KAISER v. DIXON

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DAVID KAISER,

D.O.C. # 102094,

Plaintiff,

vs. Case No. 4:23-cv-225-WS-MAF

RICKY DIXON, et al.,

Defendants.

_____________________/

REPORT AND RECOMMENDATION

Plaintiff,1 an inmate at the Florida Department of Corrections (FDOC),

initiated this action by filing a pro se civil rights complaint under 42 U.S.C §

1983, alleging Defendants violated her Eighth and Fourteenth Amendment

rights for failing to diagnose and treat her gender dysphoria. ECF No. 1. She

is proceeding on her third amended complaint. ECF No. 46.

Defendants Dixon, Martinez, Kline, Harrell, McLaughlin, and Cardinez

(“FDC Defendants”) filed a motion to dismiss. ECF No. 54. Plaintiff filed a

response. ECF No. 60. FDC Defendants filed a reply. ECF No. 65. Plaintiff

filed a sur reply. ECF No. 71. A seventh Defendant, Dr. Joshi, was dismissed

from the case with prejudice after a joint stipulation of voluntary dismissal

1 Plaintiff identifies as a female; thus, female pronouns are used throughout.

was filed and accepted. ECF Nos. 72-73. Because of that, any claims relating

to Dr. Joshi will not be discussed. FDC Defendants’ motion is ripe for review.2

I. Allegations of the Third Amended Complaint, ECF No. 463

Plaintiff is a transgender inmate at the Florida Department of

Corrections (“FDOC”). Though biologically male, she identifies as a female.

FDOC has a three-step process in place to diagnose and treat inmates with

gender dysphoria (“GD”), codified in FDOC procedure 403.012.4 Plaintiff

believes she has GD and availed herself of the process. During the first step,

she was “diagnosed” with GD at Liberty Correctional in August 2022.5

Pursuant to policy, she was then transferred to Wakulla Correctional for a

more intensive evaluation and assessment. In Plaintiff’s case, this was

performed in January 2023 by Dr. Joshi, a psychologist who contracts with

FDOC through Centurion. After the 90-day assessment, the completed

2 The instant case mirrors another pending before this Court. See DeMontalvo v. Dixon,

Case No. 4:23-cv-475-MW-MAF (N.D. Fla.) (report recommending dismissal filed October

17, 2024). Because the facts, issues, and arguments of the parties are extremely similar

in both cases, so too are the Court’s recommendations.

3 This account of the facts comes from the third amended complaint (“complaint”). See

ECF No. 46 at 7-15 (claims pertaining to FDC Defendants). The Court accepts the

complaint’s non-conclusory factual allegations as true at the motion to dismiss stage. See

Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992), cert. denied, 113

S. Ct. 1586 (1993). Any new or additional facts included in Plaintiff’s response or sur

reply, of which there are several, “cannot substitute for missing allegations in the

complaint.” Dorman v. Aronofsky, 36 F.4th 1306, 1317 (11th Cir. 2022).

4 Plaintiff cites this procedure number and “incorporate[s] [it] by reference.” ECF No. 46

at 7. FDC Defendants provide a copy in full as “Exhibit A” of their motion. ECF No. 54-1.

5 Plaintiff’s use of the term “diagnosed” is conclusory, discussed infra.

evaluation and recommendations are reviewed by the Gender Dysphoria

Review Team (“GDRT”)6 who enter a final disposition. After the assessment

and review, Plaintiff was denied entry into the GD program.

While not clearly stated, it is evident from the complaint that Dr. Joshi

found Plaintiff did not meet the GD diagnosis criteria and the GDRT accepted

her findings. This is because Plaintiff alleges that the second step of the

process “should be determining the severity of the GD” and not determining

“a second diagnosis.” ECF No. 46 at 8, 11. She alleges that in practice, step

two “has become an opportunity to do a second unwritten, undocumented

diagnosis where a heightened standard is applied that no inmate can pass

unless the individual psychologist chooses to let them pass.”7 Id. at 8.

Further, she alleges FDC Defendants “are engaged in an active conspiracy”

with “most if not all of the” FDOC psychologists…to deny inmates [entry] into

the GD program by holding them to a heightened standard” in order to limit

the number of people in the program. Id. at 15, 8. She claims FDC

Defendants were deliberately indifferent to her serious medical needs and

have conspired with the psychologists to violate her Eighth and Fourteenth

6 The GDRT is comprised of the FDC Defendants minus Secretary Dixon.

7 Plaintiff alleges the “heightened standard” she faced did not apply to inmates assessed

in 2018-2019, so she was treated differently than them. This is the basis of her equal

protection claim. ECF No. 46 at 14. The effective date of FDOC’s GD policy at issue was

November 13, 2019. ECF No. 54-1 at 1.

