Bowden v. Snider et al
OPINION AND ORDER re: 48 MOTION to Dismiss Second Amended Complaint and Memorandum of Law. Defendants' Motion to Dismiss Second Amended Complaint (Doc. 48) is GRANTED in part and DENIED in part. Bowden's due-process claim a nd official-capacity claims are DISMISSED. Defendants must file an answer to the remaining claims in Bowden's Second Amended Complaint within 14 days of this order. Signed by Judge Sheri Polster Chappell on 11/15/2023. (BGS) Modified on 11/15/2023 (JK).
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No.: 2:22-cv-671-SPC-KCD
DEREK SNIDER, MOSES FROST
and ANDREW BENNETT,
OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Second
Amended Complaint (Doc. 48).
This is a civil-rights case. Plaintiff Christopher Bowden—a prisoner of
the Florida Department of Corrections—sues Warden Derek Snider, Captain
Moses Frost, and Officer Andrew Bennett for spraying him with a chemical
The Court recounts the factual background as pled in Bowden’s
Amended Complaint (Doc. 45), which it must take as true to decide whether
the Complaint states a plausible claim. See Chandler v. Sec’y Fla. Dep’t of
Transp., 695 F.3d 1194, 1198-99 (11th Cir. 2012).
During an inspection of Bowden’s dorm on June 21, 2022, Snider and
Bowden had a conversation about some of Bowden’s grievances, and it got
heated. Snider told Frost to “get him cleared,” which Bowden interpreted as
an order to begin the chemical agent protocol. About 30 minutes later, two
officials—including a mental health professional—came to Bowden’s cell and
spoke with him. 45 minutes after that, Bowden was reading a book on his
bunk, and several officers ordered him to submit to a cell search and a strip
search. Bowden complied. As Bowden was putting his boxer shorts back on,
Frost arrived and told Bowden to submit to another strip search. Bowden
asked why, and Frost ordered Bennett to spray Bowden with a chemical agent.
Officers searched Bowden again and escorted him to a shower to rinse
off. Bowden berated the officers and called Frost a racial slur, and Frost
ordered Bennett to spray him again. Bowden was taken to another shower but
was not given enough time to completely rinse off the chemical agent from his
body. Frost ordered Bowden back to his cell, where the chemicals lingered.
Frost further punished Bowden with seven days of property restriction and
management meals. Bowden was put on an increased security level due to the
incident, and he continues to suffer from anxiety and depression.
Bowden claims Snider, Frost, and Bennett violated the Eighth
Amendment by punishing him with a chemical agent without adequate
justification. Bowden also asserts a due-process claim because the defendants
did not write a disciplinary report before using a chemical agent. He seeks a
declaration that the defendants violated his constitutional rights, unspecified
injunctive relief, and at least $100,000 in compensatory damages.
When considering a motion to dismiss under Rule 12(b)(6), courts must
accept all factual allegations in the complaint as true and view them in a light
most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The preferential standard of review, however, does not let all pleadings
adorned with facts survive to the next stage of litigation. The Supreme Court
has been clear on this point—a district court should dismiss a claim when a
party does not plead facts that make the claim facially plausible. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when
a court can draw a reasonable inference, based on facts pled, that the opposing
party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678. This
plausibility standard requires “more than a sheer possibility that a defendant
has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557 (internal quotation
marks omitted)). And a plaintiff must allege more than labels and conclusions
amounting to a formulaic recitation of the elements of a cause of action.
Twombly, 550 U.S. at 555.
Bowden files his Complaint under 42 U.S.C. § 1983. To state a § 1983
claim, a plaintiff must allege that (1) the defendant deprived him of a right
secured under the Constitution or federal law, and (2) the deprivation occurred
under color of state law. Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.
2011) (citing Arrington v. Cobb Cty., 139 F.3d 865, 872 (11th Cir. 1998)). In
addition, a plaintiff must allege and establish an affirmative causal connection
between the defendant’s conduct and the constitutional deprivation. Marsh v.
Butler Cty., Ala., 268 F.3d 1014, 1059 (11th Cir. 2001).
Defendants first argue that Bowden only exhausted his administrative
remedies regarding his due-process claim against Frost, so the Court should
dismiss the rest of his claims. Under the Prison Litigation Reform Act (PLRA),
before a prisoner may bring a claim challenging the conditions of his
confinement, he must exhaust available administrative remedies. 42 U.S.C. §
1997e. The purpose of administrative exhaustion “is to put the administrative
authority on notice of all issues in contention and to allow the authority an
opportunity to investigate those issues.” Chandler v. Crosby, 379 F.3d 1278,
1287 (11th Cir. 2004) (cleaned up). The PLRA requires “proper exhaustion,”
which “demands compliance with an agency’s deadlines and other critical
procedural rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its proceedings.”
