Filmore v. Officer Cooper

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JERPRECE XAVIER FILMORE,

Plaintiff,

v. Case No: 3:18-cv-955-J-39MCR

OFFICER COOPER, et al.,

Defendants.

_______________________________

ORDER

I. Status

Plaintiff, Jerprece Xavier Filmore, an inmate of the Florida

Department of Corrections (FDOC), is proceeding on a pro se amended

civil rights complaint under 42 U.S.C. § 1983 (Doc. 10; Compl.)1

against four individuals: Officer Cooper; Officer Atwell; Warden

Godwin; and Captain Minnich. Before the Court are the following

motions: (1) Defendant Godwin’s motion to dismiss (Doc. 25; Godwin

Motion); (2) Defendant Atwell’s motion to dismiss (Doc. 31; Atwell

Motion); and (3) Defendants Cooper and Minnich’s motion to dismiss

(Doc. 48; Cooper Motion). Plaintiff responded to the motions (Doc.

28; Pl. Godwin Resp.) (Doc. 39; Pl. Atwell Resp.) (Doc. 52; Pl.

Cooper Resp.). The motions are ripe for review.

1 Plaintiff filed a “cover letter” with his complaint (Doc.

10-1, which the Court will reference as “Compl. Supp.”

II. Motion Standard

In ruling on a motion to dismiss, the Court must accept the

factual allegations set forth in the complaint as true. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, the complaint

allegations must be construed in the light most favorable to the

plaintiff. Gill as Next Friend of K.C.R. v. Judd, 941 F.3d 504,

511 (11th Cir. 2019). When a plaintiff proceeds pro se, the court

must liberally construe the allegations. See Haines v. Kerner, 404

U.S. 519, 520-21 (1972); Bingham v. Thomas, 654 F.3d 1171, 1175

(11th Cir. 2011). However, “the tenet that a court must accept as

true all of the allegations contained in a complaint is

inapplicable to legal conclusions[,]” which simply “are not

entitled to [an] assumption of truth.” Iqbal, 556 U.S. at 678,

680.

Though detailed factual allegations are not required, Federal

Rule of Civil Procedure 8(a) demands “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Id. at 678. As such,

a plaintiff may not rely on “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements.”

Gill, 941 F.3d at 511 (quoting Iqbal, 556 U.S. at 678). Rather,

the well-pled allegations must nudge the claim “across the line

from conceivable to plausible.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007). A plaintiff must allege “enough facts to

state a claim to relief that is plausible on its face.” Id.

III. Complaint Allegations

Plaintiff’s claims arise out of conduct that occurred at

Columbia Correctional Institution (CCI) in July 2018. Plaintiff

asserts Defendants exposed him to cruel and unusual prison

conditions and used excessive force in violation of the Eighth

Amendment and denied him procedural due process with respect to a

prison transfer and administration of chemical agents. See Compl.

at 3, 4; Compl. Supp. at 1.

Plaintiff alleges he was improperly sent back to CCI’s main

unit from the Annex on July 11, 2018. See Compl. Supp. at 1.

(Plaintiff explains he should not have been sent back to the main

unit because in March 2018, at the main unit, he incurred a

disciplinary report for aggravated battery against an officer who

is not a party to this action. Id.) At the main unit, Plaintiff

was placed in a cell with no ventilation, no window, and no

sprinkler. See Compl. at 5. Plaintiff alleges the cell was at least

95 degrees with the only air coming from under the door. Id.

Two days after he returned to the main unit, on July 13, 2018,

Plaintiff reached his “breaking point” because of the extreme

heat.2 See Compl. Supp. at 2. Plaintiff says, in an “attempt of

survival,” he asked Defendant Cooper to have a psych counselor

evaluate him. Compl. at 5. Defendant Cooper denied his request and

2 Plaintiff alleges he lost ten pounds in two days because of

the extreme conditions. See Compl. at 8.

taunted him. Plaintiff then used a bed sheet to open the flap on

his cell door to get some fresh air. Id. Plaintiff asserts

Defendant Cooper pulled on the sheet “like a maniac,” ripping the

sheet out of Plaintiff’s hands, causing “harm to [his] hands and

fingers.” Id. at 5-6. Plaintiff contends Defendant Cooper “had

evil intent” against him in retaliation for Plaintiff’s March

attack on an officer. See Compl. Supp. at 3.

