McGathey v. Osinga et al

Filing 18

ORDER OF DISMISSAL dismissing federal and constitutional claims for failure to state a claim upon which relief may be granted; dismissing remaining state claims without prejudice to refiling them in state court. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 6/6/2017. (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,
Defendant.
ORDER OF DISMISSAL
Plaintiff, an inmate at the Charlotte County Jail in Punta
Gorda, Florida, initiated this action on January 27, 2017 by filing
a pro se civil rights complaint pursuant to 42 U.S.C. § 1983
against

Defendants

Joseph

Osinga,

Christina

Casteel,

Bobby

Beverly, David Dunn, Kyle Nasby, William Prummell, and Howard Nusum
(Doc. 1).

After conducting a review pursuant to 28 U.S.C. §

1915(e)(2)(B), the Court concluded that Plaintiff had not stated
a claim against any named defendant and that he sought monetary
damages for mental distress (Doc. 13).

However, in an abundance

of caution, Plaintiff was given leave to file an amended complaint
seeking only nominal damages.

Id.

Plaintiff filed an amended complaint (Doc. 14) and a second
amended complaint against Defendant Osinga (Doc. 17).

Plaintiff’s

second amended complaint is the operative complaint before this
Court.

In

his

second

amended

complaint,

Plaintiff

does

not

explain the events giving rise to his claims.
this

Court

to

Investigation

a
I.A.

report

entitled

17-1

amended

complaint

and

“Internal

Corrections

(incident report) (Doc. 17-1).
the

Instead, he directs
Affairs

Deputy

Joseph

Internal
Osinga”

Upon review of Plaintiff’s second

report,

the

Court

concludes

that

Plaintiff’s federal claims must be dismissed for failure to state
a claim upon which relief may be granted.

The Court declines to

exercise supplemental jurisdiction over any state-law claim.
I.
Because
allegedly

Plaintiff

Complaint

does

unconstitutional

not

describe

activities

in

Defendant
his

second

Osinga’s
amended

complaint, the Court may rely on the 22-page incident report
attached to the complaint.

See Hoefling v. City of Miami, 811

F.3d 1271, 1277 (11th Cir. 2016) (“A district court can generally
consider exhibits attached to a complaint in ruling on a motion to
dismiss, and if the allegations of the complaint about a particular
exhibit conflict with the contents of the exhibit itself, the
exhibit controls.”)(citing Crenshaw v. Lister, 556 F.3d 1283, 1292
(11th Cir. 2009)).
The

incident

report

summarizes

an

investigation

incident that occurred on December 13, 2016.

of

an

On that date,

Plaintiff was pulled from his cell for a professional visit.

As

Plaintiff was leaving his cell, Defendant Osinga conducted a search
of Plaintiff’s legal materials and found a stack of about thirty

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grievance forms.

Defendant Osinga confiscated all but one form,

and told Plaintiff that the forms would be handed out as needed
(Doc.

17-1

at

4).

Defendant

Osinga

became

suspicious

that

Plaintiff may have other contraband in his cell and initiated a
search of the cell.

Id. at 5.

During the search, Defendant

Osinga un-knotted Plaintiff’s sheets, and emptied the contents of
three paper bags of commissary items and paperwork on Plaintiff’s
bunk.

Id.

Defendant Osinga confiscated several contraband items

from the cell and disposed of these items and of empty commissary
bags.

Id.

He then rearranged the playing cards on Plaintiff’s

bunk into a “666” before he exited the cell.

Id.

Defendant

Osinga did not straighten up Plaintiff’s cell after the search.
When Plaintiff reported this incident, he complained about the
rearrangement of his playing cards and also alleged that his
sweater was “sopping wet” when he returned from his professional
visit and that a satanic star had been drawn on his cell wall while
he was gone.

Id. at 9.

When he was interviewed about the

incident, Defendant Osinga admitted that he rearranged the playing
cards as a joke and left Plaintiff’s cell in disarray after
searching it, but denied touching Plaintiff’s sweater or drawing
anything on the cell wall.

Id. at 17-19.

At the conclusion of the investigation, the investigator
determined that a preponderance of the evidence indicated that
Defendant Osinga violated Charlotte County Sheriff’s Office policy

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when he rearranged Plaintiff’s playing cards and left Plaintiff’s
cell in unreasonable order after searching for contraband (Doc.
17-1 at 20-21).
Plaintiff’s only statement in the second amended complaint
regarding Defendant Osinga’s allegedly unconstitutional actions is
the following:
[Th]he defendant knew about my mental and
about my fear of demons, my information w/
clergy the [psychosis] it puts me in [and]
purposefully targeted me.
(Doc. 17 at 4).

Under the “injuries” section of his complaint,

Plaintiff asserts that because of Defendant Osinga’s actions, he
(Plaintiff) stopped taking his psychiatric medication and “the
withdrawals were horrendous.
again.

