Hoever v. Whitehead

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CONRAAD L. HOEVER,

Plaintiff,

v. Case No. 3:23-cv-245-MMH-LLL

J. WHITEHEAD,

Defendant.

_________________________________

ORDER

I. Status

Plaintiff Conraad L. Hoever, a former detainee at the Baker County

Detention Center, initiated this action on March 6, 2023, by filing a pro se Civil

Rights Complaint (Doc. 1)1 under 42 U.S.C. § 1983. He names Deputy J.

Whitehead as the sole Defendant. Complaint at 1. In the Complaint, Hoever

contends Deputy Whitehead retaliated against him in violation of the First

Amendment. See generally Complaint. This matter is before the Court on

Deputy Whitehead’s Motion to Dismiss (Motion; Doc. 13). Hoever filed a

response in opposition to the Motion. See Response (Doc. 14). Thus, the Motion

is ripe for review.

1 For all pleadings and documents filed in this case, the Court cites to the

document and page numbers as assigned by the Court’s Electronic Case Filing

System.

II. Hoever’s Allegations2

Hoever alleges that on November 25, 2022, Deputy Whitehead was

exchanging dirty laundry for clean laundry when Hoever complained about

holes in the clean laundry items. Complaint at 2. He asked Deputy Whitehead

for another pair of socks, but Deputy Whitehead refused. Id. Hoever “told

[Deputy Whitehead] that he were [sic] to exchange them or face a grievance of

passing out bad and defective clothing.” Id. According to Hoever, Deputy

Whitehead responded:

I told you that I’m not going to exchange it. You have

nothing to complain about. But since you said that you

want to complain and file a grievance, I have the right

remedy to stop you. You want to watch T.V. right? And

when you reconsider, then you can watch T.V. again.

Id. at 3. Hoever alleges Deputy Whitehead then turned off the television “in

the middle of the World Cup soccer tournament.” Id. He filed a grievance about

the incident that same day. Id.

Hoever asserts that Deputy Whitehead conducted “the 2:00 pm count”

the next day and announced to the dorm:

There are one or two of you in here who is [sic] messing

it up for everyone in this dorm. Therefore, I want

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 Hoever,

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

v. Carnival Corp., 50 F.4th 1088, 1093 (11th Cir. 2022). As such, the facts recited here

are drawn from the Complaint, and may well differ from those that ultimately can be

proved.

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everyone of you to sit up for the 2 O’clock count until

those who are causing this stop what they’re doing and

cooperate with what I’m doing.

Id. According to Hoever, when Deputy Whitehead arrived at Hoever’s room,

his roommate asked if Deputy Whitehead could turn on the television so they

could watch the World Cup. Id. Deputy Whitehead allegedly responded:

You see, this is one of the discretion thing. [sic] I can

let you watch it if I want, but because some of you want

to write and complain about the television, I’m not

going to do it. When you guys stop these, then I may

decide to work with you guys.

Id. at 3–4. Hoever asserts that before Deputy Whitehead left the dorm, his

roommate again asked Deputy Whitehead about the television, and Deputy

Whitehead responded, “Ask your bunky. If he wants to do what is right, then

it may be something to consider.” Id. at 4. Based on the above, Hoever raises a

First Amendment retaliation claim against Deputy Whitehead. 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,

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

BellSouth Telecomm., 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

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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, 132 F.3d 1359,

1369 (11th Cir. 1998), overruled in part on other grounds as recognized in

Randall, 610 F.3d at 709).

IV. Summary of the Arguments

In his Motion, Deputy Whitehead argues that Hoever’s claim against

him should be dismissed because: (1) Hoever fails to state a claim upon which

relief can be granted, and (2) Deputy Whitehead is entitled to qualified

immunity. See Motion at 5–9. Hoever responds that he states a claim for relief,

and Deputy Whitehead is not entitled to immunity because he violated a

clearly established constitutional right. See Response at 3–7.

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V. Analysis

Deputy Whitehead requests dismissal of the First Amendment

retaliation claim against him. See generally Motion. “The core of [a retaliation

claim brought pursuant to 42 U.S.C. § 1983] is that the prisoner is being

retaliated against for exercising his right to free speech.” O’Bryant v. Finch,

637 F.3d 1207, 1212 (11th Cir. 2011) (citation omitted). It is firmly established

that “an inmate is considered to be exercising his First Amendment right of

freedom of speech when he complains to the prison’s administrators about the

conditions of his confinement.” Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.

