Burns v. Fugate

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOHN SAMUEL BURNS,

Plaintiff,

v. Case No. 3:20-cv-419-J-39MCR

SGT. FUGATE, et al.,

Defendants.

_______________________________

ORDER

Plaintiff, John Samuel Burns, an inmate of the Florida penal

system, initiated this action by filing a pro se Civil Rights

Complaint pursuant to 42 U.S.C. § l983 (Doc. 1; Compl.) with an

exhibit (Doc. 1-1; Pl. Ex.). Plaintiff moves to proceed in forma

pauperis (IFP) (Doc. 2). He names as Defendants four corrections

officers at Union Correctional Institution, Sergeant Fugate,

Sergeant Sodek, Captain Korey, and Lieutenant Roberts, for alleged

sexual assault and retaliation. See Compl. at 2-4; Pl. Ex. at 1.

Plaintiff asserts violations of the First, Eighth, and Fourteenth

Amendments; articles three and five of the Declaration of Human

Rights; the Prison Rape Elimination Act (PREA); and the Gender

Motivated Violence Act (GMVA). Compl. at 3. As relief, he seeks

monetary damages and for Defendants to be fired or reprimanded.

Id. at 5.

Upon review of the Complaint, the Court opines that Plaintiff

has failed to set forth his claims sufficiently. Many of

Plaintiff’s purported claims are not cognizable in a civil rights

action. A viable claim under § 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. Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).

First, the Supreme Court has held that the GMVA is

unconstitutional insofar as it extended to victims of gender

motivated violence a right to civil relief against the offending

individual. See United States v. Morrison, 529 U.S. 598, 627 (2000)

(Congress’ effort [under the GMVA] to provide a federal civil

remedy can be sustained neither under the Commerce Clause nor under

§ 5 of the Fourteenth Amendment.”). Second, the PREA does not

create a private right of action for civil damages. See, e.g.,

Jacoby v. PREA Coordinator, No. 517CV00053MHHTMP, 2017 WL 2962858,

at *7 (N.D. Ala. Apr. 4, 2017), report and recommendation adopted,

No. 517CV00053MHHTMP, 2017 WL 2957825 (N.D. Ala. July 11, 2017)

(“[The] PREA does not confer a private right of action on

individuals.”). Finally, the Eleventh Circuit has held that the

rights conferred under the Declaration of Human Rights “are not

federal rights.” Moore v. McLaughlin, 569 F. App’x 656, 660 (11th

Cir. 2014). In the absence of a federal constitutional deprivation

or violation of a federal right, a plaintiff cannot sustain a cause

of action under § 1983.

Plaintiff also alleges violations of the First, Eighth, and

Fourteenth Amendments. However, those claims are not sufficiently

pled under the federal pleading standards and applicable

precedent. 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. Though detailed factual allegations are

not required, Rule 8(a) demands “more than an unadorned, the-

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

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

action’s elements, supported by mere conclusory statements.” Id.

As to the purported First Amendment claim, Plaintiff alleges

Defendants retaliated against him, though he does not explain how.

See Pl. Ex. at 3. To state an actionable claim for retaliation, a

plaintiff must allege:

(1) his 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.

O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (first

alteration in original). Plaintiff alleges he wrote grievances and

attempted to initiate legal proceedings, both of which constitute

protected speech. Plaintiff also alleges he suffered adverse

action: he was placed on property restriction, threatened, and

harassed. See Pl. Ex. at 2, 3. However, Plaintiff does not connect

the purported acts of retaliation to the named Defendants or to

his protected speech. In other words, he fails to demonstrate a

causal connection between the alleged retaliatory conduct and his

protected speech. Plaintiff’s allegations are merely conclusory,

amounting to an “unadorned, the-defendant-unlawfully-harmed-me

accusation.” See Iqbal, 556 U.S. at 678.

Plaintiff’s allegation that Defendants Sodek and Fugate

“rubb[ed] and pinch[ed] [his] buttocks” implicates the Eighth

Amendment. See Pl. Ex. at 1. The Eleventh Circuit has recognized

that “severe or repetitive sexual abuse of a prisoner by a prison

official can violate the Eighth Amendment.” Sconiers v. Lockhart,

946 F.3d 1256, 1267 (11th Cir. 2020) (quoting Boxer X v. Harris,

437 F.3d 1107, 1111 (11th Cir. 2006)). Plaintiff does not allege

Defendants severely or repetitively sexually abused him. While the

alleged conduct certainly is inappropriate and crude, Plaintiff is

advised it may not give rise to an Eighth Amendment violation.

Finally, as to the purported Fourteenth Amendment violation,

Plaintiff fails to allege facts to support such a claim. To the

extent Plaintiff premises his claim on the handling of his

grievances, he should know that “a prison grievance procedure does

not provide an inmate with a constitutionally protected interest.”

Bingham, 654 F.3d at 1177. To the extent Plaintiff’s claim is

premised on his placement on property restriction, his claim fails.

See Woodson v. Whitehead, 673 F. App’x 931, 933 (11th Cir. 2016)

(“The Due Process Clause does not create an enforceable liberty

interest in freedom from restrictive confinement while a prisoner

is incarcerated.”). Plaintiff asserts no facts indicating he was

subjected to conditions so severe that they imposed upon him a

significant hardship in comparison to the ordinary incidents of

prison life.

To the extent Plaintiff premises a Fourteenth Amendment

violation on the alleged sexual assault, he is advised that the

Eighth Amendment “serves as the primary source of substantive

protection” for such conduct. See Whitley v. Albers, 475 U.S. 312,

327 (1986). When a constitutional amendment “provides an explicit

textual source of constitutional protection,” that amendment

guides the analysis, “not the more generalized notion of

‘substantive due process.’” Graham v. Connor, 490 U.S. 386, 395

(1989).

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 assert only claims that are

cognizable under § 1983, and he must allege how each Defendant is

responsible for the alleged violations. 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 name of each

defendant (to the extent Plaintiff can) 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,” Plaintiff must

describe how each defendant is responsible for the

alleged violation(s). Legal conclusions are

insufficient. 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.1

7. In section V, “Injuries,” there must be a statement

concerning how each defendant’s action or omission

injured Plaintiff.

8. In section VI, “Relief,” there must be a statement of

what Plaintiff seeks through this action.2 Plaintiff is

advised that courts generally will not interfere in

matters of prison administration, including employment

matters.

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)

the complaint otherwise complies with the

requirements of Rule 11.

1 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.

2 Plaintiff is advised that “[t]he [Prison Litigation Reform Act

(PLRA)] places substantial restrictions on the judicial relief

that prisoners can seek . . . .” Brooks v. Warden, 800 F.3d 1295,

1307 (11th Cir. 2015) (quoting Al-Amin v. Smith, 637 F.3d 1192,

1195 (11th Cir. 2011)).

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 June 5, 2020, Plaintiff must mail an amended complaint to the

Court for filing, with one copy of the amended complaint (including

exhibits)? for each named defendant. The amended complaint should

comply with the instructions on the form and those provided in

this order. Failure to comply may result in the dismissal of this

case. The Court will address Plaintiff’s motion to proceed IFP

(Doc. 2) in a separate order.

DONE AND ORDERED at Jacksonville, Florida, this 6th day of

May 2020.

□

UNITED STATES MAGISTRATE JUDGE

Jax-6

Cc:

John Burns

3 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.