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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

HENRY JAMES WIMBERLY, 

 Plaintiff,

vs. 5:10cv301/RS/MD

NORTHWEST FLORIDA

RECEPTION CENTER, et al.

 Defendants.

REPORT AND RECOMMENDATION

This cause is before the court upon plaintiff’s civil rights complaint filed pursuant to

Title 42 U.S.C. §1983 in which he names the Northwest Florida Reception Center Annex

and the Holmes Correctional Institution, the Florida Department of Corrections, and two

wardens as defendants. From a review of this complaint, it is evident that plaintiff cannot

present a viable claim for relief under section 1983 as to some or all of the named

defendants, and that he has failed to exhaust his administrative remedies with respect to

his claims. 

Plaintiff is an inmate currently incarcerated at the Reception and Medical Center. 

His initial receipt date into the DOC was September 30, 2010. He complains about the 1

conditions of confinement within the Department of Corrections generally, and about

specific medical needs of his that have not been properly addressed. With respect to his

individualized needs, plaintiff contends that he has received inadequate medical care for

pre-existing conditions including high blood pressure, kidney stones, prostate and heart

problems. As to the general conditions at the prison, plaintiff asserts that inmates are

See http://www.dc.state.fl.us/ActiveInmates/detail.asp?Bookmark=2&From=list&SessionID=654266292

1
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issued inadequate and ill-fitting clothing and insufficient personal hygiene items, that they

are given dirty or bug infested bedding and there are no sprinkler systems in the dorms. 

Plaintiff further contends that the temperature in the prison dorms is not properly regulated,

that the prison food, which is prepared in roach infested kitchens, is of poor quality and

taste and that inmates are not treated with respect.

In any section 1983 action, the initial inquiry must focus on whether two essential

elements are present:

1. whether the conduct complained of was committed by a person acting

under color of state law; and

2. whether this conduct deprived a person of rights, privileges, or immunities

secured by the Constitution or laws of the United States.

West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988) (citations

omitted); Holmes v. Crosby, 418 F.3d 1256, 1258 (11 Cir. 2005) (citing West). th

As an initial matter, the Northwest Florida Reception Center Annex and the Holmes

Correctional Institution are not proper defendants in this action. Neither has an

independent corporate existence. Instead, they are part of the state correctional system

operated by the Department of Corrections. See § 944.02(1), Fla. Stat. The Department

of Corrections has supervisory and protective care, custody and control over all matters

pertaining to all prisons and other state correctional institutions, including NFRCA and HCI.

See § 945.025, Fla. Stat. Accordingly, they are not suable entities, and claims against them

are not viable. 

With respect to the plaintiff’s remaining claims, it is clear that he has not exhausted

his administrative remedies. Chapter 33-103 of the Florida Administrative Code provides

for a multi-tiered grievance procedure. Except in certain limited cases, inmates are to first

utilize an informal grievance procedure. Ch. 33-103.005, F.A.C. The next level of review

is a formal grievance to the warden or assistant warden. Ch. 33-103.006, F.A.C. Finally,

an inmate may appeal to the Office of the Secretary. Ch. 33-103.007, F.A.C. In order to

exhaust the grievance process, an inmate must avail himself of all levels of review. The

filing of untimely grievances does not satisfy the exhaustion requirement. Johnson v.

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Meadows, 418 F.3d at 1159. The plaintiff in this case did not exhaust his administrative

remedies, as there is no indication that he has appealed the results of his formal

grievances to the Office of the Secretary. Under the pre-PLRA version of § 42 U.S.C.A. 2

§ 1997e, courts had the option to stay actions not administratively exhausted, if the court

found this to be "appropriate and in the interests of justice." 42 U.S.C. §

1997e(a)(1)(1994)(amended 1996). By contrast, the current version provides that:

(a) Applicability of administrative remedies

No 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.A. § 1997e(a) (West Supp.1997). Therefore, the plain language of the statute

makes the exhaustion requirement a mandatory prerequisite to filing suit. See Leal v.

Georgia Dept. Of Corrections, 245 F.3d 1276 (11 Cir. 2001); Higginbottom v. Carter, 223 th

F.3d 1259, 1261 (11 Cir. 2000); Miller v. Tanner, 196 F.3d 1190, 1193 (11 Cir. 1999); th th

Harris v. Garner, 190 F.3d 1279, 1286 (11 Cir. 1999); Alexander v. Hawk, 159 F.3d 1321, th

1329 (11 Cir. 1998). The exhaustion requirement applies to all inmate suits about any th

aspect of prison life, including cases in which plaintiffs seek only monetary damages.

