OQUENDO v. WHITE et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
JUAN OQUENDO,
Plaintiff,
v. 	Case No. 3:25cv681-AW-HTC
CAPTAIN WHITE, et al.,
Defendants.
________________________________/
REPORT AND RECOMMENDATION
Plaintiff Juan Oquendo, a prisoner at Florida State Prison (“FSP”) proceeding
pro se and in forma pauperis, filed an amended civil rights complaint against
numerous correctional officers and an unidentified nurse arising out of a use-of-force
incident that occurred while he was at Santa Rosa Correctional Institution (“SRCI”).
Doc. 8. The Defendants moved to dismiss the amended complaint. Doc. 37. Upon
consideration, the undersigned respectfully recommends the motion be GRANTED
because Oquendo failed to exhaust his administrative remedies. Also, because this
issue is dispositive, the undersigned does not address the other arguments raised in
the motion.1
1 Defendants also argue the case should be dismissed because Plaintiff failed to disclose his
litigation history and for failure to state a claim. Doc. 37.
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I. 	Legal Standards
Under the PLRA, “No action shall be brought with respect to prison
conditions under section 1983 … by a prisoner … until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement
applies 	“to 	all 	inmate 	suits 	about 	prison life, whether they 	involve general
circumstances or particular episodes, and whether they allege excessive force or
some other wrong.” 	Porter v. Nussle, 534 U.S. 516, 524–32 (2002) (citations
omitted). The purpose of exhaustion is “to eliminate unwarranted interference with
the administration of prisons in order to ‘afford corrections officials time and
opportunity to address complaints internally before allowing the initiation of a
federal case.’” Parzyck v. Prison Health Serv., Inc., 627 F.3d 1215, 1217 (11th Cir.
2010) 	(citation 	omitted). 	Exhaustion 	is 	required 	whether 	a 	plaintiff 	seeks
declaratory and injunctive relief, monetary damages, or both. 	See Booth, 532 U.S.
at 734, 741.
In Florida, the procedural rules an inmate must follow to properly exhaust
administrative remedies are promulgated by the FDOC and contained in an Inmate
Grievance 	Procedure, 	which 	is 	found 	in 	Chapter 	33-103 	of 	the 	Florida
Administrative Code. 	Inmates must first submit an informal grievance to the
appropriate staff member within 20 days of the grieved incident. Fla. Admin. Code
r. 33-103.005; Fla. Admin. Code r. 33-103.011(1)(a). 	The FDOC has 15 days to
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respond to the informal grievance. 	An inmate must then file a formal grievance
within 15 days of receiving the response to the informal grievance. 	Fla. Admin.
Code r. 33-103.011(3)(a). The FDOC then has 20 days to respond to the inmate’s
formal grievance. Fla. Admin. Code r. 33-103.011(3)(b). After the inmate receives
the response to the formal grievance, the inmate then has 15 days to file a grievance
appeal. Fla. Admin. Code r. 33-103.011(1)(c). Additionally, if an inmate does not
receive a response back from the FDOC, at any level, in the time that the rules
require, then the inmate may proceed to the next step of the grievance process. Fla.
Admin. Code r. 33-103.011(4).
“The critical function of the grievance process is that it provides the institution
with notice of a problem such that they have an opportunity to address the problem
internally.” Toenniges v. Ga. Dep’t of Corr., 600 F. App’x 645, 649 (11th Cir. 2015).
To give such notice and opportunity, grievances “must accurately state the facts,”
Parzyck, 627 F.3d at 1219 (citing Fla. Admin. Code r. 33-103.006(2)(e) and (2)(f)),
and must “request a remedy with respect to the claims.” Simpson v. Holder, 200 F.
App’x 836, 838, 840 (11th Cir. 2006).
The defense of failure to exhaust under the PLRA is considered a matter in
abatement under Fed. R. Civ. P. 12, and, thus, is treated like a defense of lack of
jurisdiction. Bryant v. Rich, 530 F.3d at 1374, 1376. Consequently, a district court
may properly consider “facts outside of the pleadings to resolve factual disputes so
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long as the factual disputes do not decide the merits and the parties have sufficient
opportunity to develop a record.” Id.
Deciding a motion to dismiss for failure to exhaust administrative remedies
involves two steps. 	See Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).
