WATSON

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RAKIM JAMAL WATSON,

Plaintiff,

v. Case No.: 3:25cv2188/LC/ZCB

JEREMY P. KERPSACK, et al.,

Defendants.

/

REPORT AND RECOMMENDATION

Plaintiff is a prisoner proceeding pro se and in forma pauperis in

this civil rights action under 42 U.S.C. § 1983. After performing its

screening duties under 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a)-(b), the

Court identified several deficiencies in Plaintiff’s amended complaint

(Doc. 5) and ordered Plaintiff to correct those deficiencies by filing a

second amended complaint. (Doc. 8). Plaintiff has now filed a second

amended complaint. (Doc. 9).

The Court is required to screen Plaintiff’s second amended

complaint to determine if it is frivolous or malicious, fails to state a claim

on which relief may be granted, or seeks monetary relief from immune

defendants. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a)-(b). Because Plaintiff’s

second amended complaint fails to state any plausible claims for relief

and seeks monetary relief from immune Defendants, this matter should

be dismissed.

I. Plaintiff’s Allegations1

Plaintiff’s second amended complaint lists eight Defendants who

are employees and inmates of the Florida Department of Corrections

(FDOC): (1) Sergeant Jeremy P. Kerpsack; (2) inmate John Doe #1; (3)

inmate Jonathan Anderson; (4) Officer John Doe #2; (5) Officer John Doe

#3; (6) Officer Thomas E. Golden; (7) Lieutenant Lisa M. Brooks; and (8)

Assistant Warden Susan Dove. (Doc. 9 at 2-4). Plaintiff sues Defendants

Kerpsack and Dove in their individual and official capacities, while the

remaining Defendants are sued in only their individual capacities. (Id.).

Plaintiff’s allegations stem from his incarceration at Okaloosa

Correctional Institution. Plaintiff states that Defendant Kerpsack

provided false information in two disciplinary reports against Plaintiff.

(Doc. 9 at 5). The first disciplinary report was written in December of

2021 and accused Plaintiff of theft over $150. (Id.). Plaintiff asserts that

Defendant Kerpsack “falsely alleged” that Plaintiff stole another

1 Plaintiff’s allegations are assumed true at this stage. DeVillier v. Texas,

601 U.S. 285, 288 n.1 (2024).

inmate’s tablet. (Id.). An investigation followed, and the inmate who

owned the tablet allegedly stated that Plaintiff did not steal the tablet.

(Id.). Plaintiff claims the tablet was never reported stolen and that the

other inmate left the tablet in Plaintiff’s cell. (Id.). Plaintiff states that

Defendant Kerpsack “purposely wrote this false report for retaliatory

purposes.” (Id.).

The second disciplinary report involved extortion of inmate

Defendant Jonathan Anderson. (Id.). Defendant Anderson was placed in

administrative confinement after he alleged an inmate was extorting him

for his food. (Id.). Defendant Kerpsack investigated the matter. (Id.).

On May 16, 2024, it was discovered that “a phone call was made on

Anderson’s phone record that didn’t connect.” (Id.). On May 4, 2024,

Plaintiff “used Anderson’s GTL Pin Code to make a call,” but the phone

number he dialed “never connected or picked up.” (Id. at 5-6). Plaintiff

states Defendant Kerpsack assumed Plaintiff extorted Defendant

Anderson because this phone number appeared on Plaintiff’s phone

records eleven times. (Id. at 6). Plaintiff claims Defendant Anderson

never told Defendant Kerpsack that Plaintiff extorted him. (Id.).

Plaintiff alleges that Defendant Kerpsack “purposely framed him”

or racially discriminated against him by falsifying disciplinary reports.

(Id.). Plaintiff claims that Defendant Kerpsack’s report falsely stated

that Plaintiff used “his STG/Gang affiliation to force inmate Anderson to

allow him the use of his GTL Pin Code” to make phone calls. (Id.).

Plaintiff states that “[n]o one gave Kerpsack this information.” (Id.).

Plaintiff claims this shows Defendant Kerpsack knowingly fabricated the

disciplinary reports or based his conclusions on racial profiling. (Id.).

