Opinion
Case No. 3:06cv133/MCR/EMT.
May 11, 2006
REPORT AND RECOMMENDATION
This cause is before the court on Plaintiff's amended pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 (Doc. 20). Leave to proceed in forma pauperis has been granted.
Because Plaintiff is proceeding in forma pauperis, the court is required to dismiss the case at any time if it determines that the "action or appeal" 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.A. § 1915(e)(2)(B). A complaint is frivolous under section 1915(d) "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. at 327, 109 S.Ct. at 1833, 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 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). The complaint may be dismissed only if it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Brown v. Budget Rent-A-Car Systems, Inc., 119 F.3d 922, 923 (11th Cir. 1997). Upon review of the complaint, this court concludes that dismissal of Plaintiff's claims is warranted.
Plaintiff, an inmate of the Florida Department of Corrections, names twenty-two Defendants in this action (in his original complaint, Plaintiff named only eight Defendants): Jeb Bush, Governor of the State of Florida; Charlie Crist, Attorney General of the State of Florida; James McDonough, Secretary of the Florida Department of Corrections (DOC); Gerald Abdul-Wasi, Inspector General for the DOC; Carl Kirkland, Warden of Walton Correctional Institution (WCI); Mr. Kennedy and Howard Goodson, assistant wardens at WCI, and fifteen correctional officers at WCI (Dc. 20 at 1, 2). Plaintiff claims that Defendants violated his First, Eighth, and Fourteenth Amendment rights, as well as his rights under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") ( id. at 26). As relief, Plaintiff seeks "protection from on-going imminent dangers," prison reforms, injunctive relief, and compensatory and punitive damages ( id.). Additionally, Plaintiff requests that this court "retain jurisdiction" over him for the remainder of his incarceration to insure that his "protective needs" are met ( id.).
Plaintiff alleges the following facts in support of his claims. He alleges that during the past several years he has been complaining to Defendants Bush, Crist, McDonough, and Abdul-Wasi about abusive conditions that exist in the Florida penal system ( id. at 9-13). He states that despite the supervisory Defendants' knowledge of the abusive conditions, they have failed to correct the abuses, thus exposing Plaintiff to further abuse ( id.).
Plaintiff states that on March 13, 2006, he arrived at WCI with twenty (20) boxes of legal, religious, and personal property that had been in DOC storage since September of 2005 ( id. at 14). He states that he was on "A/C status" (administrative confinement) when he arrived, due to a disciplinary report that had been filed against him at his former institution ( id. at 14-15). Plaintiff alleges that upon his arrival, Assistant Warden Kennedy "made it known loud and clear" that Plaintiff was "not wanted" at WCI, and he threatened to use his security staff to "eliminate" Plaintiff ( id. at 15).
Plaintiff states that Defendant Daughtry, the property room supervisor, expressed her objection to the volume of Plaintiff's property, and threatened to torture, abuse, gas, and kill Plaintiff, who is Jewish, "like Adolf [sic] Hitler did the Jews" ( id.). Plaintiff alleges Defendant Daughtry then confiscated Plaintiff's property and stated that it would be destroyed ( id.). Defendant Daughtry then filed an allegedly false disciplinary report against Plaintiff alleging that Plaintiff's property contained contraband ( id.). Plaintiff alleges that Daughtry filed the disciplinary report as a means to have him placed in confinement so that he would be abused, beaten, or killed ( id.).
On March 15, 2006, while Plaintiff was in confinement, Defendant Cassiday left his post in Y-dorm, where Defendant Daughtry's office is located, and made a "special visit" to Plaintiff ( id. at 16). Defendant Cassiday threatened to gas, beat, and kill Plaintiff upon his arrival at Y-dorm ( id.). Plaintiff filed an emergency grievance with Secretary McDonough requesting protection, but the grievance was rejected as an emergency grievance and forwarded to Warden Kirkland, who took no action to protect Plaintiff ( id.). On March 21, 2006, Plaintiff submitted a request to Defendant Porter for protection, but Porter took no action to protect Plaintiff ( id.).
