# Fisher v. Rhoden

> District Court, M.D. Florida · August 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10113744

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 23, 2023
- **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/10113744

## How later opinions describe it (automated extraction)

- explaining that defendants bear the burden of showing a failure to exhaust

## Opinion text

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

AT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113744. Public record. Not legal advice.