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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DWIGHT J. PORTER,

Plaintiff,

v. CASE NO. 5:10-cv-206-RS-GRJ

COLONEL BAXTER, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Pending before are the following motions: (1) Defendants, Simmons, Durance,

And Lee’s Motion to Dismiss Or, In Alternative, Motion For Summary Judgment (Doc.

40); (2) Defendant Dudley’s Motion To Dismiss Or, In The Alternative, Motion For 1

Summary Judgment (Doc. 44); and (3) Defendants Baxter and Tyus’ Motion To

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Dismiss Or, In The Alternative, Motion For Summary Judgment. (Doc. 48.) The motions

are based upon Plaintiff’s alleged failure to exhaust his administrative remedies with

respect to the claims in the Third Amended Complaint. Plaintiff filed identical

responses to the first two motions but did not file a response to the third motion. (Docs.

46 and 50.) Accordingly, the three motions are ripe for review. 

For the following reasons, Defendants, Simmons, Durance, And Lee’s Motion to

Plaintiff misnamed Defendant Assistant W arden Dudley as “Douglas” in his Third Amended

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Complaint. Plaintiff similarly misnamed Defendant Captain Tyus as “Tyson” in his Third Amended

Complaint. The Court will refer to each Defendant by his proper name.

Defendants Dudley, Baxter and Tyus were all served after the other three Defendants in this

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case were served due to problems locating Defendant Baxter and the errors with respect to utilizing the

correct first names for Defendants Dudley and Tyus in the Third Amended Complaint. (Docs. 28, 29 and

37.) This necessitated the filing of three separate motions to dismiss by Defendants’ counsel. However,

all three motions are identical and are based upon Plaintiff’s alleged failure to exhaust his administrative

remedies with respect to the claims presented in the Third Amended Complaint.

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Dismiss Or, In Alternative, Motion For Summary Judgment (Doc. 40) is due to be

granted as to Defendants Durrance and Simmons but is due to be denied with respect

to Defendant Lee; Defendant Dudley’s Motion To Dismiss Or, In The Alternative, Motion

For Summary Judgment (Doc. 44) is due to be denied; and Defendants Baxter and

Tyus’ Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment (Doc.

48) is due to be granted as to Defendant Tyus and is due to be denied as to Defendant

Baxter. 

I. Background

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

(“FDOC”) at Calhoun Correctional Institution in Blountstown, Florida. Defendants

Assistant Warden Dudley, Colonel Baxter, Captain Lee, Officer Simmons, Pamela

Durrance and Captain Tyus are all employed by the FDOC at Graceville Correctional

Facility (“Graceville CF”) in Graceville, Florida. Plaintiff is currently operating pursuant

to a Third Amended Complaint. (Doc. 25.) 

According to the factual allegations in the Third Amended Complaint, Plaintiff

was involved in a car accident in 2005, before he entered FDOC custody, when the

sport utility vehicle he was riding in rolled over. Plaintiff suffered a dislocated left

shoulder as a result of the accident, and still has issues with his shoulder to this day. 

On October 29, 2007, shortly after Plaintiff entered FDOC custody, he arrived at

Graceville CF and was assigned to a job in food services, working in the kitchen.

Plaintiff’s job in the kitchen consisted of scraping food off trays into a machine, which

required excessive use of his left shoulder and caused Plaintiff severe pain. Plaintiff

attempted to explain to Defendants Colonel Baxter, Pamela Durrance and Assistant

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Warden Dudley the severe pain his job assignment caused him but all three ignored

Plaintiff’s requests for an alternate job placement. 

In May 2008, Plaintiff declared a medical emergency due to swelling in his left

shoulder. He spent two days in the infirmary, during which time he was treated by a

doctor and given pain medication and a thirty day medical pass excusing him from work

in the kitchen. Later that month, Plaintiff showed his medical pass to Officer Simmons

after Plaintiff had again declared a medical emergency due to the pain in his left

shoulder. Despite being presented with the pass, Officer Simmons ordered Plaintiff to

sweep the floor, which Plaintiff alleges was covered in grease. While sweeping the

floor, Plaintiff slipped on the grease and hit his head on the floor, knocking him

unconscious and further aggravating his left shoulder injury.

