VAUGHAN v. PURIFOY

1
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ANTHONY W VAUGHAN,
Plaintiff,
vs. 	Case No.: 3:25cv45/MW/ZCB
MIKESHIA PURIFOY,
Defendant.
/
REPORT AND RECOMMENDATION
This is a pro se prisoner civil rights case filed under 42 U.S.C.
§ 1983. 	Currently before the Court is Defendant’s motion to dismiss.
(Doc. 13). 	Plaintiff has responded in opposition, and Defendant has
replied. 	(Docs. 17, 20, 27). 	Because Plaintiff failed to exhaust his
administrative remedies before filing this lawsuit, the motion to dismiss
should be granted.
I.
Plaintiff is incarcerated in the Florida Department of Corrections
(FDOC). 	His complaint alleges that on February 12, 2024, Defendant
Mikeshia Purifoy “stood there holding her O.C. spray in her hand” while
another inmate assaulted Plaintiff. 	(Doc. 1 at 5-6). 	Plaintiff alleges he
suffered multiple stab wounds due to Defendant’s failure to intervene
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 1 of 11

2
and stop the assault. 	(Id. at 6). 	He brings a failure to intervene claim
against Defendant under the Eighth Amendment. 	(Id. at 7). 	He seeks
compensatory and punitive damages. (Id.).
Defendant has moved to dismiss, arguing that Plaintiff failed to
exhaust his administrative remedies. 	(Doc. 13). 	For the reasons below,
the Court agrees with Defendant.1
II.
Under 	the 	Prison 	Litigation 	Reform 	Act 	(“PLRA”), 	42 	U.S.C.
§ 1997e(a), a prisoner must exhaust administrative remedies before
bringing an action in federal court. 	Porter v. Nussle, 534 U.S. 516, 520
(2002). To exhaust, a prisoner must complete the administrative process
using the prison’s grievance procedures. Jones v. Bock, 549 U.S. 199, 218
(2007). 	Proper 	exhaustion 	requires 	compliance 	with 	the 	prison’s
“deadlines and other critical procedural rules.” 	Geter v. Baldwin State
Prison, 974 F.3d 1348, 1354 (11th Cir. 2020).
1 Because dismissal is warranted for failure to exhaust, it is unnecessary
to address Defendant’s alternative argument that Plaintiff is a three-
striker who is barred from proceeding in forma pauperis. (Doc. 13 at 9).
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 2 of 11

3
Failure to exhaust is an affirmative defense that defendants may
bring in a motion to dismiss. 	Whatley v. Warden, Ware State Prison, 802
F.3d 1205, 1209 (11th Cir. 2015). 	There is a two-step framework that
governs such motions to dismiss. 	Turner v. Burnside, 541 F.3d 1077,
1082-83 (11th Cir. 2008). 	Under the first step, the Court must “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.” 	Whatley,
802 F.3d at 1209. If the facts as stated by the prisoner show a failure to
exhaust, then the case should be dismissed at step one. 	Id.
Where dismissal is not warranted on the prisoner’s view of the
facts, it is necessary to proceed to step two. 	Id. 	There, “the court makes
specific findings to resolve disputes of fact, and should dismiss if, based
on those findings, defendants have shown a failure to exhaust.” 	Id. 	“To
make these specific findings, courts should . . . look outside [of] the
pleadings[,]” ensuring the parties have had sufficient opportunity to
develop the record.2 	Jenkins v. Sloan, 826 F. App’x 833, 838 (11th Cir.
2020). 	A district court need not hold an evidentiary hearing when none
2 The Court specifically informed Plaintiff that he had the right to develop
the record regarding the issue of exhaustion and provided him with the
opportunity to do so. (Doc. 24).
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 3 of 11

4
has been requested and instead may rely on the papers submitted by the
parties. Zavala v. Ward, No. 21-10989, 2024 WL 510011, at *4 (11th Cir.
Feb. 9, 2024).
As a FDOC prisoner, Plaintiff was required to exhaust under the
grievance procedure set forth in § 33-103 of the Florida Administrative
Code. 	Bracero v. Sec’y, Fla. Dep’t of Corr., 748 F. App’x 200, 202 (11th
Cir. 2018). 	That grievance procedure has three layers: 	(1) the inmate
files an informal grievance within twenty days of the incident; (2) if the
grievance is not resolved informally, then the inmate files a formal
grievance at the institutional level within fifteen days from the date the
informal grievance was responded to; and (3) if the inmate is unhappy
with the formal grievance response, then the inmate appeals to the
FDOC Secretary/Central Office within fifteen days of the response to the
formal grievance. 	Fla. Admin. Code Ann. r. 33-103.005-007, 011 (2018).
If an inmate does not receive a response from the FDOC within certain
time limits outlined in the rules, the inmate may proceed to the next step
of the grievance process. Fla. Admin. Code Ann. r. 33-103.011(4).
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 4 of 11

