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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DAVID EUGENE GRAHAM,

Plaintiff,

vs. Case No. 5:10cv27/RS/EMT

OFFICER M. NEEL, et al.,

Defendants.

________________________________________/

ORDER and REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se and in forma pauperis, initiated this action by filing

a complaint under 42 U.S.C. § 1983 (Doc. 1). Upon review of the complaint, the court determined

that the facts as presented failed to support a plausible claim for relief under § 1983 as to one or

more Defendants; therefore, the court directed Plaintiff to file an amended complaint (see Doc. 6). 

Plaintiff did so (see Doc. 7). Upon review, the court determined that the Amended Complaint again

failed to state a plausible claim for relief; therefore, the court provided Plaintiff another opportunity

to correct the insufficiency in a second amended complaint (see Doc. 11). Plaintiff filed a Second

Amended Complaint (Doc. 13). Upon review, the court determined that the Second Amended

Complaint still failed to state a plausible claim for relief; therefore, the undersigned issued a Report

and Recommendation recommending dismissal of this action for failure to state a claim, pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii) (Doc. 18). Plaintiff has not filed objections to the Report and

Recommendation, but he has now filed a Motion for Leave to File an Amended Complaint and a

proposed Third Amended Complaint (Docs. 19, 20).

Rule 15 of the Federal Rules of Civil Procedure provides, in relevant part:

(a) Amendments Before Trial.
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 (1) Amending as a Matter of Course. A party may amend its pleading once as a

matter of course within: 

 (A) 21 days after serving it, or 

 (B) if the pleading is one to which a responsive pleading is required, 21 days after

service of a responsive pleading or 21 days after service of a motion under Rule

12(b), (e), or (f), whichever is earlier. 

 (2) Other Amendments. In all other cases, a party may amend its pleading only

with the opposing party’s written consent or the court’s leave. The court should

freely give leave when justice so requires.

Fed. R. Civ. P. 15(a). As previously noted, the instant amended pleading is not Plaintiff’s first

amended complaint, it is his third; therefore, he properly requested, and must obtain, permission

from the court prior to its taking effect. 

The Federal Rules of Civil Procedure provide that the court should freely give leave to

amend when justice so requires. Fed. R. Civ. P. 15(a)(2). The law favors rulings on the merits

rather than on the pleadings. Bank v. Pitt, 928 F.2d 1108, 1112 n.6 (11th Cir. 1991); Friedlander

v. Nims, 755 F.2d 810, 813 & n.3 (11th Cir. 1985). Thus:

In the absence of any apparent or declared reason—such as undue delay, bad faith

or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of amendment, etc.—the leave sought should,

as the rules require, be “freely given.”

Rosen v. TRW, Inc., 979 F.2d 191, 194 (11th Cir. 1992) (quoting Foman v. Davis, 371 U.S. 178,

83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962)). However, a motion to file an amended complaint is

properly denied where the new claims asserted would be subject to dismissal as a matter of law. See

Hall v. United Ins. Co. of America, 367 F.3d 1255, 1263 (11th Cir. 2004) (citing Burger King Corp.

v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999)). 

In the instant case, Plaintiff’s motion to amend should be denied as futile because the facts

alleged in the Third Amended Complaint still do not state a plausible claim for relief. In Plaintiff’s

proposed amended complaint, he makes only one substantive change; he substitutes the Due Process

Clause of the Fourteenth Amendment for the Eighth Amendment as the constitutional provision

from which his failure-to-protect claims arise (see Doc. 19; compare Doc. 13 at 14 with Doc. 20 at

Case No.: 5:10cv27/RS/EMT
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12). However, failure-to-protect claims brought by convicted prisoners (as opposed to pre-trial

detainees) are properly brought under the Eighth Amendment. See Farmer v. Brennan, 511 U.S.

825, 833, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). Furthermore, it is well settled that if a

constitutional claim is covered by a specific constitutional provision, such as the Eighth

Amendment, the claim must be analyzed under the standard appropriate to that specific provision,

not under the rubric of substantive due process under the Fourteenth Amendment. See County of

Sacramento v. Lewis, 523 U.S. 833, 843, 118 S. Ct. 1708, 1715, 140 L. Ed. 2d 1043 (1998)

(citations omitted). Therefore, substantive due process analysis is inappropriate for Plaintiff’s

failure-to-protect claims; and his due process claim would be subject to dismissal. Accordingly, his

motion to amend should be denied as futile, and his proposed Third Amended Complaint should not

take effect. See N.D. Fla. Loc. R. 15.1 (“The proposed amended pleading shall not take effect unless

and until the motion to amend is granted.”).

Accordingly, it is ORDERED:

The clerk shall refer this Report and Recommendation to the District Judge prior to referral

of the Report and Recommendation issued by the undersigned on October 5, 2010 (Doc. 18).

And it is respectfully RECOMMENDED:

That Plaintiff’s Motion for Leave to File an Amended Complaint (Doc. 19) be DENIED and

the proposed Third Amended Complaint (Doc. 20) not take effect.

At Pensacola, Florida, this 13th day of October 2010.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE 

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (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. A copy of objections shall be

served upon the magistrate judge and all other parties. Failure to object may limit the scope

of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

Case No.: 5:10cv27/RS/EMT