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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RICHARD C. GOINS,

Plaintiff,

vs. Case No. 3:10cv551/LAC/EMT

WALTER A. McNEIL, et al., 

Defendants.

____________________________________/

REPORT AND RECOMMENDATION

This cause is before the court on Plaintiff’s amended civil rights complaint filed pursuant to

42 U.S.C. § 1983 (doc. 25). Leave to proceed in forma pauperis has been granted.

The case was referred to the undersigned for the issuance of all preliminary orders and any

recommendations to the district court regarding dispositive actions. See N. D. Fla. Loc. R. 72.2(C);

see also 28 U.S.C. § 636(b)(1)(B)(C); and Fed. R. Civ. P. 72(b). After careful consideration of all

issues raised by Plaintiff, it is the opinion of the undersigned that dismissal of this action is

warranted.

I. PLAINTIFF’S ALLEGATIONS

Plaintiff is currently incarcerated at Santa Rosa Correctional Institution (“SRCI”). He was

incarcerated at the Orange County Jail (“Jail”) and SRCI at the time of the events giving rise to the

complaint (doc. 25 at 7–10). Plaintiff names eleven Defendants in this action: Walter A. McNeil,

Secretary of the Florida Department of Corrections (“FDOC”); Micheal Tidwell, Chief

Administrator at the Jail; M. Mitchell, a member of the medical staff at the Jail; R. Tifft, Warden

at SRCI; J. Haas, Assistant Warden at SRCI; R. Burch, Classification Supervisor at SRCI; D.W.

Griffiths, Health Service Administrator at SRCI; W.D. Rummel, Medical Director/Chief Health

Officer at SRCI; I. Nieves, an Advanced Registered Nurse Practitioner (“ARNP”) at SRCI; the Chief

of Security at SRCI; and L.D. Brock, Property Room Sergeant at SRCI (id. at 1–4). 

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Plaintiff alleges that on July 20, 2010, while he was being transported from FDOC custody

to the Orange County Jail, he broke his left foot (doc. 25 at 7). Upon his arrival at the Jail, he

informed “the security and medical staff” of his injury (id.). Approximately 7–10 days later, he

received three x-rays (id.). Ms. Mitchell, who Plaintiff states is either a registered nurse or an

ARNP, reviewed the x-rays and advised Plaintiff that his foot was not broken, but he had a severe

bunion under his left foot behind his left big toe (id. at 7–8). Plaintiff states when Ms. Mitchell

showed him the x-rays, he could clearly see that the bone behind his big toe on his left foot was

broken, and calcium deposits had begun to develop in the area of the break (id. at 8). Ms. Mitchell

prescribed an ankle brace and a pain reliever (id. at 8). Plaintiff filed a formal grievance with Chief

Administrator Tidwell on August 18, 2010, complaining that he did not receive proper medical

treatment for his foot, and that he was charged $30.00 for medical services and prescriptions (id.;

see also doc. 1, Ex. A). Plaintiff was transferred to FDOC’s Reception and Medical Center

(“RMC”) on August 30, 2010, before he received a response from Administrator Tidwell (doc. 25

at 8). 

At RMC, Plaintiff was examined by Dr. Smith (not a named Defendant), who ordered x-rays

and issued a medical pass for no prolonged standing or walking, and no heavy lifting (doc. 25 at 8).

On September 21, 2010, Plaintiff was transferred from RMC to SRCI (doc. 25 at 8). Nurse

Williams (not a named Defendant) conducted a “medical orientation” with incoming inmates (id.

at 9). Plaintiff advised her that his left foot was broken (id.). Nurse Williams documented

Plaintiff’s information and informed him he would be seen by a doctor (id.).

Seven days later, on September 28, 2010, Plaintiff filed an informal grievance complaining

that he had broken his right foot but had not received appropriate medical treatment (doc. 25 at 9;

see also doc. 1, Ex. B-1). He stated he was suffering stiffness in his left big toe and “hot and cold

sensations” in his left foot (id.). On October 4, 2010, Plaintiff was seen by ARNP Nieves (doc. 25

at 9). Plaintiff informed her of his foot problem and the fact that he had Hepatitis C (id. at 9, 15). 

ARNP Nieves issued Plaintiff a medical pass for a bottom bunk and instructed Plaintiff to sign up

for sick call if he wished to consult with a doctor regarding his foot (see doc. 1 at 13). 