The demonic spirits overtook me

I was truly fearful for my life.”

Id. at 17.

Plaintiff

asserts that Defendant Osinga violated his freedom of speech,
freedom of religion, committed a hate crime, violated the Americans
with Disabilities Act of 1990, committed intentional infliction of
emotional distress, demonstrate malfeasance by a jailor, and made
a “threat by intimidation” under Florida law.
Plaintiff seeks $87.00 in compensation for canteen purchases
and $100,000 for “physical and mental pain and suffering.”
II.
A

federal

district

Id.

Legal Standards
court

is

required

to

review

a

civil

complaint filed in forma pauperis and dismiss any such complaint

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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;

or

(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).
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).

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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”).
III. Analysis
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 Defendant Osinga (Doc. 17 at
5).

However, as was clearly explained to Plaintiff in this Court’s

earlier order of dismissal, the Prison Litigation Reform Act
provides that “[n]o Federal civil action may be brought by a
prisoner

confined

in

a

jail,

prison,

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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.
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 he suffered as a result of the defendants’ conduct.
However, he alleges no physical injury other than the pain caused
by his own decision to discontinue his psychiatric medication.
Accordingly,

Plaintiff’s

claims

for

compensatory

and

punitive

to

initiate

damages must be dismissed with prejudice.
b.

Plaintiff cannot petition this Court
criminal proceedings against any party

Plaintiff asserts that a “hate crime” occurred and appears to
ask this Court to press criminal charges against Defendant Osinga
(Doc. 17 at 3).
Court’s

first

As was clearly explained to Plaintiff in this

order

of

dismissal

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(Doc.

13),

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 in the
prosecution

or

nonprosecution

of

another”).

Accordingly,

Plaintiff’s request that this Court initiate criminal charges
against the defendants is dismissed with prejudice.
c.

Plaintiff has not stated an Americans with Disabilities
Act (ADA) claim

Congress enacted the ADA “to provide a clear and comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities.” 42 U.S.C. § 12101(b)(1).

Title

II of the ADA prohibits a “public entity” from discriminating
against “a qualified individual with a disability” on account of
the individual’s disability.

Id.

In order to establish a prima

facie case under the ADA, the Plaintiff must show: (1) that he is
a qualified individual with a disability; (2) that he was either
excluded from participation in or denied the benefits of a public
entity’s

services,

programs,

or

activities,

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or

was

otherwise

discriminated

against

by

a

public

entity;

and

(3)

that

the

exclusion, denial of benefit, or discrimination was by reason of
his disability. Bircoll v. Miami–Dade County, 480 F.3d 1072, 1083
(11th Cir. 2007).
Defendant

failed

An ADA claim may proceed on the theory that the
to

reasonably

accommodate

the

Plaintiff’s

disability. See Schwarz v. City of Treasure Island, 544 F.3d 1201,
1212 n. 6 (11th Cir. 2008).
In the instant case, Plaintiff alleges that he is mentally
ill, but he does not sue a “public entity” or assert that he was
excluded from participation of any service, program, or activity
as a result of his mental illness.

Rather, Plaintiff’s ADA claim

appears to be based upon an assertion that Defendant Osinga knew,
or should have known, that his actions would be offensive because
of

Plaintiff’s

mental

illness.

However,

Defendant

Osinga’s

alleged actions did not deprive Plaintiff of the “benefits of the
services, programs, or activities of a public entity.” 42 U.S.C.
§ 12132.

Rather, Defendant Osinga’s actions merely offended

Plaintiff.

This does not state an ADA claim.

Accordingly,

Plaintiff’s ADA claim is dismissed.
e.

Plaintiff has not stated a “Freedom of Religion” claim
against Defendant Osinga

Plaintiff
religion”

in

mentions,
his

second

without

explanation,

his

complaint

(Doc.

amended

“freedom
17

at

of
3).

Prisoners must be provided reasonable opportunity to exercise

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their religious freedoms guaranteed under the First Amendment.
Hudson v. Palmer, 468 U.S. 517, 517 (1984).
Religious

Freedom

Restoration

Act

(RFRA)

protection for religious liberty.

Congress enacted the
to

provide

broad

See Burwell v. Hobby Lobby

Stores, Inc., 134 S. Ct. 2751, 2760 (2014).

Under the statute,

the “Government shall not substantially burden a person’s exercise
of religion even if the burden results from a rule of general
applicability.” 42 U.S.C. § 2000bb–1(a).
Plaintiff

must

substantially

show

that

burdened

by

his
a

To state an RFRA claim,

exercise
government

of

religion

rule

or

has

been

policy.

