The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JEFFREY NELSON,
Plaintiff,
v. Case No. 3:20-cv-99-J-39JBT
J. BURNHAM, et al.,
Defendants.
_______________________________
ORDER
Plaintiff, an inmate of the Florida penal system, initiated
this action by filing a pro se Civil Rights Complaint (Doc. 1;
Compl.) under 42 U.S.C. § l983. Plaintiff moves to proceed in forma
pauperis (Docs. 3, 4). He names the following Defendants: Officer
J. Burnham, Lieutenant J. DiMaurio, and Sergeant T. Spradley.
Plaintiff’s primary claim is an alleged Eighth Amendment violation
by Officer Burnham. Plaintiff alleges on July 25, 2019, Officer
Burnham slapped and punched him while he was handcuffed and
standing in a “blind spot.” Compl. at 3, 5. Plaintiff names
Lieutenant DiMaurio and Sergeant Spradley as Defendants because
they observed the incident from inside the lieutenant’s office but
did nothing. Id. at 5. Plaintiff also alleges Officer Burnham
violated his First and Fourteenth Amendment rights by engaging in
a pattern of intimidation against him. Id. at 3, 6-7. As relief,
Plaintiff seeks punitive, compensatory, and nominal damages. Id.
at 8.
Upon review of the Complaint, the Court concludes Plaintiff
has failed to set forth his claims sufficiently. Federal Rule of
Civil Procedure 8(a) requires a pleading to include a short and
plain statement of the claim showing the pleader is entitled to
relief. Rule 10(b) requires all averments of the claim be made “in
numbered paragraphs, each limited as far as practicable to a single
set of circumstances.” To survive dismissal, a complaint must
allege facts, accepted as true, that state a claim “that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The standard asks for less than a probability but “more
than a sheer possibility that a defendant has acted unlawfully.”
Id. To state a plausible claim, a plaintiff must do more than make
conclusory assertions unsupported by factual allegations.
First, Plaintiff fails to state a claim against Lieutenant
DiMaurio and Sergeant Spradley. A viable claim under 42 U.S.C. §
1983 requires a plaintiff to establish two essential elements: the
conduct complained of was committed by a person acting under color
of state law, and this conduct deprived the plaintiff of rights,
privileges, or immunities secured by the Constitution or laws of
the United States. According to Plaintiff, Lieutenant DiMaurio and
Sergeant Spradley did not participate in the alleged use-of-force
incident. And Plaintiff does not allege they were in a position to
have intervened but did not. Rather, it appears Plaintiff names
these Defendants solely because they are “ranked officials.” See
Compl. at 5. Being a ranked official, however, does not result in
liability under 42 U.S.C. § l983. In fact, the Eleventh Circuit
has explicitly rejected supervisory liability as a theory of
recovery under § 1983. For a supervisor to be liable, the
supervisor must personally participate in the alleged
constitutional violation or there must be a causal connection
between the supervisor’s actions and the alleged constitutional
deprivation.
Second, Plaintiff fails to state a First Amendment
retaliation claim against Officer Burnham. While unclear, it
appears Plaintiff contends Officer Burnham retaliated against him
for filing grievances. Id. at 3. Plaintiff identifies numerous
instances in which Officer Burnham, over a period of months, denied
him certain privileges, was verbally abusive,1 or destroyed his
personal property. Id. at 6-7. While Plaintiff mentions he
engaged in protected speech (filing grievances), id. at 3, he does
not allege facts demonstrating a causal connection between his
protected speech and Officer Burnham’s actions against him.
Plaintiff’s conclusory assertion that Officer Burnham engaged in
1 Plaintiff should know threatening language and gestures are not
constitutional violations. McFadden v. Lucas, 713 F.2d 143, 146
(5th Cir. 1983).
“acts of retaliation” against him does not satisfy the federal
pleading standard.
Finally, Plaintiff fails to state a claim under the Fourteenth
Amendment. Plaintiff vaguely asserts his Fourteenth Amendment
right was violated because he was “t[r]eated different[ly] thene
[sic] other inmates.” Id. at 3. Plaintiff does not support this
conclusory assertion with factual allegations.
To proceed, Plaintiff must file an amended complaint on the
enclosed civil rights complaint form and in compliance with federal
pleading standards. If Plaintiff chooses to amend his complaint,
he should assess his case and name as defendants only those
individuals allegedly responsible for violating his federal
constitutional rights, and he must allege how each individual is
so responsible. Plaintiff must also adhere to the following
instructions.
1. The amended complaint must be marked, “Amended
Complaint.”
2. The amended complaint must name as defendants only those
who had been acting under color of state law and are
responsible for the alleged constitutional violation(s).
3. The amended complaint must state the full names of each
defendant (to the extent Plaintiff knows them) in the
style of the case on the first page and in section I.B.
4. The list of defendants named on the first page must match
the list of named defendants in section I.B.
5. The amended complaint (or a separate filing) must
include current addresses for each defendant so the
Court can direct service of process.
6. In section IV, “Statement of Claim,” there must be a
clear description of how each defendant was involved in
the alleged violation(s). The allegations should be
stated in numbered paragraphs, each limited to a single
set of circumstances. Plaintiff should separately
explain the facts giving rise to his individual claims
for relief, and he should clearly state how each
defendant is responsible for each alleged violation.2
7. In section V, “Injuries,” there must be a statement
concerning how each defendant’s action or omission
injured Plaintiff.3
8. In section VI, “Relief,” there must be a statement of
what Plaintiff seeks through this action.
Plaintiff must sign and date the amended complaint after the
following statement on the form:
Under Federal Rule of Civil Procedure 11, by
signing below, I certify to the best of my
knowledge, information, and belief that this
complaint: (1) is not being presented for an
improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the
cost of litigation; (2) is supported by
existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing
law; (3) the factual contentions have
evidentiary support or, if specifically so
identified, will likely have evidentiary
support after a reasonable opportunity for
further investigation or discovery; and (4)
2 Plaintiff may attach additional pages if necessary, but he should
continue to number the paragraphs for a clear presentation of his
factual allegations supporting each claim.
3 The Prison Litigation Reform Act provides: “No Federal civil
action may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury.” 42 U.S.C. § 1997e(e).
the complaint otherwise complies with the
requirements of Rule 11.
Before signing the amended complaint, Plaintiff must ensure his
assertions are truthful and he has not knowingly made false
material declarations. He must neither exaggerate nor distort the
facts but instead must truthfully state the facts underlying his
claims. Knowingly making a false material declaration in violation
of 18 U.S.C. § 1623 is punishable by a fine, imprisonment, or both.
The Clerk shall send Plaintiff a civil rights complaint form.
By March 9, 2020, Plaintiff must mail an amended complaint to the
Court for filing. The amended complaint should comply with the
instructions on the form and those provided in this order. Also by
March 9, 2020, Plaintiff must mail to the Court one copy of the
amended complaint (including exhibits)? for each named defendant.
Failure to comply may result in the dismissal of this case.
DONE AND ORDERED at Jacksonville, Florida, this 6th day of
February, 2020.
rg
JOEL B. TOOMEY
United States Magistrate Judge
4 Plaintiff may include exhibits, such as grievances or medical
records. Plaintiff must individually number each exhibit in the
lower right-hand corner of each exhibit. If his first exhibit has
multiple pages, he should number the pages 1-A, 1-B, 1-C, etc.
Jax-6
c:
Jeffrey Nelson