McGathey v. Osinga et al

Filing 13

OPINION AND ORDER dismissing 1 Complaint without prejudice to filing an amended complaint within 21 days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 3/22/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TODD W. MCGATHEY,
Plaintiff,
v.

Case No: 2:17-cv-56-FtM-29MRM

JOSEPH
OSINGA,
CHRISTINA
CASTELL,
BOBBY
BEVERLY,
DAVID
DUNN,
KYLE
NASBY,
WILLIAM
PRUMMELL,
HOWARD
NUZUM, CHRISTINA CASTILLE,
and JOSEPH GAUDETTE,
Defendants.
OPINION AND ORDER
Plaintiff, an inmate at the Charlotte County Jail in Punta
Gorda, Florida, initiated this action by filing a pro se civil
rights complaint pursuant to 42 U.S.C. § 1983 against Defendants
Joseph Osinga, Christina Casteel 1, Bobby Beverly, David Dunn, Kyle
Nasby, William Prummell, and Howard Nusum (Doc. 1, filed January
27, 2017).

Along with his complaint, Plaintiff filed a motion to

proceed in forma pauperis (Doc. 2).
Because Plaintiff seeks to proceed in forma pauperis, the
Court

must

1

review

his

complaint

to

determine

whether

it

is

Plaintiff lists both Christina Casteel and Christina
Castille as defendants. Plaintiff has filed a motion explaining
that this defendant is one person named Christa Castell (Doc. 7,
filed February 6, 2017).

frivolous, malicious, or fails to state a claim upon which relief
may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).
For the reasons given in this Order, the claims raised in the
complaint are dismissed without prejudice for failure to state a
claim

upon

which

1915(e)(2)(B)(ii).

relief

can

be

granted.

28

U.S.C.

§

Should the facts support a constitutional

cause of action, Plaintiff may file an amended complaint.
I.

Complaint

Plaintiff alleges the following:

Some time in December of

2016, Defendant Osinga purposely spilled juice on Plaintiff’s arm
and sweater (Doc. 1 at 5).

On December 13, 2016, Plaintiff was

called to meet with (indecipherable) Care. Id.

Defendant Osinga

told Plaintiff that he could not bring his legal work with him,
but Officer DeHart told Defendant Osinga that Plaintiff could take
it.

Id.

Defendant

Osinga

then

took

Plaintiff’s

folder

and

searched it, and told Plaintiff “who runs this pod.” Id. at 5-6.
Plaintiff asked “several officers” to allow him to speak with
someone in authority because he was fearful of Defendant Osinga,
but he was told that nobody was available.

Id. at 6.

When Plaintiff returned to his cell, some of his “canteen”
had been crushed and something had been poured on his sweatshirt
(Doc. 1 at 6).

Plaintiff saw “three 6’s on [his] top bunk.” Id.

Defendant Osinga came back to the cell and made menacing faces and
threats through his window “and wanted to read [Plaintiff’s]

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grievance against him.” Id.

Plaintiff told him to step away from

the window, and Defendant Osinga sneered at him and left.

Id.

After Plaintiff straightened his room he saw a “large satanic
symbol” on his wall (Doc. 1 at 6).

He called Officer Nasby to

show him the symbol and asked for a supervisor to come see it and
take

photographs.

Id.

Plaintiff

was

told

there

were

no

supervisors available, and Officer Nasby gave him three request
forms to fill out. Id. at 8.

Plaintiff turned in his grievances

in which he demanded that photographs of the marks be taken, and
criminal charges pressed. Id.

Officer Nasby continued to refuse

Plaintiff’s request for a supervisor.
The next morning, after Plaintiff’s father contacted the
jail, Defendant Beverly, Officer Murray, and Defendant Dunn came
to Plaintiff’s cell to look at the symbol on the wall(Doc. 1 at
8).

Officer Murray asked Plaintiff what was “going on between

[Plaintiff] and Officer Osinga?” Id.

Defendant Dunn opined that

the symbol was “fresh” and had been made with a Sharpie marker.
Id.

Defendants Beverly and Dunn returned later to clean the

symbol. Id.

Plaintiff told Defendants Beverly and Dunn that he

wanted pictures taken and charges filed. Id.

