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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

GORDON VAUGHN,

Plaintiff,

vs. Case No: 5:11cv2/RS/CJK

J. HINES, et al.,

Defendants.

_____________________________________________________________________

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed an amended civil

rights complaint under 42 U.S.C. § 1983. (Doc. 6). Upon review of the amended

complaint, the court concludes that plaintiff has not presented an actionable claim

and that dismissal of this case is warranted.

Since plaintiff is proceeding in forma pauperis, the court must review his

complaint to determine if it 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 (11 Cir. 1997). In determining whether the complaint th

states a claim upon which relief may be granted, the court accepts all the factual

allegations in the complaint as true and evaluates all inferences derived from those

facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d

1480, 1483 (11 Cir. 1994). The complaint may be dismissed if the facts as pleaded th
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do not state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968-69, 1974, 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

under Rule 12(b)(6) when its allegations – on their face – show that an affirmative

defense bars recovery on the claim. Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022

(11 Cir. 2001). th

Plaintiff’s amended complaint names one defendant, Panama City Police

Officer J. Hines. (Doc. 6, pp. 1-2). Plaintiff alleges that in October or November of 1

2010, he was exiting a store (the Grocery Outlet) located in Panama City, Florida. 

Defendant Hines, who plaintiff describes as “the officer on duty,” was standing near

the exit. After plaintiff completed his purchase and neared the exit, he paused and

was about to speak to defendant Hines. Hines directed plaintiff to “keep moving.” 

Plaintiff responded that “this is a free country and plaintiff could stand where he

wanted.” (Id., p. 3). Defendant Hines then “grabbed the plaintiff’s right arm and

began to pull plaintiff out the door.” He also threatened to arrest plaintiff, but did not

follow through on the threat. (Id.). Based on the foregoing, plaintiff asserts an

Eighth Amendment claim as well as state law claims of assault, battery, and violation

of state “rules or regulations.” (Id., p. 4). In addition, although he does not name the

City of Panama City as a defendant, plaintiff asserts in his Statement of Claims that

“the city government failed to properly train Hines.” (Id.). As relief, plantiff seeks

unspecified “emergency, injunctive,declaratoryrelief,” attorney’s fees (even though

plantiff is proceeding pro se), and $10,000.00 in damages. (Id.). 

In order to state a claim under section 1983, a plaintiff must establish two

essential elements:

Plaintiff’s original complaint named Hines as well as the City of Panama City. (Doc. 1).

1

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1. the conduct complained of was committed by a person acting under

color of state law; and

2. this conduct deprived the plaintiff 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 (11 Cir. 2001). th

Assuming to plaintiff’s benefit that defendant Hines was acting under color of

state law at the time of the incident (as opposed to providing off-duty security

services to the privately-owned grocery store), plaintiff’s allegations fail to state a

constitutional violation that is plausible on its face. 

The Eighth Amendment provides that “[e]xcessive bail shall not be required,

nor excessive fines imposed nor cruel and unusual punishments inflicted.” U.S.

Const. amend VIII. The Eighth Amendment’s prohibition against cruel and unusual

punishment applies only to those convicted of crimes. Ingraham v. Wright, 430 U.S.

651, 664, 97 S.Ct. 1408-09, 51 L.Ed.2d 711 (1977); D’Aguanno v. Gallagher, 50 F.3d

877, 879, n. 2 (11 Cir. 1995) (rejecting homeless persons’ claims that county sheriff th

and sheriff’s deputies subjected them to cruel and unusual punishment when they

evicted them from private propertyand destroyed their shelters and stored property,

explaining: “The cruel and unusual punishment clause only protects people who

have been convicted of a crime.”). In this case, plaintiff’s legal theory that the Eighth

Amendment applies to a police officer ejecting a free citizen from a grocery store is

indisputably meritless; therefore, his Eighth Amendment claim should be

dismissed.2

Plaintiff’s Statement of Claims also references that Hines acted without “probable cause.”

2

(Doc. 6, p. 4). Even analyzed under the Fourth Amendment, however, plaintiff’s allegations fail to state

a plausible claim for relief. To assert a Fourth Amendment claim based on the use of excessive force,

the plaintiff must allege (1) that a seizure occurred and (2) that the force used to effect the seizure was

unreasonable. Troupe v. Sarasota Cnty., Fla., 419 F.3d 1160, 1166 (11 Cir. 2005) (citing Evans v.

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Hightower, 117 F.3d 1318, 1320 (11 Cir. 1997)). Not every encounter between a police officer and a

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citizen constitutes a seizure to which Fourth Amendment protection attaches. As the former Fifth

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To the extent plaintiff references an alleged “failure to train” by the City of

Circuit held,

We conclude, therefore, that Supreme Court holdings sculpt out, at least theoretically,

three tiers of police-citizen encounters: communication between police and citizens

involving no coercion or detention and therefore without the compass of the Fourth

Amendment, brief “seizures” that must be supported by reasonable suspicion, and

full-scale arrests that must be supported by probable cause.

United States v. Berry, 670 F.2d 583, 591 (5 Cir. Unit B 1982) (en banc). Here, even assuming to

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plaintiff’s benefit that he was “seized” for Fourth Amendment purposes, his allegations fail to suggest

that Hines’ use of force was unconstitutional.

A violation of the right to be free from excessive force will support a § 1983 action, but “‘[n]ot

every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’”

violates the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443

(1989) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2 Cir. 1973)). Rather, the constitutionality of

nd

an alleged application of force against a plaintiff is judged under a “reasonableness” standard.