Plaintiff asserts that Defendant Anderson wrote a witness statement and

informal grievance that said he allowed inmates including Plaintiff to use

his phone pin code and that Plaintiff was not the one extorting him. (Id.).

Plaintiff alleges he was found guilty of both disciplinary reports and

was deprived of an impartial hearing. (Id.). Plaintiff states there was no

evidence to support the guilty findings, and the reports were not based

on Defendant Kerpsack’s personal knowledge. (Id. at 7). Defendants

John Doe #2 and John Doe #3 conducted a disciplinary hearing on the

theft disciplinary report. (Id. at 11). Plaintiff was found guilty of theft

and given sixty days in confinement. (Id. at 11-12). Defendants Golden

and Brooks conducted a disciplinary hearing on the extortion disciplinary

report. (Id. at 12). Plaintiff was found guilty of extortion and given sixty

days in confinement. (Id.). Plaintiff appealed these findings to

Defendant Dove, and they were denied. (Id.). Plaintiff alleges he was

deprived of all property, including legal materials during his

confinement. (Id.). Plaintiff claims this impaired his ability to appeal

his criminal conviction. (Id. at 12-14).

Plaintiff’s second amended complaint brings Fourteenth

Amendment procedural due process claims. (Doc. 9 at 7-14). For relief,

Plaintiff seeks declaratory and injunctive relief, as well as compensatory

and punitive damages. (Id. at 14-16).

II. Statutory Screening Standard

To survive dismissal at the screening phase, “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) (internal quotation marks omitted). The plausibility standard is

met only where the facts alleged enable “the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.

Plausibility means “more than a sheer possibility that a defendant has

acted unlawfully.” Id. “Where a complaint pleads facts that are merely

consistent with a defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.” Id. (internal

quotation marks omitted).

Whether a complaint states a plausible claim for relief is “a context-

specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679. The Court is “not

bound to accept as true a legal conclusion couched as a factual allegation.”

Id. at 678 (internal quotation marks omitted). And “bare assertions” that

“amount to nothing more than a formulaic recitation of the elements” of

a claim “are conclusory and not entitled to be assumed true.” Id. at 681

(internal quotation marks omitted). “While legal conclusions can provide

the framework of a complaint, they must be supported by factual

allegations.” Id. at 679.

III. Discussion

A. Plaintiff’s official capacity claims are barred by sovereign

immunity.

Absent waiver or express congressional abrogation (neither of

which is present here), the doctrine of sovereign immunity bars a § 1983

plaintiff’s claims for monetary damages against employees of a State

sued in their official capacities. Will v. Michigan Dep’t of State Police,

491 U.S. 58, 65, 71 (1989).

By suing Defendants Kerpsack and Dove—FDOC employees—in

their official capacities, Plaintiff has effectively sued the State of Florida.

Therefore, the official capacity damages claims brought by Plaintiff

against Defendants Kerpsack and Dove are barred by sovereign

immunity.2 Gibson v. Doe, 629 F. App’x 868, 871 (11th Cir. 2015)

(affirming dismissal of official capacity damages claims against FDOC

officials on sovereign immunity grounds).

B. Plaintiff cannot pursue claims against fictitious parties in

federal court.

As noted above, Plaintiff names as Defendants an unidentified

inmate—John Doe #1—and two unidentified prison officials—John Does

2 Plaintiff argues that Defendants acted “outside the scope of their

employment” and thus “waived their sovereign immunity[.]”. (Doc. 9 at

4). But all of Plaintiff’s allegations involve conduct that occurred at the

prison where the FDOC Defendants are employed. Plaintiff’s conclusory

statement is insufficient to defeat sovereign immunity. See Andrews v.

Scott, No. 216CV814FTM99MRM, 2017 WL 3840431, at *10 (M.D. Fla.

Sept. 1, 2017) (“Plaintiff does not allege facts to establish that establish

that the Corizon employees acted outside the scope of their employment.

At best, Plaintiff makes conclusory statements concerning Corizon’s

record of negligence and recklessness.”), aff’d, 729 F. App’x 804 (11th Cir.

