Fisher v. Rhoden

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LESTER EUGENE FISHER,

Plaintiff,

vs. Case No. 3:22-cv-698-MMH-JBT

CAPTAIN RHODEN, et al.,

Defendants.

_____________________________

ORDER

I. Status

Plaintiff Lester Eugene Fisher, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action on June 21, 2022, by

filing a pro se Civil Rights Complaint (Complaint; Doc. 1) with exhibits (Doc.

1-1).1 In the Complaint, Fisher asserts claims pursuant to 42 U.S.C. § 1983

against the following Defendants: (1) Captain Rhoden, Suwannee Correctional

Institution (SCI); (2) Sgt. King, SCI; and (3) Sgt. Folsom, SCI. Fisher alleges

that Defendants Rhoden and King violated his Fourteenth Amendment right

to due process and equal protection of law, his Fifth Amendment right to due

process of law, and his Eighth Amendment right to be free from cruel and

1 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

unusual punishment. Fisher alleges Defendant Folsom violated his Fifth

Amendment right to due process of law. Specifically Fisher asserts that

Defendants Rhoden, King, and Folsom violated his right to due process and

equal protection of the law by: (1) using profane and abusive (racist) language;

(2) using unnecessary and excessive force (although he later clarifies that only

Defendants King and Rhoden violated his Eighth Amendment right by using

excessive force); (3) leaving Fisher handcuffed in a room full of unrestrained

prisoners; (4) maliciously denying him food; and (5) using hand restraints as

punishment. Fisher also alleges Defendants King, Rhoden, and Folsom

subjected him to cruel and unusual punishment in violation of the Eighth

Amendment by denying him food. Finally, he asserts Defendants King,

Rhoden, and Folsom violated his right to due process in their failure to stop

and report the abuse, as required by FDOC policy. As relief, he seeks monetary

damages.

This matter is before the Court on Defendants Folsom, King, and

Rhoden’s Motion to Dismiss Plaintiff’s Complaint (Motion; Doc. 16). The Court

advised Fisher that granting a motion to dismiss would be an adjudication of

the case that could foreclose subsequent litigation on the matter and gave him

an opportunity to respond. See Order (Doc. 5). Fisher filed a response in

opposition to the Motion. See Plaintiff’s Motion in Opposition to Defendants’

Motion to Dismiss (Response; Doc. 19).

II. Plaintiff’s Allegations2

As to the specific underlying facts supporting his claims, Fisher, an

African American inmate, asserts that on February 14, 2022, at approximately

6:00 a.m., he entered the dining hall at SCI for breakfast. Complaint at 6. After

getting a breakfast tray, he proceeded to the first row of tables as inmates are

required to fill up all seats, in order. Id. Fisher observed liquid in the seat and

moved his tray to the next available seat, at the next table. Id. Defendants

Rhoden, King, and Folsom were standing near the entrance of the dining hall,

along with three or four other corrections officers. Id. Captain Rhoden yelled

at Fisher to sit down. Id. Fisher responded the seat is wet. Id. Using irate and

profane language, Captain Rhoden yelled at Fisher to come over. Id. Fisher

asked Captain Rhoden why he was cussing. Id. Captain Rhoden responded

with profane language and said, “I don’t like your tone of voice, boy – you must

not know who I am.” Id. at 7. Captain Rhoden ordered Sgt. King to handcuff

Fisher, so Fisher who already had his back to Sgt. King, put his hands behind

his back, offering no resistance to being handcuffed. Id. Nevertheless, Sgt. King

shoved Fisher in his upper back, forcing Fisher’s face into the wall. Id. Sgt.

2 In considering the Motion, the Court must accept all factual allegations in

the Complaint as true, consider the allegations in the light most favorable to Fisher,

and accept all reasonable inferences that can be drawn from such allegations. Hill v.

White, 321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa Cnty., 21 F.3d 1531,

1534 (11th Cir. 1994). As such, the facts recited here are drawn from the Complaint,

and may well differ from those that ultimately can be proved.

King roughly kicked Fisher’s feet apart while muttering a racial slur, and

tightly handcuffed Fisher. Id.

Captain Rhoden kept Fisher facing the wall, while handcuffed,

throughout the entire meal period. Id. According to Fisher, white guards stood

around laughing and taunting him, and Captain Rhoden told Fisher, who is 62

years old, to “face that wall, boy.” Id. While Fisher was facing the wall, Captain

Rhoden turned to Sgt. Folsom and said: “[f]lip a coin. Heads he goes to jail

[confinement], tails he doesn’t eat.” Id. Sgt. Folsom flipped the coin, indicated

it was heads, and said he would flip the coin again, trying two out of three. Id.

After the dining hall was empty, Captain Rhoden ordered Sgt. King to

remove the handcuffs and told Fisher to get out of there. Id. Fisher’s tray was

gone. Id. at 7-8. Fisher asked Captain Rhoden if he could eat. Id. at 8. Using

racially charged words, Captain Rhoden told Fisher he was lucky he was in a

good mood or Fisher would be in the box [confinement]. Id. Fisher departed the

dining hall amidst the laughter of Captain Rhoden and his subordinates. Id.

Fisher alleges he sought psychological counseling on several occasions due to

psychological trauma caused by this incident. Id.

III. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual

allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see

also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir.

2002). In addition, all reasonable inferences should be drawn in favor of the

plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless,

the plaintiff must still meet some minimal pleading requirements. Jackson v.

BellSouth Telecomms., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations

omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint

should “‘give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further,

the plaintiff must allege “enough facts to state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when

the pleaded factual content allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal

quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that

“conclusory allegations, unwarranted deductions of facts or legal conclusions

masquerading as facts will not prevent dismissal”) (internal citation and

quotations omitted). Indeed, “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at

678, 680. Thus, in ruling on a motion to dismiss, the Court must determine

whether the complaint contains “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting

Twombly, 550 U.S. at 570). And, while “[p]ro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed,” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998), “‘this leniency does not give a court license to serve as de facto

counsel for a party or to rewrite an otherwise deficient pleading in order to

sustain an action.’” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th

Cir. 2014) (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359,

1369 (11th Cir. 1998) (internal citation omitted), overruled in part on other

grounds as recognized in Randall, 610 F.3d at 709).

IV. Summary of the Arguments

In their Motion, Defendants argue that Fisher’s Complaint should be

dismissed because: (1) he failed to exhaust his administrative remedies; (2) the

Complaint does not include a short and plain statement of the facts as required

by Rule 8(a)(2) of the Federal Rules of Civil Procedure (Rule(s)) and does not

have numbered paragraphs as required by Rule 10(b); (3) he has not pled facts

sufficient to state an Eighth Amendment claim; (4) to the extent he is

attempting to raise a substantive due process claim, his claim should be

addressed under the Eighth Amendment and the due process claim dismissed;

(5) he fails to state an equal protection claim upon which relief can be granted;

(6) he fails to state a Fourteenth Amendment claim upon which relief can be

granted; (7) the Defendants are entitled to qualified immunity; and (8) he is

not entitled to any damages because he alleges only de minimis physical

injuries which do not entitle him to compensatory and punitive damages under

42 U.S.C. § 1997e(e). Motion at 4-39.

In his Response, Fisher asks the Court to deny Defendants’ Motion

because he states plausible claims against Defendants. Response at 1-2, 5-7.

He also contends that he exhausted his administrative remedies. Id. at 2-5. He

submits that as a pro se litigant he should not be held to the same exacting

standards as an attorney and any failure to comply with Rules 8(a)(2) and 10(b)

should be excused. Response at 5. Finally, he contends much of Defendants’

argument is inapplicable to his Complaint as he does not raise a claim of

deliberate indifference. Id. at 6.

