SMITH v. COMERFORD

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
CORNELL SMITH,
Plaintiff,
v. 	Case No. 5:25-cv-55-MW-MJF
RICHARD COMERFORD,1
Defendant.
/
REPORT AND RECOMMENDATION
In this § 1983 action, Plaintiff Cornell Smith, a Florida prisoner,
sues the Secretary of the Florida Department of Corrections (“FDC”).
Smith alleges that the FDC’s refusal to grant him a religious exemption
to 	its 	beard 	grooming 	policy 	violates 	the 	First 	and 	Fourteenth
Amendments and the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”). Defendant moves to dismiss this civil action on three
grounds: (1) Smith failed to exhaust his administrative remedies; (2)
1 On July 1, 2026, Florida Governor Ron DeSantis appointed Richard
Comerford as the Secretary of the Florida Department of Corrections.
Because Plaintiff sues the former FDC Secretary Ricky Dixon only in his
official capacity, pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Comerford automatically is substituted as the Defendant.
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Smith fails to allege a violation of the First Amendment; and (3) Smith
fails to allege a violation of the Fourteenth Amendment. Doc. 37. Smith
opposes the motion. Doc. 44.
On March 3, 2026, the undersigned recommended that the District
Court grant Defendant’s motion in part and deny the motion in part. Doc.
46. Specifically, the undersigned found that although Smith exhausted
his administrative remedies, Smith failed to state a claim under the First
and Fourteenth Amendments. Thus, the undersigned recommended that
the District Court allow the case to proceed only on Smith’s RLUIPA
claim.
On March 17, 2026, Defendant filed objections to the report and
recommendation. Doc. 49. On April 2, 2026, the District Court rejected
the 	report 	and 	recommendation 	and 	referred 	the 	objections 	to 	the
undersigned for consideration. Doc. 52.
Having 	considered 	Defendant’s 	objections, 	the 	undersigned’s
analysis remains unchanged. The undersigned recommends that the
District Court grant in part and deny in part Defendant’s motion.
BACKGROUND
The FDC’s rule on beard grooming states: “All inmates shall elect
either to be clean shaven or to grow and maintain a half-inch beard. Such
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a beard shall include all the hair that grows naturally on the face and
front of the neck, excluding eyebrows and eyelashes.” Fla. Admin. Code
Ann. r. 33-602.101 (“grooming policy”) (2018). “[R]eligious beliefs do not
justify violation of Department or institutional rules and regulations.”
Fla. Admin. Code r. 33-503.001(2)(c)2.
Smith is a Muslim. Doc. 13 at 7. A tenet of Smith’s Islamic faith is
that “it is mandatory for all able Muslims to grow a beard unrestricted
with the exception of trimming their mustache.” Id. On October 11, 2024,
a prison official ordered Smith to shave his beard in compliance with the
grooming policy. Id.
Smith sought relief through the FDC’s grievance process. Smith’s
informal grievance was denied. Id. Smith then filed a formal grievance
seeking a religious accommodation or a permanent pass exempting
Smith from the beard grooming policy. Smith’s formal grievance was
denied. Id. at 7–8. Smith appealed to the Office of the Secretary on
November 4, 2024, but did not receive a response. Id. at 8.
Smith claims that the FDC’s refusal to exempt Smith from the
beard grooming policy violates Smith’s rights under RLUIPA and the
First and Fourteenth Amendments. Smith sues Defendant in his official
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capacity and seeks declaratory and injunctive relief that prevents prison
officials from applying the grooming rule to him. Id. at 9.
D ISCUSSION
A. 	Defendant 	Fails 	to 	Demonstrate 	that 	Smith 	Failed 	to
Exhaust the Administrative Remedies
Defendant alleges that Smith failed to exhaust his administrative
remedies because, although Smith complied with the three steps of the
FDC’s grievance process, Smith could have—and should have—asked the
FDC to “amend or repeal and replace” its grooming policy by filing a
Petition to Initiate Rulemaking (“PIRM”) under Fla. Stat. § 120.54(7).
Defendant argues that a PIRM was required by the FDC’s Inmate
Orientation Handbook and Fla. Admin. Code r. 33-103.001(6). Doc. 37 at
2–3, 4–14.
