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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ROBERT LEE MILHOUSE,

Plaintiff,

v. Case No. 3:11cv107/WS/CJK

HERMAN ATKINS, JR., 

Defendant.

_________________________/

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed a “fourth”

amended civil rights complaint pursuant to 42 U.S.C. § 1983. (Doc. 16). Upon

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review of the amended complaint, the court concludes that plaintiff has not presented

an actionable claim, and that the complaint should be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff’s complaint names one defendant–Escambia County Sheriff’s Officer

Herman Atkins, Jr. (Doc. 16, p. 2). Plaintiff claims that in 2009 Officer Atkins and

Plaintiff has only submitted three civil rights complaints, but his most recent complaint is 1

labeled on the docket as fourth amended complaint. The present complaint was submitted after the

undersigned issued an amend order (doc. 15), addressed to plaintiff’s “third” amended complaint

(doc. 14).
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his SWAT team, while executing a search warrant at plaintiff’s residence, “used 2

unnecessary force, violence, threats, and verbal and physical abuse.” (Doc. 16, p. 5).

Defendant Atkins and his SWAT team entered plaintiff’s residence without

announcing or identifying themselves, “threw plaintiff to the floor, violently and

forcedly[sic] handcuffed the plaintiff, threatened the plaintiff with their weapons, and

verbally abused the plaintiff.” (Doc. 16, p. 5). Plaintiff contendsthat he did not resist

and the amount of force defendant Atkins used was “wholely [sic] unnecessary.” 

(Doc. 16, p. 5). As a result of Officer Atkins’ behavior, plaintiff suffered pain,

bruising, and mental anguish. (Doc. 16, p. 5). 

Plaintiff also alleges that on May 8, 2010, Officer Atkins, while off duty, used

plaintiff’s neighbor’s house to spy on him. (Doc. 16, p. 5). Plaintiff claims that

Officer Atkins saw only “plaintiff walking around a vehicle in plaintiff’s yard.” (Doc.

16, p. 5). Officer Atkins, when seeking an arrest warrant, indicated that plaintiff’s

neighbor–Lieutenant Debra Fletcher of the University of West Florida Police

Department–stated that she personally observed, from the east window of her

residence, the plaintiff driving his Ford vehicle onto the adjacent property. (Doc. 16,

p. 8). Officer Atkins then confirmed that plaintiff did not possess a valid driver’s

license at the time he was seen driving the Ford vehicle. (Doc. 16, p. 9). Plaintiff

appears to argue that the arrest warrant was insufficient because it was premised

entirely on Officer Fletcher’s statement. (Doc. 16, p. 5).

On July 8, 2010, Officer Atkins obtained another arrest warrantfor the plaintiff

based upon another non-moving traffic violation. (Doc. 16, p. 6). In the application

for the arrest warrant, Officer Atkins said he personally observed plaintiff driving a

Plaintiff previously alleged that Officer Atkins did not have a search warrant. (Doc. 14, p. 5). 2

Case No: 3:11cv107/WS/CJK
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Ford vehicle without a license. (Doc. 16, p. 11). Officer Atkins was undercover at

the time and therefore could not arrest plaintiff at the moment he observed plaintiff

driving without a license. (Doc. 16, p. 12). Officer Atkins later verified that

plaintiff’s drivers license was “canceled.” (Doc. 16, p. 12). Later, defendant Atkins,

while serving the arrest warrant with his SWAT team, again used “unnecessary force,

violence, and physical and verbal abuse” during plaintiff’s arrest. (Doc. 16, p. 6). 3

Specifically, plaintiff was “thrown to the ground” and then “brutally hand-cuffed.” 

According to plaintiff, such force was unnecessary because the arrest wasfor a “mere

traffic violation.” Plaintiff posits that defendant used such force because he had a

“personal vendetta against the plaintiff.” Following the arrest, the defendant did not

give plaintiff an opportunity to secure his possessions and as a result, “plaintiff lost

his wallet, debit card and the funds associated with it, and his vehicle.” (Doc. 16, p. 4

6). 

Plaintiff claims violations of his Fourth Amendment right to be free from

unreasonable search and seizure, his “privacy and due process” rights, his right to be

free from cruel and unusual punishment, and right to be free from “unnecessary use

of force.” (Doc. 16, p. 7). As relief, plaintiff requests “$2,500 for money lost due to

unsecured and lost debit card, $5,000.00 in punitive damages for defendant’s

actions,” and “all fees and court costs.” (Doc. 16, p. 7). 

 

 Plaintiff also claims that Officer Atkins was “stalking” him. (Doc. 16, p. 6). 3

Plaintiff includes a credit card statement with his complaint. (Doc. 16, p. 14). The credit card

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statement shows various withdrawals and deposits into plaintiff’s account for August 2010 and June

2012 through July 2012.

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DISCUSSION

Title 28 U.S.C. § 1915 mandates that the district court dismiss an in forma

pauperis action if the court determines that the action is “(i) frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief

against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 

The Court must read plaintiff’s pro se allegations in a liberal fashion. Haines v.