V. Exhaustion of Administrative Remedies

A. PLRA Exhaustion

The Eleventh Circuit Court of Appeals has held the exhaustion of

administrative remedies by a prisoner is “a threshold matter” to be addressed

before considering the merits of a case. Chandler v. Crosby, 379 F.3d 1278,

1286 (11th Cir. 2004); see also Myles v. Miami-Dade Cnty. Corr. & Rehab.

Dep’t, 476 F. App’x 364, 366 (11th Cir. 2012)3 (noting that exhaustion is “a

‘threshold matter’ that we address before considering the merits of the case”)

(citation omitted). It is well settled that the Prison Litigation Reform Act

(PLRA) requires an inmate wishing to challenge prison conditions to first

exhaust all available administrative remedies before asserting any claim

under 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S.

516, 524 (2002). A prisoner such as Fisher, however, is not required to plead

exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the United

States Supreme Court has recognized that “failure to exhaust is an affirmative

defense under the PLRA[.]” Id. Notably, exhaustion of available administrative

remedies is “a precondition to an adjudication on the merits” and is mandatory

under the PLRA. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Not

only is there an exhaustion requirement, the PLRA “requires proper

exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).

Because exhaustion requirements are designed to deal

with parties who do not want to exhaust,

administrative law creates an incentive for these

parties to do what they would otherwise prefer not to

do, namely, to give the agency a fair and full

3 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

opportunity to adjudicate their claims. Administrative

law does this by requiring proper exhaustion of

administrative remedies, which “means using all steps

that the agency holds out, and doing so properly (so

that the agency addresses the issues on the merits).”

Pozo,[4] 286 F.3d, at 1024 (emphasis in original).

Woodford, 548 U.S. at 90. And, “[p]roper exhaustion demands compliance with

an agency’s deadlines and other critical procedural rules.” Id.

The United States Supreme Court has instructed that “[c]ourts may not

engraft an unwritten ‘special circumstances’ exception onto the PLRA’s

exhaustion requirement. The only limit to § 1997e(a)’s mandate is the one

baked into its text: An inmate need exhaust only such administrative remedies

as are ‘available.’” Ross v. Blake, 578 U.S. 632, 648 (2016). For an

administrative remedy to be available, the “remedy must be ‘capable of use for

the accomplishment of [its] purpose.’” Turner v. Burnside, 541 F.3d 1077, 1084

(11th Cir. 2008) (quoting Goebert v. Lee Cnty., 510 F.3d 1312, 1322-23 (11th

Cir. 2007)).

Because failure to exhaust administrative remedies is an affirmative

defense, Defendants bear “the burden of proving that [Fisher] has failed to

exhaust his available administrative remedies.” Id. at 1082. In accordance with

4 Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).

Eleventh Circuit precedent, a court must employ a two-step process when

examining the issue of exhaustion of administrative remedies.

After a prisoner has exhausted the grievance

procedures, he may file suit under § 1983. In response

to a prisoner suit, defendants may bring a motion to

dismiss and raise as a defense the prisoner’s failure to

exhaust these administrative remedies. See Turner,

541 F.3d at 1081. In Turner v. Burnside we

established a two-step process for resolving motions to

dismiss prisoner lawsuits for failure to exhaust. 541

F.3d at 1082. First, district courts look to the factual

allegations in the motion to dismiss and those in the

prisoner’s response and accept the prisoner’s view of

the facts as true. The court should dismiss if the facts

as stated by the prisoner show a failure to exhaust. Id.

Second, if dismissal is not warranted on the prisoner’s

view of the facts, the court makes specific findings to

resolve disputes of fact, and should dismiss if, based

on those findings, defendants have shown a failure to

exhaust. Id. at 1082-83; see also id. at 1082 (explaining

that defendants bear the burden of showing a failure

to exhaust).

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015).

At step two of the procedure established in Turner, the Court can consider facts

outside the pleadings as long as those facts do not decide the case and the

parties have had sufficient opportunity to develop the record. Bryant, 530 F.3d

at 1376; see also Jenkins v. Sloan, 826 F. App’x 833, 838-39 (11th Cir. 2020).

Here, Defendants submitted grievance records as exhibits to their Motion.5 See

5 Fisher submitted the same grievances, except those concerning his

emergency grievance (#22-6-05232). See exhibits to the Complaint (Doc. 1-1).

Doc. 16-1. When neither party requests an evidentiary hearing, courts may

decide a motion to dismiss on the basis of affidavits and other documents.

Bryant, 530 F.3d at 1377 n.16. The parties have not requested an evidentiary

hearing. Thus, the Court considers the grievance records solely for purposes of

addressing their competing contentions regarding exhaustion. In evaluating

whether Fisher has satisfied the exhaustion requirement, the Court notes that

the Eleventh Circuit has determined that a “prisoner need not name any

particular defendant in a grievance in order to properly exhaust his claim.”

Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215, 1218 (11th Cir. 2010).

B. Florida’s Prison Grievance Procedure

State law “determines what steps are required to exhaust.” Dimanche v.

Brown, 783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218

(stating that “it is the prison’s requirements, and not the PLRA, that define

the boundaries of proper exhaustion”). The FDOC provides an internal

grievance procedure for its inmates. See Fla. Admin. Code R. 33-103.001

through 33-103.018. Generally, to properly exhaust administrative remedies,

a prisoner must complete a three-step sequential process. First, an inmate

must submit an informal grievance at the institutional level to a designated

staff member responsible for the specific problem. See Fla. Admin. Code R. 33-

103.005. If the issue is not resolved, the inmate must submit a formal grievance

at the institutional level. See Fla. Admin. Code R. 33-103.006. If the matter is

not resolved through formal and informal grievances, the inmate must file an

appeal to the Office of the FDOC Secretary. See Fla. Admin. Code R. 33-

103.007. However, under certain specified circumstances, an inmate can

bypass the informal-grievance stage and start with a formal grievance at the

institutional level. See Fla. Admin. Code R. 33-103.005(1); 33-103.006(3). Or

an inmate can completely bypass the institutional level and proceed directly to

the Office of the FDOC Secretary by filing a “direct grievance.” See Fla. Admin.

Code R. 33-103.007(3). Emergency grievances and grievances of reprisal are

types of “direct grievances” that may be filed with the Office of the FDOC

Secretary. See Fla. Admin. Code R. 33-103.007(3)(a).

Florida Administrative Code Rule 33-103.011 provides time frames for

the submission of grievances. Informal grievances must be received within

twenty days from the date on which the grieved incident or action occurred.

See Fla. Admin. Code R. 33-103.011(1)(a). Formal grievances must be received

no later than fifteen days from the date of the response to the informal

grievance. See Fla. Admin. Code R. 33-103.011(1)(b). Similarly, grievance

appeals to the Office of the FDOC Secretary must be received within fifteen

days from the date that the response to the formal grievance is returned to the

inmate. See Fla. Admin. Code R. 33-103.011(1)(c). According to Rule 33-

103.014, an informal grievance, formal grievance, direct grievance, or

grievance appeal “may be returned to the inmate without further processing if,

following a review of the grievance, one or more . . . conditions are found to

exist.” Fla. Admin. Code R. 33-103.014(1). The rule provides an enumerated

list as “the only reasons for returning a grievance without a response on the

merits.” See Fla. Admin. Code R. 33-103.014(1)(a)-(y). A grievance can be

returned without action if it: is untimely; “addresses more than one issue or

complaint;” is “so broad, general or vague in nature that it cannot be clearly

investigated, evaluated, and responded to;” is “not written legibly and cannot

be clearly understood;” is a supplement to a previously-submitted grievance

that has been accepted for review; does not “provide a valid reason for by-

passing the previous levels of review as required or the reason provided is not

acceptable;” or does not include the required attachments. See Fla. Admin.

