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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13471
Non-Argument Calendar
____________________
RODNEY THOMAS,
Plaintiff-Appellant,
versus
SHERIFF RIC L. BRADSHAW,
Palm Beach County Sheriff's Office, in his official capacity,
SERGEANT MCINNIS,
DOCTOR JEAN,
Correctional Health Service, in their official capacity,
KRISTA SHUFFELL,
RN, Correctional Health Services, in her official capacity,
DENA PAQUETH,
Food Service Director, in her official capacity, et al.,
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2 Opinion of the Court 20-13471
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cv-80079-JIC
____________________
Before WILSON, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Rodney Thomas appeals the district court’s grant of sum-
mary judgment in favor of jail officials on his claim alleging that the
officials were deliberately indifferent to his dietary needs, in viola-
tion of the Fourteenth Amendment. Thomas also challenges the
district court’s earlier dismissal of a separate deliberate indifference
claim based on his need for prescription medication. After careful
review, we reverse the district court’s dismissal decision and affirm
its grant of summary judgment.
I.
Thomas was a pre-trial detainee at the Palm Beach County
Jail in West Palm Beach, Florida from March 2017 to June 2019.
While he was being held there, he filed a pro se complaint alleging
that seven jail officials were “deliberate[ly] indifferen[t]” to medical
and dietary needs caused by his chronic kidney condition. He
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20-13471 Opinion of the Court 3
initially named the Palm Beach County Sheriff, three sergeants, a
doctor, a nurse, and the “director of food service” as defendants.
Several months later, the district court ordered Thomas to amend
his complaint to avoid dismissal, and he filed a document with
more detailed allegations. The amended complaint also added a
second nurse defendant.
Thomas’s complaint boiled down to two allegations: jail of-
ficials violated his constitutional rights “[b]y delaying necessary
medication” and not providing him an adequate diet. He claimed
that he informed jail officials that he had been diagnosed with “end
stage kidney disease” when he arrived at the jail, but that he was
inconsistently provided necessary medication to treat his condi-
tion. He also alleged that on two occasions in May 2017, he was
admitted to the hospital for emergency blood transfusions. He
blamed the nurses for failing to provide his medication. Specifi-
cally, he alleged that the nurses waited until the jail ran out of med-
ication to order more “instead of adequately maintain a stock sup-
ply,” meaning he was not provided medication “as scheduled.” He
contended that the nurses “knew or recklessly disregard[ed]” the
risk of harm caused by this practice.
On the dietary claim, Thomas alleged that officials pre-
scribed a renal diet that “d[id] not exist” and, in any event, was “nu-
tritionally inadequate” for his condition. He laid the blame for the
dietary violations on two sergeants—Mark Putnam and Michael
McInnis—and Dena Paquette (erroneously identified as Dena
Paqueth), who served as the food service coordinator.
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4 Opinion of the Court 20-13471
Thomas attached to his complaint a number of grievances
that corroborated his allegations. Beginning in July 2017, and con-
tinuing through the filing of the amended complaint, he filed vari-
ous grievances alleging that he was denied prescribed medication.
However, the bulk of the grievances concerned his dietary claim.
Time and again, he grieved that he received a renal diet that was
nutritionally inadequate because he was either provided food he
should not eat or not provided food he should eat. He was on the
diet from September 30, 2017, to January 29, 2018, when he re-
quested to be taken off the diet against the advice of the jail’s med-
ical staff.
The jail’s policies require an inmate wishing to file a griev-
ance to request a form from the deputy assigned to his unit. The
form is two pages—the first page asks for information related to
the initial complaint and contains space for a response, and the sec-
ond page provides space for arguments in support of appeals. The
form must be submitted within seven days of the incident forming
the basis of the complaint, “unless it was not feasible within that
time period.” Within fifteen days, the jail will respond to the griev-
ance; however, a grievance “will not be processed” if the form is
improperly completed or the complaint is deemed frivolous, “ex-
cessive or repetitive in nature,” or “previously answered.” Once an
inmate receives “a response,” he may “appeal to a division com-
mander” within five days. A commander’s response is appealable
to “the major,” and “[t]he major’s decision is final.”
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20-13471 Opinion of the Court 5
Most of Thomas’s grievances were denied, and he rarely ap-
pealed. In July 2017, Thomas requested the rules governing the
jail’s “grievance procedure.” An official responded that he should
make a “legal request” to the law library for the procedures. De-
spite filing numerous grievances thereafter, Thomas did not re-
quest the procedures until November 2017, and he received a copy
a few weeks later.