2018).

#2 and #3. (Doc. 9 at 3). But importantly, as “a general matter, fictitious-

party pleading is not permitted in federal court.” Richardson v. Johnson,

598 F.3d 734, 738 (11th Cir. 2010). Although Plaintiff states that these

John Doe Defendants were involved in his prison disciplinary

proceedings (Doc. 9 at 3), his description of these individuals is

insufficient to allow service of process. Id.; see also Williams v. DeKalb

Cnty. Jail, 638 F. App’x 976, 976-77 (11th Cir. 2016) (“A fictious name . .

. when the real defendant cannot be readily identified for service, is

insufficient to sustain a cause of action.”). Thus, Plaintiff’s claims against

John Does #1, #2, and #3 are subject to dismissal.3 See Scott v. Miami

Dade Cnty., No. 21-13869, 2023 WL 4196925, at *7 (11th Cir. June 27,

2023) (“Scott only identified Officer Jane Doe by her title, which was an

3 See also Vielma v. Gruler, 808 F. App’x 872, 880 (11th Cir. 2020) (“[T]he

district court correctly concluded that Plaintiffs failed to describe the

John Doe defendants with enough specificity to enable service of process.

For some of the John Does, Plaintiffs provided no descriptions at all. The

remaining descriptions ranged in specificity from the highly generic (e.g.,

‘a male detective,’ ‘one of the officers at the hospital,’ or ‘an FBI Agent’)

to the ever-so-slightly less generic (e.g., ‘a female white officer about 5

feet 10–11 inches in height’ or ‘a middle-aged white male officer’). At best,

however, these descriptions include only general physical attributes and

a title that is held by many individuals. Thus, they fall well short of

enabling a process server to identify a specific individual.”) (cleaned up).

insufficient description to allow him to maintain a claim against an

unnamed defendant.”).

C. Plaintiff cannot maintain § 1983 claims against the inmate

Defendants.

Plaintiff’s second amended complaint appears to name two inmates

of the Okaloosa Correctional Institution as Defendants—John Doe #1

and Jonathan Anderson. (Doc. 9 at 3). These inmates, however, are not

subject to liability under § 1983.

Section 1983 provides a remedy when a person acting under color

of state law deprives the plaintiff of a right, privilege, or immunity

secured by the U.S. Constitution or federal law. 42 U.S.C. § 1983. A

plaintiff cannot recover under § 1983 against a defendant who was not

acting under color of state law. Myers v. Bowman, 713 F.3d 1319, 1329

(11th Cir. 2013). “The state action requirement is an element of a § 1983

claim that the plaintiff must prove in order to prevail.” Charles v.

Johnson, 18 F.4th 686, 694 (11th Cir. 2021).

Here, Plaintiff has failed to plausibly allege that the inmate

Defendants John Doe #1 and Jonathan Anderson acted under color of

state law for § 1983 purposes. Instead, it appears that Defendants are

inmates who were involved with Plaintiff’s prison disciplinary

proceedings.4 But inmates are not state actors under § 1983. Simon v.

Davis, No. CV423-302, 2023 WL 7498091, at *2 (S.D. Ga. Nov. 13, 2023)

(“[O]ther prisoners are not proper defendants in a 42 U.S.C. § 1983

case.”). Thus, Plaintiff’s § 1983 claims against Defendants John Doe #1

and Jonathan Anderson should be dismissed.

D. Plaintiff fails to plausibly allege Fourteenth Amendment

due process claims against Defendant Dove.

Government officials may not be held liable under § 1983 for the

unconstitutional conduct of their subordinates under a theory of

respondeat superior. Christmas v. Harris Cnty., Georgia, 51 F.4th 1348,

1355 (11th Cir. 2022). “Because vicarious liability is inapplicable to . . .

