Petition for Writ of Certiorari — In Re Antonio Damarcus Woodson, Petitioner

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IN THE UNITED STATES COURT OF APPEALS

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FOR THE ELEVENTH CIRCUIT

JUL 11 2017

No. 16-16744-A

David J. Smith

Clerk

ANTONIO DAMARCUS WOODSON,

Plaintiff-Appellant,

versus

WILLIAM H. CAREY,

Sergeant,

JEFFREY K. LINDSEY,

Captain,

BRAD WHITEHEAD,

Assistant Warden,

WARDEN,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

Before: TJOFLAT, WILSON and JULIE CARNES, Circuit Judges.

BY THE COURT:

Antonio Damarcus Woodson, in die district court, filed a notice of appeal and a motion to

proceed on appeal in forma pauperis. The district court assessed the $505.00 appellate filing fee,

pursuant to the Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915. The district court then

certified that this appeal is frivolous and not taken in good faith.

Because the district court already has instituted a partial payment plan under 28 U.S.C.

§ 1915(a) and (b), the only remaining issue is whether the appeal is frivolous. See 28 U.S.C.

§ 1915(e)(2)(B)(i). This Court now finds that the appeal is frivolous, DENIES leave to proceed,

and DISMISSES the appeal.

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 16-16744-A

ANTONIO DAMARCUS WOODSON,

Plaintiff-Appellant,

versus

WILLIAM H. CAREY,

Sergeant,

JEFFREY K. LINDSEY,

Captain,

BRAD WHITEHEAD,

Assistant Warden,

WARDEN,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

Before: TJOFLAT, WILSON and JULIE CARNES, Circuit Judges.

BY THE COURT:

Antonio Damarcus Woodson has filed a motion for reconsideration, pursuant to 11th Cir.

R. 27-2, of this Court’s July 11, 2017, order denying him leave to proceed in the appeal of the

dismissal of his civil rights complaint, 42 U.S.C. § 1983. Upon review, Woodson’s motion for

reconsideration is DENIED because he has offered no new evidence or arguments of merit to

warrant relief.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Clerk of Court

For rules and forms visit

www.cal 1 .uscourts.gov

July 11,2017

Elizabeth Warren

U.S. District Court

300 N HOGAN ST

JACKSONVILLE, FL 32202

Appeal Number: 16-16744-A

Case Style: Antonio Woodson v. William Carey, et al

District Court Docket No: 3:16-cv-00469-TJC-JBT

The enclosed copy of this Court's Order of Dismissal is issued as the mandate of this court. See

11th Cir. R. 41-4. Counsel and pro se parties are advised that pursuant to 11th Cir. R. 27-2, "a

motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such

order. No additional time shall be allowed for mailing."

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Denise E. O'Guin, A

Phone #: (404) 335-6188

Enclosure(s)

DIS-4 Multi-purpose dismissal letter

Case 3:17-cv-00196-MOR-CJK Document 6 Filed 04/19/17 Page 1 of 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ANTONIO DAMARCUS WOODSON

CASE NO. 3:17-cv-OOI 96-MCR-CJK

DARRICK, ET AL

JUDGMENT

Pursuant to and at the direction of the Court, it is

i ■■

ORDERED AND ADJUDGED that the Plaintiff, ANTONIO DAMARCUS

WOODSON, take nothing and that this action be DISMISSED without prejudice.

JESSICA J. LYUBLANOVITS

CLERK OF COURT

?■

April 19. 2017

DATE

Is/ Monica Broussard

Deputy Clerk: Monica Broussard

•*

Case 3:17-cv-00196-MCR-CJK Document 5 Filed 04/19/17 Page 1 of 2

Page 1 of2

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PfeNSACOLA DIVISION

ANTONIO DAMARCUS WOODSON,

Plaintiff,

Case No. 3:17cvl96/MCR/CJK

?■

NURSE DARRICK, et al.,

Defendants.

ORDER

This cause comes on for consideration of the Magistrate Judge’s Report and

Recommendation dated April 4, 2017. ECF No. 3. Plaintiff has been furnished a

copy of the Report and Recommendation and has been afforded an opportunity to

file objections pursuant to Title 28, United States Code, Section 636(b)(1). After

reviewing the timely objections to the Recommendation, ECF No. 4, the Court has

determined that the Report and Recommendation should be adopted.

Accordingly, it is ORDERED:

1. The Magistrate Judge’s Report and Recommendation, ECF No. 3, is

adopted and incorporated by reference in this Order.

2. Plaintiffs motion to proceed in forma pauperis (doc. 2) is DENIED, and

this action is DISMISSED WJTHOUT PREJUDICE under 28 U.S.C. § 1915(g).

••

Case 3:17-cv-00196-MCR-CJK Documents Filed 04/19/17 Page 2 of 2

Page 2 of2

3. The clerk is directed: to close the file.

:•

DONE AND ORDERED this 19th day of April, 2017.

Qsfl. <^pa6M£ &jablcte

M. CASEY RODGERS

- CHIEF UNITED STATES DISTRICT JUDGE

•* •

;

;•

Case No. 3:J7cvl96/MCR/CJK

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Cleric of Court

For rules and forms visit

www.calLuscourts.gov

April 12,2017

Antonio Damarcus Woodson

Santa Rosa Cl - Inmate Legal Mail

5850 E MILTON RD

MILTON, FL 32583

Appeal Number: 17-11355-A

Case Style: Antonio Woodson v. John Bumsed, et al

District Court Docket No: 3:17-cv-00255-TJC-MCR

RETURNED UNFILED: Motion for permission to appeal in forma pauperis filed by Antonio

Damarcus Woodson is returned unfiled because appellant has been designated a three striker, the

filing fee must be paid.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Denise E. O’Guin, A

Phone #: (404) 335-6188

MOT-11 Motion or Document Returned

Case 3:17-cv-00196-MCR-CJK Document 3 Filed 04/04/17 Page 1 of 5

Page I of5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PpNSACOLA DIVISION

ANTONIO DAMARCUS WOODSON,

Plaintiff,

••

Case No. 3:17cvl 96/MCR/CJK

NURSE DARR1CK, et al.,

Defendants.

S-

REPORT AND RECOMMENDATION

Plaintiff Antonio Damarcus Woodson, DC #D90511, is a Florida inmate

presently confined at Santa Rosa Correctional Institution. Plaintiff initiated this case

on March 23, 2017, by filing a civil rights complaint under 42 U.S.C. § 1983 (doc.

■r

1), and a motion to proceed in forma pauperis (doc. 2). Upon review of plaintiffs

complaint and prior litigation history, the court concludes that this case should be

dismissed under 28 U.S.C. § 1915(g), because plaintiff is barred from proceeding in

forma pauperis and failed to pay the filing fee upon initiating this suit.

Title 28 U.S.C. § 1915(g) prohibits a prisoner from proceeding in forma

pauperis under certain circumstances:

In no event shall a prisoner bring a civil action or appeal a

judgment in a civil action or proceeding under this section if the

prisoner has, on 3 or • more prior occasions, while incarcerated or

/•

Case 3:17-cv-00196-MCR-CJK Documents Filed 04/04/17 Page 2 of 5

Page 2 of 5

detained in any facility, brought an action or appeal in a court of the

United States that was: dismissed on the grounds that it is frivolous,

malicious, or fails to state a claim upon which relief may be granted,

unless the prisoner is under imminent danger of serious physical injury.

A prisoner who is barred from proceeding in forma pauperis must pay the filing fee

at the time he initiates his lawsuit, and failure to do so warrants dismissal of his case

without prejudice. Dupree-v. Palmer, 284 F.3d.l234, 1236 (11th Cir. 2002)

(holding that “the proper procedure is for the district court to dismiss the complaint

without prejudice when it denies the prisoner leave to proceed in forma pauperis

pursuant to the provisions of § 1915(g)” because the prisoner “must pay the filing

fee at the time he initiates the suit.”); Vanderberg v. Donaldson, 259 F.3d 1321,1324

(11th Cir. 2001) (stating that after three meritless suits, a prisoner must pay the full

filing fee at the time he initiates suit). The only exception is if the prisoner alleges

that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g);

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

The court takes judicial notice of three prior federal civil actions or appeals

filed by plaintiff, while incarcerated, that were dismissed as frivolous or for failure

to state a claim upon which relief may be granted. See Woodson v. Johnson, Case

No. 3:16cv638-BJD-MCR, Doc. 3 (M.D. Fla. May 26, 2016) (dismissing, as

frivolous, civil rights complaint filed by plaintiff while incarcerated), appeal

dismissed as frivolous, No. 16-13370-A (11th Cir. Nov. 15, 2016); Woodson v.

