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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GEORGE RAYMOND JOHNSTON, III,

Plaintiff,

vs. Case No. 4:11cv21-MP/WCS

GLENN E. YOUNG, OFFICER BOZEMAN,

DR. BENITO EDOUARD, and 

MR. CAPTAIN BALDRIDGE,

Defendants.

 /

REPORT AND RECOMMENDATION

Defendants filed a motion to dismiss, doc. 70, and the pro se Plaintiff has filed a

response, doc. 73.1 The motion is ready for a ruling. 

Allegations of the Second Amended Complaint, doc. 23

Plaintiff alleged that in November of 2008, while at Madison Correctional

Institution, the "laundry/security officer" issued him boots that were two sizes too small,

and he was ordered to wear them despite his complaints. Doc. 23, p. 5. Plaintiff said

he is diabetic and complained that his "feet were damaged by a constant lack of

1

 Plaintiff filed a document entitled, "petition for leave to reply to Defendants'

motion to dismiss." Doc. 73. That "petition" was construed not as a motion seeking

leave to file a reply, but as Plaintiff's response in opposition. See doc. 74.

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circulation." Id. Plaintiff contends the "laundry officers" ignored him and were reckless

to his needs. Id. He further alleged that medical staff contacted laundry about the illfitting boots, and in October, 2009, "the laundry officer issued another pair of boots too

small, and again ordered Plaintiff to 'wear em!' " Id., at 5. Plaintiff alleged the boots

were extremely painful, and that Defendant Bozeman acted deliberately with respect to

the problem with the boots to save money. Id. 

On December 30, 2009, Plaintiff was issued a medical pass for boots size 17 due

to damage to his feet caused by wearing boots of the wrong size. Id., at 6. Plaintiff

contends that Defendant Bozeman again deliberately ordered size 18 EEE boots

because they were cheaper, and threatened Plaintiff to not complain anymore. Id.

Plaintiff received the boots, now too large, on January 5, 2010, despite his complaints

and the issuance of the medical pass. Id. Plaintiff said they caused painful blisters on

his feet. Id. Plaintiff again filed grievances concerning this issue and, nearly two

months later, Plaintiff "was issued a properly fitting pair of boots" by Pride, but within

two weeks, Defendant Young ordered the seizure of Plaintiff's boots "due to 'complaints'

about prior sizes and injuries." Id. Defendant Bozeman seized Plaintiff's boots on

March 31, 2010, but the very next day, Pride issued Plaintiff "another pair of properly

fitting boots, so [Plaintiff] could keep his job at Pride." Id. Defendant Young then had

Plaintiff terminated from Pride because of Plaintiff's grievances about the boots, and

Plaintiff contends this act to punish him was done in violation of his due process rights. 

Id., at 6-7.

Plaintiff was transferred from Madison Correctional Institution to Avon Park

Correctional Institution on August 1, 2010, and as he was leaving, Defendant "Bozeman

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again seized Plaintiff's" second pair of properly fitting boots. Id., at 7. Plaintiff contends

that on December 18, 2010, he "sustained an injury that could" have been avoided if

Plaintiff had not had these boots seized.2

 Id. Plaintiff contends that he was not given

prompt medical treatment and was left for hours in "unbearable pain." Id. He was

eventually taken to the medical department, and via telephone, Defendant Edouard (the

physician) prescribed an ace bandage, crutches, and Ibuprofen. Id. Plaintiff alleges

this "quick telephonic medical assessment" was deliberately indifferent to Plaintiff's

serious medical needs. Id., at 8. Plaintiff contends he pleaded with the nurse to call the

doctor back and to check his medical files because Plaintiff believed he needed to be

seen in the emergency room and possibly needed urgent surgery. Id. Plaintiff was not

successful and alleged that Defendant Edouard rendered inadequate medical care. Id. 