Code R. 33-103.014(1).

C. The Parties’ Positions Regarding Exhaustion

According to Defendants, Fisher failed to exhaust his administrative

remedies as to certain of his claims. Motion at 4. Specifically Defendants

contend Fisher did not properly exhaust his administrative remedies regarding

the allegations that, “(1) Defendants were using profanity and abusive (racist)

language towards him, (2) using unnecessary and excessive use of force (i.e.,

being handcuffed too tightly), (3) leaving Plaintiff handcuffed in a room full of

unrestrained inmates, (4) was denied food, and (5) using hand restraints as

punishment.” Id. at 12-13 (footnote omitted).

Defendants attach the informal grievance that Fisher submitted to the

Assistant Warden on February 14, 2022 to the Motion. Doc. 16-1 (informal

grievance, #231-2202-0142). The informal grievance states:

The following incident is entirely on camera. On

2-14-22 at approximately 6:00AM during the morning

meal in the East dining hall, I retrieved my tray and

sat it on the table. Seeing water on the seat I moved

my tray to another table. Captain Rhodes [sic] saw me

and told me to sit down. I informed him that the seat

was wet. Captain Rhodes [sic] yelled out, “Bring your

f*** ass here.” When I reached Captain Rhodes [sic] he

stated, “who the f*** you think you talking to?”. He

said he did not like my “tone of voice.” He ordered Sgt.

King . . . to cuff me up. Sgt. King pushed me against

the wall, kicked my feet apart and tightly handcuffed

me. Cameras will verify that I was in no way resisting.

Captain Rhodes [sic] kept me handcuffed facing the

wall throughout the entire meal, as if he had me on

display. When the dining hall finally emptied Captain

Rhodes [sic] uncuffed me and made me leave the

dining hall without eating. These actions constitute

cruel and unusual punishment and abuse of the

elderly, as I am 62 years old. Captain Rhodes [sic]

actions violates D.O.C. policies in; 1. Using profane

and abusive language towards me, in violation of

F.A.C. 33-208. 2. Leaving me handcuffed in a room full

of unrestrained inmates, thus endangering my life. 3.

Denying me food, which constitutes cruel and unusual

punishment.

I request the cameras be reviewed and this

matter referred to the I.G. Office for investigation and

sanctions against Captain Rhodes [sic]. I further

request that no reprisals be taken against me for this

complaint.

Because this institution suppresses complaints

against staff, a copy of this grievance is being

forwarded to Regional Director John Palmer.

This incident shall result in litigation.

Id. at 1-2. On February 22, 2022, Captain Rhoden responded: “I acted in a

professional manner. Inmate Fisher decided on his own accord to return to the

dorm without eating.” Id. at 1.

According to Defendants, Fisher only raised three matters against

Captain Rhoden and Sgt. King: the use of abusive and racist language, leaving

Fisher handcuffed in a room full of unrestrained inmates, and denying Fisher

food. Motion at 13. Defendants contend Fisher failed to raise any claims

against Sgt. Folsom in the informal grievance. Id.

Defendants also attach to the Motion Fisher’s emergency grievance to

the Secretary of the FDOC, dated February 14, 2022:

This is an emergency grievance concerning

inmate abuse. This incident is entirely on camera.

On 2-14-22 at approximately 6:00AM in the East

dining hall I got my tray and proceeded to sit down.

The seat was wet and I moved to another seat. Captain

Rhoden yelled for me to sit down and I replied that the

seat was wet. Captain Rhoden yelled, “Bring your f***

ass here.” When I approached Captain Rhodes [sic] I

asked him why was he cussing me like that. Captain

Rhodes [sic] replied that he didn’t like my “tone of

voice.” He ordered Sgt. King to handcuff me and

ordered me to face the wall. Captain Rhodes [sic] kept

me handcuffed facing the wall for the entire meal.

When the dining hall emptied Captain Rhodes [sic]

unhandcuffed me, stated “You’re lucky I’m in a good

mood. Get the f*** out of here.” He would not allow me

to eat. This constitutes cruel and unusual punishment.

Captain Rhodes [sic] is in violation of D.OC.

policy in; 1) Using profane and abusive language . . .

towards me, in violation of F.A.C. 33-208. 2) Violating

security protocols in leaving me handcuffed in a room

full of unhandcuffed inmates, thus endangering my

life. 3) Denying me food.

I request this matter be investigated. It is all on

camera. I further request a transfer, as I am being

mistreated and abused at this facility. I fear reprisals

(confinement, bogus D.R.s, etc.) as a result of my

complaints.

These abusive actions shall result in litigation.

Doc. 16-1 (emergency grievance, #22-6-05232) at 3-4.

On February 21, 2022, A. Johns responded:

Note: This grievance is not accepted as a grievance of

an emergency nature.

Your request for administrative appeal is in non-

compliance with the Rules of the Department of

Corrections, Chapter 33-103, Inmate Grievance

Procedure. The rule requires that you first submit

your appeal at the appropriate level at the institution.

You have not done so or you have not provided this

office with a copy of that appeal, nor have you provided

a valid or acceptable reason for not following the rules.

The Colonel should be given the opportunity to

respond to your issue.

Upon receipt of this response, if you are within the

allowable time frames for processing a grievance, you

may resubmit your grievance at your current location

in compliance with Chapter 33-103, Inmate Grievance

Procedure.

Based on the foregoing information, your grievance is

returned without action.

Id. at 5.

According to Defendants, Fisher only raised three matters against

Captain Rhoden and Sgt. King through the emergency grievance: the use of

abusive and racist language, leaving Fisher handcuffed in a room full of

unrestrained inmates, and denying Fisher food. Motion at 13. Defendants

contend Fisher failed to raise any claims against Sgt. Folsom in the emergency

grievance. Id. at 13-14. Also, Defendants argue that as this grievance was

returned without action, all claims raised are unexhausted as to all three

Defendants. Id. at 14.

Defendants also provide the Court with Fisher’s Request for

Administrative Remedy or Appeal, dated February 25, 2022, and addressed to

the Warden:

In further appeal of grievance log #231-2202-

0142; This administration is in violation of the

established grievance process in that I addressed my

grievance to the Assistant Warden and requested an

investigation. Instead, my grievance was forwarded to

Captain Rhoden, the subject of my complaint, who

provided a completely false and self-serving response.

This is improper.

The Respondent, Captain Rhoden, is guilty of

falsifying documents, in violation of F.A.C. 33-208.

This incident is entirely on camera.

1. Captain Rhoden said he acted in a

professional manner. Handcuffing me and leaving me

in a room full of unrestrained inmates is not

professional. In fact, it is against Departmental policy.

Cameras will verify Captain Rhoden’s

unprofessionalism in this regard.

2. Captain Rhoden stated that I decided on my

own accord to return to the dorm without eating.

Cameras will reveal this to be an outright lie. Cameras

(and inmate witnesses) will reveal that I sat my tray

on the table prior to Captain Rhoden calling me and

handcuffing me. Captain Rhoden kept me handcuffed

facing the wall throughout the entire meal[.] Other

inmates presumably ate my tray, as when I was

released from handcuffs, the tray was no longer on the

table. Nor would Captain Rhoden allow me to get

another tray.

3. Cameras will reveal several officers standing

around laughing and taunting me as I stood facing the

wall. Cameras will reveal Sgt. Folsom flipping a coin

and Capt. Rhoden telling him, “Heads he goes to jail.

Tails he doesn’t eat.” He denied me food maliciously.

Again, this response is a complete falsification of

documents.

Again, I request this matter be forwarded to the

I.G. Office for review of the cameras and an

investigation.

