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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

NYKA O’CONNOR,

Plaintiff,

vs. Case No.: 3:10cv360/LAC/EMT

KELLEY, et al.,

Defendants. 

_________________________________/

REPORT AND RECOMMENDATION

Plaintiff in this action filed pursuant to 42 U.S.C. § 1983 is an inmate who proceeds pro se and

prepaid the filing fee in full. The case was referred to the undersigned for the issuance of all

preliminary orders and any recommendations to the district court regarding dispositive matters. See

N.D. Fla. Loc. R. 72.2(C); see also 28 U.S.C. § 636(b)(1)(B)(C); and Fed. R. Civ. P. 72(b). Now

before the court is the motion to dismiss filed by Defendants David A. Temples (“Temples”) and

Florida Department of Corrections (“FDOC”) (together, “Defendants”) (doc. 129). Plaintiff has

responded (doc. 141). Also pending are the motion to set aside default filed by Nurse Grice (“Grice”)

(doc. 142), to which Plaintiff has responded (doc. 152), and Plaintiff’s motion for default judgment

against Grice (doc. 153). Upon consideration, for the reasons given below the court recommends

granting Defendants’ motion to dismiss, granting Grice’s motion to set aside default, and denying

Plaintiff’s motion for default judgment against Grice. The court further recommends dismissing

Plaintiff’s claims against Grice and eleven other named Defendants as to whom service has not yet

been effected.1

 

1

 Having prepaid the filing fee in full, Plaintiff does not proceed as a pauper under 28 U.S.C § 1915. 

Nevertheless, his complaint remains subject to the Prison Litigation Reform Act (“PLRA”). Inter alia, the PLRA

authorizes dismissal of a complaint “in which a prisoner seeks redress from a governmental entity or officer or

employee of a governmental entity,” on the basis that the complaint is frivolous, malicious, or fails to state a claim,
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I. PROCEDURAL HISTORY

Plaintiff is presently incarcerated at Union Correctional Institution but was housed at Santa

Rosa Correctional Institution (“SRCI”) when the events giving rise to this action took place in January

2010. Plaintiff initiated this case by filing a civil rights complaint that was docketed on September

13, 2010 (doc. 1). The court permitted Plaintiff to amend his complaint five times in an effort to state

a viable claim for relief (docs. 27, 67, 88, 96, 106). The court ordered service of the fifth amended

complaint and later granted Plaintiff’s unopposed motion to file a sixth amended complaint (see docs.

119, 122, 123), which complaint was filed on October 21, 2013 (doc. 125 at 16).2

 In the sixth

amended complaint, Plaintiff names as Defendants ten SCRI employees: Correctional Officer (“CO”)

Daniel C. Kelley (“Kelley”); CO Terry L. Nelson (“Nelson”); CO James A. Morris (“Morris”);

Captain Jack N. Hammontree (“Hammontree”); Sergeant Temples; Lieutenant Orsa (“Orsa”); CO

Brandon A. Turner (“Turner”); Lieutenant Donnie R. Ealum (“Ealum”); Lieutenant Joseph M. Mitchell

(“Mitchell”), and CO Jerry T. Collier (“Collier); Plaintiff also names as Defendants two SCRI nurses,

Grice and Bishop, as well as the FDOC and SRCI, for a total of fourteen Defendants (doc. 125 at

1–3). Plaintiff, who is responsible for service of process in this case, effected service upon Temples,

FDOC, and Grice but not Kelley, Nelson, Morris, Hammontree, Orsa, Turner, Ealum, Mitchell,

Collier, Bishop, or SRCI. On November 25, 2013, Temples and FDOC filed their motion to dismiss

(doc. 129); Plaintiff’s response to the motion was docketed on December 26, 2013.3

 On December

19, 2013, the clerk entered a default against Grice (doc. 139), which on December 26, 2013, Grice

regardless whether the plaintiff has paid the filing fee. See 28 U.S.C § 1915A. The court therefore considers all of

the sixth amended complaint’s federal claims to assess whether they are frivolous, malicious, or fail to state a claim

for relief. 

2

 The page numbers cited in this Report refer to numbers assigned by the court’s electronic docketing system,

rather than those the parties may have designated.

3

 Plaintiff submitted 104 pages of exhibits with his response (doc. 141 at pp. 24–129). The exhibits include

copies of Plaintiff’s papers committing him to the custody of the FDOC; documents related to a “private administrative

remedy”; an FDOC incident report (redacted, apparently by Plaintiff) dated January 21, 2010, pertaining to the use of

force against Plaintiff on January 12, 2010; copies of administrative grievances; and a judgment and order of dismissal

of a case Plaintiff filed in the United States District Court for the Middle District of Florida. At this pleading stage

of the proceedings, exhibits generally are not considered—and have not been considered here—in determining

whether the complaint states a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

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moved to set aside (doc. 142). Plaintiff responded in opposition to Grice’s motion (doc. 152) and

moved for default judgment against her (doc. 153).

II. ALLEGATIONS AND RELIEF SOUGHT IN THE SIXTH AMENDED COMPLAINT4

Plaintiff asserts that at all times relevant to his claims, he was a “Mental Patient in FDOC”

(doc. 125, Statement of Facts, ¶ 1). On January 12, 2010, while Plaintiff was on suicide watch and

self-harm observation status due to his “Mental Disabilities such as depression, hallucinations,

suicidal acts & other issues,” Plaintiff advised staff members that he was experiencing chest pains and

that he had swallowed a paper clip and a razor blade (id., ¶¶ 2, 3). Nurse Honeycut, who is not

named as a Defendant in the sixth amended complaint, knew of Plaintiff’s condition but did nothing

about it (id., ¶ 4).5 Due to Nurse Honeycut’s inaction, Plaintiff “remained in pain, agony, distress &

sufferation [sic] from the ingested items piercing and cutting [Plaintiff’s] insides.” (Id., ¶ 5). 

Sometime later on January 12, 2010, after Plaintiff was discovered lying on the floor of his

cell, Temples, Nelson, and Kelley entered Plaintiff’s cell (doc. 125, Statement of Facts, ¶¶ 6, 7).6

Kelley “was not authorized & trained to bite inmates when restraining them, but nonetheless,

intentionally & recklessly bit [Plaintiff’s] arm for several seconds to cause unbearable pain, anguish

& possible d[i]seases(es)” (id., ¶ 8). Kelley “knowingly broke [Plaintiff’s] skin open with the force

of his teeth to cause bleeding & intrude [on Plaintiff’s] person with his bodily fluids” (id., ¶ 9). While

mixing his “bodily fluids with [Plaintiff’s], Kelley took some of [Plaintiff’s] blood & flesh without

[Plaintiff’s] consent & justification (id., ¶ 10).7

4

 Many of the allegations in the sixth amended complaint pertain to the unserved Defendants or persons who

are not named as Defendants. Such allegations are included in this section, as they may be helpful in placing into

context Plaintiff’s factual assertions and claims involving Defendants Temples and FDOC and also to assess the

viability of the claims against the other Defendants.

5

 Plaintiff states that “[a]ll parties mention[ed] herein, not listed as Defendants, may be called as witness(es)

if alive & located” (id., ¶ 80). The court concludes from this assertion that Plaintiff’s failure to name as Defendants

persons whose conduct is described in the sixth amended complaint is not an oversight but rather is intentional and

purposeful.

6

 Plaintiff asserts generally in the sixth amended complaint that “[p]arties identified in the same paragraph

herein were acting in nearly identical conduct” (doc. 125, Statement of Facts, ¶ 78). 

7

 In the sixth amended complaint Plaintiff does not initially describe any physical interaction with Temples

or Nelson, who entered the cell with Kelley. Later in the complaint, however, Plaintiff states that he was subjected

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Immediately after the incident, Plaintiff was removed from his cell and placed in restraints

nearby on the floor, where he “posed no threat nor displayed any erratic, unruly or dangerous behavior

at that point” (doc. 125, Statement of Fact, ¶ 11). Morris arrived on the scene and “placed his knee

hard against [Plaintiff’s] head that was pressed against the floor to cause harm, while extending

[Plaintiff’s] arm[s] beyond the range of motion intentionally for a lengthy period”; Morris also made

“death threats” against Plaintiff, even as Plaintiff was “screaming and yelling from the pain and

anguish from the assault & battery while the ingested bodies pierced his stomach” (id., ¶¶ 12, 13). 

Morris’ actions were “NOT rapid, spontaneous, that concluded quickly where interference by other

staff was [not] possible during the LENGTHY abuse [sic]” (id., ¶ 15) (emphasis in original). 

