Hurst v. Flesher

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WILBERT R. HURST,

Plaintiff,

v. Case No. 3:19-cv-1149-J-32JBT

WHITNEY A. FLESHER, et al.,

Defendants.

_______________________________

ORDER OF DISMISSAL WITHOUT PREJUDICE

I. Status

Plaintiff, Wilbert R. Hurst, a Florida inmate, initiated this case in the

Northern District of Florida by filing a pro se Civil Rights Complaint (Doc. 1)

(Complaint). The Honorable William Stafford, Senior United States District

Judge, transferred the Complaint to this Court. See Doc. 14. Plaintiff raises a

number of claims based on constitutional violations that allegedly occurred

while Plaintiff was housed at Union Correctional Institution between January

2018 and July 2018. He names the following Florida Department of Corrections

employees as Defendants: Whitney A. Flesher, academic teacher at UCI; M.

Willforth, classification official at UCI; John Doe, classification official at UCI;

Ken D. Jordan, former warden of UCI; Lt. Smith, UCI correctional officer; and

Officer Brown, UCI correctional officer. See Doc. 1.

Due to the breadth of his allegations, the Court provides a timeline to

summarize Plaintiff’s Complaint.

January 2, 2018 – Defendant Flesher, the tutor supervisor at

UCI, called a meeting with all the tutors to discuss ongoing

issues. Doc. 1 at 5. At that time, Plaintiff was a prison tutor.

During the meeting, Plaintiff and Defendant Flesher engaged

in a heated exchange about copy paper, which ultimately

resulted in Plaintiff abruptly quitting his tutor job. Id. at 5-6.

January 3, 2018 – Plaintiff went before the ICT Team for a

new job assignment, and Defendant Willforth assigned

Plaintiff to a position pushing a 600-pound cart. Id. at 6.

January 5, 2018 – Defendant Flesher issued a disciplinary

report charging Plaintiff with violating Florida

Administrative Code Rule 33-601.314 for his conduct during

the January 2, 2018, tutor meeting. Defendant Brown

provided Plaintiff with notice of the disciplinary report by

reading it to Plaintiff in his cell. Id. at 8.

January 9, 2018 – Defendant Smith conducted a disciplinary

hearing. At the hearing, Plaintiff was found guilty of violating

Rule 33-601.314, and Ms. Dorsey sentenced Plaintiff to

probation. Id. at 10-11.

January 16, 2018 – Defendant Doe harassed Plaintiff by

stating, “I recommend that he be transferred.” Id. at 14-15.

May 18, 2018 – Dr. J. Putney wrote Plaintiff a no push/no pull

pass. Id. at 17.

May 18, 19, 20, 2018 – Defendant Buchanan, Plaintiff’s cart-

pusher supervisor, made Plaintiff continue his cart-pusher

job despite his no push/no pull pass. Id. at 17-18.

May 19, 2018 – Plaintiff filed a grievance regarding

Defendant Buchanan’s conduct. Id. at 18.

May 24, 2018 – Plaintiff went to a sick-call for pain in his

hand, and Nurse McClellan prescribed Plaintiff Tylenol. Id.

at 18.

May 31, 2018 – Plaintiff filed a formal grievance regarding

his cart-pusher job. Id.

June 26, 2018 – the ICT Team reassigned Plaintiff to a new

job in “V-Dorm as an orderly.” Id.

June 29, 2018 – Plaintiff filed a formal grievance because his

new job tasks aggravated the pain in his lower back and

hand. Id. at 19.

July 8, 2018 – Plaintiff filed an informal grievance regarding

his long work hours. Id.

July 9, 2018 – Plaintiff filed an informal grievance asking

Defendant Willforth to reconsider assigning Plaintiff a new

job. Id.

July 11, 2018 – Plaintiff was transferred to another prison.

Id. at 20.

Based on these events, Plaintiff claims that Defendants violated his due

process and equal protection rights; engaged in First Amendment retaliation;

were deliberately indifferent to Plaintiff’s serious medical needs; and engaged

in conduct amounting to intentional infliction of emotional distress. See

generally id. As relief, Plaintiff requests the following:

A[] permanent injunction enjoining Defendant

Warden Kevin D. Jordan , and/or his successor in office,

agents, subordinates, employees, and all other persons

in concert therewith, to stop the customs, practices, and

policies of violating plaintiff’s and other elderly

inmates’ First Amendment Rights to Free Speech by

not allowing them to reveal their medical problems to

the ICT Team before they are given their perspective

job assignments . . .

[and] by not allowing plaintiff and other inmates

a real opportunity to call witnesses for their defense,

and by not giving plaintiff and other inmates a real

opportunity to state their case, at the disciplinary

hearing.

Award plaintiff compensatory and punitive

damages against [D]efendants Whitney A Flesher, M.

Willforth, [D]efendant John Doe, and [D]efendant

Warden Kevin D. Jordan. Under the Tort claim of

Florida, award damages for Intentional Infliction of

Emotional Distress, jointly and severally.

Award plaintiff compensatory damages against

[D]efendants Lt. Smith, Officer Brown, and Sergeant

M. Buchanan.

Id. at 23. The Court addresses each of Plaintiff’s claims in turn below.

II. Analysis

The Prison Litigation Reform Act requires the Court to dismiss a case at

any time if the Court determines that the action is frivolous, malicious, fails to

state a claim upon which relief can be granted, or seeks monetary relief against

a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). The

Court liberally construes the pro se plaintiff’s allegations. See Haines v. Kerner,

404 U.S. 519, 520-21 (1972); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th

Cir. 2011).

“A claim is frivolous if it is without arguable merit either in law or fact.”

Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (citing Battle v. Central

State Hosp., 898 F.2d 126, 129 (11th Cir. 1990)). A complaint filed in forma

pauperis which fails to state a claim under Federal Rule of Civil Procedure

12(b)(6) is not automatically frivolous. Neitzke v. Williams, 490 U.S. 319, 328

(1989). Section 1915(e)(2)(B)(i) dismissals should only be ordered when the legal

theories are “indisputably meritless,” id. at 327, or when the claims rely on

factual allegations which are “clearly baseless.” Denton v. Hernandez, 504 U.S.