Plaintiff said he had an appointment with Defendant Edouard two days later, but

it was canceled by the Defendant. Id., at 8–9. Plaintiff explained repeatedly that he

could not bear the pain of walking on the crutches, but his grievances were denied. Id.,

at 9. Plaintiff alleged that he filed a grievance declaring a medical emergency, but

Defendant Baldridge cancelled the medical emergency and denied Plaintiff's request. 

Id. Plaintiff contends the actions of Defendant Baldridge were callous and reckless. Id.

Plaintiff complained that after more than eighty days, and several more falls while

trying to walk on the crutches, he was finally approved for "urgent surgery" after

Defendant Edouard reviewed the MRI results. Id., at 10. Plaintiff contends Defendant

2

 It appears that Plaintiff tripped and fell, injuring himself, and he suggests it was

because the Department of Corrections provided him "excessively large and

cumbersome ill-fitting boots." Doc. 23, p. 4. 

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Edouard was deliberately and maliciously indifferent to his needs by the delay in

medical treatment and forcing Plaintiff to endure pain and suffering. Id. 

Defenses Raised

The four Defendants filed a motion to dismiss, doc. 70, asserting Eleventh

Amendment immunity, failure to state a claim under the Eighth Amendment for ill-fitting

boots, failure to state a due process claim in assignment of the job or the boots, failure

to state a claim against Defendant Young, and improper joinder of Defendants Edouard

and Baldridge. Doc. 70, p. 1. Defendants also assert that Plaintiff failed to exhaust

administrative remedies for the claims against Defendants Edouard and Baldridge. Id. 

Plaintiff's Response, doc. 73

Plaintiff contends Defendants are not entitled to any immunity, that they violated

his rights and have "misconstrued Plaintiff's details, basis, and cause of action in his

claims, to ad [nauseam]." Doc. 73, p. 2. Plaintiff contends he has exhausted

administrative remedies for each Defendant and that joinder of claims, parties and

actions qualifies as special joinder, as is appropriate for his unique circumstances . . . ." 

Id. Plaintiff urges the motion to dismiss be denied. 

Standard of Review

The issue on whether a complaint should be dismissed pursuant to Fed.R.Civ.P.

12(b)(6) for failing to state a claim upon which relief can be granted is whether the

plaintiff has alleged enough plausible facts to support the claim stated. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (retiring the

standard from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

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as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129

S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009), quoting Twombly, 550 U.S. at 570, 127

S.Ct. 1955.3 "A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged." Iqbal, 129 S.Ct. at 1949, citing Twombly, 550 at 556; see also

Speaker v. U.S. Dept. of Health, 623 F.3d 1371, 1380 (11th Cir. 2010). "The plausibility

standard" is not the same as a "probability requirement," and "asks for more than a

sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949,

quoting Twombly, 550 at 556. A complaint that "pleads facts that are 'merely consistent

with' a defendant's liability," falls "short of the line between possibility and plausibility." 

Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 at 557.

The pleading standard is not heightened, but flexible, in line with Rule 8's

command to simply give fair notice to the defendant of the plaintiff's claim and the

grounds upon which it rests. Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992,

998, 152 L.Ed.2d 1 (2002) ("Rule 8(a)'s simplified pleading standard applies to all civil

actions, with limited exceptions."). Pro se complaints are held to less stringent

standards than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967

(11th Cir. 1986), citing Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 596, 30

L.Ed.2d 652 (1972). Nevertheless, a complaint must provide sufficient notice of the

claim and the grounds upon which it rests so that a "largely groundless claim" does not

3

 The complaint's allegations must be accepted as true when ruling on a motion

to dismiss, Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992), cert.

denied, 113 S. Ct. 1586 (1993), and dismissal is not permissible because of "a judge's

disbelief of a complaint's factual allegations." Twombly, 127 S.Ct. at 1965, quoting

Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). 

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proceed through discovery and "take up the time of a number of other people . . . ." 

Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577

(2005), quoted in Twombly, 127 S.Ct. at 1966. A complaint does not need detailed

factual allegations to survive a motion to dismiss, but it must provide the grounds for a

plaintiff's entitlement to relief beyond mere "labels and conclusions, and a formulaic

recitation of the elements of a cause of action . . . ." Twombly, 127 S.Ct. at 1964-65.

If a pleading fails to specify the allegations in a manner that provides

sufficient notice, a defendant can move for a more definite statement

under Rule 12(e) before responding. Moreover, claims lacking merit may

be dealt with through summary judgment under Rule 56. 

Swierkiewicz, 122 S.Ct. at 998-999. 

Analysis

Eleventh Amendment immunity and "person" under § 1983

A § 1983 suit against either the state, or an agency of the state, is absolutely

barred by the Eleventh Amendment, absent a waiver of the immunity. See Scheuer v.

Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Gamble v. Florida

Department of Health and Rehabilitative Services, 779 F.2d 1509 (11th Cir. 1986). 

Claims against state employees sued in their official capacity cannot proceed as the

Supreme Court has held that state officials acting in their official capacities are not

"persons" for purposes of Section 1983. Will v. Michigan Department of State Police,

491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), cited in Carr, 916 F.2d at 1525,

n.3. Thus, the claims cannot proceed against Defendants in their official capacity and

must proceed solely in their individual capacities. 

Exhaustion

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The claims raised by Plaintiff may be broken down into two groups (1) claims

arising at Madison Correctional Institution against Defendants Young and Bozeman,

and (2) claims at Avon Park Correctional Institution against Defendants Edouard and

Baldridge. Defendants raise the exhaustion defense only as to the claims raised

against the latter, Defendants Edouard and Baldridge. Doc. 70, pp. 14-18. 

In enacting the Prison Litigation Reform Act, Congress mandated 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." 42 U.S.C. §

1997e(a). The exhaustion requirement of § 1997e(a) is mandatory, whether the claim is

brought pursuant to § 1983 or Bivens. Alexander v. Hawk, 159 F.3d 1321, 1324-26

(11th Cir. 1998); Bryant v. Rich, 530 F.3d 1368, 1374 n.10 (11th Cir.), cert. denied, 129

S.Ct. 733 (2008). There is no discretion to waive this requirement or provide

continuances of prisoner litigation in the event that a claim has not been exhausted prior

to filing. Alexander, 159 F.3d at 1325; see also Porter v. Nussle, 534 U.S. 516, 122

S.Ct. 983, 152 L.Ed.2d 12 (2002) (holding that "the PLRA's 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.");

Brown v. Sikes, 212 F.3d 1205, 1207-08 (11th Cir. 2000) (finding that an inmate must

"provide with his grievance all relevant information reasonably available to him" but he

cannot be required to name individuals responsible for challenged conduct when he

could not yet identify those persons). The Court may not consider the adequacy or

futility of administrative remedies, but only the availability of such. Higginbottom v.

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Carter, 223 F.3d 1259, 1261 (11th Cir. 2000), citing Alexander, 159 F.3d at 1323. Even

where an inmate seeks only monetary damages in a civil rights case, he must complete

the prison administrative process if it could provide some sort of relief on the complaint

although no money could be given administratively. Booth v. Churner, 531 U.S. 956,

121 S. Ct. 1819, 1821, 149 L. Ed. 2d 958 (2001). "Requiring exhaustion allows prison

officials an opportunity to resolve disputes concerning the exercise of their

responsibilities before being haled into court." Jones v. Bock, 549 U.S. 199, 204-209,

127 S.Ct. 910, 914, 166 L.Ed.2d 798 (2007)4

.

A prisoner must comply with the process set forth and established by the State's

grievance procedures. See Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999). In

other words, not only must a prisoner exhaust a claim under § 1997e(a), the "PLRA

exhaustion requirement requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81,

93, 126 S.Ct. 2378, 2387 (2006) (concluding that "proper exhaustion" means complying

with the specific prison grievance requirements, not judicially imposed requirements). 