Kerner, 404 U.S. 519, 520 (1972). 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 (11th Cir. 1997). The court accepts all factual

allegations in the complaint as true and evaluates all reasonable inferences derived

from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc.,

29 F.3d 1480, 1483 (11th Cir. 1994). The complaint may be dismissed if the facts as

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

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

facts” language previously used to describe the motion to dismiss standard and

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 for failure to state a claim when its

allegations, on their face, show that an affirmative defense barsrecovery on the claim. 

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

Bock, 549 U.S. 199, 215 (2007) (reiterating that principle).

As an initial matter, plaintiff’s damages claims are subject to dismissal under

Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff takes issue with the validity of the

search and arrest warrants, and further claims violations of his due process and

privacy rights. In Heck, the Supreme Court ruled that a state prisoner cannot bring

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a § 1983 damages action directly challenging his confinement until and unless the

reason for his continued confinement has been reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal, or otherwise called into

question by a federal court’s issuance of a writ of habeas corpus. Id. at 486-87.

Later, in Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court extended Heck

to bar § 1983 actions that do not directly challenge confinement, but instead

challenge procedures which necessarily imply unlawful confinement. Id. at 648

Here, plaintiff’s damages claims, if successful, would necessarily imply the

invalidity of his convictions for driving with a suspended license and various other

related drug offenses. If the warrants at issue were found to be inappropriately

obtained or plaintiff’s due process rights violated, plaintiff’s resulting convictions

would necessarily be undermined because the evidence seized and plaintiff’s arrest

would potentially be inadmissable. Plaintiff’s confinement has not been remedied by

any of the procedures listed in Heck. Plaintiff’s damages claims are, thus, not

cognizable under § 1983, and should be dismissed.

Nevertheless, out of an abundance of caution the court will set out the

additional reasons plaintiff’s claims lack merit and are not cognizable under § 1983. 

First, plaintiff claims the defendant conducted an unlawful search and seizure, yet

plaintiff readily admits that the defendant possessed a valid warrant to search his

premises and arrest him. Moreover, plaintiff includes with his complaint the

affidavits for the specific search and arrest warrants underlying the eventsin this case. 

(Doc. 16, pp. 8-13). Because such warrants were validly issued and supported by

probable cause, the defendant did not violate plaintiff’s Fourth Amendment rights. 

See U.S. CONST. amend. IV; see also Brigham City, Utah v. Stuart, 547 U.S. 398, 403

(2006); Steagald v. U.S., 451 U.S. 204, 222 (1981). To the extent plaintiff takes issue

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with the sufficiency of the evidence underlying the warrant, a witness statement can

be sufficient to establish probable cause. See Sada v. City of Altamonte Springs, 434

F. App’x 845, 849 (11th Cir. 2011) (holding that various witnesses’ statements were

sufficient to establish probable cause); see also Mckinnie v. Boseman, CV 109-070,

2011 WL 744650, at *5 (S.D. Ga. Jan. 20, 2011), Report and Recommendation

adopted, CV 109-070, 2011 WL 740507 (S.D. Ga. Feb. 23, 2011) (noting “witness

statements may suffice to establish probable cause”). Here, the witness was not just

an ordinary citizen, but also was a fellow law enforcement officer who had direct

knowledge of the plaintiff’s illegal behavior.

Additionally, plaintiff’s claims concerning his loss of property are not

cognizable under § 1983. The Supreme Court has held that the negligent deprivation

of property does not amount to a constitutional violation actionable under § 1983. 

Daniels v. Williams, 474 U.S. 327, 330, 333 (1986) (holding that the Due Process

Clause is not implicated by a state official’s negligent act causing unintended loss of

or injury to life, liberty, or property). The Supreme Court has further held that “an

unauthorized intentional deprivation of property by a state employee does not

constitute a violation of the procedural requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is

available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). The State of Florida

provides plaintiff with an adequate post-deprivation remedy for the loss of his

property. Prisoners may file a tort claim action in state court in order to recover

damages for property losses. See Fla. Stat. § 768.28 (2011). Because plaintiff has

access to an adequate post-deprivation remedy, he cannot state a plausible claim that

defendant’s action in arresting him and not securing his property violated the

Constitution. See Case v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009) (“We have

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recognized that ‘a civil cause of action for wrongful conversion of personal property’

under state law is a sufficient postdeprivation remedywhen it extends to unauthorized

seizures of personal property by state officers.”) (quoting Lindsey v. Storey, 936 F.2d

554, 561 (11th Cir. 1991); see also Taylor v. McSwain, 335 F. App’x 32, 34 (11th

Cir. 2009) (“[A] state employee’s unauthorized intentional deprivation of an inmate’s

property does not violate due process under the Fourteenth Amendment if a

meaningful postdeprivation remedy for the loss is available.”) (citing Hudson, 468

U.S. at 533)). 