In July 2008, Defendant Pamela Durrance ordered Plaintiff to return to his work

assignment in the kitchen. Because returning to his work assignment would continue to

cause him severe pain, Plaintiff told Durrance he was going to write an informal

grievance in response to her command to return to work. In response to Plaintiff’s

threat to file an informal grievance, Durrance called Defendants Colonel Baxter,

Assistant Warden Dudley and Captain Lee to the kitchen. Plaintiff alleges that Baxter,

Lee and Dudley threatened Plaintiff and stated that they would “bust his head to the

white meat and kick him asleep” if Plaintiff refused to work or filed any grievances. 

Plaintiff further alleges Baxter, Lee and Dudley are known as the “good old boy gang”

around Graceville C.I. and have a reputation for beating inmates. Plaintiff apparently

has witnessed such beatings.

In August 2008, Plaintiff was called to an unspecified captain’s office at

Graceville CF, where Defendants Baxter, Dudley and Lee were waiting for him. The

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three allegedly “roughed the Plaintiff up” by twisting Plaintiff’s injured left arm behind his

back, choking him and throwing him to the floor. Defendant Tyus then entered the

office and pulled a rope tied into a hangman’s noose out of a bag Tyus was holding,

called Plaintiff a racial epithet and then threatened to hang Plaintiff. Plaintiff was told

he would be killed if he told anyone about the incident in the captain’s office. 

Towards the end of August, Plaintiff was again approached by Defendants

Baxter, Lee and Dudley. Baxter, Lee and Dudley told Plaintiff they would beat him to

death if he filed any more grievances. On December 13, 2008, Plaintiff’s job

assignment was changed from the kitchen to the position of houseman. 

Plaintiff claims the Defendants violated his First, Fifth, Eighth and Fourteenth

Amendments rights under the United States Constitution. Plaintiff seeks compensatory

and punitive damages against the Defendants.

II. The Motions to Dismiss and Plaintiff’s Response

In the three Motions To Dismiss Or, In the Alternative, Motion For Summary

Judgment filed by the Defendants, the six Defendants seek dismissal of Plaintiff’s Third

Amended Complaint on the grounds that Plaintiff failed to exhaust his administrative

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

1997e(a).

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

Management Analyst I with the FDOC’s Bureau of Inmate Grievance Appeals. (Doc. 40

Exh. A.) Ms. Padgham attests that her review of the FDOC’s grievance records reflects

Plaintiff only filed one grievance appeal to the Secretary of the FDOC. A copy of this

grievance appeal, which is attached to Ms. Padgham’s affidavit, reflects it concerns

Plaintiff’s query to FDOC staff regarding the cost of copying his medical records. (Id. at

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Exh. A-1.) In his responses to the motions to dismiss, Plaintiff states he did not exhaust

his administrative remedies with respect to the claims he seeks to advance in this case

because he was threatened by several of the Defendants if he complained or filed any

grievances. (Docs. 46 and 50.) Accordingly, Plaintiff contends that his failure to comply

with the PLRA’s administrative exhaustion requirement should be excused as

unavailable to him under Turner v. Broadside. 541 F.3d 1077 (11 Cir. 2008). 

