COLEMAN

v.

SCOTT

As Defendants, Plaintiff names former Governor Rick Scott; former Inspector General Jeffrey T. Beasley; an “investigative manager,” Heather Robinson, who appears to have worked for Governor Scott; the former and current Secretary of the FDOC, Julie Jones and Mark Inch, along with three individuals identified as

“secretary representative[s]”; deputy inspector Donaldson; former Warden of Florida State Prison (FSP) John Palmer; Assistant Wardens of FSP, J.S. Edwards and Jeffrey R. McClellan; and sixteen FSP corrections officers of different rank. Id. at 2-4.

Constitutional Rights [and] . . . failed to protect [him] from being treated in an inhumane matter [sic], by allowing the officers to continue their ‘customs and policies’” of falsifying disciplinary reports and placing inmates on strip status. Id. at 6-7. Plaintiff identifies one corrections officer, Defendant Olson, whom he says “victimized” him by “buck[ing] [him] on dayroom privileges,” yelling at him, and falsifying disciplinary reports against him. Id. at 7-8. Plaintiff asserts Defendant Olson falsified disciplinary reports in retaliation for Plaintiff “stabbing [Olson’s] friends that were on the cell extraction team and for exercising [his] rights to write grievances and to file lawsuits.” Id. at 8. Plaintiff alleges he declared psychological emergencies and asked to be placed in protective custody because of Defendant Olson, but his requests were not honored, and he “was

12.

Sometime in August 2015, after Defendant Olson wrote three disciplinary reports against Plaintiff, three officers, Defendants Andrews, Olson, and Risner, placed Plaintiff on property restriction/strip status for seven days. Id. at 12-13. Plaintiff alleges he had no clothing other than boxers and no bedding, though he was permitted to have his legal work. Id. at 13. Counts one through eight³ are against different groups of Defendants. In all counts, Plaintiff alleges Defendants violated his rights under the First, Eighth, and Fourteenth Amendments, and state constitutional and statutory provisions. Id. at 15-21. And in each count, Plaintiff repeats the following vague, conclusory language: “while acting under the Color of State Law, [Defendants] did act with deliberate indifference, or within the scope of their employment, or in bad faith, or with malicious purpose, or in a manner exhibiting wanton and willful disregard of the Plaintiff’s

Human Rights and Safety.” Id. The only variation in language in each count is the manner in which, according to Plaintiff, the different groups of Defendants allegedly acted with deliberate indifference or in disregard of

subordinates to place inmates on [s]trip and file false and unjustified disciplinary reports” (count three); and filed or approved “false and unjustified disciplinary reports or authorized [Plaintiff] to be placed on [s]trip [s]tatus⁴ (counts seven and eight). Id. Plaintiff alleges emotional injuries, numbness in his legs and feet, and severe back pain. Id. at 22. As relief, he seeks compensatory and punitive damages and to have “the disciplinary reports in question overturned and expunged.” Id.

III. Analysis & Conclusions

Plaintiff’s second amended complaint is subject to dismissal under this Court’s screening obligation because he fails to “state a claim to relief that is plausible on its face.” See Iqbal, 556 U.S. at 678. To state a claim under 42 U.S.C. § 1983, a plaintiff

Plaintiff’s second amended complaint is deficient under federal pleading standards. Plaintiff alleges Defendants violated the First, Eighth, and Fourteenth Amendments, and state constitutional and statutory provisions. However, Plaintiff does not connect his factual allegations to his separate causes of action, he identifies federal and state constitutional or statutory provisions as labels or conclusions without explaining how each Defendant violated his rights under those laws, and he does not explain how each Defendant caused the injuries he allegedly sustained. Despite the pleading deficiencies, the Court will analyze whether Plaintiff’s allegations permit the reasonable inference

Defendants violated the federal constitutional provisions Plaintiff identifies (the First, Eighth, and Fourteenth Amendments) to invoke this Court’s jurisdiction under § 1983.

A. First Amendment

While Plaintiff repeats in each count a violation of the First Amendment, it appears he asserts a retaliation claim against only two Defendants: Olson and Reeder, corrections officers at FSP. To state an actionable claim for retaliation, a plaintiff must allege: (1) his speech was constitutionally protected; (2) the inmate suffered adverse action such that the [official’s] allegedly retaliatory conduct would likely deter a person of ordinary firmness from engaging in such speech; and (3) there is a causal relationship between the retaliatory action [the disciplinary punishment] and the protected speech [the grievance].

