Davis v. Hall

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JOSHUA A. DAVIS,

Plaintiff,

v. Case No: 2:21-cv-693-JES-NPM

D. HALL, DEREK SNIDER, JACOB

DAWSON, LARS SEVERSON, GRAIG

BROCK, ALBERT SCARPATI,

JEFFREY ROBINSON, MOSES

LAMAR FROST, SHANNON

MILLIKEN, JORGE CHAVARRIA,

TINA ROBERTS, CHRISTOPHER

WELSH, JOSEPH BOONE, CHARLES

JEAN-PIERRE, ZACHARY DITORO,

and MEGAN SPRY-TORRES,

Defendants.

OPINION AND ORDER

Before the Court are Defendants’ Motion to Dismiss

Plaintiff’s Complaint (Doc. #24) and Plaintiff’s Motion for Leave

to Amend and Motion for Extension of Time to Amend (Doc. #26).

Both motions are contested. Plaintiff Joshua Davis is a prisoner

of the Florida Department of Corrections (FDOC). He sues

Defendants under 42 U.S.C. § 1983. All but two unserved Defendants

move to dismiss this action under Federal Rule of Civil Procedure

12(b)(6).1

1 Although Hall and Welsh have not appeared, the Court may

dismiss sua sponte any claims against them that fail to state a

claim. See 28 U.S.C. § 1915A.

I. Background

The Court recounts the facts as pled in Davis’s Amended

Complaint (Doc. #14), which it must take as true when considering

the Motion to Dismiss. See Chandler v. Sec’y Fla. Dep’t of

Transp., 695 F.3d 1194, 1198-99 (11th Cir. 2012). Because Davis

filed his Amended Complaint pro se, the Court construes it

liberally and holds it “to less stringent standards than formal

pleadings drafted by lawyers[.]” See Erickson v. Pardus, 553 U.S.

89, 94 (2007).

Davis claims he was the victim of a series of retaliatory

acts by Defendants. It started with a dispute over how many books

Davis could have in his possession. FDOC policy allows an inmate

to have four personal books, with religious and legal books

exempted from the limit. Davis normally received four books a

week. But for three weeks, Defendant Hall—supervisor of the

property room—did not deliver Davis’s books, and they piled up.

Hall then confiscated seven books because they exceeded the limit.

On July 28, 2020, Hall filed two grievances against the

property room. The grievances were approved, and two of Hall’s

legal books were returned. On August 5, 2020, Hall, Spry-Torres,

Scarpati, Ditoro, two supervisory officers, and five other members

of the staff conducted a search of Davis’s cell. They took Davis’s

property into the dayroom to inventory it. Normally, only two

officers perform random cell searches, and the inmates’ property

remains in the cell. When another inmate asked Hall whey she was

messing with Davis, she said, “He wrote me up,” followed by, “I

don’t get mad. I get even.”

Hall, Spry-Torres, and Davis signed an inventory of the items

found in the search. The inventory did not include a vitamin

bottle. But Hall wrote in a disciplinary report that she found a

vitamin bottle during the search, and that the contents tested

positive for MDMA. Jean-Pierre was assigned to investigate the

disciplinary report. On August 25, 2020, Davis submitted a

grievance stating the search and disciplinary report were

retaliation for the grievances Davis made against Hall. Brock and

Dawson rejected it for lack of evidence.

On August 27, 2020, Roberts and Chavarria conducted a hearing

on the disciplinary report. Boone claimed he tested the pills and

found them positive for MDMA. Davis was found guilty and was

sentenced to 60 days of disciplinary confinement. He appealed the

decision in a formal grievance. Roberts reviewed the grievance,

and Dawson and Snider denied it. Davis then appealed to the FDOC

Secretary. Milliken returned the appeal without action on the

Secretary’s behalf. Davis submitted more grievances, but they

were ultimately denied.

On September 24, 2020, after receiving an email from Davis’s

friend Tina Piel, Welsh sent the pills to the Florida Department

of Law Enforcement (FDLE) for testing. The results came back in

December 2020. The FDLE found no MDMA in the pills.

On December 22, 2020, Piel sent an email to Snider, Scarpati,

Welsh, and the FDOC Regional Director’s office about the FDLE lab

results and Piel’s advocacy for an investigation of Davis’s

complaints. The next day, Davis was moved to a cell with a damaged

heater and non-functional toilet. Around 3:00 a.m. on December

24, 2020, Defendants Frost and Ditoro and non-parties Torres,

Tuzik, Speight, and Miller conducted a search of Davis’s cell.