Hammontree, Temples, Nelson, and Kelley “were present & in a position with a realistic opportunity

to prevent [ ] Moore from abusing [Plaintiff] but did not intervene due to a long-standing custom of

staffs’ non-interference in staff abusing inmates, which Capt. Hammontree condoned.” (Id. ¶ 14). 

 Collier arrived at the location and began operating a portable video/audio recording camera

(doc. 129, Statement of Facts, ¶ 16). CO David Leighty, who is not named as a Defendant in this case,

also arrived bringing a spit shield which was placed on Plaintiff’s head even though Plaintiff did not

spit at anyone or pose any penological threat requiring a spit shield (id., ¶ 17); FDOC records

continue to reflect that Plaintiff “spat on staff” although Plaintiff has not received any notice, hearing,

or “basis of decision” regarding this contention (id., ¶ 18).

Plaintiff was taken to the medical department, where Nurse Honeycut failed to conduct a full,

post use-of-force assessment and document all of Plaintiff’s injuries, although Nurse Honeycut’s

report falsely indicates that he had done so (doc. 129, Statement of Facts, ¶¶ 19–21). Nurse Honeycut

also refused to treat or refer Plaintiff for the assessment or care of the bite wound (which Nurse

Honeycut falsely identified as a bruise), his head and arm injuries, or Plaintiff’s ingestion of foreign

bodies (see id., ¶¶ 22–35). When Plaintiff was removed from the medical department, Warden Tifft

to abuse by staff members for “allegedly assaulting Nelson” during the incident (doc. 129, ¶ 68). This statement

apparently references an interaction with Nelson that occurred during the same scuffle in which Plaintiff asserts Kelley

bit him. Such an assumption is supported by the allegation Plaintiff made in his initial complaint, signed under penalty

of perjury, that when the officers entered Plaintiff’s cell “an altercation ensued & Officer Nelson got hurt” (doc. 1 at

p. 13). 

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(who is not named as a Defendant) and Hammontree were present and saw the bite wound on

Plaintiff’s arm because Plaintiff brought it to their attention (id., ¶ 36), but SRCI and Hammontree did

not take any photographs of the wound or take any other action (id., ¶ 37). Kelley, Nelson, Temples,

and Morris “did not write authentic incident reports about Kell[e]y’s bite & Morris’ assault & battery

that they witnessed, to deprive [Plaintiff] of favorable Brady evidence & not incriminate themselves”

(id., ¶ 38). 

SRCI and FDOC relied on the “fraud” of Kelley, Nelson, Temples, and Morris concerning the

January 12, 2010, incident to deny Plaintiff adequate medical care for the bite wound and so as to not

punish the “culprits” (doc. 129, Statement of Facts, ¶ 39). SRCI and Hammontree neither transferred

Plaintiff to another location nor assigned Temples, Nelson, Kelley, and Morris to duties not involving

the supervision of Plaintiff, causing Plaintiff “to live in a state of constant fear for his life, safety, well

being & health” (id., ¶¶ 40, 41). 

Warden Tifft, Ealum, Hammontree, Mitchell, Turner, Morris, and Collier escorted Plaintiff

back to his cellblock, where they placed him on strip-cell, or restricted property, status (doc. 129,

Statement of Facts, ¶ 43). Collier turned off the video recorder but did not retain the tape for longer

than thirty days (see id., ¶ 44). Plaintiff was placed on strip-cell status—for allegedly assaulting

Nelson rather than for having swallowed foreign objects—with only a “suicide shroud” to wear and

without advance notice or a hearing, in extremely cold and uncomfortable conditions, including the

denial of such amenities as a mattress, blanket, cup, and hygiene items (see id., ¶¶ 45–47).8

 Plaintiff

had to sleep “stooping down on the cold floor,” sitting against the wall, or lying on the cold floor (id.,

¶¶ 48–50). Sometimes he slept “naked lying down using his shroud as a pillow or kept his shroud on

his body & used his cold tired numb and painful arms & hands as a pillow to keep his aching head off

the extremely cold floor” (id., ¶ 51).

On January 13, 2010, Dr. Miller—a psychologist not named as a Defendant who authorized

the strip-cell restrictions to which Plaintiff was subjected—told Plaintiff he would not be transferred

8

 In his first five complaints Plaintiff indicated he was placed on strip-cell status for several days and nights 

or more than seventy-two hours (docs. 1 at p. 15; 27 at p. 10; 67 at p. 10; 88 at p. 9; and 96 at p. 11). In the fifth and

sixth amended complaints, however, Plaintiff states that he remained in the cold strip-cell “for longer than 72 hours

(weeks) . . . .” (docs. 106 at p. 11; 125, Statement of Facts, ¶ 47). 

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to another facility after Plaintiff’s alleged assault on staff [Nelson] but would remain at SRCI in close

management (doc. 125, Statement of Facts, ¶¶ 52, 53). Dr. Miller knew that Plaintiff was not

receiving appropriate mental health care for his serious mental disorders at SRCI but did nothing

about it (id., ¶¶ 54, 55); Dr. Miller also overruled another psychiatrist’s recommendation to transfer

Plaintiff to a different facility (id., ¶¶ 56, 57).

On approximately January 19, 2010, Bishop drew a blood sample from Plaintiff “for d[i]sease

testing” after Plaintiff made repeated demands and complaints “about catching d[i]seases from

Kelley’s bite” (doc. 125, Statement of Facts, ¶ 58); Orsa photographed the bite the same day but did

not save the photographs longer than thirty days (id., ¶ 59). Dr. Pacheco, Nurse Carter, and Nurse

Thames (respectively, a since-deceased physician and two nurses—none of whom are named as

Defendants) as well as Nurse Honeycut, Grice, and Bishop “refused to disclose the test results” to

Plaintiff and “provide adequate care if infected as agreed,” stating that the results were “unavailable”

(id., ¶ 60). “As a result, [Plaintiff] remains in a state of anxiety, fear, stress & depression as to

whether he contracted d[i]sease(s) from Kelley” (id., ¶ 61). Dr. Pacheco also falsified documents to

reflect that Plaintiff inserted a paper clip into his rectum, as attempted justification for not treating

Plaintiff for the foreign bodies he swallowed on January 12, 2010 (and thus defaming Plaintiff as a

“sodomite”), and Dr. Pacheco refused to refer Plaintiff to a specialist for removal of the foreign

bodies (id., ¶¶ 63, 65). 

Based on Warden Tifft’s personal knowledge and complaints and other information relayed

to it, SRCI knew that its employees were abusing Plaintiff and failing to provide him needed medical

care in retaliation for his alleged assault on Nelson (doc. 125, Statement of Facts, ¶¶ 66–67). SRCI

inspectors participated in the investigations concerning the events of January 12, 2010, but falsified

statements and documents and failed to save videos and photos of the abuses “to deny [Plaintiff]

favorable Brady evidence,” prevent him from receiving appropriate medical care, and protect “the

culprits” (see id., ¶¶ 72, 73). The FDOC was also aware of the abuses suffered by Plaintiff “via

phone calls & complaints via letters & emails . . . .” but failed to act (id., ¶¶ 68, 71). Neither the

FDOC nor SRCI “provided adequate care, custody & control as agreed concerning [Plaintiff]” (id.,

¶ 75). “Had [Plaintiff] been accommodated in his special needs, he could have benefitted from the

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corrections programs . . . rather than harmed” (id., ¶ 76). The “harm” Plaintiff alleges he suffered

includes “bodily injuries, resulting pains, disabilities, permanent disfigurement, aggravation of

existing condition, humiliation, mental anguish & emotional distress . . . ” (id., ¶ 77). 

Based on these allegations, Plaintiff asserts numerous claims under federal and state law

against the various Defendants. Plaintiff’s federal claims against Temples are that he failed to

intervene to protect him from Morris’ use of excessive force, in violation of the Eighth Amendment,

and that he denied him “Brady evidence of reports,” in violation of the Fourteenth Amendment (doc.

125, Statement of Claims, ¶¶ 3, 6). With respect to the FDOC, Plaintiff asserts that—apparently based

on the alleged refusal of Grice and Bishop to disclose his blood test results—a violation of the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act (“PA”), 5 U.S.C. §

552(a). Plaintiff further claims that FDOC’s failure to accommodate his disabilities with appropriate

services, care, activities, and programs—but “instead abusing & victimizing him”—violated Title II

of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and the Rehabilitation

Act (“RA”), 29 U.S.C. § 794. Plaintiff also claims that both Temples and the FDOC violated various

provisions of the Uniform Commercial Code (“UCC”). 