Defendant Minnich approved the use of chemical spray, Compl.

at 6, and Defendant Atwell administered the spray, Compl. Supp. at

3. Plaintiff alleges Defendant Minnich approved the use of chemical

spray in retaliation for Plaintiff having filed a grievance against

Minnich in the past. Compl. at 6. Afterward, Officers took

Plaintiff for a decontamination shower and medical evaluation. Id.

at 6; Compl. Supp. at 4. Plaintiff asserts he was sprayed in

violation of a provision of the Florida Administrative Code because

a psych specialist was not consulted beforehand. Compl. at 6.

Plaintiff also alleges Defendant Cooper beat him in a holding

cell while waiting for a nurse to evaluate him. Id. at 7. Plaintiff

asserts Defendant Cooper’s attack resulted in an injury to the

back of his head. Id. at 8.

As relief, Plaintiff seeks compensatory and punitive damages

and for Defendants to be “stripped of their jobs.” Id.

IV. Defendants’ Motions

Defendants seek dismissal of Plaintiff’s claims related

solely to the use-of-force incidents on July 13, 2018. See Godwin

Motion at 5-6, 13; Atwell Motion at 5-6, 13; Cooper Motion at 7-

8. Defendants argue Plaintiff failed to exhaust his administrative

remedies and fails to state an Eighth Amendment violation entitling

Defendants to qualified immunity. See Godwin Motion at 5, 8, 14-

15; Atwell Motion at 5, 7, 8, 14; Cooper Motion at 3, 7. Defendants

Cooper and Minnich also invoke Eleventh Amendment immunity. See

Cooper Motion at 9.

V. Analysis & Conclusions

A. Dismissal Under 28 U.S.C. § 1915(e)

Defendants do not address Plaintiff’s purported claims

related to his transfer and the extreme prison conditions he

endured when he arrived back at CCI’s main unit on July 11, 2018.

See Compl. at 3, 4, 7. Defendants also do not address Plaintiff’s

assertion that Defendants Atwell and Minnich violated his

procedural due process rights by using chemical agents on him

without first obtaining a mental health consultation as required

under rule 33-602.210 of the Florida Administrative Code. Id. at

3. See also Pl. Atwell Resp. at 3, 6; Pl. Cooper Resp. at 3, 6.

Thus, as a preliminary matter, the Court sua sponte invokes its

authority under the Prison Litigation Reform Act (PLRA) to assess

the viability of these claims. See 28 U.S.C. § 1915(e)(2)(B).

Liberally construing Plaintiff’s complaint, he attempts to

assert a claim against Defendant Godwin for the alleged improper

transfer and “inhumane” prison conditions.3 Plaintiff provides two

informal grievances he filed on July 12, 2018, complaining about

having been transferred back to the main unit and about the

excessive heat in his cell. See Compl. Supp. at 6, 7. His

grievances were approved; the responding prison official told

Plaintiff a transfer was pending. Id.

It is apparent Plaintiff seeks to hold Defendant Godwin liable

simply because of Godwin’s position as Warden. In the supplement

to his complaint, Plaintiff says, “people like Godwin the warden

at Columbia are surely familiar with [security and housing] issues

and as a warden of any facility it is in [his] responsibility to

assure care, custody, protection, and control over [the]

facility.” Compl. Supp. at 5. Additionally, in response to Warden

Godwin’s motion, Plaintiff says: “Who not more suitable to [be]

held responsible for the actions [and] status of a prison, then

[sic] the head official of the prison?” See Pl. Godwin Resp. at 1.

