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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

 PENSACOLA DIVISION

DAVID McCISKILL,

 Plaintiff,

vs. 3:10cv211/MCR/MD

COL. CHAD E. THOMPSON,

et al.

 Defendants.

SECOND REPORT AND RECOMMENDATION

This cause filed pursuant to Title 42 United States Code Section 1983 is presently

before the court on amended plaintiff’s civil rights complaint (doc. 15). This court

previously recommended that plaintiff’s complaint be dismissed without prejudice forfailure

to state a claim pursuant to 42 U.S.C. § 1997e(e) because he alleged only mental and

emotional injuries. Plaintiff moved to amend his complaint, and leave to amend was

granted. (Doc. 8 & 10). He was also granted an extension of time in which to file his

amended complaint (doc. 12 & 14), and he has now done so. Although the plaintiff has

changed the legal theory upon which he bases his claim for relief, he has not corrected the

primary deficiency in the initial complaint–a failure to allege physical injury-- and in light of

the facts underlying the complaint, it does not appear that he will be able to do so. Thus,

dismissal is still warranted on this basis. Even if this deficiency is momentarily overlooked,

plaintiff has failed to state an actionable claim against any of the named defendants. 

Since plaintiff is proceeding in forma pauperis, the court is required to dismiss the

case at any time if it determines that the “action or appeal” is “(i) frivolous or malicious; (ii)
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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). Because the

language of § 1915(e)(2)(B)(ii) tracks the language of FED. R. CIV. P. 12(b)(6), 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). The th

allegations of the complaint are taken as true and are construed in the light most favorable

to the plaintiff. See Pielage v. McConnell, 516 F.3d 1282 (11 Cir. 2008); Thaeter v. Palm th

Beach County Sheriff’s Office, 449 F.3d 1342, 1352 (11 Cir. 2006); Davis v. Monroe

th

County Bd. Of Educ., 120 F.3d 1390, 1393 (11 Cir. 1997). Plaintiff must allege more than

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“labels and conclusions” or a “formulaic recitation of the elements of a cause of action” and

his complaint must include factual allegations sufficient “to raise a right to relief above the

speculative level.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65, 1973 n.14,

167 L.Ed.2d 929 (2007) (declining to apply a heightened pleading standard, and

abrogating Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (“a

complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle

him to relief.” 355 U.S. at 45-46, 78 S.Ct. 99.)) A complaint is subject to dismissal for

failure to state a claim “when its allegations, on their face, show that an affirmative defense

bars recovery on the claim.” Douglas v. Yates, 535 F.3d 1316, 1321 (11 Cir. 2008) th

(quoting Cottone v. Jenne, 326 F.3d 1352, 1357 (11 Cir. 2003)). Leave to amend a

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complaint is futile when the complaint as amended would still be properly dismissed or be

immediately subject to summary judgment for the defendant. Cockrell v. Sparks, 510 F.3d

1307, 1310 (11 Cir. 2007) (citing Hall v. United Ins. Co. Of Am., 367 F.3d 1255, 1263 (11 th th

Cir. 2004)). Upon review of plaintiff’s complaint, the court concludes that plaintiff has not

presented an actionable claim and that sua sponte dismissal is therefore warranted.

Vanderberg v. Donaldson, 259 F.3d 1321, 1323 (11 Cir. 2001). th

As he did in his initial complaint, plaintiff alleges that his civil rights were violated

when his name was placed on a list of “Gunners” by defendants Col. Chad E. Thomspon

and Major Jimmy R. Johnson, and his cell was designated accordingly. “Gunners,”

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according to plaintiff, are inmates who have been found guilty in a disciplinary hearing of

masturbation directed towards female staff and/or exposing their sexual organ to female

staff, which is a “1-6 infraction.” (Doc. 15 at 9). Plaintiff states that he does not have a 1-6

infraction on his record, although on September 27, 2009 he received a DR for a 9-1

infraction, by definition an “obscene remark” (Id.) These infractions are different in nature

and degree, according to plaintiff. Plaintiff asserts that Thompson and Johnson’s labeling

him as a “Gunner” was discriminatory and arbitrary. He alleges that a white inmate who

was guilty of 1-6 infractions was placed in Close Management but was not so labeled,1

which was a violation of plaintiff’s right to equal protection. He also claims that Thompson 2

and Johnson explicitly told him that the reason the labeling policy was used against him

was because he was black, and that the policy was not used against white inmates. (Doc.