Smith responds that under the Eleventh Circuit’s Sims decision,
the PLRA requires only that prisoners seeking a religious exemption
from 	the 	grooming 	policy 	exhaust 	the 	internal 	prison 	grievance
procedure. Doc. 44 (citing Sims v. Sec’y, Fla. Dep’t of Corr., 75 F.4th 1224,
1230–31 (11th Cir. 2023).
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1. 	The PLRA’s Exhaustion Requirement
The Prison Litigation Reform Act (“PLRA”) provides that: “No
action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any
jail, 	prison, 	or 	other 	correctional 	facility 	until 	such 	administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This
exhaustion requirement applies to all inmate suits that concern prison
life. See Porter v. Nussle, 534 U.S. 516, 524 (2002).
“[F]ailure to exhaust is an affirmative defense under the PLRA.”
Jones v. Bock, 549 U.S. 199, 216 (2007). “[I]nmates are not required to
specially plead or demonstrate exhaustion in their complaints.” Id. at
216.
“[P]roper exhaustion of administrative remedies . . . means using
all steps that the agency holds out, and doing so properly (so that the
agency addresses the issues on the merits).” Woodford v. Ngo, 548 U.S.
81, 90 (2006) (emphasis in original) (internal quotation marks and
citation omitted). “To determine ‘proper exhaustion’ in prisoner civil
rights actions, courts must look to the requirements of the 	‘prison
grievance system.’” Gipson v. Renninger, 750 F. App’x 948, 951 (11th Cir.
2018) (quoting Woodford, 548 U.S. at 95). In other words, courts “look to
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the requirements of the applicable prison grievance system to determine
the boundaries of proper exhaustion.” Sims, 75 F.4th at 1230.
Generally, the FDC’s administrative remedy program requires an
inmate 	to 	begin 	the 	grievance 	process 	by 	submitting 	an 	informal
grievance to the designated staff member, who forwards the informal
grievance to the staff member responsible in the particular area of the
problem. Fla. Admin. Code r. 33-103.005. “If that fails, the prisoner files
a formal grievance with the institution’s warden or assistant warden.”
Sims, 75 F.4th at 1230 (citing Fla. Admin. Code r. 33-103.006(1)). If the
inmate is dissatisfied with the response to the formal grievance, he may
file an appeal to the Office of the Secretary. Sims, 75 F.4th at 1230 (citing
Fla. Admin. Code r. 33-103.007(1)).
2. 	The Framework for Evaluating an Exhaustion Defense
A failure to exhaust administrative remedies is an affirmative
defense that the defendant bears the burden of proving. Jones, 549 U.S.
at 216; 	Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).
Addressing a motion to dismiss for failure to exhaust involves two steps.
Turner, 541 F.3d at 1082.
First, the court looks to the factual allegations in the defendant’s
motion, and those in the plaintiff’s response. See id. at 1082. If they
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conflict, the court accepts 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.
If the complaint is not subject to dismissal at the first step—where
the plaintiff’s allegations are assumed to be true—“the court proceeds to
make specific findings in order to resolve the disputed factual issues
related to exhaustion.” Turner, 541 F.3d at 1082 (citing Bryant v. Rich,
530 F.3d 1368, 1373–74, 1376 (11th Cir. 2008)). Upon making findings
on the disputed issues of fact, the court then decides whether, under
those findings, the plaintiff has exhausted his available administrative
remedies. “A district court may properly consider facts outside of the
pleadings to resolve a factual dispute regarding exhaustion where the
factual dispute 	does not 	decide 	the 	merits 	and the 	parties have 	a
sufficient opportunity to develop the record.” Singleton v. Dep’t of Corr.,
323 F. App’x 783, 785 (11th Cir. 2009) (citing Bryant, 530 F.3d at 1376)).
3. 	Application of the Turner Procedure
The parties agree that Smith filed an informal grievance, a formal
grievance, and an appeal to the Secretary. Doc. 37 at 7–8; Doc. 37-1, Ex.
A; Doc. 44. Defendant does not dispute that those three steps are
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typically sufficient for complete exhaustion. See Fla. Admin. Code r. 33-
103.001. Defendant argues, however, that Smith’s request triggered
another requirement: that he separately petition to initiate rulemaking
to “amend” the grooming policy by filing a PIRM. Doc. 37 at 8–14.
The Eleventh Circuit previously concluded that “Florida’s grievance
procedures do not require that a prisoner file a Petition to Initiate
Rulemaking. Florida’s process instead requires just three things: an
informal grievance, a formal grievance, and an appeal to the Secretary.”