An

individual’s exercise of religion is “substantially burdened” if
a regulation completely prevents the individual from engaging in
religiously

mandated

activity,

or

if

the

regulation

participation in an activity prohibited by religion.

requires

See Midrash

Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.
2004).
The investigation report indicates that Defendant Osinga left
Plaintiff’s cell in disarray after a search for contraband and
rearranged

his

playing

cards

to

“666.”

Plaintiff

told

the

investigators that Defendant Osinga also spilled something on his
sweater and drew a star on his wall, although Defendant Osinga
denied doing either (Doc. 17-1 at 9).
found

Defendant

Osinga’s

actions

It is clear that Plaintiff
offensive;

however,

these

allegations do not show that anyone at the Charlotte County Jail

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“substantially burdened” his practice of religion.
Plaintiff has not stated an RFRA claim.

Accordingly,

Bowen v. Roy, 476 U.S.

693, 707–08 (1986) (finding no substantial burden where government
action

interfered

with,

but

did

not

coerce,

an

individual’s

religious beliefs); Lyng v. Northwest Indiam Cemetery Protective
Ass’n, 405 U.S. 439 (1988) (same).
f.

Plaintiff’s has not stated
against Defendant Osinga

a

constitutional

claim

To the extent Plaintiff believes his constitutional rights
were

violated

merely

because

Defendant

Osinga

rearranged

his

playing cards, drew an offensive mark on his wall, crushed his
canteen purchases, or spilled something on his sweatshirt, he is
wrong.

Allegations of general harassment or teasing, while not

laudable, do not state a constitutional claim.

See McDowell v.

Jones, 990 F.2d 433, 434 (8th Cir. 1993) (prisoner’s general
allegations

that

prison

staff

harassed

him

did

not

state

a

constitutional violation); McFadden v. Lucas, 713 F.2d 143, 146
(5th Cir. 1983) (threatening language and gestures of a corrections
officer do not generally violate an inmate’s Eighth Amendment
rights); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)
(sheriff laughing at inmate and threatening to hang him did not
violate the Constitution); 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),

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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); Magwood v. Beem, No. 4:14cv314–
MW/CAS, 2015 WL 796242, at *13 (N.D. Fla. Feb.25, 2015) (“In
general,

courts

have

held

that

verbal

harassment,

abuse,

or

taunting is not sufficient to state a constitutional deprivation
under 42 U.S.C. § 1983.”).
Although

a

prisoner

can

establish

a

First

Amendment

retaliation claim if he shows that he was 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.

In

fact, Plaintiff stated in the incident report that he did not know
why Defendant Osinga vandalized his cell (Doc. 17-1 at 9).
The

allegations

against

Defendant

Osinga

are

due

to

be

dismissed for failure to state a claim upon which relief may be
granted.
g.

The
Court
will
not
exercise
Plaintiff’s state law claims

jurisdiction

over

Plaintiff appears to raise state-law claims (Doc. 17 at 3)
(stating that he is raising claims of intentional infliction of
emotional

distress,

malfeasance

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by

jailer,

and

threat

by

intimidation under Florida law).

It is unnecessary for this Court

to consider the viability of Plaintiff’s state-law causes of
action.

Because Plaintiff’s federal and constitutional claims are

subject to dismissal, the only remaining claims in the amended
complaint are state-law claims.

The supplemental jurisdiction

statute provides that a district court “may decline to exercise
supplemental jurisdiction” over pendent state law claims if:
(1)

the claim raises a novel or complex issue
of State law,

(2)

the claim substantially predominates
over the claim or claims over which the
district
court
has
original
jurisdiction,

(3)

the district court has
claims over which it
jurisdiction, or

(4)

in exceptional circumstances, there are
other compelling reasons for declining
jurisdiction.

28 U.S.C. § 1367(c).

dismissed all
has original

“[I]n the usual case in which all federal-

law claims are eliminated before trial, the balance of factors to
be considered under the pendent jurisdiction doctrine—judicial
economy,

convenience,

fairness,

and

comity—will

point

toward

declining to exercise jurisdiction over the remaining state-law
claims.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350
n.7 (1988).

Here, because all claims over which this Court had

original jurisdiction are subject to dismissal, the undersigned
will relinquish jurisdiction over the remaining state law claims.

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Any state law claims are due to be dismissed without prejudice to
refiling in the appropriate state court. 1
ACCORDINGLY, it is hereby ORDERED:
1.

Plaintiff’s

federal

and

constitutional

claims

are

DISMISSED for failure to state a claim upon which relief may be
granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
2.

All

remaining

state

claims

are

DISMISSED

WITHOUT

PREJUDICE to Plaintiff refiling them in state court.
3.

With no remaining claims or defendants, the Clerk of

Court is directed to terminate all pending motions and deadlines,
enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this

6th

day

of June, 2017.

SA: OrlP-4
Copies: Todd W. McGathey

1

The Court takes no position as to the merits of Plaintiff’s
state law claims or his likelihood of success in state court.

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