Defendant Beverly

“smirked,” but agreed that the symbol was a “hate crime.” Id.
Defendants Beverly and Dunn left, but returned and told Plaintiff
that they were ordered by Defendant Castille to remove the markings
from the cell wall without taking pictures. Id.

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Both defendants

were “very uneasy” about this, but stated that they were ordered
bremoved the markings from Plaintiff’s wall.
Plaintiff

continued

incident (Doc. 1 at 8).

to

write

grievances

regarding

the

On December 21, 2016, Lieutenant Gaudette

and Sargent Hardin met with Plaintiff to discuss the incident. Id.
at 7.

Gaudette told Plaintiff that he had not received the

grievance forms and was unaware of the situation. Id. at 7.
Plaintiff asserts that, he has been “stalled” by jail personnel.
Id.
Plaintiff asserts that Defendant Nuzum returned a letter
addressed to the Sheriff’s Office that was sealed and marked “legal
mail.” (Doc. 1 at 7).

Defendant Nuzum told Plaintiff that the

letter needed to be “opened and legal mail being marked off.” Id.
After Plaintiff complied with that rule, Defendant Nuzum told
Plaintiff that the letter had to be on a request form. Id.

Officer

Shark told Plaintiff that the jail was out of request forms, but
Captain Turney said that it was okay for Plaintiff to send legal
mail to her. Id.
Plaintiff asserts that he has become depressed and anxious as
a result of the defendants’ actions.

He alleges that the mental

health staff is threatening to put him into a direct observation
unit.
on him.

Plaintiff believes that Defendant Osinga has placed a curse
Plaintiff says that he is unable to properly function and

is paranoid. Id.

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Plaintiff

wants

the

officers

at

the

jail

to

be

held

accountable for his pain and suffering and “the maximum amount
that can be awarded.” (Doc. 1 at 10).
damages. Id.

He also wants punitive

Finally, Plaintiff asks that the defendants be

criminally charged. Id.
II.
A

federal

district

Legal Standards
court

is

required

to

review

a

civil

complaint filed in forma pauperis and dismiss any such complaint
that is frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915.

The mandatory language

of 28 U.S.C. § 1915 applies to all proceedings in forma pauperis.
Section 1915 provides:
Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court
shall dismiss the case at any time if the court
determines that(A)

the allegation of poverty is untrue;
or

(B)

the action or appeal(i)

is
frivolous
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).

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or

A

complaint

may

be

dismissed

as

frivolous

under

§

1915(e)(2)(B)(i) where it lacks an arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A claim is

frivolous as a matter of law where, inter alia, the defendants are
immune from suit or the claim seeks to enforce a right that clearly
does not exist. Id. at 327.

In making the above determinations,

all factual allegations in the complaint must be viewed as true.
Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004).
In the case of a pro se action, the Court should construe the
complaint

more

liberally

than

it

would

pleadings

lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).

drafted

by

Nevertheless, pro

se litigants are not exempt from complying with the requirements
of the Federal Rules of Civil Procedure, including Rule 8(a)(2)’s
pleading standard. GJR Investments, Inc. v. Cnty. of Escambia, 132
F.3d 1359, 1369 (11th Cir. 1998) (“Yet even in the case of pro se
litigants this leniency does not give a court license to serve as
de facto counsel for a party, or to rewrite an otherwise deficient
pleading in order to sustain an action[.]” (internal citations
omitted)), overruled on other grounds as recognized in Randall v.
Scott, 610 F.3d 701, 706 (11th Cir. 2010); see also Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (stating that pro se
litigants are “subject to the relevant law and rules of court,
including the Federal Rules of Civil Procedure”).

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III. Analysis
Title 42 U.S.C. § 1983 imposes liability on one who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws[.]” 42 U.S.C.
§ 1983.

To articulate a claim under § 1983, a plaintiff must

allege that: (1) a defendant deprived him of a right secured under
the Constitution or federal law; and (2) such deprivation occurred
under color of state law. Arrington v. Cobb County, 139 F.3d 865,
872 (11th Cir. 1998).

