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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GERNARD CHESTNUT,

Plaintiff,

vs. Case No. 4:11cv305-WS/CAS

SERGEANT JAMES McCLENDON, 

et al.,

Defendants.

 /

AMENDED REPORT AND RECOMMENDATION

The pro se Plaintiff filed a fourth amended complaint, doc. 13, and after the eight

Defendants were served, docs. 25-40, they filed an Answer. Doc. 41. Defendants' first

affirmative defense in the Answer was that Plaintiff failed to exhaust administrative

remedies, doc. 41, at 2. Defendants were directed to clarify the defense or withdraw it,

doc. 46, and in response, Defendants filed a motion to dismiss on the basis that Plaintiff

failed to exhaust administrative remedies. Doc. 47. 1

 After considering Plaintiff's response in opposition to the motion to dismiss, 1

doc. 49 (in which Plaintiff submitted a copy of a Note from Prisoner to demonstrate that

he exhausted his claim against Defendant McClendon), Defendant McClendon

withdrew the motion as to Plaintiff's claim concerning the August 12, 2010, incident

only. 
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On July 19, 2012, a report and recommendation was entered on the Defendants

2

motion to dismiss. Doc. 52. It was concluded that Plaintiff failed to exhaust his claims

against the eight named Defendants for the use of excessive force on April 26, 2011.

Id. Plaintiff filed objections to that report and recommendation which, in particular,

contained as an exhibit a copy of a grievance dated April 30, 2011, written on the Note

from Prisoner form in which Plaintiff complained about the April 26, 2011, incident. 

Doc. 53. On August 10, 2012, Senior District Judge William Stafford determined that

Plaintiff "raised a factual issue regarding exhaustion" and remanded the case for further

consideration of that issue. Doc. 54. 

An evidentiary hearing was scheduled to resolve the exhaustion issue in light of

Plaintiff's objection. Docs. 60, 61. The hearing was held on October 23, 2012, and

3

this amended report and recommendation is entered on the pending motion to dismiss,

doc. 47. The prior report and recommendation, doc. 52, is vacated by a separate Order

entered this day. At the hearing, Defendants preceded first, having the burden of

production, and Defendants' exhibits 1-6 were admitted in evidence without objection.

 The report and recommendation did not address Plaintiff's claim that Defendant 2

McClendon used excessive force against Plaintiff on August 12, 2010.

 In Bryant v. Rich, 530 F.3d 1368 (11th Cir.), cert. denied, 129 S.Ct. 733 (2008), 3

the Eleventh Circuit directed that 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. Thus, evidence could be

presented to support or refute a contention that a prisoner has not exhausted the

grievance process because 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 record on affidavits submitted by the parties." 

Bryant, 530 F.3d at 1377, n.16.

Case No. 4:11cv305-WS/CAS
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Plaintiff's exhibits 1 and 3 were admitted in evidence without objection and exhibits 2

and 4 were admitted in evidence over a relevance objection. Plaintiff testified on his

own behalf and Defendants called the following as witnesses: Plaintiff; Karol Beckowitz,

records custodian at the Leon County Jail (hereinafter LCJ); Michael Buettner, case

management technician at the LCJ; and Captain Kimberley Petersen, Bureau

Commander at the LCJ. See doc. 72. 

Plaintiff's claims

In the fourth amended complaint, Plaintiff alleged claims against eight

Defendants for the use of excessive force. Doc. 13, at 9. Plaintiff alleged that force

was unnecessarily used against him on August 12, 2010, and then again on April 26,

2011. Id. at 7-8. Because Defendant McClendon withdrew the motion to dismiss

concerning the August incident, this Amended Report and Recommendation concerns

only the April date in which all eight Defendants allegedly used unnecessary and

excessive force against Plaintiff.

Plaintiff alleged that on April 26, 2011, Defendant McClendon entered Plaintiff's

cell and threatened him because Plaintiff had been "requesting a shower." Id.

McClendon removed Plaintiff from his cell and took him to another cell, depriving

Plaintiff of his property and mattress. Id. While in this new cell, Plaintiff claimed that

the fire sprinkler mysteriously "malfunctioned," flooding his cell with water. Id. at 7-8. 

McClendon arrived on scene pointing his taser at Plaintiff and demanding that Plaintiff

lay face down. Id. at 8. Plaintiff claims he attempted to comply and got down on his

knees "to keep from drowning" and contends he posed no threat. Id. At that time, the

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other named Defendants "slammed" Plaintiff, punching him and kicking him, and

Defendant McClendon then tased Plaintiff "excessively." Id. 

