1

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JOHN D. SOUTER, JR.,

Plaintiff,

v. Case No.: 3:10cv65/MCR/EMT

WARDEN ELLIS, et al.,

Defendants.

__________________________/

DEFENDANTS’ SUPPLEMENTAL MEMORANDUM TO THEIR MOTION 

TO DISMISS SECOND AMENDED COMPLAINT

Defendants K. Hall, J. Hammontree, S. Thomas, J. Frizzell, K. Barnes, 

D. Ledkins, D. Von Oven, D. Wells, J. Hass, J. Johnson, W. Johnson, C. 

Edelen, M. Barnes, E. McCaig, W. Weekly, J. Smith, Ellis, and J. Holodziej, 

through undersigned counsel and pursuant to the Court’s May 12, 2011 Order, 

submit this Supplemental Memorandum to their previously filed Motion to 

Dismiss:

1. Providing an inmate a decontamination shower after a use of chemical 

agents is a requirement of the use of force rules governing the Florida Department 

of Corrections.

2. Chapter 33-602.210(5)(b) discusses the requirement to provide an 

inmate a decontamination shower after the use of chemical agents. The rule 

Case 3:10-cv-00065-MCR-EMT Document 91 Filed 05/17/11 Page 1 of 5
2

separates the requirement to provide a decontamination shower from the 

requirement to take the inmate to medical. Id. (“The video recording will also 

include the actual application of chemical agents, the offer of a decontaminating 

shower and medical examination, and the inmate’s return to a secure, 

decontaminated cell. Should the inmate refuse the shower for decontamination 

purposes or refuse the medical examination, both the staff providing the 

opportunity in each case and the inmate’s responses will be recorded.”).

3. Additionally, Rule 33-602.210(21)(o)5 states in part, “Once the 

inmate is compliant, he shall be showered as soon as possible but not later than 20 

minutes after final application of chemical agents. The inmate shall be examined 

by medical staff immediately after showering.” As the rules show, a 

decontamination shower is separate and apart from the requirement to provide an 

inmate medical attention. Also, the decontamination shower is provided by 

security staff, not medical personnel. Because Plaintiff’s grievance (See

Defendants’ Motion to Dismiss, Exh. B, at grievance log number 09-6-08096), was 

specific about not receiving “adequate medical care” and made no mention of not 

receiving a shower, he failed to place the grievance reviewers on notice of his 

current claim of not receiving a shower. Brown v. Sikes, 212 F.3d 1205, 1207-08 

(11th Cir. 2000) (stating that section 42 U.S.C. 1997e(a) requires that a prisoner 

Case 3:10-cv-00065-MCR-EMT Document 91 Filed 05/17/11 Page 2 of 5
3

provide as much relevant information as he reasonably can in the administrative 

grievance process).

4. Defendant specifically stated, “Then forced to endure a 7 hour ride 

with no medical attention for the munition chemical.” (See Defendants’ Motion to 

Dismiss, Exh. B, at grievance log number 09-6-08096) Medical attention is 

provided by medical staff. A decontamination shower is provided by security 

staff. Per the Florida Administrative Code, the issues are separate and distinct. 

Thus, the only logical issues Plaintiff could have conceivably raised through his 

grievance were either 1) security staff did not take him to medical or 2) security 

staff took him to medical but medical staff failed to properly treat him.

5. Defendants further clarify that Plaintiff failed to follow the 

administrative rules requiring a separate grievance for each issue. Even though

Plaintiff was informed that his issues regarding the medical care received after the 

use of chemical agents should be addressed in a separate grievance, there is no 

indication that he ever properly followed up on this request and filed a grievance 

concerning solely the medical care issue. (See Defendants’ Motion to Dismiss, 

Exh. B) Rule 33-103.014(1)(a) allows for the return of a grievance without action 

where more than one issue is included in the grievance. Thus, the grievance was 

properly returned. Because Plaintiff failed to properly grieve the medical care 

issue as a standalone issue in a grievance, he failed to properly exhaust all issues 

Case 3:10-cv-00065-MCR-EMT Document 91 Filed 05/17/11 Page 3 of 5
4

he had concerning the medical care received after the use of chemical agents. 

Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (“Proper exhaustion demands 

compliance with an agency’s deadlines and other critical procedural rules because 

no adjudicative system can function effectively without imposing some orderly 

structure on the course of its proceedings.”). 

6. In accordance with the aforementioned argument and case law, 

Plaintiff’s claims regarding his ability to shower and the medical care received 

after the use of chemical agents should be dismissed because Plaintiff failed to 

properly exhaust his administrative remedies. 

Respectfully submitted,

PAMELA JO BONDI 

ATTORNEY GENERAL

s/ Lance Eric Neff 

Lance Eric Neff

Assistant Attorney General

Florida Bar Number 26626

Office of the Attorney General

The Capitol, PL-01

Tallahassee, Florida 32399-1050

(850) 414-3300 - Telephone

(850) 488-4872 - Facsimile

Email: Lance.Neff@myfloridalegal.com

Case 3:10-cv-00065-MCR-EMT Document 91 Filed 05/17/11 Page 4 of 5
5

CERTIFICATE OF SERVICE

I CERTIFY that a true and correct copy of the foregoing has been furnished 

by U.S. Mail to: John D. Souter, Jr., DC# 079286, F.S.P., 7819 N.W. 228th Street, 

Raiford, Florida, 32026-1000 on this 17th day of May, 2011. 

s/ Lance Eric Neff

LANCE ERIC NEFF

Case 3:10-cv-00065-MCR-EMT Document 91 Filed 05/17/11 Page 5 of 5