That same month, Thomas attempted to appeal six griev-
ances at once. He “request[ed] excusable neglect . . . be applied” to
excuse the five-day appeal deadline, claimed that the responses he
received failed to “inform [him] that [he] could seek further ap-
peal,” and stated that jail officials had taken his copies of the prior
grievances. The jail’s grievance coordinator, Sergeant Iliopoulos,
responded that Thomas had not followed “the proper protocol to
appeal.” Iliopoulos suggested that he appeal each grievance “in the
space provided” on the form, but also informed him that each of
the grievances was outside of the five-day deadline. In any event,
Iliopoulos had “spoken with medical and the kitchen” and learned
that potatoes, the food Thomas most often complained about re-
ceiving, “were not restricted from [his] diet.” As a result, Iliopoulos
warned Thomas that any future grievance related to “this matter
w[ould] be returned unprocessed.” Thomas continued filing griev-
ances related to his diet until it was discontinued.
After Thomas recast his complaint, a magistrate judge
screened it pursuant to
28 U.S.C. §§ 1915 and 1915A. The magis-
trate judge recommended dismissing Thomas’s claims because he
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6 Opinion of the Court 20-13471
alleged, “[a]t best, . . . that on two occasions [the nurses] did not
provide him medication because they ‘ran out.’” This allegation, as
the magistrate judge characterized it, failed to give rise to a claim
for deliberate indifference. The magistrate judge recommended
dismissing the remainder of Thomas’s allegations, as well.
Thomas objected to the dismissal recommendation, noting
that “[t]he crux of [his] claims is failure to provide necessary medi-
cation and nutritionally adequate diet for his serious medical
need.” He repeated the allegation against the nurses—that they
failed to provide his medication “as prescribed” from March 2017
through December 2018. In fact, he attached two recent medical
grievances that were deemed “valid” by jail officials and upheld on
appeal. And he continued to argue that the diet provided was inad-
equate to address his medical needs.
The district court dismissed Thomas’s medication claim but
permitted the dietary claim to proceed. The district court agreed
with the magistrate judge that failing to provide an inmate with
medication on “two occasions” does not support a deliberate indif-
ference claim, and thereby adopted the report and recommenda-
tion to that extent. But the district court concluded that the magis-
trate judge gave Thomas’s dietary claim short shrift. Thomas’s
complaint adequately alleged that “McInnis, Putnam, and
Paquet[te] knew of his serious illness . . . but refused to provide him
with a medically appropriate diet for that illness.” Thus, the district
court refused to adopt that part of the recommendation, and only
Thomas’s dietary claim against McInnis, Putnam, and Paquette
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20-13471 Opinion of the Court 7
was permitted to proceed. Thomas attempted to appeal the dismis-
sal order, but this Court dismissed his appeal for lack of jurisdiction.
Thomas v. Bradshaw, et al., No. 19-11007, (11th Cir. May 30, 2019).
Eventually, the defendants moved for summary judgment.
The district court granted summary judgment to Paquette based
on Thomas’s failure to exhaust his administrative remedies. See 42
U.S.C. § 1997e(a). It was undisputed that Thomas “failed to appeal
a single grievance” related to his dietary claim, and he provided no
basis for excusing his neglect. As for McInnis and Putnam, who did
not move for summary judgment on exhaustion grounds, the dis-
trict court concluded that Thomas’s claims against them failed on
the merits. Thomas appealed to this Court, and we appointed
counsel to represent him.
II.
We review a district court’s dismissal of a complaint for fail-
ure to state a claim under Section 1915A de novo, taking the alle-
gations in the complaint as true. See Hughes v. Lott,
350 F.3d 1157,
1159-60 (11th Cir. 2003).
We review a district court’s grant of summary judgment de
novo, drawing all justifiable factual inferences in Thomas’s favor.
Pourmoghani-Esfahani v. Gee,
625 F.3d 1313, 1315 (11th Cir. 2010).
But where a district court applies Section 1997e(a)’s exhaustion re-
quirement, we review the factual findings relating to the exhaus-
tion requirement for clear error. Varner v. Shepard,
11 F.4th 1252,
1257 (11th Cir. 2021); see Bryant v. Rich,
530 F.3d 1368, 1377 (11th
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8 Opinion of the Court 20-13471
Cir. 2008). “For a factual finding to be clearly erroneous,” our re-
view of the record must leave us “with the definite and firm con-
viction that a mistake has been committed.” Lykes Bros. v. U.S.
