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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JOEL BARCELONA,

Plaintiff,

vs. Case No.: 3:20cv5356/MCR/EMT

H. BURKES, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff Joel Barcelona (Barcelona), an inmate of the Florida Department of 

Corrections (FDOC) proceeding pro se and in forma pauperis, commenced this 

action by filing a civil rights complaint pursuant to 42 U.S.C. §1983 (ECF No. 1). 

Presently before the court is Barcelona’s Third Amended Complaint (ECF No. 18). 

The case was referred to the undersigned for the issuance of all preliminary 

orders and any recommendations to the district court regarding dispositive matters. 

See N.D. Fla. Loc. R. 72.2(C); see also 28 U.S.C. § 636(b)(1)(B)–(C); Fed. R. Civ. 

P. 72(b). After careful consideration of the issues presented, it is the opinion of the 

undersigned that Barcelona’s claims should be dismissed for failure to state a claim

upon which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 

1915A(b). 

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I. BACKGROUND

Barcelona sues three Defendants in this case: (1) H. Burkes, a correctional 

officer at the Northwest Florida Reception Center (NWFRC); (2) W. Schwarz, a 

major at NWFRC; and (3) A. Keaton, a representative of the Office of the Secretary 

of the FDOC (ECF No. 18 at 1–2).1

 Barcelona claims Defendants were deliberately 

indifferent to his serious medical needs, in violation of the Eighth Amendment, by 

destroying his hearing aid during a cell search (Defendant Burkes) and failing to 

replace the hearing aid (all Defendants) (id. at 8–14). As relief, Barcelona seeks 

monetary damages (id. at 12–13).

II. RELEVANT LEGAL STANDARDS

A. Statutory Screening Standard 

Because Barcelona is a prisoner proceeding in forma pauperis, the court must 

dismiss this case if the court determines it is frivolous or malicious, fails to state a 

claim upon which relief may be granted, or seeks monetary relief against a defendant 

who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). The 

statutory language “tracks the language of Federal Rule of Civil Procedure 

12(b)(6),” and thus dismissals for failure to state a claim are governed by the same 

1 The court refers to the page numbers automatically assigned by the court’s electronic filing 

system.

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standard as Rule 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 

1997). The allegations of the complaint are taken as true and construed in the light 

most favorable to the plaintiff. See Davis v. Monroe Cnty. Bd. of Educ., 120 F.3d 

1390, 1393 (11th Cir. 1997).

The court may consider documents attached to a complaint or incorporated 

into the complaint by reference, as well as matters of which a court may take judicial 

notice.2 See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); 

Saunders v. Duke, 766 F.3d 1262, 1272 (11th Cir. 2014).

2 Federal Rule of Evidence 201 permits a court to “judicially notice a fact that is not subject to 

reasonable dispute because it . . . can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). However, “the taking of 

judicial notice of facts is, as a matter of evidence law, a highly limited process. The reason for 

this caution is that the taking of judicial notice bypasses the safeguards which are involved with 

the usual process of proving facts by competent evidence in district court.” Shahar v. Bowers, 120 

F.3d 211, 214 (11th Cir. 1997) (per curiam) (en banc). “In order to fulfill these safeguards, a party 

is entitled to an opportunity to be heard as to the propriety of taking judicial notice.” Dippin’ Dots, 

Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197, 1205 (11th Cir. 2004) (internal quotation marks 

omitted and alteration adopted). Rule 201 does not require courts to warn parties before taking 

judicial notice of some fact; but, upon the party’s request, it does require an opportunity to be heard 

after the court takes notice. Fed. R. Evid. 201(e).

Barcelona is hereby advised that if he disputes the accuracy of the facts taken from the 

sources identified in this Report and Recommendation, or if he otherwise wishes to be heard on 

the propriety of the court taking judicial notice of those facts, he must do so in an objection to this 

Report and Recommendation. See Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 651–53 (11th 

Cir. 2020) (district court properly took judicial notice where petitioner had opportunity to object 

to report and recommendation after magistrate judge took judicial notice of dates from petitioner’s 

state court dockets, but petitioner did not ask to be heard, dispute accuracy of judicially noticed 

facts, or indicate he lacked the ability to dispute state court dockets).

