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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ROBERT EARL ROYSTER

Plaintiff,

vs. Case No. 3:10cv30/LC/MD

DAVID MORGAN, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed a civil rights

complaint pursuant to 42 U.S.C. § 1983. (Doc. 1). The initial partial filing fee has

been paid. (Doc. 9). Upon review of the complaint, the court concludes that plaintiff

has failed to present an actionable claim, and that dismissal of this case is

warranted.

Since plaintiff is proceeding in forma pauperis, the court must review his

complaint to determine if it is “(i) frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972). A complaint is frivolous under section 1915(d)

“where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490

U.S. 319, 325, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). Dismissals on this

ground should only be ordered when the legal theories are “indisputably meritless,”

Id. at 327, 109 S.Ct. at 1833, or when the claims rely on factual allegations that are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1733, 118
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L.Ed.2d 340 (1992). Dismissals for failure to state a claim are governed by the same

standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d

1483, 1485 (11 Cir. 1997). In determining whether the complaint states a claim upon th

which relief may be granted, the court accepts all the factual allegations in the

complaint as true and evaluates all inferences derived from those facts in the light

most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11 Cir. th

1994). The complaint may be dismissed if the facts as pleaded do not state a claim

to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (retiring the negatively-glossed

“no set of facts” language previously used to describe the motion to dismiss

standard and determining that because plaintiffs had “not nudged their claims

across the line from conceivable to plausible, their complaint must be dismissed”

for failure to state a claim). A complaint is also subject to dismissal under Rule

12(b)(6) “when its allegations, on their face, show that an affirmative defense bars

recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11 Cir. 2003); Marsh th

v. Butler County, Ala., 268 F.3d 1014, 1022 (11 Cir. 2001). th

At the time plaintiff initiated this lawsuit on January 27, 2010, he was a pre-trial

detainee confined at the Escambia County Jail. He is currently confined at Florida

State Hospital. (Doc. 7). His complaint names four defendants: three members of

the Escambia County Sheriff’s Office (Sheriff Morgan, Deputy Kilgren and Deputy

Hall) and one family member, Daryl Royster, Jr. (Doc. 1, pp. 1-2). Plaintiff’s claims

arise out of his alleged false arrest on December 20, 2009. Specifically, plaintiff

alleges that in the early morning hours of December 20, 2009, he awoke from sleep

in the den and went to the kitchen to make a sandwich. Defendant Daryl Royster, Jr.

came into the kitchen and started harassing him. Plaintiff retreated to a bedroom,

but Daryl Royster followed him and threatened to beat him to death. Fearing for his

safety, plaintiff grabbed a can of hornet spray and sprayed Daryl Royster in the face. 

Daryl Royster ran from the room. Plaintiff went to a neighbor’s house. According

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to plaintiff, Daryl Royster collected the spray can and a knife plaintiff had been using

to cut his sandwich, placed them in the den, and called the police. Deputies Kilgren

and Hall responded to the call and arrested plaintiff on charges of battery and

aggravated assault with a deadly weapon. Plaintiff states the arrest was based on

the deputies’ sworn statements that plaintiff confessed to using the knife and spray. 

Plaintiff contends these statements were false, because he said only that he had

“used the spray can in self defense due to the combination of . . . mental illness and

fear caused by Daryl Royster, Jr.” (Id., p. 7). Plaintiff provides no further detail

concerning the content of the arrest affidavit. Plaintiff believes his arrest was

unlawful and the result of a conspiracy. (Id. pp. 7-8). As relief, he seeks the

following:

I am asking the United States District Court to award me 5 million

dollars for pain and suffering. Also I want criminal charges filed

against Deputies Andrew Keith Kilgren #306, and Hall #389. And also

I want charge filed against Daryl Royster, Jr., above. 

(Id.). 

Taking the allegations of the complaint as true and construing them in the

light most favorable to plaintiff, they fail to state a plausible § 1983 claim against any

of the named defendants. Although plaintiff names Sheriff Morgan as a defendant,

Morgan is mentioned nowhere in the body of plaintiff’s complaint. To the extent

plaintiff seeks to hold this defendant liable because he supervised Deputies Kilgren

and Hall, his claim is subject to dismissal because respondeat superior, without

more, does not provide a basis for recovery under section 1983. Polk County v.

Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Cottone v. Jenne, 326

F.3d 1352 (11 Cir. 2003); Harris v. Ostrout, 65 F.3d 912, 917 (11 Cir. 1995). “The th th

mere right to control, without any control or direction having been exercised and

without any failure to supervise, is not sufficient to support 42 U.S.C. § 1983

liability.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 n. 58, 98 S.Ct. 2018, 2037

(1979). “Supervisory liability occurs either when the supervisor personally

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

connection between the actions of the supervising official and the alleged

constitutional deprivation.” Brown v. Crawford, 906 F.2d 667, 671 (11 Cir. 1990) th

(citations omitted). The court in Brown set forth the limited circumstances upon

which a causal connection between the actions of a supervising official and the

alleged constitutional deprivation can be shown sufficient to render him liable on a

§ 1983 claim. The causal connection can be established

when a historyof widespread abuse puts the responsible supervisor on

notice of the need to correct the alleged deprivation, and he fails to do

so. The deprivations that constitute widespread abuse sufficient to

notify the supervising official must be obvious, flagrant, rampant and

of continued duration, rather than isolated occurrences. 

Id. (citations omitted). In the instant case, plaintiff’s complaint fails to provide any

factual basis for holding Sheriff Morgan liable for the alleged deprivation of plaintiff’s

constitutional rights. Thus, plaintiff’s claims against this defendant should be

dismissed with prejudice.

Plaintiff’s claims against defendant Daryl Royster, Jr. are also due to be

dismissed. In any section 1983 action, the initial inquiry must focus on whether two

essential elements are present:

1. whether the conduct complained of was committed by a person

acting under color of state law; and

2. whether this conduct deprived a person of rights, privileges, or

immunities secured by the Constitution or laws of the United States.

Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420, 428 (1981),

overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88

L.Ed.2d 662 (1986); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11 Cir. 2001). th

With regard to the first requirement, it is well-settled that “the party charged with the

deprivation must be a person who may fairly be said to be a state actor.” Patrick v.

Floyd Med. Ctr., 201 F.3d 1313, 1315 (11 Cir. 2000). Only in rare circumstances may th

a private party be viewed as a state actor for § 1983 purposes:

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[T]o hold that private parties . . . are State actors, th[e] court must

conclude that one of the following three conditions is met: (1) the State

has coerced or at least significantly encouraged the action alleged to

violate the Constitution (State compulsion test); (2) the private parties

performed a public function that was traditionally the exclusive

prerogative of the State (public function test); or (3) the State had so far

insinuated itself into a position of interdependence with the private

parties that it was a joint participant in the enterprise (nexus/joint

action test). 

Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11 Cir. 2001) (internal th

quotation marks omitted). Here, plaintiff suggests Daryl Royster, Jr. lied to police

to have plaintiff falsely arrested. This allegation does not remotely suggest the kind

of joint action with state actors that would subject this private party to § 1983

liability. Therefore, plaintiff’s claims againstdefendant Royster must be dismissed.1

As to plaintiff’s remaining claims of false arrest against Deputies Kilgren and

Hall, plaintiff cannot obtain the relief he seeks. Plaintiff requests damages in the

amount of $5,000,000 for the alleged false arrest. However, the Prison Litigation

Reform Act provides, “No Federal civil action may be brought by a prisoner confined

in a jail, prison, or other correctional facility, for mental or emotional injury suffered

while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). 

The Eleventh Circuit addressed the implications of § 1997e(e) and concluded that

To the extent plaintiff suggests defendant Royster and the deputies conspired with one another

1

to have plaintiff falsely arrested, his allegations are wholly conclusory and insufficient to state a

plausible § 1983 claim. To establish a prima facie case of conspiracy under § 1983, the plaintiff must

allege, among other things, that the defendants “reached an understanding to violate his rights.” See

Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283 (11 Cir. 2002) (quotation and alteration omitted)

th

(in a summary judgment context). “The plaintiff does not have to produce a smoking gun to establish

the understanding or willful participation required to show a conspiracy, but must show some

evidence of agreement between the defendants.” Id. at 1283-84 (quotations and citation omitted).

Vague or conclusory allegations are not sufficient. The allegations must be specific. GJR Inv., Inc.

v. County of Escambia, Florida, 132 F.3d 1359, 1370 (11 Cir. 1998); Jackson v. Bell South Telecomms.,

th

372 F.3d 1250, 1262-63 (11 Cir. 2004) (“[C]onclusory allegations, unwarranted deductions of facts or

th

legal conclusions masquerading as facts will not prevent dismissal.”) (citation and quotation marks

omitted) (alteration in original). In the instant case, plaintiff’s sole allegation in support of his claim

of conspiracy is that he believes one existed. This, without more, does not state a plausible claim of

conspiracy against any of the defendants.

