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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JEAN E. JOSEPH,

Plaintiff,

vs. Case No. 4:11cv34-MP/WCS

OFFICER R. GORMAN, 

Defendant.

 /

REPORT AND RECOMMENDATION

Defendant Gorman filed a motion to dismiss, doc. 38, asserting that Plaintiff

failed to exhaust administrative remedies, failed to state a claim, and raising Eleventh

Amendment immunity. Plaintiff, a pro se inmate, was directed to respond to the motion,

and reminded that each document submitted to the Court must also be provided to

opposing counsel and a certificate of service must be attached indicating Plaintiff's

compliance. Doc. 40. 

Plaintiff provided three separate responses to the motion to dismiss. Docs. 41-

43. None of those responses contain certificates of service showing they were provided

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to opposing counsel, docs. 41-43, and none were mailed to counsel for Defendant, doc.

44. They were returned and Plaintiff was provided additional time to respond. Doc. 45.

Plaintiff filed another response on March 1, 2012, but once again, failed to

properly submit a certificate of service demonstrating the document was provided to

opposing counsel. Doc. 46. Additionally, the document is titled as Plaintiff's "motion for

relief on personal injury," and identified as a "briefing motion." Doc. 38.

Notwithstanding these deficiencies, the document was provided to the

Defendant, see doc. 47, and is deemed to be Plaintiff's response in opposition to the

motion to dismiss. There is no prejudice to Defendant in accepting the document and

the motion to dismiss, doc. 38, is ready for a ruling.

Plaintiff's Allegations in the Complaint, doc. 25

Plaintiff alleges that on July 30, 2010, he was taken to the Medical Center at

Lake Butler. Doc. 25. Defendant Gorman, along with Officer Murphy, were transporting

Plaintiff in a van. When they arrived and Plaintiff was exiting the van, Defendant

Gorman directed Plaintiff to "come down backward from the van." Id. Plaintiff reports

that he proceeded to do as ordered, and just as Plaintiff "reached the footstool on the

ground, [Defendant] Gorman kick[ed] the footstool out of [Plaintiff's] way." Id. Plaintiff

alleges that he was in leg shackles and handcuffs at the time, and he fell on the ground

and was injured. He claims violations of the Eighth Amendment, the Equal Protection

Clause, and the Fourth Amendment. Id., at 10.

Exhaustion

Defendant contends that Plaintiff's complaint should be dismissed because

Plaintiff failed to exhaust administrative remedies as required by 42 U.S.C. § 1997e. 

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Doc. 38. Defendant argues that although Plaintiff filed four grievance appeals following

the incident, he failed to exhaust administrative remedies concerning his claim of staff

abuse which Plaintiff alleged occurred on July 30, 2010. Doc. 38, pp. 3-4. Defendant

asserts that Plaintiff's four appeals concerning the July 30th incident alleged negligence. 

Id. Thus, Defendant contends Plaintiff did not exhaust "administrative remedies to

address any allegations of staff abuse that purportedly occurred on July 30, 2010." Id.

In response, Plaintiff contends that the grievances procedures were "futile and

inadequate," doc. 46, p. 2, and that he was entitled to bypass the grievance procedures

because he was also challenging placement in close management and the denial of

medical care, Id., at p. 3, and because Plaintiff was given "the run-around (red tape)" in

the administrative process. Id., at 9. 

Plaintiff's four grievance appeals to the Secretary of the Department of

Corrections were attached to the motion to dismiss.1

 On August 10, 2010, Plaintiff

submitted a grievance appeal to the Secretary alleging Defendant Gorman "failed to

care for [Plaintiff's] well being as a correctional officer." Doc. 38, ex. A (doc. 38, p. 15). 

Plaintiff said Defendant Gorman "let" him "fall out the van" even though Plaintiff was

1

 In Bryant v. Rich, 530 F.3d 1368 (11th Cir.), cert. denied, 129 S.Ct. 733 (2008),

the court stated that factual disputes concerning the exhaustion of administrative

remedies may be decided by the court sitting as fact-finder, "so long as the factual

disputes do not decide the merits and the parties have sufficient opportunity to develop

a record." Bryant, 530 F.3d at 1373-74, 1376. The court found that evidence may be

presented to support or refute a contention that a prisoner has not exhausted the

grievance process because exhaustion is a "matter in abatement and not generally an

adjudication on the merits," thus, it should be raised and treated as a motion to dismiss,

not a summary judgment motion. Id., at 1374-75. When motions to dismiss are based

on issues not enumerated under Rule 12(b), then Rule 43(c) governs "which permits

courts to hear evidence outside of the record on affidavits submitted by the parties." 

