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Curry v. Johnson

United States District Court, N.D. Florida, Pensacola Division

November 22, 2017

EDWARD D. CURRY, Plaintiff,
v.
R. JOHNSON, Defendant.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Edward D. Curry (“Curry”), an inmate of the Florida Department of Corrections (“FDOC”), is proceeding pro se and in forma pauperis in this civil rights action. Presently before the court is Curry's Second Amended Complaint (ECF No. 47). Defendant Correctional Officer R. Johnson filed a motion to dismiss one of Curry's claims and Curry's request for monetary damages (ECF No. 52). Curry has not responded to the motion to dismiss, even though he was directed to do so (ECF No. 53). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(E); see also 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

         I. BACKGROUND

         Curry names Correctional Officer R. Johnson as the sole Defendant in this civil rights case (ECF No. 47 at 1, 2). Curry claims that Johnson subjected him to excessive force on July 7, 2016, in retaliation for Curry's filing grievances against two of Johnson's co-workers, in violation of the First and Eighth Amendments (id. at 5-7). Curry seeks punitive damages in the amount of $250, 000 (id. at 7).

         On August 17, 2017, Officer Johnson filed a motion to dismiss, contending Curry's retaliation claim is subject to dismissal for failure to state a claim upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 52). Officer Johnson also seeks dismissal of Curry's request for punitive damages, on the ground that recovery is barred by the Eleventh Amendment and 42 U.S.C. § 1997e(e) (id.). The court directed Curry to file a response to the motion to dismiss on or before September 18, 2017 (see ECF No. 53). As noted above, as of the date of docketing of this Report and Recommendation, Curry has not filed a response.

         II. MOTION TO DISMISS STANDARD

         Motions to dismiss for failure to state a claim are governed by Rule 12(b)(6). In applying that rule, the allegations of the complaint are taken as true and are construed in the light most favorable to the plaintiff. See Davis v. Monroe Cnty. Bd. of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). The court may consider documents attached to a complaint or incorporated into the complaint by reference, as well as matters of which a court may take judicial notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Saunders v. Duke, 766 F.3d 1262, 1272 (11th Cir. 2014); Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (“[W]here the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal . . . .”).

         To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotation and citation omitted). A claim is plausible on its face where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). Plausibility means “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quotation and citation omitted).

         The determination of whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (citation omitted). The pleader is not entitled to relief “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Id. (citing Fed.R.Civ.P. 8(a)(2)). The court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 678 (quotation and citation omitted). And “bare assertions” that “amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Id. at 681 (quotation and citation omitted). Stated succinctly:

Pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679.

         The same standard applies when the court screens complaints filed by prisoners and plaintiffs proceeding in forma pauperis. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A. To survive dismissal at the screening phase, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted).

         III. CURRY'S FACTUAL ALLEGATIONS

         Curry alleges on July 7, 2016, as Officer Johnson was handcuffing him on the recreation yard, Officer Johnson asked Curry to identify himself (Second Amended Complaint at 5). Curry alleges he told Johnson his name, and Johnson began bending Curry's fingers back while ordering him to stop filing grievances about his co-workers, Sergeant Oakes and Lieutenant Gaynor (id.; see also Complaint, ECF No. 1 at 8). Curry alleges that after ten minutes of bending his fingers, Johnson bent Curry's wrist and shoved his handcuffed hands into the handcuff box (Second Amended Complaint at 5). Curry alleges Johnson's conduct resulted in injuries to his thumb and wrist, specifically, a swollen and painful thumb and a cut on his wrist (id.). Curry alleges he was alone inside the “recreation cage” when Officer Johnson engaged in this conduct, and Curry posed no threat to anyone, including himself (id.). Curry alleges the next day, he sought medical treatment for his thumb and wrist (id.). Curry states he was unable to move his thumb (id.). Curry alleges the nurse provided “muscle rub cream” and two ibuprofen tablets and scheduled him for a follow-up visit (id.). Curry alleges he went to a follow-up visit to on July 12, 2016 (id.). Curry alleges the nurse observed his hand and determined that diagnostic testing in the form of an x-ray was warranted (id.). Curry alleges he received the x-ray the next day, and on July 18, 2016, the nurse informed him that the x-ray indicated that his thumb was not broken (id. at 5-6). Curry alleges on August 4, 2016, he sought medical care for his thumb, because it was still swollen and painful when he attempted to use it (id. at 6).

         Curry filed this lawsuit on September 22, 2016, approximately two and a half months after the incident (see ECF No. 1 at 1). Curry claims that Officer Johnson's conduct constituted excessive force and retaliation, in violation of the First and Eighth Amendments (Second Amended ...


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