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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

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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

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

complete the administrative review process established under regulations promulgated

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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Turner v. Broadside also established, however, that an inmate is not required to

grieve a “breakdown in the grievance process” because the PLRA only requires that a

prisoner exhaust his “available administrative remedies.” Turner, 541 F.3d at 1083-84

(“[I]t is possible for retaliation or the threat of retaliation to make administrative

remedies unavailable to an inmate.”). In the context of retaliation or threatened

retaliation, the Turner court concluded:

We conclude that a prison official's serious threats of substantial

retaliation against an inmate for lodging or pursuing in good faith a

grievance make the administrative remedy “unavailable,” and thus lift the

exhaustion requirement as to the affected parts of the process if both of

these conditions are met: (1) the threat actually did deter the plaintiff

inmate from lodging a grievance or pursuing a particular part of the

process; and (2) the threat is one that would deter a reasonable inmate of

ordinary firmness and fortitude from lodging a grievance or pursuing the

part of the grievance process that the inmate failed to exhaust.

Id. at 1085. In order to successfully excuse a failure to exhaust more than mere

threats are normally required. Generally to excuse exhaustion an inmate must allege

both threats of retaliation as well as the use of physical force in response to the filing of

grievances. See, e.g., Hemphill v. New York, 380 F.3d 680, 689 (2d Cir. 2004)(noting

that if inmate was assaulted and threatened to keep him from complaining, exhaustion

should be excused); Kaba v. Stepp, 458 F.3d 678, 684-86 (7th Cir. 2006)(exhaustion

could be excused where prisoner was threatened with beating for filing grievances and

threat was carried out).

B. Plaintiff’s Grievances and Grievance Appeals

Plaintiff filed a number of informal and formal grievances with the Warden and

other administrators at Graceville CF, some of which are included as attachments to his

Third Amended Complaint. (Doc. 25 Exhs. A1-A9, C.) Several of the grievances

concerned his fall on the grease in the kitchen floor in August 2008. (Id. at A1-A3, A5.)

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Another grievance concerns an incident on August 6, 2008 in which Plaintiff claimed he

was questioned and harassed in response to a grievance he had filed, while others

simply state more generally that Plaintiff was being harassed. (Id. at A4, A8.)

As previously noted, Rebecca Padgham, a Management Analyst I with the

FDOC’s Bureau of Inmate Grievance Appeals, attests in an affidavit that her search of

the FDOC’s grievance records reflects Plaintiff only filed one grievance appeal to the

Secretary of the FDOC. (Doc. 40 Exh. A.) This grievance appeal concerned the cost of

copying Plaintiff’s medical records. (Id. at Exh. A-1.) 

Plaintiff does not dispute his only successfully exhausted claim was contained in

the single grievance appeal concerning the cost of copying his medical records.

Instead, Plaintiff contends that his failure to exhaust his claims in the Third Amended

Complaint should be excused from the PLRA’s exhaustion requirement because he

was threatened by and physically assaulted by the Defendants in response to the

grievance he actually filed and in response to his stated intention to pursue the

grievance process and file other grievances. 

C. Legal Analysis

There is no dispute Plaintiff did not successfully exhaust all of the claims in the

Third Amended Complaint. Because Plaintiff contends the Defendants rendered his

administrative remedies unavailable by means of physical force and threats of physical

force, the Court must determine as to each Defendant whether Plaintiff should be

excused from the PLRA’s exhaustion requirement under Turner v. Burnside.

1. Defendants Baxter, Lee and Dudley

In Plaintiff’s Third Amended Complaint and in his responses to the motions to

dismiss, Plaintiff alleges that he was physically assaulted and was threatened twice with

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further physical abuse by Defendants Baxter, Lee, and Dudley. According to Plaintiff’s

sworn response, Defendants Baxter, Lee and Dudley threatened to “bust his head to

the white meat and kick him asleep if he refused to work” when he threatened to file a

grievance against Defendant Pamela Durrance. Plaintiff was later approached by

Defendants Baxter, Lee and Dudley in late August 2008, when the three threatened to

beat Plaintiff to death if he filed any further grievances. Plaintiff avers that this group of

Defendants previously assaulted him earlier that month and Plaintiff also had observed

them “beat-up” other inmates.

