Brazill v. Cowart et al

Filing 27

OPINION AND ORDER denying 25 Motion to dismiss. Defendant Coward shall file an Answer and Affirmative Defenses within 21 days. The Court sua sponte dismisses Holmes pursuant to § 1915A. The Clerk shall enter judgment accordingly as to Holmes and correct the caption of the case. Signed by Judge John E. Steele on 2/8/2012. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NATHANIEL R. BRAZILL,
Plaintiff,
vs.

Case No.

2:10-cv-458-FtM-29DNF

BETH E. COWART, RONALD L. HOLMES, G.
MORRIS, S. PARKER and J. LAWSON
Defendants.
________________________________
OPINION AND ORDER
This matter comes before the Court upon review of Defendant
Cowart’s Motion to Dismiss (Doc. #25, Motion).

Plaintiff filed a

response (Doc. #26, Response) in opposition, attaching as exhibits
his own affidavit, and additional inmate grievances and responses
thereto.

This matter is ripe for review.
I.

Plaintiff

Nathaniel

Facts

Brazill,

who

is

proceeding

pro

se,

initiated this action as a prisoner in the custody of the Florida
Department of Corrections by filing a Complaint pursuant to 42
U.S.C.

§

1983.

Plaintiff

is

now

proceeding

on

his

Amended

Complaint (Doc. #21, Amended Complaint) against Beth Cowart, Ronald
Homes, G. Morris, S. Parker, and J. Lawson, in their official and
individual capacities.1

See Amended Complaint.

Plaintiff states

that Defendant Beth Cowart was the Chief of Security at Desoto

1

Service of process has not yet been executed on Defendants
Holmes, Morris, Parker, and Lawson.

Correctional and a member of the Institutional Classification Team
who had the authority to make inmate status decisions or direct
that inmate special review classification be requested from the
State Classification Officers; Defendant Ronald Holmes was the
Assistant

Warden at

DeSoto

Correctional

and

a member

of

the

Institutional Classification Team who was responsible for making
inmate status decisions at the institution or directing inmate
special

review

Officers;

classifications

Defendants G.

Morris

from
and

the
S.

State

Parker

Classification
were

the

State

Classification Officers for the Florida Department of Corrections,
and

either

Defendant

approved
J.

Lawson

or
was

Correctional Institution.

disproved
the

of

Chief

inmate
of

transfers;

Security

at

and,

Hardee

Id. at 3-4.

The gravamen of the Amended Complaint is that Plaintiff was
transferred twice from different institutions within the Department
of Corrections and placed in administrative confinement on two
occasions in retaliation for filing a state civil action against
Defendants Cowart and Holmes.

See generally Amended Complaint.

Specifically, Plaintiff alleges that on September 11, 2009, he
filed a civil complaint in State court against Defendant Cowart and
Holmes challenging the conditions of his confinement at Desoto
Correctional.

Id. at 4.

The Defendants were served process on

October 9, 2009, while Plaintiff was away from Desoto Correctional.
Id. at 5.

On October 28, 2009, Plaintiff returned to DeSoto

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Correctional. Id. On October 3, 2009, Plaintiff alleges that Mrs.
Lottie

Rember,

Desoto’s

former

law

library

supervisor,

told

Plaintiff to “watch himself” because Defendant Cowart was mad about
the lawsuit.

Id.

On November 5, 2009, Plaintiff claims that

Lieutenant McKenzie told Defendant Cowart about Plaintiff’s return
to Desoto Correction, and that same afternoon Plaintiff was placed
on

administrative

Plaintiff

confinement.

inquired

about

the

Id.

On

reason

November

for

his

11,

2009,

placement

in

confinement and Defendant Cowart responded that he was “under
investigation.”

Id. at 6.

That same day Plaintiff wrote to Mrs.

Ardine

who

Plaintiff’s

Primus,

was

classification

inquiring about the reason for his confinement.

officer,

Plaintiff claims

Mrs. Primus told him “pending transfer, due to litigation about
staff at Desoto C.I.”