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“the phrase ‘Federal civil action’ means all federal claims, including constitutional

claims.” Napier v. Preslicka, 314 F.3d 528, 532 (11 Cir. 2002) (citing Harris v. th

Garner, 216 F.3d 970, 984-85 (11 Cir. 2000) (en banc)). This § 1983 action brought th

by plaintiff is a “Federal civil action” under this definition. Further, it is undisputed

that plaintiff filed his complaint while imprisoned, and that the harm complained of

occurred while he was in custody, i.e., upon his arrest. See Napier, 314 F.3d at 533

(holding that § 1997e(e) applies toprisoner lawsuits claiming injuries suffered during

an arrest, because that is a custodial episode). Plaintiff seeks damages for the 2

mental injury (pain and suffering) he suffered as a result of the defendants’ conduct. 

However, he alleges no physical injury. His complaint cannot be liberally construed

to request nominal damages. Therefore, plaintiff’s damages claims must be 3

dismissed without prejudice under § 1997e(e). See Douglas v. Yates, 535 F.3d 1316

(11 Cir. 2008) (holding that the district court has authority to sua sponte dismiss a

th

complaint without prejudice under § 1997e(e)) (citing 28 U.S.C. § 1915(e)(2)(B)(ii));

Harris v. Garner, 190 F.3d 1279, 1286-87 (11 Cir. 1999), vacated, 197 F.3d 1059 (11 th th

Cir. 1999), reinstated in pertinent part, 216 F.3d 970 (11 Cir. 2000). th

As to plaintiff’s claims for injunctive relief, although § 1997e(e) does not

materially thwart actions for injunctive relief, Harris, 190 F.3d at 1288, the relief

plaintiff seeks in this case – the filing of criminal charges against the defendants – 

In Napier, a prisoner claimed that he suffered injury from his mistaken arrest by law enforcement

2

officers. The Eleventh Circuit held that “[t]he embarrassment or emotional harm occasioned by the

mistaken arrest occurred, at the earliest, when Napier was arrested – or, using the Miranda construct,

at the moment that a reasonable person in his situation would feel unable to leave. Because the harm

complained of by Napier occurred while he was in custody, the PLRA applies to his claim.” Id. at 533.

The Eleventh Circuit’s decision in Hughes v. Lott, 350 F.3d 1157 (11 Cir. 2003), does not apply

3 th

here. Id., at 1162 (holding that § 1997e(e) does not bar suits by prisoners who have not alleged a

physical injury if they seek nominal damages). Plaintiff’s complaint cannot be liberally construed as

requesting nominal damages, because he specifically requests only $5,000,000 in compensatory

and/or punitive damages. See, e.g., Sears v. Rabion, No. 03-13558, 97 Fed.Appx. 906 (Table) (11 Cir.

th

Feb. 18, 2004) (affirming district court’s sua sponte dismissal of complaint under § 1997e(e), noting

that plaintiff’s complaint could not be liberally construed as requesting nominal damages, because

he specifically requested compensatory and punitive damages).

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is not available under § 1983. The law is well-settled that a private citizen “has no

judiciallycognizable interest” in the criminal investigationorprosecutionof another. 

Otero v. United States Attorney Gen., 832 F.2d 141 (11 Cir. 1987) (citing Linda R.S. th

v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973)); see also

Cok v. Cosentino, 876 F.2d 1, 2 (1 Cir. 1989) (holding that a private citizen has no st

authority to initiate a criminal prosecution); Sattler v. Johnson, 857 F.2d 224, 226-27

(4 Cir. 1988) (holding that a private citizen has no constitutional right to have other th

citizens, including state actors, criminally prosecuted); O’Berry v. State Attorneys

Office, 214 Fed. Appx. 654, 657 (11 Cir. July 23, 2007) (unpublished) (affirming th

district court’s finding that a private citizen cannot force the United States Attorney

General to bring a criminal prosecution against another citizen). Therefore,

plaintiff’s claims for injunctive relief must be dismissed. 

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s § 1983 claims against Sheriff Morgan and Daryl Royster, Jr.,

be DISMISSED WITH PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(ii).

2. That plaintiff’s conspiracy claims against Deputy Kilgren and Deputy Hall

be DISMISSED WITH PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(ii).

3. That plaintiff’s damages claims against Deputy Kilgren and Deputy Hall

arising from his alleged false arrest be DISMISSED WITHOUT PREJUDICE under 28

U.S.C. § 1915(e)(2)(B)(ii).

4. That plaintiff’s claims for injunctive relief be DISMISSED WITH PREJUDICE

under 28 U.S.C. § 1915(e)(2)(B)(ii).

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

At Pensacola, Florida this 10 day of May, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITEDSTATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. 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 any objections shall be served upon any 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 (11 Cir. 1988). th

Case No: 3:10cv30/LC/MD