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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JACOB WESLEY SCOTT,

Plaintiff,

vs. CASE NO. 4:04CV09-MMP/AK

GLENDA COOK,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff brings this cause of action pursuant to 42 U.S.C. §1983 alleging that

Defendants Glenda Cook and Sergeant Canon retaliated against him for writing

grievances by fabricating a disciplinary report and failing to take action on his behalf

when another unnamed officer assaulted him. (Doc. 16). Plaintiff also claims that he

was denied due process with regard to the disciplinary report. He seeks restoration of

the gain time lost as a result of this fabricated disciplinary report, damages in the

amount of $100 a day for each gain time day lost, and he wants to be able to file

charges against the Defendants.

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No. 4:04cv09-mmp/ak

I. Allegations of the Amended Complaint (doc. 16)

Plaintiff claims that on December 5, 2003, he was physically and verbally

assaulted by an unnamed officer, who allegedly called him a number of racial slurs,

threatened him, and put his hands around his neck and his thumb in Plaintiff’s mouth. 

Defendant Cook allegedly was present during this assault and at this unnamed officer’s

direction falsely reported the incident. Defendant Cook allegedly conspired with

Defendant Canon to make up a false report that charged Plaintiff with threatening Cook.

Attached to the complaint are the following exhibits:

Disciplinary Report dated December 5, 2003, written by Defendant Cook: 

On December 5, 2003 at approximately 1350 hours, I was assigned as

inside grounds officer. I was attempting to counsel with inmate Scott,

Jacob DC #056188, about his work habits when inmate Scott became

argumentive [sic] and stated “You better watch your back. You don’t know

who you are messing with.” The shift officer-in-charge was notified and

authorized this report. Inmate Scott was placed in administrative

confinement pending disposition of this report.

The report also advised Plaintiff that no hearing would commence until 24 hours; that an

impartial investigation would ensue; that he could advise the investigation officer of his

witnesses; that witness statements would be presented in writing; and that he could

make a written statement regarding the charge. 

The Disciplinary Hearing Worksheet dated December 9, 2003, states that Plaintiff

was present, pled not guilty, and witness statements were read. The team found him

guilty based on Defendant Cook’s statements, and he lost 90 days gain time.

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Grievances were filed regarding Plaintiff’s desire to file charges against the

officers who assaulted him. The responses indicate that the allegations were turned

over to the Inspector General’s Office for further investigation. There is another

unrelated grievance about a request for dental treatment that appears wholly unrelated

to the claims raised in the complaint.

Plaintiff has filed a sworn affidavit wherein he attests that he was finishing up the

noon meal on December 5, 2003, when Defendant Cook told him to go to the center

gate where he was sent into an office or small building and another officer came in and

with gloved hands put his fingers around Plaintiff’s neck and told him to open his mouth. 

He put his fingers in his mouth and put pressure on his neck bone and told him to quit

writing grievances or he would beat him and that he would lose his gain time. He also

allegedly told him that Plaintiff would die like the last “nigger,” and then he released him

and nodded conspiratorially to Defendant Cook, who was there and witnessed the

event, who then lied and said that Plaintiff threatened her. Plaintiff also alleges that

Defendant Cook threatened him with a “sexual case and death,” and that “Judge Bean”

will keep him in prison for “putting my hand between superior white thighs.”

II. Standard of Review

“The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter

of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is

true.” Boyer v. Board of County Comm'rs, 922 F. Supp. 476, 482 (D. Kan. 1996), aff'd,

108 F.3d 1388, citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993); Mitchell v.

Farcass, 112 F.3d 1483, 1487 (11th Cir. 1997); Mannings v. Board of Public Instr. of

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Hillsborough County, Fla., 277 F.2d 370, 372 (5th Cir. 1960). The court should not

weigh the evidence, but merely “determine whether the complaint itself is legally

sufficient.” In re Mosello, 190 B.R. 165, 168, aff'd, 193 B.R. 147, aff'd, 104 F.3d 352

(Bankr. S.D.N.Y. 1995), citing Festa v. Local 3, Int'l Brotherhood of Elec. Workers, 905

F.2d 35, 37 (2d Cir. 1990). Dismissal of a complaint should not be granted unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his claims

which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-6, 78 S. Ct. 99, 2 L.

Ed. 2d 80 (1957). 

All well-pleaded factual allegations and reasonable inferences from those

allegations must be accepted as true in ruling upon a motion to dismiss. Oladeinde v.