25, 32 (1992). “Frivolous claims include claims ‘describing fantastic or

delusional scenarios, claims with which federal district judges are all too

familiar.’” Bilal, 251 F.3d at 1349 (quoting Neitzke, 490 U.S. at 328).

Additionally, a claim may be dismissed as frivolous when it appears that a

plaintiff has little or no chance of success. Id.

With respect to whether a complaint “fails to state a claim on which relief

may be granted,” § 1915(e)(2)(B)(ii) mirrors the language of Federal Rule of

Civil Procedure 12(b)(6), so courts apply the same standard in both contexts.

Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); see also Alba v.

Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). “To survive a motion to dismiss,

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

(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Labels

and conclusions” or “a formulaic recitation of the elements of a cause of action”

that amount to “naked assertions” will not do. Id. (quotations, alteration, and

citation omitted). Moreover, a complaint must “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 Ctr. for

Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quotations and citations

omitted).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a

person acting under color of state law deprived him of a right secured under the

Constitution or laws of the United States. See Salvato v. Miley, 790 F.3d 1286,

1295 (11th Cir. 2015); Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992).

Moreover, “conclusory allegations, unwarranted deductions of facts, or legal

conclusions masquerading as facts will not prevent dismissal.” Rehberger v.

Henry Cty., Ga., 577 F. App’x 937, 938 (11th Cir. 2014) (per curiam) (quotations

and citation omitted). In the absence of a federal constitutional deprivation or

violation of a federal right, a plaintiff cannot sustain a cause of action against

a defendant.

a. Due Process

Plaintiff alleges that Defendant Brown and Defendant Smith violated his

due process rights under the Fourteenth Amendment when they failed to speak

to or ensure the appearance of Plaintiff’s witnesses at Plaintiff’s disciplinary

hearing and failed to allow Plaintiff to speak at his disciplinary hearing. See

Doc. 1 at 9-11. According to Plaintiff, three days after his argument with

Defendant Flesher, Defendant Flesher fabricated a disciplinary report charging

him with violating Florida Administrative Code Rule 33-601.314.1 Id. Officer

Brown notified Plaintiff of the disciplinary report by coming to Plaintiff’s cell

and reading the report aloud. According to Plaintiff, the disciplinary report set

forth the following:

On January 2, 2018 at approximately 1130 hours

while assigned as the Academic Teacher, inmate Hurst,

Wilbert . . . approached me and asked for additional

paper. At that time I advised him that there was no

additional paper. At that time inmate Hurst began to

yell in an aggressive manner stating: “You mean to tell

me with all that damn money the State can’t f**king

provide any more damn paper!” Inmate Hurst is in

direct violation of F.A.C. Chapter 33-601.314 rules of

prohibited conduct code: (1-4) Disrespect to officials,

employees, or other person of constituted authority

expressed by means of words, gestures, and the like.

Doc. 1 at 8. When Defendant Brown finished reading the disciplinary report,

Plaintiff contends that he attempted to give Defendant Brown a list of witnesses

that would refute the disciplinary report allegations, but Defendant Brown

refused to listen or investigate any of Plaintiff’s potential witnesses. Id. at 8-9.

Plaintiff avers that during his disciplinary hearing, Defendant Smith would not

let Plaintiff speak, nor did he give Plaintiff an opportunity to call witnesses. Id.

at 11. He argues that Defendant Brown and Defendant Smith’s conduct violated

1 The Court addresses Plaintiff’s claim that Defendant Flesher fabricated

the disciplinary report when addressing Plaintiff’s retaliation claims.

his due process rights, and as a result of this due process violation, he was found

guilty of violating Rule 33-601.314 and sentenced to probation.2 Id. at 9-11. He

further argues that this disciplinary report ruined his chances of getting his

petition for clemency granted or getting an interstate compact transfer to

Pennsylvania or Delaware. Id. at 10.

There are two circumstances in which a prisoner may be deprived of a

constitutionally protected liberty interest, such that due process is required: (1)

“when a change in the prisoner’s conditions of confinement is so severe that it

essentially exceeds the sentence imposed by the court”; and (2) “when the state

has consistently bestowed a certain benefit to prisoners . . . and the deprivation

of that benefit ‘imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.’” Kirby v. Siegelman, 195 F.3d

1285, 1291 (11th Cir. 1999) (citing Sandin v. Conner, 515 U.S. 472 (1995)). In

these two instances, “[w]hen a prisoner’s due process rights are triggered, he is

entitled to, among other things, an opportunity to call witnesses and present

documentary evidence at a disciplinary hearing.” Allen v. Sec’y, Fla. Dep’t of

Corr., 578 F. App’x 836, 839 (11th Cir. 2014) (citing Wolff v. McDonnell, 418

U.S. 539 (1974)).

2 Plaintiff also appears to allege that Defendants Brown and Smith’s

refusal to allow Plaintiff to call witnesses at his disciplinary hearing violated

his First Amendment right to free speech. Doc. 1 at 22. However, Plaintiff does

not allege any facts to support that legal conclusion. Id.

Plaintiff has not alleged a deprivation of a constitutionally-protected

liberty interest that would implicate a due process violation regarding his

disciplinary report and hearing. Although he alleges that he was placed on

“probation” because he was found guilty of the disciplinary report, he has not

alleged that being placed on “probation” presented “the type of atypical,

significant deprivation” that creates a liberty interest. See Allen, 578 F. App’x

at 839 (finding no due process claim regarding defendant’s failure to ensure

appearance of plaintiff’s witnesses at disciplinary hearing, because the plaintiff

failed to allege that the change in his conditions of his confinement following

the hearing created a liberty interest); see also Sandin, 515 U.S. at 472 (30 days

in segregated disciplinary confinement did not trigger due process protection

where the conditions of disciplinary segregation were not significantly different

from the conditions outside disciplinary segregation). Plaintiff also fails to

allege that he lost good time credits as a result of his disciplinary proceedings.