Case No. 3:17cvl96/MCR/CJK

Case 3:17-cv-00196-MCR-CJK Document 3 Filed 04/04/17 Page 3 of 5

Page 3 of5

Carey, Case No. 3:16cv469-TJC-JBT, Doc. 5 (M.D. Fla. Sept. 29, 2016)

(dismissing, for failure to state a claim, civil rights complaint filed by plaintiff while

incarcerated), appeal filed, No. 16-16744 (11th Cir.); Woodson v. Whitehead, Case

No. 3:16cv470-HES-JRK, Doc. 4 (M.D. Fla. May 4,2016) (dismissing, as frivolous,

civil rights complaint filed by plaintiff while incarcerated), affirmed, No. 16-13278,

— F. App’x—, 2016 WL 7367780 (11th Cir. Dec. 20, 2016). Plaintiffs status as a

three-striker is recognized by. the Middle District. See Woodson v. Burnsed, No.

3:17cv255-TJC-MCR, Doc. 5, (M.D. Fla. Mar; 13, 2017) (dismissing, under three

strikes provision of 28 U.S.C. § 1915(g), civil rights complaint filed by plaintiff

while incarcerated). The foregoing cases may be positively identified as having been

filed by plaintiff because they bear his name and Florida Department of Corrections’

inmate number “D90511”, and because plaintiff acknowledges them in his

complaint. (Doc. l,p. 3).

As plaintiff has three strikes, he may not litigate this case in forma pauperis

unless he demonstrates that he is “under imminent danger of serious physical

injury.” 28 U.S.C. § 1915(g); Brown, supra. In determining whether a prisoner

satisfies the imminent danger exception, the court looks to the prisoner’s complaint

as a whole, construing it liberally and accepting its allegations as true. Owens v.

Schwartz, 519 F. App’x 992, 994 (11th Cir. 2013) {citingBrown, 387 F.3d at 1350).

Case No. 3:I7cvl96/MCR/CJK

Case 3:17-cv-00196-MCR-CJK Document 3 Filed 04/04/17 Page 4 of 5

;

Page 4 of5

General allegations not grounded in specific facts indicating that serious physical

injury is imminent are insufficient to invoke the exception to § 1915(g). Brown, 387

F.3d at 1350 (citing Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)).

Plaintiff must make “specific fact allegations of ongoing serious physical injury, or

a pattern of misconduct evidencing the likelihood of imminent serious physical

injury.” Id. The imminent danger exception is construed narrowly and available

only “for genuine emergencies,” where “time is pressing” and “a threat... is real

and proximate.” Lewis v. Sullivan, 219 F.3d 526, 531 (7th Cir. 2002). A prisoner’s

claim that he faced a past imminent danger is insufficient to allow him to proceed

under the imminent danger exception. Medberry v. Butler, 185 F.3d 1189, 1193

(11th Cir. 1999) (holding that the exception was not triggered where the alleged

threat of assault by other prisoners ceased to exist when plaintiff was placed in

administrative confinement prior to filing his complaint).

Construing the complaint as a whole, plaintiff’s allegations do not qualify him

for § 1915(g)’s imminent danger exception. Plaintiff alleges that over three months

ago, on December 19, 2016, he requested triamcinolone acetonide ointment to treat

his eczema, but was denied because he had been caught with two extra tubes of the

ointment in his cell (which were confiscated) and still possessed one tube. Plaintiff

also complains that his grievances concerning the denial of ointment were not

Case No. 3:I7cvl96/MCR/CJK

Case 3:17-cv-00196-MCR-CJK Document 3 Filed 04/04/17 Page 5 of 5

Page 5 of5

properly investigated.

These allegations do not trigger the imminent danger

exception. Because plaintiff did not pay the filing fee at the time he initiated this

action, and because it plainly appears he is not entitled to proceed in forma pauperis,

this case should be dismissed under § 1915(g).

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff s motion to proceed in forma pauperis (doc. 2) be DENIED

t•

and this action DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915(g).

2. That the clerk be directed to close the file.

At Pensacola, Florida this 4th day of April, 2017.

/s/Charles J. Kahn. Jr.

* CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed

within 14 days after being served a copy thereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon the magistrate judge and all other

parties. A party failing to object to a magistrate judge's findings or recommendations

contained in a report and recommendation in accordance with the provisions of 28

U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order

based on unobjected-to factuaLand legal conclusions. See 11th Cir. R. 3-1; 28 U.S.C.

§ 636.

Case No. 3:17cvI96/MCR/CJK

Case 3:17-cv-00255-TJC-MCR

Document 6

Filed 03/14/2017

Page 1 of 2 PagelD 19

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANTONIO DAMARCUS

WOODSON,

Plaintiff,

Case No: 3:17-cv-255-J-32MCR

JOHN BURNSED, et al.,

Defendants.

JUDGMENT IN A CIVIL CASE

Decision by Court.

This action came before the Court and a decision has been rendered.

IT IS ORDERED AND ADJUDGED, that pursuant to this Court's Order entered on

03/13/2017, Judgment is hereby entered dismissing this case without prejudice.

Date: March 14, 2017

SHERYL L. LOESCH, CLERK

s/T. Carcaba, Deputy Clerk

Copy to:

Counsel of Record

Unrepresented Parties

3ase 3:17-cv-00255-TJC-MCR

Document 5

Filed 03/13/2017

Page 1 of 3 Page ID 16

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

, JACKSONVILLE DIVISION

ANTONIO DAMARCUS WOODSON,

Plaintiff,

Case No. 3:17-cv-255-J-32MCR

JOHN BURNSED, etal.

Defendants.

ORDER OF DISMISSAL WITHOUT PREJUDICE

Plaintiff, an inmate of the Florida penal system, initiated this case by filing a pro se

Civil Rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983. He also filed a request to

proceed in forma pauperis (Docs. 2, 4). In the Complaint, Plaintiff complains about the

conditions of his confinement while on “strip" status in 2013 and 2015, and alleges a

violation of his due process rights.

The Prison Litigation .Reform Act (PLRA) amended 28 U.S.C. § 1915 by adding the

following subsection:

(g) In no event shall a prisoner bring a civil action or

appeal a judgment in a civil action or proceeding under this

section if the prisoner has, on 3 or more prior occasions, while

incarcerated or detained in any facility, brought an action or

appeal in a court of the United States that was dismissed on the

grounds that it is frivolous, malicious, or fails to state a claim

upon which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.

28 U.S.C. § 1915(g). Section 1915(g), commonly referred to as the “three strikes” provision,

requires this Court to consider prisoner actions dismissed before, as well as after, the

enactment of the PLRA.

:ase 3:17-cv-00255-TJC-MCR

Document 5

Filed 03/13/2017

Page 2 of 3 PagelD 17

The Court takes judicial notice of filings brought by Plaintiff in federal court that were

dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon

which relief may be granted: (1) 3:16-cv-149-J-20JBT (M.D. Fla.) (dismissed as frivolous);

(2) 16-11388-B (11th Cir.) (appeal dismissed as frivolous); (3) 3:16-cv-469-J-32JBT (M.D.

Fla.) (dismissed forfailure to state a claim1); (4) 3:16-cv-470-J-20JRK (M.D. Fla.) (dismissed

as frivolous), affirmed 16-13278 (11 th Cir.); (5) 3:16-cv-638-J-39MCR (M.D. Fla.) (dismissed

as frivolous); and (6) 16-13370 (11th Cir.) (appeal dismissed as frivolous). Therefore

because Plaintiff has had three or more prior qualifying dismissals and he is not in imminent

danger of serious physical injury,2 this action will be dismissed without prejudice pursuant

to 28 U.S.C. § 1915(g). Accordingly, it is

ORDERED:

This case is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.

§ 1915(g).

The Clerk of Court shall enter judgment dismissing this case without prejudice,

terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 13th day of March, 2017.

TIMOTHY J. C0RJSIGAN

United States District Judg

1 Plaintiff appealed the dismissal of this case; the appeal is pending. See No. 16-16744

(11th Cir.).

2 Plaintiff does not claim to be in imminent danger of serious physical injury, and upon

review of the file as a whole, the Court finds Plaintiffs allegations insufficient to warrant the

imminent danger exception to dismissal.

ase 3:17-cv-00255-TJC-MCR

Document 5

Filed 03/13/2017

cr 3/10

Antonio Damarcus Woodson, #D90511

Page 3 of 3 PagelD 18

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Clerk of Court

For rules and forms visit

www.cal 1.uscourts.gov

January 05, 2017

Antonio Damarcus Woodson

Santa Rosa Cl - Inmate Legal Mail

5850 E MILTON RD

MILTON, FL 32583

Appeal Number: 16-16744-A

Case Style: Antonio Woodson v. William Carey, et al

District Court Docket No: 3:16-cv-00469-TJC-JBT

RETURNED UNFILED: Motion for permission to appeal in forma pauperis, Certificate of

interested persons, Letter to the court filed by Antonio Damarcus Woodson is returned unfiled

because fee status is pending in district court.