City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992)(citation omitted), cert. denied,

113 S. Ct. 1586 (1993). However, this does not mean “that every statement in a

complaint must be accepted as true.” In re Mosello, 190 B.R. at 168. The “court need

not accept 'sweeping and unwarranted averments of fact.'” Id., citing Perniciaro v.

Natale, 136 B.R. 344, 348 (Bankr. E.D.N.Y. 1992), quoting Haynesworth v. Miller, 820

F.2d 1245, 1254 (D.C. Cir. 1987). Claims which “rely upon conclusory statements of

law” need not be accepted. Northern Trust Co. v. Peters, 69 F.3d 123, 129 (7th Cir.

1995). Conclusory statements and their inferences “are not sufficient to defeat a motion

to dismiss for failure to state a claim.” Northern Trust Co., 69 F.3d at 129; see also

Quality Foods de Centro America, 711 F.2d 989, 995 (11th Cir. 1983)(finding

“[c]onclusory allegations that defendant violated the antitrust laws and plaintiff was

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injured thereby will not survive a motion to dismiss if not supported by facts constituting

a legitimate claim for relief.”) 

Pro se complaints are to be held to a less stringent standard than those drafted

by an attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986), citing Haines

v. Kerner, 404 U.S. 519, 520-1, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972). However,

a plaintiff is still required to "set forth factual allegations, either direct or inferential,

respecting each material element necessary to sustain recovery under some actionable

legal theory." Worst v. Hart, 1995 WL 431357, *2 (N.D. Fla. 1995). It cannot be

assumed that a Plaintiff will prove facts which have not been alleged. Quality Foods de

Centro America, 711 F.2d at 995, citing Associated General Contractors of California,

Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S. Ct. 897, 902, 74 L.

Ed. 2d 723 (1983). Hence, even though the pleading standard for a pro se complaint is

quite liberal, “bald assertions and conclusions of law will not suffice.” Leeds v. Meltz, 85

F.3d 51, 53 (2d Cir. 1996). Additionally, the court's duty to construe a plaintiff's

complaint liberally is not the equivalent of a duty to rewrite it. Peterson v. Atlanta

Housing Auth., 998 F.2d 904, 912 (11th Cir. 1993). The motion to dismiss will be

granted if the "complaint fails to allege the violation of a clearly established

constitutional right." St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.

2002), citing Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001), (citing Williams

v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997)). 

III. Defendants’ motion to dismiss (doc. 51)

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Defendants have moved to dismiss on the grounds that “actions challenging

disciplinary reports and seeking restoration of lost gain time can only be brought in a

petition for writ of habeas corpus, and not in a {1983} action.” Defendants also assert

that claims of verbal threats and harassment do not state claims under 1983, and that

Plaintiff has failed to allege facts constituting retaliation.

V. Analysis

a) Due Process of Disciplinary Proceeding

While it is true that a claim for restoration of gain time must be brought in a

habeas proceeding, Preiser v. Rodriguez, 411 U.S. 475, 499 (1973), a claim for

damages for loss of gain time may be brought in a 1983 action. Wolff v. McDonnell,

418 U.S. 539, 556, 94 S. Ct. 2963, 2974, 41 L.Ed. 2d 935 (1974). Thus, insofar as

Plaintiff seeks to have his gain time restored, this claim for relief is foreclosed. 

Further, insofar as Plaintiff complains about the results of his disciplinary

proceeding, this claim, too is barred. Heck v. Humphrey, 512 U.S. 477, 114 S. Ct.

2364, 2372, 129 L. Ed. 2d 383 (1994) (a claim for damages will be barred if

“establishing the basis for the damages claim necessarily demonstrate [d] the invalidity

of the conviction” ). In fact, the Eleventh Circuit has foreclosed all claims challenging a

disciplinary proceeding unless they are “purely procedural, as in Wolff....” Edwards v.

Balisok, 520 U.S. 641, 117 S.Ct 1584, 137 L.Ed.2d 906 (1997); Harden v. Pataki, 320

F.3d 1289, 1295 n.9 (11th Cir. 2003). The procedural requirements for a disciplinary

hearing are three-fold: (1) advance written notice; (2) a written statement of the reasons

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for the disciplinary action taken; and (3) the opportunity to call witnesses and present

evidence. Wolff, 418 U.S. at 556; Young v. Jones, 37 F.3d 1457, 1459-60 (11th Cir.

1994); Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999). 