See Wolff, 418 U.S. at 557 (prisoners have a constitutionally-protected liberty

interest in state-created right to good time credits). As such, because Plaintiff

has not alleged that a constitutionally-protected liberty interest was affected by

the outcome of his disciplinary hearing, he has failed to state a due process

claim under the Fourteenth Amendment. The due process claims against

Defendants Brown and Smith are due to be dismissed.

b. First Amendment Retaliation

Plaintiff argues that Defendants Flesher, Willforth, and Doe engaged in

various retaliatory actions against Plaintiff, because Plaintiff exercised his

First Amendment right of freedom of speech when voicing his complaints at the

tutor meeting. Doc. 1 at 2. He also alleges that Defendants Willforth and Doe

retaliated against Plaintiff for filing grievances after his job reassignments. Id.

at 18-20.

i. Statements Made at Tutor Meeting

First, Plaintiff claims that he was retaliated against for engaging in

protected speech during the tutor meeting with Defendant Flesher. Id. at 5.

According to Plaintiff, Defendant Flesher requested a meeting with the prison

tutors to discuss ongoing issues and complaints. Id. At the meeting, Plaintiff

and Defendant Flesher got into an argument. He describes the exchange with

Defendant Flesher as follows:

“Well Ms. Flesher, the only complaint I have is

how come we can’t get copies made? This is the State of

Florida, so don’t the State have a budget to buy copier

paper?” She then said that she wants us to use scrap

paper because of copyright concerns. I then said that I

didn’t think that that’ll look professional, but if that’s

what you want I’ll do it. She then went on to the next

issue. She said: “from now on lunch will no longer be

brought to the tutors. From now on you will have to go

to the chow hall to eat lunch and then come back to

work.” I said “good!” Then she said: “Hurst, you have

one foot out the door.” I replied, “what does that mean

Ms. Flesher?” She said, “one more smart comment and

you’re out of here.” I then said, “I wasn’t trying to be

smart, but the food is usually cold when we eat it, so I

like the idea of going to the chow hall to eat, but if you

no longer want me working here, you can put me on the

ICT list for a job change tomorrow, I’ll be glad to go.” So

she said, “You can leave.”

Doc. 1 at 5. Plaintiff then abruptly quit his tutor position. Plaintiff claims that

“[e]verything [he] said” during the argument with Defendant Flesher “was

protected speech.” Id. at 6. He asserts that Defendant Flesher then retaliated

against Plaintiff by issuing a fabricated disciplinary report charging Plaintiff

with violating Rule 33-601.314.

He also claims that Defendant Willforth and Defendant Doe retaliated

against Plaintiff for the statements he made at the tutor meeting. According to

Plaintiff, on January 3, 2018, Defendants Willforth and Doe retaliated by

reassigning Plaintiff to an undesirable new job – pushing a 600-pound food cart

– without first consulting medical regarding Plaintiff’s ability to push the cart.

He further states that on January 16, 2018, Defendants Willforth and Doe again

retaliated by harassing Plaintiff about his disciplinary report in the presence of

Assistant Warden Knox. Id. at 14-15. He claims that Doe exclaimed, “I

recommend that he be transferred”; and Willforth harassed Plaintiff by saying,

“You are the one who was found guilty for disrespecting Ms. Flesher.” Id. at 14.

He claims that they intentionally made these harassing comments in the

presence of Knox in hopes of influencing Plaintiff’s appeal of his disciplinary

report that was pending before Knox. Id. According to Plaintiff, he filed a

grievance regarding Defendants Willforth and Doe’s comments and explains

that Knox “approved the grievance.” Id. at 15.

“The core of [a retaliation claim brought pursuant to 42 U.S.C. § 1983] is

that the prisoner is being retaliated against for exercising his right to free

speech.” O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (per curiam)

(citation omitted). It is firmly established that “an inmate is considered to be

exercising his First Amendment right of freedom of speech when he complains

to the prison’s administrators about the conditions of his confinement.” Smith

v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). Further, it is firmly established

that an inmate may pursue a cause of action against a prison official who

retaliated against him for engaging in that protected speech. Id. Three elements

are involved in these retaliation claims:

1) [the inmate’s] speech was constitutionally protected;

2) the inmate suffered adverse action such that the

[official’s] allegedly retaliatory conduct would likely

deter a person of ordinary firmness from engaging in

such speech; and 3) there is a causal relationship

between the retaliatory action and the protected

speech.

Smith, 532 F.3d at 1276.

Here, Plaintiff has failed to sufficiently allege the first element – that his

statements to Defendant Flesher were constitutionally protected. Prison

officials are accorded latitude in the administration of prison affairs, and “‘an

inmate’s First Amendment right to free speech is not protected if affording

protection would be inconsistent . . . with the legitimate penological objectives

of the corrections system.’” Id. at 1277 (quoting Pell v. Procunier, 417 U.S. 817,

822 (1974)). As such, “if a prisoner violates a legitimate prison regulation, he is

not engaged in ‘protected conduct.’” Id. at 1277 (quoting Thaddeaus-X v. Blatter,

175 F.3d 378, 389 (6th Cir. 1999)).

Plaintiff admits that after he made his statements to Defendant Flesher

and quit his tutor job, Officer Brown presented Plaintiff with a disciplinary

report charging him with violating Rule 33-601.314 of the Florida

Administrative Code. Rule 33-601.314 states that an inmate may not engage in

“[d]isrespect to officials, employees, or other persons of constituted authority

expressed by means of words, gestures and the like.” Plaintiff also

acknowledges that following a disciplinary hearing, he was found guilty of

violating Rule 33.601.314. Doc. 1 at 9. In Mathews v. Paynter, 752 F. App’x 740,

743 (11th Cir. 2018), the Eleventh Circuit held that Rule 33-601.314 was a

legitimate prison regulation and a valid limitation on inmate speech. Id. at 743-

44 (relying on Smith, 532 F.3d at 1277). It further held that speech found to be

in violation of Rule 33-601.314 was not considered protected speech for First

Amendment purposes. Id. at 743. Because the statements that Plaintiff made

to Defendant Flesher during the tutor meeting were found to be in violation of

Rule 33-601.314, they were not considered protected speech for purposes of the

first element of a First Amendment retaliation claim.