I further request that Captain Rhoden and his

subordinates be prohibited from retaliating against

me for this complaint.

Doc. 16-1 (request for administrative remedy or appeal, #2203-231-014) at 6-7

(emphasis added).

On March 10, 2022, M. Stofel, Grievance Officer, along with the Acting

Warden, responded:

Your request for Administrative Remedy or Appeal

has been received, reviewed & evaluated.

Further investigation reveals the following

information:

The issue of your complaint has been documented and

forwarded to the Office of the Inspector General for

investigation and disposition. Upon completion of

necessary action, information will be provided to

appropriate administrators for final determination

and handling. This may or may not result in a personal

interview with you. While action has been initiated

and your allegations have been documented, this does

not constitute substantiation of your allegations.

Therefore, based on the foregoing information; your

grievance is APPROVED.

Id. at 8.

According to Defendants, Fisher’s formal grievance, #2203-231-014,

raised for the first time several matters against Defendants Rhoden and

Folsom: documents had been falsified, Fisher was left handcuffed in a room of

unrestrained inmates, he did not return without eating on his own accord, and

officers flipped a coin to render a decision regarding confinement. Motion at

14. Defendants contend Fisher did not raise any claims against Sgt. King. Id.

After discussing Fisher’s attempts at exhaustion, Defendants argue that

Fisher did not exhaust his administrative remedies for any of the Defendants,

Defendants contend Fisher abandoned many of the issues during his attempt

to exhaust administrative remedies, and he failed to properly file a grievance

appeal through the grievance procedure, thereby failing to properly exhaust

administrative remedies. Id. at 15. Defendants also contend that Plaintiff

failed to properly file a grievance appeal through the grievance procedure, as

described by Rule 33-103.007. Motion at 15.

More particularly, Defendants contend, in the informal grievance Fisher

raised the issues of Defendants use of profanity and abusive (racist) language,

the act of leaving Fisher restrained in a room full of unrestrained inmates, and

the denial of food against just Defendants Rhoden and King. Id. They next

argue that in his formal grievance, Fisher raised the issues of being restrained

in a room full of unrestrained inmates and the denial of food against

Defendants Rhoden and Folsom. Id. Thus, Defendants argue that Fisher

abandoned the claim concerning profanity and abusive language and utterly

failed to exhaust the claims of the unnecessary use of force and the use of hand

restraints as punishment. Id. at 15-16. Finally, Defendants argue that by only

raising claims against Sgt. Folsom in the formal grievance, Fisher failed to

properly exhaust any claims against Folsom. Id. at 16.

In response to Defendants’ arguments, Fisher contends that he

exhausted his administrative remedies by filing grievances, grievance log

#231-2202-0142 and log #2203-231-014, followed by a grievance to Central

Office on March 28, 2022, for which he received no log number or response.6

Response at 2. Fisher contends that once his grievance was approved, he faced

no additional grievance requirements. Id. at 3. See Rule 33-103.007(7),

providing that once a grievance is approved, if the inmate is dissatisfied with

the response, he may re-file with the Office of the Secretary. Fisher argues that

this Rule places no mandatory requirement to seek further relief once a

grievance has been approved. Response at 3-4. According to Fisher, he properly

complied with the grievance process, his successive grievances incorporated

the facts and allegations of the previous grievance, a grievant is not required

to parrot each allegation in successive steps of the grievance process, and

Defendants were given fair notice of Fisher’s complaints. Id. at 4.

D. Turner Step One

Under the first step of the Turner analysis, the Court must review the

allegations in the Motion and Response and accept as true Fisher’s allegations.

See Whatley, 802 F.3d at 1209. If Fisher’s allegations in the Response show a

failure to exhaust, then dismissal would be appropriate. See id.

The Court now turns to the allegations in the parties’ respective filings

concerning Fisher’s exhaustion efforts. Defendants assert that Fisher failed to

6 Fisher did not attach a copy of the grievance to Central Office to his

Complaint. Instead, he simply states that through his grievance to Central Office he

inquired as to the status of the investigation. Response at 4.

exhaust administrative remedies for any of the Defendants by abandoning

some issues, failing to properly take a grievance appeal, and failing to properly

grieve his complaints. Motion at 13-16. Instead of appealing his informal

grievance, Fisher filed an emergency grievance with the Secretary that was

returned without action for failure to comply with procedural requirements.

Id. at 14. Although Fisher filed a formal grievance, Defendants contend that

he failed to properly file a grievance appeal through the grievance procedure,

as described by Rule 33-103.007. Id. at 15. Therefore, Defendants contend that

Fisher did not properly exhaust his administrative remedies because he failed

to comply with the FDOC’s grievance procedure. Id.

Fisher responds that he filed grievances, one of which was approved,

meaning no further action was required on his part to fully exhaust his

administrative remedies in compliance with the grievance process. Response

at 2-3. Accepting Fisher’s view of the facts as true, the Court cannot dismiss

the Complaint at the first step of the Turner analysis.

E. Turner Step Two

As dismissal would not be appropriate based on the allegations in the

Motion and Response, the Court next turns to the second prong of the Turner

analysis. The parties primarily dispute whether Fisher exhausted all of his

claims and whether he fully exhausted any claims because he did not file a

grievance appeal as described by Rule 33-103.007. See Motion at 15-16;

Response at 3-5.

The Court finds that Defendants have not met their burden of

establishing that Fisher failed to properly exhaust his administrative remedies

with regard to the claims addressed in the Motion (abusive language, excessive

force, leaving Fisher handcuffed in a room full of inmates, denial of food, and

the use of hand restraints as punishment). The grievance records submitted by

both Fisher and Defendants demonstrate that Fisher exhausted his

administrative remedies. Although Fisher mentions that a grievance to

Central Office was never logged and processed, it was not a required element

of the institutional grievance process.

Reliable evidence supports the conclusion that Fisher submitted a

relevant grievance about the February 14, 2022 incident at the institutional

level. (Doc. 16-1 at 1). When his grievance of an emergency nature was

returned without action as non-compliant with the rules of the FDOC, Fisher

took the step of appealing grievance #231-2202-0142 by filing a request for

administrative remedy or appeal. (Doc. 16-1 at 6-7). This grievance, log #2203-

231-014, produced a response, and the grievance officer approved the grievance

and notified Fisher that his complaint had been documented and forwarded to

the Inspector General for investigation and disposition. Id.

To the extent Defendants contend Fisher did not exhaust his

administrative remedies because he failed to comply with the FDOC’s

grievance procedure in failing to properly appeal the denial of his informal

grievance, Fisher responds that he properly exhausted his administrative

remedies because the FDOC did not reject his formal grievance. Instead, the

grievance officials approved the formal grievance and forwarded it to the

Inspector General for investigation. The Eleventh Circuit has held that a

prisoner exhausts his administrative remedies “when prison officials decide a

procedurally flawed grievance on the merits . . . [and] district courts may not

enforce a prison’s procedural rule to find a lack of exhaustion after the prison

itself declined to enforce the rule.” Whatley, 802 F.3d at 1215. Here, Fisher’s

formal grievance was approved, and he received the relief he requested:

referral of his complaints to the Inspector General for an investigation. Even

assuming Fisher’s formal grievance and appeal were “procedurally flawed,” the

FDOC approved Fisher’s grievance and declined to enforce any procedural bar.

The Court will not enforce the FDOC’s procedural bar on its behalf. Therefore,

Defendants’ Motion is due to be denied as to any assertion that Fisher failed

to properly exhaust administrative remedies.

Defendants also contend that Fisher failed to properly file an appeal as

described by Rule 33-103.007. See Fla. Admin. Code R. 33-103.007. However,

the record shows that Fisher’s grievance was approved, not denied. Therefore,

Defendants’ argument is baseless. Fisher’s grievance was approved and

referred to the Inspector General, and there is no requirement that Petitioner

take an appeal from an approved grievance.