Amendment rights. Her Fourteenth Amendment claim is via the Equal

Protection clause.

Plaintiff sues each FDC Defendant in their individual and official

capacity. She seeks nominal damages, punitive damages, injunctive relief,

and cost of litigation (filing fee).

II. FDC Defendants’ Motion to Dismiss, ECF No. 54

As a threshold matter, Plaintiff concedes several of FDC Defendants’

arguments in her response. ECF No. 60. She “abandons” the official capacity

claims (agreeing FDC Defendants are entitled to Eleventh Amendment

immunity), request for injunctive relief, and request for punitive damages. Id.

at 1, 12. Those claims should be dismissed.

This leaves the Eighth Amendment, Equal Protection, and conspiracy

claims seeking nominal damages and cost of litigation against FDC

Defendants in their individual capacity. As to these claims, FDC Defendants

argue dismissal is warranted because Plaintiff fails to state a claim upon

which relief can be granted. See ECF Nos. 54, 65. FDC They also assert

qualified immunity. ECF No. 54 at 26-28.

III. Standard of Review – Motion to Dismiss

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a plaintiff

must allege enough facts in the complaint that show entitlement to relief is

plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “Asking for

plausible grounds…does not impose a probability requirement at the

pleading stage.” Id. at 556. Instead, a claim is plausible when the court can

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

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); See also Wilborn v.

Jones, 761 F. App’x 908, 910 (11th Cir. 2019).

At this stage, “all well-pleaded facts are accepted as true, and the

reasonable inferences therefrom are construed in the light most favorable to

the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir.

2006) (internal marks omitted.) Courts must disregard any conclusory

allegations or legal conclusions masquerading as fact, assume the

remaining facts are true—however doubtful—and determine if those facts

are sufficient to proceed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The pleading standard is flexible, and pro se complaints are held to

less stringent standards than those drafted by an attorney. Wright v.

Newsome, 795 F.2d 964, 967 (11th Cir. 1986). That said, “a complaint must

still contain either direct or inferential allegations respecting all material

elements of a cause of action.” Snow v. DirecTV, Inc., 450 F.3d 1314, 1320

(11th Cir. 2006). This is to prevent a “largely groundless claim” from

proceeding through discovery. Dura Pharmaceuticals, Inc. v. Broudo, 544

U.S. 336, 347 (2005).

“To state a cause of action under § 1983, a plaintiff must allege that (1)

there was an act or omission that deprived [plaintiff] of a constitutional right,

privilege, or immunity and (2) the act or omission was committed by a person

acting under color of state law.” Evans v. St. Lucie Cnty. Jail, 448 Fed. App’x

971, 973 (11th Cir. 2011) (citing Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582

(11th Cir.1995). There is no dispute that FDC Defendants were acting under

color of state law. The question then turns to whether there was an act or

omission that violated Plaintiff’s constitutional rights.

IV. Discussion

A. FDOC’s Gender Dysphoria Policy8

At the heart of Plaintiff’s claims is a disagreement and dissatisfaction

with portions of FDOC’s GD policy and Dr. Joshi’s (lack of a) diagnosis.

Plaintiff does not challenge the policy as written, but rather how she views it

is being implemented based on her interpretation of its language and how it

“should be” implemented. E.g., ECF No. 46 at 8. It is important to first view

8 FDOC Procedure Number 403.012. See ECF No. 54-1 at 1-7.

the policy and three-step process as written.9

The policy is titled “Identification and Management of Inmates

Diagnosed with Gender Dysphoria.” ECF No. 54-1 at 1. Its purpose is “to

provide guidelines for a medical appraisal, mental health screening,

evaluation and treatment of inmates meeting criteria for a diagnosis of [GD].”

Id. at 2. It defines several terms, including the GDRT,10 GD, and transgender.

The distinction between someone who is transgender and someone who has

GD is an important one. Transgender is a “general term used for [a person]

whose gender identity does not conform to the typical expectations

associated with the gender they were assigned at birth.”11 Id. GD, however,

is a mental health diagnosis that a transgender person may or may not have,

because it “refers to discomfort or distress experienced by an individual” due

to “a perceived discrepancy between [their] gender identity and [their] gender

assigned at birth.”12 Id. The policy specifies that, “a transgender inmate may

9 Plaintiff classifies the steps differently than the policy does. She considers step one “the

diagnosis,” step two the “assessment” and step three “disposition” or “review.” ECF No.

