Johnson v. Grant

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ROBERT JOHNSON,

Plaintiff,

v. Case No: 2:23-cv-577-JES-KCD

JUSTIN GRANT, AUSTIN BROWN,

and STEPHEN MATHEWSON,

Defendants.

ORDER

This matter comes before the Court on Defendants’ Motion to

Dismiss Plaintiff’s Amended Complaint (Doc. #32) and Plaintiff’s

Response (Doc. #33).

I. Background

This is a civil rights case. Plaintiff Robert Johnson is a

prisoner of the Florida Department of Corrections (“FDOC”). He

sues three corrections officers under 42 U.S.C. § 1983 for

violating his constitutional rights. Defendants Justin Grant,

Austin Brown, and Stephen Mathewson seek dismissal of this action

under Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim. The Court recounts the factual background as pled in

Johnson’s Amended Complaint, which it must take as true to decide

whether the Amended Complaint states a plausible claim. See

Chandler v. Sec’y Fla. Dep’t of Transp., 695 F.3d 1194, 1198-99

(11th Cir. 2012).

On November 6, 2022, Defendant Austin Brown came to Johnson’s

cell to retrieve his lunch tray, and he said, “Inmate, let’s get

something straight, if you’re going to be housed in my dorm, then

you’re not going to be filing grievances against my coworkers

because if you want to take that route, I can make things really

hard for you.” (Doc. #30 at 6-7.) Johnson believes Brown was

referring to several administrative grievances he filed against

Brown’s coworkers alleging sexual harassment and other misconduct.

Brown then told Johnson, “since you don’t want to give us a show”—

which Johnson interpreted as posing nude and masturbating for gay

male prison staff— “I’m taking all of your clothing.” (Id. at 7.)

Brown then radioed for backup and ordered Johnson to submit

to hand restraints. Johnson refused and requested to speak to the

officer in charge, Lieutenant Bates. Bates arrived and ordered

Johnson to submit to hand restraints. Johnson complied, and the

officers confined Johnson to the shower next to his cell. Johnson

told Bates that Brown and another officer had been staring into

his cell and motioning for him to masturbate for them, and that

they were putting him on property restriction because he refused.

Bates was unmoved, and Johnson was put on property restriction for

72 hours.

Brown and two other officers removed all items from Johnson’s

cell—including the mattress, bedding, and toiletries—and escorted

him back to the cell wearing only a pair of boxers. It was cold

in Johnson’s cell because the window did not close, and the heater

was broken. Johnson asked Grant and other officers for a blanket

and other comfort items but they refused.

On November 7, 2022, Johnson noticed cake crumbs on his food

tray, but no cake. He accuses Defendants of taking the cake to

provoke him.

On November 8, 2022, Johnson received a disciplinary report

for misuse of state property. In it, Brown claims that on November

6, Johnson violated prison rules by hanging his sheet from the

back window of his cell and scattering his property on his bunk.

Johnson claims the allegations in the report are false. Later

that day, Johnson heard Grant and Mathewson discuss using pepper

spray on Johnson for filing sexual harassment complaints against

them.

Johnson’s 72-hour property restriction expired on November 9,

2022, but he did not receive his property until the next day.

Several items were missing, including toiletries, stationary,

batteries, and food. Defendants withheld state-issued clothing,

bedding, and hygiene items for five more days. On November 15,

2022, the warden and other high-ranking officials conducted a walk-

through inspection of Johnson’s dorm. The warden ordered the

return of Johnson’s state-issued property, and Johnson received it

later that day.

Johnson complained that sleeping without a mattress caused

pain in his neck, shoulders, back, and knees. He also complained

of a runny nose and numb feet from the cold. Johnson had a medical

appointment to address the complaints on November 16, 2022. A

nurse prescribed Ibuprofen, a pain relieving cream, and nasal spray

and ordered an x-ray. The x-ray did not reveal any damage.

On November 17, 2022, Grant and Mathewson came to Johnson’s

cell to escort him to a hearing on the disciplinary report written

by Brown. Johnson refused to attend the hearing, and the

disciplinary team found Johnson guilty of misuse of state property.

