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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GARY C. QUILLING,

Plaintiff,

vs. Case No. 4:10cv404-WS/WCS

MARTHA HUMPHRIES, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se and in forma pauperis, initiated this civil

rights action by filing a complaint under 42 U.S.C. § 1983 on September 17, 2010. Doc.

1. As Plaintiff has now paid the assessed initial partial filing fee, doc. 5, the complaint

has been reviewed pursuant to 28 U.S.C. § 1915A. 

Plaintiff's claims concern his incarceration at Jefferson Correctional Institution

during the year 2006. Doc. 1, p. 10. Plaintiff alleged that on August 17, 2006, he

complained to Defendant Colone about misconduct of an officer. Doc. 1, p. 12. As a

result, Plaintiff contends he was threatened with physical violence. Id. Plaintiff then

submitted several grievances about the threat and requested protective custody on
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August 20, 2006. Id., at 13. On August 21st, Plaintiff alleges Officer Keys threatened

Plaintiff with physical violence. Id. On August 24th, Plaintiff alleges he was threatened

by Captain Pickles because Plaintiff would not withdraw his grievances and request for

protective custody. Id. 

Plaintiff complains that Defendant Cloud did not process some of Plaintiff's

grievances so as to prevent Plaintiff's access to the courts on exhaustion grounds. Id.,

at 13-14. Plaintiff also complains that when Inspector Clark interviewed Plaintiff about

his allegations concerning threats by Defendants Colone, Pickles, and Keys, Inspector

Clark "exhibited a bored and indifferent attitude . . . and did not take adequate action to

prevent future physical and mental abuse of" Plaintiff. Id., at 14. Plaintiff alleges more

harassment by administrative confinement staff, including planting "evidence" for a false

disciplinary report. Id. 

Plaintiff alleges that on August 19, 2006, he submitted a grievance to Defendant

Humphries complaining about reprisal. Id., at 15. The response found that Plaintiff's

allegations were not substantiated. Id. 

Plaintiff further alleges that Captain Colone ordered Plaintiff out of his cell on

September 10, 2006, and then threatened Plaintiff about writing grievances. Id., at 15. 

He then sent Plaintiff to Sergeant Hasty and Officer Hall, who then physically abused

Plaintiff as retaliation for filing grievances. Id., at 15-16. Plaintiff alleges that Officer

Paccahioli watched the abuse, but did nothing. Id., at 16. After assaulting Plaintiff,

Defendants Hasty and Hall threatened Plaintiff that if reported what happened, they

would come back again. Id., at 17. They also prevented the nurse from going to

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Plaintiff's cell door during medication rounds to prevent Plaintiff from reporting the

abuse. Id., at 17. 

Plaintiff was finally able to report the abuse the next day, September 11, 2006,

but the nurse who examined him "refused to adequately record [Plaintiff's] complaint or

injuries." Id., at 17. Thereafter, Plaintiff was examined, interviewed, and his injuries

noted by Ms. Melkate, a Mental Health Counselor. Id. 

Plaintiff complains of continued retaliation by unidentified staff. Id., at 18. For

example, Plaintiff complains that he would repeatedly be given empty food trays and

threatened with physical abuse. Id. He also alleged that staff would take away his pen

and grievances forms while he was out of his cell taking showers. Id. 

Plaintiff stated that Defendant Cloud intercepted grievances and failed to deliver

responses. Id., at 18. Inspector Clark interviewed Plaintiff a second time concerning

Plaintiff's allegations of abuse, but Plaintiff states that he still never received any

responses. Id. 

Plaintiff states that he was kept in administrative confinement for about three

months, during which time Officers Ralph and Branch repeated threatened Plaintiff with

abuse. Id., at 19. Sgt. Farmer refused to transfer Plaintiff in August, and Plaintiff

alleges it was not until November, 2006, that Plaintiff was "coerced into making a deal"

to stop his grievance writing in exchange for a transfer. Id. As relief, Plaintiff seeks

monetary damages for his "bodily injury and resulting pain and suffering, mental and

emotional anguish, continuing fear of future abuses by vindictive and sadistic" staff. Id.,

at 19-20. 

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Nearly all of the dates of Plaintiff's allegations are from September 11, 2006, and

earlier. This case was not initiated until September 17, 2010, although Plaintiff signed

the complaint on September 14, 2010. Doc. 1, p. 20. The only claims which Plaintiff

dates after September 11, 2006, are that for about three months before he was

transferred sometime in November, 2006, Officers Ralph and Branch threatened

Plaintiff with further abuses and gave him empty food trays. Those officers are not

Defendants in this case. Then in November, Plaintiff alleges he was coerced into

making a deal to withdraw some grievances in exchange for a transfer. Id., at 19. 