Nevertheless, this leads to Plaintiff’s second argument: that his

statements to Defendant Flesher did not violate Rule 33-601.314, but rather, in

retaliation, Defendant Flesher exaggerated the contents of the disciplinary

report to ensure he would be found guilty of violating Rule 33-601.314. Doc. 1

at 13. However, “[i]f a prisoner is found guilty of an actual disciplinary

infraction after being afforded due process and there was evidence to support

the disciplinary panel’s fact finding, the prisoner cannot later state a retaliation

claim against the prison employee who reported the infraction in a disciplinary

report.” See O’Bryant, 637 F.3d at 1212. Notably, “[w]hether an inmate actually

committed the charged infraction or whether the disciplinary report falsely

accuses the inmate are questions of fact that are decided by the disciplinary

panel.” Id. Because Plaintiff has failed to allege a due process violation

regarding his disciplinary hearing, see supra at 9, and because he concedes that

he was found guilty of the charged offense (violating Rule 33-601.314), he

cannot argue that Defendant Flesher issued the disciplinary report in

retaliation. See Allen, 578 F. App’x at 840.

Further, even assuming Plaintiff has sufficiently alleged the first two

elements of retaliation as to Defendants Willforth and Doe, he has failed to

allege the third – a causal relationship between the alleged retaliatory action

(job reassignment to cart pusher and harassing comments) and the protected

speech (statements to Defendant Flesher at tutor meeting). In order to establish

the third prong, a plaintiff is required to do more than make “general attacks”

upon a defendant’s motivations and must articulate “affirmative evidence” of

retaliation to prove the requisite motive. Crawford-El v. Britton, 523 U.S. 574,

600 (1998) (citations omitted). “In other words, the prisoner must show that, as

a subjective matter, a motivation for the defendant’s adverse action was the

prisoner’s [exercise of free speech].” Jemison v. Wise, 386 F. App’x 961, 965

(11th Cir. 2010) (per curiam) (citation omitted).

To establish subjective intent, a prisoner must provide more than

conclusory assertions, possibly through a chronology of events that can be used

to infer retaliatory intent. Williams v. Brown, 347 F. App’x 429, 435 (11th Cir.

2009) (per curiam) (finding conclusory allegations insufficient but officer’s

temporal reaction to a grievance and circumstantial evidence sufficient to state

a claim). However, because prison officials’ actions are presumed reasonable,

an inmate must produce evidence to support “specific, nonconclusory factual

allegations that establish improper motive causing cognizable injury.”

Crawford-El, 523 U.S. at 598.

Here, Plaintiff alleges that “Defendant [ ] Willforth and Defendant [ ] Doe

both had motive for this retaliatory act [(assigning Plaintiff to a cart-pusher

job)] because of the fabricated disrespect charge by their friend and co-worker

Defendant [ ] Flesher.” Doc. 1 at 14. However, Defendants Willforth and Doe

reassigned Plaintiff to a cart-pusher position on January 3, 2018, see id. at 6,

two days before Defendant Flesher issued her disciplinary report on January 5,

2018, see id. at 8. While Plaintiff appears to claim that Defendant Flesher

informed Defendant Willforth about Plaintiff’s statements at the time of the job

reassignment by “whispering in the ear of a lieutenant who was sitting next to

her,” see id. at 6, that conclusory allegation alone does not draw a sufficient

connection between Defendant Willforth and Defendant Doe’s decision to

reassign Plaintiff to the cart-pusher job. Likewise, Plaintiff fails to allege facts

establishing Defendants Willforth and Doe made their harassing comments

with “improper motive causing cognizable injury.” See Crawford-El, 523 U.S. at

598. Indeed, Plaintiff states that he filed a grievance regarding the comments

and that Knox approved the grievance. Doc. 1 at 15. Therefore, the Court finds

that Plaintiff fails to allege a First Amendment retaliation claim regarding the

statements he made at the tutor meeting. These claims are due to be dismissed.

ii. May 2018 Grievances

Plaintiff argues that on May 18, 2018, Dr. J. Putney issued Plaintiff a no

push/no pull pass. Doc. 1 at 17. Plaintiff alleges that he notified Defendant

Buchanan that he was issued the medical pass and told him “that all he had to

do was call medical and get the pass verified.” Id. at 18. However, according to

Plaintiff, Defendant Buchanan refused to verify the medical pass and ordered

Plaintiff to continue pushing and pulling a 600-pound cart. Id. Plaintiff

contends that he “then filed [ ] grievance[s] and exhausted the administrative

remedies on the matter.” Id. He claims that on May 19, 2018, he filed an

informal grievance, followed by a formal grievance on May 31, 2018, and an

appeal thereafter. Id. at 18. According to Plaintiff, on June 26, 2018, the “ICT

Team,” for a second time, reassigned Plaintiff’s prison job to “V-Dorm as an

orderly.” Id. at 18. According to Plaintiff, “V-Dorm by far is the most dreaded

and undesirable job on the compound,” requiring Plaintiff to carry dinner trays

up and down stairs, mop, push and pull heavy carts, and work long hours. Id.

He alleges that the job is intended to be “punitive in nature” and seems to claim

he was reassigned to V-Dorm in retaliation for his May grievances.