The search included use of a metal detection wand, two strip

searches, and a pat-down while Davis was unclothed. Ditoro took

Davis’s watch. About 20 minutes after the second strip search,

Frost claimed he saw a cell phone fall from Davis’s boxers.

Frost wrote a disciplinary report and imposed property

restrictions on Davis for four days. From December 24-28, 2020,

Davis was left without a mattress, bedding, clothing, shoes, and

hygiene items in 40-degree weather. Jean-Pierre investigated the

disciplinary report, and Davis was found guilty on January 13,

2021. Davis submitted several grievances against Frost and Hall

in January 2021. On January 27, 2021, Frost withheld breakfast

from Davis.

II. Legal Standard

When considering a motion to dismiss under Rule 12(b)(6),

courts must accept all factual allegations in the complaint as

true and view them in a light most favorable to the plaintiff. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The preferential

standard of review, however, does not let all pleadings adorned

with facts survive to the next stage of litigation. The Supreme

Court has been clear on this point—a district court should dismiss

a claim when a party does not plead facts that make the claim

facially plausible. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). A claim is facially plausible when a court can draw

a reasonable inference, based on facts pled, that the opposing

party is liable for the alleged misconduct. See Iqbal, 556 U.S.

at 678. This plausibility standard requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (citing

Twombly, 550 U.S. at 557 (internal quotation marks omitted)). And

a plaintiff must allege more than labels and conclusions amounting

to a formulaic recitation of the elements of a cause of action.

Twombly, 550 U.S. at 555.

Davis files his Amended Complaint under 42 U.S.C. § 1983. To

state a § 1983 claim, a plaintiff must allege that (1) the

defendant deprived him of a right secured under the Constitution

or federal law, and (2) the deprivation occurred under color of

state law. Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.

2011) (citing Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th

Cir. 1998)). In addition, a plaintiff must allege and establish an

affirmative causal connection between the defendant’s conduct and

the constitutional deprivation. Marsh v. Butler Cnty., Ala., 268

F.3d 1014, 1059 (11th Cir. 2001).

III. Analysis

Davis asserts six theories of liability: retaliation, failure

to protect, cruel and unusual punishment, conspiracy, denial of

access to the courts, and denial of substantive due process.

Defendants argue the claims relating to disciplinary

proceedings are Heck-barred. In Heck v. Humphrey, the Supreme

Court held that a § 1983 plaintiff seeking to “recover damages for

allegedly unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would render a

conviction or sentence invalid” must prove the conviction or

sentence was reversed or invalidated. 512 U.S. 477, 487 (1994).

The Court explained:

A claim for damages bearing that relationship to a

conviction or sentence that has not been so invalidated

is not cognizable under § 1983. Thus, when a state

prisoner seeks damages in a § 1983 suit, the district

court must consider whether a judgment in favor of the

plaintiff would necessarily imply the invalidity of his

conviction or sentence; if it would, the complaint must

be dismissed unless the plaintiff can demonstrate that

the conviction or sentence has already been invalidated.

But if the district court determines that the

plaintiff’s action, even if successful, will not

demonstrate the invalidity of any outstanding criminal

judgment against the plaintiff, the action should be

allowed to proceed, in the absence of some other bar to

the suit.

Id.

Davis does not explicitly or implicitly challenge the

validity of his conviction or sentence. Defendants raise Heck

against Davis’s claims that implicitly challenge the validity of

prison disciplinary hearings. Heck “is not categorically

applicable to all suits challenging prison disciplinary actions.”

Pittman v. Tucker, 213 F. App’x 867, 869 (11th Cir. 2007). When

a disciplinary action affects a prisoner’s sentence—e.g., when

good-time credits are at stake—Heck applies. But that is not the

case here.

Davis is serving a life sentence, and there is no indication

this action will have any impact on the sentence he serves. The

Eleventh Circuit’s analysis in Pittman is directly on point:

Pittman’s complaint does not seek to challenge the

validity of his underlying conviction, and it does not

seek to affect the time he would serve related to his

conviction. Although Pittman does claim officers

retaliated against him by filing a false disciplinary

report and placing him in confined management, there is

no indication that these disciplinary actions affected

his sentence. Moreover, the defendants do not assert

that the disciplinary actions affected the length of

Pittman’s sentence. Accordingly, we hold that Pittman’s

claims are not Heck-barred because there is no

indication that a judgment in his favor would

necessarily imply the invalidity of his conviction or

his sentence.

Id. None of Davis’s claims are Heck-barred.

Defendants raise Eleventh Amendment and qualified immunity.

