Palmer v. Laux et al
Filing
58
OPINION AND ORDER granting 37 Motion to dismiss and defendants Churilla, Reineck, Resty, and Gilberto are dismissed without prejudice; denying as moot 45 Motion to strike; striking improperly filed 57 Reply to response to motion; denying 55 m otion to amend/correct; dismissing defendants Laux, Edward, and McGanghain sua sponte pursuant to §1915A. The Clerk shall correct the spelling of defendant Gilberto's name by omitting the extra letter "I" that plaintiff added; docket a copy of plaintiff's proposed Third Complaint as an exhibit to the 55 motion to amend, enter judgment, and close the case. Signed by Judge John E. Steele on 9/12/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LESAMUEL PALMER, a/k/a King Zulu,
Plaintiff,
vs.
Case No.
2:10-cv-438-FtM-29DNF
T. LAUX, C.O. REINECK, T. GILBERTO,
C.O. RESTY, LIEUTENANT CHURILLA,
CPT.
EDWARD,
and
INSPECTOR
1
MCGANGHAIN,
Defendants.
________________________________
OPINION AND ORDER
This matter comes before the Court upon review of the Motion
to Dismiss Amended Complaint (Doc. #37, Motion) and attached
exhibits consisting of relevant disciplinary reports and a list of
prior disciplinary actions against Plaintiff, filed on behalf of
Defendants Churilla, Reineck, Resty and Gilberto.
In response to
the Motion, Plaintiff filed a “motion to strike” Defendants’ Motion
(Doc. #45) on April 15, 2011, which the Court construed to be
Plaintiff’s
response
See Order at Doc. #47.
in
opposition
to
Defendants’
Motion.
Plaintiff then filed a “Notice to the
Court” (Doc. #50) on May 3, 2011, requesting that the Court deny
Defendants’ Motion to Dismiss.
The Court considers both documents
to be Plaintiff’s response in opposition to Defendants’ Motion.
1
It appears Plaintiff misspelt Defendant Gilberto’s name. The
Clerk of Court is directed to correct the spelling and omit the
extra letter “I” Plaintiff added.
The Court also reviews Plaintiff’s motion for leave to file a
Third Complaint (Doc. #55), filed on July 18, 2011.
Defendants
filed a response in opposition (Doc. #56). Plaintiff filed a reply
(Doc. #57), without first seeking leave from the Court.
Plaintiff
frequently files civil cases in this Court and is aware of the rule
requiring him to seek leave before filing a reply.
Because
Plaintiff filed a reply in contradiction to the rules, the Clerk of
Court shall strike Plaintiff’s reply.
These matters are ripe for
review.
I.
Motion to File Third Complaint
Plaintiff moves to file a third amended complaint and attaches
a copy of his proposed Third Complaint.2
Plaintiff requests
permission to file a Third Complaint based on his “review[] [of]
the [D]efendants’ Motion to Dismiss.”
Doc. #55 at 1.
Plaintiff
submits that he now realizes that he made “certain errors in
drafting” and wishes to fix them.
Id.
Defendants oppose Plaintiff’s motion to amend, which they note
is filed six months after they filed their Motion to Dismiss, and
suggest
that
Defendants
Plaintiff
also
submit
is
engaging
in
“dilatory
that
allowing
Plaintiff
to
tactics.”
amend
the
complaint for a third time is futile because Plaintiff cannot
2
A copy of the proposed Third Complaint is currently located
only in the Court file. The Clerk is directed to docket a copy of
Plaintiff’s Third Complaint as an exhibit to Plaintiff’s Motion to
Amend (Doc. #55).
-2-
maintain his claim in this instance and change the allegations to
avoid the Heck3-bar.
Defendants also point out that Plaintiff has
already filed a previous amended complaint.
In sum, Defendants
submit that any amendments would be futile. See Doc. #56.
Under Federal Rule of Civil Procedure 15(a), a party may amend
its pleading as a matter of course within 21 days after serving it,
or 21 days after service of a responsive pleading.
“In all other
cases, a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.
The court should
freely give leave when justice so requires.”
Fed. R. Civ. P.