On October 5, 2010, Health Services Administrator Griffiths denied Plaintiff’s informal

grievance and advised him that he must address his medical issue at sick call, for which he would

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be charged a $5.00 co-payment (doc. 25 at 9; see also doc. 1 at 14, Ex. B-1). Plaintiff appealed the

response to the Warden’s Office, complaining that the medical staff was denying him medical

treatment for his foot and “plac[ing] [him] in a position to be extorted” by requiring him to pay the

$5.00 co-payment (id.). Plaintiff requested medical treatment without having to pay the co-payment

(see doc. 1, Ex. B-1). Dr. Rummel and Assistant Warden Haas denied the grievance on the ground

that FDOC policy provided that each inmate who initiates a non-emergency visit to a health care

provider would be assessed a co-payment (id.). Plaintiff appealed the denial to Secretary McNeil’s

office on October 25, 2010 (doc. 25 at 9). Plaintiff alleges the appeal was denied on March 25, 2011

(after Plaintiff filed the instant complaint, on December 28, 2010), on the ground that Plaintiff’s foot

showed no signs of a break or fracture (id.).

Plaintiff states that on April 7, 2011, after he filed this lawsuit, he was seen by Dr. Rummel

during a medical call-out initiated by Rummel to address Plaintiff’s Hepatitis C (doc. 25 at 10). 

Plaintiff states Dr. Rummel advised him that his Hepatitis C was worsening (id.). Dr. Rummel also 

conducted a cursory examination of Plaintiff’s left foot and advised him that it appeared that his

foot had been broken at some point in time (id.). Plaintiff states he asked Dr. Rummel when he

would receive treatment for both conditions (id.). Dr. Rummel responded that he had done all he

was going to do, and told Plaintiff he could leave (id.). Plaintiff states he still has not received

treatment for his foot or Hepatitis C (id.). 

In an unrelated claim, Plaintiff alleges he has suffered acts of harassment and retaliation

since he filed the informal grievance on September 28, 2010 (doc. 25 at 10). He states he was

placed on close management status under “false pretenses” (id. at 17). He additionally states his

outgoing and incoming mail was censored, tampered with, and destroyed (id. at 17–18). He states

$8,000.00 worth of UCC (Uniform Commercial Code) materials and other “legal” materials were

destroyed and confiscated (id. at 18; see also doc. 1 at 13–14, 19, Ex. B-2). His access to the law

library was limited to only two (2) days per month (doc. 25 at 18). His hemorrhoid medication was

discontinued (id.). Plaintiff additionally states “security personnel” made subtle, verbal threats

regarding his grievances and complaints, and constantly moved him from one cell to another to

frustrate him (id.). 

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Plaintiff states the lack of treatment for his foot has resulted in further injury to his left hip

and constant pain in his hip and foot (doc. 25 at 12–13).

Plaintiff asserts three claims. First, he claims that Defendants Mitchell, Nieves, Griffiths,

Rummel, Tidwell, Haas, Burch, Tifft, and McNeil deprived him of adequate medical treatment for

his foot, in violation of the Eighth Amendment (doc. 25 at 12–13). Second, he claims that

Defendants McNeil, Tifft, Haas, Burch, Rummel, Nieves, and Griffiths deprived him of adequate

medical treatment for the Hepatitis C (id. at 14–16). Third, he claims that Defendants McNeil, Tifft,

Haas, Burch, Griffiths, Brock, and the Chief of Security retaliated against him for filing grievances

concerning the lack of medical treatment, in violation of the First Amendment (id. at 17–18). 

Plaintiff additionally states he is asserting state law claims, and he asks the court to exercise

supplemental jurisdiction over those claims (id. at 11).

Plaintiff seeks declaratory relief and nominal, compensatory, and punitive damages (doc. 25

at 19–20). He also seeks an injunction requiring Defendants to: (1) cease all retaliation and return

his “legal, informational, and UCC materials,” (2) transfer him to Tomoka Correctional Institution,1

and (3) provide him a thirty-day supply of all prescribed medications free of charge upon his release

from the FDOC (id.).