Army Corps of Engineers,
64 F.3d 630, 634 (11th Cir. 1995) (quota-
tion omitted).
III.
Thomas makes three arguments on appeal. First, he con-
tends that the district court based its dismissal order on a recharac-
terization of his complaint. Second, he argues that he was not re-
quired to exhaust his administrative remedies because the jail’s
grievance procedures were not available to him. And third, he con-
tends that genuine issues of material fact should have precluded
summary judgment. Considering each argument in turn, we agree
with the first, disagree with the second, and see no reason to reach
the third.
A. The district court based its dismissal order on an erroneous
reading of Thomas’s complaint.
Thomas argues that the district court recharacterized and
narrowed the allegations in his complaint related to the jail’s pro-
vision of medication. He contends that, by limiting his allegations
to two instances of emergency treatment, the district court disre-
garded “the pattern of reckless treatment actually alleged” in his
complaint. Because the district court dismissed the medication the-
ory at the screening stage, the named nurse defendants were never
served. Thus, no party defends the district court’s reasoning on
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20-13471 Opinion of the Court 9
appeal. In any event, having reviewed the record, we agree with
Thomas.
Section 1915A requires a district court to screen a prisoner
complaint seeking redress from a government official. 28 U.S.C. §
1915A(a). If the district court concludes that the complaint “fails to
state a claim upon which relief may be granted,” it “shall . . . dismiss
the complaint.” Id. § 1915A(b); see also id. § 1915(e)(2)(B)(ii) (re-
quiring a district court to “dismiss the case at any time if the court
determines that . . . the action or appeal . . . fails to state a claim
upon which relief may be granted.”). The standard applicable to a
dismissal under Section 1915A is the same as the standard set out
under Federal Rule of Civil Procedure 12(b)(6), meaning a court
must dismiss the complaint only if, after taking the allegations con-
tained therein as true, it fails to state a claim. Mitchell v. Farcass,
112 F.3d 1483, 1490 (11th Cir. 1997).
The Eighth Amendment to the United States Constitution
prohibits “cruel and unusual punishments.” U.S. Const. amend.
VIII. “Technically, the Fourteenth Amendment Due Process
Clause, not the Eighth Amendment prohibition on cruel and unu-
sual punishment, governs pretrial detainees” like Thomas, but the
standards “are identical.” Goebert v. Lee Cnty.,
510 F.3d 1312, 1326
(11th Cir. 2007). “Grossly incompetent or inadequate medical care
can violate the [E]ighth [A]mendment.” Rogers v. Evans,
792 F.2d
1052, 1062 (11th Cir. 1986). As such, “deliberate indifference to a
prisoner’s serious illness or injury states a cause of action under [42
U.S.C. §] 1983.” Estelle v. Gamble,
429 U.S. 97, 104 (1976). But
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10 Opinion of the Court 20-13471
“[m]ere negligence or malpractice does not” give rise to a cause of
action—instead, a prisoner must allege “[m]edical care so inappro-
priate as to evidence intentional maltreatment or a refusal to pro-
vide essential care.” Evans,
792 F.2d at 1058 (citation omitted).
A deliberate indifference claim has objective and subjective
components. See Taylor v. Adams,
221 F.3d 1254, 1258 (11th Cir.
2000). The plaintiff must show: (1) that he has “an objectively seri-
ous medical need,” id.; (2) that, subjectively, the defendants were
deliberately indifferent to that need; and (3) that the defendants’
indifference caused the plaintiff’s injury, Mann v. Taser Int’l, Inc.,
588 F.3d 1291, 1306–07 (11th Cir. 2009). The subjective component
has three sub-components: “[t]o establish deliberate indifference, a
plaintiff must demonstrate that the prison officials (1) had subjec-
tive knowledge of a risk of serious harm; (2) disregarded that risk;
and (3) acted with more than gross negligence.” Hoffer v. Sec'y,
Fla. Dep’t of Corr.,
973 F.3d 1263, 1270 (11th Cir. 2020).
Here, the district court improperly dismissed Thomas’s
medication claim. At the outset, we agree with Thomas that the
district court misconstrued his complaint and narrowed the allega-
tions contained therein. Although Thomas contended that the
nurses inconsistently provided his medications from March 2017,
through the date of the amended complaint, the district court er-
roneously concluded that he alleged only “that nurses . . . did not
provide him his medication on two occasions . . . .” Giving liberal
construction to Thomas’s pro se complaint, see Tannenbaum v.