46 at 8, 11. Her labels are conclusory in light of the plain language of the policy.

10 The GDRT is “composed of the Chief of Medical Services, Chief of Mental Health

Services, Chief of Security Operations, Chief of Classification Management, and the

Prison Rape Elimination Act (PREA) Coordinator.” ECF No. 54-1 at 2.

11 For example, “a male-to-female transgender [person] refers to a biological male who

identifies as, or desires to be, a member of the female gender” and vice-versa. Id.

12 Plaintiff lists a summary of the DSM-5 criteria for a GD diagnosis, which includes a

showing of two or more of six listed symptoms for at least 6 months. ECF No. 46 at 12.

But note the DSM-5 states “the condition is associated with clinically significant distress

or impairment in social, occupational, or other important areas of functioning.” Criteria for

or may not qualify for a diagnosis of [GD] depending on her/his level of

distress or impairment.”13 Id. at 2-3 (emphasis added).

Step One - Screening and Identification

For inmates who believe they suffer from GD, step one of the process

is “screening and identification.” Id. at 3. It may result in a provisional

diagnosis.14 Id. at 3. The policy explicitly states “[a]ll initial diagnoses of

[GD] will be provisional until a comprehensive assessment can be

completed by a psychologist credentialed to diagnose and treat [GD] and the

results are reviewed by the GDRT.”15 Id. (emphasis added). The provisional

diagnosis is the responsibility of “mental health staff.” Id. It “must be a

consensus of the MDST16 or, if not available, a clinician credentialed to

diagnose and treat [GD].” Id. Step one takes place at the inmate’s assigned

institution. If they receive a provisional diagnosis, they are transferred to an

institution that can accommodate step two. Id. at 4.

Gender Dysphoria. Association AP. Diagnostic and statistical manual of mental disorders

(DSM-5®). American Psychiatric Pub. (emphasis added).

13 This is consistent with the DSM-5 criteria discussed supra at n.12.

14 While the policy does not define “provisional,” the ordinary meaning is “serving for the

time being; temporary.” Provisional. Merriam-Webster.com, https://www.merriam-

webster.com/dictionary/provisional. (Accessed Oct. 7, 2024).

15 Throughout, the policy uses distinguishing terminology like “known or potential [GD]

inmates,” as well as “provisional diagnosis” and “formal diagnosis.” Id. at 3, 4, 7.

16 The Multidisciplinary Services Team (MDST) “refers to staff representing different

professions and disciplines, which has the responsibility for ensuring access to necessary

assessment, treatment, continuity of care and services to inmates in accordance with

their identified mental health needs.” Id. at 2.

Step Two – Assessment and Evaluation

The second step is the “assessment” of GD which involves “completion

of the Psychological Evaluation for Gender Dysphoria17… by the evaluating

psychologist, who must be credentialed in the diagnosis and treatment of

[GD].” Id. At the first appointment, the psychologist explains “potential

treatment and permissible accommodations” as well as “the potential

consequences of a [GD] diagnosis” and obtains a mental health evaluation

or treatment consent form from the inmate. Id. The evaluation takes place

within the next 90 days.18 Id. Then, the completed psychological evaluation

form is sent to the GDRT for “review and final disposition.”19 Id.

Step Three - Treatment

If an inmate is formally diagnosed with GD, they are treated according

to their treatment plan at a designated GD institution. Id. at 4, 7. To receive

treatment, “inmates must remain at a mental health designation of S-2 or

17 FDOC Form DC4-643E.

18 Plaintiff alleges the assessment includes “weekly appointments with a counselor…a

psychological personality inventory test…an IQ test,” and the DC4-643E form. ECF No.

46 at 7.

19 Part of GDRT’s role is to “review recommendations for the treatment and management

of inmates diagnosed with [GD] to ensure individualization in the decision-making

process.” Id. at 3. Plaintiff argues that GDRT cannot “review a diagnosis of GD [and]

approve or disapprove.” ECF No. 46 at 11. But as program administrators, they have

inherent authority to accept or deny inmates entry into the GD program based on and

consistent with the inmate’s formal diagnosis. This is not a case where Plaintiff was

formally diagnosed with GD yet denied necessary treatment or entry into the program.

higher.”20 Id. at 5. Treatments range from individual and group therapy to

hormone therapy. Id. Some of the accommodations provided to those with a

formal diagnosis are alternative canteen items, opposite gender uniforms,

and female hair standards. Id. at 6.