II. STANDARD OF REVIEW

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). A complaint is frivolous under section 1915(e) “where it lacks an arguable

basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1833, 104

L. Ed. 2d 338 (1989). Dismissals on this ground should only be ordered when the legal theories are

“indisputably meritless,” id., 490 U.S. at 327, or when the claims rely on factual allegations that are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340

(1992). Dismissals for failure to state a claim are governed by the same standard as Federal Rule

1

 In October of 2010, Plaintiff filed a formal grievance requesting transfer to Sumpter Correctional Institution,

because it was closer to his family and permanent place of residence (see doc. 17, Ex. A). Defendants Burch and Tifft

denied the request (id.). Plaintiff appealed the denial to Secretary McNeil’s office, but requested transfer to Tomoka,

instead of Sumpter (id.). Secretary McNeil’s office denied the appeal (id.).

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of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). The

allegations of the complaint are taken as true and are construed in the light most favorable to

Plaintiff. Davis v. Monroe County Bd. Of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). However,

such acceptance should not be given blindly; only well-pleaded factual allegations are taken as true

and only reasonable inferences are drawn in favor of the plaintiff. See Oladeinde v. City of

Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992); Marrero v. City of Hialeah, 625 F.2d 499, 502

(5th Cir. 1980);2 see also Long v. Satz, 181 F.3d 1275, 1278 (11th Cir. 1999) (per curiam)

(“reasonable inferences” drawn); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th

Cir. 1974) (“unwarranted deductions of fact are not admitted as true”). A plaintiff must allege more

than mere “labels and conclusions”; the complaint must include “[f]actual allegations . . . [sufficient]

to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127

S. Ct. 1955, 1964–65, 167 L. Ed. 2d 929 (2007) (citations and internal quotations omitted). Indeed,

“any conclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as

facts do not prevent dismissal.” Weissman v. Nat’l Ass’n of Sec. Dealers, 500 F.3d 1293, 1305

(11th Cir. 2007) (en banc) (Tjoflat, J., dissenting) (citing Associated Builders, Inc., 505 F.2d at 99). 

The complaint may be dismissed if the facts as pleaded do not state a claim to relief that is plausible

on its face. See Bell Atl. Corp., supra (retiring the often-criticized “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). 

III. ANALYSIS

A. Denial of Adequate Medical Treatment for Hepatitis C

Plaintiff’s claim of denial of medical treatment for his Hepatitis C is subject to dismissal for

failure to exhaust administrative remedies. As Plaintiff was previously advised on the complaint

form itself, 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act (“PLRA”), Pub. L. No.

104–134, §§ 801–810, 110 Stat. 1321 (1996), provides 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

2

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted

as precedent all of the decisions of the former Fifth Circuit decided prior to October 1, 1981.

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confined in any jail, prison or other correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has consistently enforced the

PLRA’s mandatory exhaustion requirement, holding that the requirement applies to all federal

claims brought by any inmate. See Woodford v. Ngo, 548 U.S. 81, 93, 126 S. Ct. 2378, 165 L. Ed.

2d 368 (2006); Porter v. Nussle, 534 U.S. 516, 520, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002); Booth

v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001). Courts do not have

discretion to waive the exhaustion requirement, even if it can be shown that the grievance process

is futile or inadequate. Woodford, 548 U.S. at 85; Alexander v. Hawk, 159 F.3d 1321, 1325–26

(11th Cir. 1998). Nor may courts inquire as to whether administrative remedies are “plain, speedy,

[or] effective.” Porter, 534 U.S. at 524. In order to properly exhaust his claims, a prisoner must

“us[e] all steps” in the administrative process; he must also comply with any administrative

“deadlines and other critical procedural rules” along the way. Woodford, 548 U.S. at 90 (internal

quotation omitted). If a prisoner fails to complete the administrative process or falls short of

compliance with procedural rules governing prisoner grievances, he procedurally defaults his claims. 

 Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005). 

Because exhaustion of administrative remedies is a “precondition” to filing an action in

federal court, the Eleventh Circuit requires prisoners to complete the administrative process prior

to initiating suit. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (per curiam ); see

also Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999). The Supreme Court has made it clear,

however, that the “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.” Jones

v. Bock, 549 U.S. 199, 215, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007). Nevertheless, if the

allegations in the complaint, taken as true, demonstrate that a prisoner’s claims are barred by an

affirmative defense, the complaint is subject to dismissal for failure to state a claim upon which

relief can be granted. Id. at 215–16; see also Clark v. Georgia Bd. of Pardons & Paroles, 915 F.2d

636, 640–41 (11th Cir. 1990) (explaining that district court may dismiss prisoner’s complaint “if [it]

sees that an affirmative defense would defeat the action,” including the prisoner’s failure to exhaust

“alternative remedies”).

