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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ERNEST LEE GATLING,

Plaintiff,

vs. Case No. 3:10cv172/MCR/MD

WALTER A. MCNEIL,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, a prisoner proceeding pro se and in forma pauperis in this civil rights

action, has filed a motion for summary judgment. (Doc. 24). For the reasons that

follow, the motion should be denied. 

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is an inmate of the Florida penal system currently confined at Santa

Rosa Correctional Institution (“Santa Rosa CI”). He commenced this action on May

21, 2010 by filing a civil rights complaint under 42 U.S.C. § 1983. His complaint

names one defendant – Walter A. McNeil, Secretary of the Florida Department of

Corrections. Plaintiff claims various prison officials at Santa Rosa CI have used

excessive force on him and harassed him, in violation of his constitutional rights.

As relief, he seeks $2,000 in damages and transfer to a different institution. (Doc. 1). 

Secretary McNeil has not been served with plaintiff’s complaint because, as

explained in this court’s May 24, 2010 order (doc. 4), preliminary screening of the

complaint under 28 U.S.C. § 1915 reveals that plaintiff’s claims against Secretary

McNeil are subject to dismissal for failure to state a claim on which relief can be
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granted. The reason the undersigned did not recommend dismissal of this case at

that time is because it was not clear that plaintiff would be unable to allege sufficient

facts against the proper defendants if given the opportunity to amend his complaint. 

The court therefore provided plaintiff an opportunity to amend his complaint, and

has recently extended the amended pleading deadline to August 11, 2010. (Doc. 23). 

Instead of submitting an amended complaint, plaintiff has filed this motion for

summary judgment. Plaintiff seeks “interlocutory summary judgment” citing Fed.

R. Civ. P. 56(d)(2), and asserting that that provision, “in accordance with already

submitted multiple grievances and Statement of Facts put forth of 1983 claim in that

also of the $200,000.00 claim I declare.” (Doc. 24). Plaintiff has not served a copy

of his motion on Secretary McNeil. 

DISCUSSION

Summary judgment will be granted in favor of the moving party “if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is entitled

to a judgment as a matter of law.” FED. R. CIV. P. 56(c). In the instant case, even

assuming to plaintiff’s benefit that there is no genuine issue as to any material fact, 

plaintiff is not entitled to judgment against Secretary McNeil. As explained in this

court’s May 24, 2010 order (doc. 4), although plaintiff names Secretary McNeil as the

sole defendant in this action, the Secretary is mentioned nowhere in the body of

plaintiff’s complaint. To the extent plaintiff seeks to hold Secretary McNeil liable on

the basis of supervisory liability, the allegations of (and attachments to) his

complaint fail to state a plausible claim under that legal theory. “Supervisory 1

liability occurs either when the supervisor personally 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.

This is the only summary judgment material on file at this time.

1

Case No: 3:10cv172/MCR/MD
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Crawford, 906 F.2d 667, 671 (11 Cir. 1990) (citations omitted). The Eleventh Circuit th

in Douglas v. Yates, 535 F.3d 1316 (11 Cir. 2008) set forth the limited circumstances

th

in 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 history of

widespread abuse puts the responsible supervisor on notice of the need to correct

the alleged deprivation and he fails to do so; when the supervisor’s improper

custom or policy leads to deliberate indifference to constitutional rights; or when

facts support an inference that the supervisor directed the subordinates to act

unlawfully or knew that the subordinates would act unlawfully and failed to stop

them from doing so. Id. at 1322 (citing West v. Tillman, 496 F.3d 1321, 1328-29 (11th

Cir. 2007)). Plaintiff’s complaint does not arguably suggest, much less establish, 

that Secretary McNeil personally participated in the alleged constitutional

deprivations, or that there is a causal connection between any action of Secretary

McNeil and the alleged constitutional deprivations.

To the extent plaintiff seeks to hold Secretary McNeil liable because he

supervised or employed the offending correctional officers, his claim must fail as a

matter of law because respondeat superior, without more, does not provide a basis

for recovery under § 1983. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70

L.Ed.2d 509 (1981); Hartley v. Parnell, 193 F.3d 1263, 1269 (11 Cir. 1999) (“It is well th

established in this Circuit that supervisory officials are not liable under § 1983 for

the unconstitutional acts of their subordinates on the basis of respondeat superior

or vicarious liability.”) (internal quotation marks and citation omitted); Cottone v.

Jenne, 326 F.3d 1352 (11 Cir. 2003). “The mere right to control, without any control th

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). 

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Accordingly, it is respectfully RECOMMENDED:

That plaintiff’s motion for summary judgment (doc. 24) be DENIED.

At Pensacola, Florida this 22 day of July, 2010. nd

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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: 3:10cv172/MCR/MD