Defendants also assert that Fisher failed to properly exhaust his

administrative remedies because he did not name particular corrections

officials in each grievance. Fisher counters that he gave Defendants fair notice

of his contentions through his grievances. As a prisoner need not name any

particular defendant in a grievance to properly exhaust, Defendants’ argument

does not persuade the Court that Fisher failed to exhaust his claims. Parzyck,

627 F.3d at 1218.

The Court has reviewed and considered all of the grievances and

grievance responses before the Court and Defendants have failed to meet their

burden. Based on all reasonable inferences, Fisher has shown that he filed

relevant grievances or fully exhausted his contentions through available

administrative remedies in compliance with the procedural rules of the FDOC.

The Court concludes that the Motion for failure to exhaust administrative

remedies is due to be denied in this respect.

VI. Fifth Amendment Claims

Fisher raises Fifth Amendment due process claims and equal protection

claims against Defendants in his Complaint. Notably these Defendants

Captain Rhoden, Sgt. King, and Sgt. Folsom are employees of the State of

Florida, not the federal government. As noted in Allen v. Dixon, No. 4:22-cv-

148-WS/MJF, 2023 WL 2393794, at *4 (N.D. Fla. Jan. 31, 2023) (slip), report

and recommendation adopted by 2023 WL 2391010 (N.D. Fla. Mar. 7, 2023),

the Fifth Amendment applies to the United States, not the states:

“Notably, the Fifth Amendment applies to the United

States, its agencies, and its employees. Dusenbery v.

United States, 534 U.S. 161, 167 (2002) (“The Due

Process Clause of the Fifth Amendment prohibits the

United States ... from depriving any person of property

without ‘due process of law.’”). The Fourteenth

Amendment, on the other hand, applies to the states.

S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483

U.S. 522, 542 n.21 (1987) (“The Fourteenth

Amendment applies to actions by a State.”).

Fisher also asserts his claims against these Defendants under the

Fourteenth Amendment. As such, the Court will dismiss Fisher’s Fifth

Amendment claims against Defendants Rhoden, King, and Folsom sua sponte.

VII. Short and Plain Statement & Numbered Paragraphs

Defendants argue that Fisher’s Complaint fails to present a short and

plain statement showing he is entitled to relief and fails to state his claims in

numbered paragraphs. Motion at 17-18. According to Defendants, the

Complaint is excessively long, difficult to read and follow, and could be refined

to shorten it and to include numbered paragraphs. Id. In response, Fisher

argues that any failure to comply with Rule 8(a)(2) and Rule 10(b) of the

Federal Rules of Civil Procedure should be excused as he is a pro se litigant

and should not be held to the same exacting standards as an attorney.

Response at 5. Fisher also maintains that he adequately set forth his claims

and allegations as “this Court apparently apprehends [sic] Plaintiff’s claims.”

Id.

Rule 8(a)(2) requires that a complaint contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” The

purpose of Rule 8(a)(2) is “to give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quotation

marks and citation omitted). And, while pro se pleadings are liberally

construed, they “must suggest (even if inartfully) that there is at least some

factual support for a claim; it is not enough just to invoke a legal theory devoid

of any factual basis.” Jones v. Fla. Parole Comm’n, 787 F.3d 1105, 1107 (11th

Cir. 2015).

To the extent Defendants contend the Complaint does not comply with

Rule 8(a)(2) because Fisher’s Complaint is long and hard to follow, their

argument is unavailing. Fisher utilized the Court’s approved form for

complaints concerning violations of civil rights (prisoner). See Local Rule

6.04(a) (“A pro se person in custody must use the standard form[.]”). The

Complaint form consists of eleven pages, and Fisher adds only four pages to

expound upon his claims and allegations. Although his claims are somewhat

scattered throughout the body of the Complaint and mixed with his factual

basis, Defendants were able to parse the claims and adequately respond. See

generally Complaint. Fisher did not use numbered paragraphs, but the form

does not require numbered paragraphs. Notably, he referenced the section

numbers, in compliance with the form. Id.

Considering the above, Fisher has set forth a short and plain statement

of his entitlement to relief such that the Defendants have fair notice of the

claims against them and the facts underlying those claims, even though Fisher

did not use numbered paragraphs and attached some pages to the Complaint

form. The Court thus will evaluate the sufficiency of the factual allegations as

set forth in the Complaint. Accordingly, Defendants’ Motion is due to be denied

as to their contention that the Complaint fails to comply with Rules 8(a)(2) and

10(b).

VIII. Due Process

Defendants next argue that Fisher’s due process claim must be analyzed

under the Eighth Amendment, not the Fourteenth Amendment. Motion at 26-

27. Regardless, they contend that the due process claim is without merit. Id.

at 27. In response, Fisher asserts that his due process claim speaks for itself

in that he was punished without a hearing or an opportunity to contest the

decision or appeal. Response at 6-7. Upon review, Fisher’s argument is not

persuasive as he did not raise that particular claim as a deprivation of due

process of law in the Complaint. See generally Complaint.

The Eighth Amendment is applicable to the states through the

Fourteenth Amendment, but the Eighth Amendment gives rise to claims

challenging the excessive use of force in the prison context. As the Eighth

Amendment serves as the primary source of protection for a convicted prisoner,

Fisher’s claims of cruel and unusual punishment will be addressed as Eighth

Amendment claims as that Amendment’s prohibition against cruel and

unusual punishment, applicable to the states through the Due Process Clause

of the Fourteenth Amendment, prohibits the unnecessary and wanton

infliction of pain. Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010)

(citations and quotations omitted). As such, Fisher’s claim of the excessive use

of force by prison officials will be addressed under the Eighth Amendment, the

primary source of his protection while incarcerated in the state prison system,

not the Fourteenth Amendment.

IX. Excessive Force and Failure to Intervene

The Eighth Amendment “prohibits the unnecessary and wanton

infliction of pain, or the infliction of pain totally without penological

justification.” Ort v. White, 813 F.2d 318, 321 (11th Cir. 1987). At the same

time, it is well understood that prison guards, who are charged with

maintaining order and protecting inmates and staff, may use force when

necessary “to maintain or restore discipline.” Whitley v. Albers, 475 U.S. 312,

320 (1986). See also Williams v. Burton, 943 F.2d 1572, 1575 (11th Cir. 1991).

Accordingly, courts must balance concerns of an inmate’s right to be free from

cruel and unusual punishment with a prison official’s obligation to ensure a

safe and secure institution. Ort, 813 F.2d at 321-22.

An inmate against whom force is used to restore order demonstrates an

Eighth Amendment violation “only if the measure taken ‘inflicted unnecessary

and wanton pain and suffering’ caused by force used ‘maliciously and

sadistically for the very purpose of causing harm.’” Williams, 943 F.2d at 1575

(citation omitted). Just as not “every malevolent touch by a prison guard gives

rise to a federal cause of action[,]” it follows that not every push or shove, even

if later viewed as seemingly unnecessary, violates a prisoner’s constitutional

rights. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citation omitted).

