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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DANIEL COOPER,

Plaintiff,

v. CASE NO. 5:10-cv-00158-RH -GRJ

CAPTAIN SHAW, et al,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff initiated this case by filing a pro se civil rights complaint pursuant to 42

U.S.C. § 1983, concerning conditions of his confinement while he was an inmate held

at the Northwest Florida Reception Center (NWFRC) in Chipley, Florida. (Doc. 1.) 

Plaintiff is no longer incarcerated at NWFRC and has now filed the appropriate motion

for leave to proceed IFP (non-prisoner) with an affidavit of expenses showing minimal

income from social security benefits and food stamps, barely enough to pay his monthly

expenses. (Doc. 9.) While Plaintiff can demonstrate the requisite level of indigency for

proceeding in forma pauperis, Plaintiff’s motion to proceed in forma pauperis is,

nonetheless, due to be denied and Plaintiff’s complaint dismissed because Plaintiff has

failed to allege a constitutional violation.

I. Introduction

Plaintiff alleges two causes of action, both of which are virtually identical other

than the fact that the first claim includes the allegation that the Defendants (each of

whom is a correctional officer) were acting within the scope of their employment and the
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second claim includes the allegation that Defendants were acting outside of the scope

of their employment. Whether Defendants were acting within or outside of the scope of

their employment makes no difference because the unlawful conduct alleged against

the Defendants does not rise to the level of a constitutional violation. 

 Plaintiff purports to bring a claim for cruel and unusual punishment based upon

Defendants’ alleged failure to provide Plaintiff with toilet paper and personal hygiene

items while Plaintiff was held at NWFRC.. According to Plaintiff, from November 6

through November 9, 2008 – while he was housed in a transient dorm at NWFRC – he

was not provided with toilet paper, clothes, towels, bedrolls, soap or wash cloths. After

Plaintiff complained to his family - who contacted the institution on behalf of Plaintiff – 

he was told by Defendant Owens to tear up his sheet and use it for toilet paper.

According to Plaintiff he did not receive the “supplies” (presumably meaning the

personal hygiene items) until November 9, 2008.

Plaintiff further alleges that the next day, November 10, 2008 Defendant Shaw

threatened to keep Plaintiff at NWFRC for six months if Plaintiff’s family continued to

complain to the institution on Plaintiff’s behalf. Plaintiff was released from NWFRC two

days later on November 12, 2008.

 Plaintiff alleges that during his six day stay at NWFRC he was suffering some

type of unspecified medical problem and that because of the manner in which he was

treated during his stay at NWFRC he experienced pain and suffering causing an

unspecified emotional injury. 

 For relief as to both claims, Plaintiff requests damages of $1,000,000.00, an

order directing the Florida DOC to terminate Shaw and Owens. Plaintiff also requests

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that the “Fla. DOC ... [take] full responsibility ... [for paying] the damages.” 

II. Standard of Review

The screening process under 28 U.S.C. §1915 applies to non-prisoner pro se

litigants who are proceeding in forma pauperis. Troville v. Venz, 303 F.3d 1256, 1260

(11th Cir. 2002) (dismissals under 28 U.S.C. 1915 apply to non-prisoners, even if fee

assessment provisions do not). In order to authorize a litigant to proceed in forma

pauperis, the court must make two determinations: first, whether the litigant is unable to

pay the costs of commencing this action; and second, whether the action is frivolous or

malicious.” Dycus v. Astrue, No. CA 08-0727-KD-C, 2009 WL 47497, at *1 (S.D. Ala.

Jan. 7, 2009). 

Although the Court concludes that Plaintiff meets the financial qualifications for

proceeding IFP, the Court does not find that Plaintiff’s claims withstand a frivolity

screening pursuant to 28 U.S.C. §1915. A claim is frivolous if “it lacks an arguable

basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 317 (1989) (applying

28 U.S.C. §1915). A claim may be frivolous if the plaintiff's chances of ultimate success

are slight. Clark v. State of Ga. Pardons and Paroles Bd, 915 F.2d 636, 639 (11th Cir.

1990). 

III. Analysis

The Constitution does not mandate comfortable prisons, but it does require

humane ones. Rhodes v. Chapman, 452 U.S. 337, 346 (1981). “It is obduracy and

wantonness, not inadvertence or error in good faith, that characterize the conduct

prohibited by the Cruel and Unusual Punishment Clause, whether that conduct occurs

in connection with establishing conditions of confinement, supplying medical needs, or

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restoring official control over a tumultuous cellblock.” Whitley v. Albers, 475 U.S. 312,

319 (1986). 

Whether a claim for deprivation of personal hygiene items is sufficient to make

out a constitutional violation is dependent upon the extent of the violation and the

nature of the items withheld. Chandler v. Baird, 926 F.2d 1057, 1064-65 (11th

Cir.1991). Where, however, the claim, as here, alleges a failure to provide hygiene

items such as soap, towels, mattress or blankets for only several days, courts

addressing the issue have concluded that the conduct is not sufficient to constitute a

constitutional violation. 