While not addressing the policy in great detail, the Eleventh Circuit has

commented that it “properly attends to inmates' individualized medical

needs.” Keohane v. Fla. Dep't of Corr. Sec'y, 952 F.3d 1257, 1267 (11th Cir.

2020); see also Barnhill v. Inch, No. 4:18-CV-564-MW/MAF, 2020 WL

6049559, at *6 (N.D. Fla. Aug. 28, 2020), report and recommendation

adopted, No. 4:18CV564-MW/MAF, 2020 WL 6048744 (N.D. Fla. Oct. 13,

2020) (same). However, in both cases the dispute was over treatment, not

diagnosis.

B. Eighth Amendment Considerations

Plaintiff believes she has gender dysphoria. Though provisionally

diagnosed with GD by unidentified DOC staff21 during the step one screening

20 FDOC uses the following classifications for the mental health status of inmates: S-1 (no

significant mental or emotional impairment); S-2 (mild to moderate mental or emotional

impairment); S-3 (mild to moderate mental and/or behavioral instability). “Necessary care”

is provided at levels 2 and 3. See Fla. Admin. Code R. 33-601.800(3)(e), “Close

Management Referral Assessment, Form DC6-128.” This type of treatment consideration

was affirmed by the Eleventh Circuit with regard to inmates suffering from varying degrees

of Hepatitis C. See Hoffer v. Sec'y, Fla. Dep't of Corr., 973 F.3d 1263, 1273 (11th Cir.

2020).

21 Plaintiff does not say who performed the provisional diagnosis or what was involved,

only stating it was done by “a clinician credentialed to diagnose and treat [GD].” ECF No.

phase, after a three-month assessment Dr. Joshi concluded Plaintiff did not

meet the criteria for a GD diagnosis. As a result, the GDRT denied Plaintiff

entry into the GD program.

Plaintiff claims her issues are only with the assessment and review

stage. ECF No. 46 at 7 (“the second and third [steps of 403.012] are the

subject of this action”).22 That necessarily means she is not challenging the

stated policy in step one that all “initial diagnoses of [GD] will be provisional

until a comprehensive assessment can be completed by a psychologist

credentialed to diagnose and treat [GD] and the results are reviewed by

[GDRT].” ECF No. 54-1 at 3. Still, she argues that the initial diagnosis

constitutes a diagnosis under the “national standards,” so FDC Defendants

knew she had GD but “intentionally ignored” it and failed to treat her. ECF

No. 46 at 13; see also ECF No. 60 at 9-10.

A prison official’s deliberate indifference to an inmate’s serious medical

needs violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104

(1976). This also applies to prison doctors. Id. It is well-established that a

“difference in medical opinion between the prison’s medical staff and the

46 at 7. This simply echoes the policy requirements as to who can conduct the initial

screening. See ECF No. 54-1 at 4.

22 Though she classifies the assessment/evaluation and review as steps two and three,

both are encompassed in step two of the policy.

inmate as to…diagnosis or course of treatment”—or even claims of medical

malpractice—are insufficient to show a constitutional violation. Keohane v.

Fla. Dep’t of Corr., Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020), citing Harris

v. Thigpen, 941 F.2d 1495, 1510 (11th Cir. 1991); see also Estelle, 429 U.S.

at 106. Instead, a plaintiff must show “acts or omissions sufficiently harmful

to evidence deliberate indifference to serious medical needs.” Estelle, 429

U.S. at 106.

“A prisoner bringing a deliberate-indifference claim has a steep hill to

climb.” Keohane, 952 F.3d at 1266. This is because “the Constitution doesn't

require that the medical care provided to prisoners be perfect, the best

obtainable, or even very good.” Id., citing Harris, 941 F.2d at 1510 (internal

quotations omitted). “Medical treatment violates the Eighth Amendment only

when it is so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness.” Harris, 941 F.2d at

1505 (internal marks omitted).

Accordingly, a plaintiff must allege facts that plausibly show: (1) he/she

has (or had) a serious medical need; (2) the defendant was deliberately

indifferent to that need; and (3) a causal connection between the defendant’s

conduct and the Eighth Amendment violation. Mann v. Taser Int’l, Inc., 588

F.3d at 1306 (11th Cir. 2009).

