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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

QUARMARDEN Q. BRAND, 

 Plaintiff,

vs. 3:10cv377/LAC/MD

OFFICER HAMILTON, et al.

 Defendants.

REPORT AND RECOMMENDATION

This cause is before the court upon plaintiff’s civil rights complaint filed

pursuant to Title 42 U.S.C. §1983. (Doc. 1). Leave to proceed in forma pauperis was

granted and no initial partial filing fee was assessed (doc. 4). 

Since plaintiff is proceeding in forma pauperis, the court is required to

dismiss the case at any time if it determines that the action or appeal 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). Because plaintiff fails to state a claim on which relief may be

granted, dismissal of plaintiff’s case is warranted. 

Plaintiff was incarcerated at Santa Rosa County Jail at the time the events

giving rise to this complaint took place. He names Officers Hamilton, Tolbert and

Baker as defendants in this action. Plaintiff contends that on September 17, 2010

Officer Hamilton kicked him in the ankle as he was sleeping to rouse him during

Hamilton’s routine inmate headcount. Hamilton subsequently verbally threatened

plaintiff and called him names. He also moved plaintiff to a different dorm where he
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told officers to put plaintiff in a “boat” rather than allow him to have a bottom bunk, 1

although such bunks were available. After Hamilton left, plaintiff asked to speak to

Officer Tolbert who then told plaintiff to take possession of bottom bunk #18. When,

after 20 minutes, there was still some confusion, Officer Baker allegedly told plaintiff

to “get on a boat.” When plaintiff informed her that he had a low bunk pass, she let

him stay on bunk #18 without further discussion. 

In plaintiff’s statement of claims, plaintiff appears to express that he does not

know his constitutional rights by heart, but he knows that “he” violated plaintiff’s

rights. As relief, plaintiff seeks to be moved from the jail. The complaint is signed

on September 19, 2010, two days after the incident of which plaintiff complains. 

Under the pre-PLRA version of § 42 U.S.C.A. § 1997e, courts had the option

to stay actions not administratively exhausted, if the court found this to be

"appropriate and in the interests of justice." 42 U.S.C. § 1997e(a)(1)(1994)(amended

1996). By contrast, the current version provides that:

(a) Applicability of administrative remedies

No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other

Federal law, by a prisoner confined in any jail, prison, or

other correctional facility until such administrative

remedies as are available are exhausted.

42 U.S.C.A. § 1997e(a) (West Supp.1997). Therefore, the plain language of the statute

makes the exhaustion requirement a mandatory prerequisite to filing suit. See Leal

v. Georgia Dept. Of Corrections, 245 F.3d 1276 (11 Cir. 2001); Higginbottom v. th

Carter, 223 F.3d 1259, 1261 (11 Cir. 2000); Miller v. Tanner, 196 F.3d 1190, 1193 (11 th th

Cir. 1999); Harris v. Garner, 190 F.3d 1279, 1286 (11 Cir. 1999); Alexander v. Hawk,

th

159 F.3d 1321, 1329 (11 Cir. 1998). The exhaustion requirement applies to all th

inmate suits about any aspect of prison life. Woodford v. Ngo, 126 S.Ct. 2378, 2382,

From the allegations in the complaint, a boat appears to be an alternative sleeping arrangement on the

1

floor, rather than a bunk..

Case No: 3:10cv377/LAC/MD
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165 L.Ed.2d 368 (2006); Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12

(2002); Booth v. Churner, 532 U.S. 731, 121 S.Ct.1819, 1825, 149 L.Ed.2d 958 (2001). 

Both the Supreme Court and the Eleventh Circuit have recognized myriad policy

reasons favoring exhaustion. In Woodford v. Ngo, the Supreme Court recognized

the general benefits of exhaustion as follows:

First, exhaustion protects “administrative agency authority.”

Exhaustion gives an agency “an opportunity to correct its own

mistakes with respect to the programs it administers before it is haled

into federal court,” and it discourages “disregard of [the agency's]

procedures.”

Second, exhaustion promotes efficiency. Claims generally can be

resolved much more quickly and economically in proceedings before

an agency than in litigation in federal court. In some cases, claims are

settled at the administrative level, and in others, the proceedings before

the agency convince the losing party not to pursue the matter in federal

court. “And even where a controversy survives administrative review,

exhaustion of the administrative procedure may produce a useful

record for subsequent judicial consideration.”