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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 

and citation 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 and citation 

omitted).

The determination of 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 (citation omitted). The court 

is “not bound to accept as true a legal conclusion couched as a factual allegation.” 

Id. at 678 (internal quotation marks and citation 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 and citation omitted). Stated succinctly,

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[p]leadings that, because they are no more than conclusions, are not 

entitled to the assumption of truth. While legal conclusions can provide 

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

allegations. When there are well-pleaded factual allegations, a court 

should assume their veracity and then determine whether they plausibly 

give rise to an entitlement to relief.

Id. at 679.

A complaint also is subject to dismissal “when its allegations, on their face, 

show that an affirmative defense bars recovery on the claim.” Douglas v. Yates, 535 

F.3d 1316, 1321 (11th Cir. 2008) (internal quotation marks omitted). Qualified 

immunity is an affirmative defense. Kesinger v. Herrington, 381 F.3d 1243, 1247 

(11th Cir. 2004). Qualified immunity shields government officials from civil 

liability in their individual capacities when the government official acted within the 

scope of his discretionary authority and the official’s conduct did not violate clearly 

established statutory or constitutional rights. Id. at 1247–48. A correctional officer 

acts within the scope of his discretionary authority when conducting a search of an 

inmate’s cell. See Fla. Admin. Code R. 33-602.203(9)(a) (“All cells, lockers, 

dormitories and other areas of an institution may be searched in a reasonable manner 

at any time”); see also, e.g., Moton v. Walker, 545 F. App’x 856, 859 (11th Cir. 

2013) (holding that defendant was acting within his discretionary authority as an 

FDOC corrections officer when he searched inmate’s cell). Once an officer shows 

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that he acted within the scope of his discretionary authority, the plaintiff must 

attempt to overcome the qualified immunity defense by showing that: (1) the 

defendant violated a constitutional right, and (2) violation of the right was clearly 

established. Kesinger, 381 F.3d at 1248.

B. Eighth Amendment Standard

The Eighth Amendment prohibits the “inflict[ion]” of “cruel and unusual 

punishments.” U.S. Const. amend VIII. Under this Amendment, “[f]ederal and state 

governments . . . have a constitutional obligation to provide minimally adequate 

medical care to those whom they are punishing by incarceration.” Harris v. Thigpen, 

941 F.2d 1495, 1504 (11th Cir. 1991). As particularly relevant here, the Supreme 

Court has held that prison officials violate the bar on cruel and unusual punishments 

when they display “deliberate indifference to serious medical needs of prisoners.” 

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

A deliberate-indifference claim entails both an objective and a subjective 

component. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). First, the 

inmate must establish “an objectively serious medical need”—that is, “one that has 

been diagnosed by a physician as mandating treatment or one that is so obvious that 

even a lay person would easily recognize the necessity for a doctor’s attention”—

one that, “if left unattended, poses a substantial risk of serious harm.” Id. (alteration 

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adopted) (internal quotation marks omitted). Second, the inmate must prove that 

prison officials acted with deliberate indifference. Brown, 387 F.3d at 1351. 

“Deliberate indifference” requires two showings: an awareness of facts from which 

the inference could be drawn that a substantial risk of serious harm exists and 

drawing of the inference. Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) 

(internal quotations marks and citations omitted). Thus, deliberate indifference 

occurs only when a defendant knows of and disregards an excessive risk to inmate 

health or safety, is aware of facts from which the inference could be drawn that a 

substantial risk of serious harm exists, and draws that inference. Farmer v. Brennan, 

511 U.S. 825, 837 (1994). It is not enough that the unjustifiably high risk of harm 

is so obvious that the defendant should have known about it. Deliberate 

indifference requires that the defendant actually knew of the excessive risk to 

inmate health or safety. Id. at 836–37 (emphasis added). An “official’s failure to 

alleviate a significant risk that he should have perceived but did not, while no cause 

for commendation, cannot under our cases be condemned as the infliction of 

punishment.” Id. at 838. The Supreme Court has likened the deliberate-indifference 

standard to “subjective recklessness as used in the criminal law.” Id. at 839–40.