Johnson asserts claims of First Amendment retaliation and

Eighth Amendment cruel and unusual punishment against all

Defendants. He also asserts state law claims against all

Defendants: (1) civil conspiracy; (2) civil theft; (3) sexual

harassment; (4) pain and suffering; and (5) mental anguish. He

seeks compensatory, nominal, and punitive damages. Defendants

argue Johnson fails to state a claim and raise the defense of

qualified immunity.

II. Legal Standard

When considering a motion to dismiss under Rule 12(b)(6),

courts must accept all factual allegations in the complaint as

true and view them in a light most favorable to the plaintiff. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The preferential

standard of review, however, does not let all pleadings adorned

with facts survive to the next stage of litigation. The Supreme

Court has been clear on this point—a district court should dismiss

a claim when a party does not plead facts that make the claim

facially plausible. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). A claim is facially plausible when a court can draw

a reasonable inference, based on facts pled, that the opposing

party is liable for the alleged misconduct. See Iqbal, 556 U.S.

at 678. This plausibility standard requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (citing

Twombly, 550 U.S. at 557 (internal quotation marks omitted)). And

a plaintiff must allege more than labels and conclusions amounting

to a formulaic recitation of the elements of a cause of action.

Twombly, 550 U.S. at 555.

Johnson files his Amended Complaint under 42 U.S.C. § 1983.

To state a § 1983 claim, a plaintiff must allege that (1) the

defendant deprived him of a right secured under the Constitution

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

state law. Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011)

(citing Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir.

1998)). In addition, a plaintiff must allege and establish an

affirmative causal connection between the defendant’s conduct and

the constitutional deprivation. Marsh v. Butler Cnty., Ala., 268

F.3d 1014, 1059 (11th Cir. 2001).

Johnson is representing himself in this action. Courts hold

the pleadings of pro se litigants to a less stringent standard

than pleadings drafted by attorneys. Tannenbaum v. United States,

148 F.3d 1262, 1263 (11th Cir. 1998). But courts do not have a

duty to “re-write” a pro se litigant’s complaint to find a claim.

See Washington v. Dep’t of Children & Families, 256 F. App’x 326,

327 (11th Cir. 2007).

III. Analysis

A. Shotgun Pleading

Defendants argue Johnson’s Amended Complaint is an

impermissible shotgun pleading. The main problem with shotgun

pleadings is that they fail “to give the defendants adequate notice

of the claims against them and the grounds upon which each claim

rests.” Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d

1313, 1320 (11th Cir. 2015). At first glance, Johnson’s Amended

Complaint appears to be the most common type of shotgun pleading

identified in Weiland. In the “Legal Claims” section, the

complaint realleges and reincorporates all prior paragraphs.

However, the list of counts that follow state the specific factual

basis for each claim. Thus, the Amended Complaint gives Defendants

fair notice of the grounds upon which each of Johnson’s claims

rest. The Court will not dismiss it as a shotgun pleading.

B. Retaliation

“[T]he First Amendment prohibits officials from retaliating

against prisoners for exercising their right of free speech by

filing lawsuits or grievances.” Mpaka v. Jackson Memorial

Hospital, 827 F. App’x 1007, 1010 (11th Cir. 2020). To succeed on

a retaliation claim, a prisoner must prove three elements: “(1)

his speech was constitutionally protected; (2) he suffered adverse

action such that the official’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.” Id. (quoting

O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011)). “To

establish causation, the plaintiff must show that the defendant

was ‘subjectively motivated to discipline’ the plaintiff for

exercising his First Amendment rights.” Moton v. Cowart, 631 F.3d

1337, 1341 (11th Cir. 2011) (quoting Smith v. Mosley, 532 F.3d

1270, 1278 (11th Cir. 2008)).