Sims, 	75 	F.4th 	at 	1231. 	Sims 	noted 	that 	neither 	the 	Florida
Administrative Code nor the Inmate Orientation Handbook referenced a
PIRM. Id. at 1230–31. It bears noting that the FDC updated both after
Sims.
On May 28, 2024, the FDC amended its rules to state that, “[i]f an
inmate is requesting that the Department adopt, amend, or repeal a rule,
the inmate must file a Petition to Initiate Rulemaking in addition to
utilizing the [three-step] grievance process in Chapter 33-103, F.A.C.”
Fla. Admin. Code r. 33-103.001(6); see also Fla. Stat. § 120.54(7)(a) (“Any
person regulated by an agency or having substantial interest in an
agency rule may petition an agency to adopt, amend, or repeal a rule[.]”).
Even 	before 	the 	amendment 	became 	effective, 	the 	FDC’s 	inmate
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handbook dated 2023 stated: “If you wish to request that the Department
adopt, amend, or repeal a rule, you must also file a Petition to Initiate
Rulemaking.” Doc. 37-2, Ex. B.
Smith filed his grievances in fall 2024, shortly after Fla. Admin.
Code r. 33-103.001(6) became effective. 	See 	Doc. 37-1, Ex. A. Thus,
Defendant 	argues 	that 	Smith 	failed 	to 	exhaust 	his 	administrative
remedies because he never filed a PIRM asking the FDC to amend its
rule.
Even assuming the PIRM is sometimes part of the 	grievance
process, it was not required for Smith in this case. As two judges in the
Northern District of Florida have explained, “[t]he petition requirement
is a conditional one.” Yo’Seph v. Dixon, No. 1:24-cv-137-AW-ZCB, ECF
No. 57 at 4 (N.D. Fla. Sept. 30, 2025) (copy at Doc. 37-4, Ex. D); Davis v.
Dixon, No. 1:24-cv-145-MCR-HTC, 2025 WL 1214237, at *1, 4 (N.D. Fla.
Feb. 6, 2025), report and recommendation adopted, 2025 WL 1207985
(N.D. Fla. Apr. 25, 2025).
The plain language of the PIRM amendment required a PIRM only
“if” Smith were “requesting that the Department adopt, amend, or repeal
a rule.” Fla. Admin. Code r. 33-103.001(6).
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Neither Smith’s amended complaint, nor his 2024 grievances ever
asked the FDC to adopt, amend, or repeal the grooming policy/rule.
Instead, Smith simply asked to “be exempt” from the grooming rule due
to his religious beliefs. Doc. 37-1, Ex. A at 3. Because FDC rules specify
that an inmate is subject to the PIRM requirement only when he asks
the FDC to amend its rules, and Smith made no such request, he was not
required to file a PIRM. See Young v. Grand Canyon Univ., Inc., 980 F.3d
814, 818 (11th Cir. 2020) (“We construe regulations ‘in much the same
way we interpret statutes,’ so we start with the text—and, if we find it
clear, we end there as well.”) (citation omitted). To be clear, Smith has
never 	sought—nor 	does 	he 	presently 	seek—to 	change 	the 	FDC’s
grooming policy. Smith merely seeks a religious exemption from that
policy.
Several district courts have rejected Defendant’s argument that an
inmate’s request for an exemption to a rule is effectively a request to
amend the rule.2 Those courts, consistent with the analysis above, have
2 The undersigned located only one case that suggested filing a PIRM was
a required component of administrative exhaustion. However, even that
court found the inmate had to file a PIRM only if he directly sought to
amend the FDC rule regarding inmate property. See Smith v. Conner,
2014 WL 299099, *4 n.6 (M.D. Fla. Jan. 28, 2014). Furthermore, the
discussion of exhaustion in the case, which came entirely in a footnote, is
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focused on the specific request made by the inmate and concluded a
request for an exemption does not equate to a request for a rule change.
See Yo’Seph v. Dixon, No. 1:24-cv-137-AW-ZCB, ECF No. 75 at 2 (N.D.
Fla. Dec. 16, 2025); id., ECF No. 57 at 4–6 (N.D. Fla. Sept. 30, 2025);
Davis, 2025 WL 1214237, at *4 (N.D. Fla. Feb. 6, 2025), report and
recommendation adopted, 2025 WL 1207985, at *1 (N.D. Fla. Apr. 25,
2025); see also Evans v. Dixon, 2024 WL 4504157, at *3 (M.D. Fla. Oct.
