EDMONDS

v.

WARDEN, FCC COLEMAN - MEDIUM

I. Status

Plaintiff Ezekiel Edmonds, an inmate incarcerated at the Federal Correctional Complex (FCC) in Coleman, Florida, initiated this action on October¹⁰, 2017, by filing a pro se “Request for Relief Due to Deliberate Indifference by Medical in Not Providing Proper Medical Care (Doc. 1).1 In accordance with the Court’s January¹⁰, 2018 Order (Doc. 8), Edmonds filed an Amended Complaint (AC; Doc. 9) on February², 2018. In the AC, he asserts claims pursuant to Bivens² against the FCC medical department, Richard

This matter is before the Court on Defendants Ocasio and Li’s Motion to Dismiss (Motion; Doc. 28) with exhibits (Docs. 28-1 through 28-11). The Court advised Edmonds that granting a motion to dismiss would be an adjudication of the case that could foreclose subsequent litigation on the matter and gave him an opportunity to respond. See Order (Doc. 22). Edmonds filed a response in opposition to the Motion.⁵ See Plaintiff’s Response to Motion to Dismiss Complaint (Response; Doc. 32). Thus, the Motion is ripe for review.

II. Plaintiff’s Allegations⁶ As to the underlying facts, Edmonds asserts that, in May 2014, he kicked a metal ladder and broke his foot while sleeping in his bunk. See AC at 4-5. He claims that Dr. Li, a Bureau of Prisons employee and “the leading [d]octor in the [m]edical [d]epartment,”

III. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F. 3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F. 3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. Bellsouth Telecomm., 372 F. 3d 1250, 1262 63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough facts to state a claim that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal quotations omitted); see also Jackson, 372 F. 3d at 1262 (explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”) (internal citation and quotations omitted). Indeed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[,]” which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting Twombly, 550 U.S. at 570). And, while “[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed,” Tannenbaum v. United States, 148 F. 3d 1262, 1263 (11th Cir. 1998), “‘this leniency does not give the court a license to serve as de facto counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837, 839 (11th Cir. 2011)7 (quoting GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F. 3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part on other grounds as recognized in Randall, 610 F. 3d at 706).

IV. Summary of the Arguments

In the Motion, counsel argues that the claims against both Defendant Ocasio and Defendant Li should be dismissed. Notably, the Court dismissed Edmonds’ claims against Ocasio on February 21, 2018. See Order (Doc. 10). Therefore, the Court will consider the arguments raised in the Motion only as they relate to Defendant Li. Defendant Li requests dismissal of Edmonds’ claims against him because Edmonds failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act (PLRA), before filing the instant Bivens lawsuit. See Motion at 5-8. Next, he argues that Edmonds fails to state plausible Eighth Amendment claims against him, see id. at 12-14, and that he is entitled to qualified immunity, see id. at 8-11. Defendant Li also asserts that he is entitled to sovereign immunity as to Edmonds’ claims for monetary damages against him in his official capacity. See id. at 15-16. In his Response, Edmonds maintains that he has exhausted his administrative remedies, see Response at 2, 5, and states plausible Eighth Amendment claims, see id. at 3-6.

V. Exhaustion of Administrative Remedies

A. PLRA Exhaustion

The PLRA requires an inmate wishing to challenge prison conditions to first exhaust all available administrative remedies before filing an action under Bivens. See 42 U.S.C. § 1997e(a);⁸ see Alexander v. Hawk, 159 F. 3d 1321, 1324 (11th Cir. 1998) (stating that “section 1997e(a) by its own terms clearly applies to [plaintiff]’s Bivens action). Nevertheless, a prisoner such as Edmonds is not required to plead exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the United States Supreme Court has recognized “failure to exhaust is an affirmative defense under the PLRA[.]” Id. Notably, exhaustion of available administrative remedies is “a precondition to an adjudication on the merits” and is mandatory under the PLRA. Bryant v. Rich, 530 F. 3d 1368, 1374 (11th Cir. 2008). Not only is there an exhaustion requirement, “the PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).

Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. Administrative law does this by requiring proper exhaustion of administrative remedies, which “means using all steps that the agency holds out, and doing so properly (so that the agency

Woodford, 548 U.S. at 90. And, “[p]roper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules . . . .” Id. As such, the United States Supreme Court has emphasized: Courts may not engraft an unwritten “special circumstances” exception onto the PLRA’s exhaustion requirement. The only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are “available.”

Ross v. Blake, 136 S.Ct. 1850, 1862 (2016). The determination of whether an inmate exhausted his available administrative remedies prior to filing a cause of action in federal court is a matter of abatement and should be raised in a motion to dismiss or be treated as such if raised in a summary judgment motion. Bryant, 530 F. 3d at 1374-75 (citation omitted). The Eleventh Circuit has explained the two-step process that the Court must employ when examining the issue of exhaustion of administrative remedies.