Graham, 490 U.S. at 395, 109 S.Ct. 1865 (holding that “all claims that law enforcement officers have

used excessive force . . . in the course of an arrest, investigatory stop, or other ‘seizure’ of a free

citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard”). “[T]he

question is whether the officers' actions [we]re ‘objectively reasonable’ in light of the facts and

circumstances, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. The

Supreme Court has counseled that “[a]n officer's evil intentions will not make a Fourth Amendment

violation out of an objectively reasonable use of force; nor will an officer's good intentions make an

objectively unreasonable use of force constitutional.” Id.

The relevant test requires an evaluation of all “the facts and circumstances confronting” the

officer. Id. at 396-97, 109 S.Ct. at 1871-72. A court must balance “‘the nature and quality of the

intrusion on the individual’s fourth amendment interests’ against the importance of the governmental

interests alleged to justify the intrusion.” Ortega v. Schramm, 922 F.2d 684, 694 (11 Cir. 1991)

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(quoting Graham, 490 U.S. at 396, 109 S.Ct. at 1871). This Circuit evaluates whether an officer’s use

of force is objectively reasonable by considering myriad factors, such as “(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.” Moore v. Gwinnett Cnty., 967 F.2d 1495, 1498 (11 Cir. 1992).

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In the instant case, according to plaintiff’s version of the facts, after plaintiff had checked out

and was approaching the store’s exit, he stopped in front of Officer Hines, considering what he might

say to the Officer; Officer Hines directed plaintiff to keep moving; plaintiff refused, became

antagonistic and remained standing in front of Hines; Hines then grabbed plaintiff’s arm and pulled

him out of the store. Objectively speaking, the amount of force Hines used to move plaintiff was not

unreasonable and certainly not more than de minimis. Nolin v. Isbell, 207 F.3d 1253, 1257 (11 Cir.

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2000) (holding that “the application of de minimis force, without more, will not support a claim for

excessive force in violation of the Fourth Amendment”).

Finally, even viewing plaintiff’s allegations under a Fourteenth Amendment substantive due

process theory, they fail to stat a plausible claim to relief.

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Panama City, such reference does not state a plausible claim for relief. “[T]o impose

§ 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional

rights were violated; (2) that the municipality had a custom or policy that constituted

deliberate indifference to that constitutional right; and (3) that the policy or custom

caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11 Cir. 2004) (citing th

City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). 

Here, because defendant Hines’ conduct did not violate plaintiff’s constitutional

rights, the City of Panama City cannot be held liable under § 1983 on a “failure to

train” claim based on the alleged misconduct. Garczynski v. Bradshaw, 573 F.3d

1158, 1170 (11 Cir. 2009) (holding that if no constitutional violation has occurred, th

the court need not consider whether the municipality's training of its employees

violated plaintiffs' constitutional rights); Rooney v. Watson, 101 F.3d 1378, 1381 (11th

Cir. 1996) (“an inquiry into a governmental entity's custom or policy is relevant only

when a constitutional deprivation has occurred”); see also, e.g., Manseau v. City of

Miramar, 395 Fed. Appx. 692, 646 (11 Cir. 2010) (“Plaintiffs stated no denial of a

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constitutional right. The absence of a constitutional violation by the individual

Defendants makes it unnecessary for us to consider whether the City was subject

to municipal liability for failure to train its employees or because of a custom or

policy.); Troyanos v. Coats, 372 Fed. Appx. 932, 936 (11 Cir. 2010) (concluding that th

because the complaint failed to state a claim of deliberate indifference by jail

officials, the complaint also failed to allege that the sheriff was deliberately

indifferent because he did not properly train, supervise, or discipline his staff; “We

are not required to inquire about [the sheriff’s] customs or policies for treating

mentally ill inmates because the complaint failed to state a claim that jail officials

violated Troyanos's constitutional rights.”). Notwithstanding that fatal flaw,

plaintiff’s amended complaint fails to aver any factual content allowing this court to

draw a reasonable inference that the City of Panama City was connected in any way

to the purported misconduct at issue. Plaintiff’s legal conclusion of § 1983 liability

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by the City is not supported by any factual allegations. See Ashcroft v. Iqbal, --- U.S.

----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (stating that “A pleading that offers

‘labels and conclusions’ or ‘formulaic recitation of the elements of a cause of action

will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’” (quoting Twombly, at 555 and 557 respectively)); see

also, e.g., Nettles, Jr. v. City of Leesburg Police Dep’t, No. 09-14327, 2010 WL

5382914 (11 Cir. Dec. 22, 2010) (affirming dismissal with prejudice of § 1983

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complaint; city police department could not be held liable under § 1983 for failure to

train and supervise police officers, where arrestee’s complaint failed to aver any

factual content allowing the court to draw a reasonable inference that the city was

connected in any way to the purported misconduct at issue). 

Having dismissed all federal claims, the undersigned recommends that the

court, in its discretion pursuant to 28 U.S.C. § 1367(c)(3), decline to exercise

supplemental jurisdiction over plaintiff’s remaining state law claims. See United

Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d

218 (1966); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11 Cir. 2004) (We have

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encouraged district courts to dismiss any remaining state claims when, as here, the

federal claims have been dismissed prior to trial.”). 

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s federal claims be DISMISSED WITH PREJUDICE under 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted.

2. That plaintiff’s state law claims be DISMISSED WITHOUT PREJUDICE. 

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

At Pensacola, Florida this 14th day of March, 2011.

/s/ Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATES MAGISTRATE JUDGE

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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 (11 Cir. 1988). th

Case No: 5:11cv2/RS/CJK