Plaintiff seeks extensive relief, including an injunction requiring the FDOC to provide him

with adequate medical care for stomach problems, shoulder pain, and mental issues; conduct tests for

blood-borne diseases and disclose the results to Plaintiff in writing; correct administrative records;

require staff to stop harassing Plaintiff; and release him into the general population (doc. 129, Relief

Requested, at p. 18). Plaintiff also demands “[d]amages including: compensatory, punitive,

mental/emotional [and] nominal,” as well as declaratory relief, costs, attorneys’ fees, the appointment

of counsel, and any other relief the court deems appropriate (id.).

III. MOTION TO SET ASIDE DEFAULT AND MOTION FOR DEFAULT JUDGMENT

As referenced above, on December 19, 2013, the clerk entered a default against Grice, after

she was served with process on September 25, 2013, but failed to timely plead or otherwise defend

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(see docs. 138; 139). On December 26, 2013, Grice moved to set the default aside pursuant to Fed.

R. Civ. P. 55(c), citing excusable neglect (doc. 142).9

 Plaintiff opposes the motion (doc. 152). 

Under Rule 55(c), a default may be set aside for “good cause.” In determining whether “good

cause” exists, courts focus on three factors: “(1) whether the default was culpable or willful; (2)

whether setting it aside would prejudice the non-defaulting party; and (3) whether the party in default

has a meritorious defense.” See Compania Interamericana Export–Import, S.A. v. Compania

Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996). These factors are not “talismanic,”

however, and courts may also examine other factors, such as whether the defaulting party acted

promptly to correct the default. See, e.g., Dierschke v. O’Cheskey, 975 F.2d 181, 184 (5th Cir. 1992). 

“Whatever factors are employed, the imperative is that they be regarded simply as a means of

identifying circumstances which warrant the finding of ‘good cause’ to set aside a default.” Id.

The court is satisfied that good cause exists in this case to set aside the default entered against

Grice. In addition to Grice’s acting promptly once the default was entered, her claimed actions

leading up to entry of the default, see n.9, supra, should not be deemed culpable. Also, Plaintiff will

not be prejudiced by setting the default aside because, as outlined below, he has failed to state a claim

for relief against Grice. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir.

1997) (“[A] default judgment cannot stand on a complaint that fails to state a claim.”); Descent v.

Kolitsidas, 396 F. Supp. 2d 1315, 1316 (M.D. Fla. 2005) (“[T]he defendants’ default notwithstanding,

the plaintiff is entitled to a default judgment only if the complaint states a claim for relief.”). The

court therefore recommends that Grice’s motion to set aside the default be granted and that Plaintiff’s

motion for default judgment be denied as moot. 

IV. DISCUSSION

9

 In part, Grice contends that her counsel was unaware that she had been served with process as she made no

request for counsel at the time of service. As soon as the default was entered, however, counsel contacted Grice, who

apparently informed him that due to the impending privatization of FDOC health services she did not know what steps

to take when served, and two inquiries to her supervisors in this regard went unanswered. When advised by counsel

of the appropriate actions to take, and upon receipt of authorization from the FDOC to represent Grice, counsel

immediately filed the instant motion (see doc. 142 at 2). 

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In their Rule 12(b)(6) motion Temples and the FDOC make numerous arguments for dismissal

of Plaintiff’s claims. They argue that Plaintiff’s claims are barred because he failed to allege the

requisite physical injury under 42 U.S.C. § 1997e(e); they are entitled to Eleventh Amendment

immunity; Plaintiff failed to state a claim for the failure to intervene in the excessive use of force, to

preserve evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963), or for supervisory liability; that Plaintiff’s UCC, state law commercial and contract claims,

ADA, RA, and outrage claims should be dismissed because they are insufficiently pleaded; and the

Constitution and criminal statutes of the State of Florida create no private right of action. In a lengthy

response, Plaintiff challenges each of Defendants’ grounds for dismissal or limitation on the relief he

seeks (doc. 141).10 To the extent it deems warranted, the court addresses the parties’ arguments,

below. 

Limitation on Recovery and Eleventh Amendment Immunity

Title 42 U.S.C. § 1997e(e) provides: “No 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.” The Eleventh Circuit has decided that the

phrase “Federal civil actions” means all federal claims, including constitutional claims. Napier v.

Preslicka, 314 F.3d 528, 532 (11th Cir. 2000) (citing Harris v. Garner, 216 F.3d 970, 984–85 (11th

Cir. 2000) (en banc)). Where a prisoner plaintiff alleges constitutional violations he is prevented

under § 1997e(e) from seeking punitive or compensatory damages in the absence of a physical injury. 

Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007) abrogated on other grounds by Sossamon v.

Texas, ____U.S.____, 131 S. Ct. 1651, 179 L. Ed. 2d 700 (U.S. 2011)); see also Al-Amin v. Smith,

637 F.3d 1192, 1199 (11th Cir. 2011) (noting that Napier court, by affirming dismissal of Napier’s

entire claim, “concluded, albeit sub silentio, that Napier’s punitive claim was barred by § 1997e(e)

10 Plaintiff also challenges Temples and the FDOC’s filing of a motion to dismiss the complaint instead of

a responsive pleading (see doc. 141 at 1–2). Defendants’ Rule 12(b)(6) motion is proper response to the complaint,

notwithstanding any omission in the court’s service order regarding the propriety of filing such a motion (see doc.

109). See Fed. R. Civ. P. 12(b) (authorizing defendant to assert by motion various defenses to claim for relief). 

Additionally, the court’s summonses state that either an answer or a motion under Rule 12 may be served in response

to the complaint. 

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just as much as his compensatory claim.”). Nominal damages, however, may still be recoverable. 

Smith, 502 F.3d at 1271. 

“In order to avoid dismissal under § 1997e(e), a prisoner’s claims for emotional or mental

injury must be accompanied by allegations of physical injuries that are greater than de minimis.”

Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1312–13 (11th Cir. 2002); see also

Mann v. McNeil, 360 F. App’x 31, 32 (11th Cir. 2010) (holding that § 1997e(e) barred inmate’s

claims for monetary damages; inmate’s complaints of vague injuries to his back and scrapes and marks

on his knees and legs did not amount to more than de minimis physical injury); Nolin v. Isbell, 207

F.3d 1253, 1258 n.4 (11th Cir. 2000) (bruises received during an arrest were non-actionable de

minimis injury); Quinlan v. Personal Transp. Servs. Co., 329 F. App’x 246, 249 (11th Cir. 2009)

(holding that § 1997e(e) barred pre-trial detainee’s claims for compensatory and punitive damages;

complaints of temporary chest pain, headache and difficulty breathing while in transport van, as well

as subsequent “continuous back pain in [his] lower back that periodically cause[d] [him] to walk

hunched over,” did not constitute more than de minimis physical injury required under § 1997e(e),

since none of the conditions required immediate medical attention or evidenced physical injury

besides discomfort).

Plaintiff in this case contends that as a result of the complained-of conduct he has suffered

“pains, disabilities, permanent disfigurement, aggravation of existing conditions . . . , which are more

than de minimis” (doc. 125, Statement of Facts, ¶ 77). More specifically, Plaintiff asserts that

Kelley’s bite broke the skin, which resulted in bleeding, and caused Plaintiff “unbearable” pain (id.,

¶¶ 8, 9); that Morris’ use of force caused him to suffer “pain in his shoulders and head even to date,”

as well as dizziness and a need to lie down, and difficulty sleeping on his shoulders, exercising,

participating in mental health therapy sessions, and lifting heavy items” (id., ¶¶ 26, 27); that his

placement on strip-cell status under severe conditions caused him to experience pain, swelling,

itching, and numbness in his feet and legs, including in the location where a bullet is lodged in his leg

(id., ¶ 48); and that his ingestion of foreign bodies—which has gone untreated—caused him to

experience stomach pains and cramps at the time and, subsequently, to experience indigestion,

regurgitation, and acid reflux that could potentially cause esophageal cancer, as well as problems

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sleeping while lying down, bending, and performing exercises that require the head to be placed

below the stomach (id., ¶ 34).

The court concludes that none of the above allegations implicates physical injuries that rise

above the de minimis level. The only assertion that even arguably might suggest a physical injury that

is more than de minimis concerns the alleged bite by Kelley. Here, although Plaintiff complains that

he suffered visible injury to his arm from the bite wound (which injury he says was not properly

documented or treated at the time of the incident), he does not allege that subsequent to January 12,

2010, the wound needed medical treatment. Even if Plaintiff had so alleged, he does not contend that

he has suffered any serious lasting injuries from the alleged bite—only that he fears he could have,

which is why he wants to be tested for blood-borne diseases. Fears or concerns, of course, do not

constitute physical injury. Based on Plaintiff’s allegations of a minimal wound which apparently

healed satisfactorily even without treatment, the court concludes that the alleged bite wound injury

should be considered de minimis in nature. See, e.g., Lassiter v. Reece, Case No.