Bryant, 530 F.3d at 1377, n.16. 

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fully shackled. Id. Plaintiff said he failed to support Plaintiff when he exited the van and

moved the step box just as Plaintiff was about to step on it. Id. That appeal was found

to be in "non-compliance" with Departmental rules because Plaintiff did not "first submit

[an] appeal at the appropriate level at the institution."2 Doc. 38, ex. B (doc. 38, p. 16). 

Plaintiff's grievance was "returned without action," but Plaintiff was advised that he

could resubmit his grievance at his current location if he was "within the allowable time

frames for processing a grievance." Id. The appeal response was dated August 12,

2010. Id. 

Plaintiff's second grievance appeal to the Secretary was filed on August 19,

2010, and Plaintiff acknowledged his understanding that he must proceed through the

proper channels "in order to be heard," but he stated that he was hurt "in an accident"

and then "locked up and put under investigation." Doc. 38, ex. C (doc. 38, p. 17). He

said he had a grievance about the injury still "standing," number 1008-218-01.3

 Id. 

Plaintiff received a response to the second grievance appeal (log number 10-6-26505)

on August 26, 2010, which advised that the subject matter of the grievance was

"currently being reviewed by the investigative section of the Office of the Inspector

General." Doc. 38, ex. D (doc. 38, p. 18). The response advised Plaintiff that his

grievance would be forwarded to that office to be included in their review. Id. The

2

 He did submit a grievance to the Warden, on August 3, 2010, but he had not yet

received a response. Doc. 1, p. 12. The Warden responded on August 12, 2010. Id.,

p. 25. Plaintiff was told by the Warden that he had not properly submitted an informal

grievance before submitting a formal grievance to the warden.

3

 This was the grievance submitted to the Warden on August 3, 2010. Doc. 1, p.

12. The Warden had replied on August 12, 2010, and it was not still "standing" on

August 19, 2010.

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response concluded with the statement: "As this process was initiated prior to the

receipt of your grievance, your request for action by this office is denied." Id. 

Plaintiff's third grievance was submitted on September 21, 2010, and no box was

checked at the top of the document to indicate whether Plaintiff was directing it to the

warden, the assistant warden, or the Secretary; however Plaintiff used the same DC1-

303 form (request for administrative remedy or appeal). Doc. 38, ex. E (doc. 38, p. 19). 

The form is stamped "Received" by the Department of Corrections Inmate Grievances

and, thus, it is deemed to be a third grievance appeal to the Secretary. Id. Plaintiff

stated he had been submitting grievances against Defendant Gorman "for over one

month now" and said he wanted the institution to take notice "of what had happen [sic]

on the day of July 30, 2010 at the parking lot of the RMC." Id. Plaintiff said he was

"taking the initiative to pursue this complain [sic] because I felt that physical damage

has been done to me, do [sic] to those facts of negligence by the officer." Id. That

grievance appeal was "found to be in non-compliance with" the rules because Plaintiff

presented "the same issue as grievance log number 10-6-26505," which was the

second grievance appeal, and which was under investigation by the Inspector General's

Office. Doc. 38, ex. F (doc. 38, p. 20). That appeal was "returned without action" on

September 22, 2010. Id. 

Plaintiff's fourth grievance appeal was addressed to "Mr. McNeil" and was filed

on November 1, 2010. Doc. 38, ex. G (doc. 38, p. 21). Plaintiff said he was submitting

the grievance appeal as part of "an ongoing grievance against officer Gorman." Doc.

