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

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ANTHONY LEROY WAY,

Plaintiff,

vs. Case No. 5:10cv107/RS/CJK

WALT MCNEIL, et al., 

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed a sixth amended

civil rights complaint (styled as fifth amended complaint, but actually the sixth)

pursuant to 42 U.S.C. § 1983. (Doc. 45) Upon review of the amended complaint, the

court concludes that plaintiff has not presented an actionable claim, and that dismissal

of the case is warranted.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff was an inmate of the Florida Department of Corrections (“DOC”)

when he initiated this lawsuit on May 6, 2010. (Doc. 1) Plaintiff, who filed his sixth

amended complaint on January 7, 2011 (doc. 45), seeks compensatory damages based

on his claims that prison officials failed to act on multiple grievances he filed

concerning a physical assault that occurred while plaintiff was housed at South

Florida Reception Center (“SFRC”). (Doc. 45, 5) In addition, plaintiff raises a claim

of medical malpractice, alleging that he received negligent medical treatment

following the assault. (Doc. 45, 6-8) In the sixth amended complaint, plaintiff names

as defendants Walter McNeil (“McNeil”), former Secretary of DOC, and Dr. Izuegby

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Moses (“Dr. Moses”), who was employed at Calhoun Correctional Institution

(“Calhoun CI”) at all times material to the complaint. (Doc. 45, 2)

The chronology of relevant events giving rise to this complaint begins on

October 5, 2009, by which time plaintiff had been placed under investigation for the

assault of a female prison officer. (Doc. 45, 5) Having been transferred to

disciplinary confinement, plaintiff claims he was physically assaulted at

approximately 3:00 a.m. on October 9, 2009, by three unidentifiable prison officers,

who punched and kicked the inmate in the body and face. (Doc. 45, 5) Complaining

of left inner ear pain, plaintiff was examined by Nurse Bennett on October 11, 2009. 

(Doc. 45, 5) The nurse, however, did not report plaintiff’s assault allegations,

prompting Mr. Way to initiate the grievance process. (Doc. 45, 5) To conceal

evidence of the assault, defendant McNeil, according to the complaint, transferred

plaintiff to no fewer than five different penal institutions and failed to act on his

various grievances concerning the incident. (Doc. 45, 6) 

On October 19, 2009, plaintiff was transferred from SFRC to Calhoun CI.

(Doc. 45, 5) The following day, plaintiff asked to see a doctor. (Doc. 45, 6) On

October 21, 2009, plaintiff wasseen by Dr. Moses, who diagnosed an infection in the

eardrum and prescribed a ten-day regimen of antibiotics. (Doc. 45, 6-7) Despite the

medication, plaintiff was still experiencing ear pain ten days later. (Doc. 45, 7)

Consequently, Dr. Moses prescribed a second round of antibiotics, but plaintiff’s ear

problem persisted nonetheless. (Doc. 45, 7) On November 2, 2009, Dr. Moses

prescribed “antibiotic acid drops” and instructed plaintiff to use the drops three times

per day for ten days. (Doc. 45, 7) After seven days, plaintiff returned to Dr. Moses

complaining of increased inner ear pain. (Doc. 45, 7) The attending nurse explained

that the drops were simply clearing out the infection. (Doc. 45, 7)

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Having continued to use the drops, plaintiff awoke the next morning with

severe pain and blood stains on his pillowcase. (Doc. 45, 7) Plaintiff was seen next

by Dr. Moses’s nurse, who confiscated the drops at the doctor’s direction. (Doc. 45,

7) Despite plaintiff’s complaints, Dr. Moses did not examine his inner ear during any

of plaintiff’s visits. (Doc. 45, 7) Plaintiff refused to take additional medications,

because he did not believe that Dr. Moses was competent to provide treatment. (Doc.

45, 7) Dr. Moses referred plaintiff to an ear, nose, and throat doctor (“ENT”), who

examined plaintiff on January 4, 2010. (Doc. 45, 7) Plaintiff relayed to the ENT the

medications Dr. Moses had prescribed and explained that the antibiotic drops had

caused his ear to bleed. (Doc. 45, 7) Upon examination, the ENT stated that the

drops should not have been prescribed, because they can destroy tissue in the inner

ear. (Doc. 45, 7-8) After ordering a hearing test, the ENT determined that plaintiff

had suffered hearing loss in his left ear. (Doc. 45, 8) As a result, plaintiff began

wearing a hearing aid. (Doc. 45, 8) 

Based on the foregoing, plaintiff asserts claims against former Secretary

McNeilfor placing himin administrative segregation without due process oflaw, and

failing to act on his grievances concerning the assault. (Doc. 45, 9) In addition,

plaintiff asserts a claim of medical malpractice against Dr. Moses, stating the

physician rendered negligent medical care. (Doc. 45, 9) Plaintiffseeks compensatory

damages in the amount of $5,000,000.00. (Doc. 45, 9)

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the court may dismiss the

case if satisfied that 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). The court must read

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plaintiff’s pro se allegations in a liberal fashion. See Haines v. Kerner, 404 U.S. 519, 

