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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DAVID EUGENE GRAHAM,

Plaintiff,

v. CASE NO. 5:10-cv-00065-RS-AK

S CARROLL, et al,

Defendants.

_____________________________/

O R D E R

This matter is before the Court upon the filing of a Complaint (Doc. 1). From a review

of the complaint, it is evident that the facts as presented fail to state a claim upon which relief can

be granted. Consequently, the Clerk will mail to him another civil rights complaint that Plaintiff

must complete in its entirety. He does not need to file any service copies of the complaint at this

time. 

Plaintiff alleges that during an incident on January 2, 2010, excessive force was used

against him by Defendants Witlec and Searcy that resulted in their filing false charges against

him and his being held in disciplinary confinement in a cold cell in his underwear and without

other property. 

Under the Eighth Amendment force is deemed legitimate in a prison setting as long as it

is used “in a good faith effort to maintain or restore discipline [and not] maliciously and

sadistically to cause harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986), quoting Johnson v.

Glick, 481 F.2d 1028, 1033 (2 Cir. 1973). In the context of quelling a prison disturbance, the nd

Supreme Court explained that “whether the measure taken inflicted unnecessary and wanton pain
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and suffering ultimately turns on whether force was applied in a good faith effort to maintain or

restore discipline or maliciously and sadistically for the purpose of causing harm. Whitley at

320-321. See also Skritch v. Thornton, 280 F.3d 1295 (11th Cir. 2002). A variety of factors are

considered in determining whether the force was applied maliciously or sadistically, including

the need for force, the relationship between that need and the amount of force used, the threat

reasonably perceived by the prison officials applying it, and any efforts made to temper the

severity of the force used. Hudson v. McMillian, 503 U.S. 1, 7-8 (1992). However, a de minimis

use of force, as evidenced by no injury, cannot support a claim of excessive use of force. 

Hudson, at 7. 

Plaintiff should provide more facts about what happened, what the circumstances were

when the alleged force was used, and why he considers it excessive. He should also provide

facts about the injury, if any, that resulted from this use of force. 

Plaintiff has not alleged a claim concerning the disciplinary report because federal courts

do not review such proceedings absent a claim that there was a procedural defect in the

proceedings, which Plaintiff does not claim here. He complains that the charges were false, but

the Supreme Court has held that damages cannot be claimed in lawsuits concerning disciplinary

proceedings unless the lawsuit would not affect the outcome of those proceedings or affect the

duration of the prisoner’s confinement. Muhammad v. Close, 540 U.S. 749 (2004). Also

required is that there have been a favorable termination of those proceedings, that is that the DR

was overturned or dismissed. Edwards v. Balisok, 520 U.S. 641, 117 S.Ct 1584, 137 L.Ed.2d

906 (1997). The Eleventh Circuit had interpreted Balisok to allow claims challenging a

disciplinary proceeding that were “purely procedural....” Harden v. Pataki, 320 F.3d 1289, 1295

Case No: 5:10-cv-00065-RS-AK
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n.9 (11 Cir. 2003). The procedural requirements for a disciplinary hearing are three-fold: (1) th

advance written notice; (2) a written statement of the reasons for the disciplinary action taken;

and (3) the opportunity to call witnesses and present evidence. Wolff v. McDonnell, 418 U.S.

539, 556, 94 S. Ct. 2963, 2974, 41 L.Ed. 2d 935 (1974); Young v. Jones, 37 F.3d 1457, 1459-60

(11 Cir. 1994); Bass v. Perrin, 170 F.3d 1312, 1318 (11 Cir. 1999). Plaintiff raises none of th th

these issues.

Further, his complaints about the conditions of his disciplinary confinement other than it

was cold and he did not have clothing or other property require more facts before the Court can

determine if his claims rise to the level of cruel and unusual punishment. Plaintiff should explain

how long he was held that way and how cold it was, but more importantly he is not entitled to

damages if he had no injuries from this incident.

Finally, Defendants Witfield, Carroll and Stine are not liable to Plaintiff for their

responses to his grievances concerning this incident. Merely signing a grievance does not create

liability where the signer had no personal involvement in the alleged violations. Manney v.

Moore, 151 F.Supp. 2d 976 (N.D. Ill. 2001). These persons should not be included as defendants

if Plaintiff chooses to file an amended complaint.

In amending, Plaintiff should carefully review the foregoing to determine whether he can

present allegations sufficient to state a cause of action under the relevant law. If Plaintiff is able

to file an amended complaint, he must name as Defendants only those persons who are

responsible for the alleged constitutional violations. Plaintiff must place their full names in the

style of the case on the first page of the civil rights complaint form and in the other appropriate

sections of the form. Further, Plaintiff should clearly describe how each named Defendant is

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involved in each alleged constitutional violation. In civil rights cases, more than conclusory and

vague allegations are required to state a cause of action. See, e.g., Fullman v. Graddick, 739 F.2d

553, 556-57 (11th Cir. 1984). In presenting his claims, Plaintiff must set forth each allegation in

a separately numbered paragraph, as it is essential that the facts relating to each Defendant be set

out clearly and in detail. 

To amend his complaint, Plaintiff must completely fill out a new civil rights complaint

form, marking it "Amended Complaint." Plaintiff is advised that the amended complaint must

contain all of Plaintiff's allegations and should not in any way refer to the original or amended

complaints. An amended complaint completely replaces all previous complaints and all earlier

complaints are disregarded. N.D. Fla. Loc. R. 15.1. Plaintiff should file the amended complaint

in the Court and keep one identical copy for himself. Plaintiff need not file service copies until

instructed to do so by the court.

IT IS ORDERED:

1. The clerk of court shall forward to Plaintiff another Section 1983 form.

2. Plaintiff must respond to this Order not later than April 23, 2010.

3. Failure of Plaintiff to respond to this Order may result in the dismissal of this

lawsuit. 

ORDERED on April 12, 2010.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

Case No: 5:10-cv-00065-RS-AK