Woodford v. Ngo, 126 S.Ct. at 2385 (internal citations omitted). The Eleventh Circuit

has also described seven policy reasons favoring an exhaustion requirement:

(1) to avoid premature interruption of the administrative process; (2) to

let the agency develop the necessary factual background upon which

decisions should be based; (3) to permit the agency to exercise its

discretion or apply its expertise; (4) to improve the efficiency of the

administrative process; (5)toconserve scarce judicial resources, since

the complaining party may be successful in vindicating rights in the

administrative process and the courts may never have to intervene; (6)

to give the agency a chance to discover and correct its own errors; and

(7) to avoid the possibility that frequent and deliberate flouting of the

administrative processes could weaken the effectiveness of an agency

by encouraging people to ignore its procedures.

Johnson v. Meadows, 418 F.3d 1152, 1156 (11 Cir. 2005) (quoting Alexander v. th

Hawk, 159 F.3d 1321, 1327 (11 Cir. 1998)). The exhaustion process is mandatory,

th

and cannot be waived even when the process is futile or inadequate. Bryant v. Rich,

530 F.3d 1368, 1373 (11 Cir. 2008) (citing Alexander, 159 F.3d at 1325-26). th

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Even though plaintiff may have pursued and completed exhaustion after his

case was filed, it would still be subject to dismissal, as he did not exhaust his

administrative remedies before suit was commenced. Johnson v. Jones, 340 F.3d

624, 627 (8 Cir. 2003) (“court must look to the time of filing, not the time the district

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court is rendering its decision, to determine if exhaustion has occurred” and “[i]f

exhaustion was not completed at the time of filing, dismissal is mandatory”);

Jackson v. District of Columbia, 254 F.3d 262, 268-69 (D.C.Cir.2001) (rejecting

argument that § 1997e(a) “permits suit to be filed so long as administrative remedies

are exhausted before trial”); Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6 Cir. 2005)

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(quoting Freeman v. Francis, 196 F.3d 641, 645 (6 Cir.1999) (“The prisoner,

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therefore, may not exhaust administrative remedies during the pendency of the

federal suit.”)); Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 535 (7th

Cir. 1999) (“[A] suit filed by a prisoner before administrative remedies have been

exhausted must be dismissed; the district court lacks discretion to resolve the claim

on the merits, even if the prisoner exhausts intra-prison remedies before

judgment.”); see also Nyhuis v. Reno, 204 F.3d 65, 71 (3 Cir. 2000) (“Allowing the rd

federal courts to fashion prison remedies before the prisons themselves have had

the opportunity (and have the ability) to do so, is surely not what Congress intended

when it enacted the [Prison Litigation Reform Act].”); Alexander v. Hawk, 159 F.3d

1321, 1326 (11 Cir.1998) (“[E]xhaustion is now a pre-condition to suit.... Mandatory th

exhaustion is not satisfied by a judicial conclusion that the requirement need not

apply.”); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir.1997) (“Congress specifically

amended the statute to ... requir[e] federal prisoners to exhaust all administrative

remedies before bringing ... a claim under 42 U.S.C. § 1983.”)). 

Clearly, the two days between the event complained of and the signing of the

complaint would not have been sufficient time to pursue and exhaust administrative

remedies available to him. Therefore, because plaintiff cannot cure the defect in his

failure toexhaust his administrative remedies bypost-filing exhaustion, he has failed

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to state a claim and his case must be dismissed without prejudice. Rivera v. Allin,

144 F.3d 719, 731 (11 Cir. 1998) (citation omitted) (“A claim that fails to allege the th

requisite exhaustion of remedies is tantamount to one that fails to state a claim upon

which relief may be granted.”)

Even if plaintiff had exhausted his administrative remedies, or was able to

argue that there is no grievance procedure available at the jail, his complaint is

subject to dismissal for failure to state a substantive constitutional claim.

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.

West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988)

(citations omitted); Holmes v. Crosby, 418 F.3d 1256, 1258 (11 Cir. 2005) (citing th

West). 

Frankly, it is not apparent why Officers Tolbert and Baker are named as

defendants in this action as these officers either assigned plaintiff a bottom bunk or

permitted him to stay there. Thus, they committed no wrong against him. Plaintiff

clearly does not state a constitutional or any other kind of claim against these

individuals and they should be dismissed.

The remaining defendant, Officer Hamilton, is alleged to have (1) kicked

plaintiff in the ankle to rouse him; (2) verbally threatened plaintiff with physical

assault; (3) taken away plaintiff’s “blues” and issued him an orange jumpsuit ; (4) 2

asked other officers not to honor plaintiff’s low bunk pass and instead place him in

a “boat.” These claims, taken either individually or together do not rise to the level

of a constitutional violation. 