Even if a grievance is initially denied as untimely, a prisoner must appeal the denial of

the grievance. See Harper v. Jenkin, 179 F.3d 1311 (11th Cir. 1999) (noting Georgia's

inmate grievance procedures allow "the grievance coordinator to waive the time period

for filing a grievance if 'good cause' is shown"); Bryant v. Rich, 530 F.3d at 1373. If one

claim is unexhausted, the Court may separate that claim out and proceed on only those

claims that have been exhausted. Brown, 212 F.3d at 1206, n.1; Jones, 549 U.S. at

4

 The Court concluded that the statute does not impose "a 'name all defendants'

requirement." Jones v. Bock, 549 U.S. at 217-219, 127 S.Ct. at 922-923 (stating "that

exhaustion is not per se inadequate simply because an individual later sued was not

named in the grievances."). 

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223, 127 S.Ct. at 925 (rejecting a "total exhaustion rule" and requiring dismissal only of

those unexhausted "claims," not an entire "action."). 

Defendants "bear the burden of proving that the plaintiff has failed to exhaust his

available administrative remedies." Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th

Cir. 2008), relying on Jones v. Bock, 549 U.S. 199, 127 S.Ct. at 910, 921, 166 L.Ed.2d

798 (2007) ("We conclude that failure to exhaust is an affirmative defense under the

PLRA, and that inmates are not required to specially plead or demonstrate exhaustion

in their complaints."); Dixon v. United States, 548 U.S. 1, 8, 126 S.Ct. 2437, 2443, 165

L.Ed.2d 299 (2006) (stating that, as a "general evidentiary rule," the burdens of

production and persuasion are given to the same party); Roberts v. Barreras, 484 F.3d

1236, 1240 (10th Cir. 2007) ("Jones does not spell out the proper burden of proof to use

in evaluating exhaustion claims, but circuits that treated exhaustion as an affirmative

defense prior to Jones have all put the burden of proof on defendants, to the extent that

they addressed the issue.").

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." Bryant, 530

F.3d at 1373-74, 1376. Even though evidence may be presented to support or refute a

contention that a prisoner has not exhausted the grievance process, exhaustion is a

"matter in abatement and not generally an adjudication on the merits," thus, it should be

raised and treated as a motion to dismiss, not a summary judgment motion. Id., at

1374-75. When motions to dismiss are based on issues not enumerated under Rule

12(b), then Rule 43(c) governs, "which permits courts to hear evidence outside of the

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record on affidavits submitted by the parties." Id., at 1377, n.16. Further, a credibility

finding may be made after review of the relevant documentary evidence. Id.

Plaintiff is housed within the Florida Department of Corrections which has an

administrative grievance program, FLA. ADMIN. CODE R. 33-103. The Department's

grievance process is exhausted when an inmate files an informal grievance, a formal

grievance, and then a grievance appeal to the Secretary's Office. Doc. 70, p. 16. 

Plaintiff filed only two grievance appeals between August, 2010, and January, 2011. 

Doc. 70, p. 7; see doc. 70-1 (Defendants' Ex. A).

A grievance appeal to the Office of the Secretary "must be received within 15

calendar days from the date of the response to the formal grievance." FL. ADMIN. CODE

33-103.011(c) (emphasis added). "Appeals and direct grievances to the Office of the

Secretary shall be turned over that same date to the Bureau of Inmate Grievance

Appeals which shall ensure that the grievance is date-stamped in on the date of

receipt." FL. ADMIN. CODE 33-103.007(3). "The decision of whether or not the grievance

has been timely filed by the inmate shall be made based upon the following

comparisons: (a) In the case of an appeal being filed with the central office, by

comparing the receipt date on the DC1-303 form to the response date of the formal

grievance." FL. ADMIN. CODE 33-103.007(3)(a). A grievance to the Secretary not

received within the 15 day period may be returned without processing. FL. ADMIN. CODE

33-103.014(h).