The court first “looks to the factual allegations in the defendant’s motion to dismiss
and those in the plaintiff’s response, and if they conflict, takes the plaintiff’s version
of the facts as true. If, in that light, the defendant is entitled to have the complaint
dismissed for failure to exhaust administrative remedies, it must be dismissed.” Id.
at 1082 (citation omitted). “If the complaint is not subject to dismissal at the first
step, where the plaintiff’s allegations are assumed to be true, the court then proceeds
to make specific findings in order to resolve the disputed factual issues related to
exhaustion.” Id. at 1082.
II. 	Discussion
In Oquendo’s amended complaint, he sues seven named officers of SRCI, one
John Doe officer, and a John Doe nurse for claims arising out of a use-of-force
incident that occurred on December 13, 2022. 	Doc. 8. 	Oquendo contends the
officers used excessive force against him, and the nurse failed to treat his injuries.
He seeks monetary and injunctive relief. See id.
In response, Defendants filed a motion to dismiss, arguing the amended
complaint should be dismissed because, among other reasons, Oquendo failed to
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exhaust his administrative remedies.2 Doc. 37. 	In support of this argument,
Defendants rely on declarations from employees of the FDOC, and the grievances
and appeals Oquendo filed between December 13, 2022, and May 5, 2025 (when
Oquendo filed the instant action).3 See Docs. 37-1 and 37-2.
The Court entered an order giving Oquendo twenty-one (21) days to respond
to the motion to dismiss if he opposed it. Doc. 43. The Court’s Order specifically
stated that the Court could grant the motion by default under Local Rule 7.1(H) if
Oquendo failed to oppose the motion. 	Id. 	The Court further advised Oquendo of
the importance of developing the record regarding exhaustion and gave him a chance
to do so. See id. Despite an extension of time (Doc. 48), Oquendo failed to respond.
Having 	examined 	the 	Defendants’ 	undisputed 	factual 	allegations 	and
supporting declarations, the undersigned agrees this action should be dismissed
under step one of the Turner analysis for Oquendo’s failure to exhaust. Specifically,
although Oquendo filed fourteen (14) informal grievances and ten (10) formal
grievances between December 13, 2022, and May 5, 2025, (Doc. 37-1 at 3-46) only
two informal grievances, one formal grievance, and one appeal mention the
December 13 incident. 	However, as discussed below, a review of those three
2 Defendants also moved to dismiss Oquendo’s claim for injunctive relief based on his failure to
follow the procedures for initiating a rule change – i.e., his failure to file a petition to initiate
rulemaking. The Court, however, need not address that argument.
3 To support their failure to exhaust the excessive use of force argument, Defendants rely on
affidavits from Jeffrey McClellan, Assistant Warden of Florida State Prison (Doc. 37-1) and Alan
McManus, Chief of Policy Management and Inmate Appeals (Doc. 37-2).
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grievances and the appeal shows that none were sufficient to put the FDOC on notice
that Oquendo was grieving the use-of-force incident. Instead, the three grievances
sought relief for a statement made by an officer about the use-of-force incident or
requested the FDOC preserve video and other evidence relating to the use-of-force
incident. And while the appeal specifically addressed the December 13 incident, it
was returned without action as procedurally deficient.
A. 	Informal Grievance #135-2301-006 and Formal Grievance #2301-
135-052
On December 31, 2022, Oquendo submitted an informal grievance addressed
to the Inspector General. Doc. 37-1 at 5. In it, Oquendo alleged that on December
31, 2022, between 8:30 to 8:40 p.m., Oquendo spoke to Officer K. Peterson, who
was in front of cell K1-1112, about the “assault on my person that occurred on
December 13, 2022.” 	Id. The grievance alleged Officer K. Peterson stated, “Yeah
we gave you a proper Scottish whoping.” 	Id. 	Oquendo ended the grievance by
stating, “I want it to be known that I have attempted to submit multiple grievances
about the assault on my person, trying to press charges against all officers involved.
I want this matter addressed A.S.A.P.” 4 Id.
On January 18, 2023, after the informal grievance was denied after video
footage showed Officer K. Peterson was not at the cell at the stated time, Oquendo
4 By making this statement, Oquendo implicitly acknowledged that this grievance was not about
the December 13 incident because that was the subject of other grievances.