Again, even assuming Plaintiff has sufficiently alleged the first two

elements of retaliation, he has failed to allege the third – a causal relationship

between the alleged retaliatory action (reassignment to V-Dorm as an orderly)

and the protected speech (May 2018 grievances). See Crawford-El, 523 U.S. at

600. Plaintiff fails to allege that any named Defendant participated in the

second job reassignment or had an improper motive to reassign Plaintiff to a

job in V-Dorm. Rather, Plaintiff only states that the “ICT Team” reassigned

him. Doc. 1 at 18. While Plaintiff does not explain the content of these May 2018

grievances, he does imply that they contained complaints regarding Defendant

Buchanan’s disregard of Plaintiff’s no push/no pull pass. Id. at 18. However,

Plaintiff makes no claim that Defendant Buchanan is a member of the ICT team

or is responsible for prison job reassignments. As such, Plaintiff’s conclusory

statements do not draw a sufficient connection between Plaintiff’s second job

reassignment to V-Dorm and the May 2018 grievances. Thus, he fails to allege

that his second job reassignment was based on a retaliatory motive instead of

legitimate actions taken pursuant to an institutional policy. This claim is due

to be dismissed.

iii. June 2018 & July 2018 Grievances

Plaintiff claims that on June 29, 2018, he began filing a series of

grievances “because of all the job tasks [in V-Dorm] . . . aggravated the pain in

[his] lower back and hand.” Doc. 1 at 19. He states that on July 8, 2018, he

submitted a grievance about his long work hours and lack of sleep. Id. He

submitted another grievance on July 9, 2018, requesting that Defendant

Willforth reassign Plaintiff to another job, and a third grievance on July 10,

2018, regarding an incident where chemical agents left on the wall of V-Dorm

aggravated his asthma.3 Id. He maintains that on July 11, 2018, he was

transferred to another prison in retaliation for his grievances. Id. at 20. Plaintiff

claims the transfer was retaliatory, because

Defendant John Doe had a problem with me

3 According to Plaintiff, another inmate had been sprayed and residue

from the use of chemical agents remained in his work area, aggravating his

asthma. Doc. 1 at 19-20.

exercising my free speech and threatened to transfer

me, and I was transferred. Because of the short time [ ]

gap from the filing of the grievances to the decision to

transfer me, I was unmistakably transferred as a direct

result of exercising my right to free speech and my

filing the grievances.

Id. at 20.

Again, even assuming Plaintiff has sufficiently alleged the first two

elements of retaliation, he has failed to allege the third – a causal relationship

between the alleged retaliatory action (transfer to another prison) and the

protected speech (June 2018 & July 2018 grievances). See Crawford-El, 523

U.S. at 600; see also Jemison, 386 F. App’x at 965; Williams, 347 F. App’x at

435 (finding conclusory allegations insufficient but officer’s temporal reaction

to a grievance and circumstantial evidence sufficient to state a claim).

First, Plaintiff’s allegations do not demonstrate a causal or temporal

connection between his transfer and Defendant Doe’s January 16, 2018,

statement “recommend[ing] that he be transferred.” Doc. 1 at 14. Notably, he

was transferred almost six months after Defendant Doe made his remarks

about transferring Plaintiff. And by Plaintiff’s own admissions, Defendant Doe

did not threaten to transfer Plaintiff because he filed grievances, but instead

because Plaintiff made disrespectful statements to Defendant Flesher at the

tutor meeting. Id. at 15.

Further, while Plaintiff’s allegations may provide a close temporal

relationship between his June and July grievances and his July 11 transfer,

Plaintiff does not allege that any particular Defendant knew about these

grievances or had the ability to execute a transfer of Plaintiff to another prison.

Plaintiff’s conclusory statements do not draw a sufficient connection between

any Defendant’s conduct and his transfer. Therefore, the Court finds that

Plaintiff fails to allege that his transfer was based on a retaliatory motive

instead of legitimate actions taken pursuant to an institutional policy. As such,

this claim is due to be dismissed.

c. Equal Protection

Plaintiff argues that Defendant Flesher violated his equal protection

rights when she issued the January 5, 2018, disciplinary report. Doc. 1 at 12.

According to Plaintiff, other similarly situated, white inmates (Cromer, London,

Hayes, and Jeffery) were allowed to complain to Defendant Flesher without any

punishment. Id. at 13. However, Plaintiff argues that “when [he] complained

about the very same issue and at the correct forum with her encouragement,

[he] get[s] punished for it.” Id. He contends that there was no legal, rational

justification for her to treat him differently, “other than [Plaintiff is] black and

the others are white.” Id. at 13.

“To establish an equal protection claim, a prisoner must demonstrate that

(1) ‘he is similarly situated with other prisoners who received’ more favorable

treatment; and (2) his discriminatory treatment was based on some

constitutionally protected interest such as race.” Jones v. Ray, 279 F.3d 944,

946-47 (11th Cir. 2001) (quoting Damiano v. Fla. Parole & Prob. Comm’n, 785

F.2d 929, 932-33 (11th Cir. 1986)).

Initially, Plaintiff, at best, only sets forth vague and conclusory

allegations that race was a motivating factor in Defendant Flesher’s decision to

issue a disciplinary report for Plaintiff and not Cromer, London, Hayes, and

Jeffery. Plaintiff fails to consider that Rule 33-601.314 is a race-neutral,

legitimate prison regulation, and prison officials have a certain degree of

discretion on how to enforce such rules. See Mathews, 752 F. App’x at 743

(holding that Rule 33-601.314 was a legitimate prison regulation and a valid

limitation on inmate speech). And “absent any allegation of improper

[discriminatory] motive, a mere claim of inconsistent outcome in particular,”

provides no basis for an equal protection claim. Thompson v. Patteson, 985 F.2d

202, 207 (5th Cir. 1993) (affirming district court’s § 1915 dismissal of equal

protection claim regarding alleged disproportionate application of prison

regulation on publications, because the plaintiff failed to allege a discriminatory

motive). Indeed, in his Complaint, Plaintiff offers two other theoretical motives

for Defendant Flesher’s decision to issue the disciplinary report that are not

based on Plaintiff’s race. He claims that Defendant Flesher had a retaliatory

motive to issue the disciplinary report because Plaintiff exercised his right to

free speech at the tutor meeting, see id. at 10-9, 21; and that she issued the

disciplinary report because she “knew [Plaintiff] had applied for clemency and

that [he] had put in an interstate compact” request and wanted to ruin his

chances of getting relief, id. at 10.