Under Turner at this stage of the proceedings, the Court is required to take

Plaintiff’s version of the facts as true. Plaintiff has described specific threats made by

Defendants Baxter, Lee and Dudley. Plaintiff further alleges that as a result of these

threats he actively refrained from pursuing further grievances.

The Court therefore concludes at this stage that a reasonable inmate would be

deterred by a threat to “bust [the inmate’s] head open” and a threat to beat the inmate

to death if he filed any grievances, made by defendants, who the inmate alleges had

previously assaulted the inmate for making grievances. These allegations are sufficient

to meet the two step test set forth in Turner for determining if serious threats of

substantial retaliation deterred an inmate from lodging or pursuing in good faith a

grievance. 

Accordingly, the Court concludes that Plaintiff has alleged sufficient facts to

demonstrate that the administrative remedies provided to a FDOC inmate were not

available to him with regard to his claims against Defendants Baxter, Lee and Dudley. 

The motion to dismiss, filed by Defendants Baxter, Lee and Dudley for failure to

exhaust administrative claims is therefore due to be denied. 

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2. Defendants Tyus, Simmons and Durrance

Plaintiff’s failure to exhaust his administrative remedies against Defendants,

Tyus, Simmons and Durrance, is a different story. The only allegation in the Third

Amended Complaint against Officer Simmons is that Simmons forced Plaintiff to mop

the grease-covered kitchen floor in response to Plaintiff’s complaint that his work

assignment in the kitchen was causing him pain in his injured left shoulder. Further,

while Officer Tyus allegedly pulled a rope tied in a hangman’s noose out of a bag and

displayed it to Plaintiff and called Plaintiff a racial epithet, there is no allegation that the

actions of either Officer Simmons or Officer Tyus had anything to do with Plaintiff’s filing

of past grievances or plans to file future grievances. Accordingly, because there are no

facts alleged which would excuse Plaintiff’s obligation to exhaust administrative

remedies – and Plaintiff does not dispute that he failed to exhaust all of the available

administrative remedies – Defendants Simmons and Tyus’ motion to dismiss should be

granted.

With respect to Defendant Pamela Durrance, Plaintiff alleges he told Defendant

Durrance he was going to file an informal grievance against her because she forced

him to work despite Plaintiff’s medical pass excusing him from work. According to

Plaintiff, Defendant Durrance then called Defendants Baxter, Lee and Dudley, who

threatened to beat-up Plaintiff if he filed a grievance. Defendant Durrance is the food

service manager at Graceville CF, while Colonel Baxter, Assistant Warden Dudley and

Captain Lee were all fairly senior correctional officials, making it highly unlikely or even

plausible that Durrance had the authority to order them to apply force against Plaintiff. 

Accordingly, the Court concludes a reasonable inmate would not likely have

experienced fear of retaliation from Durrance. In short, forcing Plaintiff to continue to

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work despite Plaintiff’s pain in his shoulder and then informing higher ranking officials of

Plaintiff’s intent to file an informal grievance against Durrance is simply not sufficient to

excuse Plaintiff from his obligation to pursue all available administrative remedies.

Accordingly, Simmons, Tyus and Durrance’s motion to dismiss is due to be granted. 

IV. Recommendation

In light of the foregoing, it is respectfully RECOMMENDED that: (1) Defendants,

Simmons and Durance’s, Motion to Dismiss be GRANTED but Defendant Lee’s Motion

to Dismiss (Doc. 40) be DENIED; (2) Defendant Dudley’s Motion To Dismiss (Doc. 44)

be DENIED; and (3) Defendants Tyus’ Motion To Dismiss be GRANTED but

Defendant Baxter’s Motion to Dismiss (Doc. 48) be DENIED. It is further

RECOMMENDED that Plaintiff’s claims against Defendants Simmons, Durrance and

Tyus be DISMISSED for failure to exhaust administrative remedies and that this case

be recommitted to the undersigned for further proceedings against Defendants Lee,

Dudley and Baxter.

IN CHAMBERS this 30 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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