Plaintiff’s theory of liability against Warden Godwin has

been rejected in the Eleventh Circuit. See Cottone v. Jenne, 326

F.3d 1352, 1360 (11th Cir. 2003) (internal quotation marks and

citation omitted) (“It is well established in this Circuit that

supervisory officials are not liable under § 1983 for the

3 Plaintiff does not attribute the transfer or prison

conditions to Defendants Atwell, Cooper, or Minnich. See Compl. at

3, 4, 7.

unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.”). Supervisor

liability arises only “when the supervisor personally participates

in the alleged constitutional violation or when there is a causal

connection between the actions of the supervising official and the

alleged constitutional deprivation.” Mathews v. Crosby, 480 F.3d

1265, 1270 (11th Cir. 2007) (internal quotation marks and citation

omitted). See also Reid v. Sec’y, Fla. Dep’t of Corr., 486 F. App’x

848, 852 (11th Cir. 2012) (affirming summary judgment in favor of

a defendant sued “only in his supervisory capacity” because the

plaintiff asserted no allegations that the defendant participated

in the action or that he was causally responsible for any

violations).

Plaintiff does not allege facts showing a causal connection

between the alleged constitutional violation and any actions or

omissions by Warden Godwin. For instance, Plaintiff does not assert

Warden Godwin directed his transfer or directed prison officials

to place him in a hot cell with no ventilation. Plaintiff also

does not identify a policy or custom Warden Godwin adopted or

ratified that resulted in the violation of his constitutional

rights. See Compl. at 5-7.

Even if Plaintiff alleged Warden Godwin directed his transfer

to the main unit at CCI, his claim would fail. Inmates do not have

a constitutional right to be housed at a particular penal

institution. See McKune v. Lile, 536 U.S. 24, 39 (2002) (“It is

well settled that the decision where to house inmates is at the

core of prison administrators’ expertise.”); Barfield v. Brierton,

883 F.2d 923, 936 (11th Cir. 1989) (“[I]nmates usually possess no

constitutional right to be housed at one prison over another.”).

Accordingly, assuming the July 12, 2018 grievances, which

were approved, show proper exhaustion of Plaintiff’s complaints

that he was improperly transferred and endured inhumane prison

conditions, Plaintiff fails to state a plausible claim for relief

against Warden Godwin.

As to the use of chemical agents, accepting as true that

Defendant Minnich directed Defendant Atwell to spray Plaintiff

without first consulting a “qualified mental health professional,”

Plaintiff fails to allege a constitutional violation. A violation

of a state’s administrative policy is not actionable under § 1983.

Indeed, to state a claim under § 1983, a plaintiff must allege

“the defendant deprived [him] of a right secured under the

Constitution or federal law.” See Bingham v. Thomas, 654 F.3d 1171,

1175 (11th Cir. 2011). Thus, Plaintiff does not state a claim

against Defendants Minnich or Atwell for the denial of due process

related to the use of chemical agents.

Under 28 U.S.C. § 1915(e)(2)(B), the Court will dismiss the

above claims against Defendants Godwin, Minnich, and Atwell for

Plaintiff’s failure “to state a claim on which relief may be

granted.”

B. Excessive-Force Claims

Plaintiff alleges Defendants Atwell, Cooper, and Minnich used

(or approved the use of) excessive force against him on July 13,

2018. And Plaintiff contends Warden Godwin is responsible for

Defendants Atwell, Cooper, and Minnich’s actions because it “is

the responsibility of the Warden” to ensure employees comply with

administrative rules and policies. See Compl. at 6. Because

Plaintiff’s claim against Warden Godwin is premised on a theory of

supervisor liability, as previously discussed, Plaintiff’s claim

against Warden Godwin fails. See Cottone, 326 F.3d at 1360.