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III. DISCUSSION

As previously noted, Barcelona claims that Defendants were deliberately 

indifferent to his serious medical needs, in violation of the Eighth Amendment, by 

destroying his hearing aid during a cell search (Defendant Burkes) and failing to 

replace it (all Defendants). The facts concerning Barcelona’s hearing loss and 

receipt of a hearing aid are set forth in the Eleventh Circuit’s opinion in Barcelona 

v. Sec’y, Dep’t of Corr., 847 F. App’x 689 (11th Cir. Mar. 2, 2021). In that case, 

Barcelona brought a § 1983 action in the district court for the Southern District of 

Florida against the FDOC Secretary, warden of South Bay Correctional Facility, and 

Dr. Raymond Herr, claiming those Defendants were deliberately indifferent to his 

serious medical needs, in violation of the Eighth Amendment, because they refused 

to provide him with a hearing aid for his right ear.3

 847 F. App’x at 689–90. The 

Eleventh Circuit recited the underlying facts as follows:

Barcelona has been in the custody of the FDOC since March 21, 2005. 

On June 6, 2014, after he reported that he had experienced hearing loss 

to prison officials, Barcelona was seen by Dr. Arthur G. Zinaman, an 

audiologist. Dr. Zinaman found that Barcelona had asymmetrical 

hearing loss—“a profound hearing loss in the right ear and only mild 

hearing loss in the left ear.”[FN 1] Based on his observations, Dr. 

Zinaman noted that “Barcelona’s left ear would be a candidate for a 

hearing aid for overall hearing due to the lack of hearing in the right 

3 The district court case, Barcelona v. Sec’y, Dep’t of Corr., was assigned Case No. 9:15-cv-80102-

RLR (S.D. Fla.).

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ear.” On August 12, 2014, Dr. Zinaman issued a second report noting 

that “[a] mild gain device for the left ear may be beneficial. . . . 

Alternatively, a power instrument for the right ear may provide speech 

and environmental awareness with possible transcranial effect.”

[FN 1: “Profound” hearing loss is the most impaired level; 

“mild” hearing loss is the least impaired level.]

On August 22, 2014, Dr. Raymond Herr, the Chief Medical Officer for 

Corrections Healthcare Companies, reviewed Barcelona’s request for a 

hearing aid for his right ear. Dr. Herr denied Barcelona’s request, 

finding that:

Based on the audiometry results and the adequacy of the 

hearing levels in Mr. Barcelona’s left ear, he did not meet 

the medical criteria guidelines for bilateral hearing loss 

under HSB 15.03.27(G)(2)(a)–(b)[FN 2] and therefore 

Mr. Barcelona was not a candidate for a hearing aid. 

Additionally, based upon the audiometry results for the 

right ear, and the profound hearing loss, it was not 

medically probable that a power instrument device for the 

right ear could have remedied Mr. Barcelona’s conditions.

[FN 2: Health Services Bulletin No. 15.03.27 provided 

that a hearing aid recipient “must have a bilateral (both 

ears) hearing loss. A recipient who has a unilateral (one 

ear) hearing loss is not eligible for services.”]

On September 24, 2014, Barcelona filed a formal grievance with prison 

officials, asserting that the decision not to provide him with a hearing 

aid was inadequate medical care in violation of the Eighth Amendment 

and requesting that the prison provide him a hearing aid for his right 

ear. Dr. Jules Heller, the medical director for the prison, prepared a 

response, noting that:

Records indicate you only have hearing loss in your right 

ear. Per policies and procedures, in order to be eligible for 

services, the recipient must have a bilateral (both ears) 

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hearing loss. A referral was submitted, but denied because 

you do not meet this criteria based on your evaluation with 

the audiologist. Based on the above information your 

grievance is denied.