15(a)(2).
If the underlying facts or circumstances relied on by
the plaintiff may give rise to a proper subject of relief, leave to
amend “should be freely given.”
Hall v. United Ins. Co. of Am.,
367 F.3d 1255, 1262 (11th Cir. 2004).
However, a district court
may properly deny leave to amend under Rule 15 if such amendment is
because of “undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [or] futility of the amendment.”
Forman v. Davis, 371 U.S. 178, 182 (1962).
Here, Plaintiff has already filed an amended complaint as of
right. The Court will not permit Plaintiff to file a Third Amended
Complaint because to do so would cause undue delay. The Court also
3
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
-3-
finds that it appears Plaintiff has a dilatory motive.
The Court
further finds that allowing Plaintiff to file a Third Complaint in
this case would be an exercise of futility.
The Court has reviewed Plaintiff’s proposed Third Complaint
and finds that the changes are insignificant. Plaintiff appears to
have added at least one additional case in the case history
section.
See Proposed Third Complaint at 5 (listing case filed in
2011).
The
Court
further
finds
that
the
factual
averments
Plaintiff lists in support of the claim in the proposed Third
Complaint appear identical to the Second Amended Complaint. Id. at
13-14.
Plaintiff does add that he sustained injuries from the
alleged excessive use of force, including “damage to his nose.”
Id. at 14.
Another difference in the proposed Third Complaint is
that Plaintiff adds the following conclusory statement, in quotes,
at the end of the factual narrative: “‘For the purposes of this
litigation, I do not allege that the basis of the disciplinary
report, which has not been overturned, is invalid.
I allege that
the force that was used exceeded the force that would’ve [sic] been
required and that force was constitutionally excessive.’”
Id. at
14.
Plaintiff filed his proposed Third Complaint six months after
Defendants filed their Motion to Dismiss.
Plaintiff has not
explained why he required an additional six months to submit the
proposed
amendment,
after
the
-4-
Defendants
initially
alerted
Plaintiff to the issues in his operative complaint six months
earlier.
The Court also notes that Plaintiff continued to allege
that he did not receive a copy of the Motion to Dismiss from
Defendants, despite defense counsel’s assertions that he mailed
Plaintiff more than one copy.
Plaintiff never informed the Court
when he did in fact receive a copy of the Defendants’ Motion to
Dismiss.
By review of other pleadings Plaintiff filed in the
Court, the Court determined that Plaintiff had received a copy of
the Defendants’ Motion. Therefore, the Court agrees with Defendants
and finds that Plaintiff’s dilatory motive is apparent.
Moreover, the Court denies Plaintiff’s motion to amend because
the facts in the proposed Third Complaint do not differ from the
facts in Plaintiff’s Amended Complaint. Plaintiff’s proposed Third
Complaint only includes conclusory language that the purpose of the
litigation
is
“not
to
challenge
the
disciplinary
action.”
Plaintiff’s proposed addition of the aforementioned conclusory
language cannot overcome the Heck bar.
For the reasons discussed
hereafter, the Court finds that the action is, in part, barred by
Heck, and otherwise should be dismissed. Therefore, the Court also
denies Plaintiff’s motion to file a Third Complaint because to do
so would be futile.
II. FACTUAL BACKGROUND
LeSamuel Palmer, a pro se plaintiff who is in the custody of
the Florida Department of Corrections, initiated this action by
-5-
filing a Civil Rights Complaint pursuant to 42 U.S.C. § 1983.
Plaintiff is proceeding on his Amended Complaint (Doc. #11, Amended
Complaint)
and
attached
exhibits
(Doc.
#11-1)
consisting
Plaintiff’s inmate grievances and responses thereto.
of
Plaintiff
names as Defendants: Officers Laux, Reineck, Gilberto, Resty,
Churilla, Edward, and Inspector McGanghain.4
Amended Complaint at
1.
The incident giving rise to Plaintiff’s cause of action
occurred on April 12, 2010, at Charlotte Correctional Institution.
Id. at 12.
Plaintiff alleges that during an escort from his cell
to a “mental health group,” inmate E. Charles “made statements to
Plaintiff”
and
attempted
to
kick
Plaintiff.
