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

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ANTHONY MARKIECE JACKSON,

Plaintiff,

vs. Case No. 3:11cv83/MCR/CJK

WALTER MCNEIL, et al., 

Defendants.

REPORT AND RECOMMENDATION

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

rights complaint pursuant to 42 U.S.C. § 1983. (Doc. 13). Upon review of the

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

claim, and that the complaint should be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, Anthony Markiece Jackson, is currently an inmate in the Orange

County Jail. He was confined at Santa Rosa Correctional Institution (“Santa Rosa

CI”) at the time of the events giving rise to his complaint. The amended complaint

names three defendants: Secretary of the Florida Department of Corrections Walter

McNeil, Regional Director of the Florida Department of Corrections Timothy

Cannon, and Santa Rosa CI Warden R. Tifft. (Doc. 13, p. 2). Plaintiff claims his

First, Eighth, and Fourteenth Amendment rights were violated in retaliation for the

plaintiff filing over 620 grievances within 19 months. (Doc. 13, p. 5). Specifically,

plaintiff claims he was “slapped in [his] face; starved until the point that [he] lost 38

pounds; punched to the ground; sprayed with chemicals that burned for 6 full days;
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stripped down to only a pair of boxers 3 times, each time lasting 3 days, during those

9 days [he] had no mail, no soap, no tissue, no shoes, no bed, no sheet, no clothes, no

outside recreation, nothing!!! And it was 28 [degrees] outside!!” (Doc. 13, p. 6). 

Plaintiff claims that defendants Secretary McNeil, Regional DirectorCannon,Warden

Tifft, and Grievance Coordinator Raymond Burch ignored plaintiff’s grievances. 

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(Doc. 13, p. 7). As relief, plaintiff seeks “significant monetary damages, and

significant declaratory relief. [Plaintiff] [asks] for 4% of [Florida Department of

Corrections’s] total net worth, from each defendant.” (Doc. 13, p. 8). 

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the court may dismiss the

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. See Haines v. Kerner, 404 U.S. 519, 

520-21 (1972). Dismissals for failure to state a claim are governed by the same

standard as FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). See Mitchell v. Farcass,

112 F.3d 1483, 1485 (11th Cir. 1997). In determining whether the complaint states

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

the complaint astrue and evaluates all reasonable inferences derived from those facts

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

1480, 1483 (11th Cir. 1994). The complaint may be dismissed if the facts as pleaded

 The plaintiff in his original complaint listed twenty-nine defendants. (Doc. 1). In the court’s 1

amend order, the undersigned posited that many of the listed defendants would not be liable under

a respondeat superior theory of liability. (Doc. 12). In his amended complaint, plaintiff failed to

heed the court’s advice and instead removed the operational level defendants and listed only

SecretaryMcNeil, Regional Director Cannon, and Warden Tifft. (Doc. 13, p. 2). He does, however,

mention Grievance Coordinator Burch in the body of his complaint. 

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do not state a claim for relief that is plausible on its face. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (retiring the negatively-glossed “no set of facts”

language previously used to describe the motion to dismiss standard and dismissing

plaintiffs’ case for failure to state a claim, because plaintiffs had “not nudged their

claims across the line from conceivable to plausible”). “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.”

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).

Under FEDERAL RULE OF CIVIL PROCEDURE 8(a)(2), a pleading must contain

a “short and plain statement of the claimshowing that the pleader is entitled to relief.”

As the Supreme Court reiterated in Iqbal, 129 S. Ct. at 1949, although RULE 8 does

not require detailed factual allegations, the rule does demand “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” The mere possibility

that the defendant acted unlawfully is insufficient to survive dismissal for failure to

state a claim. See id. Rather, the complaint must include “[f]actual allegations . . .

[sufficient] to raise a right to relief above the speculative level,” that is, “across the

line from conceivable to plausible . . . .” See Twombly, 550 U.S. at 555, 570. 

A complaint is also subject to dismissal for failure to state a claim when the

allegations—on their face—show that an affirmative defense bars recovery on the

claim. See Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022 (11th Cir. 2001); see

also Jones v. Bock, 549 U.S. 199, 215 (2007)(reiterating that principle and providing,

as an example, that if a complaint’s allegations show that relief is barred by the

applicable statute of limitations, the complaint is subject to dismissal for failure to

state a claim).

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Appointment of Counsel 

As a threshold matter, in plaintiff’s amended complaint he asks the court to

appoint a lawyer to assist him. (Doc. 13, p. 7). In support of this request, plaintiff

notes that he is a mental health patient and that his complaints are being “overlooked”

because he “failed to write them in a certain way.” (Doc. 13, p. 7). 