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In the instant case, Plaintiff submitted copies of several administrative grievances to

demonstrate he exhausted administrative remedies prior to filing suit (see doc. 1, attached exhibits;

doc. 17, attached exhibits; doc. 25, attached exhibits). Specifically with regard to the Hepatitis C

issue, Plaintiff sent a letter titled, “Formal Complaint,” to the Florida Governor’s Office, the Florida

Attorney General’s Office, and Secretary McNeil’s office, complaining that he and several other

inmates contracted Hepatitis C at Cross City Correctional Institution between 2004 and 2008 (doc.

25 at 24–28). Plaintiff stated he became aware of his diagnosis in 2009 (id.). He stated he had not

received any medication or special diet for his condition (id.). He also stated correctional officers

at Union Correction Institution retaliated against him for complaining about the Hepatitis C issue

(id.). He requested an independent investigation by the Governor to determine the source of the

outbreak (id.). He also sought disciplinary action against any staff who failed to take corrective

measures (id.).

A representative of Secretary McNeil’s office responded to Plaintiff’s letter with a letter

advising him to present his issue at the institutional level, and if he was not satisfied with the

response, he could follow the grievance process in accordance with the administrative rules of the

DOC, set forth in Title 33 of the Florida Administrative Code (doc. 25, Ex. A). Rule 33-103.007

provides that emergency grievances, grievances of reprisals, or grievances of a sensitive nature may

be filed directly with the Office of the Secretary using the Request for Administrative Remedy or

Appeal, Form DC1-303. Fla. Admin. Code r. 33-103.007(6)(a). The rule further provides that the

inmate shall state at the beginning of Part A of Form DC1-303 that the grievance concerns either

an emergency, or is a grievance of a reprisal, or a grievance of a sensitive nature. Fla. Admin. Code

r. 33-103.007(6)(a)1. The rule provides that the inmate must clearly state the reason for not initially

bringing the complaint to the attention of institutional staff and by-passing the informal and formal

grievance steps of the institution or facility. Fla. Admin. Code r. 33-103.007(6)(a)2. The rule

provides that upon receipt of the direct grievance and following review of the same, if it is

determined that the grievance is not an emergency grievance, a grievance of reprisal, or a grievance

of a sensitive nature, the grievance shall be returned to the inmate with the reasons for return

specified, and advising the inmate to resubmit his or her grievance at the appropriate level. Fla.

Admin. Code r. 33-103-007(6)(d). 

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The allegations in the complaint, taken as true, and the attachments submitted by Plaintiff

demonstrate that he failed to comply with the FDOC’s procedural rules governing the administrative

grievance process. He did not submit his complaint on Form DC1-303, nor did he state the reason

for not initially bringing the complaint to the attention of institutional staff and by-passing the

informal and formal grievance steps of the institution. Additionally, he did not re-submit his

grievance at the appropriate level upon the Secretary’s office advising him to do so. Therefore, his

claim concerning medical treatment for his Hepatitis C should be dismissed without prejudice to his

raising it in a new civil rights action initiated after he has exhausted his administrative remedies.

B. Denial of Adequate Medical Treatment for Foot

It is well settled that the government has a constitutional duty to provide minimally adequate

medical care to prisoners. Harris v. Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991). Medical

treatment violates the Eighth Amendment “only when it is ‘so grossly incompetent, inadequate, or

excessive as to shock the conscience or to be intolerable to fundamental fairness.’” Id. at 1505

(citing Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)). Incidents of mere negligence or

malpractice do not rise to the level of constitutional violations. Id. (citing Estelle v. Gamble, 429

U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)).

Stating an Eighth Amendment claim of denial of adequate medical care requires satisfying

both an objective and subjective component. Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir.

2000). First, there must be conduct by prison officials which, objectively speaking, is “sufficiently

serious” to constitute a deprivation “‘denying the minimal civilized measure of life’s necessities.’” 

Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991) (internal

quotation omitted)). Second, the prison officials must possess a subjective intent to use the medical

deprivation as a means of punishment. Id. (citations omitted). 

Both the objective and subjective components encompass two subsidiary requirements. 