Please allow district court to complete it’s ruling concerning fee status before applying for in

forma pauperis in this court.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Denise E. O'Guin, A

Phone #: (404) 335-6188

MOT-11 Motion or Document Returned

Case: 16-13278

Date Filed: 12/20/2016

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 16-13278

Non-Argument Calendar

D.C. Docket No. 3:16-cv-00470-HES-JRK

ANTONIO DAMARCUS WOODSON,

Plaintiff-Appellant,

versus

BRAD WHITEHEAD,

Assistant Warden,

WARDEN,

MICHAEL A. HONOUR, '

JOHN R. MCSPADDEN,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

(December 20, 2016)

Before TJOFLAT, HULL and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

Case: 16-13278

Date Filed: 12/20/2016

Page: 2 of 5

Antonio Woodson, a state prisoner proceeding pro se, appeals the dismissal

of his civil rights action under 42 U.S.C. § 1983 against four employees of the

Florida State Prison (“FSP”)—Captain Michael A. Honour, Lieutenant John R.

McSpadden, Warden John Palmer, and Assistant Warden Brad Whitehead—

alleging Eighth and Fourteenth Amendment violations as frivolous under

28 U.S.C. § 1915A(b)(l). On appeal, Woodson argues that the district court erred

in dismissing his complaint for Eighth and Fourteenth Amendment violations

because the factual allegations made in the complaint had arguable merit.

We review a district court’s sua sponte dismissal of a complaint as frivolous

under 28 U.S.C. § 1915A(b)(l) for an abuse of discretion. Miller v. Donald,

541 F.3d 1091, 1100 (11th Cir. 2008). A court abuses its discretion by making a

clear error ofjudgment or by applying an incorrect legal standard. Josendis v.

Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011).

To determine whether confinement conditions violate the Eighth

Amendment, we conduct a two-part analysis. Chandler v. Crosby, 379 F.3d 1278,

1289-90 (11th Cir. 2004). First, under the objective component, a prisoner must

show the confinement conditions are sufficiently serious to violate the Eighth

Amendment. Id. at 1289. Second, under the subjective component, a prisoner

must show prison officials acted with “deliberate indifference” to the serious

Case: 16-13278

Date Filed: 12/20/2016

Page: 3 of 5

conditions. Id. at 1289-90. The plaintiff must satisfy the objective component by

showing the challenged conditions are extreme and “‘pose[] an unreasonable risk

of serious damage to his future health’ or safety.” Id. at 1289. In determining the

seriousness of confinement conditions, we assess the severity and duration of the

conditions. Id. at 1295. The plaintiff must satisfy the subjective deliberate

indifference component by showing that prison officials knew of and disregarded

an excessive risk of harm to the prisoner. Id. at 1289-90 (citing Farmer v.

Brennan, 511 U.S. 825, 837 (1994)). Prison officials must “be aware of the facts

from which the inference could be drawn that a substantial risk of serious harm

exists, and [they] must also draw the inference.” Id. at 1290.

Woodson’s complaint fails to allege facts to satisfy either the objective

“substantial risk of serious harm” component or the subjective “deliberate

indifference” component for showing an Eighth Amendment violation.

Confinement without clothing (other than boxers), bedding, or hygienic materials

for 72 hours during the months of April and August in Florida is not the type of

extreme prison conditions that create a substantial risk of serious harm. See id. at

1289, 1297-98. Additionally, the fact that Warden Palmer saw the conditions in

which Woodson was held during his disciplinary confinement is not enough to

show that any of the defendants believed Woodson’s health or safety to be at risk.

Woodson failed to show that any of the defendants had subjective knowledge of a

Case: 16-13278

Date Filed: 12/20/2016

Page: 4 of 5

substantial risk of serious harm to Woodson. Id. at 1289-90. Thus, the district

court did not err in dismissing Woodson’s complaint as frivolous as to his Eighth

Amendment claim.

II.

We recognize two situations in which a prisoner is deprived of his liberty

such that due process is required. Kirby v. Siegelman, 195 F.3d 1285, 1290—91

(11th Cir. 1999). First, a prisoner is entitled to due process when a change in his

condition of confinement “is so severe that it essentially exceeds the sentence

imposed by the court.” Id. at 1291. Second, a prisoner has a liberty interest where

the state has consistently provided a benefit to a prisoner and deprivation of that

benefit imposes an “atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life.” Id. (quotation omitted); see also Sandin v.

Conner, 515 U.S. 472,484-86 (1995). The Due Process Clause does not create an

enforceable liberty interest in freedom from restrictive confinement while a

prisoner is incarcerated. See Hewitt v. Helms, 459 U.S. 460,468 (1983), modified

on other grounds by Sandin, 515 U.S. at 482—84; Sandin, 515 U.S. at 484—87. Nor

does it create a liberty interest in the “mandatory” language of prison rules and

regulations. Sandin, 515 U.S. at 482-84.

Woodson’s complaint fails to allege sufficient facts to show a Fourteenth

Amendment violation. Woodson’s placement in the more restrictive disciplinary

Case: 16-13278

Date Filed: 12/20/2016

Page: 5 of 5

confinement at FSP is not the kind of change in condition that exceeds the sentence

already imposed or that imposes an atypical or significant hardship on a plaintiff.

See Kirby, 195 F.3d at 1291; Sandin, 515 U.S. at 482-86. FSP’s rules and

regulations on disciplinary confinement also did not implicate a protected liberty

interest under the Due Process Clause. See Sandin, 515 U.S. at 482-84. Based on

the facts as alleged, Woodson failed to show a constitutional violation, and so, the

district court did not err in dismissing Woodson’s complaint as frivolous as to his

Fourteenth Amendment claim.

Accordingly, upon review of the record and the parties’ briefs, we affirm the

district court’s sua sponte dismissal of Woodson’s complaint as frivolous under

28 U.S.C, § 1915A(b)(l).

AFFIRMED.

See 28 U.S.C. § 1915(e)(2)(B)(i). This Court now finds that the appeal is frivolous, DENIES

leave to proceed, and DISMISSES the appeal.

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 16-11388-B

ANTONIO DAMARCUS WOODSON,

Plaintiff-Appellant,

versus

FLORIDA SP WARDEN,

BRAD WHITEHEAD,

Assistant Warden-FSP,

JEFFREY K. LINDSEY,

Captain-FSP,

DEREK DANIELS,

Sergeant-FSP,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

Before: MARCUS, WILLIAM PRYOR, ROSENBAUM, Circuit Judges.

BY THE COURT:

Antonio Damarcus Woodson, in the district court, filed a notice of appeal and a motion to

proceed on appeal in forma pauperis.

The district court denied in forma pauperis status,

certifying that the appeal was frivolous and not taken in good faith. However, the district court

did not assess the $505.00 appellate filing fee, as is required under the Prison Litigation Reform

Act of 1995,28 U.S.C. § 1915.

Woodson has consented to pay the $505.00 filing fee, using the partial payment plan

described under § 1915(b). Thus, the only remaining issue is whether the appeal is frivolous.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David ). Smith

Clerk of Court

For rules and forms visit

www.call.uscomts.gov

November 30,2016

Sheryl L. Loesch

U.S. District Court

300 N HOGAN ST

JACKSONVILLE, FL 32202

Appeal Number: 16-11388-B

Case Style: Antonio Woodson v. Florida SP Warden, et al

District Court Docket No: 3:16-cv-00149-HES-JBT

The enclosed copy of this Court's Order of Dismissal is issued as the mandate of this court. See

11th Cir. R. 41-4. Counsel and pro se parties are advised that pursuant to 11th Cir. R. 27-2, "a

motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such

order. No additional time shall be allowed for mailing."

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Melanie Gaddis, B

Phone#: (404)335-6187

Enclosure(s)

DIS-4 Multi-purpose dismissal letter

Case 3:16-cv-00469-TJC-JBT

Document 6

Filed 09/29/2016

Page 1 of 2 PagelD 22

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANTONIO D. WOODSON,

Plaintiff,

Case No: 3:16-cv-469-J-32JBT

WILLIAM H. CAREY, et al.,

Defendants.

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came before the Court and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

that pursuant to this Court’s Order entered on September 29, 2016, judgment is hereby

entered dismissing this case without prejudice.