Motion to Dismiss 

The motion to dismiss, doc. 47, asserted that Plaintiff did not exhaust

administrative remedies as required by section 1997e(a) of the Prison Litigation Reform

Act. Doc. 47, at 3. Defendants submitted an affidavit which stated that following the

April 26, 2011, incident, Plaintiff did not submit any notes, written complaints or

grievances concerning that event. Id. at 6. Defendants contend that Plaintiff has filed

many grievances and Notes from Prisoner in the past, that he is aware of the

procedures to seek administrative remedy, but did not do so on or about the April 26,

2011, incident. Id. at 5-6.

Attached to the motion is an affidavit from Kimberley Petersen, a correctional

officer employed by the Leon County Sheriff's Office. Doc. 47, ex. 1. Officer Petersen

explains that the Jail's grievance procedure is contained in the Leon County Jail Inmate

Handbook, and the Handbook is available in each housing pod for inmates to review. 

Id. at 1. The first step in the grievance process is for an "inmate to write his complaint

on a 'Note from Prisoner' duplicate form and submit it to the Pod Officer for routing to

the appropriate staff." Id. at 2. A response is provided to the inmate and a copy placed

in the inmate's file. Id. If an inmate is not satisfied with the response provided, "he may

file a formal Grievance by writing a second Note from Prisoner to the Jail Administrator

describing the initial complaint and attaching a copy of the original [N]ote from

Prisoner." Id. The Jail Administrator responds to the formal grievance, and a copy is

placed in the inmate's file. Id.; see also doc. 47-1, at 23-25 (Inmate Handbook). 

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During the hearing, Petersen testified that the Note from Prisoner duplicate form

contains a white and attached yellow page which is a duplicate. The first step in

advising the Jail of a problem or issue is done by submitting a "complaint" on the Note

from Prisoner form. Petersen explained the process of how complaints are received,

routed, responded to, and then filed. She testified that there is supposed to be a

response on the bottom of the form, but if there is not enough room, the responding

officer will use an attachment. The yellow copy of the Note from Prisoner form is

returned to the inmate and the white copy of the Note to Prisoner form is filed in the

inmate's file. If the inmate is not satisfied with first answer, he will attach a copy of the

yellow response to a new Note from Prisoner form, and will submit that as a

"grievance." 

Regarding the April incident, Petersen explained in her affidavit that a "careful

and diligent review" was made of Plaintiff's file and there was no record "of any Notes

from Prisoner or other written complaints from the Plaintiff in accordance with the

inmate grievance procedure relating to the incident that allegedly occurred on April 26,

2011." Id. at 2-3. Plaintiff had "submitted numerous Notes from Prisoner forms and

grievances relating to other incidents occurring at the jail but none of them . . . related

to" the April 2011 incident. Id. at 3. 

Plaintiff's Response

In Plaintiff's response to the motion to dismiss, Plaintiff states that after the

alleged assault he was placed into a restraint chair. Doc. 49 at 3. Captain Petersen is

alleged to have told Plaintiff that criminal charges would be filed against him, and

Plaintiff said that her "decision was 'non-appealable' leaving Plaintiff with "no available

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remedy" although Plaintiff said he "still attempted to grieve this incident which was only

answered by ignoring [his] complaints." Id. 

The Report and Recommendation

The first Report and Recommendation, doc. 52, was entered on July 19, 2012.

The Report and Recommendation made this finding:

At the outset, Plaintiff claims that he was unable to exhaust and had "no

available remedy." Yet, Plaintiff confuses Captain Petersen's statement that

criminal charges would be filed against Plaintiff with the underlying events of the

use of force. Plaintiff was not precluded from filing a Note from Prisoner

concerning the alleged use of force by either Petersen's statement or his

temporary placement in the restraint chair. Once Plaintiff was released from the

chair, he could have submitted grievances on this issue. 

Plaintiff then contradicts himself in the response by stating that he "still

attempted to grieve" the incident, but he provides no support for that assertion. 

Plaintiff was able to provide copies of other grievances, see doc. 49-1, but he

has not presented even one grievance to show he grieved the April 2011 use of

force. The procedures demonstrate that the grievance forms are duplicate forms

and, thus, Plaintiff should have had a copy of his alleged grievances to submit. 

doc. 52. Following that Report and Recommendation, Plaintiff filed an Objection and,

for the first time in this case, filed a copy of a "grievance" allegedly written on April 30,

2011, concerning the use of force on April 26, 2011. Doc. 53. That grievance was

central to Plaintiff's case and of primary importance in resolving the issue of exhaustion.

Evidence from the Hearing

At the hearing, Plaintiff testified that he understood the grievance process. 