O’Bryant v. Finch, 637 F. 3d 1207, 1212 (11th Cir. 2011) (alterations in original). The third element, causation, requires proof that “a prison official’s actions were ‘the result of [the inmate’s] having filed a grievance.’” Id. (emphasis and alteration in original). Plaintiff asserts Defendants Olson and Reeder retaliated against him because he filed grievances against Olson.⁵ See SAC at 21. But Plaintiff includes no factual allegations showing a causal connection between any retaliatory action and his protected speech. For instance, Plaintiff does not describe the nature of the grievances he wrote against Defendant Olson, nor does he include allegations permitting the reasonable inference Defendants Olson or Reeder filed disciplinary reports or took other punitive measures against him because he wrote grievances.

Ala., 511 F. App’x 854, 857 (11th Cir. 2013) (citing Iqbal, 556 U.S. at 678) (affirming dismissal of a complaint that alleged, as labels and conclusions, violations of various constitutional rights with no supporting facts “explain[ing] what actions caused which violations”); see also Lawson v. City of Miami Bch., 908 F. Supp. 2d 1285, 1291 (S.D. Fla. 2012) (dismissing a retaliation claim where the plaintiff alleged only “unsubstantiated legal conclusions” that officers arrested him in retaliation for exercising his First Amendment right to free speech). Accordingly, Plaintiff fails to state a claim under the First Amendment.

B. Eighth Amendment

Liberally construing Plaintiff’s second amended complaint, he attempts to assert Eighth Amendment failure-to-protect and conditions-of-confinement claims. Plaintiff alleges Defendants failed to protect him from being “victimized,” exposed him to cruel and unusual prison conditions by placing him on strip status, and verbally abused or threatened him.⁶ See SAC at 6-7, 10, 13, 15. The Eighth Amendment requires prison officials to “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment, however, does not require prison officials to ensure “comfortable prisons.” Thomas v. Bryant, 614 F. 3d 1288, 1306-07 (11th Cir. 2010). To establish an Eighth Amendment violation, an inmate must show a prison official “actually (subjectively) knows that an inmate is facing a substantial risk of serious harm, yet disregards that known risk by failing to respond to it in an (objectively) reasonable manner.” Rodriguez v. Sec’y for Dep’t of Corr., 508 F. 3d 611, 617 (11th Cir. 2007) (citing Farmer, 511 U.S. at 837, 844). “The known risk of injury must be a ‘strong likelihood, rather than a mere possibility.’” Brown v. Hughes, 894 F. 2d 1533, 1537 (11th Cir. 1990).

Moreover, assuming Plaintiff reported Defendant Olson’s alleged retaliatory conduct (verbal abuse and falsified disciplinary reports), this conduct cannot fairly can be characterized as abuse under Eighth Amendment standards. See, e.g., Hernandez, 281 F. App’x at 866 (“[V]erbal abuse alone is insufficient to state a constitutional claim.”); Wagner v. Smith, No. 5:06CV¹¹ MCR/EMT, 2006 WL 2482782, at *3 (N.D. Fla. Aug. 25, 2006) (“[T]he filing of false disciplinary charges against an inmate does not alone amount to a constitutional violation.”). Thus, to the extent Plaintiff suggests any Defendant failed to

In August 2015, Plaintiff appeared before the disciplinary hearing committee again. Id. at 13. Plaintiff provides copies of

C. Fourteenth Amendment

The remainder of Plaintiff’s allegations, liberally construed, speak to alleged due process violations. Plaintiff asserts he was adjudicated guilty of disciplinary charges “without being given the procedural due process guaranteed by the Department Rules and Regulations”; and some Defendants failed to “correct .

. . constitutional abuses” by denying grievances and appeals of his disciplinary charges, refusing to properly investigate his complaints of fear, and failing to follow protocol when he declared psychological emergencies.¹⁰ See SAC at 10, 13, 14, 16, 18. Plaintiff does not explain how he was denied due process or what rules and regulations Defendants allegedly violated. However, the copies of the disciplinary reports Plaintiff filed offer some insight. See Pl. Exs. A-D. Plaintiff disputes four disciplinary reports, two of which were overturned after he appealed the decisions for alleged due process violations (insufficient investigation, improper evidence, and failure to consider his evidence). See Pl. Ex. C at 4; Pl. Ex. D at 4.11 Even though two