For example, in Harris v. Fleming, 839 F.2d 1232, 1235-36 (7th Cir.1988), the

court there held that the failure to provide toilet paper for five days and soap and

toothpaste for ten days was insufficient to demonstrate a claim for cruel and unusual

punishment under the Eighth Amendment as applied to the states under the Fourteenth

Amendment. The Harris court appropriately observed that while the failure to provide

the prisoner with hygiene items may have caused the prisoner to “expierience[ ]

considerable unpleasantness” the prisoner did not suffer any physical harm and the

conditions were only temporary. Id. at 1235. 

Other courts confronted with a claim that prison officials failed to supply personal

hygiene items for a temporary period of time also have concluded that the conduct falls

short of demonstrating a violation of the Eighth Amendment. Matthews v. Murphy, No.

90-35458, 1992 WL 33902, at *4 (9th Cir. Feb. 25, 1992) (failure to provide soap,

towels, toothpaste, and other hygiene items for 34 days not a violation): Castro v.

Chesney, No. CIV. A. 97-4983, 1998 WL 767467, at *9 (E.D. Pa. Nov. 3, 1998) (two

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days not a violation); Schaeffer v. Schamp, No. 06-1516, 2008 WL 2553474, at *6

(W.D. Pa. June 25, 2008) (failure to provide mattress, soap, and toilet paper for ten

days not a violation). 

While the denial of clothing, bedding and hygiene items may constitute an Eighth

Amendment violation where the inmate is subjected to temperatures that are sufficiently

cold enough to pose a health risk, see Chandler, 926 F.2d at 1066, there is no

allegation in this case that in addition to the lack of hygiene items the temperatures

were extremely low. Rather, the claims in this case are focused predominately upon the

failure to provide toilet paper for several days 

Courts have consistently found that the failure to provide toilet paper and other

hygiene items for a limited number of days does not rise to the level of a constitutional

violation. See e.g., Dye v. Lomen, 40 Fed. Appx. 993 (7th Cir. 2002) (two or three days

not cruel or unusual punishment); Harris, 839 F.2d at 1234-36 (five days); Schaeffer,

2008 WL 2553474, at *6 (ten days); Castro, 1998 WL 767467, at *9 (two days); Briggs

v. Heidlebaugh, No. Civ. A. 96-3884, 1997 WL 318081, at *2 (E.D. Pa. May 21, 1997)

(two days). 

Because claims of cruel and unusual punishment by prisoners based upon a

failure to provide toilet paper for a short period of time fall well below the standard for

demonstrating a violation of the Eighth Amendment, courts have not been hesitant in

dismissing the claims as frivolous upon initial screening. Williams v. Trefz, No. 04-C451-C, 2004 WL 1576708, at *2 (W.D. Wis. July 19, 2004) (claim dismissed as frivolous

alleging that 12 sheets of toilet paper a week violated Eighth Amendment); Rudacille v.

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Hoke, Civil No. 4:08-CV-1718, 2009 WL 464480, at *6 (M.D. Pa. Feb. 24, 2009) (one

day without toilet paper; inmate told to use shirt deemed frivolous); Byrd v. Adams, No.

2:09-CV-0312, 2010 WL 184448, at *2 (N.D. Tex. Jan. 20, 2010) (one roll of toilet paper

a week); Brannon v. White, No. 4:10-CV-1704-TCM, 2010 WL 4065109, at *2 (E.D. Mo.

October 15, 2010) (two to five days without toilet paper, showers, and clothes).

Accordingly, because Plaintiff’s claims against Defendants for failing to provide

Plaintiff with toilet paper for five days fail to rise to the level of a constitutional violation,

Plaintiff’s claims are due to be dismissed.

Lastly, Plaintiff separately claims that Defendant Shaw threatened to keep

Plaintiff at NWFRC for six months if Plaintiff’s family continued to contact the institution

and complain about the conditions of confinement. Defendant Shaw obviously did not

carry out his threat in view of Plaintiff’s allegation that Plaintiff was released from

NWFRC a few days later on November 12, 2008. Assuming, however, such a threat

was made a threat is insufficient to allege a cognizable claim. The Eleventh Circuit has

concluded that verbal abuse and unfulfilled threats by corrections officers do not violate

an inmate’s constitutional rights under section 1983. Hernandez v. Florida Dept. of

Corrections, 281 Fed. Appx. 862, 866 (11th Cir. 2008). Accordingly, Plaintiff’s claim

that his constitutional rights were violated because of Shaw’s threats is also due to be

dismissed because there is no legal basis for such a claim. 

In light of the foregoing, it is respectfully RECOMMENDED: 

The Motion for Leave to Proceed In Forma Pauperis (Doc. 9) should be DENIED, 

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and this case should be DISMISSED for failure to state a claim for relief.

At Gainesville, Florida, this 7 day of December 2010.

th

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

Case No: 5:10-cv-00158-RH -GRJ