Id.

Plaintiff states that he was held in

confinement for twenty-seven days.

Id.

Plaintiff alleges that between November 5, 2009 and December
2,

2009,

Defendant

Morris

approved

a

“special

classification and transfer” of Plaintiff from DeSoto.

review

Id. at 7.

Plaintiff claims the transfer was approved due to the lawsuit
Plaintiff filed against Defendant Cowart and Holmes.
December

2,

2009,2

Plaintiff

was

transferred

from

Id.

On

DeSoto

2

The date of Plaintiff’s transfer from Desoto to Okeechobee
could either be December 2, 2009, or December 8, 2009.
Significantly, the Amended Complaint alleges Plaintiff was
transferred on December 2, but does not say to where he was
(continued...)
-3-

Correctional to Okeechobee Correctional, which is approximately 85
miles away from the majority of Plaintiff’s approved visitors. Id.
at 6-8.
On July 22, 2010, Defendant Cowart accepted a staff position
at Okeechobee.

That same day, Plaintiff claims Mr. J.A. Hardaker,

who was Plaintiff’s classification officer, told Plaintiff that he
“was to be immediately transferred because Defendant Cowart did not
want him at Okeechobee with her.”

Id. at 7.

That same day,

Defendant Parker approved a “special review classification and
transfer” of Plaintiff from Okeechobee.

Plaintiff claims the

transfer was approved due to the lawsuit he filed against Defendant
Cowart while at Desoto.

Id.

On August 3, 2010, Plaintiff was transferred from Okeechobee
to Hardee Correctional, which is approximately 170 miles away from
the majority of Plaintiff’s approved visitors.

Id. at 8.

On

January 3, 2011, Plaintiff claims he was placed in administrative
confinement

where

he

remained

until

January

6, 2011,

at

the

direction of Defendant Lawson, the Chief of Security at Hardee
Correctional, because Defendant Cowart was present at Hardee.

Id.

As relief Plaintiff seeks declaratory judgment, and nominal and
punitive damages against each Defendant.

2

Id. at 35-36.

(...continued)

transferred. Amended Complaint at 6, ¶ 29. The Amended Complaint
later states that Plaintiff was transferred on December 8, 2009 to
Okeechobee. Id. at 7, ¶32.
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Defendant Cowart moves to dismiss the Amended Complaint and
raises the following arguments in support: Plaintiff has not
exhausted his administrative remedies; the Amended Complaint fails
to state a retaliation claim against Defendant Cowart because there
are no facts alleging a causal connection;

Defendant Cowart is

entitled to qualified immunity; and, Plaintiff fails to state a
claim for punitive damages.

See generally Motion.

In Response,

Plaintiff opposes each of Defendant’s arguments, but concedes that
he has not adequately stated a claim for punitive damages.

See

generally Response.
II.

Standard of Review

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

McConnell,

most

516

F.3d

favorable
1282,

to

1284

the

plaintiff.

(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).

-5-

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).

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.”3

Id.

3

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
(continued...)
-6-

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.
III.
Defendant

Exhaustion of Administrative Remedies
Cowart

argues

that

Plaintiff

has

“failed

to

demonstrate that he exhausted his administrative remedies” based on
the grievances attached to his Amended Complaint
Response,

Plaintiff

asserts

that

whether

he

Motion at 5.

In

exhausted

his

administrative remedies is an affirmative defense that Defendant

3

(...continued)

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
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).
-7-

must prove, and therefore Defendant is improperly placing the
burden

on

the

Plaintiff

administrative remedies.

to

prove

that

Response at 4.

he

exhausted

his

Nevertheless, Plaintiff

submits that he will demonstrate that he exhausted his remedies
with respect to his claims against Defendant Cowart.

Id. at 4-7;

see also Inmate Grievances attached thereto.
The Prison Litigation Reform Act, which amended The Civil
Rights of Institutionalized Persons Act, provides as follows:
(a) Applicability of administrative remedies.
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)(emphasis added).
available
federal

administrative

court.

remedies

Woodford

v.