Eleventh Amendment immunity protects the State of Florida from

suit. It does not apply here because Davis sues Defendants in

their individual—rather than official—capacities. See Melton v.

Abston, 841 F.3d 1207, 1234 (11th Cir. 2016) (“State officials,

sued in their individual capacities, are ‘persons’ within the

meaning of § 1983. The Eleventh Amendment does not bar such suits,

nor are state officers absolutely immune from personal liability

under § 1983 solely by virtue of the ‘official’ nature of their

acts.”); see also Hafer v. Melo, 502 U.S. 21, 31 (1991).

Qualified immunity applies to individual capacity claims. It

protects “all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Courts apply a two-step analysis with a shifting burden. A

government official asserting the defense must first establish

that he was acting within his discretionary authority at the time

of the challenged conduct.” Khoury v. Miami-Dade Cnty. Sch. Bd.,

4 F.4th 1118, 1125 (11th Cir. 2021).

If a defendant makes the initial showing, the burden shifts

to the plaintiff to show that (1) the defendant violated a

constitutional right and (2) “the right was clearly established at

the time of the incident.” Id. at 1126 (quoting Mercado v. City

of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005)). A right is

clearly established if “the state of the law on the date of the

alleged misconduct placed defendants on ‘fair warning that their

alleged treatment of [the plaintiff] was unconstitutional.’”

Hardigree v. Lofton, 992 F.3d 1216, 1224 (11th Cir. 2021) (quoting

Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

Davis argues Defendants failed to meet their burden because

violating his constitutional rights is outside their discretionary

authority. But Davis conflates the first and second parts of the

qualified immunity analysis. “A government official acts within

his discretionary authority if his actions were (1) undertaken

pursuant to the performance of his duties and (2) within the scope

of his authority.” Mikko v. City of Atlanta, Ga., 857 F.3d 1136,

1144 (11th Cir. 2017). Courts “look to the general nature of the

defendant’s action, temporarily putting aside the fact that it may

have been committed for an unconstitutional purpose, in an

unconstitutional manner, to an unconstitutional extent, or under

constitutionally inappropriate circumstances.” Id. (quoting

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th

Cir. 2004)). “In other words, ‘a court must ask whether the act

complained of, if done for a proper purpose, would be within, or

reasonably related to, the outer perimeter of an official’s

discretionary duties.’” Id. (quoting Herbert Int’l, Inc. v.

James, 157 F.3d 1271, 1282 (11th Cir. 1998)).

Applying these principles, Defendants were clearly acting

within the discretionary authority of their respective positions

with the FDOC. So for each claim, Davis bears the burden of

establishing not just a constitutional violation, but one that was

clearly established at the time. “A right is clearly established

when it is ‘sufficiently clear that every reasonable official would

have understood that what he is doing violates that right.’”

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (quoting

Mullenix v. Luna, 577 U.S. 7, 11 (2015)). Davis need not present

a case directly on point, but “existing precedent must have placed

the statutory or constitutional question beyond debate.” Id. at

8 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). “This

inquiry ‘must be undertaken in light of the specific context of

the case, not as a broad general proposition.’” Id. (quoting

Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

a. Retaliation

“[T]he First Amendment prohibits officials from retaliating

against prisoners for exercising their right of free speech by

filing lawsuits or grievances.” Mpaka v. Jackson Memorial

Hospital, 827 F. App’x 1007, 1010 (11th Cir. 2020). To succeed

on a retaliation claim, a prisoner must prove three elements:

“(1) his speech was constitutionally protected; (2) he 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.” Id.

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

“To establish causation, the plaintiff must show that the defendant

was ‘subjectively motivated to discipline’ the plaintiff for

exercising his First Amendment rights.” Moton v. Cowart, 631 F.3d

1337, 1341 (11th Cir. 2011) (quoting Smith v. Mosley, 532 F.3d

1270, 1278 (11th Cir. 2008)).

Davis alleges eight instances of retaliation. First, Davis

accuses Hall, Spry-Torres, and Scarpati of searching Davis’s cell

and planting the vitamin bottle in retaliation for the two

grievances Davis filed against Hall on July 28, 2020. But the

alleged facts do not support the claim against Spry-Torres and

Scarpati. Davis alleges Spry-Torres and Scarpati participated in

the search and inventoried Davis’s property. A cell search would

not likely deter a person of ordinary firmness from engaging in

free speech. Planting contraband is a different matter, but Davis

alleges that Hall reported the vitamin bottle—not Spry-Torres or

Scarpati. And while Davis has adequately alleged that Hall had a

retaliatory motive—Davis had filed two grievances against her, and

she said “I don’t get mad. I get even.”—he has not pled any facts

showing that Spry-Torres and Scarpati participated in the search

to retaliate against Davis for free-speech activity.2

2 In his Response, Davis makes new allegations against Spry-

Torres, Scarpati, and other Defendants to establish a retaliatory

motive. But a 12(b)(6) motion to dismiss is a test of the

sufficiency of a complaint. Courts do not consider new factual

allegations raised in a response brief.