Id.
Plaintiff
acknowledges making “2 small steps,” presumably toward inmate
Charles, at which point Defendant Laux “grabbed” Plaintiff and
“tried to force” him to the floor.
Id.
Plaintiff alleges then
Defendant Reineck “charged at Plaintiff” and tackled him to the
floor. Id. at 13.
Plaintiff claims the officers held him on the
floor for “5 minutes.”5
Id.
During this period of time, Plaintiff
claims that he told the officers that they used force on him “for
4
As of the date on this Order, only Defendants Reineck,
Gilberto, Resty, and Churilla have received service of process.
See docket. Defendants Laux, Edward and McGanghain have not
received service of process. Id.
5
The Court notes that in the inmate grievances Plaintiff
attaches to his Amended Complaint, Plaintiff claims the officers
held him on the floor for “20-30 minutes.”
Doc. #11-1 at 1.
-6-
no reason” and to “get off him” because they were “hurting him.”
Id.
According to the Amended Complaint, Defendants Gilberto, Resty
and Churilla6 relieved Defendants Laux and Reineck and helped
Plaintiff to his feet.
Id.
Plaintiff acknowledges “yelling,”
“y’all [sic] used force on me for no reason.”
Churilla ordered Plaintiff to be quiet.
Id.
Defendant
Plaintiff acknowledges
that he “refused” to comply with the officer Churilla’s order.
Plaintiff claims Churilla then ordered Defendants Gilberto and
Resty to “take Plaintiff down.”
Plaintiff claims Gilberto and
Resty “aggressively forced Plaintiff to the floor” and started to
kick and punch him in the back, head, and face while Churilla
watched.
Plaintiff alleges that Defendant Edward then walked by,
did
intervene,
not
Plaintiff
inside
and
the
directed
Lieutenant’s
Resty
and
office.
Gilberto
to
Plaintiff
take
claims
Defendants Resty and Gilberto took Plaintiff to the office, ran
Plaintiff’s face first into the door, slammed Plaintiff’s body on
the desk, and “kicked Plaintiff hard in the rear end” while calling
him names. Id.
The episode apparently ended at an unidentified
period of time after Plaintiff “begged” them to stop.
Id.
Plaintiff claims that he previously reported to Inspector
McGanghain that he was afraid to live in F-dorm.
6
In the Amended Complaint,
Churilla’s name, “Corilla.”
-7-
Plaintiff
Id.
Plaintiff
misspells
Defendant
states he was afraid because he had issues with other inmates and
had a lawsuit filed.
Id.
Defendants Gilberto and Resty move to dismiss this action
pursuant to Fed. R. Civ. P. 12(b)(1) on the basis that the court
lacks subject matter jurisdiction because Plaintiff’s claims are
barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v.
Balisok, 520 U.S. 641 (1997).
Motion at 3-6. Defendants Gilberto
and Resty point out that Plaintiff received a disciplinary report
for the incident at issue in the Amended Complaint, for which he
lost gain time, and the disciplinary conviction remains valid. See
Id. at 8.
would
Defendants submit that a finding in Plaintiff’s favor
necessarily
conviction.
imply
the
Id. at 8-11.
invalidity
of
his
disciplinary
Defendants further submit that a
12(b)(1) dismissal is proper in this instance because a Heck
dismissal, similar to a dismissal for failure to exhaust, is
generally
not
an
adjudication
(citations omitted).
on
the
merits.
Id.
at
3-6.
In the alternative, Defendants Gilberto,
Resty, and Churillo move for dismissal under Fed. R. Civ. P.
12(b)(6) claiming they are entitled to qualified immunity.
11-13.
Id. at
Defendants Reineck also moves for dismissal pursuant to
12(b)(6) and claims he is entitled to qualified immunity.
13.
-8-
Id. at
III.
Applicable Law
A motion to dismiss pursuant to Rule 12(b)(1) provides for a
dismissal
of
an
jurisdiction.
action
if
the
court
lacks
subject
matter
When reviewing a motion to dismiss for lack of
subject matter jurisdiction, the allegations of the complaint
should be construed in a light most favorable to the pleader.
Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); Cole v. United States,
755 F.2d 873, 878 (11th Cir. 1985).
jurisdiction come in two forms.
Attacks on subject matter
Carmichael v. Kellogg, Brown &
Root Servs., Inc., 572 F.2d 1271, 1279 (11th Cir. 2009); Lawrence
v. Dunbar, 919 F.2d 1525, 1528 (11th Cir. 1990).
The first is a
facial attack on the complaint, which requires the court to see
whether plaintiff has sufficiently alleged a basis of subject
matter jurisdiction.
facial validity,
Lawrence, 919 F.2d at 1529.
the
court
must
take
the
complaint as true for purposes of the motion.
In considering
allegations
Id.
in
the
In contrast, as
in the instant case, a factual attack challenges the existence of
subject matter jurisdiction, or the court’s power to hear the case.
Id.
The court can look outside the pleadings in order to make its
determination, and the court is free to weigh the evidence in order
to determine whether it has jurisdiction.
Id.; see also Bryant v.
Rich,
2008)(stating
530
F.3d
1368,
1376
(11th
Cir.
“[w]here
exhaustion--like jurisdiction, venue, and service of process--is
treated as a matter in abatement and not an adjudication on the
-9-
merits, it is proper for a judge to consider facts outside of the
pleadings and to resolve factual disputes so long as the factual
disputes do not decide the merits and the parties have sufficient
opportunity to develop the record.”).
The Court nonetheless will
liberally construe Plaintiff’s pro se pleadings and hold the
pleadings to a less stringent standard than pleadings drafted by an
attorney.
Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)
(citing Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998)).
In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits its
consideration
to
well-pleaded
factual
allegations,
documents central to or referenced in the complaint, and matters
judicially noticed.
La Grasta v. First Union Sec., Inc., 358 F.3d
840, 845 (11th Cir. 2004).
Thus, the Court must accept all factual
allegations in Plaintiff’s Amended Complaint as true and take them
in
the
light
most
favorable
to
the
plaintiff.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
Pielage
v.
Conclusory
allegations, however, are not entitled to a presumption of truth.
Ashcroft
v.
Iqbal,
556
U.S.
___,
129
S.
Ct.
1937,
1951
(2009)(discussing a 12(b)(6) dismissal); Marsh v. Butler County,
Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001).
The Court employs the Twombly-Iqbal plausibility standard when
reviewing a complaint subject to a motion to dismiss.
Scott, 610 F.3d 701, 708, n.2 (11th Cir. 2010).
-10-
Randall v.
A claim is
plausible where the plaintiff alleges facts that “allow[] the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
Ct. 1937, 1949 (2009).
plaintiff
allege
Ashcroft v. Iqbal, 556 U.S. ____, 129 S.
The plausibility standard requires that a
sufficient
facts
“to
raise
a
reasonable
expectation that discovery will reveal evidence” that supports the
plaintiff’s claim.
556 (2007);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
Marsh, 268 F.3d at 1036 n.16.
Specifically, “[w]hile
a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations . . . a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Id. at 555 (citations
omitted). Thus, “the-defendant-unlawfully harmed me accusation” is
insufficient.
Ashcroft, 129 S. Ct. at 1949.
“Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.”7
Id.
7
The Prison Litigation Reform Act requires that the Court
review all complaints filed by prisoners against a governmental
entity to determine whether the action is “frivolous, malicious, or
fails to state a claim upon which relief can be granted; or seeks
monetary relief from a defendant who is immune from such relief.”
See 28 U.S.C. § 1915A(a), (b)(1), (b)(2). In essence, § 1915A is
a screening process to be applied sua sponte and at any time during
the proceedings.
In reviewing a complaint, however, the Court
accepts the allegations in the complaint as true, Boxer v. Harris,
437 F.3d 1107, 1110 (11th Cir. 2006), and applies the long
established rule that pro se complaints are to be liberally
construed and held to a less stringent standard than pleadings
(continued...)
-11-
A complaint must satisfy the pleading requirements of Fed. R.