§ 1983 suits, a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the

Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Under Iqbal,

“each Government official, his or her title notwithstanding, is only liable

4 A private party can be treated as a state actor under § 1983 if (1) the

state coerced the private party to engage in the challenged conduct, (2)

the private party was performing a traditional governmental function, or

(3) the state and the private party were joint participants in a shared

enterprise. See Charles, 18 F.4th at 694 (explaining when a private party

can be treated as a state actor). Plaintiff’s allegations fail to plausibly

establish that any of these exceptions apply.

for his or her own misconduct.” Id. at 677. Thus, “supervisory liability

under § 1983 occurs either when the supervisor personally participates

in the alleged unconstitutional conduct or when there is a causal

connection between the actions of a supervising official and the alleged

constitutional deprivation.” Christmas, 51 F.4th at 1355.

Causation may be established and supervisory liability imposed

“where the supervisor’s improper custom or policy results in deliberate

indifference to constitutional rights.” Ingram v. Kubik, 30 F.4th 1241,

1254 (11th Cir. 2022). “[T]o prove that a policy or its absence caused a

constitutional harm, a plaintiff must point to multiple incidents, or

multiple reports of prior misconduct by a particular employee.” Piazza v.

Jefferson Cnty., 923 F.3d 947, 957 (11th Cir. 2019) (cleaned up). And

allegations of a single incident of unconstitutional conduct cannot state a

claim for supervisory liability, even when the conduct involves several

subordinates. Id. at 957-58.

Causation can also be established by pleading facts “which support

an inference that the supervisor directed the subordinates to act

unlawfully or knew that the subordinates would act unlawfully and failed

to stop them from doing so.” Keating v. City of Miami, 598 F.3d 753, 762

(11th Cir. 2010). The factual allegations must plausibly show that the

supervisory official acted with the same mental state required to

establish a constitutional violation against his subordinate. See Franklin

v. Curry, 738 F.3d 1246, 1250 (11th Cir. 2013).

As to personal participation, there are no plausible allegations that

Defendant Dove was involved with the disciplinary reports filed against

Plaintiff. Thus, Plaintiff has not plausibly alleged sufficient personal

participation by Defendant Dove to support any claims for supervisory

liability under § 1983. See Ingram, 30 F.4th at 1254 (“Plaintiffs must

instead allege that the supervisor, through his own actions, violated the

Constitution.”).

As to causation, Plaintiff makes no allegations that Defendant Dove

maintained any “improper custom or policy result[ing] in deliberate

indifference to constitutional rights.” Ingram, 30 F.4th at 1254.

Plaintiff’s allegations about two seemingly isolated disciplinary

proceedings are insufficient to plausibly allege a policy or custom

supporting supervisory liability.5 See Piazza, 923 F.3d at 957 (“[T]o prove

5 See also Goebert v. Lee County, 510 F.3d 1312, 1332 (11th Cir. 2007)

(holding that plaintiff failed to meet the “extremely rigorous standard for

that a policy or its absence caused a constitutional harm, a plaintiff must

point to multiple incidents or multiple reports of prior misconduct by a

particular employee. A single incident of a constitutional violation is

insufficient to prove a policy or custom even when the incident involves

several subordinates.”) (cleaned up). Accordingly, Plaintiff has failed to

plausibly allege any supervisory liability claims under § 1983 against

Defendant Dove.

E. Plaintiff fails to plausibly allege Fourteenth Amendment

due process claims against the remaining Defendants.

The Fourteenth Amendment’s Due Process Clause encompasses

two components, a substantive component and a procedural component.

Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013). Because

Plaintiff’s allegations involve prison disciplinary proceedings, it appears

he is asserting a procedural due process claim. See O’Bryant v. Finch,

637 F.3d 1207, 1213 (11th Cir. 2011). A procedural due process claim

“requires proof of three elements: (1) a deprivation of a constitutionally-

protected liberty or property interest; (2) state action; and (3)

supervisory liability” when she failed to show that any other inmates had

suffered the same alleged violation) (cleaned up).

constitutionally-inadequate process.” Yarbrough v. Decatur Hous. Auth.,

941 F.3d 1022, 1026 (11th Cir. 2019).

Importantly, however, “the fact that prisoners retain rights under

the Due Process Clause in no way implies that these rights are not

subject to restrictions imposed by the nature of the regime to which they

have been lawfully committed.” Wolff v. McDonnell, 418 U.S. 539, 556

(1974). “Prison disciplinary proceedings are not part of a criminal

prosecution, and the full panoply of rights due a defendant in such

proceedings does not apply.” Id.