Second, Davis claims Boone falsified drug test results to

support Hall’s disciplinary report. But Davis alleges no facts

suggesting Boone was subjectively motivated to punish Davis for

writing grievances.

Third, Davis seeks to hold Scarpati liable for overseeing

Hall, Spry-Torres, and the other officers present for the search.

It is well settled in the Eleventh Circuit that supervisory

officials are not liable under § 1983 for the acts of their

subordinates. Keith v. DeKalb Cnty, Ga., 749 F.3d 1034, 1047

(11th Cir. 2014). “Plaintiffs must instead allege that the

supervisor, through his own actions, violated the Constitution.”

Ingram v. Kubik, 30 F.4th 1241, 1254 (11th Cir. 2022). Scarpati’s

supervisory responsibilities cannot be the bases of a § 1983 claim,

and the Court already determined that Davis failed to plausibly

allege that Scarpati’s own actions demonstrated a retaliatory

motive.

Fourth, Davis claims Roberts and Chavarria continued the

retaliation by finding Davis guilty in the disciplinary hearing.

Davis asks the Court to infer a retaliatory motive because they

found him guilty “in the face of contradictory evidence.” (Doc.

#14 at 20). But the fact that Roberts and Chavarria believed

Hall’s story over Davis’s is not enough to plausibly assert a

retaliatory motive.

Fifth, Davis claims an email from Tina Piel prompted Frost

and Ditoro to search Davis’s cell and body, plant contraband, and

write a disciplinary report. Ditoro confiscated Davis’s watch

during the search. Frost then imposed property restriction on

Davis, leaving him to sleep on bare steel in 40-degree weather

wearing only boxer shorts. Davis has not plausibly alleged Frost

and Ditoro were subjectively motivated to punish Davis for his

speech. The communication that allegedly prompted the search was

an email from Piel to five FDOC officials. Davis does not connect

the search with his own First Amendment activity.

Sixth, Davis claims Frost deprived him of breakfast one

morning in retaliation for three grievances Davis filed against

Frost two weeks prior. Frost argues Davis “fails to provide any

details of a retaliatory motive.” (Doc. #24 at 13). Davis relies

on “temporal proximity” to establish motive. (Doc. #27 at 7).

While a chronology of events can create a plausible inference of

causation, see Hempstead v. Carter, No. 5:06-cv-68-MCR-EMT, 2006

WL 2092383, at *6 (N.D. Fla. July 26, 2006), the facts do not

support such an inference here.

Seventh, Davis seeks to hold Snider, Dawson, Severson,

Robinson, and Brock liable for denying grievances for retaliation.

He claims they were “indirect participants in the retaliation

because they refused to intervene.” (Doc. #14 at 22). But he

does not allege any facts from which the Court could infer a

retaliatory motive.

Eighth, Davis seeks to hold Jean-Pierre liable for his

investigation of a disciplinary report because Jean-Pierre did not

call the witnesses or obtain the evidence Davis identified. But

again, Davis alleges no facts supporting an inference of a

retaliatory motive.

Davis’s retaliation claim against Hall survives. The Court

will dismiss the retaliation claims against the other Defendants.

b. Failure to protect

Davis accuses eight Defendants of violating his Eighth

Amendment rights by failing to protect him from retaliation. He

claims Snider, Severson, Dawson, Robinson, Scarpati, Brock,

Milliken, and Welsh had a duty to protect Davis from retaliation

but failed to adequately investigate Davis’s allegations, thereby

enabling future retaliation. In addition, Davis accuses Welsh of

refusing to act after FDLE lab results proved the confiscated (or

planted) pills were not MDMA.