16, 2024); Denson v. Dixon, 2023 WL 5200482, at *6 (M.D. Fla. Aug. 14,
2023); Cook v. Jones, 2019 WL 6868982, at *3 (N.D. Fla. Nov. 22, 2019),
report and recommendation adopted, 2019 WL 6841976 (N.D. Fla. Dec.
16, 2019).
Yo’Seph and Davis were decided on identical facts. Although cases
like Evans and Denson were decided before the PIRM amendment took
effect, they nonetheless remain persuasive because the rationale for
those decisions was not simply that the PIRM provision was absent from
dicta because the court granted summary judgment in favor of the
defendants on the merits of the inmate’s conditions of confinement
claims. Regardless, the Eleventh Circuit's later decision in Sims v. Sec’y,
Fla. Dep’t of Corr., 75 F.4th 1224 (11th Cir. 2023), is inconsistent with
that footnote. Thus, Smith offers no support for Defendant’s argument.
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the FDC’s rules; instead, the courts found that an inmate’s request for an
exemption to a rule is not a request to amend the rule.
Defendant insists that Smith must seek a rule change under Fla.
Stat. § 120.54(7), “because no other statutory remedy is available to
Plaintiff under the 	Florida Administrative 	Procedures Act 	(“Florida
APA”) which would allow for the relief he seeks.” Doc. 37 at 9–10, 11. For
the 	reasons 	outlined 	above, 	however, 	the 	absence 	of 	relief 	in 	the
administrative process does not transform the nature of Smith’s request
or the relief sought, and Sims does not suggest otherwise. See Yo’Seph,
No. 1:24-cv-137, ECF No. 57 at 6 n.2 (copy at Doc. 37-4, Ex. D); Id., ECF
No. 75 at 2–3; Davis, 2025 WL 1214237, at *5.
4. 	Defendant’s 	Objections 	to 	the 	Initial 	Report 	and
Recommendation
Defendant’s objections to the initial report and recommendation
generally 	just 	rehashed 	the 	arguments 	the 	undersigned 	previously
considered when evaluating Defendant’s motion to dismiss. Docs. 37, 49.
Defendant again argues that the report and recommendation errs in
finding that the requirement to file a PIRM does not apply to Smith. Doc.
49 at 4. But in his motion to dismiss, Defendant conceded that filing a
PIRM was “an additional remedy.” Doc. 37 at 8. Defendant also conceded
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that the filing of a PIRM was distinct from a request for an exemption,
stating:
Plaintiff 	can 	utilize 	a 	PRIM [sic] 	to 	make 	a 	request 	for
section 33-602.101(4) of the Florida Administrative Code to
be repealed and replaced entirely or amended to allow for
religious 	exemptions; 	however, 	Plaintiff 	has 	not 	availed
himself 	of 	the 	remedy 	even 	though 	the 	Florida
Administrative Code requires that he do so. § 33-103.001(6)
Fla. Admin. Code.
Doc. 37 at 10.
As discussed above, the FDC has presented its PIRM argument in
at least two cases with nearly identical facts. Both district courts rejected
the argument. For example, in Yo’Seph, Judge Allen Winsor rejected the
FDC’s argument and explained:
Despite 	that, 	the 	Department 	says 	he 	did 	trigger 	the
requirement 	and needed 	to 	file 	a petition. 	First, 	it 	says
exemptions are not available under state law. ECF No. 70 at
4-5. But Yo’Seph can seek relief even if the administrative
process does not offer what he seeks; state limitations do not
dictate. Cf. Booth v. Churner, 532 U.S. 731, 740-41 (2001).
Second, 	the 	Department 	says 	the 	Petition 	to 	Initiate
Rulemaking is available to him and could have provided
relief, so he should have pursued it. ECF No. 70 at 6. But to
exhaust, Yo’Seph only needed to comply with the grievance
process itself. Sims, 75 F.4th at 1230. As outlined above, he
did what was required of him. Cf. Trevari v. Robert A. Deyton
Det. Ctr., 729 F. App’x 748, 752 (11th Cir. 2018) (“Proper
exhaustion generally does not require that a prisoner resort
to 	optional 	administrative 	procedures 	to 	address 	prison
conditions.”).
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Yo’Seph, No. 1:24-cv-137, ECF 75 at 2–3.
Judge Winsor’s reasoning is equally applicable in this matter.
