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

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

TYRONE RAHMINGS,

Plaintiff,

vs. Case No. 5:10cv240/RS/CJK

DAVID ELLIS, et al.,

Defendants.

O R D E R

This cause is before the court upon plaintiff’s civil rights complaint filed

pursuant to 42 U.S.C. § 1983. (Doc. 5). From a review of the complaint, it is evident

that plaintiff failed to comply with the instructions on the complaint form requiring

him to describe his prior litigation history. It further appears that plaintiff may not

have exhausted his administrative remedies with respect to his claims, and that in any

event, the facts as presented fail to state a viable claim for relief under § 1983 as to

one or more of the named defendants. The court will therefore allow plaintiff an

opportunity to correct these deficiencies and clarify his allegations in an amended

complaint. 

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

Rosa Correctional Institution. He was confined at Gulf Correctional Institution

(“Gulf CI”) at the time of the events giving rise to his complaint. The complaint
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names five defendants, all prison officials at Gulf CI: Warden David Ellis, Assistant

Warden Douglas Sloan, Chief of SecurityRonnie Segers, Institution InspectorRandy

Hightower and Sergeant Steven Bachand. (Doc. 5, pp. 1-2). Plaintiff claims his

Eighth Amendment rights were violated in November of 2009, when the defendants

failed to protect him from an inmate assault. (Id., pp. 6-8). As relief, plaintiff seeks

monetary damages in an unspecified amount.

With regard to disclosure of plaintiff’s litigation history, on page four of the

civil rights complaint form, Section IV(C), Previous Lawsuits, is the following

question: “Have you initiated other actions (besides those listed above in Questions

(A) and (B)) in either state or federal court that relate to the fact or manner of your

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incarceration (including habeas corpus petitions) or the conditions of your

confinement (including civil rights complaints about any aspect of prison life,

whether it be general circumstances or a particular episode, and whether it involved

excessive force or some other wrong)?” Where there are parenthetical areas to mark

either a “Yes” or “No” answer to Question (C), plaintiff marked “Yes.” (Doc. 5, p.

4). The complaint form then directs the prisoner to describe each action, attaching

additional pages if necessary. Plaintiff disclosed no cases, but instead wrote

“information unavailable.” (Id.). This response is not acceptable. Plaintiff bears

responsibility to be aware of his prior litigation and the results from that litigation. 

If he cannot remember the cases he has filed, he must contact the relevant court(s) to

determine those cases so that he can make a full, complete, and honest accounting of

them, including whether any case was dismissed as frivolous, malicious, for failure

Questions (A) and (B) asked plaintiff whether he had initiated other actions in state or federal 1

court dealing with the same or similar facts/issues involved in the present action. Plaintiff answered

“No” to both questions, and disclosed no cases. (Doc. 5, p. 3).

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to state a claim, or prior to service. In amending, plaintiff must ensure that this

section of the complaint form is fully and accurately completed.

As to the viability of plaintiff’s claims, the allegations of plaintiff’s complaint

are as follows. On September 16, 2009, plaintiff was placed in confinement on a

charge of disorderly conduct arising from his running from another inmate (Daniel

Evans) who wanted to fight him. (Doc. 5, p. 5). Plaintiff was released from

confinement on October 21, 2009. On October 25, 2009, defendant Bachand

questioned plaintiff about a note that had come into Bachand’s possession. The note

was written by inmate Evans and stated Evans’ intent to “cut and/or stab” plaintiff. 

Plaintiff denied any knowledge of the note. After defendant Bachand asked plaintiff

why Evans had been chasing him, plaintiffresponded that he did not know the reason. 