3:07–885–HFF–JRM, 2008 WL 2852164, at *5 (D.S.C. July 22, 2008) (finding only de minimis

injury where plaintiff received first aid treatment for dog bite wound but required no further

treatment); Jones v. Vaughn, Case No. A.04-1912, 2005 WL 1971869, at *7 (E.D. Pa. Aug. 16, 2005)

(human bite mark on chest and abrasions on hand and arm were “constitutionally de minimis”); Martin

v. Mathena, Case No. 7:08–cv–573, 2009 WL 150864, at *1–2 (W.D. Va. Jan. 21, 2009) (excessive

force claim by inmate claiming that guard dog bit him three times, resulting in scratch to elbow and

small amount of blood, dismissed for failure to state more than de minimis injury); Mickle v. Ahmed,

444 F.Supp. 2d 601, 620 (D.S.C. 2006) (excessive force claim as a result of use of police dog in

effecting arrest dismissed as de minimis use of force because plaintiff suffered no complications from

dog bite and needed no medical attention after initial treatment). Accordingly, the court concludes that

§ 1997e(e) should bar Plaintiff from seeking punitive or compensatory damages for mental or

emotional injury in this case arising from the alleged bite wound or from any other alleged injuries. 

With respect to Eleventh Amendment immunity, absent waiver or express congressional

abrogation, the Eleventh Amendment prohibits a suit brought by a private individual against a state

in federal court. See Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S.

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743, 765–78, 122 S. Ct. 1864, 152 L. Ed. 2d 962 (2002); Kentucky v. Graham, 473 U.S. 159, 167,

n.14, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); Gamble v. Florida Department of Heath and

Rehabilitative Services, 779 F.2d 1509, 1511 (11th Cir. 1986). A suit against a state employee in his

or her official capacity is deemed to be a suit against the state for Eleventh Amendment purposes. 

Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). 

Thus, all of the individual Defendants named in the sixth amended complaint are immune from a suit

for damages in their official capacities. Moreover, a State’s Eleventh Amendment immunity extends

to “arms of the State.” See Regents of the Univ. of California v. Doe, 519 U.S. 425, 429–30, 117 S.

Ct.. 900, 137 L. Ed. 2d 55 (1997). The FDOC, which is an arm of the State of Florida, administers

SRCI. Accordingly, the FDOC and SRCI are also entitled to Eleventh Amendment immunity from

damages.

Rule 12(b)(6)

 A complaint is subject to dismissal under Rule 12(b)(6) if it fails “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). Pursuant to Rule 8(a)(2), the complaint must contain

a “short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme

Court has held that “[w]hile a complaint attacked by a 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to

relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do. Factual allegations must be enough to raise a right to relief above a speculative

level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929

(2007) (internal citations omitted).

To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quotation marks omitted). A claim is plausible on

its face where “the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. Plausibility means “more than

a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that

are merely consistent with a defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Id. (internal quotation marks omitted). When considering a

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motion to dismiss for failure to state a claim, the court must accept all allegations in the complaint as

true and construe the facts in the light most favorable to the plaintiff. Lopez v. Target Corp., 676 F.3d

1230, 1232 (11th Cir. 2012). The court is not, however, bound to accept as true “‘a legal conclusion

couched as a factual allegation.’” Iqbal, 556 U.S. at 678 (citation omitted). Although pro se pleadings

are held to a less stringent standard than pleadings drafted by attorneys and are liberally construed,

Bingham v. Thomas, 654 F. 3d 1171, 1175 (11th Cir. 2011), in civil rights cases “[m]ore than mere

conclusory notice pleading is required . . . .” Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir.

2003) (citation and internal quotation marks omitted). A civil rights complaint will be dismissed as

insufficient where the allegations it contains are vague and conclusory. Id.

 DefendantTemples

To assess whether Plaintiff’s allegations that Temples failed to intervene in the use of

excessive force by Morris, the court first considers whether Plaintiff’s allegations state a claim of the

use of excessive force by Morris. 

Claims of excessive force by prison officials fall under the Eighth Amendment’s proscription

against cruel and unusual punishment. The standard applied to Eighth Amendment claims has a

subjective and an objective component. As to the objective component, “not every malevolent touch

by a prison guard gives rise to a federal cause of action.” Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.

Ct. 1175, 1178 (2010) (citing Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 117 L. Ed. 2d 156

(1992)). An inmate who complains of a “push or shove” that causes no discernible injury almost

certainly fails to state a valid excessive force claim. Hudson, 503 at 9 (quoting Johnson v. Glick, 481

F.2d 1028, 1033 (2d Cir. 1973)). “The Eighth Amendment’s prohibition of ‘cruel and unusual’

punishments necessarily excludes from constitutional recognition de minimis uses of physical force,

provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’” Hudson, 503

U.S. at 10 (citation omitted). Accordingly, the Eleventh Circuit requires that the plaintiff suffer more

than a de minimis injury to establish an Eighth Amendment violation, although courts must remain

mindful that significant injury is not required. Johnson v. Breeden, 280 F.3d 1308, 1321 (11th Cir.

2002). Under the subjective component, to sustain an Eighth Amendment challenge it must be shown

that prison officials’ actions amounted to an “unnecessary and wanton infliction of pain.” Whitley v.

Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084, 89 L. Ed. 2d 251 (1986). “Force is deemed

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legitimate in a custodial setting as long as it is applied ‘in a good faith effort to maintain or restore

discipline [and not] maliciously and sadistically to cause harm.’” Skrtich v. Thornton, 280 F.3d 1295,

1300 (11th Cir. 2002) (quoting Whitley, 475 U.S. at 320–21). In determining whether an application

of force was applied maliciously and sadistically to cause harm, a variety of factors are considered

including these five: “the need for the application of force; the relationship between that need and the

amount of force used; the extent of the threat to the safety of staff and inmates, as reasonably perceived

by officials; the extent of injury; and any efforts made to temper the severity of the response.” Hudson,

503 U.S. at 7–8; see also Whitley, 475 U.S. at 321; Campbell v. Sikes, 169 F.3d 1353, 1375 (11th

Cir. 1999). 

If an officer, whether supervisory or not, fails or refuses to take reasonable steps to protect

the victim of another officer’s use of excessive force, the officer may be held liable for the other

officer’s malfeasance under § 1983. See Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008)

(citing Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007)). The non-intervening

officer must, however, have been in a position to intervene yet failed to do so. See id. at 1331

(citation omitted).

Plaintiff alleges that, while he lay on the ground in restraints outside his cell, Morris held

Plaintiff’s head “hard” against the floor with his knee while “extending [Plaintiff’s arm[s] beyond the

range of motion intentionally for a lengthy period . . .” (doc. 129, Statement of Facts, ¶¶ 12, 25). This

use of force, Plaintiff contends, caused him to suffer “pain in his shoulders and head even to date,” as

well as dizziness and a need to lie down, and difficulty sleeping on his shoulders, exercising,

participating in mental health therapy sessions, and lifting heavy items” (id., ¶¶ 26, 27). These

allegations suggest little in the way of a discernible injury. Moreover, the type of force Plaintiff

alleges Morris used against him—pressing the unresisting Plaintiff’s head “hard” to the floor and

positioning his handcuffed wrists upward beyond the normal range of shoulder motion—is “not of a

sort repugnant to the conscience of mankind.” See Hudson, 503 U.S. at 10 (quotation marks omitted). 

Rather, this force is more akin to that involving a “push or shove” which, as Hudson explained, is

insufficient to state a valid excessive force claim absent discernible injury. See Smith v. Secretary

Dept. of Corrections, 524 F. App’x 511, 514 (11th Cir. 2013) (affirming summary judgment in

defendant’s favor on prisoner plaintiff’s claim that defendant twisted his handcuffed arms upwards

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and pressed him against wall “for some minutes”; plaintiff suffered no serious injury and alleged

conduct was similar to a “push” or “shove,” which is not conduct “of a sort repugnant to the

conscience of mankind”) (citation and internal quotation marks omitted). Accepting Plaintiff’s

allegations against Morris as true and construing them in the light most favorable to Plaintiff, as it must

in a motion to dismiss, the court concludes they do not implicate a use of force that was more than de

minimis in nature. Plaintiff’s allegations thus fail to state an Eighth Amendment claim of the use of

excessive force against Defendant Morris.11 Consequently, Plaintiff’s claim that Temples failed to

intervene to stop an unlawful use of force by Morris likewise fails.