United States,
148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam), we
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20-13471 Opinion of the Court 11
believe his allegations were much broader—he alleged that the
problem repeatedly occurred over multiple months, which led to
two hospitalizations.
Further, we agree with Thomas that, at the motion to dis-
miss stage, he stated a deliberate indifference claim against the
nurses for failing to provide his medication. He argued that the
nurses were aware he had been diagnosed with “end-stage renal
disease,” which constitutes a serious medical need. See Goebert,
510 F.3d at 1326 (explaining that a serious medical need “is one that
has been diagnosed by a physician as mandating treatment” (quo-
tation omitted)). He contended that the nurses were aware that
failing to provide him with medication presented a risk of harm.
He argued that the nurses “recklessly disregarded” that risk by con-
tinually running out of medication even after he needed emer-
gency treatment on two occasions. And viewing these allegations
in Thomas’s favor, the nurses acted with more than gross negli-
gence. After all, Thomas alleged that his medication was inconsist-
ently provided for months. He corroborated these allegations with
grievances, several of which were deemed valid by jail officials. As
we have explained, “a defendant who delays necessary treatment
for non-medical reasons,” as Thomas alleged here, “may exhibit
deliberate indifference.” Bingham v. Thomas,
654 F.3d 1171, 1176
(11th Cir. 2011) (citing Hill v. Dekalb Reg’l Youth Det. Ctr.,
40 F.3d
1176, 1187 (11th Cir.1994), abrogated on other grounds by Hope v.
Pelzer,
536 U.S. 730 (2002)). Accordingly, these allegations were
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12 Opinion of the Court 20-13471
sufficient to state a deliberate indifference claim, and we reverse
the district court’s dismissal order.
B. Thomas failed to properly exhaust the dietary needs claim.
As to Thomas’s dietary needs claim, Thomas argues that the
district court incorrectly concluded that he failed to exhaust his ad-
ministrative remedies for three reasons. First, he contends that
“there was never any formal determination by any [jail] official”
that his appeals were untimely. Second, he contends that the jail’s
grievance procedure was “a classic run-around” in that it presented
no practical opportunity for his grievances to be addressed. And
third, he argues that jail officials “thwarted and interfered” with his
attempts to satisfy the grievance process. We disagree.
“Before a prisoner may bring a prison-conditions suit under
[Section] 1983, the Prison Litigation Reform Act of 1995 requires
that he exhaust all available administrative remedies.” Whatley v.
Warden, Ware State Prison,
802 F.3d 1205, 1208 (11th Cir. 2015)
(citing 42 U.S.C. § 1997e(a)). A prisoner is “not required to specially
plead or demonstrate exhaustion”—instead, it is an affirmative de-
fense. Jones v. Bock,
549 U.S. 199, 216 (2007). For a defendant to
preserve the defense, “exhaustion . . . must be raised in a responsive
pleading.” Bingham,
654 F.3d at 1175; Fed. R. Civ. P. 8(c)(1); see
Latimer v. Roaring Toyz, Inc.,
601 F.3d 1224, 1239 (11th Cir. 2010)
(“Failure to plead an affirmative defense generally results in a
waiver of that defense.”).
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20-13471 Opinion of the Court 13
We have explained that a district court undertakes a two-
step process when determining whether a prisoner has exhausted
his administrative remedies. Turner v. Burnside,
541 F.3d 1077,
1082 (11th Cir. 2008). At the first step, the district court asks
whether the factual allegations in the complaint, taken as true, in-
dicate that the defendant is entitled to dismissal.
Id. If not, “the
court then proceeds to make specific findings in order to resolve
the disputed factual issues related to exhaustion.”
Id. The defend-
ants bear the burden of proving their exhaustion defense.
Id.
To determine whether a prisoner has exhausted a claim, the
district court must determine whether the prisoner has complied
with his facility’s grievance procedures. Jones,
549 U.S. at 218. The
Supreme Court has recognized, however, that although a prisoner
“must exhaust available remedies,” he “need not exhaust unavaila-
ble ones.” Ross v. Blake,
578 U.S. 632, 642 (2016). A remedy may
be unavailable when, as a practical matter, “it operates as a simple
dead end—with officers unable or consistently unwilling to pro-
vide any relief.”
Id. at 643. Or a remedy may be unavailable “when
prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or in-
timidation.”
Id. at 644.
