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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DARRELL A BONNER,

Plaintiff,

vs. Case No. 3:11cv5/MCR/CJK

MIKE HALL, 

Defendants.

REPORT AND RECOMMENDATION

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

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

(Doc. 13), and plaintiff has paid the initial partial filing fee (Doc. 14). The court has

reviewed the complaint and concludes that this case should be dismissed because

plaintiff has not stated and cannot state a plausible § 1983 claim against the

defendants.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a prisoner confined at the Escambia County Jail. (Doc. 1). 

Plaintiff’s complaint names one defendant: Nurse Mike Hall. Plaintiff claims

defendant Hall deprived him of his constitutionally protected rights when he asked

the plaintiff to show the defendant his penis and following that request, defendant

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began to lick his lips. (Doc. 1, p. 5). Plaintiff makes no request for relief in his

complaint. (Doc. 1, p. 6). 

DISCUSSION

Plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915. (Doc. 13). 

Section 1915 requires the court to dismiss this case if satisfied 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, 92 S. Ct. 594, 30 L. Ed. 2d 652 (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, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (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 theirface, 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.

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Bock, 549 U.S. 199, 215, 127 S. Ct. 910, 920-21, 166 L. Ed. 2d 798 (2007)

(reiterating that principle).

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 (11th

Cir. 2001).

At a minimum, all claims challenging conditions of confinement must

demonstrate an infliction of pain “without any penological purpose” or an

“unquestioned and serious deprivation of basic human needs” such as medical care,

exercise, food, warmth, clothing, shelter, or safety. Rhodes v. Chapman, 452 U.S.

337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); see also Hamm v. DeKalb

County, 774 F.2d 1567, 1571-72 (11th Cir. 1985), cert. denied, 475 U.S. 1096, 106

S.Ct. 1492, 89 L.Ed.2d 894 (1986). Furthermore, “conditions that cannot be said to

be cruel and unusual under contemporary standards are not unconstitutional.” Id. 

The Supreme Court has developed a two-part analysis governing Eighth

Amendment challenges to prison conditions. Chandler v. Crosby, 379 F.3d 1278,

1289 (11th Cir. 2004). 

First, under the “objective component,” a prisoner must prove that the

condition he complains of is sufficiently serious to violate the Eighth

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Amendment. Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 999,

117 L.Ed.2d 156 (1992). The challenged condition must be “extreme.” 

Id. at 9, 112 S.Ct. at 1000. While an inmate “need not await a tragic

event” before seeking relief, Helling v. McKinney, 509 U.S. 25, 33, 113

S.Ct. 2475, 2481, 125 L.Ed.2d 22 (1993), he must at the very least show

that a condition of his confinement “pose[s] an unreasonable risk of

serious damage to his future health” or safety, id. at 35, 113 S.Ct. at

2481. 

Chandler, 379 F.3d at 1289-90. 

The second part of the two-part analysis is the “subjective component:”

[T]he prisoner must show that the defendant prison officials

“acted with a sufficiently culpable state of mind” with regard to the

condition at issue. Hudson, 503 U.S. at 8, 112 S.Ct. at 999 (quotation

marks and citation omitted). The proper standard is that of deliberate

indifference. Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 2327,

115 L.Ed.2d 271 (1991). Negligence does not suffice to satisfy this

standard, id. at 305, 111 S.Ct. at 2328, but a prisoner need not show that

the prison official acted with “the very purpose of causing harm or with

knowledge that harm[would] result,” Farmer v. Brennan, 511 U.S. 825,

835, 114 S.Ct. 1970, 1978, 128 L.Ed.2d 811 (1994). In defining the

deliberate indifference standard, the Farmer Court stated: [A] prison

official cannot be found liable under the Eighth Amendment for denying

an inmate humane conditions of confinement unless the official knows

of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also

draw the inference. Id. at 837, 114 S.Ct. at 1979. 

Chandler, 379 F.3d at 1289-90 (emphasis added).