Defendants Atwell, Cooper, and Minnich assert Plaintiff did

not exhaust his administrative remedies as to the July 13, 2018

use-of-force incidents.4 Exhaustion is a matter in abatement. As

such, the Court first will address whether Defendants show

Plaintiff failed to exhaust his administrative remedies and then

will address whether Plaintiff fails to state a claim.

The PLRA provides, “[n]o action shall be brought with respect

to prison conditions . . . until such administrative remedies as

are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of

available administrative remedies is “a precondition to an

adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368, 1374

(11th Cir. 2008). See also Jones v. Bock, 549 U.S. 199, 211 (2007).

4 Clearly, the July 12, 2018 grievances do not constitute

proper exhaustion of claims that arose on July 13, 2018.

While “the PLRA exhaustion requirement is not jurisdictional[,]”

Woodford v. Ngo, 548 U.S. 81, 101 (2006), “exhaustion is mandatory

. . . and unexhausted claims cannot be brought,” Pavao v. Sims,

679 F. App’x 819, 823 (11th Cir. 2017) (per curiam) (citing Jones,

549 U.S. at 211).

Nevertheless, prisoners are not required to “specially plead

or demonstrate exhaustion in their complaints.” See Jones, 549

U.S. at 216. Instead, the United States Supreme Court has

recognized that “failure to exhaust is an affirmative defense.”

Id. Not only is there a recognized exhaustion requirement, “the

PLRA . . . requires proper exhaustion” as set forth in applicable

administrative rules and policies. Woodford, 548 U.S. at 93. As

such, “[p]roper exhaustion demands compliance with an agency’s

deadlines and other critical procedural rules[.]” Id.

Generally, to properly exhaust administrative remedies, a

Florida prisoner must complete a three-step process as fully set

forth in the Florida Administrative Code. See Fla. Admin. Code r.

33-103.001 through 33-103.018. First, a prisoner must file an

informal grievance. See Fla. Admin. Code r. 33-103.005. If the

informal grievance is denied, the prisoner must file a formal

grievance at the institution level. See Fla. Admin. Code r. 33-

103.006. Finally, if the formal grievance is denied, the prisoner

must appeal to the Office of the Secretary of the FDOC. See Fla.

Admin. Code r. 33-103.007.

When confronted with an exhaustion defense, courts employ a

two-step process:

First, district courts look to the factual

allegations in the motion to dismiss and those

in the prisoner’s response and accept the

prisoner’s view of the facts as true. . . .

Second, if dismissal is not warranted on the

prisoner’s view of the facts, the court makes

specific findings to resolve disputes of fact,

and should dismiss if, based on those

findings, defendants have shown a failure to

exhaust.

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th

Cir. 2015) (internal citations omitted) (citing Turner v.

Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008)).

Plaintiff provides grievance documents, which show he

successfully completed the first step of the grievance process

(Doc. 28-1; Pl. Ex.). Two days after the incidents, on July 15,

2018, Plaintiff filed informal grievances complaining about

Defendant Cooper’s conduct of ripping the sheet from his hands,

Pl. Ex. at 3,5 and Defendant Atwell, Cooper, and Minnich’s use of

chemical agents, id. at 4.6 His informal grievances were denied.

5 Plaintiff did not grieve Defendant Cooper’s alleged use of

force against him in the holding cell.

6 In his grievance, Plaintiff names Defendant Cooper as being

involved in the use of chemical agents. See Pl. Ex. at 4. In his

complaint, however, Plaintiff alleges Defendant Minnich approved

the use of chemical agents, and Defendant Atwell administered the

spray. See Compl. at 6. Plaintiff does not allege Defendant Cooper

participated in the use of chemical agents. Id.

Id. at 3, 4. Plaintiff did not proceed to the second step of the

grievance process (formal grievance at the institution level).