Plaintiff’s allegation that Temples and others “intentionally & knowingly did not write

authentic incident reports about Kelley’s bite & Morris’ assault & battery . . . to deprive [Plaintiff]

of favorable Brady evidence & not incriminate themselves” (doc. 125, Statement of Facts, ¶ 38) is

insufficient to state a due process claim. The due process clause of the Fourteenth Amendment

guarantees that no person may be deprived “of life, liberty, or property, without due process of law.”

U.S. Const. XIV, § 1. The essence of the requirements of procedural due process under the Fourteenth

Amendment is reasonable notice and a fair opportunity to be heard. See Mathews v. Eldridge, 424

U.S. 319, 333–34, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Here, Plaintiff’s vague and conclusory

assertion that Temples submitted a false incident report is not enough to suggest that Temples deprived

him of notice and an opportunity to be heard at a meaningful time and in a meaningful manner with

respect to the disputed events of January 12, 2010, which Temples allegedly witnessed, participated

in, and/or reported on. Mere allegations of falsified misconduct or evidence reports, without more,

are not enough to state a due process claim upon which relief may be granted. Smith v. Mensinger,

293 F.3d 641, 654 (3d Cir. 2002); Freeman v. Rideout, 808 F.2d 949, 951 (2nd Cir. 1986) (prisoners

have no constitutional immunity from being falsely or wrongly accused of conduct that results in

deprivation of protected liberty interest). Plaintiff also fails to identify the process he believes he was

due and what, if any, harm he suffered as a result of Temples’ allegedly false incident report. 

11 As to Morris’ allegedly making “death threats” against Plaintiff, derogatory, demeaning, profane,

threatening, or abusive comments made by an officer to an inmate, no matter how repugnant or unprofessional, do not

rise to the level of a constitutional violation. Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th Cir. 1989).

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Additionally, to the extent Plaintiff contends he was deprived of evidence which would

support his excessive force and/or other civil rights claims in this case, his reliance on Brady is

misplaced. Brady requires prosecutors to disclose material exculpatory evidence to a defendant in

order to comply with the constitutional guarantee of procedural due process. This duty arises in the

context of criminal proceedings; it does not apply to Plaintiff’s claims in this civil rights matter. To

the extent Plaintiff contends he was entitled to evidence to defend against any administrative charges

stemming from the events of January 12, 2010, any reliance on Brady would again be misplaced. 

“Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights

due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.

Ct. 2963, 2974, 41 L. Ed. 2d 935 (1974). Indeed, the Eleventh Circuit has noted, without deciding

the issue, that it has never held that the principles of Brady extend to prison disciplinary hearings. 

Kenney v. Barron, 239 F. App’x 494, 495 (11th Cir. 2007) (per curiam). Additionally, a Brady claim

which implicates the validity of an accused’s conviction cannot be brought in a § 1983 suit but rather

must be brought in a petition for habeas corpus. Skinner v. Switzer, 562 U.S. ____, 131 S. Ct. 1289,

179 L. Ed. 2d 233 (2011). 

Plaintiff also claims that Temples “breach[ed] [his] agreements, license, oath, & contract to

provide adequate care, custody, [and] control” of the incarcerated Plaintiff, in violation of various

provisions of the UCC as well as state law. The UCC is simply a model uniform act without

independent legislative force that was designed to harmonize the laws of sales and certain other

commercial transactions among the fifty states. In some form, all fifty states have adopted the UCC. 

See Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040, 1048 (Fed. Cir. 2001) (the UCC is a model

code, enacted with modifications in the several states, which itself does not have the force of law). 

 Thus, to the extent Plaintiff relies on the UCC to base an independent contract claim under federal

law, his reliance is misplaced. 

For all of the foregoing reasons, the court concludes that Plaintiff’s federal claims against

Temples fail to state a claim for relief and should be dismissed. 

Defendant FDOC

Plaintiff alleges that the FDOC violated the FOIA and the PA by the refusal of Grice and

Bishop and others to provide him with his blood test results. As an initial matter, “[s]ection 1983 will

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not support a claim based on a respondeat superior theory of liability.” Marsh v. Butler Cnty., Ala.,

268 F.3d 1014, 1035 (11th Cir. 2001) (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 325, 102 S. Ct.

445, 70 L. Ed. 2d 509 (1981)). In any event, “the Freedom of Information Act applies only to federal

agencies.” Nero v. Maryland, 487 F. App’x 89, 90 (4th Cir. 2012). The statute defines “agency” as

“each authority of the Government of the United States,” with various exceptions not applicable here. 

See 5 U.S.C. § 551(1). Defendant FDOC is not an entity of the federal government and thus is not

subject to the provisions of the FOIA. Plaintiff therefore fails to state a claim under the FOIA. 

Likewise, because the FDOC is not a federal agency and the PA only applies to federal agencies,

Plaintiff has failed to state a claim under the PA. See Schwier v. Cox, 340 F.3d 1284, 1287 (11th Cir.

2003) (noting the private right of action created by the Privacy Act only applies to federal agencies).

Plaintiff’s allegation that the FDOC failed to accommodate his disabilities with appropriate

services, care, activities, and programs, thus violating the ADA and RA, also fails to state a claim for

relief. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the benefits of the services, programs,

or activities of a public entity.” 42 U.S.C. § 12132. Section 504 of the RA states, in relevant part,

that, “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his

disability, be excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. §

794(a). Claims under both statutes are governed by the same standards. See, e.g., Cash v. Smith, 231

F.3d 1301, 1305 n.2 (11th Cir. 2000) (“Cases decided under the Rehabilitation Act are precedent for

cases under the ADA, and vice-versa.”); see also Everett v. Cobb County Sch. Dist., 138 F.3d 1407,

1409 (11th Cir. 1998). To state a claim under either statute, a plaintiff generally must show “(1) that

he is a qualified individual with a disability; (2) that he was either excluded from participation in or

denied the benefits of a public entity’s services, programs, or activities, or was otherwise

discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or

discrimination was by reason of the plaintiff’s disability.” Bircoll v. Miami–Dade Cnty., 480 F.3d

1072, 1083 (11th Cir. 2007) (citation omitted); see also Harris v. Thigpen, 941 F.2d 1495, 1522 (11th

Cir. 1991) (applying those elements in the prison context).

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At the very least, Plaintiff’s ADA and RA claims are deficient because he has failed to assert

he was denied a benefit because of his disability. Moreover, Plaintiff’s allegations appear to be

based primarily on his contention that he was not provided appropriate mental health care. The ADA

is not a “remedy for medical malpractice” and is “not [ ] violated by a prison’s simply failing to attend

to the medical needs of its disabled prisoners.” Schiavo v. Schiavo, 403 F.3d 1289, 1294 (11th Cir.

2005) (quoting Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)). Nor does the RA provide a

federal malpractice tort remedy. Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116, 121,

123 (7th Cir. 1997). 

To the extent Plaintiff seeks to assert a claim under the UCC against the FDOC, it fails for the

same reasons that any such claim against Temples fails. 

In summary, the court concludes that Plaintiff’s claims against the FDOC under the Freedom

of Information Act, the Privacy Act, the Americans with Disabilities Act, the Rehabilitation Act, and

the Uniform Commercial Code fail to state a claim for relief and should be dismissed.

V. CLAIMS AGAINST THE OTHER DEFENDANTS

Many of the claims Plaintiff asserts against Temples and the FDOC are also asserted against

other Defendants and, for the same reasons, should also be dismissed. Accordingly, as against

Hammontree, Kelley, and Nelson, Plaintiff’s claims for the failure to intervene in the use of excessive

force by Morris should be dismissed (doc. 125, Statement of Claims, ¶ 3). Also, because Plaintiff has

failed to state a claim for relief for the use of excessive force against Morris, that claim should

likewise be dismissed (id.). As against SRCI and Hammontree (id., ¶ 5) (“denying Brady evidence

of reports”); Kelley, Nelson, and Morris (id., ¶ 6) (“denying Brady evidence of reports”); Collier (id.,

¶ 8) (“denying Brady evidence of portable recording”); and Orsa (id., ¶ 9) (“denying Brady evidence

of bite photographs”), Plaintiff’s procedural due process claims should likewise be dismissed. 

