LOWRIE v. MCCOLLOUGH

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

NAAFIZ K. LOWRIE,

Plaintiff,

v. Case No. 5:24-cv-138-TKW-MJF

OFFICER MCCOLLOUGH,

Defendant.

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REPORT AND RECOMMENDATION

Naafiz Lowrie, a Florida prisoner proceeding pro se and in forma

pauperis, has filed a complaint under 42 U.S.C. § 1983. Doc. 1. The

undersigned recommends that this case be dismissed under 28 U.S.C. §§

1915(e)(2)(B)(ii) and 1915A(b), because Lowrie’s complaint fails to state

a claim on which relief can be granted.

I. BACKGROUND

A. Lowrie’s Compliant

Lowrie is an inmate of the Florida Department of Corrections. Doc.

1. Lowrie is suing Officer McCullough, a prison official at the Jackson

Correctional Institution. Id. Lowrie alleges that on June 12, 2024,

McCullough used excessive force when McCullough placed his left hand

on Lowrie’s neck and “squeez[ed] it hard” while Lowrie was handcuffed,

which caused Lowrie to “los[e] [his] footing.” Id. at 7.

The force occurred after McCullough cuffed Lowrie and stated,

“Watch what I’ma do to you boy.” Id. at 7. Lowrie “then snatch[ed] [his]

arm away from [McCullough] and got in front of [McCullough’s] face and

told him ‘Why you fucking with me.’” Id. Another officer (Sergeant

Jenkins) grabbed Lowrie, and that is when McCullough placed his hand

on Lowrie’s throat and squeezed. Jenkins told McCullough to stop, and

McCullough complied. Id. at 7. Lowrie is suing McCullough for nominal

and punitive damages. Id. at 11.

B. The Undersigned Ordered Lowrie to Replead

On September 26, 2024, the undersigned screened Lowrie’s

complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Doc. 14. The

undersigned outlined the Eighth-Amendment standard applicable to

excessive-force claims, and explained to Lowrie why his allegations failed

to satisfy that standard. Id. at 3-6. The undersigned ordered Lowrie to

replead or file a notice of voluntary dismissal by October 25, 2024, and

warned Lowrie that failure to comply with the order likely would result

in this case being dismissed for failure to state a claim, failure to

prosecute and failure to comply with a court order. Id. at 9. To date,

Lowrie has not complied with the September 26 order, and has not

responded to the 14-day show cause order entered on November 13, 2024.

Doc. 17.

II. RELEVANT LEGAL STANDARDS

A. Screening Standard Under 28 U.S.C. §§ 1915(e)(2) and 1915A

Because Lowrie is a prisoner and is proceeding in forma pauperis,

the District Court is required to review his complaint, identify cognizable

claims and dismiss the complaint, or any portion thereof, if the complaint

“(1) is frivolous, malicious, or fails to state a claim upon which relief may

be granted; or (2) seeks monetary relief from a defendant who is immune

from such relief.” 28 U.S.C. § 1915A(a)-(b); see also 28 U.S.C. §

1915(e)(2)(B) (comparable screening provision of in forma pauperis

statute).

To prevent dismissal for failure to state a claim, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));

see also Fed. R. Civ. P. 12(b)(6). “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.” Iqbal, 556 U.S. at 678. The mere possibility that the defendant

acted unlawfully is insufficient. Iqbal, 556 U.S. at 678. The complaint

must include “[f]actual allegations . . . [sufficient] to raise a right to relief

above the speculative level,” that is, “across the line from conceivable to

plausible.” Twombly, 550 U.S. at 555, 570.

In reviewing a complaint, the court accepts all well-pleaded factual

allegations in the complaint as true and evaluates all reasonable

inferences derived from those facts in the light most favorable to the

plaintiff. See Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir.

1994). Mere “labels and conclusions”, however, are not accepted as true.

Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. Similarly, a pleading

that offers “a formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555.