On November 3, 2009, defendant Bachand again consulted with plaintiff. In this

meeting, Bachand explained that he had been investigating the incident, that he had

closed his investigation and that his report recommended “keep[ing] [plaintiff] and

inmate Evans separated.” (Id., p. 5). On November 26, 2009, inmate Evans attacked

plaintiff with a knife. After the attack, defendant Hightower visited plaintiff and

acknowledged he had seen Bachand’s report and knew plaintiff and Evans were

supposed to have been separated. Hightower advised plaintiff that he (plaintiff)

would be placed on close management status. (Id., p. 6). Plaintiff was approved for

close management on December 17, 2009. (Id.). Based on the foregoing allegations,

plaintiff seeks to hold the named defendants liable for failing to prevent the attack

from inmate Evans. 

The court will first address the exhaustion issue. Title 42 U.S.C. § 1997e, the

Prison Litigation Reform Act (PLRA), provides in relevant part: “No action shall be

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brought with respect to prison conditions under section 1983 of thistitle, or any other

Federal law, by a prisoner confined in any jail, prison, or other correctional facility

until such administrative remedies as are available are exhausted.” 42 U.S.C. §

1997e(a). Exhaustion of all available administrative remedies is a mandatory pre- 2

condition to suit. Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 149 L.Ed.2d

958 (2001); see also Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 988, 152

L.Ed.2d 12 (2002) (“Beyond doubt, Congress enacted § 1997e(a) to reduce the

quantity and improve the quality of prisoner suits; to this purpose, Congress afforded

corrections officials time and opportunity to address complaints internally before

allowing the initiation of a federal case.”). The exhaustion requirement applies to all

inmate suits about prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or some other wrong. 

Porter, 534 U.S. at 524, 122 S.Ct. 983. Exhaustion is required whether the plaintiff

 The purpose of this exhaustion requirement is to reduce the quantity and improve the quality of 2

prisoner suits. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). In

Alexander v. Hawk, 159 F.3d 1321 (11 Cir. 1998), the Eleventh Circuit noted the following seven th

policy reasons favoring exhaustion:

(1) to avoid premature interruption of the administrative process;

(2) to let the agency develop the necessary factual background upon which decisions

should be based;

(3) to permit the agency to exercise its discretion or apply its expertise;

(4) to improve the efficiency of the administrative process;

(5) to conserve scarce judicial resources;

(6) to give the agency a chance to discover and correct its own errors; and

(7) to avoid the possibility that “frequent and deliberate flouting of the administrative

processes could weaken the effectiveness of an agency by encouraging people to

ignore its procedures.”

Id. at 1327 (quotingKobleur v. Grp. Hospitalization and Med. Services, Inc., 954 F.2d 705, 712 (11th

Cir. 1992)). 

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seeks declaratory and injunctive relief, monetary damages, or both. Booth, supra at

734, 121 S.Ct. at 1825. The requirement is not subject to waiver by a court, or

futility or inadequacy exceptions. See Booth, supra at 741 n. 6; McCarthy v.

Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (“Where Congress

specifically mandates, exhaustion is required.”); Alexander v. Hawk, 159 F.3d 1321

(11 Cir. 1998). Moreover, the PLRA requires “proper exhaustion,” so that the

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agency addresses the issues on the merits. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct.

2378, 2387-88, 165 L.Ed.2d 368 (2006); see also id., 126 S.Ct. at 2388 (“The benefits

of exhaustion can be realized only if the prison grievance system is given a fair

opportunity to consider the grievance. The prison grievance system will not have

such an opportunity unlessthe grievant complies with the system’s critical procedural

rules.”). “A prisoner need not name any particular defendant in a grievance in order

to properly exhaust his claim.” Parzyck v. Prison Health Servs., Inc., 627 F.3d 1215,

1218-19 (11 Cir. 2010) (citing Jones v. Bock, 549 U.S. 199, 219, 127 S.Ct. 910, 166

th

L.Ed.2d 798 (2007)). At a minimum, however, the aggrieved prisoner must “alert []

prison officials to the problem and giv[e] them the opportunity to resolve it before

being sued.” Id. at 1219. A court must dismiss a claim when it is apparent from the

face of the complaint that the plaintiff failed to exhaust administrative remedies with

respect to that claim before filing his lawsuit. Higginbottom v. Carter, 223 F.3d

1259, 1261 (11 Cir. 2000); Alexander, 159 F.3d at 1325-26. 