This theory does not withstand scrutiny. The allegations

underlying these claims do not fit within the framework of the

Eight Amendment. “The Eighth Amendment imposes a duty on prison

officials to take reasonable measures to guarantee the safety of

the inmates.” Caldwell v. Warden, FCI Talladega, 748 F.3d 1090,

1099 (11th Cir. 2014) (quoting Farmer v. Brennan, 511 U.S. 825,

832 (1994)) (cleaned up). To establish an Eighth Amendment

failure-to-protect claim, a plaintiff must show: “(1) a

substantial risk of serious harm; (2) the defendants’ deliberate

indifference to that risk; and (3) a causal connection between the

defendants’ conduct and the Eighth Amendment violation.” Brooks

v. Warden, 800 F.3d 1295, 1301 (11th Cir. 2015). The first

element—a substantial risk of serious harm—requires a “strong

likelihood of injury.” Id. But the crux of Davis’s claim is a

risk of continued retaliation, not a risk of physical injury.

It appears Davis seeks to hold the identified Defendants

indirectly liable for retaliation they could have, but did not,

stop. It is analogous to supervisory liability. A supervisor may

be held liable under § 1983 only if the plaintiff shows that the

supervisor “either directly participated in the unconstitutional

conduct or that a causal connection exists between the supervisor’s

actions and the alleged constitutional violation.” Keith v.

DeKalb Cnty., 749 F.3d 1034, 1047-48 (11th Cir. 2014). “There can

be no supervisory liability…if there was not underlying

constitutional violation.” Gish v. Thomas, 516 F.3d 952, 955

(11th Cir. 2008).

Davis fails to establish a causal connection. The only

retaliation claim that survived the Court’s analysis in the above

section is against Hall, who allegedly planted contraband pills

during a search of Davis’s cell and wrote a false disciplinary

report. It is the first retaliatory incident alleged in the

Amended Complaint. Defendants’ failure to properly investigate

Hall’s actions did not cause subsequent retaliation because there

was no subsequent retaliation. Davis’s claims under this theory

will be dismissed.

c. Cruel and unusual punishment

Davis argues Frost violated the Eighth Amendment in three

ways. First, Frost imposed property restrictions on Davis for

five days, which left Davis in his 40-degree cell with no working

heater and without a mattress, bedding, clothing (expect for

boxers), footwear, hygiene items, or other personal property.

Second, Frost withheld breakfast from Davis one morning. And

third, Frost touched Davis’s genitals during a pat-down after

officers used a metal detection wand twice and conducted two strip

searches of Davis.

The Eighth Amendment requires prison officials to “provide

humane conditions of confinement; prison officials must ensure

that inmates receive adequate food, clothing, shelter, and medical

care[.]” Farmer v. Brennan, 511 U.S. 825, 832 (1994). But not

every deprivation violates the Constitution. The Supreme Court

has “held that a prison official violates the Eighth Amendment

only when two requirements are met.” Id. at 834. “First, the

deprivation alleged must be, objectively, sufficiently serious; a

prison official’s act or omission must result in the denial of the

minimal civilized measure of life’s necessities.” Id. (internal

quotation marks and citations omitted). Second, “a prison

official must have a sufficiently culpable state of mind[,]” that

is, “one of deliberate indifference to inmate health or safety[.]”

Id. (internal quotation marks and citation omitted).

Eleventh Circuit precedent on the Eighth Amendment and prison

cell conditions has shifted over time. In Chandler v. Baird, the

Eleventh Circuit held, “plaintiff is entitled to have the trier of

fact determine whether the conditions of his administrative

confinement, principally with regard to the cell temperature and

the provision of hygiene items, violated the minimal standards

required by the Eighth Amendment.” 926 F.2d 1057, 1065 (11th Cir.

1991) (Chandler I). The court went on to explain “that the right

of a prisoner not to be confined in a cell at so low a temperature

as to cause severe discomfort and in conditions lacking basic

sanitation was well established in 1986.” Id. at 1065-66.

But after Chandler I, the Supreme Court refined the Eighth

Amendment framework, and the Eleventh Circuit recognized that

“’severe discomfort’ is insufficient to establish the objective

component of an Eighth Amendment conditions of confinement claim.”

Chandler v. Crosby, 379 F.3d 1278, 1295 (11th Cir. 2004) (Chandler

II). The Eleventh Circuit addressed uncomfortably cold prison

conditions again in Bennett v. Chitwood:

Bennett has failed to demonstrate an objective

substantial risk of serious harm. While we accept that

Bennett felt uncomfortably cold, he was required to

remain nude for a one-time period of approximately 10.5

hours and did not go without clothing or bed linens

overnight. And nothing in the record shows Bennett

reported medical problems as a result of the jail

conditions he alleges. This case is not one in which

ice formed inside the cell. Given the limited duration

of Bennett’s exposure to cool temperatures and the

modest severity of those temperatures (even accepting

Bennett’s “estimate” that the temperature was “in the

50’s”), the conditions were no so extreme to reach the

level of an Eighth Amendment violation.