On March 23, 2006, Plaintiff attended a disciplinary hearing on the disciplinary report filed by Defendant Daughtry ( id.). Defendants Skipper and Johnson were members of the disciplinary team ( id.). Defendants Skipper and Johnson allegedly disregarded due process and found Plaintiff guilty of possession of contraband ( id.). Plaintiff was sentenced to sixty (60) days in solitary confinement ( id. at 16-17). Plaintiff states that during the disciplinary hearing, he requested protection from Defendant Cassiday because Cassiday had verbally threatened him, told anti-Semitic jokes, and "played sex" and harassed him in the holding cell prior to the hearing ( id. at 17). Defendants Skipper and Johnson denied Plaintiff's request for protection ( id.). As Defendant Cassiday escorted Plaintiff from the disciplinary hearing, he took Plaintiff behind the control booth and forcefully slapped Plaintiff's yarmulke off his head, slapped Plaintiff's face, grabbed him by the throat, choked him, punched him, kicked him, knocked him to the floor, and threatened to kill him ( id.). Additionally, Defendant Cassiday threatened that if Plaintiff reported the incident, his "gang" of other correctional officers would gas, beat, and kill Plaintiff every day that he is in confinement ( id. at 17-18). As Cassiday placed Plaintiff in his cell, Cassiday told Plaintiff's new cellmate that he was bringing him a "new toy" that he could do whatever he pleased with ( id. at 18).
On March 26, 2006, Plaintiff filed an emergency grievance with Secretary McDonough advising him of the foregoing incidents ( id.). On March 30, 2006, the grievance was approved to the extent that the matter was turned over to Defendant Abdul-Wasi for investigation ( id.).
Plaintiff's remaining allegations concern incidents that occurred on and after March 27, 2006 ( id. at 18-25).
Initially, it is clear from Plaintiff's allegations that he did not exhaust his administrative remedies as to claims arising out of Defendants' conduct that occurred on or after March 23, 2006, the date he filed this civil rights action ( see Doc. 1 at 15). Therefore, those claims should be dismissed.
Title 42 U.S.C. § 1997e provides in relevant part: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Thus, exhaustion of all available administrative remedies is mandatory, and is a pre-condition to suit. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002) (citing Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). The purpose of this exhaustion requirement is to reduce the quantity and improve the quality of prisoner suits. Porter, 534 U.S. at 524.
The exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force of some other wrong. Porter, supra. Exhaustion is required whether Plaintiff seeks declaratory and injunctive relief, monetary damages, or both. Booth, 532 U.S. 731; see also Zolicoffer v. Scott, 55 F.Supp.2d 1372, 1375 (N.D. Ga. 1999), aff'd, 252 F.3d 440 (11th Cir. 2001). The requirement is not subject to either waiver by a court or futility or inadequacy exceptions. See Booth, 532 U.S. at 741 n. 6; McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) ("Where Congress specifically mandates, exhaustion is required."); Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir. 1998). Based on the foregoing, this court must dismiss a claim if it determines that Plaintiff failed to exhaust his administrative remedies with respect to that claim prior to filing suit. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000); Alexander, 159 F.3d at 1325-26.
In the instant case, Plaintiff's factual allegations show that as of March 23, 2006, the date he filed the original complaint in the instant action, he had not completed the administrative grievance process as to any of his claims except the claims included in his emergency grievance to Secretary McDonough on March 21, 2006. Because Plaintiff may proceed only on those claims he exhausted prior to the bringing of this lawsuit, see Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 534-35 (7th Cir. 1999); Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998), cert. denied, 526 U.S. 1133, 119 S. Ct. 1809, 143 L. Ed. 2d (1999); Hattie v. Hallock, 16 F. Supp. 2d 834, 836 (N.D. Ohio 1998); his remaining claims should be dismissed without prejudice.
Considering only the claims that were exhausted in the emergency grievance to Secretary McDonough dated March 21, 2006, those claims fail to state a constitutional violation. Liberally construing Plaintiff's allegations, his March 21, 2006 grievance to Secretary McDonough concerned the threats by Defendants Kennedy, Daughtry, and Cassiday that occurred from March 13-15, 2006 ( see Doc. 20 at 15-16). Plaintiff claims that the threats violated his First, Eighth, and Fourteenth Amendment rights, as well as his right to practice his religion guaranteed by RLUIPA.