The significance of this is not clear to the court.

2

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To the extent that plaintiff claims that Hamilton’s kick in his ankle was an

improper use of force, because plaintiff was a pretrial detainee at the time of the

alleged misconduct, the relevant constitutional guarantee is not the Eighth 3

Amendment’s prohibition against cruel and unusual punishment applicable to

convicted prisoners, but rather the Due Process Clause of the Fourteenth

Amendment. Ingraham v. Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401, 51 L.Ed.2d

711 (1977); Danley v. Allen, 540 F.3d 1298, 1306 (11 Cir. 2008); Burnette v. Taylor, th

533 F.3d 1325, 1330 n.4 (11 Cir. 2008); Cottone v. Jenne, 326 F.3d 1352, 1356 n. 4

th

(11 Cir. 2003); see also Richman v. Sheahan, 512 F.3d 876, 882 (7 Cir. 2008) (“If th th

you are beaten to a pulp before you are convicted, your remedy is under the Fourth

Amendment; after, under the Eighth Amendment.”). Whether a jailer's use of force

is excessive, and thus violates the inmate's Fourteenth Amendment right to be free

from cruel and unusual punishment, depends on whether the jailer's act “shocks the

conscience,” Cockrell v. Sparks, 510 F.3d 1307, 1311 (11 Cir. 2007), and it th

necessarily will if the force “‘was applied ... maliciously and sadistically for the very

purpose of causing harm.’” Id. (quoting Whitley v. Albers, 475 U.S. 312, 320-21, 106

S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986)). To evaluate whether actions shock the

conscience, we consider the following factors: (1) the need for force; (2) the

relationship between that need and the amount of force used; and (3) the extent of

the resulting injury. Whitley, 475 U.S. at 321, 106 S.Ct. at 1085. To the extent a kick

in the ankle just hard enough to rouse a sleeping inmate can be considered “force,”

the court does not find that the use of such “force,” which apparently caused no

injury, neither “shocks the conscience” nor states a constitutional violation. 

Plaintiff’s claim of verbal harassment is not cognizable under section 1983. 

As the Fifth Circuit has stated:

Plaintiff pleaded guilty or nolo to a charge of aggravated battery with a deadly weapon in Escambia County

3

Court case 2010 CF 001917 on October 6, 2010.

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as a rule, mere threatening language and gestures of a

custodial officer do not, even if true, amount to

constitutional violations .... Were a prisoner ... entitled to

a jury trial each time he was threatened with violence by a

prison guard, even though no injury resulted, the federal

courts would be more burdened than ever with trials of

prisoner suits ....

McFadden v. Lucas, 713 F.2d 143, 146 (5 Cir. 1983) (quotations and citations th

omitted). See generally Evans v. City of Zebulon, GA, 351 F.3d 485, 495-496 (11 Cir. th

2003) (verbal taunts by other inmates or government officials do not violate

constitutional rights), vacated by 364 F.3d 1298 (11 Cir. 2004), rehearing en banc th

granted on other grounds, Evans v. Stephens, 407 F.3d 1272 (11 Cir. 2005) ; see th 4

also Barney v. Pulsipher, 143 F.3d 1299, 1310 n. 11 (10 Cir. 1998) (“[A]cts of verbal th

harassment alone are not sufficient to state a claim under the Eighth Amendment.”);

Bender v. Brumley, 1 F.3d 271, 274 n.4 (5 Cir. 1993)(mere allegations of verbal th

abuse do not present actionable Section 1983 claim); Swoboda v. Dubach 992 F.2d

286, 290 (10 Cir. 1993)(allegations that officers threatened to kill inmate not th

cognizable under Section 1983); Hopson v. Fredricksen, 961 F.2d 1374, 1378 (8 Cir. th

1992)(mere verbal threats generally do not constitute a Section 1983 claim); 

McDowell v. Jones, 990 F.2d 433, 434 (8 Cir. 1993)(verbal harassment of prisoner th

failed to state a claim under the Eighth Amendment because the words did not

 (Citation from Evans: “This Court, for example, has held that verbal taunts by other inmates do not pose

4

a serious risk to the prisoner's health or safety under the Eighth and Fourteenth Amendments. *496 Edwards

v. Gilbert, 867 F.2d 1271, 1274 n. 1 (11th Cir.1989). Cf. McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.1983)

(threatening language and gestures of a corrections officer do not generally violate an inmate's Eighth

Amendment rights). Other courts have held that verbal threats and harassment by a government official do

not generally violate substantive due process. King v. Olmsted County, 117 F.3d 1065, 1067 (8th Cir.1997);