In addition, where a plaintiff seeks to

impose liability on one who is not an active participant in the
alleged constitutional deprivation, that plaintiff must allege and
establish an affirmative causal connection between the defendant’s
conduct and the constitutional deprivation. Williams v. Bennett,
689 F.2d 1370, 1380–1381 (11th Cir. 1982).
a.

Plaintiff cannot receive
damages in this action

compensatory

Plaintiff cannot obtain the relief he seeks.

or

punitive

Plaintiff seeks

monetary and punitive damages against each defendant (Doc. 1 at
10).

However, the Prison Litigation Reform Act provides that

“[n]o Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing
of physical injury.” 42 U.S.C. § 1997e(e).

Plaintiff was confined

at the Charlotte County Jail when he filed this action. Id. at 1.

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The Eleventh Circuit has addressed the implications of §
1997e(e) and concluded that “the phrase ‘Federal civil action’
means

all

federal

claims,

including

constitutional

claims.”

Napier v. Preslicka, 314 F. 3d 528, 532 (11th Cir. 2002) (citing
Harris v. Garner, 216 F.3d 970, 984–85 (11th Cir. 2000) (en banc)).
The instant § 1983 action is a “Federal civil action” under this
definition.
complaint
occurred

Further, it is undisputed that Plaintiff filed his

while
while

imprisoned,
in

custody.

and

that

the

Plaintiff

harm

seeks

complained

damages

for

of
the

distress and mental injuries he suffered as a result of the
defendants’ conduct.
Accordingly,

However, he alleges no physical injury.

Plaintiff’s

claims

for

compensatory

and

punitive

damages must be dismissed with prejudice. 2

2

To the extent Plaintiff seeks only nominal damages of one
dollar, he is not barred under § 1997e(e). In Hughes v. Lott, 350
F.3d 1157 (11th Cir. 2003), the Eleventh Circuit concluded that §
1997e(e) does not bar suits by prisoners who have not alleged a
physical injury if they seek nominal damages—generally of one
dollar. See Nix v. Carter, Case No. 5:10–cv–256 (CAR), 2013 WL
432566, at *2 (M.D. Ga. Feb. 1, 2013) (“Nominal damages are
appropriate if a plaintiff establishes a violation of a fundamental
constitutional right, even if he cannot prove actual injury
sufficient to entitle him to compensatory damages.”) (citing
Hughes, 350 F.3d at 1162); Carey v. Piphus, 435 U.S. 247, 266-67
(1978) (if plaintiffs were entitled to nominal damages, the damages
should not exceed one dollar); Kyle v. Patterson, 196 F.3d 695,
697 (7th Cir. 1999) (“[N]ominal damages, of which $1 is the norm,
are an appropriate means of vindicating rights whose deprivation
has not caused actual, provable injury.”).
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b.

Plaintiff cannot petition this Court
criminal proceedings against any party

to

initiate

Plaintiff asks this Court to press criminal charges against
the defendants.

This is not a cognizable § 1983 claim. “It is

well established that private citizens can neither bring a direct
criminal action against another person nor can they petition the
federal courts to compel the criminal prosecution of another
person.” Ellen v. Stamm, 951 F.2d 359 (9th Cir. 1991); Maine v.
Taylor, 477 U.S. 131, 137 (1986) (“[P]rivate parties, and perhaps
even separate sovereigns, have no legally cognizable interest in
the prosecutorial decisions of the Federal Government”); Leeke v.
Timmerman, 454 U.S. 83, 86–87 (1981) (“a private citizen lacks a
judicially

cognizable

interest

nonprosecution of another”).

in

the

prosecution

or

Accordingly, Plaintiff’s request

that this Court initiate criminal charges against the defendants
will be dismissed with prejudice.
c.

Plaintiff
Prummell

has

not

stated

a

claim

against

Defendant

Plaintiff’s only allegation against Defendant Prummell is his
parenthetical statement: “(Sheriff Prummell – allowing officers to
intimidate (indecipherable))” (Doc. 1 at 7).

Plaintiff does not

allege that Defendant Prummell was aware of, or approved of, the
alleged intimidation.