Plaintiff admitted that he filed numerous grievances and agreed that in the past two

years, it could be true that he filed as many as 300 grievances or Note to Prisoner

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requests. Plaintiff is, therefore, not inexperienced or unfamiliar with the grievance 4

process.

There was also testimony from Michael Buettner who is the case management

technician for the LCJ. Buettner testified about the grievance process and how

grievances are finally located in an inmate's file. Buetter explained that after an inmate

creates a Note from Prisoner and it gets answered, it is forwarded to him and he puts it

in the appropriate inmate's file. Buetter does not recall ever seeing any Note from

Prisoner forms that were not responded to in some form. Buetter said that if he came

across one, he would send it back for a response.

Plaintiff was equivocal on receiving responses to his complaints. He first testified

that he had never gotten any responses, but upon further questioning said he has just

recently begun getting responses. Plaintiff also first testified that jail officials do not

return the yellow duplicate page back to him, but instead often type up a memorandum5

and have him sign for it. Plaintiff said at first that he did not have a single yellow copy,

but then ultimately admitted he had received yellow copies. Defendant Petersen also

testified that she has seen Plaintiff's housing cell and has seen yellow sheets included

in Plaintiff's stack of grievances and Notes from Prisoner. 

While Plaintiff asserted over and over again that officers at the jail do not always

follow their own procedures and do not always provide him with the yellow duplicate

 Testimony from the records custodian, Karol Beckowitz, showed that since 4

2010, Plaintiff has filed 468 Notes from Prisoner grievances and complaints which are

located in his inmate file. 

 Testimony from Petersen explained that if the response is lengthy to a 5

complaint, a memorandum will be given to the inmate as the response.

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page of his grievance, Plaintiff made an admission that negated his claim. Plaintiff

testified that according to the jail procedure, if he does not get a response back to his

grievance, he has "to write another one." Plaintiff said that he must first submit a

complaint, and if you do not get a response that resolved the issue, he must file a

second grievance. Plaintiff acknowledged that if he did not receive a response, he

would not feel the issue had been resolved and he would be required to file a second

grievance. Plaintiff complained that the rules require an inmate to attach the first Note

from Prisoner form to the second grievance, but Plaintiff argued that he cannot do that

if jail officials do not send the first one back to him when they do not respond. Plaintiff

admitted, however, that he often makes copies of his complaints and, ergo, could have

attached the copy to a "grievance" in which he complained that his complaint was not

satisfactorily resolved. Plaintiff also testified that he attempted to send two or three

more copies of the Note to Prisoner complaint dated April 30, 2011, but said he did not

receive responses to those either. Yet Plaintiff admitted the additional copies he 6

submitted were identical to the first Note to Prisoner form he submitted, titled at the top

of the page as a "Grievance." Thus, Plaintiff may have submitted multiple copies of the

initial complaint, but he admitted that he did not submit a Note to Prisoner which would

operate as the second step of the grievance process. Furthermore, while Plaintiff titled

his Note to Prisoner as a "grievance," because it was only the first step in the

administrative process, it acted as a "complaint" instead. The crucial admission by

Plaintiff on this issue, however, came when Plaintiff admitted that he did not feel like he

 Plaintiff could not say when he submitted the additional grievances. 6

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needed to do anything further because "they don't respond." Plaintiff admitted that he

pursued only the first step of the grievance process.

Analysis

When the Prison Litigation Reform Act was enacted, 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), quoted in doc. 38, pp. 4-5. The exhaustion requirement of

§ 1997e(a) is mandatory, Alexander v. Hawk, 159 F.3d 1321, 1324-26 (11th Cir. 1998),

but not jurisdictional. Bryant v. Rich, 530 F.3d 1368, 1374 n.10 (11th Cir.), cert. denied,

129 S.Ct. 733 (2008) (citing Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2392, 165

L.Ed.2d 368 (2006)). The Court may not consider the adequacy or futility of

administrative remedies, but only the availability of such. Higginbottom v. Carter, 223

F.3d 1259, 1261 (11th Cir. 2000), citing Alexander, 159 F.3d at 1323. "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). If one claim is

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

that have been exhausted. Brown v. Sikes, 212 F.3d 1205, 1206, n.1 (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). 

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A prisoner must also comply with the process set forth and established by the

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 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). 

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.").