519 F. App’x 569, 574 (11th Cir. 2013).

It is not clear whether the property restrictions Frost

imposed violated Davis’s Eighth Amendment rights. Davis alleges

conditions worse than those in Chandler I, which the Eleventh

Circuit found serious enough to survive summary judgment. Davis

alleges he was left in colder temperatures for longer and with

fewer comfort items. But the Eleventh Circuit receded from

Chandler I in Chandler II after the Supreme Court refined Eighth

Amendment analysis. Discomfort, even severe discomfort, is not

enough. See Bennett, supra. Thus, even if Frost violated the

Eighth Amendment, Davis has not satisfied his burden under the

qualified immunity analysis. The property restrictions Frost

imposed did not violate a clearly established constitutional

right.

Davis next claims Frost violated the Eighth Amendment by

withholding breakfast one morning. Davis acknowledges that “being

deprived of one mean [sic] is minimal punishment,” but argues it

was unconstitutional because of Frost’s retaliatory motive. (Doc.

#14 at 26-27). Davis has not alleged that missing a meal “posed

an unreasonable risk of serious damage to his future health or

safety[.]” However v. Belleis, 703 F. App’x 908, 911 (11th Cir.

2017). Although it is obviously inappropriate to withhold food

from prisoners, Davis’s allegations here do not establish an Eighth

Amendment violation. See id. (finding no plausible Eighth

Amendment claim because “However did not assert that missing one

meal worsened his health”).

Davis’s third and final Eighth Amendment claim stems from

Frost’s search of Davis. Specifically, Davis alleges:

Plaintiff was: 1) wanded with a metal detector while

forced to bend at the waist; 2) strip searched by Sgt.

Tuzik and CO L. Miller; 3) wanded again by a metal

detector wearing only boxers; 4) then Defendant FROST

performed an unauthorized unclothed pat search; and 5)

the Plaintiff was strip searched a second time.

(Doc. #14 at 13). Davis claims Frost sexually assaulted him by

touching his genitals during the pat search “for the purpose of

humiliation and harassment.” (Id. at 27). He

“In a case brought by a prisoner alleging sexual assault by

a prison official, that sexual assault necessarily violates the

Eighth Amendment.” DeJesus v. Lewis, 14 F.4th 1182, 1196 (11th

Cir. 2021). But “not every invasive touching by a prison official

amounts to an Eighth Amendment violation.” Id. at 1199. ”There

are times when prison officials have a legitimate penological

purpose to touch a prisoner in what may be an invasive manner,”

and deference is owed to prison officials. Id. at 1197. With

these principles in mind, the Eleventh Circuit adopted a definition

of “sexual assault” in the prison context:

We hold that the “sexual assault” of a prisoner by a

prison official in violation of the Eighth Amendment

occurs when the prison official, acting under color of

law and without legitimate penological justification,

engages in a sexual act with the prisoner, and that act

was for the official’s own sexual gratification, or for

the purpose of humiliating, degrading, or demeaning the

prisoner. See 18 U.S.C. § 2246(2). At a minimum, those

sexual acts include intentional sexualized touching

underneath clothing, such as fondling or penetration;

coerced sexual activity; combinations of ongoing

harassment and abuse; and exchanges of sexual activity

for special treatment or to avoid discipline.

Id.

Davis’s allegation—that Frost touched his genitals during a

pat search after less invasive methods revealed no contraband—is

not included in the listed categories of sexual assault. Whether

such allegations amount to sexual assault must be determined on a

case-by-case basis. Id. Relevant inquiries include: “whether

the allege conduct is of a sexual nature; whether the alleged

sexual assault did in fact occur; and whether the prison official

intended to sexually gratify himself or acted for the purpose of

humiliating, degrading, or demeaning the prisoner.” Id. at 1197.

The analysis of this claim parallels the analysis of Davis’s

property-restriction claim. Whether the Amended Complaint states

a plausible Eighth Amendment claim related to the pat search is a

close call. On one hand, Davis does not allege the touch was

sexual in nature, and courts owe prison officials deference when

preforming important safety functions like searching inmates. On

the other hand, Davis alleges the touch served no purpose but

humiliation because Davis had already been searched by less

invasive means.