520-21 (1972). Dismissals for failure to state a claim are governed by the same

standard as FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). See Mitchell v. Farcass,

112 F.3d 1483, 1485 (11th Cir. 1997). In determining whether the complaint states

a claim upon which relief may be granted, the court accepts all factual allegations in

the complaint astrue and evaluates all reasonable inferences derived from those facts

in the light most favorable to the plaintiff. See Hunnings v. Texaco, Inc., 29 F.3d

1480, 1483 (11th Cir. 1994). The complaint may be dismissed if the facts as pleaded

do not state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (retiring the negatively-glossed “no set of facts”

language previously used to describe the motion to dismiss standard and dismissing

plaintiffs’ case for failure to state a claim, because plaintiffs had “not nudged their

claims across the line from conceivable to plausible”). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).

Under FEDERAL RULE OF CIVIL PROCEDURE 8(a)(2), a pleading must contain

a “short and plain statement of the claimshowing that the pleader is entitled to relief.”

As the Supreme Court reiterated in Iqbal, 129 S. Ct. at 1949, although RULE 8 does

not require detailed factual allegations, the rule does demand “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” The mere possibility

that the defendant acted unlawfully is insufficient to survive dismissal for failure to

state a claim. See id. Rather, the complaint must include “[f]actual allegations . . .

[sufficient] to raise a right to relief above the speculative level,” that is, “across the

line from conceivable to plausible . . . .” See Twombly, 550 U.S. at 555, 570. 

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A complaint is also subject to dismissal for failure to state a claim when the

allegations—on their face—show that an affirmative defense bars recovery on the

claim. See Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022 (11th Cir. 2001); see

also Jones v. Bock, 549 U.S. 199, 215 (2007) (reiterating that principle and

providing, as an example, that if a complaint’s allegations show that relief is barred

by the applicable statute of limitations, the complaint is subject to dismissal for

failure to state a claim).

Vicarious Liability Under § 1983 

“It is well established in this circuit that supervisory officials are not liable

under § 1983 for the unconstitutional acts of their subordinates ‘on the basis of

respondeat superior or vicarious liability.’” Hartley v. Parnell, 193 F.3d 1263, 1269

(11th Cir. 1999) (quoting Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir.

1994)); see also Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“Section 1983 will

not support a claim based on a respondeat superior theory of liability.”); Brown v.

Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (“‘It is axiomatic, in section 1983

actions, that liability must be based on something more than a theory of respondeat

superior.’” (quoting H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1086 (11th Cir.

1986))). “[T]he mere right to control without any control or direction having been

exercised and without any failure to supervise is not enough to support § 1983

liability.” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 n.58 (1978). 

“Supervisory liability occurs either when the supervisor personally participates in the

alleged constitutional violation or when there is a causal connection between actions

of the supervising official and the alleged constitutional deprivation.” Brown, 906

F.2d at 671. The U.S. Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”)

has set forth the limited circumstances in which a causal connection can be shown

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sufficient to render a supervisor liable on a § 1983 claim:

A causal connection can be established when a history of widespread

abuse putsthe responsible supervisor on notice of the need to correct the

alleged deprivation and he fails to do so; when the supervisor’s

improper custom or policy leads to deliberate indifference to

constitutional rights; or when facts support an inference that the

supervisor directed the subordinates to act unlawfully or knew that the

subordinates would act unlawfully and failed to stop them from doing

so.

Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (citing West v. Tillman, 496

F.3d 1321, 1328-29 (11th Cir. 2007).

Here, plaintiff presents no such allegations against former Secretary McNeil. 

That the Secretary’s Office denied or declined to pass judgment upon plaintiff’s

grievances does not plausibly support a claim against former Secretary McNeil for

the alleged constitutional deprivations that occurred at SFRC. A prison official who

was not involved in the alleged constitutional violation, and whose only role involved

the denial of administrative grievances or the failure to act, is not liable under § 1983

on the theory that an adverse grievance determination or the failure to act constituted

acquiescence in the unconstitutional conduct. See Shehee v. Luttrell, 199 F.3d 295,

300 (6thCir. 1999) (declining to impose liability under § 1983 on supervisory official

who denied administrative grievance and otherwise failed to act based on information

contained in the grievance); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)

(“At a minimum, a § 1983 plaintiff must show that a supervisory official at least

implicitly authorized, approved or knowingly acquiesced in the unconstitutional

conduct of the offending subordinate.”); Crowder v. Lash, 687 F.2d 996, 1005-06

(7th Cir. 1982) (rejecting claim that Commissioner of Department of Corrections

could be held liable for damages arising from any constitutional violation at a facility

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within his jurisdiction based on receipt of a letter describing allegedly improper

prison conditions); 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 alleged merely that officials denied his grievance and did not claim

that officials were personally involved in alleged misconduct). This is because

liability under § 1983 must be based on affirmative unconstitutional behavior and

cannot be based upon “a mere failure to act.” See Salehpour v. Univ. of Tenn., 159

F.3d 199, 206 (6th Cir. 1998). Plaintiff’s allegation that former Secretary McNeil is

vicariously liable under § 1983 for the denial of his grievances fails to state a claim

to relief that is plausible on its face and, therefore, should be dismissed for failure to

state a claim upon which relief may be granted. See Twombly, 550 U.S. at 570. 

