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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ANTHONY L THOMAS,

Plaintiffs,

v. CASE NO. 4:10-cv-00360-SPM -GRJ

ANITA NICHOLS,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, a prisoner currently incarcerated at the Blackwater River Correctional

Facility in Milton, Florida, proceeding pro se and in forma pauperis, brings this cause of

action against a librarian at Wakulla Correctional Institution for issuing a disciplinary

report and for refusing to provide Plaintiff with a job at the library. (Doc. 14.) Plaintiff

was advised that his original (Doc.1) and First Amended Complaint (Doc. 8) failed to

state a claim for relief. (Docs. 6 and 11.) Plaintiff has now submitted a Second

Amended Complaint for review. (Doc. 14).

A court may sua sponte dismiss a case proceeding in forma pauperis if the

complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A. 

The complaint's [f]actual allegations must be enough to raise a right to relief above the

speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); see also Cobb v.

Florida, 293 Fed. Appx. 708 (11th Cir. 2008) (applying Twombly to a prisoner’s pro se

complaint brought under 42 U.S.C. §1982 and dismissed pursuant to 28 U.S.C.

§1915A). “The Supreme Court's most recent formulation of the pleading specificity

standard is that ‘stating such a claim requires a complaint with enough factual matter
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(taken as true) to suggest’ the required element.” Watts v. Florida International

University, 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1965).

This standard simply calls for enough facts to raise a reasonable expectation that

discovery will reveal evidence of the required element. Twombly, at 1965. In reviewing

the dismissal of a complaint under the 28 U.S.C. 1915A(b)(1), this court accepts

allegations in the complaint as true, and pro se pleadings are liberally construed. Brown

v. Johnson, 387 F.3d 1344, 1350 (11th Cir.2004).

The Court is required to dismiss a complaint at any time if it is determined to be

frivolous. 28 U.S.C. §1915(e)(2)(B)(I). Typically, a court should serve the complaint

and have benefit of the defendant’s response before making such a determination, but

there are compelling reasons for immediately dismissing frivolous suits by prisoners

since they unduly burden the courts, obscure meritorious claims, and require innocent

parties to expend significant resources in their defense. Williams v. Secretary for the

Department of Corrections, 131 Fed. Appx. 682, 686 (11 Cir. 2005). Dismissal prior to th

service is also appropriate when the Court determines from the face of the complaint

that the factual allegations are clearly baseless or that the legal theories are

indisputably meritless. Williams, supra; Carroll v. Gross, 984 F.2d 392, 393 (11 Cir. th

1993).

Dismissal here is appropriate because even though Plaintiff was advised

previously that he must point to specific defects in the disciplinary process, and not

simply his disagreement with the outcome, Plaintiff has failed to allege any facts which

arguably could support a due process claim relating to the disciplinary process or

relating to the alleged failure to provide Plaintiff with a job in the library. (Doc. 11.) 

Case No: 4:10-cv-00360-SPM -GRJ
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 Viewing Plaintiff’s facts as true for purposes of determining whether he has

stated a constitutional claim, Plaintiff’s Second Amended Complaint discloses the

following details.

Plaintiff alleges that while he was taking a magazine from the library on his way

to medical call the librarian, Defendant Nichols, “wrote him up” for stealing the

magazine. Plaintiff disagrees with the librarian’s version of what happened and

contends that he could not be charged with stealing “since I am allowed to read

everything in the library.” (Doc. 14, at 5.) Plaintiff alleges that the disciplinary report

was overturned because Defendant Nichols made errors in the report and had to

rewrite the disciplinary report twice. Id. While Plaintiff is not specific about what was

wrong with Defendant’s report or the reason the DR was overturned, these types of

problems do not constitute the type of procedural defects that raise due process

concerns. 

The Supreme Court has identified three specific requirements to comply with due

process concerns in disciplinary proceedings: (1) advance written notice; (2) a written

statement of the reasons for the disciplinary action; and (3) the opportunity to call

witnesses and present evidence. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Only

these procedural errors may be raised in challenging disciplinary proceedings;

disagreements with the results of the proceedings are foreclosed. Edwards v. Balisok,

520 U.S. 641 (1997). 

Plaintiff claims that after the DR was overturned he was told that “everything will

go back like it was,” and that he would return to the library when an opening became

available. (Doc. 14, at 6.) Plaintiff alleges, however, that when openings became

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available Plaintiff was not “rehired” because Defendant (in some unspecified manner)

kept Plaintiff from getting his job back. Even if Plaintiff’s allegation was true that the

librarian prevented Plaintiff from getting a job in the library, it is insufficient to

demonstrate a viable claim because an inmate does not have a constitutionally

protected interest in a particular job classification. Adams v. James, 784 F.2d 1077,

1079 (11th Cir. 1986). Simply put, Defendant was not required to give Plaintiff the job

at the library or any job in particular, even if the decision was “motivated by evil.” 

In addition to the fact that Defendant’s conduct about which Plaintiff’s complains

fails to give rise to a procedural due process claim, Plaintiff’s claim also fails because

"[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 suffered while in custody without a

prior showing of physical injury." 42 U.S.C. § 1997e(e). The only relief requested by the

Plaintiff is that Defendant be punished and that Plaintiff receive damages for “emotional

trauma.” Id. at 7 Thus, without any claim of physical injury Plaintiff is not entitled to

compensatory and punitive damages Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir.

2007) and cannot proceed with his claim for damages.

In light of the foregoing, it is respectfully RECOMMENDED: 

The complaint in this cause should be DISMISSED for failure to state a claim for

relief and as frivolous.

At Gainesville, Florida, this 30 day of December, 2010. th

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

Case No: 4:10-cv-00360-SPM -GRJ
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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: 4:10-cv-00360-SPM -GRJ