Peek v. Dixon

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ROBERT EDWARD PEEK,

Plaintiff,

v. Case No. 3:23-cv-1155-MMH-LLL

RICKY DIXON,

Defendant.

_________________________________

ORDER

Plaintiff Robert Edward Peek, an inmate of the Florida penal system,

initiated this action on September 25, 2023, by filing a pro se Complaint for

Violation of Civil Rights (Complaint; Doc. 1) under 42 U.S.C. § 1983. In the

Complaint, Peek names Ricky Dixon as the only Defendant. Complaint at 2.

He alleges that another inmate beat him with a tray on April 19, 2023. Id. at

5. According to Peek, “nobody else was involved [but] Sgt McCormick and

confinement orderly saw what occurred.” Id. Peek appears to raise an Eighth

Amendment claim against Dixon for failing to protect him from the attack. Id.

at 3. He requests monetary relief. Id. at 5.

The Prison Litigation Reform Act (PLRA) requires the Court to dismiss

this case at any time if the Court determines that the action is frivolous,

malicious, fails to state a claim upon which relief can be granted or seeks

monetary relief against a defendant who is immune from such relief.1 See 28

U.S.C. §§ 1915(e)(2)(B); 1915A. “A claim is frivolous if it is without arguable

merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)

(citing Battle v. Cent. State Hosp., 898 F.2d 126, 129 (11th Cir. 1990)). A

complaint filed in forma pauperis which fails to state a claim under Federal

Rule of Civil Procedure 12(b)(6) is not automatically frivolous. Neitzke v.

Williams, 490 U.S. 319, 328 (1989). Section 1915(e)(2)(B)(i) dismissals should

only be ordered when the legal theories are “indisputably meritless,” id. at 327,

or when the claims rely on factual allegations which are “clearly baseless.”

Denton v. Hernandez, 504 U.S. 25, 32 (1992). “Frivolous claims include claims

‘describing fantastic or delusional scenarios, claims with which federal district

judges are all too familiar.’” Bilal, 251 F.3d at 1349 (quoting Neitzke, 490 U.S.

at 328). Additionally, a claim may be dismissed as frivolous when it appears

that a plaintiff has little or no chance of success. Id. As to whether a complaint

“fails to state a claim on which relief may be granted,” the language of the

PLRA mirrors the language of Rule 12(b)(6), Federal Rules of Civil Procedure,

and therefore courts apply the same standard in both contexts.2 Mitchell v.

1 Peek requests to proceed as a pauper. See Motion (Doc. 2).

2 “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).

2

Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); see also Alba v. Montford, 517

F.3d 1249, 1252 (11th Cir. 2008).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1)

the defendant deprived him of a right secured under the United States

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

state law. Salvato v. Miley, 790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v.

Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam); Richardson v.

Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam). Moreover, under

Eleventh Circuit precedent, to prevail in a § 1983 action, a plaintiff must show

“an affirmative causal connection between the official’s acts or omissions and

the alleged constitutional deprivation.” Zatler v. Wainwright, 802 F.2d 397,

401 (11th Cir. 1986) (citation omitted); Porter v. White, 483 F.3d 1294, 1306

n.10 (11th Cir. 2007).

Under the Federal Rules of Civil Procedure, a complaint need only

contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. (8)(a)(2). 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 still must meet some minimal

pleading requirements. Jackson v. BellSouth Telecomms., 372 F.3d 1250,

1262-63 (11th Cir. 2004). Indeed, while “[s]pecific facts are not necessary[,]”

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

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and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93

(2007) (per curiam) (quoting Bell Atl. 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 plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While not required to

include detailed factual allegations, a complaint must allege “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

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” (original alteration

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. In the absence of well-pled facts suggesting a

federal constitutional deprivation or violation of a federal right, a plaintiff

cannot sustain a cause of action against the defendant.

4

In assessing the Complaint, the Court must read Peek’s pro se

allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519 (1972). 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 the court a 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, 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted),

overruled in part on other grounds as recognized in Randall, 610 F.3d at 709)).

Peek’s Complaint fails to state a plausible § 1983 claim against Dixon.

The Court initially notes that Dixon is not subject to a suit for damages under

§ 1983 where Peek sues him in his official capacity only. See Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 71 (1989) (holding a suit against an official sued

in his official capacity is essentially a suit against the State, which is not a

“person[] under § 1983”); Gardner v. Riska, 444 F. App’x 353, 355 (11th Cir.

2011) (“As the DOC is a state agency, and thus not a person within the meaning

of § 1983, [Plaintiff’s] § 1983 claim for damages against the DOC is frivolous.”).

Moreover, it appears Peek sues Dixon because of his supervisory role as

Secretary of the Florida Department of Corrections. Complaint at 2. The

Eleventh Circuit has held that “[i]t is well established in this Circuit that

5

supervisory officials are not liable under § 1983 for the unconstitutional acts

of their subordinates on the basis of respondeat superior or vicarious liability.”

Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003), abrogated in part on

other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). To establish

individual liability for supervisory conduct, a plaintiff must show “that the

supervisor either directly participated in the unconstitutional conduct or that

a causal connection exists between the supervisor’s actions and the alleged

constitutional violation.” Keith v. DeKalb Cnty., 749 F.3d 1034, 1047-48 (11th

Cir. 2014).

Causation “may be established and supervisory

liability imposed where the supervisor’s improper

custom or policy results in deliberate indifference to

constitutional rights.” Id.[3] (alterations adopted)

(internal quotation marks omitted). “A plaintiff can

also show that the absence of a policy led to a violation

of constitutional rights.” Piazza,[4] 923 F.3d at 957.

“Either way, though, to prove that a policy or its

absence caused a constitutional harm, a plaintiff must

point to multiple incidents, or multiple reports of prior

misconduct by a particular employee.” Id. (citation

omitted). And allegations of a single incident of

unconstitutional conduct cannot state a claim for

supervisory liability, even when the conduct involves

several subordinates. Id. at 957-58.

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

3 Hartley v. Parnell, 193 F.3d 1263 (11th Cir. 1999).

4 Piazza v. Jefferson Cnty., 923 F.3d 947 (11th Cir. 2019).

6

Here, Peek has not alleged Dixon personally participated in the alleged

violation of his rights. He also sets forth no facts to suggest a causal connection

between Dixon’s actions and the incident, such as the existence of a custom or

policy that resulted in the alleged violation. Accordingly, Peek fails to state a

claim against Dixon.

Therefore, it is now

ORDERED:

1. This case is DISMISSED without prejudice.

2. The Clerk of Court shall enter judgment dismissing this case

without prejudice, terminate any pending motions, and close the case.

DONE AND ORDERED at Jacksonville, Florida, this 1st day of

November, 2023.

United States District Judge

Jax-9 11/1

Robert Edward Peek, #C647468