United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE.
cause is before the court on Plaintiff's second amended
civil rights complaint under 42 U.S.C. §1983 (ECF No.
19), Leave to proceed in forma pauperis has been granted (ECF
No. 8). Upon review of the Second Amended Complaint, the
court concludes that facts set forth by Plaintiff fail to
state a claim for relief that is plausible on its face.
Dismissal of this action is therefore warranted.
STANDARDS OF REVIEW
Plaintiff is proceeding in forma pauperis, the court may
dismiss this case if satisfied that the action “(i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). The language in this subsection
“tracks the language of Federal Rule of Civil Procedure
12(b)(6), ” and thus dismissals for failure to state a
claim are governed by the same standard as Rule 12(b)(6).
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.
1997). The allegations of the complaint are taken as true and
are construed in the light most favorable to Plaintiff.
Davis v. Monroe County Bd. of Educ., 120 F.3d 1390,
1393 (11th Cir. 1997). To survive § 1915(e)(2)(B)(ii),
“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, 1949 (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:
. . . a court considering a motion to dismiss can choose to
begin by identifying 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. Finally, consistent with the foregoing
precepts, in civil rights cases more than “mere
conclusory notice pleading” is required, and a
complaint is subject to dismissal “as insufficient
where the allegations it contains are vague and
conclusory.” Gonzalez v. Reno, 325 F.3d 1228,
1235 (11th Cir. 2003) (quotation and citation omitted). Upon
review of the complaint, the court concludes that facts set
forth by Plaintiff fail to state a claim for relief that is
plausible on its face. Dismissal of this action is therefore
an inmate at the Florida State Prison but incarcerated at
Santa Rosa Correctional Institution during the times relevant
to the complaint, alleges that on January 9, 2016, he was in
his cell and “had a hold of the wall & chain
outside [his] cell door, ” apparently holding onto
these objects from inside his cell through the food tray flap
door (ECF No. 19 at 7). Defendant Sergeant C. Pugh told him
to “let it go, ” to which Plaintiff responded
that he wanted to see “the captain”
(id.). Plaintiff does not explain why he was holding
onto the wall and chain, nor why he refused to let go when
told to do so, nor why he stated that he wanted to see the
captain. When Plaintiff refuse to let go, Defendant Pugh then
allegedly snatched the chain from Plaintiff's hand,
“ripping open” his right thumb in the process
(id.). Alleging that he received no attention for
his bleeding thumb until Defendant Captain M. Burch arrived
an hour and a quarter later, Plaintiff suggests that
Defendants were trying to cover up the incident. He also
states that Defendant Burch did not collect any evidence or
take any pictures of his injured hand and that Defendant M.
Stokes failed to make a report of the use of force
(id. at 7-8). Disciplinary Reports
(“DR's”) were filed against Plaintiff
regarding the incident, however, which Plaintiff asserts were
false or bogus. Finally, Plaintiff suggests that the
use-of-force incident was retaliatory because Defendant Pugh
had stated once before that he would “get”
Plaintiff “some kind of way” for writing prison
grievances (id. at 7).
thereby claims a violation of his Eighth Amendment rights
based on Defendant Pugh's use of excessive force upon
him. Plaintiff also claims constitutional violations based on
his claim that Defendants did not properly investigate the
use of force and that false DR's were levied against him.
Last, Plaintiff claims Defendant Pugh's actions were
taken in retaliation against him for filing prison
of excessive force by prison officials fall under the Eighth
Amendment's proscription against cruel and unusual
punishment. The standard applied to Eighth Amendment claims
has a subjective and an objective component. Under the
subjective component, to sustain an Eighth Amendment
challenge it must be shown that prison officials' actions
amounted to an “unnecessary and wanton infliction of
pain.” Whitley v. Albers, 475 U.S. 312, 319,
106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986). “Force is
deemed legitimate in a custodial setting as long as it is
applied ‘in a good faith effort to maintain or restore
discipline [and not] maliciously and sadistically to cause
harm.'” Skrtich v. Thornton, 280 F.3d
1295, 1300 (11th Cir. 2002) (quoting Whitley, 475
U.S. at 320-21). In determining whether an application of
force was applied maliciously and sadistically to cause harm,
a variety of factors are considered including: “the
need for the application of force; the relationship between
that need and the amount of force used; the extent of the
threat to the safety of staff and inmates, as reasonably
perceived by officials; the extent of injury; and any efforts
made to temper the severity of the response.”