Whether an officer used more force than necessary to quell a disturbance

or regain control of a prisoner requires courts to consider various factors,

including the need for force, the extent of force used in relation to the prisoner’s

conduct, the threat of harm the prisoner posed to staff and inmates, whether

the officer tried to “temper the severity of a forceful response,” and the injuries

inflicted. Whitley, 475 U.S. at 321. In considering the factors, courts should

give a “‘wide range of deference to prison officials acting to preserve discipline

and security’ including when considering ‘[d]ecisions made at the scene of a

disturbance.’” Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (quoting

Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir.1990)). For example, using

an appropriate amount of force to compel compliance with a valid order is

justified. Brown v. Smith, 813 F.2d 1187, 1189 (11th Cir. 1987) (inmate refused

an order to enter his cell and some force used to gain compliance). Notably, a

lack of serious injury, while not dispositive, is relevant to the inquiry. Wilkins

v. Gaddy, 559 U.S. 34, 38 (2010) (per curiam); Smith v. Sec'y, Dep't of Corr.,

524 F. App'x 511, 514 (11th Cir. 2013) (per curiam) (twisting of arm and

pressing against wall “not of a sort [of the use of force] repugnant to the

conscience of mankind”) (quoting Hudson, 503 U.S. at 10 (quotation marks

omitted)).

The Eleventh Circuit, in Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir.

2020), reviewed the principles applicable to excessive force claims and

instructed:

The Eighth Amendment, among other things,

prohibits “cruel and unusual punishments.” U.S.

Const. amend. VIII. As the Supreme Court has

explained, “the unnecessary and wanton infliction of

pain” qualifies under the Eighth Amendment as

proscribed “cruel and unusual punishment.” Hudson

v. McMillian, 503 U.S. 1, 5, 112 S. Ct. 995, 117 L.Ed.2d

156 (1992). Nevertheless, the Supreme Court has

instructed that what rises to the level of an

unnecessary and wanton infliction of pain” differs

based on the type of Eighth Amendment violation

alleged. Id.

Since [the plaintiff] asserts excessive-force ...

claims, “the core judicial inquiry” requires [the Court]

to consider “whether force was applied in a good-faith

effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Wilkins, 559 U.S. at

37, 130 S. Ct. 1175 (citation and quotation marks

omitted). This standard requires a prisoner to

establish two elements – one subjective and one

objective: the official must have both “acted with a

sufficiently culpable state of mind” (the subjective

element), and the conduct must have been “objectively

harmful enough to establish a constitutional

violation.” Hudson, 503 U.S. at 8, 112 S. Ct. 995

(cleaned up).

With respect to the subjective element, “to have a

valid claim on the merits of excessive force in violation

of [the Eighth Amendment], the excessive force must

have been sadistically and maliciously applied for the

very purpose of causing harm.” Johnson v. Breeden, 280

F.3d 1308, 1321 (11th Cir. 2002); see also Thomas v.

Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010).

As for the objective component of an excessive-

force violation, it focuses on whether the official's

actions were “harmful enough,” Hudson, 503 U.S. at 8,

112 S. Ct. 995, or “sufficiently serious,” Wilson v.

Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L.Ed.2d

271 (1991), to violate the Constitution. “Not every

malevolent touch by a prison guard gives rise to a

federal cause of action.” Wilkins, 559 U.S. at 37, 130 S.

Ct. 1175. “The Eighth Amendment's prohibition of

‘cruel and unusual’ punishments necessarily excludes

from constitutional recognition de minimis uses of

physical force, provided that the use of force is not of a

sort repugnant to the conscience of mankind.” Id. at

37-38, 130 S. Ct. 1175. Instead, the Eighth

Amendment prohibits force that offends

“contemporary standards of decency,” regardless of

whether “significant injury is evident,” though the

extent of injury may shed light on the amount of force

applied or “whether the use of force could plausibly

have been thought necessary.” Wilkins, 559 U.S. at 37,

130 S. Ct. 1175 (citation and internal quotation marks

omitted).

Id. at 1265-66.

Separately, “the eighth amendment’s proscription against cruel and

unusual punishment imposes a duty to provide reasonable protection” when a

prison official becomes “aware of a threat to an inmate’s health and safety[.]”

Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990). When prison officials

are “deliberately indifferent to a known danger . . ., their failure to intervene

offend[s] ‘evolving standards of decency’ [and] ris[es] to the level of a

constitutional tort.” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)).

Defendants argue that by Fisher’s own allegations, he was handcuffed

and then uncuffed during the normal course of operations at a correctional

institution. Motion at 21. Defendants contend that Fisher’s allegations show

he was not left alone in the dining hall, handcuffed and at the mercy of

unrestrained inmates. Id. at 21-22. Defendants also argue that Fisher’s own

allegations show that guards were in the dining hall as Fisher alleges that

other guards stood around during this incident and Captain Rhoden and Sgt.

King were present even at the end of the dining session. Id. at 22. See

Complaint at 6-8. Last, Defendants contend that Fisher does not allege any

physical injury and none of the standards have been met by Fisher’s claims.

Motion at 22.

In response, Fisher argues he was handcuffed without cause, roughly

pushed against a wall, and had his legs kicked apart, even though he offered

no resistance. Response at 5. He contends Defendants used force when none

was necessary. Id.

In the Complaint, Fisher alleges that inmates are required to fill up all

dining hall seats in order, and he did not comply with that requirement

because his designated seat was wet, and he moved to the next table. Id. at 6.

Fisher alleges that Captain Rhoden told him to sit down, and Fisher did not

comply with this directive, instead he responded the seat was wet. Id. At that

point, Captain Rhoden called Fisher over, cursed at him, and directed that he

be handcuffed. Id. at 6-7. Fisher asserts Sgt. King then shoved Fisher in the

upper back, pushing Fisher’s face into a wall, and kicked Fisher’s feet apart

and secured the handcuffs tightly. Id. at 7. Fisher alleges no physical injury as

a result of this incident. Id. at 9.

Fisher’s allegations fail to satisfy the objective element of an excessive

force claim. Clemmons v. United States, No. 2:21-cv-9, 2022 WL 2812270, at

*4 (S.D. Ga. June 9, 2022) (slip)), report and recommendation adopted by 2022

WL 2812311 (S.D. Ga. July 18, 2022) (slip). Based on his own allegations,

Rhoden ordered him to be handcuffed after Fisher refused to comply with a

direct order to sit down in his designated seat. In light of his refusal, some use

of force was allowed and Fisher’s allegations are insufficient to show that

Defendant used more than de minimis force in applying the handcuffs as

Fisher suffered no physical injuries. The act of shoving an inmate roughly and

jerking him around is not excessive force, particularly when the rough

handling results in no injury. Clemmons, 2022 WL 2812270, at *4. In the

Complaint, Fisher alleges no physical injury as a result of the use-of-force. See

generally Complaint. Also, the act of handcuffing too tightly is simply not

enough to constitute a constitutional violation. See Sebastian v. Ortiz, 918 F.3d

1301, 1312 (11th Cir. 2019) (noting only the most exceptional circumstances

will permit an excessive force claim based on handcuffing); Gold v. City of

Miami, 121 F.3d 1442, 1446-47 (11th Cir. 1997) (being handcuffed too tightly

and too long considered de minimis harm); see also Jones v. City of Dothan,

Ala., 121 F.3d 1456, 1458-60 (11th Cir. 1997) (slamming plaintiff against a

wall, kicking his legs apart, and requiring the raising of hands above the head

was unnecessary but minimum force); Post v. City of Fort Lauderdale, 7 F.3d

1552, 1556 (11th Cir. 1993) (pushing plaintiff against display case while

handcuffed not plainly unlawful), opinion modified by 14 F.3d 583 (11th Cir.

1994).

Fisher’s allegations also fail to satisfy the Eighth Amendment’s

subjective prong: whether the force was applied maliciously or sadistically.