Civ. P. 8 by simply giving the defendant fair notice of what the
plaintiff’s claims are and the grounds upon which they rest.
Conley v. Gibson, 355 U.S. 41 (1957).
However, the “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.”
See Twombly, 550 U.S. 544, 127 S. Ct. 1955,
1965, 1968-69 (citations omitted).
Additionally, there is no
longer a heightened pleading requirement.
Randall, 610 F.3d at
701.
IV.
Analysis
Defendants Reineck and Laux8
A.
According to the Amended Complaint, Defendant Reineck assisted
Defendant Laux with the initial use of force against Plaintiff,
after inmate Charles and Plaintiff exchange words and a fight
between the two inmates was imminent.
7
Amended Complaint at 13.
(...continued)
drafted by attorneys.
Erickson v. Pardus, 551 U.S. 89, 94
(2007)(citations omitted).
Pursuant to § 1915A, the Court “shall” dismiss the complaint,
if, inter alia, it fails to state a claim upon which relief may be
granted. § 1915(b)(1). The standards that apply to a dismissal
under Fed. R. Civ. P. 12(b)(6) apply to a dismissal under §
1915(b)(1). Leal v. Georgia Dep’t of Corr., 254 F.3d 1276, 1278-79
(11th Cir. 2001).
8
Here, Defendant Laux has not received service of process as
of the date on this Order. Nevertheless, the same facts alleged
against Defendant Reineck in the Amended Complaint are alleged
against Defendant Laux. The Court notes that these officers were
involved in the initial use-of-force on April 12, 2010. Therefore,
the Court will sua sponte address the claims against Defendant Laux
pursuant to § 1915A.
-12-
Defendant Reineck moves to dismiss the action pursuant to Fed. R.
Civ. P. 12(b)(6) because the Amended Complaint “has not alleged a
malicious and gratuitous use of force by Officer Reineck devoid of
penological justification.”
Motion at 13.
The Court agrees.
The Eighth Amendment, which applies to the states through the
Fourteenth Amendment, can give rise to claims challenging the
excessive use of force. Thomas v. Bryant,614 F.3d 1288, 1305 (11th
Cir.
2010)(reviewing
categories
of
claims
under
the
Eighth
Amendment). An excessive-force claim requires a two-prong showing:
(1)
an
objective
showing
of
deprivation
or
injury
that
is
“sufficiently serious” to constitute a denial of the “minimal
civilized measure of life’s necessities”; and, (2) a subjective
showing that the official had a “sufficiently culpable state of
mind.”
Id.
(citing
Farmer
(1994)(citations omitted).
infliction
of
pain”
caused
v.
Brennan,
511
U.S.
825,
834
It is the “unnecessary and wanton
by
force
used
“maliciously
and
sadistically” for the very purpose of causing harm that constitutes
cruel and unusual punishment. Whitley v. Albers, 475 U.S. 312, 322
(1986).
Thus, where an Eighth Amendment claim is based upon
allegations of excessive force, the question turns on whether the
prison guard’s “force was applied in a good faith effort to
maintain or restore discipline or maliciously or sadistically for
the very purpose of causing harm.”
1271 (11th Cir. 2005).
Bozeman v. Orum, 422 F.3d 1265,
To determine whether force was applied
-13-
“maliciously
and
sadistically,”
courts
consider
the following
factors: “(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.”
Campbell v. Sikes,
169 F.3d 1353, 1375 (11th Cir. 1999) (quotations and citations
omitted).
Moreover, in the context of prison discipline, a distinction
is made between “punishment after the fact and immediate coercive
measures necessary to restore order or security.”
813 F.2d 318, 324-325 (11th Cir. 1987).
Ort v. White,
When a prison’s internal
safety is of concern, courts conduct a more deferential review of
the prison officials’ actions.
1575
(11th
Cir.
Williams v. Burton, 943 F.2d 1572,
1991)(citations
omitted).
Indeed,
“[t]hat
deference extends to a prison security measure taken in response to
an actual confrontation with riotous inmates, just as it does to
prophylactic
or
preventive
measures
intended
to
reduce
the
incidence of these or any other breaches in prison discipline.”