Further, the Court finds that Plaintiff’s own allegation that UCI has a

“custom, policy, and practice” of fabricating false, boilerplate charges to

hundreds of other prisoners belies his claim that he was treated differently than

other similarly situated individuals.4 See Doc. 1 at 8-9. At one point, Plaintiff

alleges that “the whole disciplinary process” at UCI is flawed, pointing to the

“repeated, reoccurring complaint[s] that [Defendant Jordan] hears when he

responds to inmate[] grievances,” and “as evident by the many stories [Plaintiff]

hear[s] from other inmates who had similar experiences.” Id. at 11. Plaintiff

also explains that he was found guilty of the disciplinary report not because of

his race or some other immutable characteristic, but because of this improper

“policy, custom and practice.” Id. However, now, in an attempt to state an equal

protection violation, Plaintiff argues that there is no other explanation for

Defendant Flesher to have issued her disciplinary report “other than [Plaintiff]

is black and the others are white.” His allegations are contradictory and self-

4 The Court addresses Plaintiff’s allegations about this “custom, policy, or

practice” when addressing Plaintiff’s claims regarding Defendant Jordan’s

supervisory liability.

defeating.

Plaintiff also has failed to establish that he was similarly situated to

Cromer, London, Hayes and Jeffery. “Individuals are similarly situated only if

they are alike in all relevant respects.” Requena v. Roberts, 902 F.3d 1162, 1173

(10th Cir. 2018) (emphasis added). He appears to claim that inmate Cromer was

similarly situated because he also “verbally and aggressively disrespected

[D]efendant [ ] Flesher by saying ‘stop screaming in my fu**ing ear.’” Doc. 1 at

12. However, Plaintiff states that Cromer made this statement while he was

Defendant Flesher’s student, and in contrast, Plaintiff made his statements

while he was a tutor working for the prison’s educational department

supervised by Defendant Flesher. Id. at 5, 12. As to inmate London, Plaintiff

does not assert any facts supporting a contention that London violated prison

rules or that he made any disrespectful statement to Defendant Flesher.

Instead, he claims that London also requested to make additional copies and

Defendant Flesher, much like her response to Plaintiff, denied London’s

request. Id. at 12. Likewise, as to inmate Hayes, Plaintiff does not assert that

Hayes violated prison rules or made disrespectful statements to Defendant

Flesher; but rather, Plaintiff states that Hayes got “into an argument with

[Defendant Flesher’s] clerk[,] inmate Grant[,] about getting copies.” Id. Finally,

Plaintiff does not sufficiently allege a similarity to inmate Jeffery, as he merely

claims that “before [Jeffery] quit, [he] was notorious for verbalizing his

complaints to [D]efendant Flesher about various issues.” Id. at 13. As such, he

has failed to allege that they were similarly situated, and in turn, he has failed

to state an equal protection claim. See, e.g., Fuller v. Gates, 656 F. App’x 944,

945 (11th Cir. 2016) (finding that “district court did not err by dismissing [the

plaintiff’s] claims that the correctional officers violated his right to equal

protection by treating white prisoners more favorably when assigning jobs and

resolving disciplinary matters,” because the plaintiff’s factual allegations were

insufficient to state a claim). This claim is due to be dismissed.

d. Deliberate Indifference to Serious Medical Need

Plaintiff also appears to claim that Defendant Buchanan, the cart-pusher

supervisor, was deliberately indifferent to Plaintiff’s serious medical needs by

forcing Plaintiff to push a 600-pound cart after Plaintiff advised that he was in

pain. Doc. 1 at 17-18. According to Plaintiff, he has a variety of acute and

chronic physical injuries and the physical demands of being a cart pusher

aggravated these injuries. Plaintiff asserts that on May 18, 2018, Dr. J. Putney

wrote Plaintiff a “no push/no pull pass.” Id. at 17. He claims that despite having

the medical pass, a “dorm officer woke [him] up at 3:30 am on May 18th, 19th,

and 20th, 2018, and told [him] that [D]efendant M. Buchanan said that unless

you have your no push/no pull pass on you right now, you will push those carts.”

Id. at 17. Plaintiff claims that he then attempted to inform Defendant

Buchanan about his injury by showing Defendant Buchanan his “deformed

hand and [ ] told him that [he] was in pain in [his] right hand that is still in

recovery from a surgery.” According to Plaintiff, he requested that Defendant

Buchanan call medical to get a copy of his medical pass, so he would not have

to work as a cart pusher. Id. He claims that Defendant Buchanan failed to call

medical, which “was reckless and unreasonable and subjected [him] to an

unreasonable risk of further harm.” Id. Plaintiff states that he saw medical

again on May 24, 2018, and Nurse McClellan prescribed him Tylenol for his

pain. Id. at 18. Plaintiff was reassigned to a new job in V-Dorm on June 26,

2018. Id.

Plaintiff is a prisoner; thus, his claim of deliberate indifference to a

serious medical need arises under the Eighth Amendment. See Kuhne v. Fla.

Dep’t of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014) (citing Estelle v. Gamble,

429 U.S. 97 (1976)). “To show that a prison official acted with deliberate

indifference to serious medical needs, a plaintiff must satisfy both an objective

and a subjective inquiry.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.

2004) (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)). First, the

plaintiff must satisfy the objective component by showing that he had a serious

medical need. Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007).

“A serious medical need is considered ‘one that

has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay

person would easily recognize the necessity for a

doctor’s attention.’” Id. (citing Hill v. Dekalb Reg’l

Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)).

In either case, “the medical need must be one that, if

left unattended, pos[es] a substantial risk of serious

harm.” Id. (citation and internal quotations marks

omitted).

Brown, 387 F.3d at 1351. Next, the plaintiff must satisfy the subjective

component, which requires the plaintiff to “allege that the prison official, at a

minimum, acted with a state of mind that constituted deliberate indifference.”