Defendants concede the first element—prison grievances are

protected speech. Their challenges to the second and third

elements are conclusory, and they do not squarely address the

allegations Johnson points to in his retaliation count. The only

allegation they attack is Johnson’s claim that Grant and Mathewson

were staring and pointing at Johnson, which Johnson interpreted as

a conspiracy to retaliate. But that allegation is not part of

Johnson’s retaliation claim.

Johnson alleges Defendants put him on 72-hour property

restriction, refused to give him a blanket and toiletries during

the property restriction, refused to return state issued property

for an additional five days, and stole some of his personal

property, all in retaliation for administrative grievances Johnson

wrote against Defendants and other FDOC employees. Defendants

fail to address any of these claims in their argument. Instead,

they merely state that Johnson “fails to show any causation or

that Defendants conduct rises to more than de minimis or trivial

inconvenience.” (Doc. #32 at 12). But Johnson established

causation by stating that Brown admonished Johnson for filing

grievances during the encounter that led Brown to write an

allegedly false disciplinary report, and that report prompted the

property restriction and other allegedly retaliatory deprivations.

And the Court does not find the totality of those deprivations to

be de minimis. They could deter a prisoner of ordinary firmness

from filing grievances.

The Court will not dismiss the Johnson’s retaliation claim.

C. Cruel and Unusual Punishment

Johnson argues Defendants violated the Eighth Amendment’s

prohibition of cruel and unusual punishment by putting him on

property restriction—and thus depriving him of a mattress,

blanket, clothing, and other comfort items—in a cell with a broken

window and heater during a cold front.

“The Constitution does not mandate comfortable prisons, but

neither does it permit inhumane ones[.]” Farmer v. Brennan, 511

U.S. 825, 832 (1994) (cleaned up). The Eighth Amendment requires

prison officials to “provide humane conditions of confinement” and

“ensure that inmates receive adequate food, clothing, shelter, and

medical care, and must take reasonable measures to guarantee the

safety of the inmates.” Id. (internal quotation marks and citation

omitted).

A conditions-of-confinement claim has an objective component

and a subjective component. The objective component requires a

prisoner to “show that the challenged conditions were extreme and

presented an unreasonable risk of serious damages to his future

health or safety.” Swain v. Junior, 958 F.3d 1081, 1088 (11th

Cir. 2020) (internal quotation marks and citations omitted). The

subjective component requires a prisoner to show the defendant

acted with deliberate indifference, which is akin to subjective

recklessness as used in criminal law. To establish deliberate

indifference, a plaintiff “must show that the defendant was

actually, subjectively aware that his own misconduct caused a

substantial risk of serious harm to the plaintiff.” Wade v.

McDade, --- F.4th ---, 2024 WL 3354963, at *7 (11th Cir. July 10,

2024).

Johnson does not satisfy the objective component or the

subjective component. Discomfort—even severe discomfort—is not

enough. Chandler v. Crosby, 379 F.3d 1278, 1297 (11th Cir. 2004).

Johnson does not allege facts suggesting the temperature in his

cell or his lack of access to bedding and other comfort items posed

an unreasonable risk of serious damage to his health or safety.

See O’Connor v. Kelley, 644 F. App’x 928, 932 (11th Cir. 2016)

(finding no Eighth Amendment violation when an inmate alleged he

was uncomfortably cold while on strip-cell status but did not

allege details about the actual temperature of his cell or the

degree of cold he experienced). That conclusion is supported by

Johnson’s minor and temporary injuries—a runny noes, numb feet,

and pain in his neck, shoulders, back, and knees. Nor does he

plausibly allege that any defendant was subjectively aware that

his conduct created a substantial risk of serious harm to Johnson.

The Court will dismiss Johnson’s Eight Amendment claim.

D. Qualified Immunity

When government officials are performing discretionary

duties, they are entitled to qualified immunity unless the

plaintiff shows the officials “(1) committed a constitutional

violation; and (2) that this violation was ‘clearly established’

in law at the time of the alleged misconduct.” Edger v. McCabe,

84 F.4th 1230, 1235 (11th Cir. 2023). There is no question

Defendants were acting within their discretionary authority when

Johnson’s claims arose, so the burden shifts to him.

