[Copyrighted Material Omitted]
Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 4:11-cv-00533-SPM-CAS.
For Moliere Dimanche, Jr., Plaintiff - Appellant: Thomas A. Burns, Burns, PA, Tampa, FL; Moliere Dimanche Jr., Taylor CI - Inmate Legal Mail, Perry, FL.
For JERRY BROWN, Colonel, J. S. BARTON, Captain, MATTHEW CLARK, Sargeant, A. C. BENNETT, Sargeant, CHAD PEDDIE, Sargeant, Defendants - Appellees: Cedell Ian Garland, Sean Williams Gellis, Daniel Andrew Johnson, Pam Bondi, Office of the Attorney General, Tallahassee, FL; Anne F. McDonough, Office of the Attorney General, Tampa, FL.
For D Whitfield, D JORDAN, Officer, J. W. TROEMPER, Officer, Z. THOMAS, Officer, YANEY, Officer, LEROY, Nurse, M. Solano, W. BROWN, Assistant Warden, C. ATKINS, Assistant Warden, R. SMITH, Inspector, Defendants - Appellees: Cedell Ian Garland, Sean Williams Gellis, Daniel Andrew Johnson, Office of the Attorney General, Tallahassee, FL.
Before WILLIAM PRYOR and JORDAN, Circuit Judges, and ROSENTHAL,[*] District Judge.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires state-prison inmates suing prison officials for federal civil-rights violations first to exhaust the state's administrative remedies. Although federal law sets the exhaustion requirement, state law determines what steps are required to exhaust. The first steps in Florida's prescribed grievance process are to submit an informal, then a formal, grievance to designated officials within the correctional institution. A Florida inmate may bypass this requirement and submit a grievance directly to the Secretary of the Florida Department of Corrections if the complaint is reprisal for filing grievances and if certain conditions are satisfied. This appeal requires us to decide if the grievance filed by Moliere Dimanche, Jr. met those conditions. Dimanche sued 16 prison officials in federal court, alleging that he was subjected to harsh treatment in retaliation for filing grievances about prison conditions. The district court dismissed the suit because Dimanche did not file an internal grievance raising this complaint at the institutional level but instead submitted it directly to the Secretary. The court also dismissed for failure to state a claim under 28 U.S.C. § 1915(e)(2). Our review shows that Dimanche did satisfy the exhaustion requirement because he met the conditions for filing a grievance directly with the Secretary. We also conclude that his complaint stated at least some claims that should not have been dismissed without either explanation or leave to amend. Accordingly, we reverse and remand.
Dimanche, an inmate in the Florida state prison system, filed this § 1983 suit in October 2011 against a number of officials working at the Liberty Correctional Institution (" Liberty C.I." ) and its Quincy Annex. Dimanche alleged cruel and unusual punishment, due process violations, and First Amendment retaliation.
Dimanche's amended federal complaint alleged that on July 3, 2010, several Liberty C.I. correctional officers, at the direction of Acting Warden Colonel Jerry Brown, sprayed him with " an overwhelming amount" of teargas in retaliation for filing grievances about prison conditions. [R8, ¶ 1]. Dimanche alleged that he was gassed the day after he finished 60 days of
segregated confinement imposed as a disciplinary sentence. He was supposed to have been released into the general population on July 2. Dimanche alleged that instead of releasing him, Acting Warden Colonel Brown ordered that he remain in disciplinary confinement past his scheduled release date so that the guards could gas him there.
Dimanche alleged that the gassing began on July 3 when a guard approached his cell door yelling " grieve this!," accompanied by obscenities. [ Id., ¶ 6]. Dimanche alleged that Sergeant Matthew Clark then " stag[ed] a minor disturbance" to " deceiv[e] the confinement surveillance, which does not record audio, into portraying" Dimanche as behaving " disruptive[ly]." [ Id. ]. Captain J. S. Barton and a guard approached the cell and explained to Dimanche that he " was about to be gassed for writing grievances." [ Id., ¶ 7]. Captain Barton repeatedly told Dimanche that he would get " another gassing" for every grievance he filed " until [Barton] could have [Dimanche] committed to a Close Management Facility," where he would be " gassed to death." [ Id., ¶ ¶ 7-8]. Another guard later repeated this threat.
Dimanche alleged that Captain Barton then ordered Sergeant Clark to gas Dimanche. Instead of receiving a short burst of inflammatory spray, however, Dimanche received " three direct [more than five-second] bursts" of teargas, a chemical irritant " meant to quell riots." [ Id., ¶ 9]. Dimanche alleged that he could not breathe. He also alleged that he did not receive a shower, which was supposed to be promptly provided after gassing, or medical treatment, and that he suffered pain for a week afterwards.
In January 2011, Dimanche was transferred to the Liberty C.I.'s Quincy Annex. On April 15, 2011, he sent a grievance directly to the Secretary of the FDOC. The grievance was labeled in the lower right hand corner with the words " Reprisal for grievances wrote." [R1, p. 15]. The grievance began with Dimanche's statement that he was " in fear of [his] life here at Quincy Annex and at Liberty C.I." and that he had been " gassed in confinement for grievances that [he] wrote." [ Id. ]. He explained that as his " gassing was planned, the confinement officers called the colonel, who told them to hold [Dimanche] until [he] was gassed." [ Id. ]. He also alleged that the gassing was followed by a false disciplinary report and by threats to send him " to C.M. and gas [him] to death if [he] wrote another grievance." [ Id. ].
He alleged that after he was transferred to the Quincy Annex, guards took his mattress and sheets. When he complained to the " major" at the Annex, he received a retaliatory " false D.R.," was " reminded what happened the last time [he] wrote grievances," and was warned " not to lose [his] life over something so stupid." [ Id. ]. Dimanche stated that he feared his " next mistake [would] get [him] killed here." In his grievance, he asked the Secretary to remove him from both the Liberty C.I. and the Quincy Annex because it was " only a matter of time before I am ...