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
The Eleventh Circuit has established a two-step process for deciding a
motion to dismiss for failure to exhaust administrative remedies:
First, the court looks to the factual allegations in the defendant’s
motion to dismiss and those in the plaintiff’s response, and if they
conflict, takes the plaintiff’s version of the facts as true. If, in that
light, the defendant is entitled to have the complaint dismissed for
failure to exhaust administrative remedies, it must be dismissed…
If the complaint is not subject to dismissal at the first step, where
plaintiff’s allegations are assumed to be true, the court then
proceeds to make specific findings in order to resolve the disputed
factual issues related to exhaustion. The defendants bear the
burden of proving that the plaintiff has failed to exhaust his
available administrative remedies. Once the court makes findings
on the disputed issues of fact, it then decides whether under those
findings the prisoner has exhausted his available administrative
Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008).
The Florida legislature delegated the establishment of administrative
remedies for aggrieved inmates to the FDOC. Chandler, 379 F.3d at 1287. The
FDOC created a three-step grievance process. To exhaust it, a prisoner must
(1) file an informal grievance to the responsible staff member; (2) file a formal
grievance with the warden’s office; and (3) appeal the formal grievance to the
Secretary of the FDOC. Id. at 1288.
The facts relating to exhaustion are not in dispute. Bowden timely
submitted an informal grievance, formal grievance, and appeal about the June
21, 2022 incident. But Defendants argue parts of this action are unexhausted
because Bowden’s grievances do not identify Snider and Bennett, and because
they do not explicitly assert a violation of Bowden’s Eighth Amendment rights.
The Supreme Court has held “that exhaustion is not per se inadequate simply
because an individual later sued was not named in the grievances.” Jones v.
Bock, 549 U.S. 199, 219 (2007). A prison system’s rules determine what level
of detail a grievance must include. Id. Defendants cite no FDOC grievance
rule that required Bowden to identify every individual defendant and legal
theory at any stage of the grievance process. Bowden’s grievances gave prison
authorities notice of the issues and an opportunity to resolve them. Bowden
exhausted available administrative remedies.
2. Pleading Sufficiency
a. Excessive Force
The core judicial inquiry in an excessive-force claim is “whether force
was applied in a good faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Sconiers v. Lockhart, 946 F.3d
1256, 1265 (11th Cir. 2020) (quoting Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)).
A prisoner asserting an excessive force claim must establish two elements: “the
official must have both ‘acted with a sufficiently culpable state of mind’ (the
subjective element), and the conduct must have been ‘objectively harmful
enough to establish a constitutional violation.’”
Id. (quoting Hudson v.
McMillian, 503 U.S. 1, 8 (1992)). A claim satisfies the subjective element if the
excessive force was “sadistically and maliciously applied for the very purpose
of causing harm.”
The objective component “focuses on whether the
official’s actions were harmful enough or sufficiently serious to violate the
constitution.” Id. (cleaned up).
Bowden has alleged sufficient facts to allow an inference that
Defendants sprayed him with a chemical agent merely to cause harm.
Defendants argue both uses of force were justified—the first because Bowden
disobeyed Frost’s order to submit to a strip search, and the second because
Bowden verbally berated him. But according to the complaint, Frost ordered
Bowden to submit to a strip search before he had finished putting his clothes
back on from a just-completed search. It is reasonable to infer that Frost’s
order was a pretense to justify the use of pepper spray, as directed by Snider
about an hour earlier. And it is plausible that the second use of pepper spray
was likewise unjustified. Although Bowden admits he verbally berated Frost,
he also alleges he did not raise his voice or otherwise cause a disturbance.
Bowden has pled facts sufficient to satisfy the subjective component of an
The Eleventh Circuit has recognised that “where chemical agents are
used unnecessarily, without penological justification, or for the very purpose of
punishment or harm, that use satisfies the Eighth Amendment’s objective
harm requirement.” Thomas v. Bryant, 614 F.3d 1288, 1311 (11th Cir. 2010).
Here, the factual allegations that satisfy the subjective component also satisfy
the objective component.
Bowden plausibly pleads he was sprayed with
chemicals as a premeditated punishment and not for any penological reason.
