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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOHN LESLIE DYSON,

Plaintiff,

v. CASE NO. 5:11-cv-86-RS-GRJ

P. SEXTON, K. AKE,

and DR. HERCULE,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, an inmate incarcerated at Gulf Correctional Institution-Annex (“GCI”),

initiated this case by filing a complaint pursuant to 42 U.S.C. § 1983 in the Middle

District of Florida. (Doc. 1.) Plaintiff later filed an Amended Complaint (Doc. 8) and a

Motion To Proceed In Forma Pauperis (Doc. 9) before the Middle District of Florida

entered an order transferring the case to this Court. (Doc. 10.) For the reasons

discussed below, it is RECOMMENDED that: (1) this case be dismissed pursuant to 28

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

and (2) Plaintiff’s Motion To Proceed In Forma Pauperis (Doc. 9) should be DENIED.

I. Introduction and Background

Plaintiff brings a claim under the Eighth Amendment alleging that the nurse, the

chief doctor and a supervisor violated his constitutional rights by taking Plaintiff’s

“shaving pass,” issued by another institution, and by failing to honor the doctor’s order

issuing the shaving pass. For relief Plaintiff requests return of his shaving pass, refunds

to his medical account of all charges that were incurred in connection with the

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confiscation at GCI of his shaving pass, and $5,000 in damages for pain that he

contends was caused by the Defendants’ forcing him to shave with a razor. Each of the

Defendants are employees of the Florida Department of Corrections (“FDOC”).

In Plaintiff’s complaint, he alleges that shaving with a razor causes the growth of

ingrown hairs on his face, pain and itchy, burning sensations. (Doc. 1 pp. 8-9.) Prior to

Plaintiff’s transfer to GCI, Dr. Nguyen Hung at the Central Florida Reception Center

(“CFRC”) in Orlando issued Plaintiff a shaving pass that was valid for an entire year. 

(Doc. 8.) The FDOC has a policy that all inmates must be clean-shaven unless they

posses a valid non-shaving pass for a medical reason. 

1

On September 30, 2010, Plaintiff’s CFRC shaving pass was taken by Defendant

Sexton, a nurse at GCI, who then simultaneously issued Plaintiff a shaving pass for use

at GCI that was valid for only 30 days. Plaintiff alleges that his CFRC shaving pass was

invalid at GCI. According to Plaintiff, Nurse Sexton told Plaintiff to report back to sick

call for another shaving pass once Plaintiff’s initial 30 day GCI shaving pass had

expired. Defendant K.. Ake is Nurse Sexton’s supervisor. While Plaintiff alleges that

Defendant Ake was also working on September 30, 2010, there are no allegations in

the Amended Complaint that Plaintiff had any contact whatsoever with Defendant Ake. 

 Defendant Dr. Hercule is the FDOC’s chief health officer for the FDOC’s Region

1, which includes GCI. Plaintiff complains that Defendant Hercule never examined him

and alleges that Dr. Hercule had no contact whatsoever with the Plaintiff. Notably,

Plaintiff does not allege what occurred after he was issued the initial 30 day pass by

This policy is meant to facilitate the identification of escaped inmates and has been upheld

1

against previous constitutional challenges by FDOC inmates. Shabazz v. Williams, 790 F.2d 1536, 1538-

40 (11 Cir. 1986)(per curiam).

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Defendant Sexton. Thus, there are no allegations that the pass was not renewed and

there are no allegations that Plaintiff was then forced to shave.

Plaintiff originally filed this case in the Middle District of Florida. The Court,

there, denied Plaintiff’s Motion To Proceed In Forma Pauperis and ordered Plaintiff to

file an amended complaint because Plaintiff “ha[d] failed to set forth his claims

adequately.” (Doc. 4 p. 1.) Plaintiff then filed an Amended Complaint (Doc. 8) and a

Motion To Proceed In Forma Pauperis (Doc. 9) before the case was transferred to this

Court. (Doc. 10.)

Plaintiff’s claims against the Defendants are due to be dismissed for failure to

state a claim upon which relief can be granted. Plaintiff has failed to allege any actions

by the Defendants constituting a violation of his constitutional rights In the Amended

Complaint. Plaintiff alleges only that his previously issued year shaving pass was taken

and he was issued in its place a 30 day shaving pass. There are no allegations that he

was forced to shave during his time at GCI. Even assuming, however, Plaintiff had – or

could – allege that he had been forced to shave by the Defendants, these allegations

would also fail to state a claim for deliberate indifference under prevailing law in the

Eleventh Circuit.

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.” 

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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. 

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,

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

Plaintiff’s Amended Complaint is due to be dismissed because Plaintiff has failed

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to state a claim for deliberate indifference to a serious medical issue for two reasons.

First, there are no allegations that the Defendants mandated that the Plaintiff shave

despite an alleged skin condition. Rather, Plaintiff has merely alleged that the

Defendants took his previously issued year shaving pass and in its place issued Plaintiff

a 30 day pass subject to monthly renewals. Secondly, a skin condition which makes

shaving difficult does not constitute a serious medical need for Eight Amendment

purposes so even if the Defendants’ actions required Plaintiff to shave, the conduct

would not be actionable under the Eight Amendment.