The "receipt date on the DC1-303 form" refers to the process for recording the

"receipt" of an appeal to the Secretary. It provides a benefit to the prisoner because the

date of receipt is the date that the grievance is submitted to the institution according to

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the Rules, not the date it actually gets to Tallahassee. Florida Administrative Code 33-

103.006(8) provides that "Inmates who are filing grievances that require mailing shall be

required to utilize the procedure set forth in this rule when processing their grievances

or appeals to the reviewing authority of community facilities or the Bureau of Inmate

Grievance Appeals in the central office." It also provides that the institution must

establish "a logging and tracking system to record and document receipt and mailing of

inmate grievances." FL. ADMIN. CODE 33-103.006(8)(b). It provides that the staff

person who accepts the grievance must complete the receipt portion on the DC1-303

form. FL. ADMIN. CODE 33-103.006(8)(c)1. 

Finally, a prisoner may bypass this procedure by submitting his grievance in a

sealed envelope and place the grievance in "institutional bulk mail that is to be mailed

daily to central office." FL. ADMIN. CODE 33-103.006(8)(d) and (e). If this happens,

however, the "receipt" date will be the date that the Central Office actually receives the

mail and date stamps the receipt as provided in FL. ADMIN. CODE 33-103.007(3). 

Mailing in a sealed envelope, however, was not a procedure available to Plaintiff. The

by-pass sealed envelope procedure is limited to emergency grievances, grievances of

reprisals, grievances of a sensitive nature, and grievances alleging a violation of the

Health Insurance Portability and Accountability Act. FL. ADMIN. CODE 33-

103.007(6)(a)3. 

The first appeal was dated by Plaintiff on January 9, 2011. Doc. 70-2 (Ex. B). At

the bottom of the first page is a section that is entitled "Receipt for Appeals Being

Forwarded to Central Office." Id., p. 1. It has a space for dating the submission, a

signature for the staff member who receives the grievance appeal, and a place for an

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institutional mail log number. Id. Those spaces are blank. Id. The appeal was

stamped "Received" in the Department of Corrections' Inmate Grievances Bureau on

January 19, 2011. Id. It was "returned without action" because it was not "received"

"within 15 calendar days of the institutional response." Id., at 5 (emphasis added). 

Furthermore, the response noted the appeal was not "receipted at the local" institution

as required by Rule 33-103.006(8), which may have "contributed to" Plaintiff's failure to

file the grievance timely. Id.

The second grievance appeal was dated by Plaintiff January 10, 2011, also

lacked a receipt or log from the institution, but contains a "received" stamp date of

January 19, 2011, by the Department's Inmate Grievances Bureau. Doc. 70-3 (Ex. C),

p. 1. The result for this grievance was the same: it was "returned without action" for

noncompliance with the rules requiring submission "within 15 calendar days of the

institutional response." Id., at 5. The response noted that Plaintiff failed to have the

appeal receipt at the local institution. Id. Moreover, the response advised Plaintiff that

his complaint against staff (Defendant Baldridge) was "a separate issue and should be

grieved as such" at the appropriate level. Id. 

Plaintiff did not properly submit his two grievance appeals in a timely fashion. 

Even if he were entitled to by-pass the institutional receipt procedure and send them in

a sealed envelope (and he was not), they did not get to the Central Office until the 16th

day.5

 There was no other "receipt" date available to him since he did not have the

5

 It is possible that even if he was not permitted to mail the grievance appeal in a

sealed envelope, the Secretary would have considered the grievance to have been

timely filed if received in the Central Office on January 18, 2011.

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receipt filled out on the DC1-303 form.6 An inmate must comply with the rules to

"properly exhaust" his administrative remedies and because Plaintiff did not, the claims

against Defendants Edouard and Baldridge should be dismissed for failure to exhaust

administrative remedies. 