In his responses to Defendants’ motions, Plaintiff concedes

he failed to proceed to the next step of the grievance process. To

excuse his failure, he says exhaustion is not mandatory and is

within the court’s discretion; he could have been retaliated

against for filing grievances; the grievance system cannot give

him what he wants (money and termination of employees); and the

institution is biased and “subversive.” See Pl. Godwin Resp. at 4-

5; Pl. Atwell Resp. at 6-7; Pl. Cooper Resp. at 4-5. These

arguments are unavailing because the case upon which Plaintiff

relies is no longer good law. See McCarthy v. Madigan, 503 U.S.

140, 150-51 (1992), superseded by statute, 42 U.S.C. § 1997e(a),

as stated in Woodford, 548 U.S. at 85.

Contrary to Plaintiff’s assertion, exhaustion under the PLRA

is indeed mandatory and not subject to a district court’s

discretion. Ross v. Blake, 136 S. Ct. 1850, 1857 (2016)

(“[M]andatory exhaustion statutes like the PLRA establish

mandatory exhaustion regimes, foreclosing judicial discretion.”);

Woodford, 548 U.S. at 85 (“Exhaustion is no longer left to the

discretion of the district court, but is mandatory.”). Moreover,

a prisoner seeking money damages still “must complete a prison

administrative process” even though such relief is not available

through the prison grievance process. See Booth v. Churner, 532

U.S. 731, 734 (2001).

Plaintiff asserts one argument with potential viability for

his failure to properly exhaust his administrative remedies. He

contends the grievance process was unavailable to him because when

he requested formal grievance forms, “employees” told him there

were none. See Pl. Godwin Resp. at 5; Pl. Atwell Resp. at 6-7; Pl.

Cooper Resp. at 4-5. Under the first step of the exhaustion

analysis, the Court accepts Plaintiff’s assertion as true. Thus,

the Court proceeds to the second step of the exhaustion analysis,

which requires the Court to resolve disputed factual issues and

make credibility determinations. See Turner, 541 F.3d at 1083;

Bryant, 530 F.3d at 1376 (holding district courts must act as

factfinders when ruling on matters in abatement, such as

exhaustion).

Upon review, the Court finds Plaintiff’s contention that he

was unable to obtain formal grievance forms is not only conclusory

but is not credible. Under the Florida Administrative Code,

prisoners have multiple avenues available to them to obtain

grievance forms: “[Grievance forms] shall be available as [sic] a

minimum from the institutional library, classification department,

classification staff, and the housing officer of any living unit

or confinement unit.” See Fla. Admin. Code r. 33-103.015(2).

Plaintiff does not provide any factual detail explaining the steps

he took to obtain formal grievance forms, such as who he asked,

how many times he asked, or whether he took other measures to

obtain the forms.

While it is plausible that one, or even a few, employees may

have declined to physically hand Plaintiff a grievance form, it is

implausible that absolutely no grievance forms were available

throughout the prison. It is also implausible that multiple

employees would have refused Plaintiff grievance forms given

employees are subject to discipline for such conduct: “Staff found

to be obstructing an inmate’s access to the grievance process shall

be subject to disciplinary action.” See Fla. Admin. Code r. 33-

103.017(1). Plaintiff’s self-serving, conclusory assertion is

insufficient to show the grievance process was unavailable to him.

Assuming for the sake of argument no formal grievance forms

were available when Plaintiff requested them, Plaintiff fails to

show he attempted to file a formal grievance once the forms became

available. The Florida Administrative Code permits a prisoner to

seek an extension of the time to file a grievance at each step of

the process upon a showing of a good faith effort to timely comply:

“An extension of the . . . time periods shall be granted when it

is clearly demonstrated by the inmate . . . that it was not feasible

to file the grievance within the relevant time periods and that

the inmate made a good faith effort to file in a timely manner.”

See Fla. Admin. Code r. 33-103.011(2). Had there been no formal

grievance forms available throughout the prison, filing such a

form would not have been feasible. As such, Plaintiff should have

followed administrative procedures to obtain an extension of the

filing period. Plaintiff provides no evidence he did so.

