Dyal v. Gardner et al

Filing 59

ORDER granting 37 Motion to Dismiss and 56 Motion to Dismiss. Counts Three, Four (for the allegations related to withholding meals), Eleven, and Thirteen are dismissed with prejudice and the remaining Counts are dismissed without prejudice. Plaintiff has thirty (30) days to file an amended complaint consistent with this Order. Signed by Judge William F. Jung on 2/20/2020. (JWW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

CHRISTOPHER DYAL,
Plaintiff,
v.

Case No. 5:18-cv-209-Oc-02PRL

SGT. GARDNER, SGT. SAVAGE,
LT. LEE, C.O. HARPER, C.O. RIVERA,
and C.O. SANTIAGO,
Defendants.
_____________________________________/
ORDER
This matter comes to the Court on Defendants Gardner, Savage, Lee, Harper,
Rivera, and Santiago’s Motions to Dismiss Plaintiff’s Complaint. Dkts. 37 & 56.
Plaintiff Christopher Dyal responded to these Motions. Dkt. 58. After briefing by the
parties, the Court grants the Motions.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted). When considering a Rule 12(b)(6) motion,
the court accepts all factual allegations of the complaint as true and construes them
in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282,

1284 (11th Cir. 2008) (citation omitted). Courts should limit their “consideration to
the 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) (citations omitted).
DISCUSSION
Plaintiff’s Complaint raises thirteen Counts against six correctional officers,
who worked at his former place of confinement. Dkt. 1 at 16–25. Each of these
Counts involves allegations that correctional officers retaliated against Plaintiff for
previously filled grievances against various other correctional officers. He seeks
relief under 42 U.S.C. § 1983. As discussed below, each of these Counts is due to
be dismissed.
1. Retaliatory Transfer Allegations
In Counts One and Two, Plaintiff raises claims under the First and Eighth
Amendment based on allegations that Defendant Gardner threated to transfer
Plaintiff to a different prison in retaliation for repeatedly filing grievances. Id. at
16. Plaintiff seeks an injunction preventing the transfer and compensatory,
punitive, and nominal damages for each of these claims. Id. at 35. However, these
claims must be dismissed.
First, Plaintiff’s claim for injunctive relief fail as a matter of law. It is settled
law in this Circuit that prison officials may not transfer an inmate in retaliation for
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exercising his right to file grievances against prison officials. See, e.g., Nichols v.
Riley, No. 2:03CV685-WHA, 2006 WL 3236249, at *5 (M.D. Ala. Oct. 10, 2006).
That said, Federal Rule of Civil Procedure 65(d) requires requests for injunctions
to be specific. An injunction which merely orders Defendant Gardner to obey the
law is too broad and too vague to be enforceable. See Burton v. City of Belle
Glade, 178 F.3d 1175, 1201 (11th Cir. 1999). Since prison officials are already
prohibited from transferring Plaintiff in retaliation for filing grievances, the Court
may not issue an injunction simply directing adherence to the law.
Second, Plaintiff is prohibited from seeking compensatory or punitive
damages for the claims in Counts One and Two. Under the Prison Litigation
Reform Act, an incarcerated plaintiff cannot recover compensatory or punitive
damages for constitutional violations unless he can show a physical injury. See 47
U.S.C. § 1997e(e); see, e.g., Al-Amin v. Smith, 637 F.3d 1192, 1198 (11th Cir.
2011) (punitive); Logan v. Hall, 604 F. App’x 838, 840 (11th Cir. 2015)
(compensatory). But an incarcerated plaintiff may still recover nominal damages
even if the he lacks a physical injury. See Hughes v. Lott, 350 F.3d 1157, 1162
(11th Cir. 2003) (“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.”). So just like injunctive