But as with the property-restriction claim, Davis’s search

claim falls to qualified immunity because Davis does not show that

Frost violated a clearly established right. Davis does not

present any case law putting Frost on notice that touching an

inmate’s genitals during an unclothed pat search violates the

Eighth Amendment if the inmate has already been searched by less

invasive means. And the Court has found no such precedent. Frost

is thus entitled to qualified immunity for his search of Davis.

d. Conspiracy

Davis accuses twelve Defendants of conspiring to cover up

unlawful retaliation by Hall, Spry-Torres, and Frost. Davis

broadly claims that Hall, Spry-Torres, Snider, Dawson, Severson,

Scarpati, Robinson, Brock, Welsh, and Milliken “agreed to cover up

evidence of retaliation and systematically misused the grievance

procedure to deny Plaintiff all resolutions of Plaintiff’s

complaints of retaliation.” (Doc. #14 at 26-27). Davis makes

more specific allegations against some Defendants: (1) Jean-Pierre

failed to investigate or identify witnesses when reviewing a

disciplinary report; (2) Robinson ordered Hall to respond to the

grievance of reprisal Davis filed against her, which Davis

considers a violation of Fla. Admin. Code 33-103.015(6); and (3)

Roberts and Chavarria ignored Davis’s evidence at the hearing on

Hall’s disciplinary report.

“A plaintiff may state a § 1983 claim for conspiracy to

violate constitutional rights by showing a conspiracy existed that

resulted in the actual denial of some underlying constitutional

right.” Worthy v. City of Phenix City, Ala., 930 F.3d 1206, 1124

(11th Cir. 2019) (quoting Grider v. City of Auburn, Ala., 618 F.3d

1240, 1260 (11th Cir. 2010)). To state such a claim, a plaintiff

must allege “that the defendants reached an understanding to

violate the plaintiff’s constitutional rights and that an

actionable wrong occurred.” Id. (cleaned up).

Defendants challenge Davis’s conspiracy claim for two

reasons. First, they argue Davis failed to allege an actionable

wrong that violated his federal rights. But Defendants have not

contested Davis’s retaliation claim against Hall, so that

allegation can serve as the actionable wrong underlying a

conspiracy claim.

Second, Defendants argue Davis failed to properly allege the

existence of an agreement. Indeed, there can be no agreement for

conspiracy purposes amongst all but one Defendant (Welsh) because

they are employed by the FDOC. “Under the intracorporate

conspiracy doctrine, a corporation’s employees cannot conspire

among themselves when acting in the scope of their employment, as

their actions are attributed to the corporation itself, ‘thereby

negating the multiplicity of actors necessary for the formation of

a conspiracy.’” Detris v. Coats, 523 F. App’x 612, 615 (11th Cir.

2013) (quoting Grider, 618 F.3d at 1261)). It does not matter

that Davis sues Defendants in their individual capacities. The

doctrine “prohibits a § 1983 claim against law enforcement officers

in their individual capacities, as well as claims that do not seek

to hold the corporate entity itself responsible for its agents’

actions.” Id. (internal citations omitted).

The only part of the conspiracy claim that survives the

intraconspiracy doctrine is the allegation against Welsh, who

works (or worked) for the Office of the Inspector General. But

Davis does not allege any facts suggesting that Welsh had an

understanding with any other Defendant to violate Davis’s federal

rights. The conclusory allegation that Welsh and nine others

agreed to cover up evidence of retaliation is not enough. See

Williams v. Fulton Cnty. Sch. Dist., 181 F. Supp. 3d 1089, 1048

(N.D. Ga. 2016) (“The mere allegation of an agreement, by itself,

is conclusory.”)3 Davis fails to state a conspiracy claim.

3 The conspiracy claim also fails because the alleged cover-

up did not cause a violation of his constitutional rights. See

e. Access to the courts

Davis next accuses Defendants of impeding his access to the

courts in two ways. First, he claims Hall and Frost wrote false

disciplinary reports to scare him away from filing grievances.

Second, Davis claims Snider, Dawson, Severson, Scarpati, Brock,

and Milliken wrongly returned grievances without action for rule

violations, preventing Davis from exhausting his administrative

remedies as required by the Prison Litigation Reform Act (PLRA).

“It is well established that ‘prisoners have a constitutional

right of access to the courts.’” Arthur v. Comm’r, Ala. Dep’t of

Corr., 680 F. App’x 894, 908 (11th Cir. 2017) (quoting Bounds v.

Smith, 430 U.S. 817, 821 (1977)). But the right is not

freestanding; “rather, to state a claim for denial of access to

the courts, an inmate must show actual injury.” Id. That means

a “plaintiff must identify within his complaint a ‘nonfrivolous,

arguable underlying claim.’” Barbour v. Haley, 471 F.3d 1222,

1226 (11th Cir. 2006) (quoting Christopher v. Harbury, 536 U.S.