Woodford v. Ngo, 126 S.Ct. 2378, 2382, 165 L.Ed.2d 368 (2006); Porter v. Nussle, 534

U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 121

S.Ct.1819, 1825, 149 L.Ed.2d 958 (2001). Both the Supreme Court and the Eleventh

Circuit have recognized myriad policy reasons favoring exhaustion. In Woodford v. Ngo,

the Supreme Court recognized the general benefits of exhaustion as follows:

First, exhaustion protects “administrative agency authority.” Exhaustion gives

an agency “an opportunity to correct its own mistakes with respect to the

The institutional grievances filed along with the complaint reflect that they were filed in November of 2010,

2

which would not have afforded plaintiff time to complete the grievance appeal process before filing his

complaint on November 15, 2010. Plaintiff notes in an attachment page to his complaint marked “Conclusion”

that he used the prison grievance system in both institutions and wrote two letters to the FDOC Insurance,

including a notice of intent to sue. This is not equivalent to proper exhaustion of the prison grievance process.

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programs it administers before it is haled into federal court,” and it discourages

“disregard of [the agency's] procedures.”

Second, exhaustion promotes efficiency. Claims generally can be resolved

much more quickly and economically in proceedings before an agency than

in litigation in federal court. In some cases, claims are settled at the

administrative level, and in others, the proceedings before the agency

convince the losing party not to pursue the matter in federal court. “And even

where a controversy survives administrative review, exhaustion of the

administrative procedure may produce a usefulrecord for subsequent judicial

consideration.”

Woodford v. Ngo, 126 S.Ct. at 2385 (internal citations omitted). The Eleventh Circuit has

also described seven policy reasons favoring an exhaustion requirement:

(1) to avoid premature interruption of the administrative process; (2) to let the

agency develop the necessary factual background upon which decisions

should be based; (3) to permit the agency to exercise its discretion or apply

its expertise; (4) to improve the efficiency of the administrative process; (5)

to conserve scarce judicial resources, since the complaining party may be

successful in vindicating rights in the administrative process and the courts

may never have to intervene; (6) to give the agency a chance to discover and

correct its own errors; and (7) to avoid the possibility that frequent and

deliberate flouting of the administrative processes could weaken the

effectiveness of an agency by encouraging people to ignore its procedures.

Johnson v. Meadows, 418 F.3d 1152, 1156 (11 Cir. 2005) (quoting Alexander v. Hawk,

th

159 F.3d 1321, 1327 (11 Cir. 1998)). The exhaustion process is mandatory, and cannot th

be waived even when the process is futile or inadequate. Bryant v. Rich, 530 F.3d 1368,

1373 (11 Cir. 2008) (citing Alexander, 159 F.3d at 1325-26); Jones v. Nassau County th

Correctional Officers, 2008 WL 1746063 (citing Higginbottom v. Carter, 223 F.3d 1259,

1261 (11 Cir. 2000)) (alleged inadequacy of grievance procedure does not excuse th

prisoner’s failure to comply with it). 

Even though plaintiff may have pursued and ultimately completed exhaustion of his

administrative remedies since his case was filed, it would still be subject to dismissal,

because he failed to exhaust these remedies before suit was commenced. Johnson v.

Jones, 340 F.3d 624, 627 (8 Cir. 2003) (“court must look to the time of filing, not the time th

the district court is rendering its decision, to determine if exhaustion has occurred” and “[i]f

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exhaustion was not completed at the time of filing, dismissal is mandatory”); Jackson v.

District of Columbia, 254 F.3d 262, 268-69 (D.C.Cir.2001) (rejecting argument that §

1997e(a) “permits suit to be filed so long as administrative remedies are exhausted before

trial”); Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6 Cir. 2005) (quoting Freeman v. Francis,

th

196 F.3d 641, 645 (6 Cir.1999) (“The prisoner, therefore, may not exhaust administrative th

remedies during the pendency of the federal suit.”)); Perez v. Wisconsin Department of

Corrections, 182 F.3d 532, 535 (7 Cir. 1999) (“[A] suit filed by a prisoner before th

administrative remedies have been exhausted must be dismissed; the district court lacks

discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison

remedies before judgment.”); see also Nyhuis v. Reno, 204 F.3d 65, 71 (3 Cir. 2000) rd

(“Allowing the federal courts to fashion prison remedies before the prisons themselves

have had the opportunity (and have the ability) to do so, is surely not what Congress

intended when it enacted the [Prison Litigation Reform Act].”); Alexander v. Hawk, 159