To the extent Plaintiff claims that Defendants' conduct violated the Eighth Amendment, he has failed to state a constitutional claim. The Eighth Amendment "does not authorize judicial reconsideration of `every governmental action affecting the interests or well-being of a prisoner.'" Campbell v. Sikes, 169 F.3d 1353, 1362 (11th Cir. 1999) (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1988)). "If prison conditions are merely `restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.'" Chandler v. Crosby, 379 F.3d 1278, 1288-89 (11th Cir. 2004) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). Prison conditions rise to the level of an Eighth-Amendment violation only when they involve the wanton and unnecessary infliction of pain. Id.; Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508, 2514, 153 L.Ed.2d 666 (2002); Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003); Campbell, 169 F.3d at 1362. To establish "unnecessary and wanton infliction of pain," Plaintiff is required to show "that officials acted with specific intent." Id. "[T]he exact nature of the specific intent required depends on the type of claim at issue." Id. at 1363.
To state an Eighth Amendment violation, a prisoner must satisfy both an objective and a subjective inquiry. Chandler, 379 F.3d at 1289-90; Farrow, 320 F.3d at 1243. Under the objective component, a prisoner must prove that the condition of which he complains is sufficiently serious to violate the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992). Specifically, a prisoner must prove a "serious medical need" or the denial of "the minimal civilized measure of life's necessities."Chandler, 379 F.3d at 1289-90; Farrow, 320 F.3d at 1243;Rhodes, 452 U.S. at 347. "The challenged prison condition must be `extreme'" and must pose "an unreasonable risk of serious damage to his future health." Chandler, 379 F.3d at 1289-90 (quoting Hudson, 503 U.S. at 9) (other citation omitted).
Under the subjective component, the prisoner must prove that the prison official acted with "deliberate indifference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994) (stating that an individual may be held liable under the Eighth Amendment only if "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference"); Hudson, 503 U.S. at 8;Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991). To prove deliberate indifference, the prisoner must show that the defendant prison official "`acted with a sufficiently culpable state of mind'" with regard to the serious prison condition or serious medical need in issue.Chandler, 379 F.3d at 1289 (quoting Hudson, 503 U.S. at 8). Negligence or even gross negligence does not satisfy this standard. Id.; Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996).
The Eighth Amendment's proscription of cruel and unusual punishments also governs prison officials' use of force against inmates. See Whitley, 475 U.S. at 327 (holding that "the Due Process Clause affords [convicted prisoners] no greater protection than does the Cruel and Unusual Punishments Clause"). To establish an Eighth Amendment claim for excessive force, however, Plaintiff must meet an intent requirement more stringent than Farmer's deliberate-indifference standard: he must prove that "force was applied . . . maliciously and sadistically for the very purpose of causing harm." Whitley, 475 U.S. at 320-21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)); see also Hudson, 503 U.S. 1, 6-7, 112 S.Ct. 995. TheWhitley standard — force applied maliciously and sadistically to cause harm — applies to all claims that prison officials used excessive force against convicted prisoners. Campbell, 169 F.3d at 1374.
As noted by the Eleventh Circuit,
In addition to defining the mental state required, Hudson and Whitley outline five distinct factors relevant to ascertaining whether force was used "maliciously and sadistically for the very purpose of causing harm": (1) "the extent of injury"; (2) "the need for application of force"; (3) "the relationship between that need and the amount of force used"; (4) "any efforts made to temper the severity of a forceful response"; and (5) "the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of facts known to them."Id. at 1375 (quoting Whitley, 475 U.S. at 321, 106 S.Ct. 1078, and citing Hudson, 503 U.S. at 7, 112 S.Ct. 995).
Specifically with regard to threats by correctional officers, it is generally accepted that threats alone from a corrections officer are not cognizable as a violation of a constitutional right under section 1983. McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) ("mere threatening language and gestures . . . do not, even if true, amount to constitutional violations");Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987);Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979). That Defendants' threatening remarks may have intruded on Plaintiff's peace of mind and caused him to be afraid does not infringe upon a constitutional right. See Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989). Equally, racial or ethnic slurs do not rise to the level of a constitutional claim. See Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (per curiam). In short, "[t]he Constitution does not protect against all intrusions on one's peace of mind." Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1990).