Richardson, 598 F.3d at 737 (describing the three components of deliberate

indifference as “(1) subjective knowledge of a risk of serious harm; (2) disregard

of that risk; (3) by conduct that is more than mere negligence.”) (citing Farrow,

320 F.3d at 1245)).

In Estelle, the Supreme Court established that

“deliberate indifference” entails more than mere

negligence. Estelle, 429 U.S. at 106, Farmer, 511 U.S.

at 835. The Supreme Court clarified the “deliberate

indifference” standard in Farmer by holding that a

prison official cannot be found deliberately indifferent

under the Eighth Amendment “unless the official

knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts

from which the inference could be drawn that a

substantial risk of serious harm exists, and he must

also draw the inference.” Farmer, 511 U.S. at 837

(emphasis added). In interpreting Farmer and Estelle,

this Court explained in McElligott [v. Foley, 182 F.3d

1248 (11th Cir. 1999),] that “deliberate indifference has

three components: (1) subjective knowledge of a risk of

serious harm; (2) disregard of that risk; (3) by conduct

that is more than mere negligence.” McElligott, 182

F.3d at 1255; Taylor [v. Adams, 221 F.3d 1254, 1258

(11th Cir. 2000)] (stating that defendant must have

subjective awareness of an “objectively serious need”

and that his response must constitute “an objectively

insufficient response to that need”).

Farrow, 320 F.3d at 1245-46 (emphasis added).

Plaintiff has not sufficiently alleged that Defendant Buchanan had

subjective knowledge of Plaintiff’s hand injury and then disregarded an

excessive risk to his health by conduct that was more than mere negligence.

Plaintiff’s allegations demonstrate that he worked as a cart pusher for

approximately four months before he attempted to inform Defendant Buchanan

about his injured hand – from January 3, 2018, the date he was assigned as a

cart-pusher, see Doc. 1 at 6, to May 18, 2018, the date Plaintiff was allegedly

issued a no push/no pull pass, see id. at 17. Indeed, once he was issued his no

push/no pull pass Plaintiff admits he did not immediately attempt to tell

Defendant Buchanan, but instead mentioned the pass to a “dorm officer.” Id. at

17. He claims that he eventually attempted to notify Defendant Buchanan by

showing him his deformed hand and explaining that he was still recovering

from a prior surgery. Id. Plaintiff then mentioned the no push/no pull pass but

could not produce a copy for Defendant Buchanan’s review. Id. at 18. Instead,

Plaintiff asked Defendant Buchanan to contact medical himself. Further, when

Plaintiff returned to medical on May 24, 2018, he could have attempted to

obtain a copy of the medical pass for Defendant Buchanan’s review, but makes

no allegations that he attempted to do so. Such facts do not demonstrate that

Defendant Buchanan had subjective knowledge of a serious medical condition.

Nevertheless, even assuming Defendant Buchanan did have subjective

knowledge, Plaintiff has failed to demonstrate that he disregarded a serious

health risk to Plaintiff by conduct that was more than mere negligence. Notably,

Plaintiff explains that Defendant Buchanan later came by Plaintiff’s cell to

check on him, and Plaintiff again told him to contact medical to obtain a copy

of the pass. Id. at 18. In any event, Plaintiff was reassigned to a new job in V-

Dorm a month after he was issued the medical pass, and he makes no

allegations that this extra month subjected him to an increased risk of harm.

These facts do not demonstrate that his job assignment posed a serious risk to

his health. These claims are due to be dismissed.

e. Intentional Infliction of Emotional Distress

Plaintiff argues that Defendant Flesher’s fabricated disciplinary report

subjected him to intentional infliction of emotional distress. Id. at 10. He claims

that receiving the disciplinary report has made his life miserable, ruined his

chances at clemency, subjected him to harassment, and caused extreme anxiety.

Id. He also claims that Defendant Willforth and Defendant Doe’s harassing

comments of “[y]ou are the one who was found guilty for disrespecting Ms.

Flesher,” and “I recommend that he be transferred,” made in the presence of

Assistant Warden Knox subjected Plaintiff to intentional infliction of emotional

distress. Id. at 15, 21.

The Eleventh Circuit, when addressing a Florida state law claim of

intentional infliction of emotional distress, has delineated four factors:

Florida courts have explained that a claim for

intentional infliction of emotional distress has four

elements: (1) deliberate or reckless infliction of mental

suffering; (2) outrageous conduct by the defendant; (3)

the conduct caused the emotional distress; and (4) the

emotional distress was severe. See, e.g., Thomas v.

Hospital Bd. of Directors of Lee County, 41 So. 3d 246,

256 (Fla. 2d DCA 2010); Stewart v. Walker, 5 So. 3d

746, 749 (Fla. 4th DCA 2009). To demonstrate that the

defendant engaged in outrageous conduct, the plaintiff

must show that the defendant’s actions were “‘so

outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a

civilized community.’” Metropolitan Life Ins. Co. v.

McCarson, 467 So. 2d 277, 278-79 (Fla.1985) (quoting

Restatement (Second) of Torts § 46 (1965)).

Christman v. Walsh, 416 F. App’x 841, 845-46 (11th Cir. 2011).

Plaintiff’s allegations that Defendant Flesher issued a disciplinary report

days after the incident, and that Plaintiff was notified of the charges while in

his own cell, do not amount to the type of outrageous or atrocious conduct

contemplated under a claim of intentional infliction of emotional distress.

Likewise, Plaintiff’s claim that Defendant Willforth and Defendant Doe

allegedly harassed Plaintiff does not amount to the type of conduct charged

under a claim of intentional infliction of emotional distress. As such, Plaintiff

has failed to state a claim of intentional infliction of emotional distress.

e. Supervisory Liability

Plaintiff also appears to hold Defendant Jordan liable in his supervisory

capacity as the former warden of UCI for knowing that the FDOC’s employees

are issuing false disciplinary reports and implementing a “flawed disciplinary

process.” Doc. 1 at 8-9, 11. Plaintiff argues that the FDOC has a custom,

practice, and policy that correctional officers may charge inmates with

fabricated, “boiler-plate” disciplinary reports and then prevent the inmate from

calling witnesses or filing grievances to challenge the disciplinary report. Id. at

8-9. He asserts that this issue is a widespread practice, and Defendant Jordan

“knew or should have known about it because it’s such a repeated, re-occurring

complaint that he hears when he responds to inmate’s grievances.” Id. at 11.