Claims against Defendant Young

Defendant Young, the assistant warden at Madison Correctional Institution, is

alleged to have seized Plaintiff's boots and changed Plaintiff's job assignment in

retaliation for filing grievances or complaints in violation of the First Amendment. Id., at

11. Plaintiff alleged the deprivation of boots caused pain and suffering in violation of his

Eighth Amendment rights. Id. 

The motion to dismiss asserts that a claim for improper fitting boots is insufficient

because problems such as foot and toe fungus, numbness, foot discoloration, and

blisters are not "serious medical needs" and, therefore, the claim fails to state a viable

Eighth Amendment claim. Doc. 70, p. 10. Several unpublished cases are attached to

the motion to support that assertion. Id., Exs. D and E.

Brinkman v. Schriro, 2010 WL 2035594 (D. Ariz. May 20, 2010) (No. CV 06-

0512-TUC-CKJ), was decided at summary judgment and not on a motion to dismiss. 

Doc. 70, Ex. D. Moreover, the inmate's claim for issuance of boots that were too small

6

 It may be that Plaintiff submitted his grievance appeals for mailing on the date

he signed them, January 9, 2011, and it took until January 19, 2011, to reach the

Central Office. It is noted that he certified that he submitted his initial complaint for

mailing on January 11, 2011, but it did not reach the Clerk of this court until January 19,

2011. Doc. 1, pp. 1 and 8. But this is not relevant for the reasons discussed above. 

The date of "receipt" as defined by the Department's rules is the relevant date for the 15

day limitations period.

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was not causally linked to the defendants and was held to be barred by the statute of

limitations. That the inmate had "mild bunions" was insufficient to demonstrate a

medical need for special tennis shoes, and the court held that an arthritic condition in

the great toe and a foot fungus were "either not serious medical needs or the evidence

shows they were adequately treated." Doc. 70-4 (Ex. D), pp. 9-10. There was no

allegation that the prisoner had diabetes. Those facts are distinguishable from the case

at bar because this is a motion to dismiss, not a motion for summary judgment, and

Plaintiff has alleged that he is diabetic, a potentially serious medical condition making

boot problems more than insignificant. 

Defendants point to Kellam v. Hunt, 2007 WL 2764814 (N.D. N.Y. Sep. 20, 2007)

(No. 9:04-CV-1225 (LEK/GJD)), which was dismissed partly on the grounds that the

inmate failed to notify the court of a change in address, and also at the summary

judgment stage, finding that Plaintiff was offered wide boots of the proper width and

size, but Plaintiff refused the boots. Doc. 70-5 (Ex. E). In granting summary judgment

in favor of Defendants, the court found that Plaintiff failed to show a serious medical

need because the medical records revealed that Plaintiff only complained of "painful

callouses," did not later complain of foot pain or request special shoes or even inserts

from the doctor, and his own testimony showed he did not experience a serious medical

need. Id., at 5. The prisoner did not allege that he had diabetes. That case is also

distinguishable as it was on summary judgment and not a motion to dismiss. 

Deliberate indifference to the serious medical needs of sentenced prisoners

violates the Eighth Amendment's prohibition of cruel and unusual punishment. Estelle

v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). A "'serious' medical

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need is one that has been diagnosed by a physician as mandating treatment or one that

is so obvious that even a lay person would easily recognize the necessity for a doctor's

attention." Hill v. Dekalb Regional Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994),

abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153

L.Ed.2d 666 (2002), quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D. N.H.

1977). Alternatively, "a serious medical need is determined by whether a delay in

treating the need worsens the condition" or "if left unattended, poses a substantial risk

of serious harm." Mann v. Taser Intern., Inc., 588 F.3d 1291, 1307 (11th Cir. 2009),

citing Hill, 40 F.3d at 1188-89, and Farrow v. West, 320 F.3d 1235, 1243 (11th Cir.

