Hardin v. Jones et al
ORDER directing Plaintiff to amend his complaint by May 15, 2018, to proceed with his claim; directing the Clerk of Court to send Plaintiff a civil rights complaint form; discharging the Order to Show Cause 10 . Signed by Magistrate Judge Joel B. Toomey on 4/13/2018. (KLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JOSHUA N. HARDIN,
Case No. 3:18-cv-3-J-32JBT
SGT. J. JONES, et al.,
Plaintiff, a former inmate of the Florida penal system,
initiated this action by filing a pro se Civil Rights Complaint
(Doc. 1) pursuant to 42 U.S.C. § l983.1 He names as Defendants four
Plaintiff alleges Defendants treated him in a negligent manner,
placed him in a top-tier cell despite a medical directive that he
should be placed on the bottom tier, and violated his due process
right against retaliation and his constitutional right to be free
from cruel and unusual punishment. See Complaint at 3-4. With
respect to the cruel and unusual punishment claim, Plaintiff
Plaintiff filed his Complaint on January 2, 2018, while
incarcerated at Suwannee Correctional Institution. See Complaint
at 2. He was released from incarceration on January 28, 2018. See
Florida Department of Corrections, Offender Information Search,
&DCNumber=N28219&TypeSearch=IR (last visited April 12, 2018).
alleges Defendants ignored his threats of suicidal ideation and
his reports that he feared his cellmates. Id. at 4. Plaintiff also
alleges as a basis for his claim that Defendants have violated the
Florida Administrative Code section 33.601. Id. at 3.
Upon review of the Complaint, the Court opines that Plaintiff
has failed to set forth his claims adequately. Thus, if Plaintiff
desires to proceed with his claims, he must file an amended
complaint. In doing so, Plaintiff should consider the following.
To state a viable claim under 42 U.S.C. § 1983, a plaintiff must
allege that the conduct complained of was committed by a person
acting under color of state law, and the conduct deprived the
plaintiff of rights, privileges, or immunities secured by the
Constitution or laws of the United States.2
Plaintiff is advised that “verbal threats and harassment are
generally not actionable under § 1983. A threat constitutes an
actionable constitutional violation only when the threat is so
brutal or cruel as to shock the conscience or if the threat exerts
coercive pressure on the plaintiff and [he] suffers the deprivation
of a constitutional right.” Pete’s Towing Co. v. City of Tampa,
Fla., 648 F. Supp. 2d 1276, 1287 (M.D. Fla. 2009) (citation
omitted); see Hernandez v. Florida Dep’t of Corr., 281 F. App’x
862, 866 (11th Cir. 2008) (finding that the plaintiff’s
“allegations of verbal abuse and threats by the prison officers
did not state a claim because the defendants never carried out
these threats and verbal abuse alone is insufficient to state a
constitutional claim” (citation omitted)); Barfield v. Hetzel, No.
2:11-cv-1114-WHA, 2015 WL 758490, at *4 (M.D. Ala. Feb. 23, 2015)
(unpublished) (“Derogatory, demeaning, profane, threatening or
abusive comments made by an officer to an inmate, no matter how
repugnant or unprofessional, do not rise to the level of a
constitutional violation.” (collecting cases)).
In amending, Plaintiff must name as defendants only those who
had been acting under color of state law and are responsible for
the alleged constitutional violation(s). He must state their full
names (to the extent he knows them) in the style of the case on
the first page and must ensure that the list of named defendants
on the first page matches the list of named defendants in Section
I.B. In his Complaint, Plaintiff names Lt. Hale in the style of
Furthermore, in Section I.B, Plaintiff omits Hale as a named
defendant. See Complaint at 3.
Under “Basis for Jurisdiction” in section II, Plaintiff must
state the specific constitutional right or federal law that each
violation of the Florida Administrative Code, a state law, is an
insufficient basis upon which to bring a § 1983 action. In section
IV, “Statement of Claim,” Plaintiff must concisely, yet clearly,
set forth the relevant facts regarding the incidents allegedly
resulting in a constitutional violation.3 He should concentrate
He may attach additional pages to the complaint form, if
necessary, but he must ensure that he includes page numbers on
defendant was involved.4 As the Complaint is currently drafted,
the role of each named defendant is unclear, and it is similarly
unclear what incidents Plaintiff claims resulted in a particular
violation. For example, Plaintiff references two specific dates,
December 20, 2017, and December 26, 2017. What occurred on each
date, and which defendants may have been involved on each date,
remains vague. See id. at 5-6.
Plaintiff also appears to be raising multiple and potentially
unrelated claims. For instance, he states that Defendants knew he
feared two different cellmates, yet took no action to protect him.