38, ex. G (doc. 38, p. 21). Plaintiff said "numerous complaints have been sent to "

Taylor Correctional Institution where he was housed, but alleged that nothing had "taken

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place." Id. Plaintiff alleged that since the accident which caused him injury "because of

the negligence by the officer," he believed his complaint had been taken lightly because

Plaintiff discovered it was deemed to have "no merit." Id. Plaintiff attached to that

grievance appeal a one-page "emergency grievance" which was unsigned at the

bottom, and not on grievance forms, but which claimed that Officer Gorman "moved the

step box" just as Plaintiff was exiting the van and he fell to the ground "face first." Id., at

22. That grievance was "not accepted as a grievance of an emergency nature" and

Plaintiff was again advised that the subject matter of the grievance was "currently being

reviewed by the investigative section of the Office of the Inspector General." Doc. 38,

ex. H (doc. 38, p. 23). Plaintiff was further informed that a copy of his grievance would

be forwarded to the Inspector General and included in the review and, because that

"process was initiated prior to the receipt of" the grievance, Plaintiff's request for action

by the Bureau of Inmate Grievance Appeals was "denied." Id. 

As additional evidence, Defendant Gorman submitted a "declaration of Rebecca

Padgham" which states that she reviewed the available grievance records which are

"kept" in the Secretary's Central Office. Doc. 38, ex. I (doc. 38, p. 24). She states that

Plaintiff had "not filed any grievance appeals alleging staff abuse occurring on July 30,

2010." Id. The declaration affirmed that Plaintiff submitted the four appeals identified

and discussed above, which staff of the Secretary's office classified as either involving

accident or negligence, and asserted that Plaintiff had "not filed any grievance appeal

claiming abuse by staff on July 30, 2010." Id., at 25 (emphasis in original).

Plaintiff attached several grievances to his response, doc. 46, as evidence of

exhaustion. The grievances are duplicates, in part, of some grievances which were

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submitted with the initial complaint, doc. 1. The grievances attached to the initial

complaint are more legible. One grievance is directed to the warden on August 3,

2010,4 in which Plaintiff claimed Defendant Gorman's negligence caused Plaintiff injury

when he fell to the ground. Doc. 1, p. 12. Plaintiff said that Gorman did not provide any

support to Plaintiff while he was coming down out of the van, but "just let [Plaintiff] fall by

taking the box from under" Plaintiff. Id. The Warden's response, dated August 12,

2010, log # 1008-218-001, found the grievance to be "in non-compliance with"

Departmental rules because Plaintiff did not first submit an informal grievance but,

instead, simply filed a formal grievance appeal to the warden or assistant warden. Doc.

1, p. 23. Plaintiff was advised to submit an informal grievance to Colonel McDonald. Id.

Another grievance was submitted to the assistant warden on August 20, 2010,

and is identified as log # 1008-218-035. Doc. 1, p. 15. Plaintiff began that grievance by

stating, "According to the grievance I filed against officer Gorman for desordely [sic]

conduct or if you put it a better word, negligence, must go to the institutional level in

order to be effective." Id. Plaintiff said, "Regardless of how you put it, this accident has

cost me a great deal." Id. Plaintiff complained about the accident and the fact that he

was in confinement. Id. The response by the warden and assistant warden, dated

August 20, 2010, states that Plaintiff's "request for administrative remedy has been

received in non-compliance." Doc. 1, p. 26. Plaintiff was advised that the issue was

previously addressed in grievance log # 1008-218-001, and the rules do not permit

Plaintiff to appeal a decision already rendered. Id. Plaintiff was again informed that he

4

 Plaintiff dated the formal grievance on August 1, 2010, but the receipt date on

the bottom of the form shows it was submitted on August 3, 2010. Doc. 1, p. 12.

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was to submit an informal grievance, form DC6-236, to Colonel McDonald. Id. 

Plaintiff's request was "returned without action." Id. 

Legal analysis

When the Prison Litigation Reform Act was enacted, Congress mandated 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), quoted in doc. 38, pp. 4-5. The exhaustion requirement of §

1997e(a) is mandatory, Alexander v. Hawk, 159 F.3d 1321, 1324-26 (11th Cir. 1998),

but not jurisdictional, however. Bryant v. Rich, 530 F.3d 1368, 1374 n.10 (11th Cir.),

cert. denied, 129 S.Ct. 733 (2008) (citing Woodford v. Ngo, 548 U.S. 81, 126 S.Ct.