Clemmons, 2022 WL 2812270, at *5. Indeed,

In determining whether malicious and sadistic

intent existed, “a variety of factors are considered

including: ‘the need for the application of force, the

relationship between that need and the amount of

force used, the threat reasonably perceived by the

responsible officials, and any efforts made to temper

the severity of a forceful response.’” Skrtich, 280 F.3d

at 1300 (quoting Hudson v. McMillian, 503 U.S. 1, 7–

8, 112 S. Ct. 995, 117 L.Ed.2d 156 (1992)). While wide-

ranging deference is given to officers' choices when

faced with a security risk, Campbell v. Sikes, 169 F.3d

1353, 1374 (11th Cir. 1999), it is also well establish[ed]

that officers cannot continue the use of force once the

threat has passed or the prisoner is subdued. See

Skrtich, 280 F.3d at 1303. Liability can also be

imposed on prison guards present at the scene for

failure to take reasonable steps to prevent excessive

force by other guards. Id. at 1301.

McReynolds v. Ala. Dep’t of Youth Serv., 204 F. App’x 819, 822 (11th Cir. 2006).

As noted above, Fisher’s allegations establish some need for the exercise

of handcuffing as he refused to comply with an order, and the relationship

between the need for force and the force applied cuts in favor of Defendants, as

the only force applied was handcuffing, pushing him against the wall and

kicking his legs apart. Although Fisher was handled roughly, he suffered no

physical injury. “The lack of any injury to Plaintiff supports a finding that any

use of force was de minimis.” Fenelus v. Newell, No. 3:10-cv-245-J-32JRK, 2013

WL 3854463, at *7 (M.D. Fla. July 24, 2013) (report and recommendation

adopted by the Court) (not reported in F.Supp.2d) (citing Vicks v. Knight, 380

F. App’x 847, 852 (11th Cir. 2010) (same)). Fisher may not have been a great

threat to staff and other inmates, but he admittedly refused to comply with an

order, moved to a different table, and refused a direct order to sit down in his

designated seat. Additionally, Fisher was not placed in danger. Based on his

own allegations, there were other officers standing around during this

incident, so he was not left open to attack by other inmates while restrained.

Indeed, Fisher does not allege that he was approached by or threatened by any

other inmate. Although Fisher complains he was subjected to verbal abuse and

rough handling, there was some effort to temper the severity of the response

as Fisher was uncuffed by the end of the dining period and the officers did not

generate a disciplinary report for his refusal to obey an order.

As to any alleged verbal abuse (including threatening or demeaning

comments) on the part of the Defendants, such allegations do not state a claim

of federal constitutional dimension. Hernandez v. Fla. Dep’t of Corr., 281 F.

App’x 862, 866 (11th Cir. 2008) (per curiam). To the extent Fisher alleges the

Defendants belittled him, verbal taunts without more do not deprive an inmate

of his federal constitutional rights. See Paylan v. Dirks, 847 F. App’x 595, 601

(11th Cir.) (citation omitted), cert. denied, 142 S. Ct. 228 (2021). As such,

Defendants’ Motion is due to be granted as to Fisher’s verbal abuse claim

against Defendants.

To the extent Fisher raises a failure-to-intervene claim against

Defendants Rhoden and Folsom, the law is well-established that a corrections

officer has a duty to intervene when he witnesses a fellow officer’s use of

excessive force against an inmate and is in a position to intervene. See Helm

v. Rainbow City, Ala., 989 F.3d 1265, 1272 (11th Cir. 2021) (citing Priester v.

City of Riviera Beach, 208 F.3d 919, 924-27 (11th Cir. 2000)). “Of course, there

also must be an underlying constitutional violation. Plainly, an officer cannot

be liable for failing to stop or intervene when there was no constitutional

violation being committed.” Sebastian, 918 F.3d at 1312 (citations omitted).

Here, Fisher’s allegations fail to satisfy the Eighth Amendment’s objective and

subjective prongs, and he has failed to state a claim for which he is entitled to

relief. Therefore, Defendants’ motion to dismiss Fisher’s Eighth Amendment

excessive force claim is due to be granted. Also, as any failure-to-intervene

claim is “wholly dependent on the underlying excessive force claim[,]” it too is

due to be dismissed as it necessarily turns on whether Sgt. King used excessive

force in Defendants Captain Rhoden and Sgt. Folsom’s presence. Id.

X. Denial of a Meal

Fisher alleges that he was subjected to cruel and unusual punishment in

violation of the Eighth Amendment because he was denied a meal. Complaint

at 8; Response at 6. Defendants argue that Fisher’s contention of a deprivation

of a meal fails to state a plausible Eighth Amendment claim and the claim

should be dismissed. Motion at 26. In Sylvestre v. Williams, No.

3:08cv488/LC/MD, 2009 WL 62650, at *2 (N.D. Fla. Jan. 8, 2009) (not reported

in F.Supp.2d), the district court found that the inmate failed to state a

plausible Eighth Amendment claim as, “[u]nder no set of facts can the denial

of one meal constitute a significant deprivation.” See Turner v. Warden, GDCP,

650 F. App’x 695, 702 (11th Cir. 2016) (24-hour deprivation of food does not

rise to the level of a cruel and unusual deprivation); Minnis v. Pittman, No.

3:15-cv-1200-J-39JRK, 2018 WL 3974112, at *11 (M.D. Fla. Aug. 20, 2018) (not

reported in F. Supp.) (finding denial of breakfast for seven days, while

providing lunch and dinner, does not objectively violate the Eighth

Amendment). Here, Fisher fails to state a plausible Eighth Amendment claim

by claiming he missed one meal on a single occasion. As such, Defendants’

Motion will be granted as to this claim.7

XI. Fourteenth Amendment - Equal Protection

Defendants argue that Fisher has failed to state a claim for an equal

protection violation. Motion at 27-28. They submit that Fisher, in a conclusory

fashion, claims his Fourteenth Amendment rights were violated without

explanation or elaboration. Id. at 28 (citing Complaint at 3). More particularly,

Defendants assert that Fisher raises an equal protection claim, “without any

7 Defendants also contend that Fisher has not met the deliberate indifference

standard as there is not an excessive risk to inmate health or safety in missing one

meal unless the prison official is subjectively aware of a substantial risk of serious

harm and disregards that risk. Motion at 23-24. Fisher responds that he has not

alleged deliberate indifference against any of the Defendants. Response at 6. As

Fisher is not pursuing a claim of deliberate indifference, no further analysis is

necessary.

corroboration or factual assertions whatsoever as to why Plaintiff believes this

to be true.” Motion at 28. Of import, Defendants contend that Fisher has met

none of the required elements to plead that he suffered a violation, asserting,

at a minimum Fisher must demonstrate: (1) he was similarly situated to other

prisoners who received more favorable treatment, and (2) the state engaged in

invidious discrimination against Fisher based on his race, religion, national

origin, or some other constitutionally protected basis. Barnes v. Parker, No.

2:14-cv-28-TMH, 2014 WL 3615812, at *5 (M.D. Ala. 2014) (not reported in

F.Supp.3d) (setting forth the requirements for an Equal Protection claim).

Challenging the support that Fisher provides for his equal protection claim,

Defendants seek the dismissal of the claim. Motion at 28.

In his response, Fisher argues that he has alleged that SCI is a racist

prison, the officers involved are notoriously racist, and the Defendants

mistreatment of Fisher was racially motivated. Response at 7. Fisher further

contends that he actually alleged that he was treated differently than other

similarly situated inmates in the dining hall on February 14, 2022 in that he

was physically restrained, subjected to unnecessary use of force, denied food,

and subjected to racial slurs and taunting. Id.

In the Complaint Fisher attempts to assert claims that his constitutional

right to equal protection of the law were violated. Complaint at 3. He alleges

the February 14, 2022 incident was racially motivated. Id. at 6. He states:

Suwannee Correctional Institution is a

notoriously racist prison and is disproportionately

staffed by white guards and officials, unrepresentative

of the racial demographics of the surrounding

communities. The defendants in this action, Captain

Rhoden and Sgt. King, are well known as being

notoriously racist, with disciplinary reports and use of

force reports disproportionately against black

prisoners.[8] Plaintiff in this action is African-

American.