He also alleges Defendants knew he was a danger to himself and was
cutting himself, yet did not seek mental health assistance for
him.5 If the claims are not related to the same basic issue or
complaint. To the extent some information is included that is not
relevant to any claims or alleged constitutional violations, the
Plaintiff should focus his allegations on the actions or
inactions of each named defendant who injured him. To survive
dismissal, the complaint must allege facts, accepted as true, that
state a claim “that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The plausibility standard asks for less
than a probability but “more than a sheer possibility that a
defendant has acted unlawfully.” Id. That a court must accept
factual allegations as true does not apply to legal conclusions.
Id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
While Plaintiff alleges defendants ignored his mental health
issues, he also alleges one defendant took him to be evaluated by
the mental health professional, Ms. Anderson. See Complaint at 4.
information should be excluded or limited to enable the Court to
describing the relevant facts and the defendants’ actions or nonactions.6 Although Plaintiff is proceeding pro se, he must follow
the Federal Rules of Civil Procedure. Rule 8(a) requires a pleading
to include a short and plain statement of the claim showing that
averments of the claim be made “in numbered paragraphs, each
limited as far as practicable to a single set of circumstances.”
Under “Injuries” in section V, Plaintiff must state how each
defendant’s action or omission injured him. There must be a causal
connection between each defendant’s acts or omissions and the
alleged constitutional deprivation. For example, Plaintiff lists
some injuries, though he does not indicate, either in section V or
section IV (statement of claim) how the injuries arose or are
attributable to individual defendants. Furthermore, Plaintiff’s
allegations that he reported fearing his cellmates appears to lack
In section IV (statement of claim), Plaintiff does include small
numbers, apparently in an effort to number his allegations.
However, his summary of events is written as one long narrative,
which is difficult to decipher, and the numbers inserted in an
effort to separate paragraphs prove of little utility.
Plaintiff alleges he reported a fear of his cellmate in both cells
G-3203 and G-3205, but then he alleges that a seemingly different
cellmate, one in G-3103, attacked him. As alleged, any harm
resulting from a cellmate Plaintiff did not report fearing does
not state an Eighth Amendment violation.
If Plaintiff names defendants who hold supervisory positions
or who are not directly involved in the day-to-day operations of
the penal facility, such as a warden or the Secretary of the
Florida Department of Corrections, Plaintiff should be aware that
supervisory liability (respondeat superior) has been rejected as
a theory of recovery under § 1983. See Keith v. DeKalb Cty., Ga.,
749 F.3d 1034, 1047 (11th Cir. 2014) (citing Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003)).
Finally, Plaintiff must sign and date the amended complaint
after the following statement on the form:
Under Federal Rule of Civil Procedure 11, by
signing below, I certify to the best of my
knowledge, information, and belief that this
complaint: (1) is not being presented for an
improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the
cost of litigation; (2) is supported by
existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing
evidentiary support or, if specifically so
identified, will likely have evidentiary
support after a reasonable opportunity for
further investigation or discovery; and (4)
the complaint otherwise complies with the
requirements of Rule 11.
Plaintiff should carefully review the instructions in this
Order and on the civil rights complaint form to determine whether
he can present allegations sufficient to state a cause of action
under the relevant law.7 If Plaintiff does not have a good-faith
belief that he can state an actionable claim, he may voluntarily
dismiss the action at any time.8
Accordingly, it is
The Clerk is directed to send Plaintiff a civil rights
If Plaintiff elects to file an amended complaint, he
must do so no later than May 15, 2018. He should do so on the
directions given in this Order and the instructions on the form.
Plaintiff is advised that the amended complaint will serve as the
operative complaint in this action unless the Court otherwise
claims and allegations that he wishes to raise, and it must not
refer back to the original Complaint. This case number (3:18-cv-
Knowingly making a false material declaration in violation of
Title 18, United States Code, Section 1623, is punishable by a
fine or imprisonment, or both.
He should consider the running of the statute of limitations in
making his decision.
3-J-32JBT) should be affixed to the civil rights complaint form,
and the words “Amended Complaint” should be written on the top of
the form. When submitting an amended complaint, Plaintiff should
submit a service copy of the complaint for each named defendant.
Plaintiff’s failure to timely file an amended complaint
as described in this Order or failure to submit one copy of the
amended complaint for each named defendant will result in the
dismissal of this case without further notice.
The Order to Show Cause (Doc. 10) is discharged. See
Plaintiff’s Affidavit if Indigency (Docs. 11, 13).
DONE AND ORDERED at Jacksonville, Florida, this 12th day of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?