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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ROBERT EARL ROYSTER, 

 Plaintiff,

vs. 3:10cv29/MCR/MD

SHERIFF DAVID MORGAN, et al.

 Defendants.

REPORT AND RECOMMENDATION

Plaintiff has submitted his partial initial filing fee (doc. 20), and this cause is

before the court upon plaintiff’s civil rights complaint filed pursuant to Title 42 U.S.C.

§1983. Upon review of the complaint, the court concludes that plaintiff has failed to

present an actionable claim against anyof the named defendants, and that dismissal

of this case is warranted.

Since plaintiff is proceeding in forma pauperis, the law requires this court to 

review his complaint to determine if it 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.A. § 1915(e)(2)(B). The court

must read plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404

U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). A complaint is frivolous under section

1915(d) “where it lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). Dismissals

on this ground should only be ordered when the legal theories are “indisputably

meritless,” Id. at 327, 109 S.Ct. at 1833, or when the claims rely on factual allegations
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that are “clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728,

1733, 118 L.Ed.2d 340 (1992). Dismissals for failure to state a claim are governed by

the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass,

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

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

in the complaint as true and evaluates all inferences derived from those facts in the

light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483

(11 Cir. 1994). The complaint may be dismissed if the facts as pleaded do not state th

a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (retiring the negativelyglossed “no set of facts” language previously used to describe the motion to

dismiss standard and determining that because plaintiffs had “not nudged their

claims across the line from conceivable to plausible, their complaint must be

dismissed” for failure to state a claim). A complaint is also subject to dismissal

under Rule 12(b)(6) “when its allegations, on their face, show that an affirmative

defense bars recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11 Cir. th

2003); Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11 Cir. 2001). th

At the time plaintiff initiated this lawsuit on January 27, 2010, he was a pre-trial

detainee confined at the Escambia County Jail. He is currently confined at Florida

State Hospital. (Doc. 9). His complaint names three defendants: Escambia County

Sheriff David Morgan, Deputy Courtney E. Clanton, and one family member, Daryl

Royster, Sr. (Doc. 1, pp. 1-2). Plaintiff’s claims arise out of the incidents leading up 1

to his alleged false arrest on November 17, 2009. Plaintiff alleges in the complaint

that he woke up at 11:32 p.m. on Tuesday November 17, 2009, took a shower and

washed some of his clothes inside the garage. When he went to open the front door

to return inside, it was locked. He beat on the door and Daryl Royster, Sr., plaintiff’s

Daryl Royster Jr. is named as a defendant in another case filed by plaintiff. 3:10cv30/LAC/MD. Although

1

plaintiff’s handwriting is somewhat difficult to decipher, it appears that all references in the instant complaint

are to Royster Sr.

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uncle, came out of the house and chased plaintiff out of the yard carrying an iron

pipe. Plaintiff went to a neighbor’s house and called his mother, who was working. 

Daryl Royster Sr. ran into the house and closed the door when plaintiff came back. 

Despite having been chased by Daryl Royster Sr. with an iron pipe moments before,

plaintiff climbed through the window. He opened the door when Escambia County

Sheriff’s deputies arrived, and the deputies handcuffed him for burglarizing his

mother’s house. Royster came out of the bedroom and lied to deputies, saying he

did not know who plaintiff was, but when an unidentified sergeant arrived on the

scene he identified plaintiff, and plaintiff was released. The officers left, despite

plaintiff’s complaint that Royster should be arrested for making a false call to get

plaintiff put in jail. About ten minutes later Daryl Royster Sr. called law enforcement

and reported that plaintiff had stolen his stereo and pawned it. Defendant deputy

Courtney Clanton, who had also responded to the earlier call, arrived at the scene. 

(Doc. 1 at 5).