To the extent Plaintiff claims his rights were violated due to false

hearsay statements being used in the disciplinary proceedings (Doc. 9 at

7-10), Plaintiff is not entitled to the protections of the Confrontation

Clause during prison disciplinary proceedings. Dansby v. Babers, No.

2:14CV-070-WHA, 2015 WL 427108, at *7 (M.D. Ala. Feb. 2, 2015)

(stating that a “prison disciplinary proceeding is not a criminal

prosecution” meaning prisoners “in this context do not possess Sixth

Amendment rights to confront and cross-examine witnesses”) (cleaned

up). Accordingly, Plaintiff fails to plausibly allege any due process claims

based on the Sixth Amendment’s Confrontation Clause. See Clark v.

Jones, No. 2:18-CV-160-ECM-KFP, 2021 WL 925879, at *11 (M.D. Ala.

Feb. 17, 2021) (granting summary judgment for defendants on prisoner’s

Confrontation Clause claim regarding prison disciplinary proceedings),

adopted, 2021 WL 922169 (M.D. Ala. Mar. 10, 2021).

Because Plaintiff has no claim under the Confrontation Clause, this

leaves Plaintiff’s allegations that Defendants initiated and found

Plaintiff guilty of false disciplinary charges. “The filing of a false

disciplinary charge, standing alone, does not state a constitutional claim.

The Constitution requires only that the plaintiff be afforded due process

at the institutional hearing (on the allegedly false charge), which

represents the plaintiff’s opportunity to expose falsities or inaccuracies.”

Hall v. Poppell, No. 2:20-CV-380-JES-MRM, 2021 WL 3602807, at *5

(M.D. Fla. Aug. 13, 2021).

There are “specific hearing procedures that prison disciplinary

panels must comply with to satisfy the standards of procedural due

process in the prison setting.” O’Bryant, 637 F.3d at 1213. “[P]risoners

must receive: (1) advance written notice of the charges against them; (2)

an opportunity for the inmate to call witnesses and present documentary

evidence, so long as doing so is consistent with institutional safety and

correctional goals; and (3) a written statement by the factfinder outlining

the evidence relied on and the reasons for the disciplinary action.” Id.

Plaintiff’s second amended complaint provides no plausible

allegations that he did not receive advanced written notice of the charges

against him, that he was denied an opportunity to call witness or present

evidence, or that he did not receive a written statement outlining the

evidence behind and reasons for the disciplinary action.6 Instead,

Plaintiff takes issue with Defendants initiating and finding him guilty of

disciplinary charges based on allegedly false information. Again,

however, the “filing of a false disciplinary charge, standing alone, does

not state a constitutional claim.” Poppell, 2021 WL 3602807, at *5.

Accordingly, Plaintiff fails to plausibly allege a Fourteenth Amendment

due process claim against Defendants.

Plaintiff primarily argues that his procedural due process rights

were violated because his disciplinary convictions were not based on

sufficient evidence—namely, that the evidence provided was false,

speculative, and not based on personal knowledge. (Doc. 9 at 7-11).

6 Plaintiff admits that he received hearings on the two disciplinary

reports. (Doc. 9 at 11-12).

Procedural due process requires that “the findings of the prison

disciplinary board are supported by some evidence in the record.”

Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445,

454 (1985). “Due process in this context does not require examination of

the entire record, independent assessment of the credibility of witnesses,

or weighing of the evidence. And the ‘some evidence’ standard is satisfied

by even a meager showing, so long as the record is not so devoid of

evidence as to render the tribunal’s determination arbitrary.” Smart v.

England, 93 F.4th 1283, 1290 (11th Cir. 2024) (cleaned up). In other

words, the “decision need only have some basis in fact.”7 Yarbrough, 941

F.3d at 1028 (cleaned up).