After a prisoner has exhausted the grievance procedures, he may file suit …. In response to a prisoner suit, defendants may bring a motion to dismiss and raise as a defense the prisoner’s failure to exhaust these administrative remedies. See Turner, 541 F. 3d at 1081. In Turner v. Burnside we established a two-step process for resolving motions to dismiss prisoner lawsuits for failure to exhaust. 541 F. 3d at 1082. First, district courts look to the factual allegations in the motion to dismiss and those in the prisoner’s response and accept the prisoner’s view of the facts as true. The court should dismiss if the facts as stated by the prisoner show a failure to exhaust. Id. Second, if dismissal is not warranted on the prisoner’s view of the facts, the court makes

Whatley v. Warden, Ware State Prison, 802 F. 3d 1205, 1209 (11th Cir. 2015); see Pavao v. Sims, 679 F. App’x 819, 823-24 (11th Cir. 2017) (per curiam).

B. Bureau of Prison’s Grievance Procedure The Bureau of Prisons (BOP) provides an internal grievance procedure for its inmates. See 28 C.F.R. § 542.10, et seq. Generally, to properly exhaust administrative remedies, a prisoner must complete a three-step sequential process if the informal resolution procedures fail to resolve the issue.¹¹ As to the formal grievance procedures, an inmate first must submit a Request for Administrative Remedy on the BP-9 form to the Warden within twenty days of the incident. See 28 C.F.R. § 542.14(a). If the inmate is not satisfied with the Warden’s response, he may submit an appeal on the BP-10 form to the Regional Director within twenty days of the Warden’s response. See 28 C.F.R. § 542.15(a). If the inmate is dissatisfied with the Regional Director’s response, he may submit an appeal on the BP-11 form to the General Counsel within thirty days of the Regional Director’s response. See id.

C. Edmonds’ Exhaustion Efforts Defendant Li maintains that Edmonds failed to properly exhaust his administrative remedies as to the deliberate indifference claim against him before filing the instant lawsuit. See Motion at 5-8. In support of his position, Defendant submitted the relevant

BOP records reflect that Edmonds submitted a Request for Administrative Remedy, which the institution received on August 26, 2016. See Docs. 28-9 at 3; 28-8 at 3, No. 874064-F1. On September 13, 2016, Warden Ocasio responded, stating that a request for monetary damages could not be handled through the administrative remedy process and advised Edmonds that he could file a claim under the Federal Tort Claims Act. See Doc. 28-9 at 2. Edmonds appealed the response to the Regional Director. See Doc. 28-8 at 3, No. 874064-R1. The Regional Director rejected the appeal as untimely on October 20, 2016, and advised Edmonds that he could resubmit it and explain why he should not be faulted for the untimeliness. See Register Declaration at 3; Doc. 28-8 at 3. According to Register, “[t]here is no record that inmate Edmonds provided this information and continued the appeal.” See Register Declaration at 3.

On November 30, 2016, Edmonds instead submitted another Request for Administrative Remedy, which the institution received on December⁷, 2016. See Docs. 28-10 at 4; 28-8 at 4, No. 884982-F1. Warden Ocasio, on December 9th, denied the grievance as repetitive of No. 874064-F1. See Docs. 28-10 at 2; 28-8 at 4. On December 14th, Edmonds appealed the denial to the Regional Director, see Docs. 28-10 at 8, 28-8 at 4, No. 884982-R¹, who stated in pertinent part:

This is in response to your Regional Administrative Remedy Appeal receipted [sic] December 20, 2016. You allege you are entitled to monetary compensation because you did not receive treatment for your broken foot for two years. You further contend you have filed a tort claim regarding this matter and you are filing this appeal to exhaust the administrative remedy process.

A review of your medical records revealed you were evaluated by the Staff Physician on January 12, 2015, at which time you complained of pain and swelling of your right foot for two months in duration. You indicated your pain and swelling worsened upon walking, but you did not advise your medical provider of any injuries to your foot at that time. An x-ray was ordered and subsequently completed on January 21, 2015. The x-ray revealed a healing fracture of the right second metatarsal. You were evaluated by the Mid-level Practitioner (MLP) on the same day, and reported hitting your right foot on the bar rail of your bed approximately three months ago. The MLP applied a splint to your right foot and provided a set of crutches to help with ambulation. A request for an orthopedic consultation was also submitted; however, the Clinical Director disapproved the request because the trauma occurred three months before you reported it to Health Services and your facture was healing well. A repeat x-ray within three months and a follow-up with orthotics was recommended. A repeat x-ray was performed on February 25, 2015, which indicated the fracture line was still visible and degenerative changes with subchondral cystic formation. A request for a prosthetic/orthotic consultation was submitted for further management and treatment. You were seen by the Orthotics Specialist on May 21, 2015, at which time you were fitted for new orthopedic shoes.