Id. As far as disparaging remarks and gestures, Fisher alleges that Captain

Rhoden cursed at him and called him boy; Sgt. King and Captain Rhoden used

racially derogatory terms, and unnamed white guards stood around laughing

and taunting Fisher. Id. at 6-7. Fisher contends that Defendants deprived him

of equal protection of the law by using profane and racist language, employing

unnecessary and excessive force, leaving him restrained in a room full of

prisoners, denying him food, and using hand restraints as punishment. Id. at

8.

In order to survive a motion to dismiss for failure to state a claim for

relief under Federal Rule of Civil Procedure 12(b)(6), “the allegations must

state a claim for relief that is plausible, not merely possible.” Gill v. Judd, 941

F.3d 504, 511 (11th Cir. 2019). Although Fisher argues that he has been

subjected to discriminatory treatment based on a constitutionally protected

8 Fisher did not receive a disciplinary report and there was no use-of-force

report issued. Complaint at 8.

interest of race, nowhere in the Complaint does Fisher actually assert that he

was similarly situated to other prisoners who received more favorable

treatment. See generally Complaint.

The Equal Protection Clause of the Fourteenth Amendment provides

that no State may “deny to any person within its jurisdiction the equal

protection of the laws. U.S. Const. amend. XIV, § 1. It requires that States treat

all similarly situated persons alike. City of Cleburne, Tex. v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985). Generally, to establish a claim cognizable under

the Equal Protection Clause, a prisoner must demonstrate that “(1) he is

similarly situated to other prisoners who received more favorable treatment[,]

and (2) the state engaged in invidious discrimination against him based on

race, religion, national origin, or some other constitutionally protected basis.”

Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006) (citing

Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001); Damiano v. Fla. Parole

and Prob. Comm’n, 785 F.2d 929, 932-33 (11th Cir. 1986)).

In the prisoner context, the law provides:

“The Equal Protection Clause of the Fourteenth

Amendment commands that no State shall ‘deny to

any person within its jurisdiction the equal protection

of the laws,’ which is essentially a direction that all

persons similarly situated should be treated alike.”

City of Cleburne v. Cleburne Living Center, 473 U.S.

432, 439, 105 S. Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)

(quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct.

2382, 2394, 72 L.Ed.2d 786 (1982)). “Prisoners are

protected under the Equal Protection Clause of the

Fourteenth Amendment from invidious discrimination

based on race.” Wolff v. McDonnell, 418 U.S. 539, 556,

94 S. Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). “To

establish an equal protection claim, a prisoner must

demonstrate that (1) he is similarly situated with

other prisoners who received more favorable

treatment; and (2) his discriminatory treatment was

based on some constitutionally protected interest such

as race.” Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir.

2001). In other words, a plaintiff must establish that a

discriminatory intent motivated some disparate

treatment. E & T Realty v. Strickland, 830 F.2d 1107,

1112 n. 5 (11th Cir.1987).

Jackson v. Fed. Bureau of Prisons, No. CV206-192, 2008 WL 577646, at *2

(S.D. Ga. Mar. 3, 2008) (not reported in F.Supp.2d).

As noted above, Defendants assert that Fisher has not claimed disparate

treatment between Fisher and a similarly situated individual in that he has

not alleged that a similarly situated inmate was treated differently. Here,

Fisher has offered only conclusory allegations of disparate treatment and

discriminatory intent, which are wholly insufficient to support an equal

protection claim. Indeed, he has not alleged the existence of an identifiable

similarly situated inmate who was treated more favorably. Martinez v.

Warden, 848 F. App’x 864, 868 (11th Cir. 2021) (per curiam) (“a prisoner must

demonstrate that he is similarly situated to other prisoners who received more

favorable treatment”). See Sweet, 467 F.3d at 1319 (same). And, in order to be

considered similarly situated, “comparators must be prima facie identical in

all relevant respects.” Martinez, 848 F. App’x at 868 (citation omitted). Fisher

has done neither.

Relying on conclusions alone to attempt to plead elements of an equal

protection claim does not suffice. In view of the absence of supporting facts,

Fisher has failed to state a plausible claim for a violation of his equal protection

rights. Based on his own allegations, Fisher failed to comply with a rule to sit

in his designated seat, moved to a different table, and then refused an officer’s

verbal order to return to his designated seat. Simply claiming everything the

corrections officers did in response to this situation was racially motivated is

insufficient to support a plausible claim for relief. He has not alleged that in a

similar situation, another inmate was treated more favorably. Therefore, he

has failed to state a plausible equal protection claim against the Defendants.

XII. Fourteenth Amendment – Due Process

The Court previously addressed Fisher’s claims of the excessive use of

force and cruel and unusual punishment, verbal abuse, denial of a meal, and

being endangered by being left restrained in a roomful of inmates. As such, the

remaining claim to be addressed is Fisher’s contention that all three

Defendants violated his right to due process of law by not stopping and

reporting the abuse, as required by FDOC policy. Complaint at 8. Relying on

Sandin v. Conner, 515 U.S. 472, 483-84 (1995), Defendants argue that Fisher

has failed to state a plausible claim of denial of due process of law in that he

has not alleged an atypical and significant hardship in relation to the ordinary

incidents of prison life. Motion at 29. They contend that the use of handcuffs is

not an atypical and significant hardship. Id. In response, Fisher argues that

he was punished with the use of physical restraints, without due process.

Response at 6-7.

Here, Fisher alleges he was restrained in handcuffs during the course of

a meal after he did not sit in his designated seat, moved to a different table,

and did not comply with an order to sit down in his designated seat. Under

these circumstances, his placement in restraints is “not sufficient to trigger

constitutional due process protection.” Adamson v. McNeil, No.

3:08cv231/RV/EMT, 2008 WL 5231869, at *2 (N.D. Fla. Dec. 12, 2008) (report

and recommendation adopted by the court) (not reported in F.Supp.2d) (finding

placement in disciplinary confinement for thirty days was not sufficient to

trigger due process protection); Shaarbay v. Palm Beach Cnty. Jail, 350 F.

App’x 359, 362 (11th Cir. 2009) (being handcuffed when outside of cell not

significant departure from general prison conditions). Nor did the use of hand

restraints trigger constitutional due process protection or the need to intervene

or report.

Fisher simply alleges no facts supporting even an inference that he was

subjected to conditions so severe that they imposed upon him a significant

hardship in comparison to the ordinary incidents of prison life. See Sandin, 515

U.S. at 484. As such, he fails to state a claim for deprivation of due process.

XIII. Conclusion

Upon review of the record and the arguments of the parties, the Court

finds that Fisher exhausted his administrative remedies before initiating this

action. Nevertheless, his Complaint is due to be dismissed because he has

failed to plead sufficient facts to state any plausible claim to relief.9

Accordingly, it is now

ORDERED:

1. Defendants Folsom, King, and Rhoden’s Motion to Dismiss

Plaintiff’s Complaint (Doc. 16) is GRANTED to the extent provided in the

Order.

2. Plaintiff Lester Eugene Fisher’s Complaint (Doc. 1) is dismissed

without prejudice.

9 Because Fisher’s Complaint is due to be dismissed based on his failure to

state any plausible claim, the Court need not address Defendants’ arguments

regarding qualified immunity or Fisher’s failure to state a claim for damages.

3. The Clerk shall enter judgment dismissing this case without

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

DONE AND ORDERED at Jacksonville, Florida, this 28rd day of

August, 2028.

MARCIA MORALES HOWARD

United States District Judge

sa 8/9

Lester Eugene Fisher

Counsel of Record

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