Date: September 29, 2016

SHERYL L. LOESCH, CLERK

Deputy Clerk

Copy to:

Counsel of Record

Unrepresented Parties

Case 3:16-cv-00469-TJC-JBT

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Filed 09/29/2016

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANTONIO D. WOODSON

Plaintiff,

Case No. 3:16-cv-469-J-32JBT

WILLIAM H. CAREY, et al.,

Defendants.

ORDER OF DISMISSAL WITHOUT PREJUDICE

Plaintiff, an inmate of the Florida penal system, initiated this case by filing a pro se

Civil Rights Complaint Form (Doc. 1) (Complaint) pursuant to 42 U.S.C. § 1983. Plaintiff also

filed a request to proceed in forma pauperis (Doc. 2). In the Complaint, he names as

Defendants the following individuals who were employed at Florida State Prison (FSP) at the

time of the incident alleged in the Complaint: Sergeant William H. Carey, Captain Jeffrey K.

Lindsey, Assistant Warden Brad Whitehead, and Warden John Palmer. Plaintiff alleges that

on May 1,2012, Defendants Lindsey and Carey placed him on a 72-hour property restriction

(or strip) “for an alleged rule infraction.” He asserts that Defendant Whitehead authorized

his placement on property restriction. During this 72-hour period, Plaintiff states he was only

given a pair of boxer shorts to wear, and he had no other clothing, bedding, or hygienic

products. According to Plaintiff, he was placed on this property restriction prior to his

disciplinary hearing for the alleged rule infraction. Plaintiff also alleges that on August 5,

2015, he was again placed on property restriction for an unrelated incident. He claims that

Defendant “Palmer was not surprised (was aware) to see the Plaintiff placed (housed) under

Case 3:16-cv-00469-TJC-JBT

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these inhumane conditions,” and that Warden Palmer “did not take any action to correct the

wrong.”

Plaintiff does not allege that he suffered any physical injury, and he seeks

declaratory relief and. monetary damages.

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

reliet See 26 U.S.C. § 1915(e)(2)(B). In reviewing a pro se plaintiffs pleadings, the Court

must liberally construe the plaintiffs allegations. Haines v. Kerner. 404 U.S. 519 (1972);

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

With respect to whether a complaint “fails to state a claim on which relief may be

granted,” § 1915(e)(2)(B)(ii) mirrors the language of Rule 12(b)(6), so courts apply the same

standard in both contexts. Mitchell v. Farcass. 112 F.3d 1483,1490 (11th Cir. 1997); see

also Alba v. Montford. 517 F.3d 1249, 1252 (11th Cir. 2008). “To survive a motion to

dismiss, 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) (citing BeH

Atl. Coro, v. Twomblv. 550 U.S. 544,570 (2007)). “Labels and conclusions" or “a formulaic

recitation of the elements of a cause of action” that amount to “naked assertions” will not do.

IcL (quotation and citation omitted). Moreover, a complaint must “contain either direct or

inferential allegations respecting all the material elements necessary to sustain a recovery

under some viable legal theory.” Roe v. Aware Woman Ctr. for Choice, Inc.. 253 F.3d 678,

683-84 (11th Cir. 2001) (internal quotation and citation omitted).

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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)

such deprivation occurred under color of state law. Salvato v. Milev. 790 F.3d 1286, 1295

(11th Cir. 2015); Bingham, 654 F.3d at 1.175. Moreover, “conclusory allegations,

unwarranted deductions of facts, or legal conclusions masquerading as facts will not prevent

dismissal.” Rehberaer v. Henrv Ctv.. Ga.. 577 F. App’x 937, 938 (11th Cir. 2014) (per

curiam) (internal quotations and citation omitted). In the absence of a federal constitutional

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

a defendant.

The Eighth Amendment prohibits the infliction of “cruel and unusual punishment” and

it “applies to the conditions of a prisoner’s confinement.” Chandlery. Crosby. 379 F.3d 1278,

1288 (11th Cir. 2004) (citation omitted).

While “‘the Constitution does not mandate

comfortable prisons,’” conditions violate the Eighth Amendment if they ‘“involve the wanton

and unnecessary infliction of pain.’” JcL (quoting Rhodes v. Chapman, 452 U.S. 337, 347,

349 (1981)). To establish such a claim, a prisoner must “allege facts sufficient to show ‘(1)

a substantial risk of serious harm; (2) the defendants’ deliberate indifference to that risk; and

(3) causation.’” Lane v. Philbin: No. 14-11140, 2016 WL 4487983, at *3 (11th Cir. Aug. 26,

2016) (quoting Hale v. Tallapoosa Ctv.. 50 F.3d 1579, 1582 (11th Cir. 1995)). “The first

element of an Eighth Amendment claim-a substantial risk of serious harm-is assessed

under an objective standard.” Id. (citation omitted). “The second element. . . ‘has three

components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;

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(3) by conduct that is more than mere negligence.’” jcL at *4 (quoting Farrow v. West. 320

F.3d 1235, 1245 (11th Cir. 2003)).

Even liberally construing Plaintiffs allegations, he has failed to allege sufficient factual

matter to state a claim under the Eighth Amendment. Regarding the first element, Plaintiff

has not alleged sufficient facts to show that he was subjected to a substantial risk of serious

harm. While Plaintiffs conditions during the 72-hour period may have been uncomfortable,

they were not extreme and did not pose an unreasonable risk of serious injury to his future

health or safety. See O’Connor v. Kellev. 644 F. App’x 928,932 (11th Cir. 2016) (finding that

the plaintiff “failed to allege that he was deprived of the ‘minimal civilized measure of life’s

necessities’ or that the conditions of his confinement posed an unreasonable risk of serious

harm to his future health or safety” (quotations and citation omitted)).

Assuming Plaintiff could meet the first element, he has not sufficiently alleged facts

meeting the second element. Plaintiff has not alleged that any of the Defendants were

subjectively aware of a serious risk to his health or safety or that Defendants disregarded

any serious risk. Plaintiff also does not assert that he complained about his conditions to any

of the Defendants or that he suffered any injury stemming from those conditions. Therefore,

Plaintiffs Eighth Amendment claim is due to be dismissed.1 See Edler v. Gielow. No.

3:08cv530/WS/EMT, 2010 WL 3958014, at *7 (N.D. Fla. Oct. 7,2010) (unpublished) (finding

On the same day he filed the instant Complaint, Plaintiff initiated a separate civil rights

case, in which he made identical allegations regarding his placement on property restriction

on April 26, 2012. See Complaint (Doc. 1), No. 3:16-cv-470-J-20JRK. The case was

dismissed on initial review, see Order (Doc. 4), No. 3:16-cv-470-J-20JRK, and it is currently

on appeal in the Eleventh Circuit, see Notice of Appeal (Doc. 6), No. 3:16-cv-470-J-20JRK.

Case 3:16-CV-00469-TJ C-J BT

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that “the denial of bedding and other comfort items, even in 60 degree temperatures!,] do not

reflect that [the plaintiff] was subject to the type of extreme conditions that posed an

unreasonable risk of serious damage to health or safety”); see also Turner v. Warden.

GDCP. No. 14-10150, 2016 WL 3002284, at *4 (11th Cir. May 25, 2016) (on summary

judgment, finding that “[e]ven though [the plaintiff] argues that he was left in a strip cell for

ten days without clothing, there is still no evidence that he faced any serious harm. Indeed,

his only complaint was that he was cold, but a prisoner’s mere discomfort, without more,

does not offend the Eighth Amendment” (quotation and citation omitted)).

Plaintiff also raises a due process claim, alleging that he was immediately placed on ,

property restriction for an alleged rule violation prior to actually receiving a disciplinary

hearing. He asserts that “property restriction” is not an “authorized" punishment for his

actions: disobeying a verbal order.

A claim brought under the Fourteenth Amendment’s Due

Process Clause must concern a protected interest, such as the

deprivation of liberty.... A prisoner’s liberty interest under the

Due Process Clause is necessarily circumscribed by the nature

of the regime to which they have been lawfully committed.

Thus, an inmate validly claims the violation of a protected

liberty interest when he identifies state actions that

unexpectedly alter his term of imprisonment or impose an

atypical and significant hardship relative to ordinary prison life.

Smith v. Deemer. 641 F. App’x 865, 866-67 (11th Cir. 2016) (quotations and citations

omitted). Defendants’ alleged actions did not alter Plaintiffs term of imprisonment or impose

an atypical and significant hardship on him. See Sandin v. Conner. 515 U.S. 472, 485

(1995) (“Discipline by prison officials in response to a wide range of misconduct falls within

Case 3:16-cv-00469-TJC-JBT

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the expected perimeters of the sentence imposed by a court of law.”). Thus, Plaintiff’s due

process claim is due to be dismissed.2

In sum, liberally construing Plaintiffs allegations, the Court finds that he has failed to

state a claim upon which relief may be granted, and this case is due to be dismissed.