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submitted a formal grievance. Doc. 37-1 at 25. In the formal grievance, Oquendo
argued that while “K. Peterson” was not at the cell, the video shows “B. Peterson”
was there, so his informal grievance should not have been denied. 	Id. 	Officials
approved that grievance to the extent that “the issue of [Oquendo’s] complaint has
been reported for appropriate action,” but noted that “the fixed wing video and audio
from the time and date you provided were reviewed and they do not support your
allegations.” Id. at 24.
Neither of those grievances gave FDOC officials notice that Oquendo was
seeking relief for the original use of force. 	First, the informal grievance is dated
December 31, 2022, the very same day the alleged conversation between Peterson
and Oquendo took place. 	Thus, the December 31 conversation—and not the
December 13, 2022, use of force—triggered Oquendo to file the grievance. Second,
the language Oquendo uses in the grievances centers on the conversation he had with
Peterson on December 31. 	Indeed, in the formal grievance, Oquendo specifically
takes issue with the denial of the informal grievance because, while K. Peterson was
not at the cell door, the video shows “B. Peterson” was there.
Third, FDOC officials treated the informal grievance as addressing only the
December 31, 2022, conversation and denied it because a review of camera footage
showed K. Peterson was not present at the alleged time. Doc. 37 at 7-8 (noting that
officers identified the grievance with a “10D” code, meaning the grievance was
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about verbal abuse, rather than a “10H” code, which would be for excessive force);
cf. Jones v. Eustice, 2024 WL 4031082, at *4 (N.D. Fla. Aug. 8, 2024), report and
recommendation adopted, 2024 WL 4026180 (N.D. Fla. Sept. 3, 2024) (rejecting
defendant’s argument that inmate failed to exhaust his administrative remedies
because: (1) inmate’s grievance appeal raised the defendant’s allegedly unnecessary
use of chemical agents; and (2) Secretary construed inmate’s grievance appeal as
involving a complaint about excessive force instead of a complaint about how his
informal grievance was handled because it was coded as a “10” grievance, which
involves “complaints against staff,” rather than as a “9” grievance, which involves
complaints about the “grievance process”).
Because those grievances addressed only the conversation between Peterson
and Oquendo and mentioned the use-of-force incident to give context to the
statements allegedly made by Peterson, they are insufficient to exhaust the claims
brought in this action. See Simpson v. Holder, 200 F. App’x 836, 838, 840 (11th Cir.
2006) (finding inmate failed to exhaust his administrative remedies when his
grievances “tangentially” referred to his claims, but the grievances did not request a
remedy with respect to the claims and the officials’ responses show they did not
consider those complaints); Cadet v. Wheaton, 2024 WL 694122, at *2-3 (N.D. Fla.
Jan. 16, 2024), report and recommendation adopted, 2024 WL 691364 (N.D. Fla.
Feb. 20, 2024) (finding that information relating to a failure to protect claim, which
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inmate provided as background information in a grievance explicitly asking for a
disciplinary report to be overturned, was not sufficient to exhaust inmate’s failure to
protect claim); Jean-Rene v. Joseph, 2021 WL 6693731, at *3 n.5 (N.D. Fla. Dec.
28, 2021), report and recommendation adopted, 2022 WL 228156 (N.D. Fla. Jan.
25, 2022) (finding grievance was insufficient to properly grieve inmate’s claim that
he was entitled to the application of earned time credits (“ETCs”) because the
grievance only requested that his request for home confinement under the Cares Act
be reviewed and “only tangentially discussed his ETCs as he alleged it supported his
claim to be placed on home confinement”).
B. 	Informal Grievance #119-2302-0246
On or about February 12, 2023, Oquendo filed another informal grievance.
Doc. 37-1 at 7-8. In that grievance, Oquendo alleged he wanted all videos, reports,
and documents related to the December 13 incident “saved and preserved for future
litigation purposes from the following dates and times.” 	Id. at 7. 	While this
grievance mentioned the December 13 incident, the only relief sought was for the
preservation of the video, reports, and documents relating to the incident. Oquendo
did not seek relief for any injuries he allegedly received or for the officers’ conduct.
This grievance did not exhaust the excessive use-of-force claims. 	See Tierney v.
Scruggs, No. 3:23CV24768-MCR-HTC, 2024 WL 5668604 (N.D. Fla. Dec. 13,
2024), report and recommendation adopted, No. 3:23CV24768-MCR-HTC, 2025
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WL 1192096 (N.D. Fla. Apr. 24, 2025) (formal grievance which only concerned a
conversation prisoner had with guard about a prior use of force and a request for the
preservation of evidence relating to the use of force did not exhaust the claims
against defendants arising out of the prior use of force).