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relief, compensatory and punitive damages are unavailable as a matter of law for
Counts One and Two.
And Plaintiff’s claims are too vague and conclusory to adequately state
claims for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A]
plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do[.]”). Both First and Eighth Amendment claims require
proof of causation which Plaintiff failed to adequately allege. See Smith v. Mosley,
532 F.3d 1270, 1276 (11th Cir. 2008) (First Amendment); Carter v. Galloway, 352
F.3d 1346, 1349 (11th Cir. 2003) (Eighth Amendment). For these reasons, Counts
One and Two are dismissed with leave to amend only as to claims for nominal
damages.
2. Withholding Meals Allegations
Next, Plaintiff asserts that his Eighth Amendment and First Amendment
rights were violated two times when he was allegedly denied a meal. Plaintiff
alleges that, once in January 2018, Defendant Gardner prevented Plaintiff from
getting his last meal of the day because he continued to file grievances. Dkt. 1 at
17. Plaintiff also alleges that, one time in February 2018, Defendant Santiago
prevented Plaintiff from getting his morning meal. Id. at 23. That said, even taking
these allegations at face value, neither rise to the level of constitutional violations.
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A prison official has a duty to “ensure that inmates receive adequate food,
clothing, shelter and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
But “[t]he deprivation of food constitutes cruel and unusual punishment only if it
denies a prisoner the ‘minimal civilized measure of life’s necessities.’” Bryant v.
Downs, No. 609-CV-1670-ORL28KRS, 2010 WL 2593564, at *4 (M.D. Fla. June
28, 2010) (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)). For claims
involving denial of food, courts look to the amount and duration of the deprivation
to determine whether the deprivation is serious enough. Id. (citing Hutch v. Dep’t
of Corr., 993 F.2d 882 (9th Cir.1993)).
Here Plaintiff has been in custody for most of the past twenty years, and
alleges the deprivation of a single meal on two separate occasions a month apart.
This deprivation is not sufficiently serious to rise to the level of a constitutional
violation and it is therefore subject to dismissal as frivolous. 28 U.S.C. §
1915(e)(2)(B)(i); see, e.g., Dartling v. Farwell, 139 F. App’x 847, 847 (9th Cir.
2005) (holding that an inmate's allegation that he was deprived of a single meal
could not support an Eighth Amendment claim); O’Connor v. Carnahan, No.
3:10CV360/LAC/EMT, 2011 WL 1326446, at *2 (N.D. Fla. Apr. 6, 2011) (noting
“there is abundant case law indicating that a claim of the deprivation of a single
meal on a single occasion, does not” rise to a constitutional violation). Thus,

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Counts Three, Four (only for allegations related to withholding a meal), and
Eleven must be dismissed with prejudice.
3. Conspiracy Allegation
Plaintiff’s conspiracy claim fails under the intracorporate conspiracy
doctrine. In Count Thirteen Plaintiff alleges that Defendants Rivera, Harper,
Gardner, and Santiago engaged in a conspiracy to “discriminate against Plaintiff
with evil intent.” Dkt. 1 at 24. Yet, under the intracorporate conspiracy doctrine
“acts of corporate agents are attributed to the corporation itself, thereby negating
the multiplicity of actors necessary for the formation of a conspiracy.” McAndrew
v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) (en banc). Simply
put, “a corporation cannot conspire with its employees, and its employees, when
acting in the scope of their employment, cannot conspire among themselves.”
Grider v. City of Auburn, 618 F.3d 1240, 1260–61 (11th Cir. 2010). This doctrine
applies to public entities—including correctional institutions. Denney v. City of
Albany, 247 F.3d 1172, 1190 (11th Cir. 2001); see also Crenshaw v. Lewis, No.
8:14-CV-1941-T-27AEP, 2016 WL 521531, at *4 (M.D. Fla. Feb. 5, 2016).
Plaintiff’s conspiracy claim is against five employees of the Marion
Correctional Institution. Since each Defendant works for the same entity and they
were acting within the scope of their employment as corrections officers, as a