The Warden signed off on the response and denied Barcelona’s 

grievance. Barcelona submitted an administrative appeal to the 

Secretary of the Department of Corrections, but the appeal was returned 

“without action” because it was untimely. On November 16, 2014, 

Barcelona filed another formal grievance regarding the decision, which 

was also denied, as was the subsequent appeal.

. . . .

The district court granted the defendants’ motion for summary 

judgment. As relevant to this appeal, it found that the defendants were 

“protected by qualified immunity” in their individual capacities.[FN 5] 

First, the district court noted that Barcelona did “not dispute that the

[d]efendants were acting within their discretionary authority in 

declining to authorize a hearing aid.” Second, the district court 

determined that “the constitutional question of whether [Barcelona’s] 

asymmetrical hearing loss constituted a serious medical need” was not 

clearly established in 2014 when Barcelona’s hearing aid request was 

denied.

[FN 5: The district court also found that the defendants 

were “absolutely immune from suits for damages” in their 

official capacities due to state sovereign immunity, but we 

do not address this issue because Barcelona does not 

challenge the district court’s grant of summary judgment 

to the defendants on his official capacity claims.]

847 F. App’x at 690–92.

In November 2018, while Barcelona’s case was pending in the Southern 

District, Barcelona was fitted for a hearing aid for his left ear by a licensed hearing 

aid specialist. See Barcelona v. Sec’y, Dep’t of Corr., No. 9:15cv80102-RLR, Order 

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Granting Defs.’ Mot. Summ. J. (S.D. Fla. Sept. 10, 2019) (citations to supporting 

evidentiary materials omitted). According to the district court’s factual findings, 

although Barcelona’s hearing in both ears had remained stable in the intervening 

years, the Health Services Guidelines changed as of November 1, 2018, so that 

Barcelona qualified for a left ear hearing aid. Id. (citations to supporting evidentiary 

materials omitted). The licensed hearing aid specialist testified in her deposition that

Barcelona’s hearing in the left ear improved with the hearing aid. Id. (citations to 

supporting evidentiary materials omitted). However, even with the hearing aid, 

Barcelona stated that as of August 2019 (five months prior to Defendants’ conduct 

in this case), he could not “hear T.V., loud speaker, mail calls, meal calls, or [if] 

somebody [was] calling behind [him] where the voice came from.” 

Now we come to the facts Barcelona alleges in the instant case. On January 

4, 2020, a captain ordered a “shake down” of inmates’ cells in dormitory C-2, where 

Barcelona was housed (ECF No. 7 at 4). During the cell search, Defendant Burkes

retrieved Barcelona’s property from where it was stored and threw it on the floor, 

including Barcelona’s “hearing aid in a hearing aid case,” which caused the hearing 

aid to break (see id. at 5–6, 14–15). Barcelona filed a formal grievance to the 

warden, requesting that the hearing aid be replaced (ECF No. 18 at 8). Defendant 

Schwarz denied the grievance, stating that Officer Burkes was interviewed and 

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denied breaking the hearing aid (id.). Barcelona filed an appeal with the Office of 

the Secretary of the FDOC, again seeking replacement of the hearing aid (id.). 

Defendant Keaton, the Secretary’s representative, returned the appeal without action

due to a procedural defect (id.). Barcelona re-filed the appeal, but Keaton again 

returned it without action on the same procedural ground (id.). 

Barcelona contends Officer Burkes throwing the hearing aid on the floor and 

refusing to replace it, and Major Schwarz and Representative Keaton denying his 

grievances and refusing to replace the hearing aid, constituted deliberate indifference 

to his serious medical needs (EF No. 18 at 8–14). As in Barcelona’s case in the 

Southern District, Barcelona relies on Gilmore v. Hodges, 738 F.3d 266 (11th Cir. 