Plaintiff states that he showed Daryl Royster Sr. the radio on top of the

dresser, but Royster continued to insist that plaintiff be arrested so that plaintiff

would be removed from plaintiff’s mother’s house. Royster told Deputy Clanton that

plaintiff was an extreme narcotics abuser and alcoholic who was smoking crack in

his mother’s house. Plaintiff admits that he was under the influence of both alcohol

and drugs at the time, and that this caused him to hear voices and have seizures. 

He blacked out, and when he regained consciousness he was handcuffed, having

been arrested for battery on a law enforcement officer, an incident about which he

has no recollection. After his arrest, he reports that Daryl Royster Sr. shook hands

with Deputy Clanton stating “now we got him.” (Doc. 1 at 6).

Plaintiff claims that the statement made by Royster Sr. and the handshake

between Royster and Clanton is evidence of a conspiracy between Royster and

Deputy Clanton. He also claims that he was taken to jail without his rights being

read to him, and that he was falsely arrested. (Doc. 1 at 7). He seeks $5,000,000 in

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damages for his “pain and suffering” and criminal charges filed against Daryl

Royster Sr. and Deputy Courtney F. Clanton.

Taking the allegations of the complaint as true and construing them in the

light most favorable to plaintiff, they fail to state a plausible § 1983 claim against any

of the named defendants. Although plaintiff names Sheriff Morgan as a defendant,

Morgan is mentioned nowhere in the body of plaintiff’s complaint. To the extent

plaintiff seeks to hold this defendant liable because he supervised Deputy Clanton,

his claim is subject to dismissal because respondeat superior, without more, does

not provide a basis for recovery under section 1983. Polk County v. Dodson, 454

U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Cottone v. Jenne, 326 F.3d 1352 (11th

Cir. 2003); Harris v. Ostrout, 65 F.3d 912, 917 (11 Cir. 1995). “The mere right to th

control, without any control or direction having been exercised and without any

failure to supervise, is not sufficient to support 42 U.S.C. § 1983 liability.” Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 694 n. 58, 98 S.Ct. 2018, 2037 (1979). “Supervisory

liability occurs either when the supervisor personally participates in the alleged

constitutional violation or when there is a causal connection between the actions of

the supervising official and the alleged constitutional deprivation.” Brown v.

Crawford, 906 F.2d 667, 671 (11 Cir. 1990) (citations omitted). The court in Brown th

set forth the limited circumstances upon which a causal connection between the

actions of a supervising official and the alleged constitutional deprivation can be

shown sufficient to render him liable on a § 1983 claim. The causal connection can

be established

when a historyof widespread abuse puts the responsible supervisor on

notice of the need to correct the alleged deprivation, and he fails to do

so. The deprivations that constitute widespread abuse sufficient to

notify the supervising official must be obvious, flagrant, rampant and

of continued duration, rather than isolated occurrences. 

Id. (citations omitted). In the instant case, plaintiff’s complaint fails to provide any

factual basis for holding Sheriff Morgan liable for the alleged deprivationofplaintiff’s

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constitutional rights. Thus, plaintiff’s claims against this defendant should be

dismissed with prejudice.

Plaintiff’s claims against defendant Daryl Royster, Sr. are also due to be

dismissed. In any section 1983 action, the initial inquiry must focus on whether two

essential elements are present:

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

acting under color of state law; and

2. whether this conduct deprived a person of rights, privileges, or

immunities secured by the Constitution or laws of the United States.

Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420, 428 (1981),

overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88

L.Ed.2d 662 (1986); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11 Cir. 2001). th

With regard to the first requirement, it is well-settled that “the party charged with the

deprivation must be a person who may fairly be said to be a state actor.” Patrick v.

Floyd Med. Ctr., 201 F.3d 1313, 1315 (11 Cir. 2000). Only in rare circumstances may th

a private party be viewed as a state actor for § 1983 purposes:

[T]o hold that private parties . . . are State actors, th[e] court must

conclude that one of the following three conditions is met: (1) the State

has coerced or at least significantly encouraged the action alleged to

violate the Constitution (State compulsion test); (2) the private parties

performed a public function that was traditionally the exclusive

prerogative of the State (public function test); or (3) the State had so far

insinuated itself into a position of interdependence with the private

parties that it was a joint participant in the enterprise (nexus/joint

action test). 

Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11 Cir. 2001) (internal th

quotation marks omitted). Here, plaintiff suggests Daryl Royster, Sr. lied to police

to have plaintiff falsely arrested. This allegation does not remotely suggest the kind

of joint action with state actors that would subject this private party to § 1983

liability. Plaintiff’s actual arrest, according to the complaint, stemmed from battery

on a law enforcement officer that occurred during the time he “blacked out.” 

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To the extent plaintiff suggests defendant Royster and the deputy conspired

with one another to have plaintiff falsely arrested, his allegations are wholly

conclusory and insufficient to state a plausible § 1983 claim. To establish a prima

facie case of conspiracy under § 1983, the plaintiff must allege, among other things,

that the defendants “reached an understanding to violate his rights.” See Rowe v.

City of Fort Lauderdale, 279 F.3d 1271, 1283 (11 Cir. 2002) (quotation and alteration th

omitted) (in a summary judgment context). “The plaintiff does not have to produce

a smoking gun to establish the understanding or willful participation required to

show a conspiracy, but must show some evidence of agreement between the

defendants.” Id. at 1283-84 (quotations and citation omitted). Vague or conclusory

allegations are not sufficient. The allegations must be specific. GJR Inv., Inc. v.

County of Escambia, Florida, 132 F.3d 1359, 1370 (11 Cir. 1998); Jackson v. Bell th

South Telecomms., 372 F.3d 1250, 1262-63 (11 Cir. 2004) (“[C]onclusoryallegations, th

unwarranted deductions of facts or legal conclusions masquerading as facts will not

prevent dismissal.”) (citation and quotation marks omitted) (alteration in original). 

In the instant case, plaintiff alleges that he believes that a conspiracy existed, and

that the two defendants shook hands after his arrest. This, without more, does not

state a plausible claim of conspiracy against either of the defendants. Deputy

Clanton declined to arrest plaintiff during his first visit to the plaintiff’s home when

Royster wanted him arrested. And, Clanton clearly was unpersuaded by Royster’s

claims that plaintiff had stolen and pawned the stereo system, or allegations of

plaintiff’s drug and alcohol use. He was ultimately arrested for something that had

nothing to do with Daryl Royster, Sr. Therefore, plaintiff’s claims against defendant

Royster must be dismissed, as this defendant was not a state actor. 

As to plaintiff’s remaining claims of false arrest and failure to have his rights

read to him against Deputy Clanton, plaintiff cannot obtain the relief he seeks. First,

there is no stand-alone “right” to be advised of one’s Miranda rights. If law

enforcement fails to advise an arrestee, any statement made while the arrestee is in

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custody may be excluded from evidence, but that is the only result. There is no

recognized cause of action for failure to read someone his or her Miranda rights. 

Second, plaintiff requests damages in the amount of $5,000,000 for “pain and

suffering” stemming from the alleged violations. However, the Prison Litigation

Reform Act 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.” 42 U.S.C. § 1997e(e). 

The Eleventh Circuit addressed the implications of § 1997e(e) and concluded that

“the phrase ‘Federal civil action’ means all federal claims, including constitutional

claims.” Napier v. Preslicka, 314 F.3d 528, 532 (11 Cir. 2002) (citing Harris v.

th

Garner, 216 F.3d 970, 984-85 (11 Cir. 2000) (en banc)). This § 1983 action brought th

by plaintiff is a “Federal civil action” under this definition. Further, it is undisputed

that plaintiff filed his complaint while imprisoned, and that the harm complained of

occurred while he was in custody, i.e., upon his arrest. See Napier, 314 F.3d at 533

(holding that § 1997e(e) applies to prisonerlawsuits claiming injuries suffered during

an arrest, because that is a custodial episode). Plaintiff seeks damages for the 2

mental injury (pain and suffering) he suffered as a result of the defendants’ conduct. 