Insofar as Plaintiff claims that his due process claim is based on the lack of a

hearing, (doc. 53), his own evidence attached to the complaint shows that he was

afforded a hearing. (Doc. 16, Exhibit 1-2). Plaintiff does not claim that this hearing

worksheet is incorrect or fabricated, or that there was some other due process problem

with the hearing, he just generally states that he did not have one, yet provides

evidence that shows that he did. This general allegation is insufficient to refute the

documentary evidence attached to the complaint, and the undersigned finds that

Plaintiff’s claim for damages for alleged due process violations attendant to his

disciplinary proceeding is without merit.

b) Excessive Force and Failure to Protect

As the Court reads the complaint, Plaintiff takes issue with the fact that an

unnamed officer used excessive force against him and that Defendant Cook witnessed

the alleged physical assault and did not report it. Defendant does not address the fact

that Plaintiff alleged a physical, as well as a verbal, assault. Defendant is correct that it

is well settled law that a claim for verbal abuse or threats is not cognizable under

section 1983. See Keenan v. Hall, 83 F3d 1083, 1092 (9th Cir. 1996) (assaultive

comments by prison guard not enough to implicate the Eighth Amendment); Gaut v.

Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional

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1

 This person has not been named or served. 

No. 4:04cv09-mmp/ak

wrong); Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (prisoner has no

constitutionally guaranteed immunity from being falsely or wrongly accused of conduct

which may result in deprivation of protected liberty interest); Siglar v. Hightower, 112

F.3d 191, 193 (5 Cir. 1997) (verbal abuse not cognizable under 1983); Freeman v.

Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (same), cert. denied, 485 U.S. 982 (1988)

(same). Thus, insofar as Plaintiff seeks damages for the racial slurs and threatening

language allegedly used against him, this claim must fail.

However, Plaintiff also alleges that an unnamed officer stood on his feet, pulled

his hair, wrapped his hand around his throat, and stuck his thumb in his mouth. 1

 Under

the Eighth Amendment, the use of force is deemed legitimate in a prison setting if it is

applied “in a good faith effort to maintain or restore discipline [and not] maliciously and

sadistically to cause harm.” Whitley v. Albers, 475 U.S. 312, 320-321 (1986). To

determine if force was used maliciously and sadistically to cause harm, several factors

must be considered: (1) the need for the application of force; (2) the relationship

between that need and the amount of force used; (3) the threat reasonably perceived by

the responsible officials; and (4) any efforts made to temper the severity of a forceful

response. Hudson v. McMillian, 503 U.S. 1, 8 (1992). Based on Plaintiff’s version of

the facts, as set forth in the complaint, the alleged assault was completely unprovoked,

and at least under the factors set forth above, the force used would appear to have

been a malicious use for which this person could be held liable. 

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Likewise, corrections officers who witness a use of force and do not intervene to

protect the inmate may also be held liable. See Skrtich v. Thornton, 280 F.3d 1295,

1301 (11th Cir. 2003); Post v. City of Fort Lauderdale, 7 F.3d 1552, 1560 (11th Cir.

1993), as amended, 14 f.3d 583 (11th Cir. 1994); Byrd v. Clark, 783 F.2d 1002, 1007

(11th Cir. 1986).

However, there is one additional factor that is dispositive of the claims against

both the unnamed officer and defendant Cook, and that is the fact that Plaintiff asserts

no injuries from the alleged use of force beyond some insignificant pressure on his neck

and mouth area. While the absence of a “serious injury” is insufficient to dismiss a

claim for excessive use of force, de minimis uses of force do not support a finding of a

constitutional violation. Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996); Hudson,

supra at 7-8. In the opinion of the undersigned this factor negates Plaintiff’s claims

against the unnamed officer for excessive use of force and his claims against Defendant

Cook for failing to protect him from the use of force. Having found that there was no

excessive use of force, i.e no unconstitutional use of force, it stands to reason that

Defendant Cook is not liable for failing to intervene against its use. 

c) Retaliation

Plaintiff’s final claim is against Defendants Cook and Canon for conspiring to

fabricate a disciplinary report in retaliation for filing grievances. It is well established

that a prisoner's constitutional rights are violated if adverse action is taken against him

in retaliation for the exercise of his First Amendment rights. See Farrow v. West, 320

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F.3d 1235, 1248 (11th Cir. 2003); Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.

1997); Wright v. Newsome, 795 F.2d 964 968 (11th Cir. 1986); Adams v. James, 784

F.2d 1077, 1080 (11th Cir. 1986). In the prison setting "[t]he state may not burden [First

Amendment rights] with practices that are not reasonably related to legitimate

penological objectives . . . nor act with the intent of chilling that First Amendment right." 

Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995) (citing Turner v. Safley, 482 U.S.

78, 85-89, 107 S.Ct. 2254, 2260-61, 96 L.Ed.2d 64 (1987), and Wildberger v. Bracknell,

869 F.2d 1467, 1468 (11th Cir. 1989)). In general, a prisoner may establish retaliation

by "demonstrating that the prison official's actions were `the result of his having filed a

grievance concerning the conditions of his imprisonment.'" Farrow, 320 F.3d at 1248

(citing Wildberger, 869 F.2d at 1468). 

While there is a lack of clear guidance from the Eleventh Circuit with regard to

First Amendment retaliation claims made by prisoners, other circuits have addressed

the matter, resulting in the development of an instructive body of case law. The

Second, Third, Sixth, and Seventh Circuits have expressly applied the Mount Healthy

burden-shifting framework to retaliation claims in the prison context. See Rauser v.

Horn, 241 F.3d 330 (3rd Cir. 2001); Thaddeus-X, 175 F.3d at 386; Graham v.

Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Babcock v. White, 102 F.3d 267, 275 (7th

Cir. 1996). Under this line of cases the plaintiff must prove: (1) that he was engaged in

constitutionally protected activity; (2) that he suffered adverse action such that would

deter a person of ordinary firmness from continuing to engage in that conduct; and (3)

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that "there is a causal connection between elements one and two -- that is, the adverse

action was motivated at least in part by the plaintiff's protected conduct." Brown v.

Crowley, 312 F.3d 782, 787 (6th Cir. 2002) (citing Thaddeus-X); see also Rauser, 241

F.3d at 333-34; Dawes, 239 F.3d at 492-93. If the prisoner establishes that his exercise

of the protected right was a substantial or motivating factor in the defendant's alleged

retaliatory conduct, the burden then shifts to the defendant to show that the same action

would have been taken even absent the protected conduct. Brown, 312 F.3d at 787;

Rauser, 241 F.3d at 333-34; Babcock, 102 F.3d at 275. 

Other circuits have also recognized Mount Healthy in reviewing retaliation claims

by prisoners but without adopting its burden-shifting framework. See Peterson v.

Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (requiring prisoner to come forward with

direct or circumstantial evidence that "but for the retaliatory motive, the incidents to

which he refers . . . would not have taken place"); Goff v. Burton, 7 F.3d 734, 737 (8th

Cir. 1993) (acknowledging Mount Healthy but stating that in retaliatory transfer case

prisoner must prove "but for" the retaliatory motive the allegedly unconstitutional

conduct would not have occurred); cf. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.

1995) (citing Mount Healthy but indicating that burden remains on prisoner to show that

"but for" the retaliatory motive the complained of incident would not have occurred);

McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) (same). 

In analyzing Plaintiff’s burden under the standard of review applicable on a

motion to dismiss, he is required to set forth factual allegations on each material

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element necessary to sustain his theory on this claim. See Worst, supra. Bald

assertions and conclusions of law are not sufficient, even concerning pro se complaints.

A review of the complaint persuades the undersigned that Plaintiff has alleged nothing

more than vague and conclusory claims of retaliation and has wholly failed to link the

Defendants’ actions with his protected First Amendment rights. Plaintiff has alleged no

facts whatsoever that would tend to show that Defendants Cook and Canon were

motivated to retaliate against him. In his complaint, he alleges that the unnamed officer

who assaulted him complained about his filing grievances not Defendants Cook or

Canon. Further, although Plaintiff attached to his complaint a number of grievances

regarding his desire to prosecute the officer who assaulted him, he did not attach any

grievances that might show why these particular Defendants would want to retaliate

against him. In his affidavit attached to the complaint, Plaintiff describes in detail his

encounter with the unnamed officer and recites that this person was upset about the

number of grievances filed by Plaintiff, but offers no facts as to why Defendants Cook

and Canon would be upset by these grievances or any other activity that would prompt

their retaliation. 

In light of the foregoing, it is respectfully RECOMMENDED that Defendants’

motion to dismiss (doc. 51) be GRANTED, and that Plaintiff’s amended complaint (doc.

16) be DISMISSED for failure to state a claim upon which relief may be granted

pursuant to 28 U.S.C. § 1915(e)(2). 

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IN CHAMBERS at Gainesville, Florida, this 14th day of October, 2005.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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