2013), in support of his contention that his hearing loss constituted a serious medical

need (see ECF No. 18 at 10). In the Southern District case, however, the Eleventh 

Circuit rejected Barcelona’s argument that Gilmore clearly established that 

asymmetrical hearing loss (which is the type with which Barcelona was diagnosed) 

is a serious medical need, stating as follows:

Although we held in Gilmore that “significant and substantial hearing 

loss that can be remedied by a hearing aid is a serious medical need,” 

that case involved bilateral hearing loss, not asymmetrical hearing loss. 

738 F.3d at 269, 278. Barcelona does not dispute that Gilmore can be 

distinguished from this case on those grounds; instead, he claims that 

the difference between the two cases “is trivial at best.” We disagree.

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As we previously noted in this case, the Eleventh Circuit “[has] not yet 

addressed whether a prisoner’s loss of hearing in one ear, which leads 

a doctor to prescribe a hearing aid, is insufficient to constitute a serious 

medical need where the prisoner retains some level of hearing in his 

other ear.” Barcelona [v. Sec’y, Fla. Dep’t of Corr.], 657 F. App’x 

[896,] [] 898–99 [11th Cir. 20164

]. Nevertheless, even without regard 

to our previous statement, we independently conclude that Gilmore did 

not give the defendants fair warning that their alleged conduct was 

unconstitutional because asymmetrical hearing loss is a substantively 

different impairment from bilateral hearing loss. See Gilmore, 738 F.3d 

at 276–77 (“Thus, for instance, if a plaintiff can ‘carry on a normal 

conversation’ and hear and follow directions without the use of a 

hearing aid, a court would be hard pressed to classify the plaintiff's 

impairment as a serious medical need.” (quotation omitted)). 

Barcelona does not point to any other precedent that would have put the 

defendants on notice that their failure to provide a hearing aid to him 

for his asymmetrical hearing loss was unconstitutional. Accordingly, 

Barcelona has failed to show that the defendants violated a clearly 

established right because “existing precedent [has not] placed the . 

. . constitutional question beyond debate.” Ashcroft, 563 U.S. at 741, 

131 S. Ct. 2074. Consequently, the defendants are entitled to qualified 

immunity.

847 F. App’x at 693 (emphasis added).

5

4 To be clear, the case to which the Eleventh Circuit refers, Barcelona v. Sec’y, Fla. Dep’t of Corr., 

657 F. App’x 896 (11th Cir. 2016), is the same Southern District of Florida case referenced supra

and assigned Case No. 9:15-cv-80102. When first presented with Barcelona’s case, the Eleventh 

Circuit vacated the district court’s order sua sponte dismissing Barcelona’s complaint for failure 

to state a claim and remanded the matter for further proceedings. Id. at 898. On remand, the 

district court entered an order granting summary judgment in favor of Defendants, which 

Barcelona appealed and the Eleventh Circuit affirmed. See Barcelona v. Sec’y, Fla. Dep’t of Corr., 

847 F. App’x 689 (11th Cir. 2021).

5 The undersigned’s finding in a previous order that Barcelona alleged facts sufficient to state a 

plausible claim against Officer Burkes (see ECF No. 17 at 5 (issued Feb. 2, 2021, citing Gilmore)) 

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Considering the Eleventh Circuit’s decision, and the fact that as of January 4

2020 (the day of Officer Burke’s conduct), the Eleventh Circuit still had not 

determined whether Barcelona’s condition (i.e., loss of hearing in one ear, which led 

a doctor to prescribe a hearing aid, but retention of some level of hearing in the other 

ear) constituted a serious medical need, the defense of qualified immunity bars 

Barcelona’s recovery of monetary damages against Defendant Burkes in his 

individual capacity.6

 

Moreover, Barcelona’s factual allegations, accepted as true, fail to satisfy the 

subjective component of the Eighth Amendment standard. While Officer Burkes

arguably should have known that throwing the hearing aid on the floor would break 

it, Barcelona’s factual allegations do not plausibly suggest that Officer Burkes 

consciously knew (as opposed to should have known) that throwing the hearing aid

on the floor exposed Barcelona to an excessive risk of serious harm. Barcelona’s 

factual allegations thus do not state a plausible claim for relief against Officer 

Burkes.

was made prior to the Eleventh Circuit’s decision in Barcelona v. Sec’y, Dep’t of Corr., 847 F. 

