United States District Court, N.D. Florida, Pensacola Division
EDWARD D. CURRY, Plaintiff,
R. JOHNSON, Defendant.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
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).
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).
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.
MOTION TO DISMISS STANDARD
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 . . . .”).
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).
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.
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
CURRY'S FACTUAL ALLEGATIONS
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).
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 ...