Additionally, Plaintiff’s Freedom of Information Act, Privacy Act, Rehabilitation Act, Americans with

Disabilities Act, and Uniform Commercial Code claims against SRCI (which, as noted, the FDOC

administers) should be dismissed (id., ¶¶ 11, 12). Plaintiff also asserts the UCC claim against all of

the other Defendants, which should also be dismissed as against them.

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The remainder of Plaintiff’s claims are also due to be dismissed. The court first addresses

Plaintiff’s claim that Kelley violated the Fourth and Fourteenth Amendments by biting him on the arm

(doc. 125, Statement of Claims, ¶ 2) (“biting, mixing fluids with d[is]ease that can deprive life &

involuntarily removing [Plaintiff’s] person, violated US Const. Amend. 4 & 14 . . . regarding search

& seizure and due process - substantive . . . ”). While the government’s compelled extraction of a

blood sample for DNA profiling constitutes a “search,” Padgett v. Donald, 401 F.3d 1273, 1277 (11th

Cir. 2005) (citing Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616–17, 109 S. Ct. 1402,

103 L. Ed. 2d 639 (1989)), Kelley’s alleged misconduct, properly considered, implicates neither a

governmental “search” nor a governmental “seizure” within the meaning of the Fourth Amendment. 

Furthermore, it is well established that if a constitutional claim is covered by a specific constitutional

provision, the claim must be analyzed under the standard appropriate to that specific provision, not

under the rubric of substantive due process. County of Sacramento v. Lewis, 523 U.S. 833, 843, 118

S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) (citations omitted). The Eighth Amendment’s prohibition

against cruel and unusual punishment governs a prisoner’s claim that a prison official used excessive

force. Campbell, 169 F.3d at 1374. In the instant case, as Plaintiff’s allegation that Kelley bit him

properly sounds as an excessive force claim under the Eighth Amendment, a substantive due process

analysis under the Fourteenth Amendment is inappropriate. See Brown v. Smith, 813 F.2d 1187, 1188

(11th Cir. 1987) (holding that the due process clause of the Fourteenth Amendment affords a convicted

prisoner no greater protection from excessive force by prison officials than the Eighth Amendment)

(citation omitted). 

Even though Plaintiff’s allegation that Kelley bit him sounds as an excessive force claim, in

the sixth amended complaint Plaintiff fails to include an Eighth Amendment claim against Kelley. That

Plaintiff is capable of clearly asserting an Eighth Amendment claim when he intends to do so is

evident from the specific excessive force claim he makes against Morris (see doc. 125, Statement of

Claims, ¶ 3). Additionally, in the third and fourth amended complaints Plaintiff specifically asserted

an Eighth Amendment claim against Kelley in connection with the alleged bite (see doc. 88, Statement

of Claims, ¶ 4, and doc. 96, Statement of Claims, ¶ 5a), but he omitted the claim from the instant sixth

amended complaint. Furthermore, the court has repeatedly given Plaintiff detailed and explicit

instructions regarding the requirements of stating an Eighth Amendment claim of the use of excessive

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force (doc. 102 at pp. 6–7; see also doc. 41 at pp. 2–3; doc. 78 at 3; doc. 90 at pp. 5–6), including

specifically with respect to Kelley and Morris (see doc. 102 at p. 6). Plaintiff’s pleadings and other

papers generally contain comprehensive and reasonably articulated and researched (if often

unsuccessful) arguments, which appear to leave no stone unturned in what can only be termed

Plaintiff’s zealous and unflagging quest for relief. 

For all of the reasons stated above, the court concludes that Plaintiff’s omission in the sixth

amended complaint of a claim of the use of excessive force against Kelley was intentional. As it is

required to do, the court has construed Plaintiff’s pro se pleadings liberally; nevertheless, it is not

required to rewrite Plaintiff’s sixth amended complaint to include an excessive force claim against

Kelley and concludes it need not do so here. See GJR Investments, Inc. v. County of Escambia, 132

F.3d 1359, 1369 (11th Cir. 1998). Alternatively, even if the court addresses these allegations in the

context of the Eighth Amendment, it concludes that Plaintiff’s allegations are insufficient to state a

claim of excessive force against Kelley. As discussed above, Plaintiff’s assertions do not reflect that

he sustained more than de minimis injury from the alleged bite.12 Moreover, the nature of the alleged

conduct—a bite that broke the skin and bled—is deserving of condemnation but is not so egregious

that it rises to the level of force which should be considered to be repugnant to the conscience of

mankind. Hudson, 503 U.S. at 10. Accordingly, a claim of the use of excessive force against Kelley

fails. 

Next, the court addresses Plaintiff’s allegations that Hammontree, Ealum, Mitchell, Turner,

Morris, and SRCI were deliberately indifferent to his safety by placing him on strip-cell status and

also that they failed to provide him notice or a hearing before doing so, thereby denying him

procedural due process (doc. 125, Statement of Claims, ¶ 7; see also, id., Statement of Facts, ¶¶ 43,

45). These claims also fail.

12 In Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999), reh’g en banc granted and opinion vacated,

197 F.3d 1059 (11th Cir.1999), opinion reinstated in relevant part en banc, 216 F.3d 970 (11th Cir. 2000), the

court “join[ed] the Fifth Circuit in fusing the physical injury analysis under section 1997e(e) with the framework set

out by the Supreme Court in Hudson for analyzing claims brought under the Eighth Amendment for cruel and unusual

punishment, and hold that in order to satisfy section 1997e(e) the physical injury must be more than de minimis, but

need not be significant.” 

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 “[T]he Constitution does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S.

337, 349, 101 S. Ct. 2392, 2400, 69 L. Ed. 2d 59 (1981). “[E]xtreme deprivations are required to

make out a conditions-of-confinement claim,” “[b]ecause routine discomfort is ‘part of the penalty that

criminal offenders pay for their offenses against society[.]’” Hudson, 503 U.S. at 9 (citations

omitted). A prison official’s duty under the Eighth Amendment is to ensure “reasonable safety,” a

standard that incorporates due regard for prison officials’ “unenviable task of keeping dangerous men

in safe custody under humane conditions.” Farmer v. Brennan, 511 U.S. 825, 844–45, 114 S. Ct.

1970, 1983, 128 L. Ed. 2d 811 (1994). “Whether one puts it in terms of duty or deliberate

indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual

Punishments Clause.” Id. Prison officials “should be accorded wide-ranging deference in the

adoption and execution of policies and practices that in their judgment are needed to preserve internal

order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99

S. Ct. 1861, 60 L. Ed. 2d 447 (1979).

 To state an Eighth Amendment inhumane conditions of confinement claim, Plaintiff must allege

that he was deprived of the minimal civilized measure of life’s necessities or subjected to a wanton

and unnecessary infliction of pain and that Defendants knowingly disregarded the excessive risk to his

health or safety created by such a deprivation. Farmer, 511 U.S. at 834, 837. With respect to the

objective component, the court should look to “contemporary standards of decency” to determine

whether the challenged conditions resulted in a deprivation of “the minimal civilized measure of life’s

necessities” or “basic human needs.” Rhodes, 452 U.S. at 347. Plaintiff’s allegations that, while on

strip-cell status for either days or “weeks,”13 he was given only a “suicide shroud” to wear; was

subjected to cold conditions; denied a mattress, blanket, cup, and hygiene items; slept stooping, sitting,

or lying on a cold floor fail to satisfy these requirements. Inmates have no absolute right to bedding

or clothes under the Eighth Amendment. See Williams v. Delo, 49 F.3d 442, 446 (8th Cir. 1995)

(“there is no absolute Eighth Amendment right not to be put in a cell without clothes or bedding”);

Beard v. Strength, Case No. CV 108-002, 2008 WL 2754094, *3 (S.D. Ga. July 14, 2008) (finding

inmate had no absolute right to bedding). Moreover, an inmate who alleges he was required to sleep

13 As noted, Plaintiff has stated inconsistently that he was kept in a strip-cell for either several days and nights

(see docs. 1 at p. 15; 27 at p. 10; 67 at p. 10; 88 at p. 9; 96 at p. 11) or “weeks” (docs. 106 at p. 11; 125, ¶ 47). Under

either scenario, Plaintiff’s allegations fail.