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Here, plaintiff attemptsto demonstrate exhaustion by attaching to the complaint

62 pages of grievances. Several grievances, however, were returned without action

on procedural grounds, and the others did not challenge the Gulf CI prison officials’

failure to protect plaintiff from inmate Evans, the wrong alleged in the present

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deliberate indifference claim. Instead, they challenged the InstitutionalClassification

Team’s placement of plaintiff on Close Management status after the assault due to

plaintiff’s conduct during the altercation, as well as SantaRosa CI officials’ decision 3

to continue plaintiff on CM status. Plaintiff is warned that if he did not properly

exhaust his deliberate indifference claims, he should file a notice of voluntary

dismissal in order to avoid a dismissal under 28 U.S.C. § 1915(e)(2)(B), which would

count as a “strike.” 

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Even assuming plaintiff properly exhausted his deliberate indifference claims,

the allegations fail to state a plausible claim for relief against several, if not all, of the

named defendants. In any section 1983 action the initial inquiry must focus on

whether two essential elements are present:

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

under color of state law; and

2. whether this conduct deprived a person 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

th

Plaintiff argued that because he acted in self-defense, his behavior did not warrant his placement 3

on CM status and he should therefore be released to the general population.

Since plaintiff is proceeding in forma pauperis, the court may dismiss the case if satisfied that

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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). When an affirmative defense such as lack of exhaustion is apparent from the face

of the complaint and attachments, the complaint may be dismissed for failure to state a claim. A

prisoner who has had three or more cases or appeals dismissed on the grounds that it is frivolous,

malicious, or fails to state a claim upon which relief may be granted, cannot proceed in forma

pauperis, unless he is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

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Cir. 2001). Although 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) (citations omitted). Liability under the Eighth

Amendment for failing to prevent an attack from another inmate, requires that a

correctional official 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. The risk

“must be an objectively substantial risk of serious harm,” Cottone v. Jenne, 326 F.3d

1352, 1358 (11 Cir. 2003) (citing Farmer, 511 U.S. at 834, 844-45), one that is th

beyond mere possibility, Brown v. Hughes, 894 F.2d 1533, 1537 (11 Cir. 1990) (per th

curiam). 

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

allegation of a conscious or callousindifference to [the] prisoner’s rights, thusraising

the tort to constitutionalstature.” Williams v. Bennett, 689 F.2d 1370, 1380 (11 Cir. th

1982) (quoting Wright v. El Paso Cnty. Jail, 642 F.2d 134, 136 (5 Cir. 1981)). The th

official must be subjectively aware of the risk, Cottone, 326 F.3d at 1358 (citing

Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1028 (11 Cir. 2001)), meaning that he th

“must both be aware of facts from which the inference could be drawn that a

substantial risk ofserious harmexists, 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. 

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Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670, 88 L.Ed.2d 677

(1986).

A viable complaint must also show 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. th

1998); Byrd v. Clark, 783 F.2d 1002, 1007 (11 Cir. 1986); Yang v. Hardin, 37 F.3d

th

282, 285 (7 Cir. 1994). “[P]rison officials who actually knew of a substantial risk th

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. Finally, a plaintiff must show that the

constitutional violation caused the injury. Cottone, 326 F.3d at 1359 (citing Marsh,

268 F.3d at 1028).

Here, plaintiff does not claim that Bachard’s response – his investigation,

report and recommendation – was objectively unreasonable. Instead, plaintiff bases

his deliberate indifference claim on Bachard’s failure to follow up on his report. Yet

the complaint neither claims nor alleges facts to suggest that after Bachard issued his

report, he became aware that his recommendation was not being followed, or that a

substantial threat to plaintiff’s safety remained despite his recommendation. 

Therefore, plaintiff’s allegations, as presented, fail to state a plausible deliberate

indifference claim against this defendant.

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As to defendant Hightower, plaintiff merely namesthis official as a defendant.