Whitley, 475 U.S. at 322; see also Bell v. Wolfish, 441 U.S. 520,
547 (1979).
The Amended Complaint and the attachments thereto establish
that Defendants’ use-of-force on Plaintiff was justified in order
-14-
to avert an imminent physical altercation between Plaintiff and
inmate Charles.
The Amended Complaint and attachments thereto
further establish that the amount of force used by Defendants Laux
and
Reineck
Amendment.
was
not
so
excessive
as
to
violate
the
Eighth
Amended Complaint at 14.
According to Plaintiff’s Amended Complaint, inmate Charles
exchanged words with Plaintiff and kicked Plaintiff’s left leg.
See Amended Complaint; Doc. #11-1 at 1.
Plaintiff acknowledges
that he took “two steps” toward inmate Charles.
at 12.
Amended Complaint
Plaintiff’s attachments to his Amended Complaint show that
Plaintiff, indeed, attempted “to go after” inmate Charles.
#11-1
at
5,
9.
Defendant
Laux
initially
tried
to
Plaintiff, but was unable to do so without assistance.
Doc.
restrain
Defendant
Reineck came to help Defendant Laux. Defendant Reineck was able to
force Plaintiff to the ground and keep him restrained on the floor
for
approximately
five
minutes.
Amended
Complaint
at
13.
Therefore, a review of the Amended Complaint and attachments
thereto establish that Defendant Laux initially tried to restrain
Plaintiff
and was
unable
to
control him
by
himself.
Amended
Complaint at 12 (stating Laux “tried” to force him to the ground).
Defendant Reineck responded to help Defendant Laux and had no
choice but to use force on Plaintiff to keep the situation between
Plaintiff and inmate Charles from escalating.
Id. at 9 (stating
officers Reineck and Laux prevented Plaintiff from assaulting
-15-
another inmate). The Amended Complaint, attachments thereto, and
the related disciplinary report shows that the amount of force used
was only the amount necessary to gain control of the situation and
was not excessive. Therefore, the Court grants the 12(b)(6) Motion
as to Defendant Reineck and sua sponte dismisses Defendant Laux
pursuant to § 1915A.
B.
Defendants Gilberto, Resty, and Churilla
Defendants Gilberto, Resty, and Churilla submit that the Court
lacks subject matter jurisdiction because Plaintiff’s claims are
barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).9
Motion
at 3-11.
In Heck, the United States Supreme Court held:
[I]n order to recover damages for [an] allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254. A claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.
Thus, when a state
prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the
9
In Response, Plaintiff requests that the Court strike the
Defendants’ Motion.
Doc. #45.
Plaintiff also re-submits that
Defendants never mailed him a copy of their Amended Complaint.
Doc. #50.
It is evident that Plaintiff did receive a copy of
Defendants’ Motion. See Order at Doc. #47; Plaintiff’s Motion at
Doc. #55 (acknowledging need to amend based on deficiencies noted
in the Defendants’ Motion, which he apparently received).
-16-
plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.
Heck, 512 U.S. at 486-87 (emphasis added)(internal citation and
footnote omitted). The United States Supreme Court has applied the
Heck analysis to actions brought by prisoners who are challenging
disciplinary proceedings in jails.
See Edwards v. Balisok, 520
U.S. 641, 643-649 (1997); Roberts v. Wilson, 259 F. App’x 226, 228,
2007 WL 4336446 (11th Cir. Dec. 13, 2007).
In Balisok, the plaintiff initiated a § 1983 action alleging
defendants violated his due process rights during a disciplinary
hearing, which resulted in the plaintiff’s loss of good-time
credits.
action
Id. at 643.
was
not
The Balisok Court concluded that a § 1983
cognizable,
even
though
the
plaintiff
was
challenging the procedure and not the result, because a finding in
favor of the plaintiff would “necessarily imply the invalidity of
the punishment imposed.”
Id. at 648.
The Court held that a
prisoner could not pursue such an action unless the prisoner had
successfully invalidated the disciplinary report.