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on a bare cement floor without a mattress for several days has not stated an Eighth Amendment

violation. See Fischer v. Ellegood, 238 F. App’x 428, 433 (11th Cir. 2007). “To determine whether

conditions of confinement constitute cruel and unusual punishment, the court must look to the effect the

condition has upon the inmate.” Wiley v. Glover, Case No. 1:05cv1156-MEF, 2008 WL 4629924,

*18 (M.D. Ala. Sept. 3, 2008) (citing Rhodes, 452 U.S. at 366). In this instance, although Plaintiff

asserts that the cold conditions and sleeping on the floor caused him to experience pain, swelling,

itching, and numbness in his feet and legs, including in the location where a bullet is lodged in his leg,

these effects appear to be relatively minimal in nature rather than implicate significant physical

injuries. Also, Plaintiff does not allege that he required or sought medical care as a result of his living

conditions. Under the circumstances alleged by Plaintiff, which are taken as true, the conditions do

not rise to the level of a deprivation of the minimal civilized measure of life’s necessities or of a basic

human need. Cf. White v. Marshall, Case No. 2:08cv362-CSC, 2008 WL 4826283, *3, *8–9 (M.D.

Ala. Nov. 5, 2008) (holding that the plaintiff’s confinement for thirty days in a strip cell with only a

drain in the floor for urinating, cold sandwiches three times a day, no clothing except for a paper

gown, no mattress for twenty-four days, no blanket, no wash basin, no personal hygiene items, no

lightbulb, no ventilation, and no shower or exercise for fourteen days were not deprivations of “the

minimal civilized measures of life’s necessities.”); Mosley v. Bishop, Case No. 07-0692-KD-M,

2009 WL 1564778, *1, *5–6 (S.D. Ala. June 1, 2009) (denial of mattress and bed linens for nine days,

which forced inmate to sleep on a “cold, raw steel slab,” did not rise to the level of a deprivation of

the minimal civilized measure of life’s necessities or of a basic human need.); Brown v. Goodman,

2010 WL 2202515, *5–6 (S.D. Ala. 2010) (confinement in strip cell for eight days when it was very

cold and plaintiff had to sleep on iron bed frame did not pose “an unreasonable risk of serious damage

to his future health or safety.”). Because Plaintiff has failed to allege circumstances that would

establish a deprivation of “the minimal civilized measures of life’s necessities” or being subjected

to a wanton and unnecessary infliction of pain, he has failed to meet the objective component of his

Eighth Amendment claim. Having concluded that Plaintiff failed to adequately allege the objective

component of this claim, the court need not address the subjective component. In short, this claim

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should be dismissed because Plaintiff has failed to state an Eighth Amendment conditions of

confinement claim based on his temporary confinement on strip-cell status.14

Plaintiff’s allegations that Hammontree, Ealum, Mitchell, Turner, Morris, and SRCI failed to

provide him notice or a hearing before putting him on strip-cell status do not state a due process claim

(doc. 125, Statement of Claims, ¶ 7; see also, id., Statement of Facts, ¶¶ 43, 45). First, Plaintiff’s

conclusory and bald contention that he was put in a strip-cell for assaulting Nelson seems inconsistent

with his detailed assertion—which is central to his complaint—that he attempted to self-harm by

swallowing a paperclip and a razor blade. In short, it lacks plausibility. Rather, it seems more

plausible—based on Plaintiff’s allegations—that he was placed in a strip-cell for his own protection

and safety than placed there for disciplinary reasons. Regardless, even if to any extent Plaintiff’s

allegations are sufficient to suggest he was placed in the strip-cell was for disciplinary reasons, he

has failed to state a due process claim. 

Due process protections are not required unless the discipline at issue imposes an “atypical

and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.

Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995) (prisoners do not have a

constitutional right to be placed in a specific security classification, and custodial classifications do

not create a major disruption in a prisoner’s environment). Prisoners generally have no constitutional

right to remain incarcerated in a specific security classification. See Moody v. Daggett, 429 U.S. 78,

88 n.9, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976) (rejecting prisoner’s argument that a pending warrant

and detainer adversely affected his prison classification and qualification for institutional programs

because not “every state action carrying adverse consequences for prison inmates automatically

activates a due process right”). In Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct. 2384, 162 L. Ed. 2d

14 To the extent Plaintiff’s allegations regarding his placement on strip-cell status should be treated as an

excessive force claim under the Eighth Amendment rather than a conditions of confinement claim, the allegations also

fail to state a claim for relief. 

 When the conduct in question “involves any measure taken to prevent a security threat or restore official

control, the Eighth Amendment inquiry is whether force was applied in a good faith effort to maintain or restore

discipline or inflicted maliciously and sadistically for the very purpose of causing harm.” Sims v. Mashburn, 25 F.3d

980, 984 (11th Cir. 1994). The “malicious and sadistic” intent requirement is more stringent than the deliberate

indifference standard. Because Plaintiff’s allegations do not satisfy the less demanding deliberate indifference

standard, they also cannot satisfy the more demanding “malicious and sadistic” standard. 

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174 (2005), however, the Supreme Court found that inmates did have a liberty interest in avoiding

assignment to a state’s “supermax” prison. In so finding, the Court carefully distinguished supermax

facilities from normal segregation units in three ways: First, inmates in the supermax facility were

“deprived of almost any environmental or sensory stimuli and of almost all human contact.” 

Wilkinson, 545 U.S. at 214. Second, they were assigned for “an indefinite period of time, limited only

by [the] inmate’s sentence.” Id. Third, once assigned to supermax “[i]nmates otherwise eligible for

parole lose their eligibility while incarcerated” at the facility. Id. at 215. The Court noted other harsh

conditions that might be common to most solitary confinement facilities, such as permitting no

conversation between cells, lighting the cells twenty-four hours per day, and limiting exercise to one

hour per day in a small indoor room. Id. at 224. Unlike other facilities, however, the conditions at

the supermax facility included the two other components noted above, which are indefinite placement

and disqualification for parole consideration. The Court then stated: “While any of these conditions

standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical

and significant hardship within the correctional context.” Id. at 224. 

In the instant case, while the conditions of Plaintiff’s confinement in the strip-cell may have

been more restrictive than experienced by inmates elsewhere at SRCI, or even conditions that Plaintiff

had previously experienced at SRCI, they come nowhere close to being as restrictive and atypical as

those at issue in Wilkinson. Plaintiff’s allegations do not reflect that he was subjected to conditions

so severe that they imposed significant hardship in the context of prison life. The court therefore

concludes that Plaintiff’s allegations are not sufficient to show a liberty interest in remaining off stripcell status. See Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997) (holding that administrative

segregation for six months with vermin; human waste; flooded toilet; unbearable heat; cold food; dirty

clothing, linens, and bedding; longer periods in cell; no outside recreation; no educational or religious

services; and less food was not so atypical as to impose significant hardship); Lloyd v. Briley, 2007

WL 917385 (M.D. Ill. 2007) (strip cell with no sheets, toilet paper, or personal property for thirteen

days did not give rise to procedural due process claim). Plaintiff’s procedural due process claims

against Hammontree, Ealum, Mitchell, Turner, Morris, and SRCI therefore fail.

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Plaintiff also claims that SRCI and Hammontree failed to move him or reassign to other

locations the officers involved in the January 12, 2010, incidents, causing him to live “in a state of

constant fear for his life, safety, well being & health” (doc. 125, Statement of Facts, ¶¶ 40, 41). 

According to Plaintiff, this conduct violated his right to be free of cruel and unusual punishment under

the Eighth Amendment and to substantive due process under the Fourteenth Amendment (id., Statement

of Claims, ¶ 4). Insofar as these Defendants are properly answerable to this contention, Plaintiff’s

allegations fail to state an Eighth Amendment claim. They do not suggest that the failure to move

Plaintiff to another cell block or reassign the officers involved in the January 12, 2012, incidents

posed a substantial risk of serious harm to Plaintiff, much less that SRCI or Hammontree knew of and

disregarded an excessive risk to Plaintiff’s safety. Farmer, 511 U.S. at 834. No Eighth Amendment

claim is stated.15 

Plaintiff’s final claims are against Grice and Bishop for allegedly failing to immediately draw

Plaintiff’s blood for testing after he was bitten by Kelley and then refusing to disclose the results of

the test to Plaintiff (doc. 125, Statement of Claims, ¶ 10). These claims sound in deliberate

indifference under the Eighth Amendment. 

Prison officials violate the Eighth Amendment when they act with deliberate indifference to

an inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104–05, 97 S. Ct. 285, 50 L. Ed.