However, he alleges no physical injury. His complaint cannot be liberally construed

to request nominal damages. Therefore, plaintiff’s damages claims must be 3

In Napier, a prisoner claimed that he suffered injury from his mistaken arrest by law enforcement

2

officers. The Eleventh Circuit held that “[t]he embarrassment or emotional harm occasioned by the

mistaken arrest occurred, at the earliest, when Napier was arrested – or, using the Miranda construct,

at the moment that a reasonable person in his situation would feel unable to leave. Because the harm

complained of by Napier occurred while he was in custody, the PLRA applies to his claim.” Id. at 533.

The Eleventh Circuit’s decision in Hughes v. Lott, 350 F.3d 1157 (11 Cir. 2003), does not apply

3 th

here. Id., at 1162 (holding that § 1997e(e) does not bar suits by prisoners who have not alleged a

physical injury if they seek nominal damages). Plaintiff’s complaint cannot be liberally construed as

requesting nominal damages, because he specifically requests only $5,000,000 for “pain and

suffering.” See, e.g., Sears v. Rabion, No. 03-13558, 97 Fed.Appx. 906 (Table) (11 Cir. Feb. 18, 2004)

th

(affirming district court’s sua sponte dismissal of complaint under § 1997e(e), noting that plaintiff’s

complaint could not be liberally construed as requesting nominal damages, because he specifically

requested compensatory and punitive damages).

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dismissed without prejudice under § 1997e(e). See Douglas v. Yates, 535 F.3d 1316

(11 Cir. 2008) (holding that the district court has authority to sua sponte dismiss a

th

complaint without prejudice under § 1997e(e)) (citing 28 U.S.C. § 1915(e)(2)(B)(ii));

Harris v. Garner, 190 F.3d 1279, 1286-87 (11 Cir. 1999), vacated, 197 F.3d 1059 (11 th th

Cir. 1999), reinstated in pertinent part, 216 F.3d 970 (11 Cir. 2000). th

Plaintiff also requests as part of his claim for relief, that criminal charges be

filed against defendants Clanton and Royster. Such relief is not available under §

1983. The law is well-settled that a private citizen “has no judicially cognizable

interest” in the criminal investigation or prosecution of another. Otero v. United

States Attorney Gen., 832 F.2d 141 (11 Cir. 1987) (citing Linda R.S. v. Richard D.,

th

410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973)); see also Cok v.

Cosentino, 876 F.2d 1, 2 (1 Cir. 1989) (holding that a private citizen has no authority st

to initiate a criminal prosecution); Sattler v. Johnson, 857 F.2d 224, 226-27 (4 Cir. th

1988) (holding that a private citizen has no constitutional right to have other citizens,

including state actors, criminallyprosecuted); O’Berry v. State Attorneys Office, 214

Fed. Appx. 654, 657 (11 Cir. July 23, 2007) (unpublished) (affirming district court’s th

finding that a private citizen cannot force the United States AttorneyGeneral to bring

a criminal prosecution against another citizen). This court has no authority of file

criminal charges against any defendant, nor can the court direct that criminal

charges be filed. Therefore, even if the court had found a viable underlying

constitutional claim, this request for relief must be dismissed. 

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s § 1983 claims against Sheriff Morgan and plaintiff’s

conspiracy claims against Deputy Clanton and Daryl Royster be dismissed with

prejudiced under 28 U.S.C. § 1915(e)(2)(B)(ii).

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2. That plaintiff’s damages claims against Deputy Clanton arising from his

alleged false arrest be dismissed without prejudice under 28 U.S.C. §

1915(e)(2)(B)(ii).

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

At Pensacola, Florida, this 20 day of May, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen 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 (11 Cir. 1988). th

Case No: 3:10cv29/MCR/MD