2378, 2392, 165 L.Ed.2d 368 (2006)). The Court may not consider the adequacy or

futility of administrative remedies, but only the availability of such. Higginbottom v.

Carter, 223 F.3d 1259, 1261 (11th Cir. 2000), citing Alexander, 159 F.3d at 1323. Even

where an inmate seeks only monetary damages in a civil rights case, he must complete

the prison administrative process if it could provide some sort of relief on the complaint

although no money could be given administratively. Booth v. Churner, 531 U.S. 956,

121 S. Ct. 1819, 1821, 149 L. Ed. 2d 958 (2001). "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)5

.

5

 The Court further rejected the view of the Sixth Circuit when it concluded that

"nothing in the statute [§ 1997e(a)] imposes a 'name all defendants' requirement."

Jones v. Bock, 549 U.S. at 217-219, 127 S.Ct. at 922-923 (concluding "that exhaustion

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A prisoner must also comply with the process set forth and established by the

grievance procedures. See Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999). In

other words, not only must a prisoner exhaust a claim under § 1997e(a), the "PLRA

exhaustion requirement requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81,

93, 126 S.Ct. 2378, 2387 (2006) (concluding that "proper exhaustion" means complying

with the specific prison grievance requirements, not judicially imposed requirements). 

Even if a grievance is initially denied as untimely, a prisoner must appeal the denial of

the grievance. See Harper v. Jenkin, 179 F.3d 1311 (11th Cir. 1999)(noting Georgia's

inmate grievance procedures allow "the grievance coordinator to waive the time period

for filing a grievance if 'good cause' is shown"); Bryant v. Rich, 530 F.3d at 1373. 

Defendants "bear the burden of proving that the plaintiff has failed to exhaust his

available administrative remedies." Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th

Cir. 2008), relying on Jones v. Bock, 549 U.S. 199, 127 S.Ct. at 910, 921, 166 L.Ed.2d

798 (2007) ("We conclude that failure to exhaust is an affirmative defense under the

PLRA, and that inmates are not required to specially plead or demonstrate exhaustion

in their complaints."); Dixon v. United States, 548 U.S. 1, 8, 126 S.Ct. 2437, 2443, 165

L.Ed.2d 299 (2006) (stating that, as a "general evidentiary rule," the burdens of

production and persuasion are given to the same party); Roberts v. Barreras, 484 F.3d

1236, 1240 (10th Cir. 2007) ("Jones does not spell out the proper burden of proof to use

in evaluating exhaustion claims, but circuits that treated exhaustion as an affirmative

is not per se inadequate simply because an individual later sued was not named in the

grievances."). 

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defense prior to Jones have all put the burden of proof on defendants, to the extent that

they addressed the issue.").

Defendant's argument that the grievance process was not exhausted because

Plaintiff did not grieve "staff abuse" is unpersuasive. The Department's rules require an

inmate to sign and date the grievance form, and to state the facts of his grievance,

which must address only one issue or complaint. FLA. ADMIN. CODE R. 33-103.006(2);

and Rule 33-103.005(2). The grievance process is to "provide an inmate with a channel

for the administrative settlement of a grievance," FLA. ADMIN. CODE R. 33-103.001(1),

and it is not designed to provide prior notice of a lawsuit. Neither Department rules nor

the PLRA requires a prisoner to alert prison officials to a particular legal cause of action. 

See Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir.2000) (concluding that "while §

1997e(a) requires that a prisoner provide as much relevant information as he

reasonably can in the administrative grievance process, it does not require that he do

more than that."), cited in Parzyck v. Prison Health Services, Inc. 627 F.3d 1215, 1219

(11th Cir. 2010). The purpose of § 1997e(a)'s exhaustion requirement is "to alert prison

officials to a problem, not to provide personal notice to a particular official that he may

be sued" or identify the claim that will be raised in a lawsuit. Jones, 549 U.S. at 219,

127 S.Ct. 910 (quoting Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004)). 

Here, Plaintiff submitted grievances at the institution level and grievance appeals

that reached the Warden and the Secretary's Office. Plaintiff alleged that he was

injured on July 30, 2010, because Defendant Gorman removed the step box, causing

Plaintiff, who was fully shackled, to fall. The Department was put on notice of the

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circumstances of Plaintiff's injury and was provided with a fair opportunity to investigate

the incident.6 This basis for dismissal of the complaint is without merit. 

