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

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CARL DWAYNE MORGAN,

Plaintiff,

vs. Case No. 5:10cv82/RH/MD

FRANK MCKEITHEN, et al.,

Defendants.

ORDER and 

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, has filed a civil rights complaint pursuant to 42

U.S.C. § 1983 (doc. 1), a motion for leave to proceed in forma pauperis (doc. 2), and

a motion to appoint counsel (doc. 3). For the limited purpose of dismissal of this

action, leave to proceed in forma pauperis will be granted. 

BACKGROUND AND PROCEDURAL HISTORY

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

Correctional Institution. He was confined at the Bay County Jail (“Jail”) at the time

of the events giving rise to this complaint. Plaintiff’s complaint names three

defendants: Frank McKeithen, Sheriff of Bay County, Florida; the State of Florida;

and Officer Holland, a correctional officer at the Jail. Plaintiff claims he was the

victim of an inmate assault on January 15 2010, and faults Officer Holland for failing

to “act[ ] in his professional capacity” to prevent it. (Doc. 1, p. 6). As relief, plaintiff

seeks the following: “Pain and suffering $50,000.00; Mental and Physical Anguish
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$125,000.00; Release from current incarceration; removal of name from FDLE

registration requirements; and seal/expunge my record.” (Id., p. 7).

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the court may dismiss the

case if satisfied that the action 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. § 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 § 1915(e) “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 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 which th

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

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

recovery on the claim. Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11 Cir. th

2001). 

The allegations of the complaint are as follows. Plaintiff states that on

January 13, 2010, while housed in the “Atlantis 3” section of the Jail, he notified

defendant Holland of “a possible problem” with Inmate Bostick, an inmate who had

just arrived in Atlantis 3. Plaintiff explained to defendant Holland that Bostick had

a restraining order against plaintiff stemming from a charge that plaintiff had

molested Bostick’s daughter. (Doc. 1, p. 5). Defendant Holland responded that he

would report the matter to the shift lieutenant. On January 15, 2010, one Cpl. Burris

pulled plaintiff aside and questioned him “concerning an alleged conspiracy to harm

I/M Bostick.” Plaintiff assured Burris he knew nothing about it, and relayed the

information he previously told Holland. A few hours later, plaintiff was attacked by

three inmates, none of whom were Inmate Bostick. During the assault, a fourth

inmate stated, “That is what you get for messing with little girls you F**king Child

Molester! Kick his a** some more!” (Id., pp. 5-6). After the assault, plaintiff

“attempted to clean [him]self up” and took aspirin. Plaintiff does not identify any

injuries, although he indicates that photographs were taken. Three months later,

while plaintiff was confined at Century CI, an inmate who had previously been

confined at the Jail told plaintiff that the assault was the product of “a hit put out by

someone in Atlantis 3.” (Id., p. 6). Plaintiff seeks to hold the named defendants

liable for the assault. 

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. In order to state a claim under section 1983, a plaintiff

must establish two essential elements:

1. the conduct complained of was committed by a person acting under

color of state law; and

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2. this conduct deprived the plaintiff 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

Although plaintiff names Sheriff McKeithen as a defendant in this action,

Sheriff McKeithen is mentioned nowhere in the body of plaintiff’s complaint. To the

extent plaintiff seeks to hold this defendant liable because he supervised Officer

Holland, 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

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 McKeithen liable for the alleged deprivation of

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

be dismissed.

Any claims against the State of Florida are also due to be dismissed. It is well

settled that a State is not a “person” which may be sued under 42 U.S.C. § 1983. Will

v. Michigan Dep’t of State Police, 491 U.S. 58, 64-71, 109 S.Ct. 2304, 2308-11, 105

L.Ed.2d 45 (1989). Even if the State of Florida could be sued under the statute,

plaintiff’s allegations fail to state a plausible theoryof liabilityagainst this defendant. 

Plaintiff seeks to hold the State liable for the assault on the grounds that it was the

State which caused him to be confined at the Jail in the first place on a charge of

failing to comply with the sex offender registration statute, a statute which plaintiff

believes to be unconstitutional. But to the extent plaintiff challenges the validity of

his conviction, his claims are due to be dismissed under Preiser v. Rodriguez, 411

U.S. 475, 490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and Heck v. Humphrey, 512 U.S. 1

477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). To the extent plaintiff argues that the 2

State of Florida’s conduct in criminally charging him caused the assault, such legal

theory is frivolous. 

Plaintiff’s claim against the remaining defendant, Officer Holland, is also due

to be dismissed. Because plaintiff was a pre-trial detainee at the time of the alleged

assault, the relevant constitutional guarantee is the Due Process Clause of the

Fourteenth Amendment. Ingraham v. Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401,

51 L.Ed.2d 711 (1977); Cottone, 326 F.3d at 1356 n. 4; Cagle v. Sutherland, 334 F.3d

The Court in Preiser held that when a prisoner, though asserting jurisdiction under the Civil Rights

1

Act, is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is

a determination that he is entitled to immediate release or speedier release from such imprisonment,

his sole federal remedy is a writ of habeas corpus. Preiser, 411 U.S. at 500, 93 S.Ct. at 1841.

The Court in Heck stated that an action under section 1983 that by its nature challenges the

2

lawfulness of a conviction or sentence is not cognizable unless and until the sentence or conviction

is “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court’s issuance of a writ

of habeas corpus, 28 U.S.C. § 2254.” Id. at 487, 114 S.Ct. at 2372. Absent such an invalidation, the

section 1983 suit must be dismissed. Id.

