Stewart v. Doe

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ARSENIO DECORD STEWART,

Plaintiff,

v. Case No. 3:24-cv-1143-TJC-SJH

JOHN DOE, et al.,

Defendants.

________________________________

ORDER

Plaintiff, an inmate of the Florida penal system, initiated this action by

filing a Civil Rights Complaint (Doc. 1) under 42 U.S.C. § 1983. Plaintiff is

proceeding on an Amended Complaint (Doc. 3); moves to proceed in forma

pauperis (Doc. 2); and moves for a Court order directing Defendants to “stay

away from” Plaintiff (Doc. 4).

In the Amended Complaint, Plaintiff names three Defendants: John Doe;

Sergeant C. Pitman; and Sergeant Hardin.1 Doc. 3 at 2-3. According to Plaintiff,

on October 21, 2024, while housed at Florida State Prison, Plaintiff had covered

his cell window, so he could use the restroom in private. Doc. 3-1 at 1. During

that time, Defendant John Doe began banging on Plaintiff’s cell door and asked

1 The Clerk is directed to correct the docket to reflect the correct spelling for

Defendant “Hardin.”

Plaintiff to remove the covering from his cell window. Id. at 1-2. Plaintiff asserts

he advised Defendant Doe that he was using the bathroom, but Doe continued

to bang on the cell door. Id. at 2. Plaintiff alleges he then stood up while still

undressed, uncovered the window, and went back to his toilet to finish. Id.

According to Plaintiff, when he sat back down, Doe stood at the window and

watched Plaintiff, appearing to stand on his toes to get a view of Plaintiff’s

genitals. Id. Plaintiff contends that because of Doe’s behavior, Plaintiff

recovered the window, and Doe again banged on the cell door until he eventually

walked away. Id. Plaintiff alleges that a few hours later, he advised Defendant

Pitman that he would like to report Defendant Doe’s actions and make a PREA

complaint, but Pitman responded that he was not going to report Doe’s actions

“because there wasn’t any penetration.” Id.

According to Plaintiff, on November 2, 2024, Defendant Doe approached

Plaintiff’s cell again, made whistling and smooching noises, and blew Plaintiff

a kiss. Id. Plaintiff contends he threatened to sue Doe and Doe then left. Id. at

3. Plaintiff contends he then reported the incident to Defendant Hardin who

advised he would inform security about it, but no one investigated the event.

Id. Plaintiff alleges that Defendant Doe’s actions amounted to sexual

harassment and Defendants Pitman and Hardin failed to intervene or protect

him from that harassment. Id. at 1. He maintains that he suffered mental and

emotional distress; and as relief, he requests monetary damages. Doc. 3 at 5.

The Prison Litigation Reform Act requires the Court to dismiss a case at

any time if the Court determines that the action is frivolous, malicious, fails to

state a claim upon which relief can be granted, or seeks monetary relief against

a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). In

reviewing a pro se plaintiff’s pleadings, the Court must liberally construe the

plaintiff’s allegations. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

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

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1)

the defendant deprived him of a right secured under the United States

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

state law. Salvato v. Miley, 790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v.

Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);

Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam)

(citations omitted). Under Eleventh Circuit precedent, to prevail in a § 1983

action, a plaintiff must show “an affirmative causal connection between the

official’s acts or omissions and the alleged constitutional deprivation.” Zatler v.

Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (citation omitted); Porter v.

White, 483 F.3d 1294, 1306 n.10 (11th Cir. 2007).

Under the Federal Rules of Civil Procedure, a complaint need only

contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. (8)(a)(2). 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). Nevertheless, the plaintiff still must 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 Atl. 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 plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While not required to

include detailed factual allegations, a complaint must allege “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

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

678, 680. Absent well-pled facts suggesting a federal constitutional deprivation

or violation of a federal right, a plaintiff cannot sustain a cause of action against

the defendant.

Liberally read, Plaintiff’s Complaint fails to state a plausible § 1983 claim

for relief. “[S]evere or repetitive sexual abuse of a prisoner by a prison official

can violate the Eighth Amendment.” Sconiers v. Lockhart, 946 F.3d 1256, 1267

(11th Cir. 2020). But no binding precedent has established that a correctional

officer’s verbal threats and gestures of sexual harassment, without more, rise

to the level of a constitutional violation. Watkins v. Azael, No. 22-11648, 2023

WL 4422527, at *7 (11th Cir. July 10, 2023).2 Indeed, “verbal taunts . . .

[h]owever distressing” cannot establish a claim under the Eighth Amendment.

Edwards v. Gilbert, 867 F.2d 1271, 1273 n.1 (11th Cir. 1989). And a “prison

officers’ threats that were never carried out [are likewise] insufficient to state

a constitutional violation.” Hernandez v. Fla. Dep’t of Corr., 281 F. App’x 862,

866 (11th Cir. 2008). To that end, the Eleventh Circuit, in an unpublished

2 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

opinion, explained that “given the binding precedents concerning verbal

statements (in a single incident) without accompanying actions, [it] cannot say

that [verbal sexual harassment or accompanying gestures]” amounts to conduct

that violates the constitution. Watkins, 2023 WL 4422527, at *8 (finding sexual

taunts or gestures did not present exceptionally rare case that would give a

reasonable correctional officer fair notice of its illegality for purposes of

qualified immunity).

Here, Plaintiff does not allege that Defendant Doe sexually assaulted

him. Rather, his allegations involve Defendant Doe’s sexual taunts and

gestures. Defendant Doe’s actions, “though unacceptable and unrelated to any

legitimate governmental objective, [are] the type of [ ] harassment or taunting

that is not actionable” under the Eighth Amendment. See In re: Eric Watkins

Litigation, 829 F. App’x 428, 431 (11th Cir. 2020); see also Allen v. McDonough,

4:07-CV-469/RH/GRJ, 2011 WL 4102525, at *6 (N.D. Fla. Aug. 17, 2011)3

(explaining that “sexual comments and gestures to [the p]laintiff . . . do not rise

to the level of a constitutional violation under the Eighth Amendment”); Miller

v. Johnson, 2:20-cv-458, 2023 WL 5358606, at *4 (M.D. Ala. July 26, 2023)

3 The Court notes that although decisions of other district courts are not

binding, they may be cited as persuasive authority. See Stone v. First Union Corp.,

371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court would

not be bound to follow any other district court’s determination, the decision would have

significant persuasive effects.”).

(explaining that “sexual harassment devoid of any contact or touching does not

violate the Eighth Amendment”). Thus, Plaintiff has failed to state a plausible

Eighth Amendment sexual harassment claim against Defendant Doe.

To that end, since the Court finds that Defendant Doe’s actions, while

unacceptable, did not amount to a constitutional violation, Plaintiff’s claim that

Defendants Pitman and Hardin failed to intervene during Defendant Doe’s

alleged sexual harassment must also fail. See, e.g., Mobley v. Palm Beach Cnty.

Sheriff Dep’t,783 F.3d 1347, 1357 (11th Cir. 2015) (“[A] police officer has no duty

to intervene in another officer’s use of force when that use of force is not

excessive.”); Kinght v. Gray, No. 3:19-cv-779-BJD-JBT, 2024 WL 1174708, at

*22 (M.D. Fla. Mar. 19, 2024) (determining that because the plaintiff failed to

establish a claim of sexual abuse, his claim that another officer failed to

intervene in the abuse also failed).

Accordingly, it is

ORDERED AND ADJUDGED:

1. This case is DISMISSED without prejudice.

2. The Clerk shall enter judgment dismissing this case without

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 4th day of March,

2025.

& Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

Jax-7

C: Arsenio Decord Steward, #V31008