NELSON
v.
BURNHAM
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The court held that the plaintiff's pro se complaint failed to state a claim under 42 U.S.C. § 1983 against the named defendants.
An inmate sued several correctional officers alleging Eighth Amendment violations for excessive force and First and Fourteenth Amendment violations fo…
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Plaintiff, an inmate of the Florida penal system, initiated this action by filing a pro se Civil Rights Complaint (Doc. 1; Compl.) under 42 U.S.C. § l983. Plaintiff moves to proceed in forma pauperis (Docs. 3, 4). He names the following Defendants: Officer J. Burnham, Lieutenant J. DiMaurio, and Sergeant T. Spradley. Plaintiff’s primary claim is an alleged Eighth Amendment violation by Officer Burnham. Plaintiff alleges on July 25, 2019, Officer Burnham slapped and punched him while he was handcuffed and standing in a “blind spot.” Compl. at 3, 5. Plaintiff names Lieutenant DiMaurio and Sergeant Spradley as Defendants because they observed the incident from inside the lieutenant’s office but did nothing. Id. at 5. Plaintiff also alleges Officer Burnham violated his First and Fourteenth Amendment rights by engaging in a pattern of intimidation against him. Id. at 3, 6-7. As relief, Plaintiff seeks punitive, compensatory, and nominal damages. Id. at 8. Upon review of the Complaint, the Court concludes Plaintiff has failed to set forth his claims sufficiently. Federal Rule of Civil Procedure 8(a) requires a pleading to include a short and plain statement of the claim showing the pleader is entitled to relief. Rule 10(b) requires all averments of the claim be made “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” To survive dismissal, a complaint must allege facts, accepted as true, that state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard asks for less than a probability but “more than a sheer possibility that a defendant has acted unlawfully.” Id. To state a plausible claim, a plaintiff must do more than make conclusory assertions unsupported by factual allegations. First, Plaintiff fails to state a claim against Lieutenant DiMaurio and Sergeant Spradley. A viable claim under 42 U.S.C. §
1983 requires a plaintiff to establish two essential elements: the conduct complained of was committed by a person acting under color of state law, and this conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. According to Plaintiff, Lieutenant DiMaurio and Sergeant Spradley did not participate in the alleged use-of-force incident. And Plaintiff does not allege they were in a position to have intervened but did not. Rather, it appears Plaintiff names these Defendants solely because they are “ranked officials.” See Compl. at 5. Being a ranked official, however, does not result in liability under 42 U.S.C. § l983. In fact, the Eleventh Circuit has explicitly rejected supervisory liability as a theory of recovery under § 1983. For a supervisor to be liable, the supervisor must personally participate in the alleged constitutional violation or there must be a causal connection between the supervisor’s actions and the alleged constitutional deprivation. Second, Plaintiff fails to state a First Amendment retaliation claim against Officer Burnham. While unclear, it appears Plaintiff contends Officer Burnham retaliated against him for filing grievances. Id. at 3. Plaintiff identifies numerous instances in which Officer Burnham, over a period of months, denied him certain privileges, was verbally abusive,1 or destroyed his personal property. Id. at 6-7. While Plaintiff mentions he engaged in protected speech (filing grievances), id. at 3, he does not allege facts demonstrating a causal connection between his protected speech and Officer Burnham’s actions against him. Plaintiff’s conclusory assertion that Officer Burnham engaged in
2. The amended complaint must name as defendants only those
who had been acting under color of state law and are responsible for the alleged constitutional violation(s).
3. The amended complaint must state the full names of each
defendant (to the extent Plaintiff knows them) in the style of the case on the first page and in section I.B.
4. The list of defendants named on the first page must match
the list of named defendants in section I.B.
5. The amended complaint (or a separate filing) must include current addresses for each defendant so the Court can direct service of process. 6. In section IV, “Statement of Claim,” there must be a clear description of how each defendant was involved in the alleged violation(s). The allegations should be stated in numbered paragraphs, each limited to a single set of circumstances. Plaintiff should separately explain the facts giving rise to his individual claims for relief, and he should clearly state how each defendant is responsible for each alleged violation.2
7. In section V, “Injuries,” there must be a statement concerning how each defendant’s action or omission injured Plaintiff.3
8. In section VI, “Relief,” there must be a statement of what Plaintiff seeks through this action.
Plaintiff must sign and date the amended complaint after the following statement on the form: Under Federal Rule of Civil Procedure 11, by signing below, I certify to the best of my knowledge, information, and belief that this complaint: (1) is not being presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) is supported by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4)
rg
JOEL B. TOOMEY
United States Magistrate Judge
Jax-6 c: Jeffrey Nelson