“The doctrine of qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.

Ct. 808, 815, 172 L. Ed. 2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L. Ed. 2d 396 (1982)). The Supreme Court has explained that “the driving force”

behind the qualified immunity doctrine is to ensure that “‘insubstantial claims’ against government

officials be resolved prior to discovery and on summary judgment if possible.” Anderson v.

Creighton, 483 U.S. 635, 640 n. 2, 107 S. Ct. 3034, 3039 n.2, 97 L. Ed. 2d 523 (1987). Because this

defense should be applied at the earliest possible stage of litigation, it is proper for a district court

to rule on a claim of qualified immunity asserted in a motion to dismiss, Gonzalez v. Reno, 325 F.3d

1228, 1233 (11th Cir. 2003), although the defense is more “typically addressed at the summary

judgment stage of a case.” St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002). To

survive a motion to dismiss on qualified immunity grounds, a plaintiff must satisfy the two-pronged

qualified-immunity standard: (1) the facts alleged in his complaint constitute a violation of his

constitutional rights, and (2) the constitutional rights were “clearly established” when the defendant

committed the complained-of act. Pearson, 555 U.S. at 232. A qualified-immunity inquiry can begin

with either prong; neither is antecedent to the other. Id. at 236.13

The court has already concluded that the facts alleged by Plaintiff are sufficient to constitute

a violation of his constitutional rights; that Plaintiff may have volunteered to work in the recycling

program, for a reason such as the opportunity to earn better pay, and was not “compelled” by

 13 To receive qualified immunity, a public official must first demonstrate that he was acting within the scope of

his discretionary authority when the allegedly wrongful acts occurred. Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th

Cir. 2002). A government official acts within his discretionary authority if objective circumstances compel the

conclusion that challenged actions occurred in the performance of the official’s duties and within the scope of this

authority. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303 (11th Cir. 2006). Here, there can be no dispute that

Defendant Sanchez was acting within his discretionary authority. Therefore, the burden shifts to Plaintiff to show that

qualified immunity is not warranted. Vinyard, 311 F.3d at 1346.

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Defendant Sanchez to do so, does not alter this conclusion. “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a reasonable

[official] that his conduct was unlawful in the situation he confronted.” Loftus v. Clark–Moore, 690

F.3d 1200, 1204 (11th Cir. 2012) (internal quotation marks omitted). Clearly established law holds

that a prison official’s deliberately exposing an inmate to toxic substances can violate the Eighth

Amendment. See Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). This is what Plaintiff’s

allegations against the FCIM prison officials, including Defendant Sanchez, in essence assert. 

Therefore, at this pleading stage of the proceedings, at which the court has the benefit of absolutely

no evidence on the matter—such as Defendant Sanchez’s affidavit, others’ affidavits, or any other

evidence regarding the specific information known during the period in question about potential

hazards of the computer recycling program at FCIM—the court concludes that Defendant Sanchez has

not shown that he should be granted qualified immunity at this time.

CONCLUSION

For the reasons stated above, the court concludes that Defendant Sanchez’s motion to dismiss

on the grounds that Plaintiff failed to exhaust administrative remedies, that Plaintiff’s allegations fail

to state a claim for relief against Defendant Sanchez, and that Defendant Sanchez is entitled to

qualified immunity should be denied. Plaintiff’s claim under the Eighth Amendment that prison

officials willfully exposed him to carcinogenic materials, which resulted in his June 2008 diagnosis

of renal cancer, should be permitted to proceed. 

Plaintiff is reminded, however, of the district court’s caution when reinstating the second

amended complaint:

The conclusion that the second amended complaint adequately states a claim on which

relief can be granted does not mean that Mr. Sanchez will be able to recover. Alleging

that officials knew of a risk and deliberately proceeded anyway is far easier than

proving that there was in fact a risk, that officials knew it, and that they deliberately

proceeded anyway. And alleging that a cancer was caused by exposure to these

chemicals is far different from proving it. Mr. Sanchez will face a difficult burden to

establish that officials were deliberately indifferent or that exposure to these

chemicals caused this cancer. But this does not warrant dismissal. As the Supreme

Court said in disapproving the dismissal of a different case, “federal courts and

litigants must rely on summary judgment and control of discovery to weed out

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unmeritorious claims sooner rather than later.” Leatherman v. Tarrant County

Narcotics and Intelligence and Coordination Unit, 507 U.S. 163, 168–69 (1993).

(doc. 50 at 3–4). 

In light of the age of this case, and the fact that two of the Defendants have not yet been

identified by name or served, the undersigned concludes that the BOP should now be required to file

a notice identifying the names and official addresses of John Doe, UNICOR FPI Section 3 Factory

Manager, and John Doe, UNICOR FPI Contract Procurement Coordinator, as set forth in the second

amended complaint. If the district court adopts this Report, with this information the instant matter

will be better positioned to proceed more expeditiously through discovery and to resolution. Should

the BOP be able to provide the names and official addresses of John Doe, UNICOR FPI Section 3

Factory Manager, and John Doe, UNICOR FPI Contract Procurement Coordinator, defense counsel

is requested to enter an appearance on these parties’ behalf or advise the court of the reasons for her

inability to do so. 

Accordingly, it is ORDERED:

1. That no later than AUGUST 15, 2014, the Bureau of Prisons shall file a notice setting

out the names and official addresses, if known to or ascertainable by the Bureau of Prisons, of John

Doe, UNICOR FPI Section 3 Factory Manager, and John Doe, UNICOR FPI Contract Procurement

Coordinator. If the names and official addresses of these parties are not known and cannot be

ascertained, the Bureau of Prisons shall so advise the court within the time allotted. 

2. That no later than AUGUST 22, 2014, if the Bureau of Prisons provides the names and

official addresses of John Doe, UNICOR FPI Section 3 Factory Manager, and John Doe, UNICOR FPI

Contract Procurement Coordinator, defense counsel should enter an appearance on these parties’

behalf or advise the court of the reasons for her inability to do so. 

And it respectfully RECOMMENDED:

That the motion to dismiss filed by Defendant Jose L. Sanchez, Jr. (doc. 77) be DENIED. 

Plaintiff’s claim under the Eighth Amendment that prison officials willfully exposed him to

carcinogenic materials, which resulted in his June 2008 diagnosis of renal cancer, should be permitted

to proceed.

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At Pensacola, Florida this 31st day of July 2014.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be served

upon all other parties. Failure to object may limit the scope of appellate review of factual

findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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