# Burns v. Fugate

> District Court, M.D. Florida · May 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10105123

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105123. Public record. Not legal advice.