Pl. Ex A at 3; Pl. Ex. B at 3. The Supreme Court has held the imposition of disciplinary confinement does not trigger due process protections. Sandin v. Conner, 515 U.S. 472, 486 (1995) (“[D]iscipline in segregated confinement [does] not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.”). See also Woodson, 673 F. App’x at 933 (“The Due Process Clause does not create an enforceable liberty interest in freedom from restrictive confinement while a prisoner is incarcerated.”). Thus, even if Plaintiff spent more time in disciplinary confinement than he should have, he does not allege a protected liberty interest to which due process protections attach. Notably, Plaintiff does not allege the disciplinary charges affected the duration of his sentence. For instance, he does not allege a loss of good time credits, nor do the disciplinary reports was made on technical errors made in the processing of the same.” See Pl. Ex. C at 4; Pl. Ex. D at 4. reflect such a sanction was imposed. See Pl. Ex A at 3; Pl. Ex. B at 3; Pl. Ex. C at 3; Pl. Ex D at 3. And Plaintiff asserts no facts indicating he was subjected to conditions so severe that they imposed upon him a significant hardship in comparison to the ordinary incidents of prison life. See Sandin, 515 U.S. at 484. Thus, Plaintiff’s allegations, accepted as true, fail to demonstrate a denial of due process under the Fourteenth Amendment, and his due process claims are due to be dismissed. See Smith v. Deemer, 641 F. App’x 865, 867, 868 (11th Cir. 2016) (holding the district court properly dismissed plaintiff’s due process claim because the disciplinary hearing did not result in a loss of good time credits and plaintiff did not allege his term of disciplinary confinement exposed him to atypical and significant hardship even though the conditions in disciplinary confinement were more restrictive and less comfortable than those in general confinement). With respect to those Defendants Plaintiff asserts did not correct alleged constitutional violations as grievance responders, he does not state a viable claim under § 1983. He alleges no underlying constitutional violation and, regardless, “[a]n inmate has no constitutionally-protected liberty interest in access to [the grievance] procedure.” Bingham, 654 F. 3d at 1178 (finding the district court did not “abuse[] its discretion in dismissing [the plaintiff’s] claim that the prison’s grievance procedures were inadequate”); See also Charriez v. Sec’y, Fla. Dep’t of Corr., 596 F. App’x 890, 895 (11th Cir. 2015) (holding the district court properly found the plaintiff failed to state a claim where he alleged the defendants did not “take corrective action” in response to his grievance appeal); Mathews v. Moss, 506 F. App’x 981, 984 (11th Cir. 2013) (holding the plaintiff failed to state a plausible claim because he merely “alleged that his prison grievances were either ignored or wrongly decided or that prison officials did not properly follow the prison’s own grievance procedures”).

D. Supervisory Liability

Given Plaintiff’s vague, conclusory, and confusing allegations and claims, his theory of liability as to some Defendants is not readily apparent. To the extent Plaintiff seeks to hold some Defendants liable simply because they are supervisors of those Plaintiff believes violated his rights, his claim fails because he does not allege an underlying constitutional violation. See Mann v. Taser Int’l, Inc., 588 F. 3d 1291, 1308 (11th Cir. 2009) (holding the plaintiff’s supervisory liability claim failed “because the underlying § 1983 claims fail[ed]”) (citing Hicks v. Moore, 422 F. 3d 1246, 1253 (11th Cir. 2009)). Moreover, an individual cannot be held liable under § 1983 based on that person’s supervisory position alone. See Cottone v. Jenne, 326 F. 3d 1352, 1360 (11th Cir. 2003) (internal quotation marks and citation omitted) (“It is well established in this Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.”).

IV. Conclusion

Under a liberal review of Plaintiff’s second amended complaint and accepting Plaintiff’s allegations as true, Plaintiff fails to allege the denial of a constitutional right. Thus, he does not state a claim for relief under § 1983. Because Plaintiff fails to state a plausible federal claim, the Court declines to determine whether any purported state-law claim may be viable. Plaintiff’s second amended complaint will be dismissed in its entirety without prejudice subject to Plaintiff’s right to pursue any viable, available claims in state court. Accordingly, it is ORDERED: 1. Plaintiff’s second amended complaint (Doc. 11) is DISMISSED without prejudice under 28 U.S.C. § 1915(e)(2)(B).

2. The Clerk shall enter judgment dismissing the case without prejudice, terminate any pending motions, and close the file. DONE AND ORDERED at Jacksonville, Florida, this 21st day of April, 2020. 4 ¢ De af J. DAVIS United States District Judge

Jax-6 Cc: Shaw V. Coleman