The Eleventh Circuit, joining other circuits, has recognized that severe or

repetitive sexual abuse of a prisoner by a prison official can violate the Eighth

Amendment. Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006); see also

Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir. 1999) (same); Freitas

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v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997); Boddie v. Schnieder, 105 F.3d 857,

860-61 (2d Cir. 1997). “[S]exual abuse of a prisoner by a corrections officer has no

legitimate penological purpose, and is simply not part of the penalty that criminal

offenders pay for their offenses against society.” Boddie, 105 F.3d at 861 (citation

and quotation omitted). However, under Eleventh Circuit precedent about the nature

of actionable injuries under the Eighth Amendment, an injury can be “objectively,

sufficiently serious” only if there is more than de minimis injury. See Johnson v.

Breeden, 280 F.3d 1308, 1321 (11th Cir. 2002). 

On the facts alleged in the complaint, plaintiff cannot meet this standard. The

allegation that defendant asked to see plaintiff’s penis, followed by the defendant

licking his lips, does not indicate anything more than a de minimis injury. See, e.g.,

Boxer X, 437 F.3d at 1111 (holding that a female prison guard’s alleged solicitation

of a male prisoner’s manual masturbation, even under the threat of reprisal, did not

present more than de minimis injury, and therefore did not give rise to a claim under

the Eighth Amendment); see also Sharpe v. Costello, No. 1:06cv1493, 2007 WL

1098964, at *4 (M.D. Pa. Apr. 11, 2007) (holding that guard’s failed attempt to

fondle prisoner and subsequent, isolated instances of verbal harassment did not rise

to the level of a constitutional violation); Jackson v. Madery, 158 F. App’x 656,

661-62 (6th Cir. 2005) (holding that allegation of rubbing and grabbing of prisoner’s

buttocks in a degrading manner did not amount to an Eighth Amendment violation);

Joseph v. United States Federal Bureau of Prisons, 232 F.3d 901, at *1-2 (10th Cir.

2000) (table opinion)(holding no Eighth Amendment violation stated where plaintiff

alleged prison official “touched him several times in a suggestive manner and

exposed her breasts to him”); Boddie, 105 F.3d at 861 (holding that a few incidents

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involving verbal harassment, touching, and pressing without consent are not

sufficiently serious to establish Eighth Amendment violation); Young v. Poff, No.

04-CV-320, 2006 WL 1455482, at *4 (W.D. N.Y. May 22, 2006) (holding that a

single groping incident did not amount to an Eighth Amendment violation); Calhoun

v. Vicari, No. 05-4167, 2005 WL 2372870, at *1, *5 (D. N.J. Sept. 26, 2005) (holding

thatsexual gestures, jokes, touching, and slapping on the buttocks were insufficiently

serious to state an Eighth Amendment claim); Williams v. Anderson, No. 03-3254,

2004 WL 2282927, at *1, *4 (D. Kan. Sept. 7, 2004) (finding no Eighth Amendment

violation where prison guard grabbed plaintiff’s buttocks, exposed his penis to

plaintiff, and made crude sexual remarks); Jones v. Culinary ManagerII, 30 F. Supp.

2d 491, 493,497-98 (E.D. Pa. 1998) (holding that allegation that a guard pinned

plaintiff to box, ground his pelvis against plaintiff’s buttocks, and threatened sex was

not sufficiently serious to be an Eighth Amendment violation). Accordingly,

plaintiff’s claim against defendant Hall should be dismissed. 

“Ordinarily, a party must be given at least one opportunity to amend before the

district court dismisses the complaint.” Corsello v. Lincare, Inc., 428 F.3d 1008,

1014 (11th Cir. 2005). However, “[a] district court need not . . . allow an amendment

(1) where there has been undue delay, bad faith, dilatory motive, or repeated failure

to cure deficiencies by amendments previously allowed; (2) where allowing

amendment would cause undue prejudice to the opposing party; or (3) where

amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.

2001). Amendment would be futile in this instance, because the facts as alleged in

the complaint, viewed in a light most favorable to the plaintiff, could not be stated in

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any fashion so as to show a constitutional violation; therefore, the court may dismiss

this case without providing opportunity for amendment.

Accordingly, it is respectfully RECOMMENDED:

1. That this action 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. 

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

At Pensacola, Florida this 1st day of October, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) 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 (11th Cir. 1988).

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