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980, 985-86 (11 Cir. 2003) (“Because [the inmate] was a pretrial detainee, his th

section 1983 claims are based on the due process clause of the Fourteenth

Amendment.”). Generally stated, the standard applicable to claims involving the

mistreatment of pre-trial detainees in custody is as follows:

A Fourteenth Amendment violation occurs when a substantial risk of

serious harm, of which the official is subjectively aware, exists and the

official does not respond reasonably to the risk. Furthermore, such

risk must be an objectively substantial risk of serious harm to

prisoners, and the prison official must respond to that risk in an

objectivelyunreasonable manner. Finally, a plaintiff must show that the

constitutional violation caused the injury. 

Cottone, 326 F.3d at 1358 (citations omitted). Thus, while it is true that prison

officials have a duty to protect prisoners from violence at the hands of other

prisoners, not every injury suffered by one prisoner at the hands of another

translates into constitutional liability for the prison officials responsible for the

victim’s safety. Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S.Ct. 1970, 1976-77,

128 L.Ed.2d 811 (1994). To be held liable for failing to prevent an attack from other

inmates, a correctional official must be found to have known and recklessly

disregarded “an excessive risk to inmate health or safety,” id., 511 U.S. at 837, 114

S.Ct. at 1979 (emphasis added). That means, a risk that is beyond mere possibility,

Brown v. Hughes, 894 F.2d 1533, 1537 (11 Cir. 1990) (per curiam). Absent special

th

circumstances, general hostilities exhibited by prisoners do not alone amount to a

“substantial risk of serious harm.” See Brown, 894 F.2d at 1537 (finding that

defendants who were informed of a “racial problem” in the victim’s cell, were not

liable). 

With regard to the required state of mind, “there must be at least some

allegation of a conscious or callous indifference to [the] prisoner’s rights, thus

raising the tort to constitutional stature.” Williams v. Bennett, 689 F.2d 1370, 1380

(11 Cir. 1982) (quoting Wright v. El Paso County Jail, 642 F.2d 134, 136 (5 Cir. th th

1981)). The official must be subjectively aware of the risk, Cottone, 326 F.3d at 1358

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(citing Marsh v. Butler County, Alabama, 268 F.3d 1014, 1028 (11 Cir. 2001)), th

meaning that he “must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. Whether an officer was aware

of a risk of serious harm may be deduced from circumstantial evidence such as the

obviousness of the situation confronting the officer. Farmer, 511 U.S. at 842-43, 114

S.Ct. at 1981. A mere negligent failure to protect an inmate does not state a claim

under § 1983. Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670, 88

L.Ed.2d 677 (1986).

It must also be shown that the prison official responded to the risk in an

objectively unreasonable manner. Cottone, 326 F.3d at 1358 (citing Farmer, 511 U.S.

at 834, 844-45); Marsh, 268 F.3d at 1027 (“[O]fficials, to be liable, must be aware of

a substantial risk of serious harm to the inmates and not take reasonable measures

to alleviate that risk.”). The officer must have a realistic opportunity to prevent the

illegal conduct. See Ensley v. Soper, 142 F.3d 1402, 1407-08 (11 Cir. 1998); Byrd th

v. Clark, 783 F.2d 1002, 1007 (11 Cir. 1986); Yang v. Hardin, 37 F.3d 282, 285 (7 Cir. th th

1994). “[P]rison officials who actually knew of a substantial risk to inmate health or

safety may be found free from liability if they responded reasonably to the risk, even

if the harm ultimately was not averted.” Farmer, 511 U.S. at 844, 114 S.Ct. at 1982-83.

In the instant case, plaintiff’s allegations fail to establish that Holland knew

Inmate Bostick posed an excessive risk to plaintiff’s safety. Although plaintiff told

Holland he had previously been charged with molesting Bostick’s daughter

(implying hostility on Bostick’s part), plaintiff went on to state that Bostick had a

restraining order against him (implying that it was plaintiff who posed a threat to

Bostick). It is unlikely that this information, which was ambiguous as to whose

safety was at risk, would be deemed sufficient to put Holland on notice of an

excessive risk to plaintiff’s safety. But even assuming plaintiff’s statements were

sufficient to put Holland on notice that the two inmates posed substantial threats of

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serious harm to each other, plaintiff has not shown that Holland disregarded that

risk, or that he responded in an objectively unreasonable manner. Officer Holland

responded that he would notify the shift lieutenant. Plaintiff does not allege Holland

failed to do that. Nor does he suggest how Holland’s response was objectively

unreasonable (i.e., that Holland had the authority to do more). Additionally,

plaintiff’s allegations fail to state a plausible claim that Holland’s actions (his alleged

deliberate indifference to the threat posed by Bostick) gave rise to a threat of danger

from other inmates. In sum, the allegations of the complaint, taken in the light most 3

favorable to plaintiff, fail to state a plausible due process claim against Officer

Holland.

Accordingly, it is ORDERED:

Plaintiff’s motion to proceed in forma pauperis (doc. 2) is GRANTED for the

limited purpose of dismissing this action. 

And it is respectfully RECOMMENDED:

1. That this cause be DISMISSED WITH PREJUDICE under 28 U.S.C. §

1915(e)(2)(B)(ii).

2. That plaintiff’s motion to appoint counsel (doc. 3) be DENIED.

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

At Pensacola, Florida this 27 day of April, 2010.

th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Plaintiff’s allegations do not plausibly establish that plaintiff’s statements to Holland made Holland

3

aware that inmates other than Bostick posed an excessive risk to plaintiff’s safety. The information

plaintiff learned after the fact – that a hit had been placed on him – does not suggest Holland’s preassault awareness of a hit.

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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: 5:10cv82/RH/MD