For the above reasons, the Court finds Defendants demonstrate

Plaintiff failed to exhaust his administrative remedies as to the

July 13, 2018 use-of-force incidents. However, even if the

grievance process was unavailable to Plaintiff, the only issues he

would have exhausted are ones that are not constitutional

violations: Defendant Cooper’s ripping the sheet from his hands

and the use of chemical agents.

As to Defendant Cooper’s conduct, unkind acts, even if done

out of anger, do not constitute “cruel and unusual punishment”

under the Eighth Amendment. Not “every malevolent touch” by a

prison official constitutes a malicious and sadistic use of force.

Hudson v. McMillian, 503 U.S. 1, 10 (1992). To establish a

violation of the cruel and unusual punishment clause, a plaintiff

must allege “more than ordinary lack of due care for the prisoner’s

interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986).

De minimis uses of physical force, even if unnecessary, do not

violate the Eighth Amendment provided the force is not “of a sort

repugnant to the conscience of mankind.” Hudson, 503 U.S. at 10

(quoting Whitley, 475 U.S. at 327). “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. at 9

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

In his complaint, Plaintiff describes no more than a de

minimis use of physical force by Defendant Cooper, which is not

actionable under § 1983 as an Eighth Amendment violation. Accepting

that Defendant Cooper’s actions were unnecessary, Plaintiff fails

to allege Defendant Cooper acted in a malicious or wanton manner

or in a way that would be repugnant to the conscience of mankind.

Plaintiff does not allege Defendant Cooper acted with more than

ordinary lack of due care when he ripped the sheet through the

cell flap and out of Plaintiff’s hands. Thus, Plaintiff fails to

state a claim against Defendant Cooper.

Moreover, Plaintiff’s allegations, accepted as true, fail to

show Defendants Atwell’s or Minnich’s conduct amounts to an Eighth

Amendment violation. The Eighth Amendment’s proscription against

cruel and unusual punishment “prohibits the unnecessary and wanton

infliction of pain, or the infliction of pain totally without

penological justification.” Ort v. White, 813 F.2d 318, 321 (11th

Cir. 1987). However, Eighth Amendment jurisprudence permits prison

guards leeway to use force when necessary “to maintain or restore

discipline,” and courts must be mindful that they normally should

not interfere in matters of prison administration or inmate

discipline. Whitley, 475 U.S. at 320-21, 322. In their role of

maintaining order and ensuring safety, prison guards must react to

and resolve prison disturbances or threats of harm. See, e.g.,

Williams v. Burton, 943 F.2d 1572, 1575 (11th Cir. 1991) (citing

Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir. 1987)).

The Eleventh Circuit has articulated five factors courts may

consider in determining whether an officer’s use of force was in

good faith or carried out maliciously and sadistically for the

purpose of causing harm:

(1) the extent of injury; (2) the need for

application of force; (3) the relationship

between that need and the amount of force

used; (4) any efforts made to temper the

severity of a forceful response; and (5) the

extent of the threat to the safety of staff

and inmates, as reasonably perceived by the

responsible officials on the basis of facts

known to them.

Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999) (quoting

Whitley, 475 U.S. at 321; Hudson, 503 U.S. at 7 ). See also Ort,

813 F.2d at 323; Williams, 943 F.2d at 1575.

Applying the above factors and accepting Plaintiff’s

allegations as true, Plaintiff fails to state a plausible Eighth

Amendment violation against Defendants Minnich and Atwell. By

Plaintiff’s own allegations, a use of force was justified.

Plaintiff acknowledges he engaged in conduct necessitating

application of force. He alleges he used his sheet to open the

flap in his cell door, which prompted a cell-front assessment by

Defendant Minnich, the captain on duty at the time. See Compl. at

5. Additionally, in his complaint supplement and his response to

Defendant Atwell’s motion, Plaintiff concedes he exhibited

behavior deemed a disturbance. In fact, he faults Defendant Minnich

for not obtaining an evaluation to determine whether “[his] issues

were psych relate[d] or behavior management.” See Compl. Supp. at

3 (emphasis added). See also Pl. Atwell Resp. at 3 (failure to

determine whether the “issue [was] behavior management or psych

related”).