“Prisoners raising civil rights claims . . . have no absolute constitutional right

to counsel.” Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993). A district court has

discretionary authority, under 28 U.S.C. § 1915(e)(1), to appoint counsel for indigent

litigants in civil cases. See Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999); 

Killian v. Holt, 166 F.3d 1156 (11th Cir. 1999). “Appointment of counsel in civil

cases is . . . a privilege justified only by exceptional circumstances, such as the

presence of facts and legal issues [which] are so novel or complex as to require the

assistance of a trained practitioner.” Kilgo, 983 F.2d at 193 (quotations and citation

omitted) (brackets in original); see also Holt v. Ford, 862 F.2d 850 (11th Cir. 1989). 

An additional consideration is “whether the pro se litigant needs help in presenting

the essential merits of his or her position to the court.” Kilgo, 983 F.2d at 193. The

Fifth Circuit summarized the limited circumstances meriting the appointment of

counsel in a civil case:

A district court is not required to appoint counsel unless the case

presents “exceptional circumstances.” Branch v. Cole, 686 F.2d 264,

266 (5th Cir. 1982). “The existence of such circumstances will turn on

the quality of two basic factors—the type and complexity of the case,

and the abilities of the individual bringing it.” Id. at 266 (footnote

omitted).

Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). 

Upon reviewing the pleadings in this action, the court finds there are no

exceptional circumstances to merit the appointment of counsel. The legal issues in

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this case have been settled in previous cases, and the facts do not appear to be

complex. Moreover, the pleadings filed thus far by plaintiff suggest he has an ability

to communicate his allegations and litigate his case as well as that of the average pro

se litigant. Appointment of counsel in this matter is therefore inappropriate. 

Vicarious Liability and § 1983

Turning to the substance of the amended complaint, plaintiff seeks to hold

Secretary McNeil, Regional Director Cannon, and Warden Tifft liable for the alleged

wrongdoings of their subordinates based on their right to control the conduct of

prison employees and their potential awareness of any wrongdoings through the

grievance process. “It is well established in this Circuit that supervisory officials are

not liable under § 1983 for the unconstitutional acts of their subordinates on the basis

of respondeat superior or vicarious liability.” Hartley v. Parnell, 193 F.3d 1263,

1269 (11th Cir. 1999) (internal quotation marks and citation omitted); Polk Cnty. v.

Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981); Cottone v. Jenne, 326

F.3d 1352, 1360 (11th Cir. 2003). “[T]he mere right to control without any control

or direction having been exercised and without any failure to supervise is not enough

to support § 1983 liability.” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694

n. 58, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (citing Rizzo v. Goode, 423 U.S. 362,

370-371, 96 S. Ct. 598, 56 L. Ed. 2d 561 (1976)). “Supervisory liability occurs either

when the supervisor personally participates in the alleged constitutional violation or

when there is a causal connection between the actions of the supervising official and

the alleged constitutional deprivation.” Brown v. Crawford, 906 F.2d 667, 671 (11th

Cir. 1990) (citations omitted). The Eleventh Circuit in Douglas v. Yates, 535 F.3d

1316 (11th Cir. 2008) set forth the limited circumstances in which a causal

connection can be shown sufficient to render a supervisor liable on a § 1983 claim. 

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The causal connection can be established:

when a history of widespread abuse puts the responsible supervisor on

notice of the need to correct the alleged deprivation and he fails to do

so; when the supervisor’s improper custom or policy leads to deliberate

indifference to constitutional rights; or when facts support an inference

that the supervisor directed the subordinates to act unlawfully or knew

that the subordinates would act unlawfully and failed to stop them from

doing so.

Id. at 1322 (citing West v. Tillman, 496 F.3d 1321, 1328-29 (11th Cir. 2007)).

Plaintiff’s allegations fails to show that it is plausible, and not just conceivable, that

Secretary McNeil, Regional Director Cannon, or Warden Tifft caused or were

associated with any of the alleged transgressions in the complaint. Consequently, the

amended complaintfailsto state a viable basis for recovery against Secretary McNeil,

Regional Director Cannon, or Warden Tifft. Because the facts as pleaded do not state

a claim to relief that is plausible on its face, this complaint should be dismissed for

failure to state a claim. See Twombly, 550 U.S. at 570. 

Plaintiff has previously been cautioned concerning the narrow scope ofliability

that can be imposed on corrections officials, based upon “the alleged wrongdoings

of their subordinates. . .” (Doc. 12, p. 7) (citing Hartley, 193 F.3d at 1269). He has

also been advised concerning the requirement that he exhaust his administrative

remedies with regard to grievances, and that he allege the same. (Doc. 12, p. 6). 

Having been afforded the opportunity to replead, he has ignored the offer, and again

has set out claims that are simply not cognizable. See Langlois v. Traveler’sIns. Co.,

401 Fed. App’x 425, 427 (11th Cir. 2010) (“[The Eleventh Circuit] has held that

‘[w]here a more carefully drafted complaint might state a claim, a plaintiff must be

given at least one chance to amend the complaint before the district court dismisses

the action with prejudice.’” (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.

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1991))).

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s claims be DISMISSED WITH 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 7th day of November, 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).

Case No: 3:11cv83/MCR/CJK