403, 415 (2002)).

Hadley v. Guitierrez, 526 F.3d 1324, 1332 (11th Cir. 2008)

(rejecting a conspiracy claim based on an alleged cover-up of the

use of excessive force because the plaintiff failed to explain

what constitutional right the cover-up infringed).

Davis fails to state an access claim. The Amended Complaint

does not identify any underlying claim—much less a nonfrivolous

claim—that Davis was unable to present to a court. Also, Davis

relies on a misunderstanding of the PLRA’s exhaustion requirement.

The PLRA requires prisoners to exhaust all available

administrative remedies before filing a § 1983 action. 42 U.S.C.

§ 1997e(a). Courts recognize that prison officials can make

grievance procedures unavailable by threatening retaliation or

frustrating a prisoner’s attempt to file and pursue grievances.

Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008). If Defendants

rendered the grievance process unavailable with regard to certain

claims, the PLRA will not prevent Davis from pursuing those claim

in court. Davis can point to a Defendant’s misapplication of

grievance rules to counter an exhaustion defense, but it does not

give rise to an independent claim.

f. Substantive due process

Davis claims Hall, Spry-Torres, and Frost violated his

substantive due process rights by planting contraband during

searches of his cell, then writing false disciplinary reports.

Davis also accuses Hall and Spry-Torres of compelling Boone to

falsify the drug test results to ensure that Davis would be

punished. Defendants argue the Heck doctrine bars Davis’s due

process claims. As explained above, the Court disagrees.

Defendants do not otherwise challenge these claims, so they

survive.

g. Conclusion

The Court’s 12(b)(6) analysis has substantially narrowed this

case. The surviving claims are (1) retaliation against Hall; and

(2) violation of substantive due process against Hall, Spry-

Torres, and Frost. The Amended Complaint does not state plausible

claims on the other theories and against the other Defendants.

The Court will dismiss them under Rule 12(b)(6).

IV. Motion to Amend

After Defendants moved for dismissal, Davis filed a motion to

amend his complaint for a second time. (Doc. #26). Defendants

opposed the motion because the motion to dismiss was pending and

Davis did not submit a proposed second amended complaint with his

motion. (Doc. #28). Davis then filed a Proposed Second Amended

Complaint, which would add three state-law claims: (1) assault and

battery against Frost, Ditoro, and four other correctional

officers who are not currently parties to this case; (2) civil

theft against Hall and Ditoro; and (3) intentional and/or negligent

infliction of mental or emotional distress against all Defendants.

(Doc. #30).

Davis has already amended his complaint once, and Defendants

oppose an additional amendment. Davis can thus only amend again

with the Court’s leave, which should be freely given when justice

so requires. Fed. R. Civ. P. 15(a)(2).

The Court finds that allowing the proposed amendment would

not serve the interests of justice. First, the Proposed Second

Amended Complaint reasserts claims the Court is dismissing.

Allowing the amendment would move the parties and the Court back

to square one. Second, the Court may only exercise supplemental

jurisdiction over state-law claims “that are so related to claims

in the action…that they form part of the same case or

controversy[.]” 28 U.S.C. § 1367(a). The proposed state-law

claims are not ancillary to Davis’s surviving claims. That is,

they do not arise from the same transactions. See Am. Fed’n of

State, Cnty., and Mun. Employees Council 79 v. Scott, 949 F. Supp.

2d 1239, 1243 (11th Cir. 2013).

For these reasons, the Court denies Davis leave to file his

Proposed Second Amended Complaint (Doc. #30).

Accordingly, it is hereby

ORDERED:

1. Defendants’ Motion to Dismiss Plaintiff’s Complaint

(Doc. #24) is GRANTED in part and DENIED in part.

a. All claims in the Amended Complaint are DISMISSED

without prejudice except the retaliation claim

against Hall and the substantive-due-process claims

against Hall, Frost, and Spry-Torres.

b. Defendants Frost and Spry-Torres must file an answer

to the Amended Complaint within fourteen (14) days of

this Order.

c. The Clerk is DIRECTED to terminate Defendants Snider,

Dawson, Severson, Brock, Scarpati, Robinson, Ditoro,

Milliken, Chavarria, Roberts, Boone, and Jean-Pierre

as parties to this case.

2. Plaintiff’s Motion for Leave to Amend and Motion for

Extension of Time to Amend (Doc. #26) is DENIED.

DONE and ORDERED at Fort Myers, Florida, this 26th day

of July 2022.

J =e (2h

: lu dE, Ah Zook

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-1

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