However, according to Plaintiff, Defendant Jordan did nothing to correct the

issue. As relief for this violation, Plaintiff seeks a “permanent injunction

enjoining Defendant [ ] Jordan, and/or his successor in office, agents,

subordinates, employees, and all other persons in concert therewith, to stop the

customs, practices, and policies” of not giving Plaintiff and other inmates a real

opportunity to state their case at the disciplinary hearing. Id. at 23.

Plaintiff also attempts to hold Defendant Jordan liable in his supervisor

capacity as the former warden of UCI for “customs, practices, and policies of

violating [P]laintiff’s and other elderly inmates’ First Amendment Right to Free

Speech by not allowing them to reveal their medical problems to the ICT Team

before they are given their perspective [sic] job assignments.” Doc. 1 at 23.

According to Plaintiff, when an inmate goes before the ICT Team for a job

reassignment, it is common practice for the officers to give the following

instruction: “report to the door entrance and give your last name and DC#, and

say nothing else, don’t ask any questions, and don’t show any medical passes to

the team. Once you get your job assignment, leave and the next man goes in.”

Id. at 6. He claims that as a result of this unconstitutional policy of preventing

inmates from showing medical passes when receiving a job reassignment,

Plaintiff was forced to be a cart pusher, which worsened his medical condition.

Id. at 17.

“It is well established in this Circuit that supervisory officials are not

liable under § 1983 for the unconstitutional acts of their subordinates on the

basis of respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d

1352, 1360 (11th Cir. 2003) (internal quotation marks and citation omitted).

“The standard by which a supervisor is held liable in his individual capacity for

the actions of a subordinate is extremely rigorous.” Id. 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).

The necessary causal connection can be established

“when a history of widespread abuse puts the

responsible supervisor on notice of the need to correct

the alleged deprivation, and he fails to do so.”

Alternatively, the causal connection may be established

when a supervisor’s “custom or policy . . . result[s] in

deliberate indifference to constitutional rights” or when

facts support “an inference that the supervisor directed

the subordinates to act unlawfully or knew that the

subordinates would act unlawfully and failed to stop

them from doing so.”

Cottone, 326 F.3d at 1360 (internal citations omitted). See also Richardson v.

Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (affirming the district court’s

dismissal of the secretary of the DOC because the plaintiff failed to allege that

the secretary personally participated in an action that caused the plaintiff

injury or that the plaintiff’s “injuries were the result of an official policy that

[the secretary] established”); Harvey v. City of Stuart, 296 F. App’x 824, 826

(11th Cir. 2008) (affirming dismissal of a § 1983 action against a municipality

because the plaintiff “failed to identify any policy or custom that caused a

constitutional violation, and his vague and conclusory allegations were

insufficient to support the complaint”).

Here, the first alleged constitutional violation is that Plaintiff’s due

process rights were impeded when he was prohibited from calling witnesses or

speaking during the disciplinary hearing. Doc. 1 at 8-9. However, as discussed

above, Plaintiff’s due process rights were not implicated as a result of his

disciplinary proceedings. Further, Plaintiff does not allege that Defendant

Jordan personally participated in his disciplinary hearing or directed his

subordinates to act unlawfully. Moreover, simply responding to a grievance

does not, in and of itself, make an individual liable for an alleged constitutional

violation. See Jones v. Eckloff, No. 2:12-cv-375-FtM-29DNF, 2013 WL 6231181,

at *4 (M.D. Fla. Dec. 2, 2013) (unpublished) (“[F]iling a grievance with a

supervisory person does not automatically make the supervisor liable for the

allegedly unconstitutional conduct brought to light by the grievance, even when

the grievance is denied.” (collecting cases)); see also Gallagher v. Shelton, 587

F.3d 1063, 1069 (10th Cir. 2009) (“[D]enial of a grievance, by itself without any

connection to the violation of constitutional rights alleged by plaintiff, does not

establish personal participation under § 1983.” (citations omitted)).

While he claims that the FDOC and Defendant Jordan, as the former

warden of UCI, have a policy, practice, or custom of fabricating false, boiler-

plate disciplinary reports, he does not allege facts showing “a persistent and

wide-spread practice.” McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir.

2004). Notably, the incident that Plaintiff relies on is the isolated facts of his

January 2018 disciplinary proceedings. Although he alludes to another inmate,

Jon DePriest, experiencing the same unconstitutional custom, policy, or

practice, see id. at 8-9, he only claims that prison officials “planted a knife in

[DePriest’s] cell” in retaliation for him filing grievances, see id. He makes no

allegation that DePriest received a fabricated disciplinary report and that his

disciplinary proceedings ran afoul of the Due Process Clause. These assertions

do not demonstrate persistent and widespread practices. Thus, Plaintiff has

failed to allege facts demonstrating “the extremely rigorous standard for

supervisory liability.” West v. Tillman, 496 F.3d 1321, 1329 (11th Cir. 2007).

This claim against Defendant Jordan is due to be dismissed for failure to state

a claim.

As to Plaintiff’s claim that Defendant Jordan is liable for the harm caused

to Plaintiff by preventing him from disclosing medical ailments before

reassigning his job, Plaintiff again fails to allege that Defendant Jordan

personally participated in any alleged constitutional violation. See Mathews,

480 F.3d at 1270. Although he claims that UCI has a policy, custom, or practice

of prohibiting medical disclosure, Plaintiff attempts to demonstrate this

common practice by relying on the isolated facts of his January 3, 2018, job

reassignment. Doc. 1 at 6. These assertions do not demonstrate persistent and

widespread practices, and thus, Plaintiff has failed to allege facts

demonstrating supervisory liability. This claim is due to be dismissed.

It is, therefore

ORDERED AND ADJUDGED:

1. The Complaint is due to be dismissed. While the Court might

normally entertain an amended complaint, in this case any amendment to the

Complaint would be futile. Therefore, the Court DISMISSES the Complaint

with prejudice.

2. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 21st day of April,

2020

TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Wilbert R. Hurst, #U22029

35