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The evidence in this case conclusively demonstrates that Plaintiff did not exhaust

administrative remedies because he did not complete the grievance process. Plaintiff

acknowledged there was a two-step process, and he admitted he only filed one original

Note from Prisoner. The first step is filing a "complaint" on the Note from Prisoner form

and if not satisfied, the inmate must file a "grievance." The rules require attaching a

"copy of the original Note from Prisoner describing the initial complaint" to the

grievance. Doc. 49 at 7; Defendant's Exhibit 1 from the Hearing at 24. Plaintiff

submitted only one complaint on April 30th which he testified was not answered. The

fact that Plaintiff testified that he submitted several additional copies of that complaint, if

believed, did not transform it into a grievance. Yet Plaintiff's testimony on that point is

rejected. Considering the number of complaints Plaintiff has submitted during his three

years at the jail, it is not plausible that Plaintiff did not complain about the fact that he

had not received a response, if he had truly submitted the complaint. Even accepting

Plaintiff's testimony on this point, that he submitted several copies of his April 30th

complaint, it is insufficient to demonstrate exhaustion because Plaintiff did not properly

exhaust administrative remedies.

In light of that conclusion, it is somewhat unnecessary to address credibility, but

there is little reason to believe that Plaintiff submitted the complaint in the first place. 

Plaintiff was on notice at the outset that Defendants claimed he did not exhaust

administrative remedies. Plaintiff came forward with a copy of a complaint to

demonstrate that he had exhausted his claim concerning Defendant McClendon

concerning the August 2010 incident, but Plaintiff did not come forward with the one,

relevant piece of evidence, the complaint, until after issuance of the Report and

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Recommendation. Plaintiff was questioned in the hearing as to why he did not present

the complaint in response to the motion to dismiss, and Plaintiff responded only that he

had not found it earlier because he had so many papers. That is not credible. Plaintiff

knew the importance of a document showing he submitted a complaint, and knew that

Defendants had submitted an affidavit, doc. 47, ex. 1, and Defendants' ex. 6 from the

hearing, stating he had not submitted such a complaint. It is concluded that Plaintiff

failed to provide it earlier because it did not exist earlier. 

Also harmful to Plaintiff's case was his testimony in the hearing that he actually

had two inmate witnesses. Plaintiff submitted the affidavit of witness Kyle Harrison as

evidence in this case, doc. 53 at 3, but Plaintiff claimed that the witness statement of

inmate Isaac Worthy must have been "thrown away." Plaintiff said that he did not

watch the inmates write the statements, but knew it was done. In particular, Plaintiff

said that Harrison wrote the affidavit and turned it in to an officer, but it "disappeared."

Plaintiff asked Harrison to write it again, which he did, giving it to Plaintiff. Plaintiff

testified that he made copies of the affidavit and sent it in with his grievance. The time

line for that to occur does not add up with Plaintiff's version of the facts. Plaintiff

alleged that the use of force took place on April 26, 2011, and even assuming that the

inmate affidavits were drafted that day, the testimony established that if the affidavits

were deemed to be complaints, they would be addressed the following morning, April

27th. A response could be expected a few days later, but to find that by April 30th, the

inmates had sufficient time to determine the prior affidavits "disappeared" such that

Plaintiff could request Harrison write another affidavit is a stretch. It is an even greater

stretch considering the testimony that Plaintiff was housed in confinement and would

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only have been allowed out of his cell one hour a day. Moreover, considering Plaintiff's

repeated assertions that officials have lost or destroyed inmate complaints and, in

particular, the two inmate affidavits, it is not believable that Plaintiff would not have

referenced the affidavit of Harrison to some degree on his April 30th complaint since

Plaintiff testified that he submitted it with his complaint. 

After considering all the evidence, it is concluded that Plaintiff failed to exhaust

administrative remedies. Plaintiff's initial argument at the outset of this case, that he

was unable to exhaust and had "no available remedy" is the more credible assertion. 

Yet, Plaintiff was not precluded from filing a Note from Prisoner concerning the alleged

use of force by either Petersen's statement that Plaintiff would face criminal charges or

by his temporary placement in the restraint chair. Because Plaintiff filed over 450

complaints and Notes from Prisoner forms in three years, Plaintiff had the knowledge of

what was required to exhaust. Plaintiff did not do so. Defendants' motion to dismiss,

doc. 47, should be granted as to Plaintiff's claim concerning the April 26, 2011, use of

force by all eight Defendants. 

RECOMMENDATION

In light of the foregoing, it is respectfully RECOMMENDED that Defendants'

motion to dismiss, doc. 47, be GRANTED as to Plaintiff's claims against Defendants

McClendon, Brantley, Lane, White, Kassees, Mack, Carr, and Brown, for the use of

excessive force on April 26, 2011, because Plaintiff failed to exhaust administrative

remedies pursuant to 42 U.S.C. § 1997(e), and the case should be REMANDED for

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further proceedings on the one surviving claim against Defendant McClendon for the

use of force on August 12, 2010. 

IN CHAMBERS at Tallahassee, Florida, on October 24, 2012.

 S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

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.

Case No. 4:11cv305-WS/CAS