Though he disagrees with its truth, Plaintiff’s disciplinary

convictions were in fact based on “some evidence.” That evidence was

Defendant Kerpsack’s “statements in two of the Plaintiff’s disciplinary

7 To the extent Plaintiff argues that “substantial evidence” is required to

satisfy due process (Doc. 9 at 8-11), that argument lacks merit. See

Yarbrough, 941 F.3d at 1029 (“In the light of Holley’s specification of the

meaning of its use of the phrase ‘substantial evidence,’ we conclude that

where our precedents have used that phrase to denote a standard of

review mandated by procedural due process, they did so with the evident

intent of invoking the ‘some evidence’ standard employed by the Supreme

Court in Hill and its antecedents. They do not seek to apply the

substantial-evidence standard familiar from administrative law.”).

reports.” (Doc. 9 at 5). Plaintiff argues that these allegations by

Defendant Kerpsack were false because Defendant inmates John Doe #1

and Anderson—at some point during the investigations—denied that

Plaintiff committed theft or extortion, respectively. But that does not

sustain a due process violation because Defendant Kerpsack’s allegations

against Plaintiff, even if false or incorrect, still constitute some evidence

that Plaintiff committed the infractions he was found guilty of.8 See Hill,

472 U.S. at 456-57 (finding disciplinary panel complied with due process

when convicting prisoner based on oral testimony and written report by

prison guard); see also Murray v. Givens, No. 6:17cv1195, 2018 WL

3463309, at *4 (N.D. Ala. May 14, 2018) (“Due process requires only that

an inmate be afforded a hearing on the charges against him. Therefore,

a prisoner’s allegation of false disciplinary charges fails to state a claim

8 Plaintiff argues that Defendant Kerpsack’s allegations must be false

because “both victims denied that the Plaintiff committed the violations,

and the only way Kerpsack could have had knowledge that the Plaintiff

committed these violations . . . [was] by the victims informing him [but]

not such statements were ever made.” (Doc. 9 at 9). The fact that the

two victims later denied that Plaintiff stole from or extorted them does

not preclude Defendant Kerpsack from conducting an independent

investigation into the matter. And Plaintiff merely speculates without

any factual support that Defendant Kerpsack could not have formed a

basis for his accusations except by the two victims’ statements.

so long as due process was provided.”) (cleaned up), adopted, 2018 WL

3455692 (N.D. Ala. July 18, 2018).

Even if Plaintiff had plausibly alleged his procedural due process

rights were violated, “a defendant’s mere failure to comply with these

procedural protections does not give rise to a due process claim in every

situation.” Hall v. Samuels, No. 2:23cv414/JES’NPM, 2023 WL 5302328,

at *3 (M.D. Fla. Aug. 17, 2023). “Unless Plaintiff has been deprived of a

liberty interest, no due process protection is triggered.” Frederick v.

Murphy, No. 3:24CV240/TKW/ZCB, 2024 WL 4205623, at *3 (N.D. Fla.

Aug. 19, 2024), adopted, 2024 WL 4203490 (N.D. Fla. Sept. 16, 2024).

“In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court

recognized only two instances in which a prisoner may claim a

constitutionally protected liberty interest which implicates constitutional

due process concerns: (1) when actions of prison officials have the effect

of altering the inmate’s term of imprisonment, and (2) when a prison

restraint imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life. Feaster v. Bowers, No.

5:23-CV-310-TKW-MJF, 2024 WL 1515701, at *2 (N.D. Fla. Mar. 11,

2024) (cleaned up), adopted, 2024 WL 1516106 (N.D. Fla. Apr. 8, 2024).

“Without either the loss of gain-time credits or ‘atypical’ confinement, the

Due Process Clause itself affords no protected liberty interest that

requires procedural protections.” Id.

Here, Plaintiff does not allege that the two disciplinary reports

resulted in a loss of gain-time credits. Nor does he allege that he was

subjected to any “atypical” confinement as a result of being found guilty

of the two disciplinary reports. Plaintiff claims that he was sentenced to

two sixty-day periods of confinement after he was found guilty of the two

disciplinary reports. (Doc. 9 at 11-12). Plaintiff argues that he was

denied all personal property—including certain legal materials—for

forty-four days in confinement and that this impaired his ability to

appeal his criminal conviction. (Id. at 12-13). But these allegations are

insufficient to state a plausible due process claim because he has not

alleged a loss of gain time credits or that his stays in confinement were

atypical when compared to other prisoners.9 See Smith v. Deemer, 641 F.