Hudson v. McMillian, 503 U.S. 1, 7-8, 112 S.Ct. 995,
117 L.Ed.2d 156 (1992); see also Whitley, 475 U.S.
at 321; Campbell v. Sikes, 169 F.3d 1353, 1375 (11th
Cir. 1999). From consideration of such factors,
“inferences may be drawn as to whether the use of force
could plausibly have been thought necessary, or instead
evinced such wantonness with respect to the unjustified
infliction of harm as is tantamount to a knowing willingness
that it occur.” Whitley, 475 U.S. at 321
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d
Cir. 1973)). Importantly, unless the evidence goes beyond a
mere dispute over the reasonableness of a particular use of
force or the existence of arguably superior alternatives,
dismissal is warranted. Whitley, 475 U.S. at 322. An
Eighth Amendment claim requires more than negligence, even
gross negligence. Farmer v. Brennan, 511 U.S. 825,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); McElligott v.
Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).
addition to the “unnecessary and wanton infliction of
pain” standard, referred to as the “subjective
component” of the excessive force standard, there
exists an “objective component” that determines
if the alleged wrongdoing was objectively harmful enough to
establish a constitutional violation. See Wilson v.
Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 2326, 115
L.Ed.2d 271 (1991). In situations involving allegations of
excessive force, the Supreme Court has abrogated any
requirement that the resulting injury be
“significant.” Hudson, 503 U.S. at 9.
However, “not every push or shove, even if it may later
seem unnecessary in the peace of a judge's chambers,
violates a prisoner's constitutional rights.”
Id. (quotation omitted). “[Excluded] from
constitutional recognition [are] de minimis uses of physical
force, provided that the use of force is not of a sort
repugnant to the conscience of mankind.” Id.,
503 U.S. at 9-10 (quotation marks and citation omitted);
Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir.
2000) (“[A] minimal amount of force and injury . . .
will not defeat an officer's qualified immunity.”).
The Eleventh Circuit has repeatedly held that a push or shove
that causes pain and necessitates no or merely minor medical
treatment is not a constitutional violation, even where the
prisoner was restrained and no further force was necessary.
See, e.g., Jones v. City of Dothan, 121
F.3d 1456, 1460-61 (11th Cir. 1997); Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1556 (11th Cir. 1993),
modified, 14 F.3d 583 (11th Cir. 1994). Furthermore,
a conclusory allegation that the prisoner suffered serious
injury should be discounted, and the absence of further
evidence of injury justifies the conclusion that the use of
force on the prisoner was minimal. Brown v. Smith,
813 F.2d 1187 (11th Cir. 1987); Bennett v. Parker,
898 F.2d 1530, 1533 (11th Cir. 1990). In Hudson in
particular, the Supreme Court held that Hudson's
injuries, which included bruises, swelling, loosened teeth,
and a cracked dental plate, were not de minimis for Eighth
Amendment purposes. Hudson, 503 U.S. at 10.
complaint does not meet either prong of the excessive force
standard. Regarding the first prong, Plaintiff's
allegations do not amount to more than a simple dispute over
what is a necessary use of force. Plaintiff does not deny
that he refused to comply with the order to remove his hands
from the “chain and wall” that he was grasping,
and so he does not contest that some measure of force was
legitimated in order to restore institutional discipline and
order. Other than the circumstances of the incident,
Plaintiff ascribes no motive to Defendant's action other
than his conclusory allegation that Defendant Pugh, at an
indeterminate time preceding the incident in question,
expressed a retaliatory motive (the terms of which the court
will address infra). Thus, the use of force which
caused injury to Plaintiff's thumb was simply inadvertent
and a matter of negligence, which is not actionable for an
Eighth Amendment claim.
does Plaintiff meet the second, or objective, prong of the
standard. He complains that his thumb was bleeding after the
incident, but beyond the fact that his injury necessitated a
visit to the nurse, there is no indication that Plaintiff
suffered any significant or lasting injury. Accordingly, the