Administrative Segregation

Without identifying a basis in law for the right allegedly violated, plaintiff also

assertsthat McNeil denied himdue process of law by confining him to administrative

segregation. Even liberally construing plaintiff’s claim as asserted under the Due 1

Process Clause of the Fourteenth Amendment, the allegations still fail to state a claim

upon which relief may be granted. The Due Process Clause prohibits state action that

deprives a United States citizen of life, liberty, or property without due process of

law. See U.S. CONST. amend. XIV. A person alleging a violation of his right to due

process must establish that he was deprived of an interest cognizable under the Due

Process Clause, and that the procedures attendant to that deprivation were not

constitutionally sufficient. See Ky. Dep’t ofCorr. v. Thompson, 490 U.S. 454, 459-60

(1989); Bd. of Regents v. Roth, 408 U.S. 564, 571 (1972). 

Presumably, plaintiff intends to advance this claim under the Due Process Clause of the 1

Fourteenth Amendment. 

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In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Supreme Court redefined

the circumstances in which a liberty interest will arise in the prison context for

purposes of the protections of the Due Process Clause. Rejecting the prior manner

of searching state statutes and prison regulations for mandatory language, the court

held that due process liberty interests created by prison regulations “will be generally

limited to freedom from restraint which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the Due Process Clause of its own

force, . . . nonetheless imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” See id. The Sandin court cited Vitek

v. Jones, 445 U.S. 480, 493 (1980) (transfer to mental hospital triggers due process

protections), and Washington v. Harper, 494 U.S. 210, 221-22 (1990) (involuntary

administration of psychotropic drugs implicates Due Process Clause), as examples of

restraints which trigger the Clause of its own force, but concluded that Conner’s

disciplinary conviction did not present a case where the state’s action would

inevitably affect the duration of his sentence, thereby triggering the Clause of its own

force. Nor did Conner’s discipline (thirty-day placement in disciplinary segregation)

present the type of “atypical, significant deprivation in which a State might

conceivably create a liberty interest.” See Sandin, 515 U.S. at 485-86. As a result,

the court held that neither the Hawaii prison regulation at issue nor the Due Process

Clause itself afforded the inmate a constitutionally protected liberty interest. 

The Eleventh Circuit has held that a Florida prisoner’s confinement in

administrative segregation for two months did not impose an atypical and significant

hardship on the prisoner. See Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir.

1998). Here, plaintiff fails to allege that he suffered any disciplinary action that was

in excess of the sentence imposed or that constituted an atypical and significant

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hardship “in relation to the ordinary incidents of prison life.” See Sandin, 515 U.S.

at 484. In fact, plaintiff relies solely on the bare and conclusory assertion that he was

confined to administrative segregation without due process of law, in violation of the

Fourteenth Amendment. Plaintiff does not establish the duration of his administrative

segregation or articulate the nature of the disciplinary confinement vis-a-vis the

ordinary conditions of confinement to which prisoners are routinely subject. 

Consequently, plaintiff’s complaint fails to state an actionable cause under the

standard set forth in Sandin, and this allegation should be dismissed for failure to

state a claim upon which relief may be granted.

Medical Malpractice

The claim against Dr. Moses for medical malpractice—in other words,

negligence—is not cognizable under § 1983. See Daniels v. Williams, 474 U.S. 327,

328 (1986) (concluding that “the Due Process Clause is simply not implicated by a

negligent act of an official causing unintended loss of or injury to life, liberty, or

property”); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does

not become a constitutional violation merely because the victim is a prisoner.”);

Harris v. Thigpen, 941 F.2d 1495, 1507 (11th Cir. 1991) (citing Westlake v. Lucas,

537 F.2d 857, 860 n.5 (6th Cir. 1976) (“Where a prisoner has received some medical

attention and the dispute is over the adequacy of the treatment, federal courts are

generally reluctant to second guess medical judgments and to constitutionalize claims

which sound in state tort law.”)); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.

1989) (citing Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) (declining to

“second-guess the propriety or adequacy of a particular course of treatment” or

“intervene upon allegations of mere negligence” in the context of a § 1983 claim)). 

Rather, the proper forum for plaintiff’s medical malpractice claim isstate court under

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the applicable tort statute. See Daniels, 474 U.S. at 332 (holding that the Constitution

“does not purport to supplant traditional [state] tort law in laying down rules of

conduct to regulate liability for injuries that attend living together in society”);

Estelle, 429 U.S. at 107. Having employed only the language of negligence, plaintiff

fails to state a claim upon which relief may be granted. 

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s claims be DISMISSED WITH PREJUDICE under 28 U.S.C.

§ 1915(e)(2)(B)(ii), for plaintiff’s failure to state a claim upon which relief may be

granted.

2. That the clerk be directed to close the file.

At Pensacola, Florida this 28th day of March, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. 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 any objections shall be served upon any 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 (11th Cir. 1988).

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