Plaintiff is required to comply only with the grievance process itself,
which he did. Requiring Plaintiff to pursue an additional remedy which
is both optional and conditional would violate the standard set forth in
Trevari, 729 F. App’x at 752.
B. 	Smith Fails to State a First-Amendment Claim
“A state actor violates a prisoner’s First Amendment rights under
the Free Exercise Clause by imposing a substantial burden on his
practice of religion.” Mays v. Joseph, 2022 WL 18981, at *2 (11th Cir. Jan.
3, 2022) (citing Church of Scientology Flag Serv. Org., Inc. v. City of
Clearwater, 2 F.3d 1514, 1549 (11th Cir. 1993)). A free-exercise-of-
religion claim “must allege that the government has impermissibly
burdened the plaintiff’s sincerely held beliefs.” Id. (citing Watts v. Fla.
Int’l Univ., 495 F.3d 1289, 1294 (11th Cir. 2007)).
A prison regulation burdening free exercise rights is valid if it is
“reasonably related to legitimate penological interests.” Turner v. Safley,
482 U.S. 78, 89 (1987). The Eleventh Circuit “has squarely held that
grooming policies serve a legitimate penological interest and are not
violative of inmates’ First Amendment rights to religious expression.”
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Mays, 2022 WL 18981, at *2; see Harris v. Chapman, 97 F.3d 499, 504
(11th Cir. 1996) (upholding a prison prohibition on long hair and beards
as 	furthering 	the 	compelling 	governmental 	interest 	of 	maintaining
security); 	Solomon 	v. 	Zant, 	888 	F.2d 	1579, 	1582 	(11th 	Cir. 	1989)
(upholding a “no-beard” policy because the government had a legitimate
penological interest in safety).
Here, 	Smith 	alleges 	very 	few 	facts 	in 	support 	of 	his 	First-
Amendment claim. Smith’s amended complaint alleges nothing about
prison conditions, the policy’s rationale, or whether there are reasonable
alternatives to limiting beards. Accordingly, Smith has failed to allege
sufficient facts to state a claim upon which relief can be granted. See, e.g.,
Mays, 2022 WL 18981, at *2; McWilliams v. Dixon, 2024 WL 2193988, at
*3 (S.D. Fla. Apr. 26, 2024); Sultan v. Dixon, 2024 WL 901555, at *1–2
(M.D. Fla. Jan. 29, 2024).
C. 	Smith Fails to State an Equal-Protection Claim
Smith alleges that Defendant violated the Equal Protection Clause
because “other Muslims are being religiously accommodated in growing
their beards unrestricted.” Doc. 13 at 9.
To state an Equal-Protection claim, a prisoner must allege that “(1)
‘he 	is 	similarly 	situated 	with 	other 	prisoners 	who 	received’ 	more
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favorable treatment; and (2) his discriminatory treatment was based on
some constitutionally protected interest such as race.” Jones v. Ray, 279
F.3d 944, 946–47 (11th Cir. 2001) (quoting Damiano v. Fla. Parole &
Prob. Comm’n, 785 F.2d 929, 932–33 (11th Cir. 1986)). Smith alleges no
discriminatory 	motive 	other 	than 	to 	simply 	state 	that 	his 	Equal-
Protection rights were violated. That is insufficient to state a claim under
the Equal Protection Clause. See Jones, 279 F.3d at 947.
CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
1. 	GRANT IN PART and DENY IN PART Defendant’s motion
to dismiss, Doc. 37, as follows:
a. 	GRANT Defendant’s motion to the extent Defendant
argues that Plaintiff’s allegations fail to state a claim under the
First and Fourteenth Amendments.
b. 	DENY 	Defendant’s 	motion 	to 	the 	extent 	Defendant
argues that Plaintiff failed to exhaust administrative remedies.
2. 	DISMISS 	Plaintiff’s 	First-Amendment 	claim 	and
Fourteenth-Amendment claim for failure to state a claim on which relief
can be granted.
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3. 	RETURN this case to the undersigned to address Plaintiff’s
RLUIPA claim.
At Pensacola, Florida, this 6th day of August 2026.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C). Objections to
this report and recommendation must be filed within
fourteen 	days 	of 	the 	date 	of 	the 	report 	and
recommendation. A party must serve a copy of any
objections on all other parties. A party who fails to
object to this 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. R. 3-1; 28 U.S.C. § 636.
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