To the extent Plaintiff wants to hold

Defendant Prummell liable for the acts of his subordinates, it is
well settled that “[t]here is no respondeat superior liability

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under § 1983.” Harris v. Ostrout, 65 F.3d 912, 917 (11th Cir.
1995), citing Monell v. Dep’t of Social Services, 436 U.S. 658,
690-92 (1978) and LaMarca v. Turner, 995 F.2d 1526, 1538 (11th
Cir. 1993); Marsh v. Butler County, Ala., 268 F.3d 1014, 1035 (11th
Cir. 2001) (recognizing that a “Sheriff can have no respondeat
superior liability for a section 1983 claim.”), abrogated on other
grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561–63 (2007).
To be sure, while “[s]upervisory officials are not liable
under section 1983 on the basis of respondeat superior or vicarious
liability[,]” they may nonetheless be liable “when there is a
causal connection between actions of the supervising official and
the alleged constitutional deprivation.” Belcher v. City of Foley,
Ala., 30 F.3d 1390, 1396-97 (11th Cir. 1994) (citations omitted).
That

is,

“[s]upervisory

liability

occurs

either

when

the

supervisor personally participates in the alleged constitutional
violation or when there is [some other] causal connection.” Brown
v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).

As explained

above, Plaintiff has not alleged facts showing that Defendant
Prummell participated in wrongful behavior.

Nor does he plausibly

allege facts demonstrating that Defendant Prummell developed, or
knowingly sanctioned, a policy of doing so.

Thus, the only

conceivable basis for Plaintiff’s constitutional claims against
this defendant is mere supervisor liability, and such a claim
cannot stand in a § 1983 action.

Accordingly, the constitutional

- 10 -

claims against Defendants Prummell are dismissed from this action
for failure to state a claim on which relief may be granted. 28
U.S.C. § 1915(e)(2)(B)(ii); Fed. R. Civ. P. 12(b)(6).
c.

Plaintiff has not stated a claim against Defendants
Beverly, Dunn, Nasby, or Castille

Plaintiff’s only allegations against Defendants Beverly and
Dunn are that they met with him the day after the alleged incident
and later cleaned the markings from the wall of Plaintiff’s cell
at Defendant Castille’s direction.

Plaintiff’s only claim against

Defendant Nasby is that he ignored his demands that a supervisor
be brought to view the marks and instead gave him forms to fill
out.
she

Plaintiff’s only claim against Defendant Castille is that
ordered

the

offensive

markings

cleaned

from

the

wall

of

Plaintiff’s cell.
None of the acts is unconstitutional.

Likewise, Plaintiff

had no constitutional right to have the allegedly offensive marking
photographed.

Accordingly,

Plaintiff’s

allegations

against

Defendants Beverly, Dunn, Nasby, and Castille are dismissed for
failure to state a claim upon which relief may be granted.
d.

Plaintiff has not
Corporal Nuzum

stated

a

claim

against

Defendant

Plaintiff asserts that Defendant Nuzum has “intercepted” some
of his grievances and returned a letter “sent to Sheriff’s Office
sealed and marked legal mail, stating that it had to be opened and
legal mail being marked off.” (Doc. 1 at 7).

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Later Defendant

Nuzum told Plaintiff that his grievance letter needed to be on a
request form, but the jail was out of request forms.

Id.

First, a prisoner “does not have a constitutionally-protected
liberty interest in an inmate grievance procedure.” Thomas v.
Warner, 237 F. App’x 435, 437 (11th Cir. 2007).

Therefore,

Plaintiff’s allegations that Defendant Nuzum failed to comply with
the

jail’s

voluntary

grievance

procedures

does

not

state

a

constitutional claim.
Next, an inmate’s allegations concerning the treatment of his
mail may implicate a free speech claim under the First Amendment.
“Mail is one medium of free speech, and the right to send and
receive mail exists under the First Amendment.” Al–Amin v. Smith,
511 F.3d 1317, 1333 (11th Cir. 2008) (citing City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 427 (1993)).

However, an

isolated incident of interference with a prisoner’s mail generally
is insufficient to establish a constitutional violation.
v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).

Davis

Rather, the inmate

must show that a prison official “regularly and unjustifiably
interfered”

with

the

inmate’s

incoming

mail.

Id.