Accordingly, it is

ORDERED:

This case is DISMISSED without prejudice.

The Clerk of Court shall enter judgment dismissing this case without

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

DONE AND ORDERED at Jacksonville, Florida, this 29th day of September, 2016.

TIMOTHY J. C0RRIGAN

United States Disfrict Judg<

cr 9/28

Antonio D. Woodson, #D90511

2 Notably, Plaintiff does not raise any claim alleging that he did not receive an adequate

disciplinary hearing for the charge of disobeying a verbal order.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Clerk of Court

For rules and forms visit

www.cal 1 .uscourts.gov

July 29,2016

Antonio Damarcus Woodson

Florida SP - Inmate Legal Mail

PO BOX 800

RAIFORD, FL 32083

Appeal Number: 16-13370-A

Case Style: Antonio Woodson v. Michael Johnson, et al

District Court Docket No: 3:16-cv-00638-BJD-MCR

The district court has denied your motion to proceed on appeal in forma pauperis, certifying that

your appeal is frivolous and not taken in good faith. The district court has also directed that you

pay fees required to maintain this appeal pursuant to 28 U.S.C. § 1915 (as amended by the Prison

Litigation Reform Act).

Pursuant to Fed.R.App.P. 24(a) and 11th Cir. R 24-2, you must file a motion for leave to proceed

with this appeal within thirty (30) days from the date of this letter. If such a motion is not

received within thirty (30) days, this appeal will be dismissed by the clerk without further notice

pursuant to 11th Cir. R. 42-2.

FRAP 26.1 and the accompanying circuit rules on the Certificate of Interested Persons and

Corporate Disclosure Statement (CIP) provide that: (1) every party and amicus curiae must

include a CIP within every motion, petition, brief, answer, response, and reply filed; (2) in

addition, appellants and petitioners must file a CIP within 14 days after the date the case or

appeal is docketed in this court; and (3) within 14 days after the filing of the appellants' and

petitioners’ CIP, all appellees, intervenors, respondents, and all other parties to the case or appeal

must file a notice either indicating that the CIP is correct and complete, or adding any interested

persons or entities omitted from the CIP.

On the same day a party or amicus curiae first files its paper or e-filed CEP, that filer must also

complete the court s web-based CEP at the Web-Based CEP link on the court's website. Pro se

filers (except attorneys appearing in particular cases as pro se parties) are not required or

authorized to complete the web-based CIP.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Denise E. O'Guin, A

Phone #: (404) 335-6188

PLRA-7 Ltr DC dn Lv FF assessed

Case 3:16-cv-00638-BJD-MCR

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Filed 05/27/2016

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANTONIO DAMARCUS

WOODSON,

Plaintiff;

Case No: 3:16-cv-638-J-39MCR

MICHAEL JOHNSON, Sergeant,

RIZER, Captain, BRAD

WHITEHEAD, Assistant Warden »

and JOHN PALMER, Warden,

Defendants.

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came before the Court and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

that pursuant to this Court's Order, entered May 26, 2016, judgment is hereby entered

DISMISSING this case without prejudice.

Date: May 27,2016

SHERYL L. LOESCH, CLERK

s/$$d., Deputy Clerk

Copy to:

Unrepresented Parties

Case 3:16-cv-00638-BJD-MCR

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANTONIO DEMARCUS WOODSON,

Plaintiff. .

Case No. 3:16-cv-638-J-39MCR

MICHAEL JOHNSON, et al.,

Defendants.

ORDER OF DISMISSAL WITHOUT PREJUDICE

Plaintiff, an inmate incarcerated at Florida State Prison

(FSP) who is proceeding pro se and

forma pauperis, initiated

this cause of action by filing a Civil Rights Complaint (Complaint)

(Doc. 1) pursuant to 42 U.S.C. § 1983 on May 20, 2016, pursuant to

the mailbox rule.

He names Warden John Palmer, Assistant Warden

Brad Whitehead, Captain Rizer, and Sergeant Michael Johnson as the

Defendants.

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

federal

deprivation occurred under color of state law.

law and

404 U.S.

519

(1972).

Haines v.

"A claim is frivolous if it is

without arguable merit either in law or fact."

251 F. 3d 1346, 1349 (11th Cir.)

such

The Court must read

Plaintiff's pro se allegations in a liberal fashion.

Kerner.

(2)

Bilal v. Driver,

(citing Battle v. Central State

Hospital. 898 F.2d 126, 129 (11th Cir. 1990)), cert, denied. 534

Case 3:16-cv-00638-BJD-MCR

U.S. 1044 (2001) .

the

legal

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Frivolity dismissals should be ordered only when

theories

are

"indisputably meritless,"

Neitzke

Williams. 490 U.S. 319, 327 (1989), or when the claims rely on

factual

allegations

that

are

"clearly

Hernandez. 504 U.S. 25, 32 (1992).

baseless,"

Denton

Additionally, a claim may be

dismissed as frivolous when it appears that a plaintiff has little

or no chance of success.

Bilal v. Driver. 251 F.3d at 1349.

In the Complaint, Plaintiff claims that he was subjected to

cruel and unusual punishment when,

on May 23,

2012,

after an

alleged institutional rule infraction (disobeying a verbal order),

he was placed in a cell by Defendants Rizer and Johnson on property

restriction or "strip."

He complains that he was placed in a cell

with just a pair of boxer shorts.

He was not provided clothing,

bedding, and hygiene materials.

He remained on strip status for

seventy-two hours,

He alleges this was punishment for disobeying

a verbal order, prior to his receiving a disciplinary report for

that rule infraction.

He also complains that he was deprived of

due process of law because he was placed on property restriction

prior to receiving a disciplinary report and a hearing.

Plaintiff

complains

that

Assistant

Warden

Whitehead's

authorization of Plaintiff's placement on strip status deprived him

of due process of law.

He alleges that he was placed on strip

status again on Wednesday August 5, 2015, and Warden Palmer passed

the cell where Plaintiff was confined for seventy-two hours on

Case 3:16-CV-00638-BJD-M CR

Document 3

Filed 05/26/2016

strip status and failed to take any action.

Page 3 of 10 PagelD 11

As relief, Plaintiff

seeks declaratory relief, injunctive relief, punitive damages, and

nominal damages (although he references a large sum of money as

nominal damages).

In Chandler v. Crosbv. 379 F.3d 1278, 1288-89 (11th Cir. 2004)

(footnote

omitted),

the

Eleventh

Circuit

addressed

conditions complaint and said:

; The Eighth Amendment to the United States

Constitution states: "Excessive bail shall not

be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted." The

"cruel and unusual punishments" standard

applies to the conditions of a prisoner's

confinement. Rhodes v. Chapman. 452 U.S. 337,

345-46, 101 S.Ct. 2392, 2398-99, 69 L.Ed.2d 59

(1981).

While "the primary concern of the

drafters was to proscribe tortures and other

barbarous methods of punishment," the Supreme

Court's "more recent cases [show that] [t]he

[Eighth]

Amendment

embodies

broad

and

idealistic concepts of dignity, civilized

standards, humanity, and decency." Estelle v.

Gamble. 429 U.S. 97, 102, 97 S.Ct. 285, 290,

50 L.Ed.2d 251 (1976) (marks, citations, and

brackets omitted). "No static test can exist

by which courts determine whether conditions

of confinement are cruel and unusual, for the

Eighth Amendment must draw its meaning from

the evolving standards of decency that mark

the progress of a maturing society." Rhodes.

452 U.S. at 346, 101 S.Ct. at 2399 (marks and

citation omitted).

Even so, "the Constitution does not

mandate comfortable prisons." Id. at 349, 101

S.Ct. at 2400.

If prison conditions are

merely "restrictive and even harsh, they are

part of the penalty that criminal offenders

pay for their offenses against society." Id.

at 347, 101 S.Ct. at 2399.

Generally

prison

Case 3:16-cv-00638-BJD-MCR

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speaking, prison conditions rise to the level

of an Eighth Amendment violation only when

they "involve the wanton and unnecessary

infliction of pain." Id.

Plaintiff is an inmate confined in FSP,I a high security

institution.

In order to establish an Eighth Amendment conditions

of confinement claim, he must demonstrate that a prison official

was deliberately indifferent to a substantial risk of serious harm

to him.