Taylor, 221 F.3d at 1258. As to the objective prong, an objectively serious deprivation requires

showing an objectively “serious medical need.” Estelle, 429 U.S. at 104. A serious medical need

is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that

even a lay person would easily recognize the necessity for a doctor’s attention.” Hill v. DeKalb

Regional Youth Detention Center, 40 F.3d 1176, 1186 (11th Cir. 1994), abrogated on other grounds

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by Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002); see Farmer v. Brennan,

511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (serious medical need is one that, if

left unattended, “pos[es] a substantial risk of serious harm.”). In addition, an objectively serious

deprivation requires showing the response made by the defendant to that need was so deficient as

to constitute “an unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105–06 (internal

quotation marks omitted); see Taylor, 221 F.3d at 1257; see also Adams v. Poag, 61 F.3d 1537,

1543–44 (11th Cir. 1995).

To show the required subjective intent to punish, the plaintiff must demonstrate that the

defendant acted with an attitude of “deliberate indifference.” Estelle, 429 U.S. at 105. “Deliberate

indifference has three components: (1) subjective knowledge of a risk of serious harm; (2) disregard

of that risk; (3) by conduct that is more than mere negligence.” Farrow v. West, 320 F.3d 1235,

1245–46 (11th Cir. 2003) (citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) and

Taylor, 221 F.3d at 1258 (stating that defendant must have subjective awareness of an “objectively

serious need” and that his response must constitute “an objectively insufficient response to that

need”)). 

A complete denial of readily available treatment for a serious medical condition constitutes

deliberate indifference. Harris v. Coweta County, 21 F.3d 388, 393 (11th Cir. 1994). However,

where the inmate has received medical treatment, and the dispute is over the adequacy of that

treatment, courts should be reluctant to question the accuracy or appropriateness of the medical

judgments that were made. Harris, 941 F.2d at 1507 (quoting Waldrop v. Evans, 871 F.2d 1030,

1035 (11th Cir. 1989)). To do otherwise would be “to constitutionalize claims that sound in tort

law.” Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985) (quotation omitted).

A delay in providing medical treatment can constitute deliberate indifference. Estelle, 429

U.S. at 104–05. However, “[a]n inmate who complains that delay in medical treatment rose to a

constitutional violation must place verifying medical evidence in the record to establish the

detrimental effect of delay in medical treatment to succeed.” Townsend v. Jefferson County, 582

F.3d 1252, 1259 (11th Cir. 2009). 

In the instant case, Plaintiff claims that Defendants Mitchell, Nieves, and Griffiths are not

physicians, and their failure to schedule an examination by a doctor constituted deliberate

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indifference (doc. 25 at 12). He claims that Defendant Rummel was deliberately indifferent by

conducting only a cursory examination and failing to prescribe treatment in April of 2011 (eight

months after the injury) (id. at 13). He claims that Defendants Tidwell, Haas, Burch, Tifft, and

McNeil are liable for the conduct of their subordinates, because these supervisory Defendants have

a custom of supporting the actions of their subordinates, and they intentionally failed to correct their

subordinates’ unconstitutional conduct (id. at 13). Plaintiff states he is aware of several other

inmates who have suffered similar constitutional violations (id.).

Plaintiff’s allegations fail to state a claim against Defendant Mitchell. Plaintiff admits Ms.

Mitchell is a medical professional (a registered nurse or an ARNP), who examined Plaintiff’s xrays, diagnosed the problem (albeit incorrectly, according to Plaintiff), and provided treatment in

the form of medical passes and pain medication. Even if Ms. Mitchell misdiagnosed Plaintiff’s

condition, the facts do not suggest her allegedly erroneous diagnosis was deliberate. As to ARNP

Nieves, her issuing Plaintiff a medical pass for a bottom bunk and instructing him to sign up for sick

call to see a doctor about his foot (for which he would be assessed a $5.00 co-payment) was a

reasonable response to Plaintiff’s complaint and, therefore, does not suggest an objectively serious

deprivation. Likewise, as to Health Services Administrator Griffiths, his directing Plaintiff to

address his medical issue through sick-call (the FDOC’s process available to inmates who wish to

see a health care provider) was a reasonable response to Plaintiff’s complaint. As to Dr. Rummel,

Plaintiff’s allegation that Rummel stated in April of 2011 that it appeared Plaintiff’s foot had been

broken at some point in time but failed to offer treatment, fails to state an Eighth Amendment

violation. Plaintiff admits that the purpose of his visit with Dr. Rummel, which was initiated by