B. Eighth-Amendment Standard

“A section 1983 claim is conditioned on two essential elements:

first, the conduct complained of must have been committed by a person

acting under color of state law; second, this conduct must have deprived

the plaintiff of rights, privileges, or immunities secured by the

Constitution or the laws of the United States.” Whitehorn v. Harrelson,

758 F.2d 1416, 1419 (11th Cir. 1985) (citing 42 U.S.C. § 1983).

Under the Eighth Amendment, “[f]orce that is ‘applied in a good-

faith effort to maintain or restore discipline’ is acceptable, while force

that is inflicted ‘maliciously and sadistically to cause harm’ is

prohibited.” Williams v. Radford, 64 F.4th 1185, 1196 (11th Cir. 2023)

(citing Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)). “[U[nreasonable or

unnecessary force does not necessarily constitute excessive force for

purposes of the Eighth Amendment.” Williams, 64 F.4th at 1196

(emphasis added) (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)).

A prisoner asserting an Eighth-Amendment excessive-force claim

must prove two elements—one subjective and the other objective.

Sconiers v. Lockhart, 946 F.3d 1256, 1265 (11th Cir. 2020). The prisoner

must establish that the prison official “acted with a sufficiently culpable

state of mind” and that the official’s conduct was “objectively harmful

enough to establish a constitutional violation.” Hudson v. McMillian, 503

U.S. 1, 8 (1992).

Courts use primarily five factors to evaluate the subjective element:

“[1] the need for application of force, [2] the relationship between that

need and the amount of force used, [3] the threat ‘reasonably perceived

by the responsible officials,’ . . . [4] ‘any efforts made to temper the

severity of a forceful response,’” and “[5] [t]he absence of serious injury.”

Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at 321). This evaluation

“give[s] a wide range of deference to prison officials acting to preserve

discipline and security, including when considering decisions made at the

scene of a disturbance.” Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th

Cir. 2009) (quotation marks omitted).

Under the objective element, the use of force must be “harmful

enough” or “sufficiently serious.” DeJesus v. Lewis, 14 F.4th 1182, 1195

(11th Cir. 2021). That is because the Eighth Amendment does not

preclude de minimis uses of force. Id. at 1195. “Not every malevolent

touch by a prison guard gives rise to a federal cause of action.” Wilkins,

559 U.S. at 37; see also Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir.

2000) (“[A] minimal amount of force and injury . . . will not defeat an

officer’s qualified immunity.”).

III. DISCUSSION

Lowrie’s allegations fail to state a claim for a violation of the Eighth

Amendment. Viewed objectively, the force McCullough employed was de

minimis. Wilkins, 559 U.S. at 37. Lowrie’s allegations also fail to raise a

reasonable inference that McCullough’s force—gauged under the

Hudson/Whitley factors—was applied “maliciously and sadistically for

the very purpose of causing harm,” as opposed to “in a good-faith effort to

maintain or restore discipline.” Wilkins, 559 U.S. at 37; Hudson, 503 U.S.

7-8, Whitley, 475 U.S. at 320-21.

IV. CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that the District Court:

1. DISMISS this case under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

1915A(b)(1), for failure to state a claim upon which relief can be granted.

2. DIRECT the clerk of court to enter judgment accordingly and

close this case file.

At Panama City, Florida, this 10th day of December, 2024.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

The District Court referred this case to the

undersigned to make recommendations regarding

dispositive matters. See 28 U.S.C. § 636(b)(1)(B), (C);

Fed. R. Civ. P. 72(b). Objections to these proposed

findings and recommendations must be filed within

fourteen days of the date of the report and

recommendation. Any different deadline that may

appear on the electronic docket is for the court’s

internal use only. A party must serve a copy of any

objections on all other parties. A party who fails to

object to this report and recommendation waives the

right to challenge on appeal the district court’s order

based on unobjected-to factual and legal conclusions.

See 11th Cir. R. 3-1; 28 U.S.C. § 636.