Bowden’s excessive force claim survives 12(b)(6) review.
b. State Law Tort Claims
Bowden also claims Bennett and Frosts actions constituted assault and
battery under Florida law. The defendants raise the defense of sovereign
immunity under Fla. Stat. § 768.28. A Florida government official “cannot be
held liable for acts committed in ‘the scope of his or her employment or function’
unless he ‘acted in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard for human rights, safety, or property.’”
Pena v. Marcus, 715 F. App’x 981, 988 (11th Cir. 2017) (quoting Fla. Stat. §
Bennett and Frost were clearly acting within the scope of their
employment, so the question is whether their alleged conduct falls within the
The ”bad faith” and “malicious purpose” exceptions are collectively
considered under an “actual malice” standard. They “apply when the conduct
was committed with ill will, hatred, spite, or an evil intent.” Coleman v.
Hillsborough Cnty., 41 F.4th 1319, 1321 (11th Cir. 2022) (internal quotation
The Eleventh Circuit has explained the third exception—
“wanton and willful disregard of human rights, safety, or property”—as
Wanton means “with a conscious and intentional indifference to
consequences and with the knowledge that damage is likely to be
done to persons or property.” Willful means “intentionally,
knowingly and purposely.” Together those terms describe “conduct
much more reprehensible and unacceptable than mere intentional
Id. (internal citations omitted).
As explained in the preceding section, Bowden alleges Frost and Bennett
twice sprayed him with a chemical agent without any reasonable justification.
Accepting Bowden’s allegations as true, Bennett’s and Frost’s conduct was
willful and wanton, and the Court can reasonably infer that they acted in bad
faith and with a malicious purpose. Thus, the Court does not find Frost and
Bennett immune under Fla. Stat. § 768.28 at this stage of the case. They can
raise the defense in a summary judgment motion if supported by evidence, but
Bowden’s state tort claims survive for now.
c. Due Process
Bowden claims Defendants’ failure to prepare a disciplinary report
before spraying him with a chemical agent violated his right to procedural due
process. The Due Process Clause of the Fourteenth Amendment prohibits a
State from depriving “any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. “A procedural due process claim
consists of two elements: (I) deprivation by state action of a protected interest
in life, liberty, or property, and (II) inadequate state process.” Reed v. Goertz,
598 U.S. 230, 236 (2023).
A valid conviction constitutionally deprives a prisoner of his liberty and
subjects him to the rules of the prison system. Meachum v. Fano, 427 U.S. 215,
224 (1976). But those rules can create liberty interests protected by the Due
Process Clause. Sandin v. Conner, 515 U.S. 472, 483-84 (1995). These liberty
interests are generally limited to freedom from restraint that “imposes atypical
and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Id. at 484.
“Discipline by prison officials in response to a wide
range of misconduct falls within the expected perimeters of the sentence
imposed by a court of law.” Id.
Bowden claims FDOC rules required prison officials to give him notice of
a rule infraction—in the form of a disciplinary report—before using a chemical
agent. In the parlance of a procedural-due-process claim, Bowden asserts that
FDOC rules created a liberty interest in being free from punishment by
chemical agents. Bowden cites several sections of the Florida Administrative
Code, but none support his claim. Fla. Admin. Code r. 33-602.210(5) is the
FDOC rule for use of chemical agents, and it does not require officials to first
prepare a disciplinary report. Nor does the rule on reporting disciplinary
infractions, Fla. Admin. Code r. 33-601.303.
Bowden fails to plead identify a protected liberty interest here. FDOC
rules did not require Defendants to complete a disciplinary report before using
a chemical agent.
Accordingly, Bowden has not stated a procedural-due-
3. Qualified Immunity
Defendants argue the doctrine of qualified immunity protects them from
individual liability. “Qualified immunity protects government officials from
individual liability unless they violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”
Snorton v. Owens, 808 F. App’x 814, 820 (11th Cir. 2020). An official invoking
qualified immunity must first show he was acting within the scope of his
discretionary authority. The burden then shifts to the plaintiff to show: (1) the
official violated a federal statutory or constitutional right; and (2) the
unlawfulness of the official’s conduct was clearly established at the time of the
alleged violation. Id. at 820-21.
“A federal right is ‘clearly established’ when ‘at the time of the officer’s
conduct, the law was sufficiently clear that every reasonable official would
understand that what he was doing is unlawful.’” Anderson v. Vazquez, 813 F.