Although other circuit courts have recognized some exceptions to this general rule, namely, where a prisoner alleges he suffered severe psychological harm resulting from a threat to kill accompanied by conduct supporting the credibility of the threat, see e.g., Northington v. Jackson, 973 F.2d 1518, 1522 (10th Cir. 1992) (parole officer's holding gun to prisoner's head while threatening to kill him), Hudspeth v. Figgins, 584 F.2d 1345 (4th Cir. 1978) (guard's threat to kill inmate combined with inmate's subsequent transfer from unsupervised work to work detail supervised by armed guards), or resulting from sexual abuse or harassment, see Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997), Plaintiff's allegations do not fall into these categories. Plaintiff alleges that Defendant Kennedy threatened to use the staff at WCI to "eliminate" him, that Defendant Daughtry threatened to torture, abuse, gas, and kill him, and that Defendant Cassiday threatened to gas, beat, and kill him ( see Doc. 20 at 15-16); however, Plaintiff does not allege that the threats were accompanied by conduct supporting the credibility of the threats. As idle threats do not rise to the level of a constitutional violation, Plaintiff cannot state a claim under the Eighth Amendment.
Plaintiff has also failed to state a claim under the First Amendment and RLUIPA. "In the First Amendment context . . . a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Lawson v. Singletary, 85 F.3d 502, 509 (11th Cir. 1996). A prisoner's right to exercise his religion is not absolute; it is only required that he be accorded a reasonable opportunity to pursue his religion. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam). Thus, while inmates maintain a constitutional right to freely exercise their sincerely held religious beliefs, this right is subject to prison authorities' interests in maintaining safety and order. O'Lone v. Estate of Shabazz, 482 U.S. 342, 345, 107 S.Ct. 2400, 2402, 96 L.Ed.2d 282 (1987); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Cruz v. Beto, supra. The Supreme Court held in Turner that when a prison regulation or policy impinges upon an inmate's constitutional rights, the policy is valid if it is reasonably related to legitimate penological interests. Turner, 482 U.S. at 89-91, 107 S.Ct. at 2261-63; Pope v. Hightower, 101 F.3d 1382, 1384 (11th Cir. 1996). Prison administrators should be given great deference in adopting and executing policies and practices. Absent substantial evidence in the record indicating that officials exaggerated their response to considerations of order, discipline, and security, courts ordinarily should defer to their judgment. See Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979); see also McCorkle v. Johnson, 881 F.2d 993 (11th Cir. 1989).
The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) provides a standard of review less deferential to prison officials:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person . . . is in furtherance of a compelling governmental interest and . . . is the least restrictive means of furthering that compelling governmental interest.42 U.S.C. § 2000cc-1(a).
In the instant complaint, Plaintiff has failed to establish a federal claim. Defendant Daughtry's alleged anti-Semitic statements and threats, although morally abhorrent, imposed no burden upon Plaintiff's exercise of his religion. Furthermore, Plaintiff cannot show that the confiscation of his twenty boxes of property, which included some religious material, imposed a burden upon his religious practice, as he admits that the property had been in storage since September of 2005 ( see Doc. 20 at 14). Because Plaintiff cannot show that Defendant Daughtry's conduct burdened or otherwise interfered with the practice of his religion, his claims under the First Amendment and RLUIPA should be dismissed.
To the extent Plaintiff contends that Defendants' conduct violated the Due Process Clause in addition to the First and Eighth Amendments, he cannot state a due process violation. If a constitutional claim is covered by a specific constitutional provision, such as the First or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process. See County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 1715, 140 L. Ed. 2d 1043 (1998) (citations omitted). Thus, substantive due process analysis is inappropriate if Plaintiff's claims are covered by another constitutional amendment. Id. In the instant case, Plaintiff's claims are covered by the First and Eighth Amendments; therefore, his due process claim should be dismissed.
Finally, in light of the fact that Plaintiff has failed to state a constitutional claim regarding the conduct of Defendants Kennedy, Daughtry, and Cassiday, Plaintiff's claims against Defendants Bush, Crist, McDonough, Abdul-Wasi, Kirkland, and Porter, in their supervisory capacities are also subject to dismissal.
Accordingly, it is respectfully RECOMMENDED:
1. That Plaintiff's claims against Defendants Kennedy, Daughtry, Cassiday, Bush, Crist, McDonough, Abdul-Wasi, Kirkland, and Porter under the First, Eighth, and Fourteenth Amendments and RLUIPA be DISMISSED WITH PREJUDICE for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii).
2. That Plaintiff's remaining claims be DISMISSED WITHOUT PREJUDICE for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), such dismissal being without prejudice to Plaintiff's filing a new action asserting his claims after he has exhausted his administrative remedies.
3. That all pending motions be DENIED as moot.