Defendant also claims that because Plaintiff failed to comply with the grievances

procedures, his complaint must be dismissed. Id. Plaintiff's formal grievance, dated

August 3, 2010, doc. 1, p. 12, was in non-compliance with the rules. Plaintiff had to first

submit an informal grievance to Colonel McDonald. Plaintiff's first grievance appeal to

the Secretary was likewise not correctly pursued because Plaintiff did not show that he

first submitted the grievance at the institutional level.7

 Plaintiff's August 20, 2010, formal

grievance was ineffective because it was duplicative and Plaintiff could not appeal a

decision already rendered. Those grievances were technically deficient and do not

demonstrate exhaustion. 

The crucial grievance in this case, however, is the second grievance appeal to

the Secretary (log number 10-6-26505), which was "denied." The response advised

that the subject matter of the grievance was "currently being reviewed by the

investigative section of the Office of the Inspector General." Doc. 38, ex. D (doc. 38, p.

18). Plaintiff was told that his grievance would be forwarded to the Inspector General's

office to be included in their review of the matter. A response that denies a grievance

appeal because the matter is already under investigation, as opposed to returning it

6

 Defendant's use of the phrase "physical abuse" comes from Plaintiff's language

in the complaint that he "suffered physical abuse and mental [unintelligible] and

anguish." Doc. 25, p. 9. That is deemed to be Plaintiff's legal theory for this case, but

the factual basis for the complaint is Defendant's act of removing the step which caused

Plaintiff to fall.

7

 He did submit a grievance to the Warden, but he failed to first submit an

informal grievance.

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without action or finding it to be in non-compliance, must be considered exhaustion of

administrative remedies. At that point, there was nothing further for Plaintiff to do. That

conclusion is further supported by the response Plaintiff received to his third grievance

appeal. That appeal was again "found to be in non-compliance" because Plaintiff had

already presented the "same issue" in grievance log number 10-6-26505. Redundant or

duplicative grievances are not permitted. FLA. ADMIN. CODE R. 33-103.005(1)(c). 

Plaintiff had no further avenue of relief available, and no additional grievances could be

filed. Because Plaintiff exhausted the grievance process, the motion to dismiss as to

the exhaustion argument must be denied.

Failure to State a Claim

Defendant also argues that Plaintiff's Eighth Amendment claim should be

dismissed because it fails "to raise a right to relief above the speculative level as

required." Doc. 38, p. 11. Defendant contends that "Plaintiff has not alleged any facts

that Officer Gorman intentionally or maliciously kicked the foot stool" or intended to

harm Plaintiff. Id. 

The issue on whether a complaint should be dismissed pursuant to Fed.R.Civ.P.

12(b)(6) for failing to state a claim upon which relief can be granted is whether the

plaintiff has alleged enough plausible facts to support the claim stated. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (retiring the

standard from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129

S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009), quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955.8 "A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged." Iqbal, 129 S.Ct. at 1949, citing Twombly, 550 at 556; see also

Speaker v. U.S. Dept. of Health, 623 F.3d 1371, 1380 (11th Cir. 2010). The pleading

standard is not heightened, but flexible, in line with Rule 8's command to simply give fair

notice to the defendant of the plaintiff's claim and the grounds upon which it rests. 

Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) ("Rule

8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions."). 

A complaint does not need detailed factual allegations to survive a motion to dismiss,

but it must provide the grounds for a plaintiff's entitlement to relief beyond mere "labels

and conclusions, and a formulaic recitation of the elements of a cause of action . . . ." 

Twombly, 127 S.Ct. at 1964-65. Moreover, pro se complaints are held to less stringent

standards than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967

(11th Cir. 1986), citing Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 596, 30

L.Ed.2d 652 (1972).