Attached to Plaintiff's complaint is a copy of a grievance Plaintiff submitted on

November 9, 2006, in which he claims he has been in confinement while the

investigation into his allegations of assault by Capt. Colone were continuing, and he

suggests he has not been notified of the outcome. Doc. 1, p. 33. There are no

grievances which would support the claim that Plaintiff was not given food trays or that

his transfer was retaliatory or otherwise violated his constitutional rights.1

 Furthermore,

1

 The Prison Litigation Reform Act mandates that "[n]o 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. § 1997e(a). The

exhaustion requirement of § 1997e(a) is mandatory. Alexander v. Hawk, 159 F.3d

1321, 1324-26 (11th Cir. 1998); see also Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983,

152 L.Ed.2d 12 (2002) (holding that "the PLRA's exhaustion requirement applies to all

inmate suits about prison life, whether they involve general circumstances or particular

episodes, and whether they allege excessive force or some other wrong."). "Requiring

exhaustion allows prison officials an opportunity to resolve disputes concerning the

exercise of their responsibilities before being haled into court." Jones v. Bock, 549 U.S.

199, 204-209, 127 S.Ct. 910, 914, 166 L.Ed.2d 798 (2007). The Court held in Jones

that exhaustion is an affirmative defense, but while a prisoner is not required to plead or

prove exhaustion, a district court may still dismiss a complaint on its own initiative when

it is clear from the face of the complaint that such an affirmative defense is available. 

Okpala v. Drew, 248 F. App'x 72, 73 at *1 (11th Cir. Aug.24, 2007), citing Sanks v.

Willams, No. CV407-070, 2007 WL 3254368, at *2 (S.D.Ga. Nov.2, 2007) (while a

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verbal abuse does not violate the federal constitution.2 The allegations after September

11, 2006, therefore, are insufficient to state a claim upon which relief may be granted. 

Even assuming that Plaintiff has some viable claims in this case,3 it arrives too

late. A federal § 1983 claim is governed by the forum state's residual personal injury

statute of limitations. Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir.

1999), citing Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594

(1989); Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In

Florida, "a plaintiff must commence a § 1983 claim . . . within four years of the allegedly

unconstitutional or otherwise illegal act." Burton, 178 F.3d at 1188, citing Baker v. Gulf

& Western Indus., Inc., 850 F.2d 1480, 1483 (11th Cir.1988). Because Plaintiff's claims

prisoner is not required to demonstrate exhaustion in his complaint, nothing precludes

the sua sponte dismissal of the complaint where the prisoner affirmatively states that he

has not exhausted his administrative remedies); Soler v. Bureau of Prisons, No.

CV303-488, 2007 WL 496472, at *2 (N.D.Fla. Feb.12, 2007) ("Where the pleadings and

the record confirm that a prisoner has violated 42 U.S.C.1997e(a) by failing to exhaust

his remedies before filing suit," the court may raise the issue of exhaustion sua sponte

or dismiss the complaint without service on the defendants.); Colston v. Cramer, No.

06-14842, 2007 WL 1655413, at *2 (E.D.Mich. Jun.07, 2007) (same); Ghosh v.

McClure, No. H-05-4122, 2007 WL 400648, at *5-6 (S.D.Tex. Jan.31, 2007) (same); see

also Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (dicta). 

2

 "Verbal harassment or abuse . . . is not sufficient to state a constitutional

deprivation under 42 U.S.C. § 1983." Collins v. Cundy, 603 F.2d 825, 827 (10th

Cir.1979) (holding that the sheriff's laughing at inmate and threatening to hang him did

not violate the Constitution); accord, Oltarzewski v. Ruggiero, 830 F.2d 136, 139-40 (9th

Cir. 1987); Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985)(holding that “[v]erbal

threats do not constitute a constitutional violation.”); McFadden v. Lucas, 713 F.2d 143,

146 (5th Cir.), cert. denied, 464 U.S. 998 (1983), cited in Shiflet v. Cornell, 933 F. Supp.

1549, 1556 (M.D. Fla. 1996) (finding that “verbal harassment . . . is not cognizable

under § 1983.”); see also Stacey v. Ford, 554 F. Supp. 8, 9 (N.D. Ga., 1982). See

Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979); Emmons v. McLaughlin, 874 F.2d 351,

353 (6th Cir. 1989); Pittsley v. Warish, 927 F.2d 3 (1st Cir. 1990).

3

 Several claims arising before September 11, 2006, are insufficient, but those

need no elaboration considering the statute of limitations bars all claims.

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took place more than four years prior to his filing this case, they are barred by the

statute of limitations and must be dismissed.

The expiration of the statute of limitations warrants § 1915 dismissal. Clark v.

Georgia Pardons and Parole Bd., 915 F.2d 636, 641, n. 2 (11th Cir. 1990). Plaintiff's

statement of facts makes clear that he was aware of the wrongfulness of the actions

alleged at the time they occurred. Thus, these claims are all barred and subject to

dismissal.

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's

complaint, doc. 1, be DISMISSED as barred by the statute of limitations. 

IN CHAMBERS at Tallahassee, Florida, on October 20, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv404-WS/WCS