(citations

omitted); Huey v. Philbin, Case No. 7:12–cv–97 (HL), 2013 WL
3816684, at *6 (M.D. Ga. July 22, 2013) (“Plaintiff’s allegation
that on one occasion he did not receive his American’s Sovereign
Bulletin does not rise to the level of a constitutional violation,
and therefore Plaintiff has failed to state a First Amendment

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claim”); Pro v. Bandy, Case No. 2:08–cv–0175–RWS, 2008 WL 4445080,
at

*3

(N.D.

Ga.

Sept.

25,

2008)

(“allegations

of

sporadic

interference with incoming mail are insufficient to state a First
Amendment claim”); McKinnon v. James, No. Civ. A. 3:03CV2274/SRU,
2005 WL 1074466, at *3 (D. Conn. May 5, 2005) (“To state a claim
for the violation of [the First Amendment right to free flow of
mail] . . . an inmate must allege more than a single instance of
interference with his mail.”).
Plaintiff’s

allegations

against

Defendant

Nuzum

do

not

reflect that he “regularly and unjustifiably” interfered with
Plaintiff’s mail; rather, the alleged interference by Defendant
Nuzum

appears

to

have

occurred

on

only

one

occasion.

The

allegations against Defendant Nuzem are due to be dismissed for
failure to state a claim upon which relief may be granted.
e.

Plaintiff
Osinga

has

not

stated

a

claim

against

Defendant

Plaintiff asserts that Defendant Osinga spilled juice on him
on purpose, unsuccessfully tried to prevent him from taking his
legal work to (undecipherable) care, and told Plaintiff “who runs
the pod.” (Doc. 1 at 5-6).
Plaintiff’s

constitutional

None of these actions violated

rights.

Plaintiff

suggests

that

Officer Osinga drew an offensive mark on the wall of his cell and
otherwise vandalized his belongings.

Id.

To the extent Plaintiff believes that his constitutional
rights were violated merely because Defendant Osinga (or somebody

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else) drew an offensive mark on his wall, crushed his canteen
purchases, or spilled something on his sweatshirt, he is wrong.
See Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th
Cir.

1981)

(allegations

of

harassment,

embarrassment

and

defamation are not cognizable under § 1983), abrogated on other
grounds by Haygood v. Younger, 769 F.2d 1350, 1356 (9th Cir. 1985);
Graves v. North Dakota State Penitentiary, 325 F.Supp.2d 1009 (D.
N.D. 2004) (dismissing as frivolous claim that prisoner’s civil
rights were violated when he was shown a racially insensitive
drawing).
Although

a

prisoner

can

establish

a

First

Amendment

retaliation claim if he shows that he has been penalized for
exercising the right of free speech (such as by filing grievances),
Plaintiff does not allege that Defendant Osinga’s alleged actions
were in retaliation for Plaintiff exercising his free speech
rights.

Rather, Plaintiff told Officer Murray that he did not

know why Defendant Osinga would vandalize his cell (Doc. 1 at 8).
The

allegations

against

Defendant

Osinga

are

due

to

be

dismissed for failure to state a claim upon which relief may be
granted.
III. Conclusion
Although Plaintiff’s complaint fails to state a claim, in an
abundance of caution, he will be provided an opportunity to file
an amended complaint that comports with the strictures of this

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Order and seeks only nominal damages of one dollar.

See Bank v.

Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (“Where a more carefully
drafted complaint might state a claim, a plaintiff must be given
at least one chance to amend the complaint before the district
court dismisses the action with prejudice.”), overruled as to
counseled plaintiffs by Wagner v. Daewoo Heavy Indus. Am. Corp.,
314 F.3d 541, 542 (11th Cir. 2002) (en banc).

Should Plaintiff

decide to file an amended complaint, it must be submitted within
TWENTY-ONE (21) DAYS from the date on this Order, be captioned
“Amended Complaint,” and bear the same docket number as this Order.
Plaintiff is advised that the amended complaint will completely
replace the original complaint.
If Plaintiff does not file an amended complaint within this
time period or the amended complaint does not comply with this
Order, the amended complaint will be dismissed without prejudice
and the case will be closed.
DONE and ORDERED in Fort Myers, Florida on this
of March, 2017.

SA: OrlP-4
Copies: Todd McGathey

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22nd

day