App’x 358, 360 (11th Cir. 2020) (quoting D.C. v. Wesby, 138 S. Ct. 577, 589
(2018)). “In other words, existing law must have placed the constitutionality
of the officer’s conduct beyond debate.” Wesby, 132 S. Ct. at 589 (internal
quotations omitted). To show that a legal principle is clearly established, a
plaintiff must produce precedent “clear enough that every reasonable official
would interpret it to establish the particular rule the plaintiff seeks to apply.”
There is no dispute that Defendants were acting within the scope of their
discretionary authority when Bowden’s claim arose, so the burden shifts to
Bowden. Bowden has carried that burden. There is no shortage of relevant
precedent. Bowden cites Supreme Court cases like Farmer v. Brennan, 511
U.S. 825 (1994) and Wilkins v. Gaddy, 559 U.S. 34 (2010). As these cases show,
the Eighth Amendment’s prohibition of excessive force in the prison context is
And more specifically, the Eleventh Amendment has
recognized that the non-spontaneous use of chemical agents on inmates can
violate the Eighth Amendment when the inmate is not presenting a threat of
immediate harm to himself or others. Thomas, 614 F.3d 1288, 1306-17 (11th
Cir. 2010). Based on the allegations in Bowden’s complaint and the reasonable
inferences the Court can draw from them, Defendants are not entitled to
4. Eleventh Amendment Immunity
Defendants raise Eleventh Amendment immunity to the extent Bowden
sues them in their official capacities. The Eleventh Amendment states, “The
Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. Absent an abrogation of immunity by Congress or a waiver
of immunity by the state being sued, the Eleventh Amendment is an absolute
bar to suit by an individual against a state or its agencies in federal court.
See Edelman v. Jordan, 415 U.S. 651, 662 (1974).
“When the action is in essence one for the recovery of money from the
state, the state is the real, substantial party in interest and is entitled to invoke
its sovereign immunity from suit even though individual officials are nominal
defendants.” Edelman, 415 U.S. at 663. “Thus, the rule has evolved that a
suit by private parties seeking to impose a liability which must be paid from
public funds in the state treasury is barred by the Eleventh Amendment.” Id.
In other words, the bar protects state officials sued in their official capacities
but not their individual capacities. Melton v. Abston, 841 F.3d 1207, 1234-35
(11th Cir. 2016).
Congress has not abrogated Florida’s immunity and Florida has not
waived its Eleventh Amendment immunity. See Carr v. City of Florence, 916
F.2d 1521, 1525 (11th Cir. 1990). Bowden cannot sue Defendants in their
5. Respondeat Superior
Warden Snider argues Bowden fails to state a claim against him because
supervisory officials cannot be held liable under § 1983. It is well established
in the Eleventh Circuit “that supervisory officials are not liable under § 1983
for the unconstitutional acts of their subordinates on the basis of respondeat
superior or vicarious liability.” Myrick v. Fulton Cnty., Ga., 69 F.4th 1277,
1297 (11th Cir. 2023) (internal quotation marks and citation omitted).
“Instead, supervisory liability under § 1983 occurs either when the supervisor
personally participates in the alleged unconstitutional conduct or when there
is a causal connection between the actions of a supervising official and the
alleged constitutional deprivation.” Id.
Bowden is not attempting to hold Snider vicariously liable. Bowden
alleges Snider ordered Frost to begin the chemical agent protocol after a heated
discussion with Bowden. The allegations establish a clear causal connection
between Snider’s conduct and the use of force.
6. Available Remedies
Finally, Defendants ask the Court to “dismiss” Bowden’s requests for
injunctive relief, declaratory relief, compensatory damages, and punitive
damages. Rule 12(b)(6) “is designed to eliminate counts or complaints that fail
to state a claim upon which relief can be granted.” Pace v. Platt, 228 F. Supp.
2d 1332, 1334 (N.D. Fla. 2002). A prayer for relief is not a “claim” within the
meaning of Federal Rule of Civil Procedure 8(a) and thus is not subject to
dismissal under Rule 12(b)(6). The availability of particular remedies is best
left for a later stage of the case, after the parties have conducted discovery.
Accordingly, it is now
Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint
(Doc. 48) is GRANTED in part and DENIED in part. Bowden’s due-process
claim and official-capacity claims are DISMISSED. Defendants must file an
answer to the remaining claims in Bowden’s Second Amended Complaint
within 14 days of this order.
DONE and ORDERED in Fort Myers, Florida on November 15, 2023.
Copies: All Parties of Record
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