15 at 11). Plaintiff complains that Warden R. Tifft was grossly negligent in managing the

people he was supposed to supervise, and that defendant E. Stine denied plaintiff’s

appeal, thus failing to remedy the situation. Plaintiff contends that the defendants’ actions

violated his rights under the Equal Protection Clause, and he seeks $75,000 in punitive

damages against each defendant, as well as $50,000 in attorney fees. (Doc. 15 at 12).

Again, plaintiff has not alleged a physical injury and under the facts of this case, he

clearly is unable to do so. Thus, his claim, again, is for mental anguish he suffered as a

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result of defendants’ alleged conduct, and as such is prohibited by 42 U.S.C. § 1997e(e). 

Title 42 U.S.C. § 1997e(e) provides that “[n]o Federal civil action may be brought by a

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

In the initial complaint, plaintiff did not raise an equal protection violation but stated that application of

1

the label was intended for the sole purpose of wanton and unnecessary infliction of psychological pain and

punishment, was done with deliberate indifference to his rights and was done as part of a conspiracy against

him. He further claimed that this false accusation had assassinated his character. (Doc. 1 at 10).

Plaintiff ignores the fact that his assertion that he was not convicted of such infractions, m eans

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that inm ates who were convicted of such violations were not “sim ilarly situated” to him .

One of the grievances attached to the initial com plaint reflected that plaintiff reportedly went on

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a “hunger strike” for five days as a result of his distress surrounding this issue. He apparently ended

the hunger strike without incident.

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suffered while in custody without a prior showing of physical injury.” This is an affirmative

defense, not a jurisdictional limitation. Douglas v. Yates, 535 F.3d 1316, 1321 (11 Cir. th

2008). A complaint is subject to dismissal for failure to state a claim “when its allegations,

on their face, show that an affirmative defense bars recovery on the claim.” Yates, 535

F.3d at 1321 (quoting Cottone v. Jenne, 326 F.3d 1352, 1357 (11 Cir. 2003)). As the th

Eleventh Circuit has explained: “[Section] 1997e(e) applies only to lawsuits involving (1)

Federal civil actions (2) brought by a prisoner (3) for mental or emotional injury (4) suffered

while in custody.” Napier v. Preslicka, 314 F.3d 528, 532 (11 Cir. 2002). The Eleventh th

Circuit has determined that “the phrase ‘Federal civil action’ means all federal claims,

including constitutional claims.” Napier, 314 F.3d at 532. This § 1983 action brought by

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

filed his complaint while imprisoned. Plaintiff’s complaint alleges no physical injuries, but

alludes only to mental and emotional injuries, so as to satisfy the third predicate for the

application of § 1997e(e). Finally, the harm complained of occurred while plaintiff was in

custody, so as to satisfy the fourth predicate.

Based on the foregoing, the incarcerated plaintiff’s damages claim is subject to

dismissal without prejudice on this basis unless he alleges physical injury. Further, he 4

must allege more than a de minimis physical injury. Harris v. Garner, 190 F.3d 1279, 1286-

87 (11 Cir. 1999) (“We therefore join the Fifth Circuit in fusing the physical injury analysis th

under section 1997e(e) with the framework set out by the Supreme Court in Hudson [v.

McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)] for analyzing claims brought

under the Eighth Amendment for cruel and unusual punishment, and hold that in order to

satisfy section 1997e(e) the physical injury must be more than de minimis, but need not be

significant.”), reh’g granted, opinion vacated, 197 F.3d 1059 (11 Cir. 1999), opinion th

reinstated in pertinent part on reh’g, 216 F.3d 970 (11 Cir. 2000), cert. denied, 532 U.S. th

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

4 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 nom inal dam ages); see also Smith v. Allen, 502 F.3d 1255, 1271 (11 Cir.

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2007) (finding that nom inal dam ages are recoverable, but that com pensatory and punitive dam ages

are precluded under PLRA).