Plaintiff has not made conclusory allegations, but alleges that Defendant Gorman

ordered Plaintiff, while fully shackled, "to come down backward from the van." Doc. 25,

p. 9. He alleges that just before he reached the foot stool on the ground, Defendant

Gorman kicked the foot stool out away. Id. Those factual allegations are sufficient to

suggest Defendant's action was intentional and give Defendant notice of the basis for

8

 The complaint's allegations must be accepted as true when ruling on a motion

to dismiss, Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992), cert.

denied, 113 S. Ct. 1586 (1993), and dismissal is not permissible because of "a judge's

disbelief of a complaint's factual allegations." Twombly, 127 S.Ct. at 1965, quoting

Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). 

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the claim. The facts are more than a legal conclusion or a "formulaic recitation of the

elements of a cause of action . . . ." Twombly, 127 S.Ct. at 1964-65. This states a

violation of the Eighth Amendment. Davis v. Locke, 936 F.2d 1208, 1212-1213 (11th

Cir. 1991) (Eighth Amendment violated when defendants pulled a shackled prisoner

from a dog cage on a truck, causing him to fall to the ground on his head). A court

must accept the factual allegations of the complaint as true, Shotz v. American Airlines,

Inc., 420 F.3d 1332, 1334-35 (11th Cir. 2005), and dismissal is not permissible because

of "a judge's disbelief of a complaint's factual allegations." Twombly, 127 S.Ct. at 1965,

quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338

(1989). The motion to dismiss the Eighth Amendment claim should be denied.

 Defendant also argues that Plaintiff's equal protection and Fourth Amendment

claims are insufficient and should be dismissed. Doc. 38, pp. 10-11. Defendant is

correct. Plaintiff's equal protection claim fails because he does not demonstrate that

"(1) 'he is similarly situated with other prisoners who received' more favorable treatment;

and (2) his discriminatory treatment was based on some constitutionally protected

interest such as race." Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001), quoting

Damiano v. Fla. Parole & Prob. Comm'n, 785 F.2d 929, 932-33 (11th Cir. 1986). 

Plaintiff has not shown that he was singled out for intentional harm because of his race,

age, sex, or any other constitutionally protected interest. Similarly, Plaintiff has not

alleged any facts which provide a basis for a Fourth Amendment claim. Defendant's

motion to dismiss Plaintiff's equal protection and Fourth Amendment claims should also

be granted. 

Eleventh Amendment Immunity

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Defendant raises the Eleventh Amendment as a defense to this action, assuming

that Plaintiff sues the Defendant in both his official and individual capacities. It is well

established that the State of Florida, its agencies, and its officers sued in their official

capacity are immune from suit in this Court by force of the Eleventh Amendment. Carr

v. City of Florence, Alabama, 916 F.2d 1521, 1524 (11th Cir. 1990); Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 58, 116 S. Ct. 1114, 1124, 134 L. Ed. 2d 252 (1996). In

enacting § 1983, Congress did not abrogate a state's immunity. Quern v. Jordan, 440

U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 94

S. Ct. 1347, 39 L. Ed. 2d 662 (1974). Neither has Florida waived its Eleventh

Amendment sovereign immunity and consented to suit in federal court under § 1983. 

Gamble, 779 F.2d at 1520. Finally, this case does not fall under the exception of Ex

Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), as Plaintiff seeks

monetary relief for damages only and there is no basis for prospective relief concerning

a state policy. Sandoval v. Hagan, 197 F.3d 484, 492 (11th Cir. 1999), citing Summit

Medical Assoc. v. Pryor, 180 F.3d 1326, 1336-38 (11th Cir. 1999). The Eleventh

Amendment bars Plaintiff's claim against the Defendant in his official capacity, and the

motion to dismiss should be granted as to this aspect.

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Conclusion

Accordingly, it is RECOMMENDED that Defendant's motion to dismiss, doc. 38,

be GRANTED in part and DENIED in part. Plaintiff's equal protection and Fourth

Amendment claims should be DISMISSED for failure to state a claim upon which relief

may be granted, the claim against Defendant in his official capacity should be

DISMISSED due to the Eleventh Amendment, but otherwise, the motion should be

DENIED. It is further RECOMMENDED that this case be REMANDED to the me for

further proceedings.

IN CHAMBERS at Tallahassee, Florida, on March 12, 2012.

 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.

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