App’x 689 (11th Cir. Mar. 2, 2021).

6 The Eleventh Amendment bars Barcelona’s recovery of monetary damages against Officer 

Burkes in his official capacity. See Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). 

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Barcelona’s allegations also fail to state a plausible Eighth Amendment claim 

against Major Schwarz and Representative Keaton. Barcelona seeks to hold these 

officials liable for Officer Burkes’ conduct because they held supervisory positions 

and denied Barcelona’s grievances.

Government officials may not be held liable for the unconstitutional conduct 

of their subordinates under a theory of respondeat superior. See Monell v. New York 

City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978) (finding no vicarious liability for 

a municipal “person” under 42 U.S.C. § 1983). “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.” Iqbal, 556 U.S. at 676. Under Iqbal, “each Government official, his 

or her title notwithstanding, is only liable for his or her own misconduct.” Id. at 677. 

“[S]upervisors are liable under [section] 1983 ‘either when the supervisor personally 

participates in the alleged constitutional violation or when there is a causal 

connection between actions of the supervising official and the alleged constitutional 

violation.’” Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013) (quoting 

Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010)). Facts sufficient to 

establish a causal connection include those “which support an inference that the 

supervisor directed the subordinates to act unlawfully or knew that the subordinates 

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would act unlawfully and failed to stop them from doing so.” Keating, 598 F.3d at 

762 (internal quotation marks omitted). 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).

Further, merely denying a grievance without personally participating in the 

unconstitutional conduct brought to light by the grievance is insufficient to establish 

§ 1983 liability. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) 

(“[D]enial of a grievance, by itself without any connection to the violation of 

constitutional rights alleged by plaintiff, does not establish personal participation 

under § 1983.”); Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008); Shehee v. 

Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (refusing to impose liability under § 1983 

on supervisory official who denied administrative grievance and otherwise failed to 

act based on information contained in the grievance); Weaver v. Toombs, 756 F. 

Supp. 335, 337 (W.D. Mich. 1989) (holding that prisoner failed to state § 1983 claim 

against supervisory officials where prisoner merely alleged the officials denied his 

grievance and did not allege they were personally involved in the alleged 

misconduct), aff’d, 915 F.2d 1574 (6th Cir. 1990); see also, e.g., Brown v. 

Comerford, No. 3:13cv572/LAC/CJK, 2014 WL 3586257, at *5 (N.D. Fla. July 21, 

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2014) (“[M]erely denying a grievance, without personally participating in the 

unconstitutional conduct . . . is insufficient to establish § 1983 liability.”); Swift v. 

Tifft, No. 3:12cv171/RV/CJK, 2013 WL 5913796, at *9 (N.D. Fla. Oct. 31, 2013) 

(same). 

Here, Barcelona’s factual allegations fail to suggest any causal connection 

between the actions of either of the supervisory officials and Officer Burkes’ conduct 

during the cell search. Therefore, Barcelona has not stated a plausible Eighth 

Amendment claim against Major Schwarz or Representative Keaton.

IV. CONCLUSION

Barcelona’s factual allegations fail to state a plausible Eighth Amendment 

claim against Officer Burkes, Major Schwarz, or Representative Keaton, and there 

is no indication that providing Barcelona another opportunity to amend his 

complaint would produce a pleading that states a plausible constitutional claim. The 

undersigned thus recommends that Barcelona’s claims be dismissed pursuant to 28 

U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).

Accordingly, it respectfully RECOMMENDED:

1. That Plaintiff’s claims be DISMISSED with prejudice for failure to 

state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).

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2. That the clerk of court be directed to enter judgment accordingly and 

close this case.

At Pensacola, Florida, this 8th day of October 2021.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

CHIEF 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.

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