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1065, 121 S.Ct. 2214, 150 L.Ed.2d 208 (2001); Osterback v. Ingram, 2000 WL 297840,

13 Fla. L. Weekly D 133 (N.D. Fla. 2000), aff’d, 263 F.3d 169 (11 Cir. 2001) (Table) th

(holding that a prisoner plaintiff may not recover compensatory or punitive damages for

mental or emotional injury without establishing that he suffered more than de minimis

physical injury), cert. denied, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002). In the instant

complaint, plaintiff neither claims nor alleges facts to remotely suggest a physical injury

arising from defendants’ conduct. Consequently, he is presently prohibited by § 1997e(e)

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from bringing his damages claims.6

Additionally, even if the plaintiff could successfully circumvent the physical injury

requirement of 42 U.S.C. § 1997e(e), he has not stated a constitutional claim against the

four named defendants. First, to establish an equal protection claim, a prisoner must

demonstrate that (1) “he is similarly situated with other prisoners who received” more

favorable treatment; and (2) his discriminatory treatment was based on some

constitutionally protected interest such as race. Sweet v. Secretary, Dept. Of Corrections,

467 F.3d 1311 (11 Cir. 2006) (citing Jones v. Ray, 279 F.3d 944, 946-947 (11 Cir. th th

2001); Damiano v. Fla. Parole & Prob. Comm'n, 785 F.2d 929, 932-33 (11 Cir. 1986) (per th

curiam)); see also Smith v. Regional Director of Florida Department of Corrections, 368

Fed.Appx.9 (11 Cir. 2010). The Caucasian individual identified by plaintiff who escaped th

the “Gunner” label, by plaintiff’s own description was not similarly situated. 

His claim against Warden Tifft fails 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); Goebert v. Lee County, 510 F.3d 1312,

1331 (11 Cir. 2007); Cottone v. Jenne, 326 F.3d 1352 (11 Cir. 2003); Harris v. Ostrout, th th

65 F.3d 912, 917 (11 Cir. 1995). “Supervisory liability under § 1983 occurs either when th

the supervisor personally participates in the alleged unconstitutional conduct or when there

Even if he alleged that som e harm befell him from his voluntary 5 day hunger strike referenced

5

in the attachm ent to the initial com plaint, it is highly im probable that defendants could be held liable

for his voluntary actions.

Of course, the pro se plaintiff also m ay not recover the requested $50,000 in attorney’s fees.

6

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is a causal connection between the actions of a supervising official and the alleged

constitutional deprivation.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11 Cir. 2003); see th

also Marsh v. Butler County, 268 F.3d 1014, 1035 (11 Cir. 2001); Swint v. City of Wadley, th

Alabama, 51 F.3d 988, 999 (11 Cir. 1995); Rivas v. Freeman, 940 F.2d 1491, 1495 (11 th th

Cir. 1991). Thus, one cannot be held liable for the actions or omissions of others, but can

only be held responsible if he participated in the deprivation of plaintiff’s constitutional

rights. Marsh, supra; Harris v. Ostrout, 65 F.3d 912, 917 (11 Cir. 1995). th

Finally, plaintiff has failed to establish actionable wrongdoing by E. Stine. Prison

officials who were not involved in the alleged constitutional violation, and whose only roles

involved the denial of administrative grievances or the failure to act, are not liable under

§ 1983 on theory that failure to act constituted an acquiescence in the unconstitutional

conduct. Grinter v. Knight,532 F.3d 567 (6 Cir. 2008); Shehee v. Luttrell 199 F.3d 295, th

300 (6 Cir. 1999), cert. denied 530 U.S. 1264, 120 S.Ct. 2724, 147 L.Ed.2d 988 (2000); th

see also Lomholt v. Holder, 287 F.3d 683, 683 (8 Cir. 2002) (defendants’ denial of th

plaintiff’s grievances did not state a substantive constitutional claim); Weaver v. Toombs,

756 F.Supp. 335, 337 (W.D. Mich. 1989) (holding that prisoner failed to state a § 1983

claim against supervisory officials, where prisoner merely alleged the officials denied his

grievance and did not allege they were personally involved in the alleged misconduct),

aff’d, 915 F.2d 1574 (6 Cir. 1990). This is because liability under § 1983 must be based

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on active unconstitutional behavior and cannot be based upon “a mere failure to act.”

Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6 Cir.1998), cert. denied, ---

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U.S. ----, 119 S.Ct. 1763, 143 L.Ed.2d 793 (1999). Plaintiff must show that the defendant

did more than play a passive role in the alleged violation or showed mere tacit approval of

the events. Id. (Citing Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (1989)). This

he has failed to do.

As plaintiff cannot successfully bring his action as a violation of 42 U.S.C. § 1983,

the court is satisfied that his complaint lacks an arguable basis in law or fact and that it fails

to state a claim. 

Accordingly, it is respectfully RECOMMENDED:

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That this cause be dismissed for failure to state a claim pursuant to 28 U.S.C. §

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

At Pensacola, Florida, this 22 day of September, 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 thereof. 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 objections shall be served upon 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 (11 Cir. 1988). th

Case No: 3:10cv211/MCR/MD