The first prong is a showing of a serious medical need, which is “one

that has been diagnosed by a physician as mandating treatment or one that

is so obvious that even a lay person would easily recognize the necessity for

a doctor’s attention,” and “if left unattended, poses a substantial risk of

serious harm.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004)

(internal marks and citations omitted).

The second prong is a showing of deliberate indifference. A plaintiff

must allege facts which demonstrate the prison official (1) knew of the

substantial risk to the plaintiff’s health and (2) disregarded that risk by

conduct that was subjectively reckless. See Wade v. McDade, 106 F.4th

1251, 1262 (11th Cir. 2024). “Subjective recklessness” requires a showing

that the “defendant was actually…aware that his [or her] own conduct caused

a substantial risk of serious harm to the plaintiff.” Id. Finally, “even if the

defendant actually knew of a substantial risk to inmate health or safety, he

[or she] cannot be found liable under the [Eighth Amendment] if he [or she]

responded reasonably to the risk.” Id. (citing Farmer, 511 U.S. at 844-855).

The standard may be met in instances where a prisoner is subjected

to repeated examples of delayed, denied, or grossly incompetent or

inadequate medical care; when prison personnel fail to respond to a known

medical problem; or if prison doctors take the easier and less efficacious

route in treating an inmate. See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th

Cir. 1989) (but highlighting that neither medical malpractice nor a difference

in medical opinion or course of treatment constitute deliberate indifference).

“However, not every claim by a prisoner that he [or she] has not received

adequate medical treatment states a violation of the Eighth Amendment.”

McElligott v. Foley, 182 F. 3d 1248, 1254 (11th Cir. 1999).

Here, Plaintiff has failed to state a plausible Eighth Amendment claim.

While it is true that GD can be a serious medical need, the facts alleged by

Plaintiff do not confirm that she is suffering from it, let alone that it is severe

enough to mandate treatment or, if left untreated, would pose a substantial

risk of serious harm. At best, her complaint alleges a disagreement with Dr.

Joshi’s diagnosis. As discussed above, this type of diagnosis-dispute

argument is insufficient to state a constitutional claim.23

Even assuming Plaintiff's provisional diagnosis could be construed as

a serious medical need—something not present with the facts alleged—she

has not described anything close to deliberate indifference.24 FDC

23 See supra at 11-12.

24 This is not to say a plaintiff could never state a cognizable claim with only a provisional

diagnosis, nor would this dismissal prevent Plaintiff from filing a claim in the future should

the facts change or her symptoms worsen and FDOC officials fail to reasonably respond.

Further, nothing in the policy suggests that an inmate cannot reinitiate the process if his

or her needs change due to increasing levels of distress over a 6-month period (i.e. DSM-

5 criteria).

Defendants took reasonable action when Plaintiff brought her potential GD

to their attention. She was afforded a provisional evaluation with mental

health staff, then transferred to a more specialized facility where a three-

month evaluation occurred with staff including Defendant Joshi, a

psychologist credentialed to diagnose GD. Plaintiff’s allegations fail to show

the Defendants knew there was a substantial risk to her health because after

that formal evaluation, Dr. Joshi disagreed with the provisional diagnosis and

found Plaintiff did not meet the GD diagnosis criteria.25 FDC Defendants,

relying on that opinion, denied Plaintiff entry into the GD program. This is not

a case where Plaintiff alleges additional facts or symptoms that could show

she has a condition that “if left unattended, poses a substantial risk of serious

harm.”26 Brown, 387 F.3d at 1351. Thus, FDC Defendant’s reliance on Dr.

Joshi’s evaluation was also a reasonable response.

Because Plaintiff has failed to state a claim showing a serious medical

25 Plaintiff believes this shows a conspiracy to limit participants in the program. E.g., ECF

No. 46 at 8, 13. But the same series of events is commonplace to anyone who has been

through the process of diagnostic testing, where one medical professional believes

symptoms indicate a certain condition that warrants further study with a specialist, who

then investigates and may rule out or disagree with the initial opinion. This is especially

true in the field of mental health, where symptoms are often on a spectrum and not as

clear cut as, say, a broken bone.

26 While Plaintiff alleges she entered FDOC with a pre-existing diagnosis of “Gender

Identity Disorder” (a prior iteration of GD), she does not claim she entered with a treatment

plan that FDOC unreasonably refused to continue. ECF No. 46 at 7. In fact, in her

response she states “GD is not a mental illness, it is a naturally occurring part of human

gender diversity, yet I need a diagnosis? GD does not require treatment in the traditional

sense.” ECF No. 60 at 12.

need and deliberate indifference, her Eighth Amendment claims against all

FDC Defendants should be dismissed.