2003). An Eighth Amendment claim requires allegations of "an objectively serious

need, an objectively insufficient response to that need, subjective awareness of facts

signaling the need, and an actual inference of required action from those facts." Taylor

v. Adams, 221 F.3d 1254 (11th Cir. 2000), cert. denied 531 U.S. 1077 (2001); Farrow v.

West, 320 F.3d 1235, 1243 (11th Cir. 2003). Put another way, once a prisoner shows

that he has a serious medical need, "the prisoner must prove three facts: (1) subjective

knowledge of a risk of serious harm; (2) disregard of that risk; and (3) by conduct that is

more than mere negligence." Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004),

citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.1999).

An inmate who is diabetic and suffers with problems in his feet or toes is at a

higher risk of serious harm that a non-diabetic inmate. See Milton v. Turner, 445

Fed.Appx. 159, 163, 2011 WL 3654392, at *3 (11th Cir. 2011) (noting that a diabetic

inmate with an infected big toe has a serious medical need). When the failure to treat a

condition would result in significant further injury or the unnecessary infliction of pain,

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the medical need may be found to be serious. At least at this stage, this states a

plausible serious medical need. 

In this case, Plaintiff alleged that Defendant Young ordered the seizure of

Plaintiff's boots because of Plaintiff's complaints of foot problems and ill fitting boots. 

Doc. 23, p. 6. Plaintiff said that after submitting many complaints, he finally received a

medical pass for proper boots, and on March 15, 2010, Plaintiff was issued a "properly

fitting pair of boots" by Pride, where Plaintiff was assigned to work. It is alleged that

Defendant Bozeman then seized those boots on March 30th, at the direction of

Defendant Young. Id. 

Plaintiff's factual allegations must be accepted as true at this stage of the

proceedings. Plaintiff alleged that the seizure of Plaintiff's boots was done because of

his grievances and complaints, which infers that Defendant Young knew of Plaintiff's

complaints about prior wrong boot sizes and injuries to his feet, and had knowledge that

Plaintiff is diabetic and suffers from diabetic foot problems. In particular, Plaintiff alleged

that on March 12, 2010, he filed a grievance which advised that Plaintiff experienced the

painful loss of toe nails, a severe foot and toe fungus, burning and peeling skin,

numbness, and foot discoloration. Doc. 23, p. 6. It must be accepted that Defendant

Young knew of Plaintiff's medical condition from the grievances and was subjectively

aware of a potentially serious medical problem. By Defendant Young's role in the

seizure of Plaintiff's boots, it raises a plausible claim that the Defendant did so

intentionally to cause Plaintiff pain and suffering, and exacerbate Plaintiff's problems. 

Plaintiff has sufficiently alleged that he had an objectively serious medical need as a

diabetic inmate with ongoing foot problems, that Defendant Young was aware of those

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problems, and that by seizing Plaintiff's boots, he was intentionally acting to create more

pain. It cannot be said at this stage in the proceedings that Plaintiff has failed to state

an Eighth Amendment claim against Defendant Young for seizing Plaintiff's boots, and

the motion to dismiss should be denied on this ground.

Plaintiff also has alleged that Defendant Young's actions were taken due to

Plaintiff's having filed grievances. "It is well established that a prisoner's constitutional

rights are violated if adverse action is taken against him in retaliation for the exercise of

his First Amendment rights." Pate v. Peel, 256 F.Supp.2d 1326, 1336 (N.D. Fla. 2003),

citing Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003); Mitchell v. Farcass, 112

F.3d 1483, 1490 (11th Cir.1997); Wright v. Newsome, 795 F.2d 964 968 (11th Cir.

1986); Adams v. James, 784 F.2d 1077, 1080 (11th Cir. 1986). Prison officials may not

infringe on an inmate's First Amendment right to petition the government for a redress

of his grievances with a practice that is "not reasonably related to legitimate penological

objectives" or take certain actions "with the intent of chilling that First Amendment right." 

Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995), citing Turner v. Safley, 482 U.S. 78,

85-89, 107 S.Ct. 2254, 2260-61, 96 L.Ed.2d 64 (1987), and Wildberger v. Bracknell, 869

F.2d 1467, 1468 (11th Cir. 1989); see also Pate, 256 F.Supp.2d at 1336. Retaliation in

the prison setting may be established by demonstrating that a prison official took

adverse actions against an inmate because he filed a grievance. See Farrow, 320 F.3d

at 1248; Pate, 256 F.Supp.2d at 1336.

Plaintiff has alleged that he made numerous complaints and that he suffered an

adverse action because of those grievances. Plaintiff has alleged the seizure of

beneficial boots, and then when he was able to obtain another pair of boots from Pride

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where he worked, he was terminated from Pride. Construed liberally, and accepting

these allegations as true, Plaintiff has stated a claim. 

Defendant argues that as a single officer, he is not responsible for changing

Plaintiff's job assignments. Doc. 70, pp. 13-14. At the summary judgment stage, such

facts may be sufficient to show Plaintiff cannot support this claim, but at the initial

pleading stage, Plaintiff has alleged a plausible First Amendment claim in the

termination of his work assignment. 

The due process claim cannot succeed, however. Plaintiff claimed that his due

process rights were violated and, although not entirely clear, it appears that this claim is

based on Plaintiff's assertion that he was not given a "fair and unincumbered [sic]

review of administrative grievances" and when he was terminated from his Pride work

assignment which punished Plaintiff "by loss of finances," doc. 23, pp. 11-12, and

denied Plaintiff the right "to challenge punishment." Id., at 7. Because an inmate does

not have a constitutionally protected interest in a particular job classification, Plaintiff is

not entitled to a hearing prior to a change in his work assignment. See Adams v.

James, 784 F.2d 1077, 1079 (11th Cir. 1986). An inmate has no independent

constitutional right to a particular prison job. Williams v. Sumner, 648 F.Supp. 510 (D.

Nev. 1986). Plaintiff also has a right to petition for redress of grievances and

complaints, but Plaintiff has no protected right to an unencumbered review of his

grievances. Furthermore, Plaintiff has not shown that his grievances were not fairly

considered by any Defendant. The due process claims must fail as a matter of law.

Claim against Defendant Bozeman

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The claims against Defendant Bozeman are that he gave Plaintiff boots that were

too large, and contrary to the medical pass. Doc. 23, p. 6. Defendant Bozeman

threatened Plaintiff to stop complaining. Plaintiff complained about the size of the boots

and that they were contrary to medical orders, and it may be inferred that Defendant

Bozeman ignored Plaintiff's complaint. Id. Defendant Bozeman then twice seized

Plaintiff's properly fitting boots. Id., at 6-7. 

These claims against Defendant Bozeman survive the motion to dismiss for the

same reasons. The inference is that Defendant Bozeman seized the properly fitting

boots intentionally to cause Plaintiff pain and suffering, and as retaliation as Defendant

Bozeman alleged threatened Plaintiff "not to complain anymore!" Id., at 6. The motion

to dismiss should be denied as to Defendant Bozeman.

Accordingly, it is RECOMMENDED:

1. That Defendants' motion to dismiss, doc. 70, be GRANTED in part and

DENIED in part.

2. That Plaintiff's due process claims be DISMISSED for failure to state a claim.

3. That the claims against Defendant Edouard and Baldridge be DISMISSED for

failure to properly exhaust administrative remedies.

4. That the motion be DENIED with regard to Plaintiff's First and Eighth

Amendment claims against Defendants Young and Bozeman in their individual

capacities only.

5. That this case be REMANDED for further proceedings. 

IN CHAMBERS at Tallahassee, Florida, on February 22, 2012.

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 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

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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