Rummel, was to determine the progression of Plaintiff’s Hepatitis C. Rummel’s refusal to address

other medical issues at that time does not suggest deliberate indifference; rather, Plaintiff was

attempting to circumvent the available process for seeking medical attention (that is, the sick-call

process, for which he would be charged $5.00), by using the Hepatitis C appointment to address the

foot issue. Plaintiff’s allegations demonstrate that it was Plaintiff himself who delayed medical

treatment for his foot simply because he did not want to be liable for the $5.00 co-payment. Had

Plaintiff availed himself of the sick-call process, he may have received the treatment he sought. 

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Defendant Rummel cannot be held liable for Plaintiff’s failure to follow the established procedure

for receiving medical treatment for his foot.

 Finally, Plaintiff cannot state an Eighth Amendment claim against the supervisory

Defendants, namely, Tidwell, Haas, Burch, Tifft, and McNeil, in the absence of unconstitutional

conduct by their subordinates. Therefore, dismissal of Plaintiff’s Eighth Amendment claim

regarding medical treatment for his foot is warranted. 

C. Retaliation

It is well established that the First Amendment forbids prison officials from retaliating

against prisoners for exercising the right of free speech. See Crawford-El v Britton, 523 U.S. 574,

588 n.10, 592–93, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998); Farrow v. West, 320 F.3d 1235, 1248

(11th Cir. 2003) (citations omitted); Adams v. James, 784 F.2d 1077, 1080 (11th Cir. 1986) (citation

omitted); see also Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); Wright v. Newsome,

795 F.2d 964, 968 (11th Cir. 1986). “First Amendment rights to free speech and to petition the

government for a redress of grievances are violated when a prisoner is punished for filing a

grievance concerning the conditions of his imprisonment.” Boxer X v. Harris, 437 F.3d 1107, 1112

(11th Cir. 2006). To prevail on a claim of retaliation, the inmate must establish these elements: (1)

his speech was constitutionally protected; (2) the defendant’s retaliatory conduct adversely affected

the protected speech; and (3) there is a causal relationship between the retaliatory action and the

protected speech. See Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008) (citing Bennett v.

Hendrix, 423 F.3d 1247, 1250, 1254 (11th Cir. 2005)); Cummings v. Harrison, 695 F. Supp. 2d

1263, 1274–75 (N.D. Fla. 2010). A prisoner’s filing of a grievance concerning the conditions of his

imprisonment is protected speech under the First Amendment. See Douglas, 535 F.3d at 1321

(quoting Boxer X, 437 F.3d at 1112). As to the second element, the Eleventh Circuit employs a

purely objective standard: “A plaintiff suffers adverse action if the defendant’s allegedly retaliatory

conduct would likely deter a person of ordinary firmness from the exercise of First Amendment

rights.” Bennett, 423 F.3d at 1253. In adopting this objective standard, the Eleventh Circuit

expressly rejected a subjective “actual chill” standard, that is, a plaintiff suffers adverse action only

if the retaliatory conduct actually chilled the exercise of his First Amendment rights. Id. at 1250–54. 

The third element, whether there was a causal connection between the retaliatory acts and the

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adverse effect on the speech, “asks whether the defendants were subjectively motivated to discipline

because [the prisoner] complained of the conditions of his confinement.” Smith v. Mosley, 532 F.3d

1270, 1278 (11th Cir. 2008).

The Supreme Court decisions of Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977) and Pickering v. Board of Education, 391 U.S. 563, 88

S. Ct. 1731, 20 L. Ed. 2d 811 (1968) guide analysis of a First Amendment retaliation claim. See

Hartman v. Moore, 547 U.S. 250, 260, 126 S. Ct. 1695, 64 L. Ed. 2d 441 (2006) (citing Mt. Healthy,

429 U.S. at 287; Pickering, 391 U.S. at 566–67); Cummings, 695 F. Supp. 2d at 1274; Pate v. Peel,

256 F. Supp. 2d 1326, 1339 (N.D. Fla. 2003). Although the framework was established in the

employment context, it is beneficial to maintain uniformity in these types of cases. Cummings, 695

F. Supp. 2d at 1274–75. The employment four-step analysis is reduced to a three-step analytical

framework, but continues to provide a workable standard to guide all retaliation cases. Id. at 1275. 