Here, based on an undisputed record, the district court
found that Thomas failed to follow the jail’s grievance procedures
beyond the initial submission. It adopted the magistrate judge’s
conclusion that “Thomas failed to appeal any single grievance re-
lated to his allegations that he did not receive a medically
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14 Opinion of the Court 20-13471
appropriate diet.” The district court determined that Thomas’s
grievances were duplicative, sought inconsistent relief, and were
contradictory. It also considered Thomas’s attempt to appeal “six
of the sixteen grievances he previously submitted,” but determined
that the appeal was not permitted by the jail’s grievance policy.
We cannot say the district court clearly erred. The jail’s
grievance policy required Thomas to appeal an unsatisfactory re-
sponse within five days. The district court’s conclusion that he
failed to properly appeal a single dietary grievance finds abundant
support in the record. His sole attempt to appeal was contrary to
the jail’s policies, as Iliopoulos’s response explained. As such,
Thomas failed to exhaust his dietary claim.
Thomas’s arguments to the contrary are unavailing. First,
Thomas misconstrues the grievance procedures in order to argue
that his sole attempt to appeal was never processed. He suggests
that Iliopoulos, the grievance coordinator, should have “trans-
mit[ted] those appeals to the proper officer” rather than provide a
response. But Thomas submitted his so-called appeals as an initial
grievance instead of an appeal, as Iliopoulos explained. In any
event, Thomas fails to explain why it matters. He does not contend
that his appeals were otherwise in compliance with the jail’s proce-
dures, nor does he suggest that the division commander might
have reached a different conclusion.
Next, we disagree that the jail’s grievance process was a
“dead end.” Ross, 578 U.S. at 643. In support of this argument,
Thomas seems to suggest that the jail failed to give due
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20-13471 Opinion of the Court 15
consideration to his grievances because it rejected some and
deemed others duplicative. Again, he suggests that this prevented
his grievances from being “processed,” which he conflates with fail-
ing to “respond[]” at all. We have not found an instance of Thomas
raising this argument before the district court. See Access Now,
Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004) (hold-
ing that this Court does not consider arguments raised for the first
time on appeal). But even if he had, the argument fails. An inmate’s
right to appeal is triggered simply by a “response.” Thomas does
not contend that his grievances went unanswered. Instead, he in-
vents a requirement—that the jail “process” his grievances, no mat-
ter how frivolous or duplicative—that finds no support in the griev-
ance procedures.
Finally, we are not persuaded that Thomas was prevented
from exhausting his remedies such that they were unavailable to
him. See Ross, 578 U.S. at 644. Curiously, Thomas suggests that
Iliopoulos thwarted his ability to pursue an appeal by enforcing the
jail’s grievance procedures. He acknowledges that Iliopoulos
deemed his appeals either untimely or improperly formatted, and
nowhere does he contend that Iliopoulos erred in that conclusion.
Instead, he contends that Iliopoulos “interfere[ed]” with his ability
to exhaust by “unilaterally opin[ing]” on the matter. Thomas did
not suggest that Iliopoulos thwarted his attempts “through machi-
nation, misrepresentation, or intimidation,” the concerns identified
by the Supreme Court. Ross, 578 U.S. at 644. And even if we were
inclined to recognize a category of unavailability not mentioned in
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16 Opinion of the Court 20-13471
Ross, see Geter v. Baldwin State Prison,
974 F.3d 1348, 1356 (11th
Cir. 2020) (not deciding whether we can recognize additional cate-
gories of unavailability), we decline to do so here because Iliopou-
los’s conclusions were correct under the jail’s grievance proce-
dures.
Because Thomas failed to exhaust his dietary claim, we need
not reach the district court’s determination on the merits. We note
that although the district court considered exhaustion only in the
context of Paquette’s motion for summary judgment, McInnis and
Putnam also pleaded failure to exhaust as an affirmative defense in
their first responsive pleading. See Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1256 (11th Cir. 2001) (explaining that this Court may
affirm a district court on any ground supported by the record).
Thomas has not argued that McInnis and Putnam waived the af-
firmative defense by not raising it in their summary-judgment mo-
tion. Nor do we read the district court’s order as applicable to
Paquette alone. Thus, we do not reach the merits of Thomas’s diet
claim because he failed to exhaust his administrative remedies, and
all defendants were entitled to summary judgment on that ground
alone.
IV.
We REVERSE the district court’s order dismissing
Thomas’s medication claim. We AFFIRM the district court’s order
granting summary judgment to Paquette, McInnis, and Putnam on
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20-13471 Opinion of the Court 17
Thomas’s dietary claim. We REMAND for further proceedings
consistent with this opinion.