A prisoner must exhaust all

before

Ngo,

548

filing
U.S.

an

81,

action
88

in

(2006);

Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000).
Although prisoners are not required to plead exhaustion, Jones v.
Bock, 549 U.S. 199, 216 (2007), "[t]here is no question that
exhaustion is mandatory under the PLRA, and that unexhausted claims
cannot be brought in court."

Id. at 211; see also Bingham v.

Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).

In order to exhaust,

the inmate must comply with “all steps that the agency holds out,

-8-

and doing so properly (so that the agency addresses the issues on
the merits).”

Woodford, 548 U.S. at 90.

Whether an inmate has exhausted his available administrative
remedies is a factual issue that is properly made by the court.
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008).

Thus,

“[e]ven though a failure -to-exhaust defense is non-jurisdictional,
it is like a defense for lack of jurisdiction in one important
sense:

Exhaustion

of

administrative

remedies

is

a

matter

in

abatement, and ordinarily does not deal with the merits.”

Id.

(footnote,

The

internal

quotations,

and

citations

omitted).

defense of exhaustion is properly raised in a motion to dismiss as
a “matter of judicial administration.”

Id. at 1375.

Thus, the

court is permitted to look beyond the pleadings to decide disputed
issues of fact in connection with the exhaustion defense.

Id. at

1377, n.16.
Here, Defendant Cowart states that Plaintiff fails to show
that he exhausted his administrative remedies because Plaintiff did
not attach to his Amended Complaint copies of any grievances that
reference the November 5, 2009, and December 8, 2009 dates, on
which

Plaintiff

was

placed

transferred to Okeechobee.

in

administrative

Motion at 6.

confinement

and

Defendant also submits

that Plaintiff fails to attach to his Amended Complaint any inmate
grievances referencing the August 3, 2010 date, on which he was
-9-

transferred to Hardee Correctional, or the January 3, 2011 date, on
which

he

was

Correctional.

held

in

administrative

Id. at 6-7.

confinement

at

Hardee

Defendant, however, does not provide

documents to demonstrate that Plaintiff failed to exhaust his
administrative remedies. Jones, 127 S. Ct. at 914. Therefore, the
Court denies Defendant’s Motion
IV.

based on this argument.

Retaliation Claims

Prison officials may not retaliate against inmates for filing
lawsuits or administrative grievances. Wright v. Newsome, 795 F.2d
964, 968 (11th Cir. 1968)(per curiam).

While an inmate does not

have a constitutionally protected liberty interest against being
transferred to a less agreeable prison, Moody v. Daggett, 429 U.S.
78, 99 (1976), prison officials may not transfer an inmate in
retaliation for exercising his right to file grievances against
prison officials.
Cir. 1985).

Bridges v. Russell, 757 F.2d 1155, 1157 (11th

Such retaliatory transfers violate an inmate’s First

Amendment rights.

Wildberger v. Bracknell, 869 F.2d 1467, 1468

(11th Cir. 1989).

To prevail on a retaliation claim, the inmate

must establish that: (1) his speech was constitutionally protected;
(2)

the

inmate

suffered

adverse

action

such

that

official’s

allegedly retaliatory conduct would likely deter a person of
ordinary firmness from engaging in such speech; and (3) there is a
causal

relationship

between

the
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retaliatory

action

and

the

protected speech.

O’Bryant v. Finch, 637 F.2d 1207, 1212 (11th

Cir. 2011)(internal quotations omitted); Moton v. Cowart, 631 F.3d
1337, 1341-42 (11th Cir. 2011).

“To establish causation, the

plaintiff must show that the defendant was ‘subjectively motivated
to discipline’ the plaintiff for exercising his First Amendment
rights.”

Moton, 631 F.3d at 1341 (quoting Smith v. Mosley, 532

F.3d 1270, 1278 (11th Cir. 2008)).
A.

Defendant Cowart

In

the

instant

Motion,

Defendant

Cowart

argues

that

Plaintiff’s allegations of retaliation are conclusory in nature.
Motion at 8. Defendant submits that Plaintiff does not allege
specific facts linking Ms. Cowart with any retaliation.
The Court disagrees.