As explained above, the allegations in Johnson’s Amended

Complaint—accepted as true—establish that Defendants violated the

First Amendment, but not the Eighth Amendment. To overcome

qualified immunity on his First Amendment claim, Johnson must show

the violation was clearly established. Courts recognize three

ways to do so. A plaintiff may (1) identify a materially similar

case with facts similar enough to give the defendant notice, (2)

identify a broader, clearly established principle of law that

should control the novel facts of his case, or (3) show that the

defendant’s conduct so obviously violates the Constitution that

prior case law is unnecessary. Id.

Johnson cites three cases to show that disciplining prisoners

for filing grievances is a clearly established violation of the

First Amendment. Wildberger v. Bracknell, 869 F.2d 1467, 1468

(11th Cir. 1989) (“It seems clear that if appellant is able to

establish that his discipline was the result of his having filed

a grievance concerning the conditions of his imprisonment, he will

have raised a constitutional issue”); Bridges v. Russell, 757 F.2d

1155 (11th Cir. 1985) (reversing dismissal of a retaliation claim

when the plaintiff alleged he was transferred to a different prison

in retaliation of filing a grievance); Hall v. Sutton, 755 F.2d

786, 787 (11th Cir. 1985) (“There is no question that state

officials may not retaliate against a prison inmate for exercising

his legal right to access to the courts.”). These cases—Wildberger

in particular—indeed demonstrate a clearly established legal

principle that prison officials may not discipline inmates for

filing grievances. Defendants are not entitled to qualified

immunity on Johnson’s First Amendment claim.

E. State-Law Claims

Johnson asserts five counts under state law. Federal courts

may exercise supplemental jurisdiction over state-law claims only

in limited circumstances, such as “when the state claims arise out

of a common nucleus of operative fact with a substantial federal

claim.” Silas v. Sheriff of Broward Cnty., Fla., 55 F.4th 863,

865 (11th Cir. 2022) (internal quotation marks and citation

omitted). So before addressing the merits of each claim, the Court

must decide whether to exercise supplemental jurisdiction over it.

The controlling inquiry is whether the state-law claims arise out

of a common nucleus of operative fact with Johnson’s First

Amendment claim.

i. Civil Conspiracy

Johnson accuses Defendants of “meeting up at some time prior

to, during, and/or after putting him on 72 hour property

restriction, and reaching an agreement to put him on property

restriction, to prolong returning his state issued and personal

property, and to deny him comfort items, so as to basically torture

him.” (Doc. #30 at 17.) This claim arises out of the same facts

as his First Amendment claim, so the Court will exercise

supplemental jurisdiction over it.

However, Johnson fails to state a claim for civil conspiracy.

First, Florida does not recognize civil conspiracy as an

independent tort. United Techs. Corp v. Mazer, 556 F.3d 1260,

1281 (11th Cir. 2009) (“Under Florida law, a civil conspiracy must

have as its object the commission of an underlying tort.”).

Johnson identifies the object of the alleged conspiracy as torture,

which the Court interprets as a reference to his Eighth Amendment

claim. Because Johnson failed to state an Eighth Amendment claim,

his conspiracy claim also fails. See Turner v. Williams, 65 F.4th

564, 590 (11th Cir. 2023). Second, Johnson’s conspiracy claim is

based entirely on speculation. He alleges no facts to support his

suspicion that Defendants reached an agreement. So, the claim

would fail even if Johnson had stated an actionable wrong as the

object of the conspiracy.

ii. Civil Theft

Johnson accuses Defendants of “taking and destroying several

of his personal property items without just cause.” (Doc. #30 at

17.) This claim also arises from the same nucleus of operative

fact as the retaliation claim, so the Court will consider it.

