United States District Court, M.D. Florida, Fort Myers Division
TODD W. MCGATHEY, Plaintiff,
JOSEPH OSINGA, Defendant.
ORDER OF DISMISSAL
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
an inmate at the Charlotte County Jail in Punta Gorda,
Florida, initiated this action on January 27, 2017 by filing
a pro se civil rights complaint pursuant to 42
U.S.C. § 1983 against Defendants Joseph Osinga,
Christina Casteel, Bobby Beverly, David Dunn, Kyle Nasby,
William Prummell, and Howard Nusum (Doc. 1). After conducting
a review pursuant to 28 U.S.C. § 1915(e)(2)(B), the
Court concluded that Plaintiff had not stated a claim against
any named defendant and that he sought monetary damages for
mental distress (Doc. 13). However, in an abundance of
caution, Plaintiff was given leave to file an amended
complaint seeking only nominal damages. Id.
filed an amended complaint (Doc. 14) and a second amended
complaint against Defendant Osinga (Doc. 17). Plaintiff's
second amended complaint is the operative complaint before
this Court. In his second amended complaint, Plaintiff does
not explain the events giving rise to his claims. Instead, he
directs this Court to a report entitled “Internal
Affairs Internal Investigation I.A. 17-1 Corrections Deputy
Joseph Osinga” (incident report) (Doc. 17-1). Upon
review of Plaintiff's second amended complaint and the
report, the Court concludes that Plaintiff's federal
claims must be dismissed for failure to state a claim upon
which relief may be granted. The Court declines to exercise
supplemental jurisdiction over any state-law claim.
Plaintiff does not describe Defendant Osinga's allegedly
unconstitutional activities in his second amended complaint,
the Court may rely on the 22-page incident report attached to
the complaint. See Hoefling v. City of Miami, 811
F.3d 1271, 1277 (11th Cir. 2016) (“A district court can
generally consider exhibits attached to a complaint in ruling
on a motion to dismiss, and if the allegations of the
complaint about a particular exhibit conflict with the
contents of the exhibit itself, the exhibit
controls.”)(citing Crenshaw v. Lister, 556
F.3d 1283, 1292 (11th Cir. 2009)).
incident report summarizes an investigation of an incident
that occurred on December 13, 2016. On that date, Plaintiff
was pulled from his cell for a professional visit. As
Plaintiff was leaving his cell, Defendant Osinga conducted a
search of Plaintiff's legal materials and found a stack
of about thirty grievance forms. Defendant Osinga confiscated
all but one form, and told Plaintiff that the forms would be
handed out as needed (Doc. 17-1 at 4). Defendant Osinga
became suspicious that Plaintiff may have other contraband in
his cell and initiated a search of the cell. Id. at
5. During the search, Defendant Osinga un-knotted
Plaintiff's sheets, and emptied the contents of three
paper bags of commissary items and paperwork on
Plaintiff's bunk. Id. Defendant Osinga
confiscated several contraband items from the cell and
disposed of these items and of empty commissary bags.
Id. He then rearranged the playing cards on
Plaintiff's bunk into a “666” before he
exited the cell. Id. Defendant Osinga did not
straighten up Plaintiff's cell after the search. When
Plaintiff reported this incident, he complained about the
rearrangement of his playing cards and also alleged that his
sweater was “sopping wet” when he returned from
his professional visit and that a satanic star had been drawn
on his cell wall while he was gone. Id. at 9. When
he was interviewed about the incident, Defendant Osinga
admitted that he rearranged the playing cards as a joke and
left Plaintiff's cell in disarray after searching it, but
denied touching Plaintiff's sweater or drawing anything
on the cell wall. Id. at 17-19.
conclusion of the investigation, the investigator determined
that a preponderance of the evidence indicated that Defendant
Osinga violated Charlotte County Sheriff's Office policy
when he rearranged Plaintiff's playing cards and left
Plaintiff's cell in unreasonable order after searching
for contraband (Doc. 17-1 at 20-21).
only statement in the second amended complaint regarding
Defendant Osinga's allegedly unconstitutional actions is
[Th]he defendant knew about my mental and about my fear of
demons, my information w/ clergy the [psychosis] it puts me
in [and] purposefully targeted me.
17 at 4). Under the “injuries” section of his
complaint, Plaintiff asserts that because of Defendant
Osinga's actions, he (Plaintiff) stopped taking his
psychiatric medication and “the withdrawals were
horrendous. The demonic spirits overtook me again. I was
truly fearful for my life.” Id. at 17.
Plaintiff asserts that Defendant Osinga violated his freedom
of speech, freedom of religion, committed a hate crime,
violated the Americans with Disabilities Act of 1990,
committed intentional infliction of emotional distress,
demonstrate malfeasance by a jailor, and made a “threat
by intimidation” under Florida law.
seeks $87.00 in compensation for canteen purchases and $100,
000 for “physical and mental pain and suffering.”
federal district court is required to review a civil
complaint filed in forma pauperis and dismiss any
such complaint that is frivolous, malicious, or fails to
state a claim upon which relief may be granted. 28 U.S.C.
§ 1915. The mandatory language of 28 U.S.C. § 1915
applies to all proceedings in forma pauperis.
Section 1915 provides:
Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss the case at any
time if the court determines that-(A) the ...