A second orthopedic consultation request was generated on January 27, 2016, with a provisional diagnosis of a right second metatarsal fracture with possible neuropathic joints. It was also noted you have a long history of diabetes mellitus and uncontrolled blood glucose. This request was approved and you were seen by the Orthopedic Specialist on April 21, 2016, at which time you received a diagnosis of degenerative joint disease (arthritis) and neuritis of the right foot. A cortisone injection was deferred at that time, but you were advised it would be available later, if needed.

Medical intervention for this complaint includes non-steroidal anti-inflammatory medication for pain and swelling, orthopedic shoes, a splint, crutches and orthotic and orthopedic consultations. Should you experience any adverse changes in your condition, return to sick call for reevaluation. Medical care will continue to be provided to you consistent with Bureau of Prisons’ policy.

Monetary damages cannot be provided under the Administrative Remedy Program. If you wish to seek monetary compensation for an injury or loss allegedly caused by staff negligence, you may consider filing a separate claim under the appropriate administrative claim process (i.e. 31 U.S.C. § 3723 or the Federal Tort Claims Act).

Accordingly, this response to your Regional Administrative Remedy Appeal is for informational purposes only. If dissatisfied with this response, you may appeal to the Office of General Counsel. . . .

Docs. 28-10 at 7, Response to Regional Administrative Remedy Appeal, dated January¹¹, 2017; 28-8 at 4. Edmonds appealed to the Office of the General Counsel. See Doc. 28-8 at 5, No. 884982-A1. On March¹, 2017, the General Counsel rejected the appeal because Edmonds failed to provide copies of the institutional administrative remedy request form and the institutional response. See Register Declaration at 3; Doc. 28-8 at 5. According to Register, the General Counsel informed Edmonds that he could resubmit the appeal “in proper form within 15 days of the date of the rejection notice.” Register Declaration at 3-4. Instead of following the General Counsel’s instructions, Edmonds appealed to the Regional Office on March 21, 2017. See id.; Doc. 28-8 at 5, No. 884982- R2. The Regional Director rejected the appeal on March 23rd because Edmonds sent the appeal to “the wrong level.” Register Declaration at 4; Doc. 28-8 at 5. According to Register, Edmonds did not file “any additional administrative remedies.” Register Declaration at 4.

In his Response, Edmonds states that he “in fact” submitted the required BOP grievance and appeal forms, see Response at 2, and therefore, properly exhausted his administrative remedies before filing the instant lawsuit, see id. at 5. He states, in pertinent part:

Again, everything required was done by the Plaintiff. After being informed of having not provided a copy of the institutional Administrative request or a copy of the institutional response, Petitioner/Plaintiff through Counselor of C2, corrected this documentation, but because he was out, the document remained in his custody, thus requiring it to be resubmitted within 15 days of the rejection notice.

Response at 5. As to the initial step in the two-part process for deciding motions to dismiss for failure to exhaust under the PLRA, the Eleventh Circuit has instructed:

Deciding a motion to dismiss for failure to exhaust proceeds in two steps: first, looking to the defendant’s motion and the plaintiff’s response, the court assesses whether dismissal is proper even under the plaintiff’s version of the facts; and second, if dismissal is inappropriate under the plaintiff’s version of the facts, the court makes “specific findings in order to resolve the disputed factual issues related to exhaustion.” Turner v. Burnside, 541 F. 3d 1077, 1082 (11th Cir. 2008). The burden is on the defendant to show a failure to exhaust. Id.

Arias v. Perez, 758 F. App’x 878, 880 (11th Cir. 2019) (per curiam). Accepting Edmonds’ view of the facts as true, a dismissal of the claim against Defendant Li for lack of exhaustion is not warranted at the first step. Thus, the Court proceeds to the second step in the two-part process where the Court considers Defendant’s arguments regarding exhaustion and makes findings of fact.

To fully exhaust, Edmonds was required to complete the third step by resubmitting his appeal (with proper documentation) to the General Counsel. See 28 C.F.R. § 542.15(a) (“Appeal to the General Counsel is the final administrative appeal.”). Edmonds did submit another appeal, see Doc. 28-8 at 5, No. 884982-R², however, he submitted it to the Regional Director instead of the General Counsel. Thus, the Regional Director rejected the appeal. See Register Declaration at 4; Doc. 28-8 at 5. While Edmonds attempted to exhaust the deliberate indifference claim by submitting grievance forms at each level, he failed to properly exhaust because he failed to resubmit the appeal (with proper documentation) to the General Counsel. See Register Declaration at 4. As such, Defendant Li’s Motion is due to be granted with respect to the exhaustion issue as to Edmond’s Eighth Amendment deliberate indifference claim against him.

Therefore, it is now ORDERED: 1. Defendant Li’s Motion to Dismiss (Doc. 28) is GRANTED, and Edmonds’ claim against him is DISMISSED without prejudice for failure to exhaust his administrative remedies. 2. The Clerk shall enter judgment accordingly, terminate any pending motions, and close the case. DONE AND ORDERED in chambers, this 20th day of December, 2019.

United States District Judge

sc 12/19 c: Ezekiel Edmonds Counsel of Record