“Under Florida law, a plaintiff stating a claim for civil

theft must allege the defendant (1) knowingly (2) obtained or used,

or endeavored to obtain or use, the plaintiff’s property with (3)

‘felonious intent’ (4) either temporarily or permanently to (a)

deprive the plaintiff of the right or benefit of the property, or

(b) appropriate the property to the defendant’s own use or the use

of another.” Omnipol A.S. v. Multinational Defense Servs., LLC,

32 F.4th 1298, 1307-08 (11th Cir. 2022). A defendant who “does

not personally receive property which is the subject of an alleged

conversion or civil theft cannot be held liable for such action.”

Gokalp v. Unsal, 284 So. 3d 1097, 1099 (Fla. 4th DCA 2019).

Johnson does not state a civil theft claim against any

defendant. According to the Amended Complaint, Brown and other

officers—not the other defendants—removed Johnson’s property from

his cell after imposing property restriction for an alleged rule

violation. An unnamed “property officer” returned some of

Johnson’s property a few days later, and Johnson told him some

items were missing. The officer said he would return with a

missing property form, but he never did. Accepting these

allegations as true, Johnson does not plausibly allege that any

defendant took his property with felonious intent. His assertion

that Brown, Grant, or Mathewson took or destroyed his property is

mere speculation. The Court will dismiss Johnson’s civil theft

claim.

iii. Sexual Harassment

Johnson accuses Defendants of “making improper and unprovoked

sexual advances and comments to him.” (Doc. #30 at 17-18.) This

claim is not based on a common nucleus of fact with the retaliation

claim, so the Court declines to exercise supplemental jurisdiction

over it.

iv. Pain and Suffering and Mental Anguish

Johnson’s claims for pain and suffering and mental anguish

are barred by 42 U.S.C. § 1997e(e), which states, “No Federal civil

action may be brought by a prisoner confined in a jail, prison, or

other correctional facility, for mental or emotional injury

suffered while in custody without a prior showing of physical

injury.” De minimis injuries are not sufficient to overcome §

1997e(e). Mitchell v. Brown v. Williamson Tobacco Corp., 294 F.3d

1309, 1312-13 (11th Cir. 2010). Johnson’s claims of physical

injury—a runny nose, numb feet, and pain in his neck, shoulders,

back, and knees—are de minimis. Johnson cannot recover damages

for temporary discomfort because “routine discomfort is part of

the penalty that criminal offenders pay for their offenses against

society.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal

quotation marks and citation omitted). The Court will dismiss

Johnson’s final two counts.

F. Punitive Damages

Defendants next argue the Prison Litigation Reform Act bars

punitive damages. Not so. While 18 U.S.C. § 3626(a) erects

guardrails on the prospective relief available to inmates

challenging prison conditions, it does not outright bar punitive

damages. “In the Eleventh Circuit, in some circumstances, punitive

damages may be awarded in a § 1983 action even without a showing

of actual loss by the plaintiff if the plaintiff’s constitutional

rights have been violated.” Harris v. Chapman, 97 F.3d 499, 506

(11th Cir. 1996) (cleaned up).

In Hoever v. Marks, the Eleventh Circuit overturned prior

precedent and held that 42 U.S.C. Ҥ 1997e(e) permits claims for

punitive damages without a physical injury requirement.” 993 F.3d

1353, 1364 (11th Cir. 2021). Like Johnson, Hoever sued corrections

officers for retaliating against him for filing grievances. A

jury awarded Hoever nominal damages of $1. The Eleventh Circuit

explained that the availability of punitive damages is an important

deterrent in such cases and held that Hoever was entitled to an

opportunity to obtain punitive damages. Id. Johnson is likewise

entitled to seek punitive damages if his retaliation claim is

successful.

Accordingly, it is hereby

ORDERED:

Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint

(Doc. #32) is GRANTED in part and DENIED in part.

1. Counts 2, 3, 4, 6, and 7 are dismissed for failure to state

a claim.

2. Count 5 is dismissed without prejudice for lack of subject-

matter jurisdiction.

3. Defendants must answer the Amended Complaint within 14 days

of this Opinion and Order.

DONE and ORDERED at Fort Myers, Florida, this 6th day of

August 2024,

bbok

JGHE E. STEELE

SHEIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-1

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