JOHN BAILEY, APPELLANT,
v.
FLORIDA DEPARTMENT OF CORRECTIONS, JAMES V. CROSBY, SEC., FDOC, WILLIE FLOYD, WARDEN G.C.I., JEAN DAUPHIN, MEDICAL DIRECTOR, G.C.I., WEXFORD HEALTH SERVICES, INC., AND FLORIDA DEPARTMENT OF HEALTH, APPELLEES
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John Bailey, an inmate, appealed the dismissal of his medical malpractice and § 1983 deliberate indifference complaint. The trial court dismissed for alleged deficiencies in pre-suit notice and exhaustion of grievance procedures. The court reversed, finding the complaint adequately alleged compliance with statutory prerequisites.
The court held that Bailey's notice fully satisfied section 768.28 requirements and that general averments of compliance with conditions precedent to suit are sufficient under Florida Rule of Civil Procedure 1.120(c). The court also held that under the United States Supreme Court's decision in Jones v. Bock, failure to exhaust administrative remedies is an affirmative defense for defendants to plead, not an obligation for plaintiffs to plead.
[1] A complaint alleging compliance with statutory conditions precedent to suit is sufficient if it generally avers performance or occurrence of those conditions.
[2] A plaintiff is not obligated to plead exhaustion of administrative remedies in a prisoner's suit under 42 U.S.C. …
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Join FLexlaw to unlock all legal intelligence“it is sufficient to generally aver the performance or occurrence of the conditions precedent to suit”
Establishes the pleading standard for conditions precedent under Florida Rule of Civil Procedure 1.120(c)
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Join FLexlaw to unlock all legal intelligenceJohn Bailey was an inmate at Glades Correctional Institute who filed a complaint alleging medical malpractice and deliberate indifference to his medic…
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PER CURIAM.
John Bailey, an inmate at Glades Correctional Institute, appeals the trial court’s dismissal of his single-count complaint, which alleged medical malpractice and deliberate indifference to his medical needs under 42 U.S.C. § 1983. The trial court’s dismissal order suggests that Bailey’s complaint was deficient in its allegations regarding compliance with the pre-suit notice requirements of section 768.28(6)(a), Florida Statutes (2006), and exhaustion of the prison’s grievance procedures.
Bailey specifically alleged that he served his claim on the head of the Florida Department of Corrections, the Florida Department of Insurance and Wexford Health Services, Inc. on April 29, 2003; he attached a copy of the notice to his complaint. Having examined the notice, we conclude that it fully satisfies the requirements of section 768.28. Moreover, the subject complaint alleged that plaintiff had “complied with all statutory conditions precedent to bringing this action.” Under Florida Rule of Civil Procedure 1.120(c), it is sufficient to generally aver the performance or occurrence of the conditions precedent to suit. This rule applies to the presuit notice conditions of section 768.28. See Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022-23 (Fla.1979).
The plaintiff also alleged that he had “exhausted all administrative remedies.” We consider this was an adequate pleading of his satisfaction of the exhaustion requirement. Recently, in Jones v. Bock, — U.S. -, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007), the United States Supreme Court held that the failure to exhaust administrative remedies in a prisoner’s suit under section 1983 is an affirmative defense to be pled by the defendant, and that the plaintiff has no obligation to plead exhaustion, even in gen eral terms, in such cases. But see San Marco Contracting Co. v. State, Dep’t of Transp., 386 So. 2d 615, 617 (Fla. 1st DCA 1980) (stating that exhaustion of administrative remedies should be alleged in complaint).
Accordingly, we reverse the order of dismissal and remand for further proceedings.
Reversed and Remanded.
STEVENSON, C.J., POLEN and TAYLOR, JJ., concur.
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Green v. Cottrell, 204 So. 3d 22 (Fla. 2016)…e Supreme Court has, also held that failure to exhaust is an affirmative defense under the PLRA, and prisoners are not required to plead or demonstrate exhaustion in their complaints. Id. at 216, 127 S.Ct. 910; see also Bailey v. Fla. Dep’t ofCorr., 958 So. 2d 986, 987 (Fla. 4th DCA 2007) (relying on Bock in a prisoner’s section 1983 action to conclude that the failure to exhaust is an affirmative defense to be pled by the defendant, and the prisoner had no obligation to plead exhaustion). Thus, under the Su…
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Smith v. Rainey, 747 F. Supp. 2d 1327 (M.D. Fla. 2010)….”); Motor v. Girins County Sch. Bd., 856 So.2d 1054, 1055 (Fla. 5th DCA 2003) (Torpy, J., concurring specially) (“Under Rule 1.120(c), a plaintiff may allege compliance by making a general averment....”); Bailey v. Fla. Dep’t of Corrs., 958 So.2d 986, 987 (Fla. 4th DCA 2007) (noting that under Florida Rule of Civil Procedure 1.120(c), it is sufficient to generally allege the performance or occurrence of conditions precedent to suit, and stating that “[tjhis rule applies to the presuit notice con…
Authorities Cited
- Commercial Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979)
- Jones v. Bock, 549 U.S. 199 (U.S. 2007)
- SAN Marco Contracting Co. v. State, 386 So. 2d 615 (Fla. 1st DCA 1980)