United States District Court, M.D. Florida, Ocala Division
G. BYRON, UNITED STATES DITRICT JUDGE
an inmate at the Coleman Federal Correctional Complex,
alleges in his pro se complaint that Defendants
violated his constitutional rights when an officer slammed
him to the floor and another officer failed to intervene; he
also alleges wrongdoing by supervisors, retaliation, and
property loss. (Doc. 1.) The Defendants have moved to dismiss
Plaintiff's case pursuant to Rule 12(b)(1) and (b)(6) of
the Federal Rules of Civil Procedure, alleging that he has
failed to exhaust his administrative remedies under the
Prison Litigation Reform Act (PLRA) as to all Defendants
except Defendant Rochelle, and that he has failed to state a
claim against Rochelle. (Doc. 24.) Defendant Masarone is
deceased and is not a party to action. (Id. at Doc.
24, Exh. C, Declaration by Elizabeth Villarreal). Ms.
Villarreal, Human Resources Manager at FCC Coleman, attests
that Officer Masarone died on April 23, 2018. (Id.)
(Doc. 24.) Plaintiff did not file the present suit until May
2018. (Doc. 1.)
motion to dismiss was filed June 17, 2019. (Doc. 24.)
Plaintiff did not file a response, and on July 26, 2019, the
Court directed Plaintiff to show cause within 14 days why his
case should not be dismissed for failure to file a response
to the motion to dismiss. (Doc. 25.) To date, Plaintiff has
not responded to the Order to Show Cause or otherwise filed
any papers with the Court.
reasons discussed below, Plaintiff's complaint is due to
alleges that on April 4, 2017, while incarcerated at FCC
Coleman - USP II, he went to the computer room and Defendant
Officer Masarone came up behind him and told him to turn the
computer off. They began cursing at each other, and despite
following Masarone's instructions to put his arms at his
sides, Masarone slammed Plaintiff to the floor. (Doc. 1,
¶ 1.) Officer Rochelle was present but “failed to
intervene to prevent the misuse of force.”
(Id. at ¶ 2.)
woke up the next day with pain in his ribs and the side of
his chest. He went to sick call but medical staff (John/Jane
Doe defendants) failed to provide medical treatment for
possible broken ribs. (Id. ¶ 6.)
subsequently received various disciplinary reports and
alleges that on June 30, 2017, Defendant Assistant Warden
Miller personally shook down his cell and threw away
paperwork. (Id. ¶ 18.) Plaintiff claims that
Defendants Miller and Warden R.C. Cheatham failed to
discipline Defendants Masarone and Rochelle (Id.
¶¶ 25, 26.)
relief, Plaintiff seeks monetary damages. (Id. at p.
Standard of Review
passing on a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court is mindful that
“[d]ismissal of a claim on the basis of bare bones
pleadings is a precarious disposition with a high mortality
rate.” Int'l Erectors, Inc. v. Wilhoit Steel
Erectors Rental Serv., 400 F.2d 465, 471 (5th Cir.
1968). Thus, for the purposes of a motion to dismiss, the
Court must view the allegations of the complaint in the light
most favorable to the plaintiff, consider all of the
allegations of the complaint as true, and accept all
reasonable inferences that might be drawn from such
allegations. Jackson v. Okaloosa County, Fla., 21
F.3d 1531, 1534 (11th Cir. 1994); Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). Furthermore, the Court must limit
its consideration to the complaint and written instruments
attached as exhibits. Fed.R.Civ.P. 10(c); GSW, Inc. v.
Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).
claim has been stated adequately, it may be supported by
showing any set of facts with the allegations of the
complaint. Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007). However, “while notice pleading may not
require that the pleader allege a ‘specific fact'
to cover each element of a claim, it is still necessary that
a complaint contain either direct or inferential allegations
respecting all the material elements necessary to sustain a
recovery under some viable legal theory.” Roe v.
Aware Woman Center for Choice, 253 F.3d 678, 683 (11th