Bennett v. Chitwood. 519 F. App'x 569, 573 (11th Cir.

2013) (per curiam) (citing Farmer v. Brennan. 511 U.S. 825, 832-33

(1994)).

To do so, he must meet both the objective and subjective

components to the deliberate-indifference test.

Id.

Farmer. 511 U.S. at 834).

To satisfy the objective, "substantial

risk of serious harm" component, a plaintiff

"must

show

deprivation

that

is,

'objectively, sufficiently serious,' which

means that the defendants' actions resulted in

the denial of the minimal civilized measure of

life's necessities." Cottrell v. Caldwell. 85

F.3d 1480, 1491: (11th Cir. 1996).

"The

challenged condition must be !extreme t II : the

prisoner must show that "society considers the

risk that the prisoner complains of to be so

grave that it violates contemporary standards

of decency to expose anyone unwillingly to

such a risk." Chandler v. Crosbv. 379 F.3d

1278, 1289 (11th Cir. 2004). In evaluating an

Eighth Amendment claim, we consider both the.

"severity"

and

the

"duration"

the

prisoner's exposure to extreme temperatures.

Id. at 1295.

Merely showing that prison

conditions are uncomfortable is not enough.

Id. at 1289.

(citing

Case 3:16-cv-00638-BJD-MCR

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Filed 05/26/201(5

Page 5 of 10 PagelD 13

For the subjective component, the prison

official must (1) have subjective knowledge of

the risk of serious harm, and (2) nevertheless

fail to respond reasonably to the risk.

Fanner, 511 U.S. at 837, 114 S.Gt. at 1979.

Subjective knowledge on the part of the prison

official requires that the official was aware

of the facts "from which the inference could

be drawn that a substantial risk of serious

harm exist [ed]," and that the official

actually drew that inference.

Burnette v.

Tavlor. 533 F.3d 1325, 1330 (11th Cir. 2008).

A prison official must have a sufficiently,

culpable state of mind to be deliberately

indifferent.

Carter v. Galloway. 352 F.3d

1346, 1349 (11th Cir. 2003). "[T]he evidence

must demonstrate that with knowledge of the

infirm conditions, the official knowingly or

recklessly declined to take actions that would

have improved the conditions."

Thomas v.

Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010)

(alteration and quotation omitted). Mistakes

and even negligence on the part of prison

officials are not enough for a constitutional

violation. Crosbv. 379 F.3d at 1289.

Id. at 574.

Although Plaintiff has presented facts showing the conditions

of his confinement were uncomfortable, they are not extreme.1 Some

prison conditions have been found to be extreme, qualifying as

cruel and unusual under the Eighth Amendment:

. 1 For example, in Bennett. 519 F. App'x at 573, the Eleventh

Circuit concluded that, even though the plaintiff alleged he was

uncomfortably cold when he was required to remain nude for

approximately ten and one half hours in fifty degree temperatures,

prison officials did not subject the plaintiff to cruel and unusual

punishment where they did not require the inmate to go without

clothing or bed linens overnight, and the inmate did not report

medical problems as result of his exposure to cold. Id.

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Chandler

Filed 05/26/2016

Crosbv.

379

F.3d

Page 6 of 10 PagelD 14

1278

(11th Cir.

2004), the Eleventh Circuit

examined a number of cases across the nation

for guidance on when allegations of extreme

cold

qualified

"cruel

and unusual

punishment."

Cases where conditions were

found to be serious deprivations were:

Mitchell v. Maynard. 80 F.3d 1433, 1443 (10th

Cir. 1996) (lack of heat combined with the

lack of clothing and bedding over extended

period of time with other conditions such as

no exercise, no hot water, no toilet paper);

Del Raine v. Williford. 32 F.3d 1024, 1035-36

(7th Cir. 1994) (broken windows offered no

relief, from the outdoor wind chills of forty

to fifty degrees below zero);Henderson v.

DeRobertis. 940 F.2d 1055, 1060 (7th Cir.

1991) (inmates exposed to temperatures below

freezing for four days); Corselli v. Coughlin.

842 F.2d 23, 27 (2d Cir. 1988) (inmate exposed

for 3 months to temperatures so cold there was

ice in the toilet bowl); Lewis v. Lane. 816

F.2d 1165, 1171 (7th Cir. 1987)

(inmate

exposed repeatedly to cell; temperatures

between 52 and 54 degrees).

Wineston v. Pack. No. 4:06cv438-RH/AK, 2009 WL 3126252, at *12

(N.D. Fla. Sept. 24, 2009) (Not Reported in F.Supp.2d).

However, conditions found not to constitute constitutional

violations are: Palmer v. Johnson. 193 F.3d 346, 349 (5th Cir.

1999) (inmates left outdoors overnight in temperatures of 59 degree

temperatures); and Hernandez v. Fla. Dep't of Corr.. 281 F. App'x

862 (11th Cir. 2008) (exposure to winter temperatures such as they

are in Northern Florida for two months not considered harmful to

inmate's health).

Also, in the Wineston case, the court concluded

that the plaintiff's placement in a cell without sheets or blankets

for less than twenty-four hours when the temperature dropped to

Case 3:16-cv-00638-BJD-MCR

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fifty-eights degrees did not constitute cruel and usual punishment.

Id.

Here, with respect to the objective; component of Plaintiff's1

Eighth Amendment claim,

Plaintiff does not allege that it was

extremely cold in the cell.

Indeed, he does not describe the

temperature in his cell during the May 23, 2012 incident or the

August 5, 2015 incident.

Obviously, these incidents allegedly

occurred in Florida in the late spring and summer, not during the

cold winter months.

Plaintiff does not contend that he suffered

any injury from his exposure to extreme temperatures while he was

on property restriction status,

Thus, this Court concludes that

his seventy-two hour exposure to the temperatures in a prison cell

in late May and August is not the sort of extreme condition that

violates contemporary standards of decency.

With respect to the subjective component, Plaintiff admits

that he was placed on property restriction after a disciplinary

infraction incident

for which he was apparently charged with

disobeying a verbal order.

Of note, placement in strip status is

a tool utilized for the security and safety of inmates and staff

members.

Plaintiff does not allege that he ever informed the named;

Defendants he was uncomfortably gold during the relevant seventytwo hour period.

Moreover, Plaintiff does not claim that the named

Defendants had subjective knowledge of any risk of serious harm to

- 1

Case 3:16-cv-0G638-BJD-MCR

Plaintiff.

Document 3

Filed 05/26/2016

Page 8 of 10 Page ID 16

Instead, he simply states that no physical injury is

required.

Based on a thorough review of the Complaint i Plaintiff has

failed to allege any facts that would support a finding that the

named

Defendants

punishment.

subjected

Plaintiff

cruel

and

unusual

Indeed, the denial of bedding and comfort items and

the circumstances of which Plaintiff complains "do not reflect that

he was subject to the type of extreme conditions that posed an

unreasonable risk of serious damage to health or safety."

Edler v.

Gielow, No. 3:08cv530/WS/EMT, 2010 WL 3958014, at *7 (N.D. Fla*

Oct. 7, 2010) (Not Reported in F.Supp.2d.).

Therefore, this case

is due to be dismissed as frivolous because Plaintiff has little or

no chance of success on his Eighth Amendment claim.

Also, the Court concludes that Plaintiff has little or no

chance of success on his due process claim.2

To the extent

Plaintiff is raising a due process claim because he was immediately

confined in a type of management confinement (property restriction

or strip) after the rule infraction (disobeying a verbal order),

the alleged actions of the Defendants did not impose an atypical

and significant hardship on. Plaintiff in relation to the ordinary

2 To the extent Plaintiff is contending that the Defendants

deprived him of his personal property by placing him on a brief

period of property restriction, this brief deprivation of property

after a disciplinary incident and prior to the disciplinary hearing

does not rise to the level of a federal constitutional violation.

Case 3:16-cv-00638-BJD-MCR

Document 3

incidents of prison life.

(1995)

(holding

that

Filed 05/26/2016

Page 9 of 10 PagelD 17

See Sandin v. Conner. 515 U.S. 472, 484

the

prisoner's

thirty-day

disciplinary

segregation "did not present the type of atypical, significant

deprivation in which a State might conceivably create a liberty

interest"); Wilson v. Blankenship. 163

Cir.

1998)

F.3d 1284, 1295 n.17 (11th

(finding the due process clause does not create a

liberty interest in being confined in general population rather

than administrative segregation); Hewitt v. Helms. 459 U.S. 460,

4 66 (1983)

(receded from by Sandin)

(an inmate has no liberty

interest in being confined in general population rather than in the

more restrictive atmosphere of administrative or disciplinary

confinement).