C. Equal Protection Claim

To establish a claim under the Equal Protection Clause of the

Fourteenth Amendment, a plaintiff must show that “(1) [he or she] is similarly

situated to other prisoners who received more favorable treatment; and (2)

the state engaged in invidious discrimination against [him or her] based on

race, religion, national origin, or some other constitutionally protected basis.”

Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1319 (11th Cir. 2006) (internal

citations omitted). Put simply, the clause is “essentially a direction that all

persons similarly situated should be treated alike” by governmental actors.

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

Here, Plaintiff claims that she was “similarly situated to every person

in the GD program when they were being evaluated…and is entitled to have

the same standards applied to her diagnosis, evaluation, and disposition as

was applied to theirs.” ECF No. 46 at 14. The problem with Plaintiff's

argument is that she did have the same policy applied to her as anyone else

in steps one and two of the process.27 Once she got to step three, she was

27 At least as it relates to those in the program after the current policy was implemented

in November 2019. To the extent Plaintiff compares herself to “participants who were

not similarly situated to those with a formal GD diagnosis because she did

not have one. Plaintiff makes a conclusory allegation that she was held to a

“heightened” standard, without explaining how the requirements were

anything other than FDC Defendants complying with their policy.28 Denying

people who do not qualify for a formal GD diagnosis entry into a program

designed for those with GD does not amount to a violation of Plaintiff's equal

protection rights.29

D. Remaining Claims

Plaintiff's remaining claims are conspiracy against FDC Defendants

and supervisory liability against Defendant Dixon. Additionally, FDC

Defendants raise the defense of qualified immunity in their motion to dismiss.

The throughline requirement in each of these areas is the presence of a

constitutional violation. See e.g., Grider v. City of Auburn, Ala., 618 F.3d

1240, 1260 (11th Cir. 2010) (conspiracy claim involves an agreement to

violate a plaintiff’s constitutional rights); Mann v. Taser Int'l, Inc., 588 F.3d at

evaluated in 2018-2019,” ECF No. 46 at 14, she cannot be similarly situated to them,

because the current policy did not exist.

28 Though Plaintiff claims “no inmate can pass” this “heightened standard,” she follows by

saying there is a “less than 10%” approval rate in 2022-2023. ECF No. 46 at 8, 9.

29 See E & T Realty v. Strickland, 830 F.2d 1107, 1112 (11th Cir. 1987) (no violation of

equal protection rights when the government grants “a permit to an applicant who has a

nonfrivolous claim of entitlement under the pertinent legislation and [denies] a permit to

another applicant who is clearly unentitled to it: the two…are not similarly situated”).

1305-1308 (11th Cir. 2009) (stating “the central tenet” of supervisory liability

“is a constitutional or statutory violation”); Smith ex rel. Smith v. Siegelman,

322 F.3d 1290, 1298 (11th Cir. 2003) (finding defendants were entitled to

qualified immunity where the plaintiff “failed to sufficiently allege a

constitutional violation,” without “need[ing] to proceed to the next step of

determining if a constitutional right was clearly established”).

Because Plaintiff has failed to state a claim concerning a constitutional

violation by any of the FDC Defendants, her remaining claims necessarily

fail and FDC Defendants are entitled to qualified immunity.

V. Recommendation

For the reasons discussed, it is respectfully RECOMMENDED that

FDC Defendants’ motion to dismiss, ECF No. 54, be GRANTED, and the

action DISMISSED for failure to state a claim on which relief may be granted.

The dismissal should be with prejudice because any amendment would be

futile given the admitted facts. The dismissal should also count as a “strike”

pursuant to 28 U.S.C § 1915(e)(2)(B)(ii).

IN CHAMBERS at Tallahassee, Florida on October 24, 2024.

s/ Martin A. Fitzpatrick

MARTIN A. FITZPATRICK

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Within fourteen (14) days after being served with a copy of this

Report and Recommendation, a party may serve and file specific

written objections to these proposed findings and recommendations.

Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon

all other parties. A party may respond to another party’s objections

within fourteen (14) days after being served with a copy thereof. Fed.

R. Civ. P. 72(b)(2). Any different deadline that may appear on the

electronic docket is for the Court’s internal use only and does not

control. If a party fails to object to the Magistrate Judge’s findings or

recommendations as to any particular claim or issue contained in this

Report and Recommendation, that party waives the right to challenge

on appeal the District Court’s order based on the unobjected-to factual

and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636(b)(1)(C).