5
III.
Defendant has moved to dismiss based on failure to exhaust.
Consistent with the discussion above, the Court will first “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.” 	Whatley,
802 F.3d at 1209. 	The Court will then determine “if the facts as stated
by the prisoner show a failure to exhaust.” 	Id.
In the motion to dismiss, Defendant argues that Plaintiff failed to
properly complete the FDOC’s grievance process regarding the February
12, 2024 incident. 	Specifically, Defendant argues Plaintiff neither filed
a timely informal grievance regarding the February 12, 2024 incident,
nor did he file a procedurally-compliant formal grievance or FDOC
Secretary/Central Office appeal regarding the incident. 	In support of
that argument, Defendant has provided copies of informal grievances
from Blackwater River C.F. and Santa Rosa Correctional Institution
Annex 	(where 	Plaintiff 	was 	transferred 	on 	March 	5, 	2024) 	and 	a
declaration from Blackwater River C.F.’s grievance coordinator, Rolando
Bethea.
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 5 of 11

6
Plaintiff, for his part, concedes that he did not follow the FDOC’s
grievance procedure. 	He admits he did not file an informal grievance
until March 10, 2024, which is after the twenty-day deadline laid out in
Fla. Admin. Code Ann. r. 33-103.011(1)(a).3 (Docs. 17 at 3; 27 at 12). He
also admits that all other informal grievances, formal grievances, and
appeals regarding the February 12, 2024 incident were returned for non-
compliance. 	(Doc. 17 at 3-4). 	Because under Plaintiff’s version of the
facts, 	he 	failed 	to 	properly 	exhaust 	his 	administrative 	remedies,
dismissal is warranted at step one of the Turner analysis.4 	See Bracero,
748 F. App’x at 202 (explaining that dismissal is warranted “if the facts
3 In his response, Plaintiff references a grievance filed on February 13,
2024. 	(Doc. 17 at 3). 	But Plaintiff never argues that he submitted an
informal grievance on February 13, 2024, nor is there any evidence in the
record of such grievance being filed.
4 Alternatively, the Court would have reached the same result had it
proceeded to Turner step two. 	Based on the information in the record,
the Court would specifically find at Turner step two that Plaintiff had not
submitted a timely informal grievance regarding the February 12, 2024
incident. 	This finding is supported by the Blackwater River C.F.’s
grievance coordinator’s declaration and the records submitted by both
Plaintiff and Defendant. 	Moreover, even if Plaintiff filed a timely
informal grievance, he never submitted a procedurally-compliant formal
grievance or appeal to the FDOC Secretary/Central Office. 	The only
formal 	grievances 	and 	appeals 	Plaintiff 	submitted 	regarding 	the
February 12, 2024 incident were returned or denied for non-compliance.
(Doc. 17 at 3-4, 15-16, 18-19, 21-22). 	Defendant, therefore, has shown
that Plaintiff failed to properly exhaust his administrative remedies.
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 6 of 11

7
as stated by the prisoner show a failure to exhaust”).
IV.
In an effort to avoid dismissal, Plaintiff argues that his failure to
exhaust 	should be 	excused 	because 	the 	administrative 	process was
unavailable to him. (Doc. 17 at 7-8). The Supreme Court has recognized
that although a prisoner “must exhaust available remedies, [he] need not
exhaust unavailable ones.” 	Ross v. Blake, 578 U.S. 632, 642 (2016).
Thus, a prisoner “may defeat the failure-to-exhaust argument by showing
that the general remedy was effectively unavailable to him.” 	Wright v.
Georgia Dep’t of Corr., 820 F. App’x 841, 845 (11th Cir. 2020).
There are three circumstances where an administrative remedy is
unavailable: (1) the administrative procedure “operates as a simple dead
end—with officers unable or consistently unwilling to provide any relief
to aggrieved inmates”; (2) the administrative procedure is “so opaque”
that “no ordinary prisoner can discern or navigate it”; and (3) prison
officials 	“thwart 	inmates” 	from 	using 	the 	administrative 	procedure
“through machination, misrepresentation, or intimidation.” 	Ross, 578
U.S. at 643-44. These circumstances “will not often arise,” id. at 643, and
the prisoner bears the burden of showing that one of them applies in a
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 7 of 11