F.3d 1321, 1326 (11 Cir.1998) (“[E]xhaustion is now a pre-condition to suit.... Mandatory th

exhaustion is not satisfied by a judicial conclusion that the requirement need not apply.”);

Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir.1997) (“Congress specifically amended the

statute to ... requir[e] federal prisoners to exhaust all administrative remedies before

bringing ... a claim under 42 U.S.C. § 1983.”)). Plaintiff cannot cure the defect in his failure

to exhaust his administrative remedies by post-filing exhaustion. Thus, he has failed to

state a claim and his case must be dismissed without prejudice. Rivera v. Allin, 144 F.3d

719, 731 (11 Cir. 1998) (citation omitted) (“A claim that fails to allege the requisite th

exhaustion of remedies is tantamount to one that fails to state a claim upon which relief

may be granted.”).

Even if he had exhausted his administrative remedies, he cannot state a claim

against the named defendants with respect to his Eighth Amendment medical claim. The

Eighth Amendment governs “the treatment a prisoner receives in prison and the conditions

under which he is confined.” Hellig v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125

L.Ed.2d 22 (1993). Although the United States Constitution does not require comfortable

prisons, neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832, 114

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S.Ct. 1970, 128 L.Ed.2d 811 (1994). However, “[n]ot every governmental action affecting

the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny.” Whitley

v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). After incarceration,

only the ‘unnecessary and wanton infliction of pain’ . . . constitutes cruel and unusual

punishment forbidden by the Eighth Amendment. Ingraham v. Wright, 430 U.S. 651, 670,

97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97

S.Ct. 285, 50 L.Ed.2d 251 (1976) (citations omitted)).

A prison official’s deliberate indifference to the serious medical needs of a prisoner

constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth

Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Campbell v. Sikes, 169 F.3d

1353, 1363 (11 Cir. 1999). “However, not ‘every claim by a prisoner that he has not th

received adequate medical treatment states a violation of the Eighth Amendment.’” Farrow

v. West, 320 F.3d 1235, 1243 (11 Cir. 2003) (quoting McElligott v. Foley, 182 F.3d 1248, th

1254 (11 Cir. 1999) (citation omitted)); see also Estelle, 429 U.S. at 106 (“Medical

th

malpractice does not become a constitutional violation merely because the victim is a

prisoner.”). The inadvertent or negligent failure to provide adequate medical care “cannot

be said to constitute ‘an unnecessary and wanton infliction of pain.’” Estelle, 429 U.S. at

105-06. Furthermore, because society does not expect that prisoners will have unqualified

access to health care, deliberate indifference to medical needs amounts to an Eighth

Amendment violation only if those needs are “serious.” Hudson v. McMillian, 503 U.S. 1,

9 , 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992). To show that a prison official acted with

deliberate indifference to serious medical needs, a plaintiff must satisfy both an objective

and a subjective inquiry. Farrow, supra; Taylor v. Adams, 221 F.3d 1254, 1257 (11 Cir. th

2000); Adams v. Poag, 61 F.3d 1537, 1543 (11 Cir. 1995). First, a plaintiff must set forth th

evidence of an objectively serious medical need. Taylor, 221 F.3d at 1258; Adams, 61

F.3d at 1543. Second, a plaintiff must prove that the prison official acted with an attitude

of “deliberate indifference” to that serious medical need. Farmer v. Brennan, 511 U.S. at

834 (1994); McElligott, 182 F.3d at 1254; Campbell, 169 F.3d at 1363. Third, as with any

tort claim, he must show that the injury was caused by the defendant's wrongful conduct.

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Goebert v. Lee County, 510 F.3d 1312, 1326 (11 Cir. 2007) (citing Hale v. Tallapoosa th

County, 50 F.3d 1579, 1582 (11 Cir. 1995)). No liability arises for an official’s failure to th

alleviate a significant risk that he should have perceived but did not, and imputed or

collective knowledge cannot serve as the basis for a claim of deliberate indifference. 

Burnette v. Taylor, 533 F.3d 1325, 1331 (11 Cir. 2008) (citations omitted). In this case th

although plaintiff has identified numerous medical needs that may very well qualify as

“serious,” he has not identified a state actor or actors who is directly responsible for the

alleged violation of his Eighth Amendment rights with respect to those needs. To the

extent he attempts to hold the wardens of HCI and NFRC accountable for the specific

medical deprivations he claims to have suffered, there is no apparent basis for their liability. 