Turning first to the alleged conduct, Plaintiff alleges that Nurse Sexton took the

year long shaving pass previously issued by CFRC and in its place issued another

shaving pass, albeit a pass for only 30 days. Visibly absent from the Amended

Complaint are any allegations that Plaintiff actually was forced to shave with a razor or

that Plaintiff suffered any pain or medical issues as a result of being forced to shave. 

With regard to Defendants Axe and Hercule, there are no allegations that either

Defendant did anything, other than the allegation that Defendant Hercule never

examined Plaintiff. As such, there is a complete paucity of allegations against

Defendants Axe or Hercule that either of them personally participated in the conduct

which Plaintiff alleges violated his rights. In view of the complete absence of allegations

against Axe and Hercule, Plaintiff has failed to state a claim against them upon which

relief may be granted

Moreover, because the only conduct alleged by Plaintiff against anyone is the act

of taking away his previously issued shaving pass and in its place issuing a renewable

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30 day pass, Plaintiff has failed to allege any conduct which liberally construed could

constitute a violation of Plaintiff’s rights under the Eight Amendment. 

There is no need for the Court to grant Plaintiff a further opportunity to amend his

complaint because even if Plaintiff alleged that the Defendants had denied him a further

shaving pass beyond the initial 30 day pass, and forced him to shave, that would be

insufficient to state a claim for deliberate indifference as a matter of law. 

To establish an Eighth Amendment violation stemming from the deprivation of

medical attention, the prisoner must set forth evidence of an objectively serious medical

need and prove that the officials acted with attitudes of deliberate indifference to his

needs. Farrow v. West, 320 F.3d 1235, 1243 (11 Cir. 2003). Thus, a prisoner must th

demonstrate (1) “an objectively serious medical need,” so grave that, “if left unattended,

poses a substantial risk of serious harm,” and (2) that the officials’ response was so

inadequate as to “constitute an unnecessary and wanton infliction of pain,” and was not

“merely accidental inadequacy, negligence in diagnosis or treatment, or even medical

malpractice actionable under state law.” Taylor v. Adams, 221 F.3d 1254, 1258 (11th

Cir. 2000). “It is obduracy and wantonness, not inadvertence or error in good faith, that

characterize the conduct prohibited by the Cruel and Unusual Punishments Clause[.]” 

Whitley v. Albers, 475 U.S. 312, 319 (1986).

 In particular with regard to the issue of whether pain and inflammation resulting

from being forced to shave can support a claim for deliberate indifference under the

Eight Amendment, the Eleventh Circuit has clearly held it does not because the

condition does not constitute an objectively serious medical need. Shabazz v. Williams,

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790 F.2d 1536, 1538 (11 Cir. 1986)(per curiam)(“Even if Shabazz was required to th

shave when, on instructions from the physician, he should not have been required, the

violation does not rise to the level of the cruel and unusual punishment forbidden by the

Eighth Amendment. . . . [T]here is not involved the ‘serious medical need’ that must be

implicated.”). 

Other circuits that have considered the issue have reached the same conclusion

as the Eleventh Circuit. While those courts have focused upon whether being forced to

shave exacerbated a skin condition known as pseudofolliculitis barbae (“PFB”) those 2

courts concluded that the skin condition did not constitute a serious medical condition

for Eighth Amendment purposes. See, e.g., James v. Ramirez, 304 Fed. Appx. 349,

351 (5 Cir. 2009)(per curiam)(noting that the prisoner “has identified nothing in the th

record beyond his own allegations suggesting that PFB was a serious medical condition

or that his condition was serious”); Turner v. Buckmaster, No. 90-15855, 1992 WL

57430, at *2 (9 Cir. Mar. 25, 1992)(“The evidence in [Plaintiff’s] case fails to reveal the th

seriousness of [Plaintiff’s] particular PFB condition. Lacking evidence of the

seriousness of [Plaintiff’s] PFB, the record does not raise a genuine issue of fact that

[Plaintiff] suffered a ‘serious medical need.’”). 

Thus, even if Plaintiff was given leave to amend and alleged that he was forced

to shave resulting in inflammation and pain, those allegations would be insufficient to

support a claim for deliberate indifference. 

Therefore, for these reasons, Plaintiff has failed to allege a claim for deliberate

PFB is a skin condition resulting from shaving in which the individual experiences persistent

2

inflamation of the skin on the face from shaving.

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indifference under the Eight Amendment and even if Plaintiff could allege that the 30

day pass was not renewed and he was forced to shave, that would be insufficient to

allege a claim for violation of the Eighth Amendment. Accordingly, Plaintiff’s Amended

Complaint is due to be DISMISSED for failure to state a claim upon which relief can be

granted.

IV. Conclusion

For the foregoing reasons, it is respectfully RECOMMENDED that the Amended

Complaint, Doc. 8, should be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim upon which relief may be granted. It is also respectfully

RECOMMENDED that Plaintiff’s Motion To Proceed In Forma Pauperis (Doc. 9) should

be DENIED.

IN CHAMBERS this 12 day of May 2011. 

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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.

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