2d 251 (1976). To state a claim of deliberate indifference to a serious medical need, the plaintiff must

allege: (1) a serious medical need; (2) the defendant’s deliberate indifference to that need; and (3)

causation between the defendant’s indifference and the plaintiff’s injury. Youmans v. Gagnon, 626

F.3d 557, 563 (11th Cir. 2010) (per curiam). With respect to the “deliberate indifference” prong of

this claim, a plaintiff must allege: “(1) subjective knowledge of a risk of serious harm; (2) disregard

of that risk; (3) by conduct that is more than [gross] negligence.” Id. at 564 (quotation marks omitted)

(alteration in original). The seriousness of a medical need is an objective inquiry. Kelley v. Hicks,

400 F.3d 1282, 1284 (11th Cir. 2005) (per curiam). 

15 Because this constitutional claim is covered by the Eighth Amendment, it is not analyzed as a substantive

due process claim under the Fourteenth Amendment. See County of Sacramento, 523 U.S. at 843; Brown, 813 F.2d

at 1188.

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A serious medical need is one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor's attention. In the alternative, a serious medical need is

determined by whether a delay in treating the need worsens the condition. In either

case, the medical need must be one that, if left unattended, poses a substantial risk of

serious harm.

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009) (citations omitted) (internal quotation

marks omitted). 

Deliberate indifference is a subjective inquiry. Kelley, 400 F.3d at 1284. To establish

deliberate indifference, a plaintiff must allege: “(1) subjective knowledge of a risk of serious harm;

(2) disregard of that risk; (3) by conduct that is more than [gross] negligence.” Youmans, 626 F.3d

at 564 (alteration in original) (internal quotation marks omitted). In determining whether an individual

exercised gross negligence, the court should consider: (1) indifference by prison doctors or nurses in

their response to the prisoner’s needs; (2) prison guards intentionally denying or delaying access to

medical care; and (3) interference with treatment once proscribed. See Brown v. Johnson, 387 F.3d

1344, 1351 (11th Cir. 2004). With regard to gross negligence in a delay-of-treatment case, the

relevant factors include: “(1) the seriousness of the medical need; (2) whether the delay worsened the

medical condition; and (3) the reason for the delay.” Goebert v. Lee County, 510 F.3d 1312, 1327

(11th Cir. 2007). In order for a denial of medical care to rise to the level of deliberate indifference,

the treatment must be more than “medical malpractice actionable under state law.” Taylor v. Adams,

221 F.3d 1254, 1258 (11th Cir. 2000) (alteration omitted) (internal quotation marks omitted). 

Accordingly, a “simple difference in medical opinion” does not constitute deliberate indifference. 

Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989).

Accepting as true Plaintiff’s allegation that Kelley bit him, the court concludes that the time

at which a test for blood-borne disease should be obtained—whether immediately or at some

prescribed period afterward—involves a matter of medical judgment, not deliberate indifference. 

Moreover, even if obtaining a blood test following a human bite wound implicates a serious medical

need, Plaintiff does not allege that any delay in obtaining the test—or any refusal to advise him of the

results of that test—has resulted in physical harm or worsening of a condition. Rather, though no

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condition related to a human bite wound has been diagnosed, Plaintiff alleges that he fears such a

diagnosis and is anxious because the test was not obtained exactly when he requested and the results

were not disclosed to him as he requested. Plaintiff cannot and does not allege that he suffered any

physical injury or worsening of a condition as a result of Bishop or Grice’s alleged acts or omissions. 

Accordingly, Plaintiff has failed to state a plausible Eighth Amendment claim against Grice and

Bishop.

 As set forth above, all of Plaintiff’s federal claims are due to be dismissed. Even if Plaintiff

sought leave to amend yet again, no further amendment should be permitted. Although Plaintiff has had

numerous opportunities to amend his allegations, he has been unable to assert a viable claim despite

receiving ample guidance from the court.16 As Plaintiff has failed, repeatedly, to establish a factual

basis for his claims, the court concludes that any further attempts to state a claim would be futile. 

Dismissal of Plaintiff’s federal claims with prejudice therefore is warranted. See Cockrell v. Sparks,

510 F.3d 1307, 1310 (11th Cir. 2007) (dismissal with prejudice appropriate if granting leave to

amend would be futile). 

VI. STATE LAW CLAIMS

Plaintiff’s state law claims should be dismissed without prejudice. It is well established that

once a plaintiff’s federal claims are dismissed, there remains no independent federal jurisdiction to

support the court’s exercise of supplemental jurisdiction over state claims against a defendant. See

Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1352 (11th Cir. 1997). Title 28 U.S.C. §

1367(c)(3) provides that the district court may decline to exercise supplemental jurisdiction over

claims after it has dismissed all claims over which it has original jurisdiction. See also United Mine

Workers v. Gibbs, 383 U.S. 715, 725–26, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Where § 1367(c)

applies, considerations of judicial economy, convenience, fairness, and comity may influence the

16 See docs. 41, 78, 90, and 102. The court noted in its order dated May 13, 2013, that “Plaintiff named

twenty-two or more Defendants from SRCI and [Union Correctional Institution] in his initial complaint, thirty-three

Defendants in his amended complaint, forty-four Defendants in his Second Amended Complaint, and seventeen

Defendants in his Third Amended Complaint. Thus, Plaintiff’s allegations have undergone a significant metamorphosis

since the initial complaint.” (doc. 102 at 2 n.3). 

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court’s discretion to exercise supplemental jurisdiction. Baggett, 117 F.3d at 1353 (citing Palmer v.

Hosp. Auth. of Randolph Cnty., 22 F.3d 1559, 1569 (11th Cir. 1994); Exec. Software N. Am. v.

United States Dist. Court, 15 F.3d 1484, 1493 (9th Cir. 1994); New England Co. v. Bank of Gwinnett

Cnty., 891 F. Supp. 1569, 1578 (N.D. Ga. 1995); Fallin v. Mindis Metals, Inc., 865 F. Supp. 834, 841

(N.D. Ga. 1994)). Taking these factors into account in this case, the undersigned concludes that

Plaintiff’s state law claims should be dismissed.17 The state court is best equipped

to research and rule on matters of state law, and principles of comity suggest that it be allowed to do

so.

VII. CONCLUSION

For the reasons set forth above, the court concludes that Grice’s motion to set aside default

should be granted, and Plaintiff’s motion for default judgment should be denied. Additionally, the

motion to dismiss filed by Defendants Temples and FDOC should be granted and the federal claims

against these Defendants should be dismissed with prejudice. In addition, all federal claims against

the remaining Defendants should also be dismissed with prejudice. Plaintiff’s state law claims against

all Defendants should be dismissed without prejudice to his pursuing them in state court. 

 Accordingly, it is respectfully RECOMMENDED:

1. That Grice’s motion to set aside default (doc. 142) be GRANTED.

2. That Plaintiff’s motion for default judgment against Grice (doc. 153) be DENIED, as

moot. 

17 Dismissal of Plaintiff’s state claims without prejudice should not result in unfairness to any party. While

the case is aged, no discovery has yet been conducted and many of the Defendants have not even been served. Also,

the period of limitations has been tolled during the pendency of this action and will continue to be tolled for a period

of at least thirty days after dismissal. See 28 U.S.C. § 1367(d). See also Krause v. Textron Financial Corp., 59 So.

3d 1085 (Fla. 2011) (finding that § 1367(d) tolled Florida’s statute of limitations applicable to constructive trust

claim, and approving Scarfo v. Ginsberg, 817 So. 2d 919 (Fla. 4th DCA 2002) (concluding that dismissal of a federal

claim for lack of subject matter jurisdiction did not bar application of § 1367(d) to toll state limitations period for

claims refiled in state court)); Blinn v. Florida Dept. of Transportation, 781 So. 2d 1103 (Fla. 1st DCA 2000) (§

1367(d) applied to toll employee’s claims initiated in federal court, then voluntarily dismissed before filing in state

court). Thus, following dismissal, Plaintiff should have adequate time to file his state claims in state court if he

wishes.

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3. That the motion to dismiss filed by Defendants Temples and FDOC (doc. 129) be

GRANTED and the federal claims against these Defendants be dismissed, with prejudice. 

4. That all federal claims against Defendants Kelley, Nelson, Morris, Hammontree; Orsa;

Turner; Ealum; Mitchell; Collier; Grice; Bishop, and SRCI, also be dismissed, with prejudice.

5. That Plaintiff’s state law claims against all Defendants be dismissed, without prejudice

to Plaintiff’s pursuing them in state court.

6. That any other pending motions be DENIED, as moot.

7. That the clerk be directed to enter judgment in favor of Defendants and against Plaintiff

and close the file.

At Pensacola, Florida, this 31st day of January 2014.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within fourteen

(14) days after being served a copy thereof. Any different deadline that may appear on the

electronic docket is for the court’s internal use only. A copy of objections shall be served upon

the magistrate judge and all 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).

Case No.: 3:10cv360/LAC/EMT