# Johnson v. Grant

> District Court, M.D. Florida · August 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10642574

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 6, 2024
- **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/10642574

## How later opinions describe it (automated extraction)

- 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
- reversing dismissal of a retaliation claim when the plaintiff alleged he was transferred to a different prison in retaliation of filing a grievance

## Opinion text

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
Copies:
All parties

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642574. Public record. Not legal advice.