Id. at 646-68;
see also Wilkinson v. Dotson, 544 U.S. 74 (2005)(finding a state
prisoner’s § 1983 action is barred--absent prior invalidation--no
matter the relief sought--damages or equitable relief--no matter
the
target
of
the
prisoner’s
suit--state
action
leading
to
conviction or internal prison proceedings--if success in that
action would necessarily invalidate prisoner’s confinement).
-17-
However, the Court has rejected the view that Heck applies to
all suits challenging prisoner disciplinary proceedings.
See
Muhammad v. Close, 540 U.S. 749, 754-55 (2004); see also Beecher v.
Jones, Case No. 3:08-cv-416, 2010 WL 5058555 (N.D. Fla. Oct. 29,
2010)(finding the plaintiff did not “steer his case” into Heck
territory because according to the complaint “[p]laintiff could
have committed all of the acts set forth in the DR and hearing team
decision, yet the manner in which the chemical agent was applied,
the duration of its application, etc., could still constitute the
use of excessive force.”).
In Muhammad, the Court declined to
extend Heck to a prisoner’s § 1983 action claiming a constitutional
violation based on his pre-hearing confinement.
The Court held
that this plaintiff’s action did not challenge the conviction, the
disciplinary action, nor did he seek expungement of the misconduct
finding, so it was not “construed as seeking a judgment at odds
with his conviction.”
Id. at 754-55.
In the instant case, the Court finds that Plaintiff has
steered his case into Heck territory.
whether
a
claim
allegations.
is
barred
by
Heck
The Court’s determination
turns
on
the
Plaintiff’s
Plaintiff’s claims in this action are directly
contrary to the facts upon which Plaintiff’s disciplinary charges
are based.
See Def’s Exh. G (copy of disciplinary report log
number 510-100650); Amended Complaint at 13; Doc. #11-1 at 4-5, 67, 8-9, 10-12 (inmate grievances raising various issues with
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disciplinary
report).
The
record
establishes
that
Plaintiff
received a disciplinary report for disobeying officers’ orders on
the evening of April 12, 2010. In the Amended Complaint, Plaintiff
maintains that he did nothing wrong to justify Defendants’ use of
force on him.
See generally Amended Complaint.
On April 12, 2010, Defendant Gilberto issued Plaintiff a
disciplinary report (log no. 510-100650), charging as follows:
On 4/12/10 at approximately 7:00 p.m. after Officer Resty
and I had relieved Officer Laux and Officer Reineck from
their escort of inmate Palmer, LeSamuel DC#L41847, cell
F3-214, Officer Resty and I assisted Inmate Palmer to his
feet and escorted him out of the quad due to the fact
that force had just been used on him, to the sally port.
Once in the sally port inmate Palmer attempted to break
free from our escort. I ordered inmate Palmer to cease
his actions to which he refused to comply. Inmate Palmer
continued his attempt to break free from the escort as he
kept twisting his body back and forth while leaning
backwards. I again ordered inmate Palmer to cease his
actions and comply with the orders and instructions to
which he again refused to comply.
It then became
necessary to use force. Officers Petko and Jones were
also present.
Def’s Exh. G at 25.
report.
Officer Edwards approved the disciplinary
Id.
The disciplinary team began its investigation on April 12,
2010, and concluded the inquiry on April 16, 2010.
Id.
On April
12, 2010, after concluding the investigation, reviewing inmate
witness’ statements, and reviewing the officers’ statements, the
disciplinary
officers’
team
orders.
found
As
Petitioner
a
result,
guilty
the
of
disobeying
disciplinary
team
the
gave
Plaintiff twenty-days in disciplinary confinement and imposed a
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twenty-day loss of gain time.
Id.
The disciplinary report still
stands and has not been expunged, reversed, or invalidated. Id. at
26.
Plaintiff’s basis for this action is wholly inconsistent with
the facts upon which the disciplinary conviction is based.
A
judgment in favor of Plaintiff, finding that Defendants Giliberto
and Resty attacked Plaintiff without provocation in violation of
the Eighth Amendment, while Defendants Churilla and Edward10 failed
to
intervene,
would
necessarily
imply
the
disciplinary charge of disobeying an order.
invalidity
of
the
See Richards v.