Relying on the reasoning of Sandin and its progeny,

the Court holds that this action is due to be dismissed as

frivolous.3

In the Complaint, Plaintiff admits that he did not suffer any

physical injury.

To the extent he is seeking damages for mental or

emotional injury, his claim for punitive damages and his apparent

claim for compensatory damages are barred by 42 U.S.C. § 1997e(e)

as long as he remains incarcerated.4

See Napier v. Preslicka. 314

3 The Court notes that Plaintiff does not assert that he was

deprived of a disciplinary proceeding with regard to a disciplinary

charge. Therefore, he has not presented operative facts supporting

a due process claim in this regard.

4 Although Plaintiff states that he is seeking nominal damages,

he references a large sum of money which would really either

constitute punitive or compensatory damages,

Of note, nominal

damages are usually entered in the amount of $1>00.

Case 3:16-cv-00638-BJD-MCR

F. 3d 528,

531-32

Document 3

(11th Cir.

2002),

Filed 05/26/2016

cert,

Page 10 of 10 PagelD 18

denied.

540 U.S.

1112

(2004) .

In conclusion, Plaintiff has little or no chance of success.

Thus,

for all of the above-stated reasons,

this case will be

dismissed without prejudice pursuant to 28 U.S.C. § 1915(e) (2) (B).

Accordingly, it is now

ORDERED AND ADJUDGED:

This case is DISMISSED WITHOUT PREJUDICE.

The Clerk of the Court shall enter judgment dismissing

this case without prejudice, and close this case.

DONE AND ORDERED at Jacksonville, Florida, this

-U>

___ day

of May, 2016.

UNITED STATES DISTRICT JUDGE

sa 5/25

Antonio Damarcus Woodson

Case 3:16-cv-00470-HES-JRK

Document 5

Filed 05/06/2016

Page 1 of 2 PagelD 25

United States District Court

Middle District of Florida

Jacksonville Division

ANTONIO D. WOODSON,

Plaintiff,

-vs-

Case No. 3:16-cv-470-J-20JRK

BRAD WHITEHEAD, etc.; et al.,

Defendants.

JUDGMENT IN A CIVIL CASE

Decision by Court.

This action came to trial or hearing before the Court. The issues have been

tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

that pursuant to this Court’s Order, entered May 4, 2016 this case is hereby

dismissed without prejudice.

Date: May 6, 2016

SHERYL L. LOESCH, CLERK

/$/ g.HJl

By : Deputy Clerk

Copy to:

Counsel of Record

Unrepresented Parties

Case 3:16-cv-00470-HES-JRK

Document 4

Filed 05/04/2016

Page 1 of 10 PagelD 15

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANTONIO D. WOODSON,

Plaintiff,

Case No. 3:16-cv-470-J-20JRK

BRAD WHITEHEAD, etc.; et al.,

Defendants.

ORDER OF DISMISSAL WITHOUT PREJUDICE

Plaintiff,

an inmate incarcerated at Florida State Prison

(FSP) who is proceeding pro se and in forma pauperis, initiated

this cause of action by filing a Civil Rights Complaint (Complaint)

(Doc. 1) pursuant to 42 U.S.C. § 1983 on April 18, 2016.

He names

Warden John

Palmer,

Assistant

Captain

Michael A.

Honour,

and

Warden

Lieutenant

Brad Whitehead,

John

McSpadden

the

Defendants.

In the Complaint, Plaintiff claims that he was subjected to

cruel and unusual punishment when, on April 26, 2012, after an

alleged rule infraction (disobeying a verbal order), he was placed

cell

Defendants

restriction or "strip."

Honour

and

McSpadden

property

He complains that he was placed in a cell

with just a pair of boxer shorts.

He was not provided clothing,

bedding, and hygiene materials.

He remained on strip status for

seventy-two hours.

He alleges this was punishment for disobeying

a verbal order, prior to his receiving a disciplinary report for

Case 3:16-cv-00470-HES-JRK

that rule infraction.

Document 4

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Page 2 of 10 PagelD 16

He also complains that he was deprived of

due process of law because he was placed on property restriction

prior to receiving a disciplinary report and a hearing.

Plaintiff

complains

that

Assistant

Warden

Whitehead's

authorization of his placement on strip status deprived him of due

process of law.

Plaintiff was placed on strip status again on

Wednesday August 5, 2015, and Warden Palmer passed the cell where

Plaintiff was confined for seventy-two hours on strip status and

failed to take any action.

As relief, Plaintiff seeks injunctive

relief, punitive damages, and nominal damages.

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

federal

deprivation occurred under color of state law.

law

and

404 U.S.

519

(1972).

such

The Court must read

Plaintiff's pro se allegations in a liberal fashion.

Kerner.

(2)

Haines v.

"A claim is frivolous if it is

without arguable merit either in law or fact."

251 F.3d 1346, 1349 (11th Cir.)

Bilal v. Driver.

(citing Battle v. Central State

Hospital. 898 F.2d 126, 129 (11th Cir. 1990)), cert. denied. 534

U.S. 1044 (2001).

the

legal

Williams.

factual

Frivolity dismissals should be ordered only when

theories

are

"indisputably

490 U.S. 319, 327

allegations

that

meritless,"

Neitzke

(1989), or when the claims rely on

are

"clearly

Hernandez. 504 U.S. 25, 32 (1992).

baseless,"

Denton

Additionally, a claim may be

Case 3:16-cv-00470-HES-JRK

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dismissed as frivolous when it appears that a plaintiff has little

or no chance of success.

Bilal v. Driver. 251 F.3d at 1349.

The Eleventh Circuit, in Chandler v. Crosbv. 379 F.3d 1278,

1288-89 (11th Cir. 2004) (footnote omitted), explained:

The Eighth Amendment to the United States

Constitution states: "Excessive bail shall not

be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted." The

"cruel and unusual punishments" standard

applies to the conditions of a prisoner's

confinement. Rhodes v. Chapman. 452 U.S. 337,

345-46, 101 S.Ct. 2392, 2398-99, 69 L.Ed.2d 59

(1981) .

While "the primary concern of the

drafters was to proscribe tortures and other

barbarous methods of punishment," the Supreme

Court's "more recent cases [show that] [t]he

[Eighth]

Amendment

embodies

broad

and

idealistic concepts of dignity, civilized

standards, humanity, and decency." Estelle v.

Gamble. 429 U.S. 97, 102, 97 S.Ct. 285, 290,

50 L.Ed.2d 251 (1976) (marks, citations, and

brackets omitted). "No static test can exist

by which courts determine whether conditions

of confinement are cruel and unusual, for the

Eighth Amendment must draw its meaning from

the evolving standards of decency that mark

the progress of a maturing society." Rhodes.

452 U.S. at 346, 101 S.Ct. at 2399 (marks and

citation omitted).

Even so, "the Constitution does not

mandate comfortable prisons." Id. at 349, 101

S.Ct. at 2400.

If prison conditions are

merely "restrictive and even harsh, they are

part of the penalty that criminal offenders

pay for their offenses against society." Id.

at 347, 101 S.Ct. at 2399.

Generally

speaking, prison conditions rise to the level

of an Eighth Amendment violation only when

they "involve the wanton and unnecessary

infliction of pain." Id.

Case 3:16-cv-00470-HES-JRK

Document 4

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Plaintiff is an incarcerated prisoner, confined in FSP.

such,

in order to establish an Eighth Amendment conditions of

confinement claim, he must demonstrate that a prison official was

deliberately indifferent to a substantial risk of serious harm to

him.

Bennett v. Chitwood. 519 F. App'x 569, 573 (11th Cir. 2013)

(per curiam)

(1994)).

(citing Farmer v.

Brennan.

511 U.S.

825,

832-33

There is both an objective and a subjective component to

the deliberate-indifference test.

Id. (citing Farmer. 511 U.S. at

834) .

To satisfy the objective, "substantial

risk of serious harm" component, a plaintiff

"must

show

deprivation

that

is,

•objectively, sufficiently serious,' which

means that the defendants* actions resulted in

the denial of the minimal civilized measure of

life's necessities." Cottrell v. Caldwell. 85

F.3d 1480, 1491 (11th Cir. 1996).

"The

challenged condition must be 'extreme'": the

prisoner must show that "society considers the

risk that the prisoner complains of to be so

grave that it violates contemporary standards

of decency to expose anyone unwillingly to

such a risk."

Chandler v, Crosbv. 379 F.3d

1278, 1289 (11th Cir. 2004). In evaluating an

Eighth Amendment claim, we consider both the

"severity"

and

the

"duration"

the

prisoner's exposure to extreme temperatures.