Plaintiff has also failed to establish an Eighth Amendment violation for cruel

and unusual punishment. Plaintiffseems to be arguing that defendant used excessive

force in arresting him and that such excessive force constitutes cruel and unusual

punishment. A claim of excessive force that occurs during arrest, however, is

properly construed as arising under the Fourth Amendment. See Hadley v. Gutierrez,

526 F.3d 1324, 1329 (11th Cir. 2008) (“In an excessive force case arising out of an

arrest, whether a constitutional violation occurred is governed by the Fourth

Amendment’s ‘objective reasonableness’ standard.” (quoting Brosseau v. Haugen,

543 U.S. 194, 197 (2004))). The Eleventh Circuit examines several factors “in

determining whether an officer’s use of force was objectively reasonable, including

‘(1) the need for the application of force, (2) the relationship between the need and

the amount of force used, (3) the extent of the injury inflicted and, (4) whether the

force was applied in good faith or maliciously and sadistically.’” Hadley, 526 F.3d

at 1329 (quoting Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000)). Plaintiff

has plead no actual substantive physical injury resulting from defendant’s conduct;

instead, plaintiff asserts only that defendant and his SWAT team used “unnecessary

force, violence, threats, and verbal and physical abuse” and as a result he “suffered

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pain and brusing [sic] and mental anguish.” Plaintiff specifies that he was thrown to

floor and “forcedly [sic] handcuffed.” Defendant’s use of force was directly related

to detaining and restraining the plaintiff while executing a valid search warrant of

plaintiff’s premises. Moreover, this court cannot overlook plaintiff’s “third”

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amended complaint in which he does not allege physical injury and instead alleges

only that defendant and his SWAT team “point[ed] their guns” and “forc[ed] plaintiff

[onto] the floor – all the time using profanity.” (Doc. 14, p. 5). In his “third”

amended complaint, plaintiff faults the defendant for failing to knock and identify

himself prior to executing the search warrant, forcing plaintiff onto the ground which

caused his clothes to be covered in dirt and dust, and for the loss of his personal

property stemming fromdefendant’s actions. Allegations of physical injury or abuse

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are notably absent. Given the foregoing considerations, plaintiff has not put forward

facts demonstrating a violation of his Eighth or Fourth Amendment rights. 

Finally, plaintiff has been repeatedly warned that his claim for monetary

damagesis prohibited by 42 U.S.C. § 1997e(e). (Docs. 12, 15). The Prison Litigation

Reform Act (“PLRA”) 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). Addressing the implications of § 1997e(e), the

Eleventh Circuit has concluded: “the phrase ‘Federal civil action’ means all federal

Review of plaintiff’s criminal history shows multiple convictions for possession and distribution 5

of various controlled substances. 

In fact, plaintiff indicates in his “third” amended complaint that the cruel and unusual 6

punishment he takes issue with is based off of his incarceration, the verbal abuse he suffered, “the

loss of his rights as a U.S. citizen, and health problems . . . .” (Doc. 14, p. 6).

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claims, including constitutional claims.” Napier v. Preslicka, 314 F.3d 528, 532

(11th Cir. 2002) (citing Harris v. Garner, 216 F.3d 970, 984-85 (11th Cir. 2000) (en

banc)). This action, brought by plaintiff under 42 U.S.C. § 1983, is a “Federal civil

action” under this definition. It is evident from the face of plaintiff’s complaint that

he filed this lawsuit, and obtained in forma pauperis status, while imprisoned. 

Plaintiff was in custody when the alleged injuries occurred. See Napier, 314 F.3d at

532-33 (arrest sufficient for custody under the PLRA). Plaintiff's damages claims are

based on the emotional distress and possible property loss he suffered as a result of

the alleged unconstitutional violations; however, the complaint alleges only de

minimis physical injury resulting from the alleged constitutional violations. 

Therefore, plaintiff is prohibited under the PLRA from bringing his damages claims. 

Harris v. Garner, 190 F.3d 1279, 1287-88 (11th Cir. 1999) (“Harris I”), vacated in

part and reinstated in part on reh'g, 216 F.3d 970 (11th Cir. 2000) (en banc) (“Harris

II”) (affirming district court’s dismissal of claims for compensatory and punitive

damages as barred by § 1997e(e)); Al-Amin v. Smith, 637 F.3d 1192 (11th Cir. 2011)

(holding that “the overall tenor of Harris and its progeny, when taken together,

unmistakably supports” the conclusion that § 1997e(e) applies to constitutional

claims and precludes the recovery of compensatory and punitive damages in the

absence of the requisite physical injury). Plaintiff has continued to ignore this court’s

admonitions concerning his inability to recover monetary damages for his alleged

injuries.

Accordingly, it is respectfully RECOMMENDED

1. That plaintiff’s claims be DISMISSED WITHOUT PREJUDICE under 28

U.S.C. § 1915(e)(2)(B)(ii), for plaintiff’s failure to state a claim upon which relief

may be granted.

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

DONE AND ORDERED this 8th day of October, 2013.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

Case No: 3:11cv107/WS/CJK