Initially, the plaintiff must plead and provide sufficient evidence of the retaliatory motive and the

adverse action. See Hartman, 547 U.S. at 259–60. “[U]pon a prima facie showing of retaliatory

harm, the burden shifts to the defendant official to demonstrate that even without the impetus to

retaliate he would have taken the action complained of . . . .” Id. at 260 (citing Mt. Healthy, 429

U.S. at 287). In the context of a defendant’s motion for summary judgment, however, the plaintiff

has the ultimate burden of proof; therefore, the defendant need only point to evidence as to the

legitimate reason, and the plaintiff must produce “affirmative evidence from which a jury could find

that the plaintiff has carried his or her burden of proving the pertinent motive.” Crawford-El, 523

U.S. at 600 (citing Liberty Lobby, Inc., 477 U.S. at 256–57). 

In the instant case, despite the court’s previously advising Plaintiff of this standard and

providing Plaintiff an opportunity to produce specific, nonconclusory factual allegations showing

that the Defendants’ actions were motivated by retaliation, he has failed to so do. He has not

pleaded specific facts suggesting any named Defendant took adverse action against him in retaliation

for his filing grievances. Therefore, he has failed to state a First Amendment claim of retaliation.

D. State Law Claims

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Finally, to the extent Plaintiff brings state law claims, his claims should be dismissed. It is

well established that once Plaintiff’s federal claims are dismissed, there remains no independent

federal jurisdiction to support the court’s exercise of supplemental jurisdiction over the state claims

against Defendants. See Baggett v. First National Bank of Gainesville, 117 F.3d 1342, 1352 (11th

Cir. 1997). Title 28 U.S.C. § 1367(c)(3) provides that the district court may decline to exercise

supplemental jurisdiction over claims after it has dismissed all claims over which it has original

jurisdiction. See also United Mine Workers v. Gibbs, 383 U.S. 715, 725–26, 86 S. Ct. 1130,

1138–39, 16 L. Ed. 2d 218 (1966). Where § 1367(c) applies, considerations of judicial economy,

convenience, fairness, and comity may influence the court’s discretion to exercise supplemental

jurisdiction. Baggett, 117 F.3d at 1353 (citing Palmer v. Hospital Authority of Randolph County,

22 F.3d 1559, 1569 (11th Cir. 1994); Executive Software N. Am. v. United States Dist. Court, 15

F.3d 1484, 1493 (9th Cir. 1994); New England Co. v. Bank of Gwinnett County, 891 F. Supp. 1569,

1578 (N.D. Ga. 1995); Fallin v. Mindis Metals, Inc., 865 F. Supp. 834, 841 (N.D. Ga. 1994)). 

Taking these factors into account in this case, the court concludes that Plaintiff’s state law claims

should be dismissed to permit him to pursue them in a more appropriate forum. While it would be

convenient for Plaintiff to continue litigating his case in this court, this court has a substantial

number of original jurisdiction cases awaiting review, and neither judicial economy nor fairness to

other litigants support retaining jurisdiction of Plaintiff’s state claims and delaying justice in other

cases. Furthermore the state court is best equipped to research and rule on matters of state law, and

comity would suggest that it should be allowed to do so. 

IV. CONCLUSION

Based upon the foregoing, the undersigned concludes: (1) Plaintiff’s Eighth Amendment

claim concerning the deprivation of adequate medical treatment for Hepatitis C should be dismissed

without prejudice for failure to exhaust administrative remedies, pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii); (2) Plaintiff’s remaining federal claims should be dismissed for failure to state

a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and (3)

Plaintiff’s state law claims should be dismissed to permit him to pursue them in a more appropriate

forum.

Accordingly, it is respectfully RECOMMENDED:

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1. That Plaintiff’s Eighth Amendment claim concerning the deprivation of adequate

medical treatment for Hepatitis C be DISMISSED without prejudice for failure to exhaust

administrative remedies, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii);

2. That Plaintiff’s remaining claims be DISMISSED with prejudice for failure to state

a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); 

3. That Plaintiff’s state law claims be DISMISSED without prejudice to Plaintiff’s right

to assert them in state court; and

4. That the clerk be directed to enter judgment accordingly and close the file.

At Pensacola, Florida, this 18th day of August 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon the magistrate judge and all 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).

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