Id. at 1295.

Merely showing that prison

conditions are uncomfortable is not enough.

Id. at 1289.

For the subjective component, the prison

official must (1) have subjective knowledge of

the risk of serious harm, and (2) nevertheless

fail to respond reasonably to the risk.

Farmer. 511 U.S. at 837, 114 S. Ct. at 1979.

Case 3:16-cv-00470-HES-JRK

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Subjective knowledge on the part of the prison

official requires that the official was aware

of the facts "from which the inference could

be drawn that a substantial risk of serious

harm exist[ed]," and that the official

actually drew that inference.

Burnette v.

Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).

A prison official must have a sufficiently

culpable state of mind to be deliberately

indifferent.

Carter v. Galloway. 352 F.3d

1346, 1349 (11th Cir. 2003). "(T]he evidence

must demonstrate that with knowledge of the

infirm conditions, the official knowingly or

recklessly declined to take actions that would

Thomas v.

have improved the conditions."

Brvant. 614 F.3d 1288, 1312 (11th Cir. 2010)

(alteration and quotation omitted). Mistakes

and even negligence on the part of prison

officials are not enough for a constitutional

violation. Crosby. 379 F.3d at 1289.

Id. at 574.

Plaintiff has presented facts showing the conditions of his

confinement were uncomfortable,

Bennett,

not extreme.

the Eleventh Circuit concluded that,

For example,

even though the

plaintiff alleged he was uncomfortably cold when he was required to

remain nude for approximately ten and one half hours in fifty

degree temperatures, prison officials did not subject the plaintiff

to cruel and unusual punishment where they did not require the

inmate to go without clothing or bed linens overnight, and the

inmate did not report medical problems as result of his exposure to

cold.

Id.

Case 3:16-cv-00470-HES-JRK

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There have been situations where prison conditions were found

to be extreme, qualifying as cruel and unusual under the Eighth

Amendment:

In Chandler v. Crosbv. 379 F.3d 1278

(11th Cir.

2004),

the Eleventh Circuit

examined a number of cases across the nation

for guidance on when allegations of extreme

cold

qualified

"cruel

and

unusual

punishment."

Cases where conditions were

found to be serious deprivations were:

Mitchell v. Mavnard. 80 F.3d 1433, 1443 (10th

Cir. 1996) (lack of heat combined with the

lack of clothing and bedding over extended

period of time with other conditions such as

no exercise, no hot water, no toilet paper);

Del Raine v. Williford. 32 F.3d 1024, 1035-36

(7th Cir. 1994) (broken windows offered no

relief from the outdoor wind chills of forty

to fifty degrees below zero); Henderson v.

DeRobertis. 940 F.2d 1055, 1060 (7th Cir.

1991) (inmates exposed to temperatures below

freezing for four days); Corselli v. Coughlin.

842 F.2d 23, 27 (2d Cir. 1988) (inmate exposed

for 3 months to temperatures so cold there was

ice in the toilet bowl); Lewis v. Lane. 816

F.2d 1165, 1171 (7th Cir. 1987)

(inmate

exposed

repeatedly to cell temperatures

between 52 and 54 degrees) .

Wineston v. Pack.

No. 4:06cv4 38-RH/AK,

(N.D. Fla. Sept. 24, 2009)

2009 WL 3126252, at *12

(Not Reported in F.Supp.2d). i

In the

Wineston case, the court concluded that the plaintiff's placement

in a cell without sheets or blankets for less than twenty-four

' Conditions found not to constitute constitutional violations

are: Palmer v. Johnson. 193 F.3d 346, 349 (5th Cir. 1999) (inmates

left outdoors overnight in temperatures of 59 degree temperatures);

and Hernandez v. Fla. Dep't of Corr.. 281 F. App'x 862 (11th Cir.

2008) (exposure to winter temperatures such as they are in Northern

Florida for two months not considered harmful to inmate's health).

Case 3:16-cv-00470-HES-JRK

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Page 7 of 10 PagelD 21

hours when the temperature dropped to fifty-eights degrees did not

constitute cruel and usual punishment.

Id.

Here, with respect to the objective component of Plaintiff's

Eighth Amendment claim,

Plaintiff does not allege that it was

extremely cold in the cell

Indeed,

he does not describe the

temperature in his cell during the April 26, 2012 incident or the

August 5,

2015 incident.

Obviously,

occurred in the spring and summer,

months.

these incidents allegedly

not during the cold winter

Plaintiff does not contend that he suffered any injury

from his exposure to extreme temperatures while he was on property

restriction status.

Thus, this Court concludes that his seventy-

two hour exposure to the temperatures in a prison cell in April and

August

not

the

sort

extreme

condition

that

violates

contemporary standards of decency.

With respect to the subjective component,

Plaintiff admits

that he was placed on property restriction after a disciplinary

infraction incident

for which he was

disobeying a verbal order.

eventually charged with

Of note, placement in strip status is

a tool utilized for the security and safety of inmates and staff

members.

Plaintiff does not allege that he ever informed the named

Defendants he was uncomfortably cold during the relevant seventytwo hour period.

Moreover, Plaintiff does not claim that the named

Defendants had subjective knowledge of any risk of serious harm to

Plaintiff.

Instead, he simply states that no physical injury is

Case 3:16-cv-00470-HES-JRK

required.

Document 4

Filed 05/04/2016

Page 8 of 10 PagelD 22

On the contrary, the denial of bedding and comfort items

and the circumstances of which Plaintiff complains "do not reflect

that he was subject to the type of extreme conditions that posed an

unreasonable risk of serious damage to health or safety."

Gielow, No. 3:08cv530/WS/EMT, 2010 WL 3958014, at *7

Oct. 7, 2010)

Edler v.

(N.D. Fla.

(Not Reported in F.Supp.2d.).

Based on a thorough review of the, Complaint, Plaintiff has

failed to allege any facts that would support a finding that the

named

Defendants

punishment.

subjected

Plaintiff

cruel

and

unusual

Thus, this case is due to be dismissed as frivolous

because Plaintiff has little or no chance of success on his Eighth

Amendment claim.

In addition, Plaintiff has little or no chance of success on

his due process claim.2

To the extent Plaintiff is raising a due

process claim because he was immediately confined in a type of

management confinement (property restriction or strip) after the

rule infraction (disobeying a verbal order), the alleged actions of

the Defendants did not impose an atypical and significant hardship

on Plaintiff in relation to the ordinary incidents of prison life.

Bee Sandin v. Conner. 515 U.S. 472, 484 (1995)

(holding that the

siHIUlliliil

Case 3:16-cv-00470-HES-JRK

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Page 9 of 10 PagelD 23

prisoner's thirty-day disciplinary segregation "did not present the

type of atypical, significant deprivation in which a State might

conceivably create a liberty interest"); Wilson v. Blankenship, 163

F.3d 1284,

1295 n.17

(11th Cir. 1998)

(finding the due process

clause does not create a liberty interest in being confined in

general population rather than administrative segregation); Hewitt

v. Helms. 459 U.S. 460, 466 (1983)

inmate has no

liberty

population rather than

interest

(receded from bv Sanding

in being

confined

(an

in general

in the more restrictive atmosphere of

administrative or disciplinary confinement).

Therefore, relying on

the reasoning of Sandin and its progeny, this action is due to be

dismissed as frivolous.

Plaintiff admits that he was charged with a disciplinary

violation of disobeying a verbal order.

He does not contend that

he was deprived of a disciplinary proceeding with regard to this

disciplinary charge.

Therefore, he has not presented operative

facts supporting a due process claim in this regard.

In the Complaint, Plaintiff admits that he did not suffer any

physical injury when these events occurred at FSP.

As a result, he

is seeking damages for mental or emotional injury,

Therefore, his

claim is barred by 42 U.S.C. § 1997e(e)

incarcerated.

as long as he remains

See Napier v. Preslicka. 314 F.3d 528, 531-32 (11th

Cir. 2002), cert. denied. 540 U.S. 1112 (2004).

Case 3:16-cv-00470-HES-JRK

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Page 10 of 10 PagelD 24

Based on all of the above, Plaintiff has little or no chance

of success.

Thus, for all of the above-stated reasons, this case

will be dismissed without prejudice pursuant

U.S.C.

1915(e)(2)(B).

Accordingly, it is now

ORDERED AND ADJUDGED:

This case is DISMISSED WITHOUT PREJUDICE.

The Clerk of the Court shall enter judgment dismissing

this case without prejudice, and close this case.

DONE AND ORDERED at Jacksonville, Florida, this

of April, 2016.

JUDGE

sa 4/27

Antonio D. Woodson

day

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.