Robertson v. Plano City, 70 F.3d 21, 24 (5th Cir.1995); Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir.1991). Some

courts have applied this principle to the arrest context. See Hopson v. Fredericksen, 961 F.2d 1374, 1378-79

(8th Cir.1992) (officer's statement during an arrest that he would knock the arrestee's teeth out and his use

of a racial slur did not violate the Fourth Amendment); Keyes v. City of Albany, 594 F.Supp. 1147, 1155

(N.D.N.Y.1984) ("verbal abuse, including vile language and racial epithets" directed at bystanders during an

arrest did not violate their constitutional rights). In light of this caselaw treating verbal abuse, even vile

language and racial epithets, as insufficient to constitute a constitutional violation, we cannot conclude that

it was clearly established that Stephens's taunts and threats of prison rape might so exacerbate the

intrusiveness of the strip search as to violate the appellees' constitutional rights.

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terrorize the inmate with a threat of death); Siglar v. Hightower, 112 F.3d 191, 193 (5th

Cir. 1997); Keenan v. Hall, 83 F.3d 1083, 1092 (9 Cir. 1996); Oltarzewski v. Ruggiero,

th

830 F.2d 136, 139 (9 Cir. 1987); Ivey v. Williams, 832 F.2d 950, 955 (6 Cir. 1987); th th

Collins v. Cundy, 603 F.2d 825, 827 (10 Cir. 1979); Johnson v. Glick, 481 F.2d 1028, th

1033 n.7 (2 Cir. 1973); see also Crenshaw v. City of Defuniak Springs, 891 F.Supp. nd

1548, 1555 (N.D. Fla. 1995) (“verbal harassment and abusive language, while

‘unprofessional and inexcusable,’ are simply not sufficient to state a constitutional

claim under Section 1983”); Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D. N.Y. 1998)

(“verbal harassment orprofanityalone, ‘unaccompanied byanyinjuryno matter how

inappropriate, unprofessional, or reprehensible it might seem,’ does not constitute

the violation of any federally protected right” under section 1983); Partee v. Cook

County Sheriff's Office, 863 F.Supp. 778, 781 (N.D. Ill. 1994) (inmate’s “allegations

of verbal threats, racial epithets, and continued harassment” failed to meet objective

component of Eighth Amendment); Davis v. Sancegraw, 850 F.Supp. 809, 813 (E.D.

Mo. 1993) (“[v]erbal insults or threats generally do not rise to the level of a

constitutional violation” except where they involve “a ‘wanton act of cruelty’ such

that the inmate is in fear of ‘instant and unexpected death at the whim of his bigoted

custodians’”). 

Similarly, Officer Hamilton’s alleged racial comments, while undoubtedly

offensive and inappropriate, cannot form the basis of a §1983 claim. See Evans v.

City of Zebulon, GA, 351 F.3d 485, 495-496 (11 Cir. 2003), vacated by 364 F.3d 1298

th

(11 Cir. 2004), rehearing en banc granted on other grounds, Evans v. Stephens, 407 th

F.3d 1272 (11 Cir. 2005); Haussman v. Fergus, 894 F. Supp. 142, 149 (S.D. N.Y. th

1995); Purcell v. Coughlin, 790 F.2d 263, 265 (2 Cir.1986); Wright v. Santoro, 714 nd

F.Supp. 665, 666-67 (S.D.N.Y.)(‘“discriminatorystatements reflectingracial prejudice

not actionable under §1983 where not shown to be connected with physical injury.’”

(citation omitted)), aff’d, 891 F.2d 278 (2 Cir.1989); Kelly v. Rice, 375 F.Supp.2d 203,

nd

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209-210 (‘“the use of [vile] language, no matter how abhorrent or reprehensible,

cannot form the basis for a §1983 claim.’”) (citation omitted).

Plaintiff’s remaining two issues with Officer Hamilton, about the change in his

jail attire andhis assertion that Officer Hamilton unsuccessfullyattempted to prevent

him from getting assigned to a lower bunk are frivolous.

Based on the foregoing, the court is satisfied that plaintiff’s claim is subject

to dismissal both for his failure to exhaust his administrative remedies and for his

failure to allege a substantive constitutional violation against any of the named

defendants. 

Accordingly, it is respectfully RECOMMENDED:

That this cause be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

At Pensacola, Florida, this 27th day of October, 2010.

/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 thereof. 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 objections shall be served upon 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 (11 Cir. 1988). th

Case No: 3:10cv377/LAC/MD