Respondeat superior, without more, does not provide a basis for recovery under section

1983. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); 

Goebert v. Lee County, 510 F.3d 1312, 1331 (11 Cir. 2007); Cottone v. Jenne, 326 F.3d th

1352 (11 Cir. 2003); Harris v. Ostrout, 65 F.3d 912, 917 (11 Cir. 1995). “Supervisory th th

liability under § 1983 occurs either when the supervisor personally participates in the

alleged unconstitutional conduct or when there is a causal connection between the actions

of a supervising official and the alleged constitutional deprivation.” Cottone v. Jenne, 326

F.3d 1352, 1360 (11 Cir. 2003); see also Marsh v. Butler County, 268 F.3d 1014, 1035

th

(11 Cir. 2001); Swint v. City of Wadley, Alabama, 51 F.3d 988, 999 (11 Cir. 1995); Rivas th th

v. Freeman, 940 F.2d 1491, 1495 (11 Cir. 1991). No such connection is apparent from th

the complaint. 

In order to state a claims challenging conditions of confinement under the Eighth

Amendment plaintiff must demonstrate an infliction of pain “without any penological

purpose” or an “unquestioned and serious deprivation of basic human needs” such as

medical care, exercise, food, warmth, clothing, shelter, or safety. Rhodes v. Chapman,

452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); see also Hamm v. DeKalb

County, 774 F.2d 1567, 1571-72 (11 Cir. 1985), cert. denied, 475 U.S. 1096, 106 S.Ct. th

1492, 89 L.Ed.2d 894 (1986). As the Supreme Court stated in Rhodes, “the Constitution

does not mandate comfortable prisons, and prisons ... which house persons convicted of

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serious crimes, can not be free of discomfort.” Id. at 349, 101 S.Ct. at 2400. Moreover,

“[t]o the extent that such conditions are restrictive and even harsh, they are part of the

penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct.

at 2399; Chandler v. Crosby, 379 F.3d 1278, 1288-89 (11 Cir. 2004); Veteto v. Miller 829 th

F.Supp. 1486,1496 (M.D. Pa. 1992)(institution where plaintiff was housed is “a maximum

security federal penitentiary, not a restaurant, a haberdashery or a health spa.”). 

The deprivation of food constitutes cruel and unusual punishment only if it denies

a prisoner the “minimal civilized measure of life's necessities.” Wilson v. Seiter, 501 U.S.

294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). It is well-established that inmates must

be provided nutritionally adequate food, “prepared and served under conditions which do

not present an immediate danger to the health and well being of the inmates who consume

it.” Shrader v. White, 761 F.2d 975 (4 Cir. 1985) (quoting Ramos v. Lamm, 639 F.2d 559,

th

571 (10 Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981)); th

French v. Owens, 777 F.2d 1250, 1255 (7 Cir. 1985). The food need not be “tasty or th

aesthetically pleasing” but merely “adequate to maintain health.” Keenan v. Hall, 83 F.3d

1083, 1091 (9 Cir.1996), amended by 135 F.3d 1318 (9 Cir. 1998); Lunsford v. Bennett,

th th

17 F.3d 1574, 1580 (7 Cir. 1994); LeMaire v. Maass, 12 F.3d 1444, 1456 (9 Cir.1993); th th

Green v. Ferrell, 801 F.2d 765, 770 (5 Cir. 1986) (quoting Smith v. Sullivan, 553 F.2d 373,

th

380 (5 Cir. 1977)); Cunningham v. Jones, 567 F.2d 653, 659-60 (6 Cir. 1977). Even if th th

plaintiff could amend to state a claim under the above standards, his failure to exhaust his

administrative remedies before filing suit subjects these claims to dismissal as well. 

Rivera, supra.

Plaintiff has moved for a preliminary and permanent injunction (doc. 4). The

granting or denial of a temporary restraining order or preliminary injunction rests in the

discretion of the district court. Johnson v. Radford, 449 F.2d 115 (5 Cir. 1971). The th

district court, however, must exercise its discretion in the light of whether: 

1. There is a substantial likelihood that plaintiff will prevail on the merits;

2. There exists a substantial threat that plaintiff will suffer irreparable 

injury if the injunction is not granted;

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3. The threatened injury to plaintiff outweighs the threatened harm

injunction will do to the defendant; and 

4. The granting of the preliminary injunction will not disturb the public 

interest.

