Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

KARONN L. SKINNER,

Plaintiff,

v. CASE NO. 5:11-cv-36-RS-GRJ

WARDEN WHITEHURST, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, an inmate presently incarcerated in the custody of the Florida

Department of Corrections (“FDOC”) at North West Florida Reception Center in

Chipley, Florida, is proceeding pro se pursuant to an Second Amended Complaint,

which he filed on the Court’s civil rights complaint form pursuant to 42 U.S.C. § 1983 for

use by prisoners. (Doc. 8.) For the reasons discussed below, it is RECOMMENDED 1

Plaintiff’s Second Amended Complaint be DISMISSED pursuant to 28 U.S.C.

§ 1915(e)(2) for failure to state a claim upon which relief can be granted.

I. BACKGROUND AND FACTS

In the Second Amended Complaint Plaintiff names as defendants Warden

Whitehurst, Assistant Warden Kelly, Classification Supervisor Carrol, and Classification

Officer Merrill, all of whom are employed by the FDOC at North West Florida Reception

Center. The Second Amended Complaint is concerned with the suspension of

Plaintiff filed a First Amended Complaint (Doc. 5), which contained an “Amended” notation

1

without any indication it is the First Amended Complaint. The Second Amended Complaint contains a

similar “Amended” designation without any designation that it is the Second Amended Complaint. (Doc.

8.) For ease of reference the Court will refer to Doc. 8 as the Second Amended Complaint to distinguish it

from Doc. 5.

Case 5:11-cv-00036-RS-GRJ Document 9 Filed 10/03/11 Page 1 of 6
Page 2 of 6

Plaintiff’s visitation rights and what he considers to be the erroneous denial of his gain

time for several months in 2010. Plaintiff’s visitation rights were suspended on October

5, 2009. Plaintiff then filed several informal and formal grievances in July, August and

September of 2010 asking for the restoration of his visitation rights and questioning why

he was not awarded gain time for certain of those months. 

After Plaintiff submitted one of the grievances, he allegedly was told by his

classification officer, Defendant Merrill, that Merrill would make Plaintiff’s life a “living

hell.” (Doc. 8 at 9.) Several days later, according to Plaintiff, Merrill filed a disciplinary

report against Plaintiff in reprisal for Plaintiff’s grieving the issues of his gain time and

his visitation rights. This and other false disciplinary reports were then used later

against Plaintiff to further deny him gain time based on the lack of good behavior

reflected in the allegedly false disciplinary reports. Plaintiff alleges his federal

constitutional rights were violated in connection with these events and requests

compensatory and punitive damages for his mental anguish and transfer to another

institution.

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915(e)(2), “notwithstanding any filing fee, or any

portion thereof, that may have been paid, the court shall dismiss the case at any time if

the court determines that . . . the action . . . fails to state a claim upon which relief may

be granted.” 

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that an

act or omission committed by a person acting under color of state law deprived him of a

right, privilege, or immunity secured by the Constitution or laws of the United States. 

Case No: 5:11-cv-36-RS-GRJ

Case 5:11-cv-00036-RS-GRJ Document 9 Filed 10/03/11 Page 2 of 6
Page 3 of 6

Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot

satisfy these requirements, or fails to provide factual allegations in support of the

claims, then the complaint is subject to dismissal. See Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007) (noting that “[f]actual allegations must be enough to raise a

right to relief above the speculative level,” and complaint “must contain something more

. . . than . . . a statement of facts that merely creates a suspicion [of] a legally

cognizable right of action”); Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951-53

(2009) (Twombly “expounded the pleading standard for all civil actions,” and conclusory

allegations that “amount to nothing more than a formulaic recitation of the elements of a

constitutional . . . claim” are “not entitled to be assumed true,” and, to escape dismissal,

the complaint must allege facts sufficient to move claims “across the line from

conceivable to plausible.”). 

A pro se litigant's allegations are entitled to the benefit of liberal construction.

Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a court does not have “license .

. . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an

action.” GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th

Cir.1998) (overruled on other grounds by Iqbal).

III. DISCUSSION

In his Second Amended Complaint, Plaintiff includes four counts, which he refers

to as negligence, deliberate indifference, abuse of authority through systematic

corruption and due process of using grievance procedures. A fair reading of the

Second Amended Complaint reflects, however, the gist of Plaintiff’s claim relates to a

series of purportedly false disciplinary reports filed against him by his classification

Case No: 5:11-cv-36-RS-GRJ

Case 5:11-cv-00036-RS-GRJ Document 9 Filed 10/03/11 Page 3 of 6
Page 4 of 6

officer, Defendant J. Merrill. Plaintiff asserts his classification officer filed these false

reports in response to Plaintiff’s filing of formal and informal grievances regarding his

gain time and his visitation rights. Accordingly, applying a liberal construction of the

Second Amended Complaint the Court will construe Plaintiff’s claim as a Fourteenth

Amendment due process claim.