Additionally, the amount of force used was minimal. “A short

burst of pepper spray is not disproportionate to the need to

control an inmate who has failed to obey a jailer’s orders.” Danley

v. Allen, 540 F.3d 1298, 1307 (11th Cir. 2008), overruled on other

grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th

Cir. 2010) (holding the use of chemical agents was a “reasonable

response” to the prisoner’s failure to disobey orders). Plaintiff

does not allege Defendant Atwell sprayed him for an unnecessarily

long time or in such a manner that would permit the inference

Defendant Atwell acted for reasons other than “to maintain or

restore discipline.” Whitley, 475 U.S. at 320-21.

While Plaintiff undoubtedly suffered discomfort or temporary

trouble breathing as a result of the chemical spray, such is to be

expected and does not, by itself, demonstrate excessive force. Id.

at 1308 (“Pepper spray is designed to disable a suspect without

causing permanent physical injury.”) (internal quotation marks

omitted). Moreover, accepting Plaintiff’s allegations as true,

Defendants took steps to “temper the severity of [their] forceful

response.” See Campbell, 169 F.3d at 1375. Plaintiff alleges

officers took him for a decontamination shower and medical

evaluation immediately after Defendant Atwell sprayed him. See

Compl. at 6; Compl. Supp. at 4.

In sum, Plaintiff fails to show Defendants Minnich or Atwell

administered chemical agents against him “maliciously and

sadistically for the very purpose of causing harm.” Whitley, 475

U.S. at 320-21. Plaintiff’s bald assertion that Defendant

Minnich’s conduct was done in retaliation for Plaintiff having

filed a grievance against Minnich in the past is a mere conclusion

unsupported by factual allegations. As such, it amounts to no “more

than an unadorned, the-defendant-unlawfully-harmed-me

accusation,” which does not satisfy the federal pleading standard.

Iqbal, 556 U.S. at 678. Plaintiff merely speculates the use of

chemical agents was an act of retaliation against him for filing

a grievance in the past. See Compl. at 6. He asserts no facts

permitting the inference Defendant Minnich acted for reasons other

than legitimate penological concerns.

C. Conclusion

Plaintiff did not exhaust his administrative remedies as to

the July 13, 2018 use-of-force incidents. Additionally, Plaintiff

fails to state a claim for relief against Defendants. As such,

they are entitled to qualified immunity, and their motions will be

granted.

Accordingly, it is now

ORDERED:

1. Defendant Godwin’s motion to dismiss (Doc. 25) is

GRANTED.

2. Defendant Atwell’s motion to dismiss (Doc. 31) is

GRANTED.

3. Defendants Cooper and Minnich’s motion to dismiss (Doc.

48) is GRANTED.

4. Plaintiff’s Eighth Amendment claim for inhumane prison

conditions and his due process claim for improper transfer against

Defendant Godwin are dismissed without prejudice under 28 U.S.C.

§ 1915(e)(2)(B).

5. Plaintiff’s Fourteenth Amendment due process claim

against Defendants Atwell and Minnich is dismissed without

prejudice under 28 U.S.C. § 1915(e)(2)(B).

6. Plaintiff’s Eighth Amendment excessive-force claims

against Defendants Godwin, Atwell, Cooper, and Minnich are

dismissed with prejudice for Plaintiff’s failure to state a claim

and failure to exhaust his administrative remedies.

7. The Court directs the Clerk to enter judgment

accordingly, terminate any pending motions, and close the case.

DONE AND ORDERED at Jacksonville, Florida, this 16th day of

March, 2020.

4 ¢ De

af J. DAVIS

United States District Judge

Jax-6

Ci

Jerprece Xavier Filmore, #C06220

Counsel of Record

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