Siegel v. Lepore, 234 F.3d 1163, 1176 (11 Cir. 2000); Tefel v. Reno, 180 F.3d 1286, 1295

th

(11 Cir. 1999); Johnson v. United States Department of Agriculture, 734 F.2d 774 (11 th th

Cir. 1984); Canal Authority of State of Florida v. Callaway, 489 F.2d 567 (5 Cir. 1974). th

Furthermore, “[a] preliminary injunction is an extraordinary and drastic remedy not to be

granted unless the movant clearly establishes the burden of persuasion as to all four

elements.” Siegel, supra; All Care Nursing Service v. Bethesda Memorial Hosp., 887 F.2d

1535, 1537 (11 Cir. 1989) (quotations omitted). th

Federal courts are normally reluctant to interfere with matters of internal prison

administration since they are ill-equipped to do so. Lewis v. Casey, 518 U.S. 343, 386-387

n.8, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (citing Procunier v. Martinez, 416 U.S. 396,

404-06, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds by Thornburgh

v. Abbott, 490 U.S. 401 (1989); Newman v. Alabama, 683 F.2d 1312, 1320 (11 Cir. 1982), th

cert. denied, 460 U.S. 1083 (1983); Wright v. Rushen, 642 F.2d 1129, 1132 (9 Cir.1981)

th

(courts should avoid enmeshing themselves in the minutiae of prison operations in the

name of the Eighth Amendment). The very nature of lawful incarceration “brings about the

necessary withdrawal or limitation of many privileges and rights . . . .” Pell v. Procunier,

417 U.S. 817, 822 (1974), quoting Price v. Johnston, 334 U.S. 266, 285 (1948). As the

Supreme Court stated in Bell v. Wolfish, 441 U.S. 520, 547 (1979) (citations omitted):

[T]he problems that arise in the day-to-day operation of a

corrections facility are not susceptible of easy solutions. 

Prison administrators therefore should be accorded wideranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional

security.

The purpose of preliminary injunctive relief is to preserve the status quo between the

parties and to prevent irreparable injury until the merits of the lawsuit itself can be

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reviewed. Devose v. Herrington, 42 F.3d 470, 471 (8 Cir. 1994); All Care Nursing Service, th

Inc. v. Bethesda Memorial Hospital, 887 F.2d 1535, 1537 (11 Cir. 1989); United States th

v. State of Alabama, 791 F.2d 1450, 1457 n.9 (11 Cir. 1986), cert. denied, 479 U.S. 1085, th

107 S.Ct. 1287, 94 L.Ed.2d 144 (1987). This necessitates that the relief sought in the

motion be closely related to the conduct complained of in the actual complaint. Devose,

42 F.3d at 471; Penn v. San Juan Hosp., 528 F.2d 1181, 1185 (10 Cir. 1975). Also the th

persons from whom the injunctive relief is sought must be parties to the underlying action. 

See In re Infant Formula Antitrust Litigation, MDL 878 v. Abbott Laboratories, 72 F.3d 842,

842-43 (11 Cir. 1995). Because plaintiff’s complaint is subject to dismissal for his failure th

to exhaust, his motion for injunctive relief should be denied. His motion for an emergency

order (doc. 5) should be denied for the foregoing reasons as well.

Finally, plaintiff has filed a motion for appointment of counsel. Title 28 U.S.C. §

1915 grants general authority for the appointment of counsel as a matter of discretion in

purely private, civil litigation, and there is no express provision for the payment of fees or

reimbursement of costs, as in the case of criminal prosecutions and habeas corpus

proceedings. Killian v. Holt, 166 F.3d 1156 (11 Cir. 1999). Indigent civil litigants do not th

have a constitutional or statutory right to appointed counsel. Bass v. Perrin, 170 F.3d

1712, 1720 (11 Cir. 1999). The difficulties presented to the pro se plaintiff are typical of th

those faced by other incarcerated litigants. Furthermore, plaintiff has already shown an

above average ability in presenting his case to the court. Regardless, based on this court’s

recommendation that this case be dismissed this motion should also be denied. 

Accordingly, it is respectfully RECOMMENDED:

1. That the plaintiff’s case be dismissed without prejudice pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim due to plaintiff’s failure to exhaust his

administrative remedies. 

2. Plaintiff’s motion for appointment of counsel (doc. 3) be denied.

3. Plaintiff’s motion for injunctive relief (doc. 4) be denied.

4. Plaintiff’s motion for emergency order (doc. 5) be denied.

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DONE AND ORDERED this 4 day of January, 2011. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Case No: 5:10cv301/RS/MD