Id. at 9.

The Amended Complaint alleges that

Plaintiff was placed in administrative confinement for twenty-seven
days at DeSoto Correctional for an unspecified reason, i.e. that he
was “under investigation,” and that he was being held pending
transfer “due to litigation about staff at Desoto C.I.”4

Further,

Plaintiff’s administrative confinement occurred after Defendant
Cowart was served process in this State civil rights action, and
shortly after Defendant Cowart was aware of Plaintiff’s return. It
is well established that a prisoner exercises his First Amendment

4

Plaintiff alleges that Defendant Cowart was a Colonel and
Chief of Security at Desoto Correctional at the time.
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rights when he complains about his conditions of confinement.
Farrow, 320 F.3d at 1248.

Plaintiff alleges that prior to his

placement in confinement another correctional officer warned him
that Defendant Cowart was mad about the lawsuit. Plaintiff alleges
he was placed in confinement for a second time for a six day period
from January 3, 2011, to January 6, 2011, again for no reason while
incarcerated at Hardee Correctional, other than when Defendant
Cowart was visiting Hardee Correctional at that time.
Plaintiff also alleges that he was transferred from DeSoto
Correctional to Okeechobee Correctional and Okechoobee to Hardee
Correctional in retaliation for filing the State civil action
against

Cowart

because

Cowart

was

angry

about

the

lawsuit.

Plaintiff attaches an inmate grievance containing a response from
prison officials who state that Plaintiff was transferred from
DeSoto Correctional “due to the lawsuit [he] filed against the
[D]epartment of [C]orrections.”

See Doc. #21-1 at 8.

Plaintiff

claims he was transferred again from Okeechobee Correctional to
Hardee

Correctional

when

Okeechobee Correctional.

Defendant

Cowart

started

working

at

Plaintiff alleges that a correctional

officer told him he was transferred because Cowart did not want him
at Okeechobee with her.

Thus, the Amended Complaint alleges that

Cowart was motivated to hold him in administrative confinement and
transfer him based on his filing of a State civil rights action.
-12-

The

Court

finds

the

Amended

Complaint

sufficiently

states

a

retaliation claim against Defendant Cowart to withstand dismissal
at this stage of the proceedings.

O’Bryant v. Finch, 637 F.2d at

1212.

Plaintiff’s

Because

the

Court

finds

right

not

to

be

retaliated against for filing a State civil action was clearly
established, the Court denies Defendant’s Motion based on qualified
immunity.

Wright, 795 F.2d 964; Moody, 429 U.S. 78; Bridges, 757

F.2d 1155; Wildberger, 869 F.2d 1467.
B.

Defendant Holmes

As

previously

stated,

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.”
(b)(2).

See 28 U.S.C. § 1915A(a), (b)(1),

In essence, § 1915A is a screening process to be applied

sua sponte and at any time during the proceedings.
The

Amended

Complaint

does

not

contain

any

allegations

establishing a causal connection between Defendant Holmes and
Plaintiff’s
confinement.

alleged

retaliatory

transfers,

or

administrative

Accordingly, the Court will sua sponte dismiss

Defendant Holmes pursuant to § 1915A.

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The Court will direct the

United States Marshal to effect service of process on Defendants
Morris, Parker, and Lawson by separate order.
ACCORDINGLY, it is hereby
ORDERED:
1. Defendant Cowart’s Motion to Dismiss (Doc. #25) is DENIED.
2.

Defendant Cowart shall file an Answer and Affirmative

Defense within twenty-one (21) days from the date on this Order.
3.

The Court sua sponte dismisses Defendant Holmes pursuant

to § 1915A for the reasons herein.

The Clerk of Court shall enter

judgment accordingly as to Defendant Holmes and correct the caption
of the case.
DONE AND ORDERED at Fort Myers, Florida, on this
of February, 2012.

SA: alj
Copies: All Parties of Record

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8th

day