The allegations, however, fail to explain how Hightower isresponsible for the alleged

failure to protect plaintiff (i.e., what this defendant did or did not do that violated

plaintiff’s rights). In amending, if plaintiff cannot state exactly how this defendant

harmed him, he should delete Hightower as a defendant from his complaint.

Finally, as to the remaining defendants Segers, Sloan and Ellis, plaintiff

essentially alleges that these supervisory officials must have known of the threat to

plaintiff’s safety, because they are informed on a regular basis of all security threats

and receive copies of all reports concerning security threats, yet failed to take

measures to protect plaintiff’s safety. Conclusory allegations such as these do not

support a reasonable inference that Segers, Sloan and Ellis were subjectively aware

of the threat posed by Evans. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.

1955, 1964-65, 167 L.Ed.2d 929 (2007) (holding that a plaintiff must allege more

than mere “labels and conclusions”; the complaint must include “[f]actual allegations

... [sufficient] to raise a right to relief above the speculative level.”) (citations and

internal quotations omitted); see also Weissman v. Nat'l Ass'n of Sec. Dealers, 500

F.3d 1293, 1305 (11 Cir. 2007) (en banc) (Tjoflat, J., dissenting) (“[A]ny conclusory th

allegations, unwarranted deductions of fact or legal conclusions masquerading as

facts do not prevent dismissal.”) (citing Associated Builders, Inc. v. Ala. Power Co.,

505 F.2d 97, 99 (5 Cir. 1974)). Plaintiff’s allegations against these defendants

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require more factual development. 

Plaintiff should carefully review this order to determine whether he can

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

plaintiff chooses not to proceed with this action, he should file with the court a notice

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of voluntary dismissal. If plaintiff chooses to proceed with this action, he must

completely fill out a new civil rights complaint form, marking it “Amended

Complaint.” Plaintiff must limit his allegations to claims related to the same basic

incident or issue and name as defendants only those persons who are responsible for

the alleged constitutional violations. Plaintiff must place the defendants’ names in

the style of the case on the first page of the complaint form, and include their

addresses and employment positions in the “Parties” section of the form. In the

statement of facts, plaintiff should clearly describe how each named defendant is

involved in each alleged constitutional violation, alleging the claims as to each

defendant in separately numbered paragraphs and including specific dates and times

of the alleged unconstitutional acts. If plaintiff cannot state exactly how a particular

defendant harmed him, he should delete or drop that person as a defendant from his

complaint. In the section entitled “Statement of Claim,” plaintiff must state what

rights under the Constitution or laws of the United States have been violated, and he

must provide support in the statement of facts for the claimed violations. Plaintiff is

advised that the amended complaint must contain all of his allegations because once

an amended complaint is filed, all earlier complaints are disregarded. N.D. Fla. Loc.

R. 15.1. 

Plaintiff should file the amended complaint with an originalsignature with the

court and keep an identical copy for himself. Plaintiff should not file a memorandum

of law or otherwise provide citations to statutes and cases, and he should not file

exhibits as evidentiary support for his complaint. The court will notify plaintiff when

memoranda and exhibits are necessary, such as prior to trial or in conjunction with

a motion for summary judgment. Furthermore, plaintiff should not submit service

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copies of his complaint unless and until the court directs him to do so. Finally,

plaintiff is advised that discovery is premature at this stage of the case and plaintiff

should not do any discovery without leave of court.

Accordingly, it is ORDERED:

1. The clerk of court shall forward to the plaintiff a civil rights complaint form

for use in actions under 42 U.S.C. §1983. This case number and the words

“Amended Complaint” should be written on the form. 

2. Within thirty (30) days of the date of this order, plaintiff shall file a notice

of voluntary dismissal or an amended civil rights complaint. If plaintiff files an

amended complaint, it must be typed or clearly written and submitted on court form

as instructed above. Plaintiff’s failure to comply with this order as instructed will

result in a recommendation that this case be dismissed.

DONE AND ORDERED this 16th day of March, 2011.

/s/ Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

Case No: 5:10cv240/RS/CJK