2008). An inmate may pursue a cause of action against a prison official who

retaliated against him for engaging in that protected speech. Id.

To establish a retaliation claim, a prisoner must

demonstrate “that the prison official’s actions were the

result of his having filed a grievance concerning the

conditions of his imprisonment.” Farrow v. West, 320

F.3d 1235, 1248 (11th Cir. 2003) (internal quotation

marks and citation omitted). [A plaintiff] can prevail

on a retaliation claim if “(1) his speech was

constitutionally protected; (2) [he] suffered adverse

action such that the administrator’s allegedly

retaliatory conduct would likely deter a person of

ordinary firmness from engaging in such speech; and

(3) there is a causal relationship between the

retaliatory action and the protected speech.” Smith v.

Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).

Williams v. Radford, 64 F.4th 1185, 1192 (11th Cir. 2023).

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Here, Deputy Whitehead argues that Hoever fails to sufficiently plead

the second prong of a retaliation claim. See Motion at 6–7. According to Deputy

Whitehead, “[t]he proposition that turning off a television in a detention

facility would likely deter a person of ordinary firmness from the exercise of

his First Amendment rights is meritless,” id. at 6, and the alleged action

amounts to no more than a de minimis inconvenience, id. at 7. In response,

Hoever contends Deputy Whitehead “seriously endangered Plaintiff’s life in

detention by professing that Plaintiff is the cause for [the other inmates] not

being able to watch television.” Response at 1.

Considering the well-pled allegations in the Complaint, the Court finds

that Hoever fails to establish the second element of a retaliation claim. First,

although the ordinary firmness test is objective, “how plaintiff acted might be

evidence of what a reasonable person would have done.” Bennett v. Hendrix,

423 F.3d 1247, 1255 (11th Cir. 2005) (quoting Garcia v. City of Trenton, 348

F.3d 726, 729 (8th Cir. 2003)). In this case, the conduct did not chill Hoever’s

speech because after Deputy Whitehead allegedly denied him television on

November 25, 2022, he submitted a grievance and appealed the denial of the

grievance. See Complaint at 2–3.

More importantly, a person of ordinary firmness would not be dissuaded

from exercising his First Amendment rights in the face of Deputy Whitehead’s

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alleged actions. While an adverse action “need not rise to the level of a separate

constitutional violation,” Thomas v. Evans, 880 F.2d 1235, 1242 (11th Cir.

1989), in adopting the objective test, the Eleventh Circuit recognized that

“government officials should not be liable when the plaintiff is unreasonably

weak-willed or suffers only a ‘de minimis inconvenience to [his] exercise of First

Amendment rights,’” Bennett, 423 F.3d at 1252 (quoting Constantine v.

Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005)).

Here, Hoever merely asserts that Deputy Whitehead denied him a recreational

privilege on two occasions. See Complaint at 2–4. He neither alleges that

Deputy Whitehead’s actions were part of a prolonged campaign of harassment,

see Bennett, 423 F.3d at 1254, nor that Deputy Whitehead threatened him

with bodily harm or denied him necessities.3 Without more, Deputy

Whitehead’s alleged actions are not sufficiently adverse to fall within the

3 In his Response, Hoever alleges “Deputy Whitehead made all attempts to

make the prison conditions and prison environment of the Plaintiff as dreadful and

uncomfortable as possible for the Plaintiff by instigating other prisoners against the

Plaintiff.” Response at 6. Hoever includes no such allegation in the Complaint, and

he may not amend his Complaint in a response to a motion to dismiss. See Fed. R.

Civ. P. 7(b); Huls v. Llabona, 437 F. App’x 830, 832 n.5 (11th Cir. 2011) (noting that

a plaintiff cannot raise new arguments in a response to a motion to dismiss and

instead must seek leave to amend his complaint). Regardless, the allegation by itself

is conclusory.

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purview of the First Amendment. As such, Hoever fails to state a retaliation

claim, and Deputy Whitehead’s Motion is due to be granted on this basis.*

Accordingly, it is now

ORDERED:

1. Defendant J. Whitehead’s Motion to Dismiss (Doc. 18) is

GRANTED.

2. Plaintiff Conraad L. Hoever’s Complaint (Doc. 1) is DISMISSED

without prejudice.

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 24th day of

June, 2024.

MARCIA MORALES HOWARD

United States District Judge

Jax-9 6/20

Conraad L. Hoever

Counsel of record

4 Because the claim against Deputy Whitehead is due to be dismissed on this

basis, the Court need not address his qualified immunity argument.