C. 	Grievance Appeal #23-6-02057
Oquendo 	filed 	one 	grievance 	appeal 	which 	specifically 	mentioned 	the
December 13 incident. Doc. 37-2 at 6. In it, Oquendo describes the incident, states
he was injured, and, again, references the statement allegedly made by Peterson. Id.
He also states that he submitted an informal grievance on December 15 about the
incident, and because he did not get a response, he “figured” it had been thrown out.
He claimed that he submitted a formal grievance on December 21, 2022, and another
grievance on December 31, 2022, complaining about Peterson’s statement. Id.
However, this appeal is insufficient to grieve the December 13 incident
because it was “returned without action because it was not a correctly submitted
direct appeal and Inmate Oquendo did not properly attach the lower institutional
grievances.” Doc. 37-2 at ¶ 6. An appeal or grievance that is returned without action
because of a procedural defect does not exhaust administrative remedies. See Pavao
v. Sims, 679 F. App’x 819, 825 (11th Cir. 2017) (“[A]ll of Pavao’s submissions were
returned for non-compliance with one or more procedural rules. Accordingly, even
though Pavao repeatedly presented the substance of his allegations to the prison, his
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efforts were not sufficient to exhaust because he did not comply with ‘the critical
procedural rules’ governing the grievance process[.]’”).
Finally, despite Oquendo’s allegations in the appeal (and in the December 31
informal grievance) about his prior unsuccessful attempts to grieve the December 13
incident, the undersigned finds that the grievance procedure was available to
Oquendo.5 Oquendo “cannot show that administrative remedies were unavailable
simply by making a blanket allegation without any supporting evidence.” His “self-
serving statements” about submitting prior grievances that went unanswered is
simply not enough, particularly when considered against the declarations and
evidence submitted by the Defendants. See, e.g., Womack v. Sikes, No. CV307-042,
2008 WL 4104148, at *7 (S.D. Ga. Sept. 4, 2008) (noting that “Plaintiff cannot show
that administrative remedies were unavailable simply by making a blanket allegation
without any supporting evidence” and dismissing for failure to exhaust when “other
than Plaintiff’s complaint and his self-serving statements, there [was] no record or
documentation that Plaintiff ever complained [about Defendant’s actions]”). If they
were, all prisoners would be able to skirt the grievance procedures simply by stating
that they submitted a grievance that went unanswered. Thus, the undersigned finds
5 A remedy must be “available” before a prisoner is required to exhaust it. Turner, 541 F.3d at
1082, 1084. One scenario in which administrative remedies can be unavailable is “when prison
administrators thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” 	Id. at 1385 (holding that serious threats of retaliation may
make remedies unavailable).
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the grievance procedures were available to Oquendo and, under step one of the
Turner analysis, he did not exhaust those remedies prior to bringing this action.
Accordingly, it is RECOMMENDED:
1. 	That Defendants’ Motion to Dismiss (Doc. 37) be GRANTED and this
action be DISMISSED WITHOUT PREJUDICE for failure to exhaust.6
2. 	That the clerk be directed to close the file.
At Pensacola, Florida, this 10 th day of March, 2026.
/s/ Hope Thai Cannon
HOPE THAI CANNON
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within
fourteen (14) days of the date of the 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 its objections upon
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 the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1.
6 Because the arguments supporting dismissal apply equally to the John Doe Officer and Nurse,
the Court should also dismiss the case against those John Doe Defendants. See Escobar v. Crosby,
363 F. Supp. 2d 1361, 1366 (S.D. Fla. 2005) (noting dismissal of prisoner’s claims against
unserved defendants was appropriate based on both the prisoner’s failure to effect timely service
under Federal Rule of Civil Procedure 4(m) and his failure to exhaust administrative remedies).
Indeed, none of the grievances or appeals referenced herein mention any wrongful conduct by a
nurse or seek relief against a nurse. Also, the Court should decline to exercise jurisdiction over
Oquendo’s state law claims because there are no pending federal claims that survive the motion to
dismiss. See 28 U.S.C. § 1367(c)(3); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir.
2004) (citing L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428 (11th Cir. 1984)).
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