Hayes v. Starling

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-81921-RAR

ROBERT TYRONE HAYES,

Plaintiff,

v.

ALFONSO STARLING, et al.,

Defendants.

____________________________/

ORDER DISMISSING CASE

THIS CAUSE is before the Court upon a civil rights Complaint under 42 U.S.C. § 1983.

See Compl. [ECF No. 1]. Liberally construed, Plaintiff, a pro se pretrial detainee, claims

Defendant Thompson, a jail official, conducted an unreasonable search of Plaintiff’s person and

committed a sexual assault during that search. See id. at 4–5, 7–8. In addition, Plaintiff claims

Defendant Alfred, a supervising sergeant for the county jail, retaliated against Plaintiff by

purportedly threatening solitary confinement when Plaintiff reported the alleged sexual assault.

See id. at 5–6, 8. Plaintiff also asserts a due process claim against Defendant Starling, a supervising

major for the county jail, for failing to resolve Plaintiff’s grievances properly. See id. at 8–9.

To begin, “[a] pro se pleading is held to a less stringent standard than a pleading drafted

by an attorney and is liberally construed.” Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir.

2017); see also Torres v. Miami-Dade Cty., Fla., 734 F. App’x 688, 691 (11th Cir. 2018) (“Liberal

construction, in more concrete terms, means that federal courts must sometimes look beyond the

labels used in a pro se party’s complaint and focus on the content and substance of the

allegations.”).

Despite that leniency, the Court may not “serve as de facto counsel or [] rewrite an

otherwise deficient pleading in order to sustain an action.” Shuler v. Ingram & Assocs., 441 F.

App’x 712, 716 n.3 (11th Cir. 2011); Golfin v. Sec’y for Dep’t of Corr., 276 F. App’x 908, 908

(11th Cir. 2008) (“[W]e will not act as de facto counsel for a pro se litigant.”).

Here, Plaintiff is proceeding in forma pauperis. [ECF No. 5]. Accordingly, pursuant to

the Court’s statutory screening under 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court has

determined that this action should be dismissed for failure to state a claim.

First, the Court addresses Plaintiff’s Fourth Amendment unreasonable search claim. After

considering the four factors set forth in Powell, “the scope of the particular intrusion, the manner

in which it [was] conducted, the justification for initiating it, and the place in which it [was]

conducted[,]” the Court has determined that the allegations fail to state a claim. See Powell v.

Barrett, 541 F.3d 1298, 1305 (11th Cir. 2008) (en banc) (cleaned up); cf. Moton v. Walker, 545 F.

App’x 856, 859 (11th Cir. 2013) (affirming that qualified immunity was appropriate where a cavity

search, as part of a routine cell search, implicated the “strong considerations” in favor of needing

to maintain [institutional] security.”). Here, the allegations do not present a plausible inference

suggesting the over-the-clothes pat-down and the order for Plaintiff to expose his anus for visual

inspection as part of a routine cell search violated his Fourth Amendment rights.

Instead, Plaintiff’s claim presumes that the search could not be compelled without

“probable cause or written authorization.” See Compl. at 4, 7–8. However, the Eleventh Circuit

has clarified that the Constitution does not require “reasonable suspicion as a condition for

detention facility strip searches, especially those that involve visual body cavity inspections.” See

Powell, 541 F.3d at 1306. Further, the Court is unaware of any case in this circuit requiring written

authorization before jail officials may conduct a visual cavity inspection or an over-the-clothes

pat-down within a detainee’s cell.

Second, Plaintiff claims the search, as conducted, amounted to sexual harassment in

violation of the Eighth Amendment. See Compl. at 8. “[S]evere or repetitive sexual abuse of a

prisoner by a prison official can violate the Eighth Amendment.” Boxer X v. Harris, 437 F.3d

1107, 1111 (11th Cir. 2006), abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S.

34 (2010). Even though Plaintiff is a pretrial detainee, the Eleventh Circuit has treated similar

sexual assault claims by jail detainees subject to the Eighth Amendment. See Sconiers v. Lockhart,

946 F.3d 1256, 1265–67 (11th Cir. 2020). These claims must satisfy two components—one

subjective and one objective. See id.