8
particular case. 	Wright, 820 F. App’x at 845.
Here, Plaintiff argues that the first and third circumstances listed
above apply. (Doc. 17 at 8). The Court disagrees. Plaintiff has failed to
show that the FDOC’s grievance procedure operated “as a simple dead
end—with officers unable or consistently unwilling to provide any relief
to aggrieved inmates.” Ross, 578 U.S. at 643. Plaintiff states that he was
placed on self-harm observation status (SHOS) sixteen days after the
February 12, 2024 incident. 	(Doc. 17 at 2). 	He argues that the FDOC
has a policy that does not allow prisoners access to pen and paper while
on SHOS. (Id. at 5). This policy, Plaintiff argues, “operate[d] as a Dead
End” in his case because his twenty-day time limit to file a grievance
expired while he was on SHOS status. 	(Id. at 8).5 	In support of his
argument, Plaintiff cites to an FDOC procedure that instructs prison
officials to remove the inmate’s personal effects so that the inmate cannot
use the items to self-injure while on SHOS. But that procedure does not
5 It bears mentioning that only the last four days of the time for Plaintiff
to file a grievance about the February 12, 2024 incident was spent on
SHOS. 	Plaintiff had sixteen days before he entered SHOS to file a
grievance. He did not do so. Moreover, the record shows that during this
sixteen-day time period Plaintiff filed at least one grievance, but it was
not about the February 12, 2024 incident. (Docs. 13-1; 13-2).
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 8 of 11

9
speak to an inmate’s ability to file grievances while on SHOS. 	(Doc. 27
at 4, 18-19). It merely refers to the property an inmate can retain while
in SHOS. And although Plaintiff claims that his requests for pen and
paper were denied, Plaintiff does not provide any supporting factual
details—such as who he asked, when he asked, or whether it was clear to
the prison official(s) that he wanted to use the pen and paper to file a
grievance.
Defendant, on the other hand, points to Fla. Admin. Code Ann. r.
33-103.015(2), which provides that grievance forms are available to
inmates from “the housing officer of any living unit or confinement unit.”
(Doc. 20 at 4).6 	And Blackwater River C.F.’s grievance coordinator
Rolando Bethea has confirmed in a declaration that inmates routinely
file grievances while on SHOS. (Doc. 20-1). The Court, therefore, rejects
Plaintiff’s argument that being on SHOS status made the administrative
grievance procedure unavailable to him.
To the extent Plaintiff argues that the administrative process was
6 See also Logan v. Hall, No. 21-13049, 2022 WL 2388430, at *2 (11th Cir.
July 1, 2022) (recognizing that “Florida’s Administrative Code requires
that inmates held in special housing units [like self-harm observation
status] are able to file both formal and informal grievances” and citing to
Fla. Admin. Code Ann. r. 33-103.005(1)(a), 33-103.006(2)(h)).
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 9 of 11

10
unavailable because prison officials did not respond to an informal
grievance filed on February 13, 2024, his argument fails. Assuming that
such an informal grievance was filed,7 any failure of prison officials to
respond 	to 	an 	informal 	grievance 	did 	not 	prevent 	Plaintiff 	from
completing the grievance process because the FDOC’s procedure permits
a prisoner to proceed to the next step if no timely response is received.
See Fla. Admin. Code Ann. r. 33-103.011(4); see also Pavao v. Sims, 679
F. App’x 819, 825 (11th Cir. 2017) (rejecting unavailability argument
based on prison officials’ alleged failure to timely respond to grievances).
Plaintiff, however, did not proceed to the next step of the grievance
process.
Plaintiff 	has 	also 	failed 	to 	show 	that 	prison 	officials 	used
“machination, misrepresentation, or intimidation” to thwart his ability
to complete the grievance process. 	Ross, 578 U.S. at 644. 	None of the
actions Plaintiff says prison officials took rise to the level of machination,
misrepresentations, or intimidation that were designed to thwart his
ability to complete the grievance process.
7 Plaintiff references an informal grievance filed on February 13, 2024.
The FDOC’s records do not reflect any informal grievance being filed on
that date. (Docs. 13-1, 13-2, 13-3, 13-4).
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 10 of 11

11
V.
For the reasons above, it is respectfully RECOMMENDED that:
1. 	Defendant’s motion to dismiss (Doc. 13) be GRANTED, and
this 	matter 	be 	DISMISSED 	for 	failure 	to 	exhaust 	administrative
remedies under 42 U.S.C. § 1997e(a).
3. 	The Clerk of Court be directed to close this case.
At Pensacola, Florida this 8th day of December 2025.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice to the Parties
Objections to the proposed findings and recommendations set forth
above must be filed within fourteen days of the date of this Report and
Recommendation. 	Any 	different 	deadline 	that 	may 	appear 	on 	the
electronic docket is for the Court’s internal use only and does not
control. 	An objecting party must serve a copy of the objections on all
other parties. 	A party who fails to object to the magistrate judge’s
findings or recommendations contained in a report and recommendation
waives the right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions. 	See 11th Cir. Rule 3-1; 28
U.S.C. § 636.
Case 3:25-cv-00045-MW-ZCB Document 30 Filed 12/08/25 Page 11 of 11