With regard to the falsified disciplinary reports Plaintiff alleges were filed by his

classification officer, federal courts do not operate as appellate courts for prison

disciplinary actions. “[A]n inmate cannot state a claim of retaliation for a disciplinary

charge involving a prison rule infraction when the inmate was found guilty of the actual

behavior underlying that charge after being afforded adequate due process.” O’Bryant

v. Finch, 637 F.2d 1207, 1215 (11 Cir. 2011). The only claims viable in this Court th

concerning a disciplinary report are claims asserting procedural violations, such as the

denial of witnesses or evidence or the failure by the prison to give the inmate advance,

written notice of the disciplinary charge, or an impartial hearing board. Wolff v.

McDonnell, 418 U.S. 539, 563-67 (1974); Bass v. Perrin, 170 F.3d 1312, 1318 (11th

Cir. 1999), citing Young v. Jones, 37 F.3d 1457 (11th Cir. 1994). The degree of proof

required at a prison disciplinary hearing is significantly lower than that required in a

criminal prosecution, and a decision need only be supported by “some evidence.” See

Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 455-56

(1985)(federal courts will not re-weigh the evidence, assess the credibility of the

witnesses, or otherwise make a de novo review of the proceedings); see also Young,

supra at 1460 (federal courts do not conduct de novo review of disciplinary team’s fact

finding).

Case No: 5:11-cv-36-RS-GRJ

Case 5:11-cv-00036-RS-GRJ Document 9 Filed 10/03/11 Page 4 of 6
Page 5 of 6

Plaintiff alleges Defendant Merrill made comments to Plaintiff suggesting Merrill,

(Plaintiff’s classification officer), would file false disciplinary reports against Plaintiff in

reprisal for Plaintiff’s filing of grievances. Plaintiff does not include any allegations

related to the disciplinary process conducted as a result of the disciplinary report(s)

Merrill wrote in reprisal against Plaintiff. Nor does Plaintiff allege any procedural

defects in that disciplinary process. As such, there are no facts alleged, even liberally

construed, supporting a claim that Plaintiff’s due process rights under the Fourteenth

Amendment were violated. Accordingly, Plainitff’s Second Amended Complaint fails to

state a claim and should be dismissed pursuant to 28 U.S.C. § 1915(e)(2).

Plaintiff also is not entitled to the relief requested in the Second Amended

Complaint. Prisoners have no constitutional right to remain in, or be transferred to, a

particular institution. Meachum v. Fano, 427 U.S. 215, 224-25 (1976)(“Neither, in our

view, does the Due Process Clause in and of itself protect a duly convicted prisoner

against transfer from one institution to another within the state prison system.”);

Montayne v. Haymes, 427 U.S. 236, 242-43 (1976)(Due Process Clause did not protect

prisoner from transfer by prison officials). In Florida, the FDOC has the discretion to

transfer inmates from one institution to another “as circumstances may require.” FLA.

STAT. ANN. § 944.17 (7). The Court therefor cannot grant Plaintiff the relief requested

because the decision to transfer a prisoner from one institution to another is a decision

within the discretion of the FDOC. 

Plaintiff also seeks compensatory and punitive damages for mental anguish.

Plaintiff, however, has not alleged any particular physical injuries suffered as a result of

the Defendants’ actions. The Prison Litigation Reform Act provides that “[n]o Federal

Case No: 5:11-cv-36-RS-GRJ

Case 5:11-cv-00036-RS-GRJ Document 9 Filed 10/03/11 Page 5 of 6
Page 6 of 6

civil action may be brought by a prisoner confined in a jail, prison, or other correctional

facility, for mental or emotional injury suffered while in custody without a prior showing

of physical injury.” 42 U.S.C. § 1997e(e). A plaintiff may, however, recover nominal

damages in the absence of a physical injury in the limited circumstance where the

prisoner successfully can establish a violation of a fundamental constitutional right. 

Hughes v. Lott, 350 F.3d 1157, 1162 (11 Cir. 2003). As discussed above Plaintiff has

th

not established a violation of any of his constitutional rights and, accordingly, Plaintiff

cannot recover nominal damages for any of the clams asserted in the Second

Amended Complaint.

IV. RECOMMENDATION

Based on the foregoing, it is respectfully RECOMMENDED that Plaintiff’s Second

Amended Complaint should be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) for failure

to state a claim upon which relief can be granted.

IN CHAMBERS in Gainesville, Florida this 3 day of October, 2011. rd

s/Gary R. Jones 

GARY R. JONES

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: 5:11-cv-36-RS-GRJ

Case 5:11-cv-00036-RS-GRJ Document 9 Filed 10/03/11 Page 6 of 6