9 Plaintiff filed grievances in June of 2024 regarding not having his legal

materials in confinement. (Doc. 9 at 23-27). The appeal Plaintiff claims

he was impaired from litigating—5D2024-0657 (Fla. 5th DCA)—was

resolved after the 5th DCA affirmed Plaintiff’s conviction and sentence

on April 8, 2025. See 4/8/25 docket entry, 5D2024-0657 (Fla. 5th DCA);

https://acis.flcourts.gov/portal/court/d818ccfa-0288-4e77-9f0f-

daa6a4999a3a/case/ef5ba52e-6bdd-4c6f-b6c1-6ee3daa1c40f; Oliver v.

App’x 865, 868-69 (11th Cir. 2016) (“His disciplinary hearing resulted in

no loss of good-time credit, and the conditions he alleged do not constitute

an atypical and severe hardship. Thus, Smith’s substantive and

procedural due process claims fail to implicate a constitutionally

protected liberty interest.”); Ferguson v. Buss, No. 4:10CV232-MP/WCS,

Fla., 803 F. App’x 305, 306 (11th Cir. 2020) (“The district court . . .

properly took judicial notice of dates from the state-court online docket

sheets and other state-court records.”). Plaintiff (and/or his attorney)

submitted numerous filings between August of 2024 and the affirmance

of his conviction and sentence on April 8, 2025. See No. 5D2024-0657

(Fla. 5th DCA) (docket). Plaintiff again submitted multiple filings

requesting rehearing in April and May of 2025—requests that were

denied on June 16, 2025. See id. Thus, Plaintiff cannot plausibly claim

that being deprived of his property for forty-four days in 2024 imposed

an atypical hardship or impaired his ability to pursue an appeal that was

not resolved until almost a year later. And it bears mentioning that the

individuals identified in Plaintiff’s grievances as the ones who denied him

his legal materials in confinement—(1) Sergeant Alozec and (2) T. Gregor

(Doc. 9 at 23-27)—are not Defendants in this action. There is no

indication that any of the named Defendants had anything to do with the

alleged denial of Plaintiff’s legal materials during his confinement. As

such, Plaintiff fails to establish the causation element of a § 1983 claim

regarding being denied certain legal materials while in confinement. See

Taylor v. Gray, No. 5:19cv62/MCR/MJF, 2020 WL 10052646, at *5 (N.D.

Fla. Mar. 2, 2020) (“Because Plaintiff was able to litigate the underlying

action, he has failed to plausibly allege that he suffered an actual injury

caused by any Defendant. Because Taylor has failed to allege an actual

injury and causation—and the record indicates that Taylor suffered no

injury caused by any Defendant—Taylor has failed to state a claim for a

denial of access to the courts.”), adopted, 2021 WL 2401387 (N.D. Fla.

June 10, 2021).

2011 WL 3625703, at *1 (N.D. Fla. June 17, 2011) (“Plaintiff did not have

a liberty interest protected by procedural due process with regard to

placement into disciplinary confinement for 60 days.”), adopted, 2011 WL

3611407 (N.D. Fla. Aug. 17, 2011).

IV. Conclusion

For the reasons above, it is respectfully RECOMMENDED that:

1. Plaintiff’s second amended complaint (Doc. 9) be

DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and 1915A(b)(1)-

(2) for failure to state a claim on which relief may be granted and for

seeking monetary relief against immune Defendants.

2. The Clerk of Court be directed to enter judgment accordingly

and close this case.

At Pensacola, Florida, this 20th day of January 2026.

/s/ Zachary C. Bolitho

Zachary C. Bolitho

United States Magistrate Judge

Notice To The Parties

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 and does not control. An objecting party must

serve a copy of the objections on all other parties. A party who fails to

object to the magistrate judge’s findings or recommendations contained

in a 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. Rule 3-1; 28 U.S.C. § 636.