# Davis v. Hall

> District Court, M.D. Florida · July 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10110549

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10110549

## How later opinions describe it (automated extraction)

- 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
- 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
- finding no plausible Eighth Amendment claim because “However did not assert that missing one meal worsened his health”

## Opinion text

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
Copies:
All parties

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110549. Public record. Not legal advice.