Dickens, 411 F. App’x 276, 278, 2011 WL 285212 (11th Cir. Jan. 31,
2011).
Plaintiff is not alleging that the officers’ use of force
in response to his failure to comply with orders was excessive.
Instead, Plaintiff is alleging the correctional officers engaged in
an unprovoked attack for no apparent reason and the disciplinary
report is false.
See Amended Complaint at 13; Pl’s Exhs., Doc.
#11-1 at 1 (stating “I was never resisting.”); Doc. #11-1 at 4
(stating “The DR [is] no good.”); Doc. #11-1 at 6 (challenging same
disciplinary report and claiming that Plaintiff never attempted to
kick inmate Charles); Doc. #11-1 at 8 (challenging disciplinary
report).
Thus, the Court finds Defendants’ Motion must be granted
because Plaintiff’s claim is not cognizable under § 1983 based on
10
Defendant Edward has not received service of process.
Therefore, the Court addresses the claims against Defendant Edward
sua sponte pursuant to s. 1915A.
-20-
Heck.
Because the Court finds that Plaintiff has not set forth a
violation of a constitutional right, or his claim is otherwise
barred by Heck, the Court need not address Defendants’ qualified
immunity argument.
C.
Defendant Inspector McGanghain
As
previously
noted,
service
effectuated on Defendant McGanghain.
of
process
See docket.
has
not
been
Therefore, the
Court addresses the claims against McGanghain sua sponte pursuant
to § 1915A.
Defendant McGanghain is only mentioned once in the Amended
Complaint.
Id.
at
13.
Plaintiff
alleges
that
he
notified
Defendant McGangahain that he “did not feel safe at F-dorm” because
he had issues with “other inmates” and “have lawsuit [sic].”
Id.
The events giving rise to this action happened in the F-dorm
at Charlotte Correctional.
Nevertheless, the Court finds the
allegations in the Amended Complaint are insufficient to state a
claim against Defendant McGanghain.
As evidenced by the Amended
Complaint, the attachments thereto, and by the Defendants’ copy of
the related disciplinary report, the correctional officers named in
this action prevented an attack between Plaintiff and inmate
Charles. Plaintiff does not allege that Inspector McGanghain knew,
or had reason to know, that inmate Charles posed a serious risk of
harm to Plaintiff.
Likewise, the Amended Complaint contains no
allegations that Plaintiff was in fear of the correctional officers
-21-
named in this action, or that Plaintiff told McGanghain that he was
in fear of these officers, or had received threats of harm by these
officers.
The Court cannot conceive of a constitutional claim
against Defendant McGanghain based on the facts alleged in the
Amended
Complaint.
Therefore,
the
Court
dismisses
Defendant
McGanghain pursuant to §1915A.
ACCORDINGLY, it is hereby
ORDERED:
1. The Clerk of Court shall strike Plaintiff’s improperly
filed Reply (Doc. #57) to Defendants’ response in opposition to
Plaintiff’s Motion to Amend.
2.
The Clerk is directed to docket a copy of Plaintiff’s
proposed Third Complaint as an exhibit to Plaintiff’s Motion to
Amend (Doc. #55).
3.
4.
Plaintiff’s Motion to Amend (Doc. #55) is DENIED.
The Motion to Dismiss (Doc. #37) filed on behalf of
Defendants Churilla, Reineck, Resty, and Gilberto is GRANTED and
these Defendants are dismissed without prejudice.
5.
The Court sua sponte dismisses Defendants Laux, Edward,
and McGanghain pursuant to § 1915A.
6. Plaintiff’s motion to strike Defendants’ Motion to Dismiss
(Doc. #45) is DENIED as moot.
-22-
7. The Clerk of Court is directed to correct the spelling of
Defendant Gilberto’s name by omitting the extra letter “I” that
Plaintiff added.
8.
The Clerk of Court shall enter judgment accordingly and
close this case.
DONE AND ORDERED at Fort Myers, Florida, on this
of September, 2011.
SA: alj
Copies: All Parties of Record
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12th
day
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