United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
Kevin Jones (“Jones”), 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 Jones' Amended Complaint
(ECF No. 11).
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(C); see also 28 U.S.C. §
636(b)(1)(B), (C); Fed.R.Civ.P. 72(b). After careful
consideration of all issues raised by Jones, it is the
opinion of the undersigned that this action should be
dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
names William J. Schwarz, a captain at Gulf Correctional
Institution Annex, as the sole Defendant in this case (ECF
No. 11 at 1-2). Jones alleges that a Page 2 of 9 major
disturbance occurred at Gulf C.I. on September 9, 2016 (ECF
No. 1 at 5-6; ECF No. 11 at 5-6). Jones alleges Defendant
Captain Schwarz issued a disciplinary report
(“DR”) charging him with participating in the
disturbance (id.). Jones alleges Captain Schwarz
stated in the DR that he reviewed a videotape from a camera
in Jones' dormitory, and Schwarz identified him as an
inmate walking around the dormitory waving his hand in the
air, yelling at staff, blocking the doorway to his cell,
refusing all orders to return to his assigned bunk, and
joining other inmates in the disturbance (id.).
Jones alleges the notice of the charge was
“insufficient” (id.). He alleges he
attended a disciplinary hearing on the charge on September
22, 2016 (id.). Jones alleges the disciplinary team
“failed to have compulsory process” for obtaining
witnesses in his favor, and failed to review evidence that
would acquit him of the charge, specifically, video footage
from the camera in wing 2 of Q-dormitory, where Jones was
housed at the time of the disturbance (id.). Jones
alleges he was convicted of the disciplinary charge and
sentenced to sixty (60) days in disciplinary confinement and
forfeiture of thirty (30) days of gain time (id.).
Jones alleges he appealed the disciplinary decision, but the
warden's office denied the appeal (id.). Jones
alleges he appealed the response to the FDOC's Central
Office, and on December 15, 2016, the Central Office notified
him that his appeal was “approved for further
inquiry” (id.; see also ECF No. 11,
Exhibit A). Jones alleges Captain Schwarz prepared the false
DR to defame him and with “malicious intent to injure
and cause harm” (id.). Jones additionally
alleges he was “situated with other prisoners who
received favorable treatment, ” and Schwarz
“acted with the intent to discriminate” against
him (ECF No. 11 at 6).
claims that Defendant Schwarz violated his equal protection
rights, his due process rights, and his right to be free from
cruel and unusual punishment, guaranteed by the Fourth,
Fifth, Sixth, and Eighth Amendments (ECF No. 11 at 7). As
relief, Jones requests that the DR be removed from his inmate
court is statutorily required to review the Amended Complaint
to determine whether this action is frivolous or malicious,
fails to state a claim on which relief may be granted, or
seeks monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. § 1915(e)(2)(B). 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. Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (internal quotation marks 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
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.
Iqbal, 556 U.S. at 679. In civil rights cases,
“[m]ore than mere conclusory notice pleading is
required . . . . A complaint will be dismissed as
insufficient where the allegations it contains are vague and
conclusory.” Gonzalez v. Reno, 325 F.3d 1228,
1235 (11th Cir. 2003) (quotation marks and alteration
claims that Captain Schwarz's writing a false DR violated
his due process and equal protection rights guaranteed by the
Fourth, Fifth, and Sixth Amendments (ECF No. 11 at 6, 7).
Jones also claims that Schwarz's conduct constituted
cruel and unusual punishment under the Eighth Amendment
(id. at 6, 7).
court previously advised Jones that the Supreme Court has
held that a prisoner in state custody may not use a §
1983 action to challenge “the fact or duration of his
confinement.” Preiser v. Rodriguez, 411 U.S.
475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); see also
Wolff v. McDonnell, 418 U.S. 539, 554, 94 S.Ct. 2963, 41
L.Ed.2d 935 (1974); Heck v. Humphrey, 512 U.S. 477,
481, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Edwards v.
Balisok, 520 U.S. 641, 646-48, 117 S.Ct. 1584, 137
L.Ed.2d 906 (1997) (prisoner's claim for injunctive
relief and monetary damages for use of wrongful procedures in
disciplinary proceedings, which resulted in sentence of
placement in isolation for ten days, placement in segregation
for twenty days, and deprivation of thirty ...