With that in mind, although Plaintiff alleges Defendant Thompson “slowly fondle[d] his

penis over his pants” and then required Plaintiff to “expose his anus” during the search, Compl. at

4, Plaintiff cannot show Defendant Thompson had the requisite subjective state of mind. See

Sconiers, 946 F.3d at 1266 (stating, by negative implication, that “a permissible search” does not

show the sexual abuse was “sadistically and maliciously applied for the very purpose of causing

harm.”) (citation omitted). Plaintiff’s allegations also fail to satisfy the objective component. See

id. at 1266–67 (explaining the nature of the sexual abuse at issue must be so severe or repetitious

that it was applied sadistically and maliciously).

Third, after a liberal construction, Plaintiff claims Defendant Alfred retaliated against him

by “threatening” to place Plaintiff in solitary confinement for reporting Defendant Thompson’s

search as a sexual assault. See Compl. at 8. Defendant Alfred allegedly “requested to speak with

[Plaintiff]” and “questioned [Plaintiff] about his grievance” concerning the report that a sexual

assault transpired. Id. at 5. Plaintiff concedes, however, that he comported himself “adversely to

Alfred’s questioning,” which prompted Defendant Alfred to state, “you can be moved somewhere

less comfortable.” Id. at 5.

Even accepting that protected speech was at stake here, a person of ordinary firmness

would not have been deterred from exercising their free speech based on Defendant Alfred’s

remarks. See Thomas v. Lawrence, 421 F. App’x 926, 928 (11th Cir. 2011) (“[T]he adverse action

that the inmate suffers as a result of the prison official’s alleged retaliation must be such that it

would likely deter a person of ordinary firmness from engaging in such speech.”) (quoting Smith

v. Mosley, 532 F.3d 1270, 1276 (11th Cir.2008)). In addition, Plaintiff’s allegations do not

establish a causal connection. See Smith, 532 F.3d at 1278 (“The causal connection inquiry asks

whether the defendants were subjectively motivated to discipline because Smith complained of

some of the conditions of his confinement.”) (emphasis added). To the contrary, Plaintiff’s

allegations indicate that Defendant Alfred’s warning—implying solitary confinement could be

imposed—related to his conduct of “adversely” responding to questioning. See Compl. at 5.

Finally, Plaintiff claims Defendant Starling violated the Fourteenth Amendment by failing

to make “a legitimate effort” in addressing his “complaint.” See Compl. at 8. But the instant

Complaint has no allegations detailing what “complaint” Defendant Starling failed to review. See

generally id. That factual deficiency alone is enough to find Plaintiff has failed to state a claim.

See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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. . . [T]he tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

To the extent Plaintiff meant to claim that Defendant Starling should have reviewed his

complaint regarding the previously mentioned search, see Compl. at 8, Plaintiffs allegations

concede that Defendant Starling did just that. See id. (“Defendant Starling’s invalidation of

Plaintiff Hayes’ complaint . . . violated the Plaintiffs rights under the Fourteenth Amendment[.]”).

And, to the extent Plaintiff meant to claim that Defendant Starling violated Plaintiffs due process

rights for not concluding the grievance process in Plaintiff's favor, such an assertion also fails to

state a claim. See Bingham v. Thomas, 654 F.3d 1171, 1177-78 (11th Cir. 2011) (“[A] prison

grievance procedure does not provide an inmate with a constitutionally protected interest, [so] we

likewise reject Bingham’s argument that the district court abused its discretion in dismissing

Bingham’s claim that the prison’s grievance procedures were inadequate as frivolous[.]”); see also

Stallworth v. Wilkins, 802 F. App’x 435, 439-40 (1 1th Cir. 2020) (same); Thomas v. Poveda, 518

F. App’x 614, 618 (11th Cir. 2013) (same).

Based on the foregoing, it is hereby

ORDERED AND ADJUDGED that this action is DISMISSED without prejudice and

any pending motions are DENIED as moot. Notwithstanding the foregoing, Plaintiff may, if he

so chooses, file an amended complaint by October 30, 2020. See Troville v. Venz, 303 F.3d 1256,

1260 n.5 (11th Cir. 2002) (finding that § 1915(e)(2)(B)Gi) does not allow district courts to dismiss

an in forma pauperis complaint without allowing leave to amend when required under Fed. R. Civ.

P. 15). Failure to mail an amended complaint by October 30, 2020 shall result in the entry of final

judgment and this case shall be closed for failure to state a claim.

DONE AND ORDERED in Fort Lauderdale, Florida, this 19th day of October, 2020.

UNITED STATES DISTRICT JUDGE

Page 5 of 6

cc: Robert Tyrone Hayes

0510993

Palm Beach County Jail

Inmate Mail/Parcels

Post Office Box 24716

West Palm Beach, FL 33416

PRO SE