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matter of law they cannot be engaged in a conspiracy. Since this claim fails as a
matter of law, Count Thirteen must be dismissed with prejudice.
4. Transfer of Inmate Witness Allegation
In Counts Six and Nine Plaintiff alleges that Defendants Gardner and Savage
retaliated against Plaintiff in violation of the First and Fourteenth Amendments by
transferring another inmate to a different correctional institution. Plaintiff alleges
that one of his fellow inmates—who intended to serve as a witness for Plaintiff in
another lawsuit against Marion correctional officers—was harassed by correctional
officers, attacked by other inmates, and then transferred to another correctional
institution, in retaliation for being a witness.
First, even accepting Plaintiff’s allegations at face value, Plaintiff cannot sue
to vindicate the rights of another inmate. Warth v. Seldin, 422 U.S. 490, 499 (1975)
(“[T]he plaintiff generally must assert his own legal rights and interests, and cannot
rest his claim to relief on the legal rights or interests of third parties.”). Next, to
prevail Plaintiff’s First Amendment retaliation claim must show, among other
things, that he “suffered adverse action such that the [official’s] allegedly
retaliatory conduct would likely deter a person of ordinary firmness from engaging
in such speech[.]” Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). But
Plaintiff has failed to show that he suffered adverse action. Plaintiff does not allege
that his ability to call the other inmate as a witness was impaired nor is there

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evidence it was actually impaired. So even accepting the facts as alleged by
Plaintiff, Counts Six and Nine cannot stay a claim and must be dismissed.
5. Threat Allegations
Plaintiff also has three Counts (4, 5, & 7) in his Complaint based on alleged
threats by various Defendants for previously filed grievances. Plaintiff alleges that
certain Defendants engaged in a “campaign of harassment” against him that left
him in fear of danger or death. Dkt. 1 at 21. Yet, in each of these Counts, Plaintiff
fails to allege sufficient facts to amount to First or Eighth Amendment violations.
To state a claim for First Amendment retaliation a plaintiff must establish
that: “(1) his speech was constitutionally protected”; (2) he suffered adverse action;
and “(3) there is a causal relationship between the retaliatory action and the
protected speech.” Smith, 532 F.3d at 1276. To show the defendant’s conduct
adversely affected protected speech, a plaintiff must show the defendant’s conduct
would likely “deter a prisoner of ordinary firmness” from exercising his First
Amendment rights. Id. at 1277. This is an objective standard. Id.
Here, Plaintiff makes general allegations about the type of adverse action he
suffered. In Count Five, Plaintiff alleges that he was “threatened by [Defendants
Lee, Gardner, and Rivera] to the point of fear for safety or death.” Dkt. 1 at 18–19.
This Count is based on vague allegations of threats that remain within the bounds a
general allegation of “adverse action.” Twombly, 550 U.S. at 555 (“[A] plaintiff’s
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obligation to provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.”). Plaintiff’s allegation does not rise to the level necessary to
adequately state a claim for relief.
Then, to state a claim for an Eighth Amendment violation, a plaintiff must
adequately plead “(1) a substantial risk of serious harm; (2) a defendant’s
deliberate indifference to that risk; and (3) causation.” Carter v. Galloway, 352
F.3d 1346, 1349 (11th Cir. 2003). The existence of substantial risk is an objective
measure and deliberate indifference is measured subjectively. Brown v. Johnson,
387 F.3d 1344, 1351 (11th Cir. 2004). Plaintiff fails to adequately allege facts to
meet these elements for Counts Four and Seven.
In Count Four Plaintiff states he was “threatened [Plaintiff] with attack from
other inmates at the order of [Defendant] Gardner.” Dkt. 1 at 18. Plaintiff fails to
allege any facts about the existence of a “substantial risk” that other inmates—with
or without the direction of Defendant Gardner—would attack Plaintiff. And in
Count Seven, Plaintiff alleges Defendants Lee, Gardner, Savage, and Rivera
engaged in a “campaign of harassment” causing Plaintiff to live in “fear of danger
[and] also death.” Dkt. 1 at 21. These allegations are merely conclusory statements
lacking in any factual detail. Both Counts are based on vague allegations and are

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insufficient to present an adequately pled claim for an Eighth Amendment
violation.
In sum, in Counts Four, Five, and Seven, Plaintiff makes vague and
conclusory allegations related to threats made by Defendants. Each count is
insufficiently pled. See Twombly, 550 U.S. at 555. For this reason, these Counts
must be dismissed.
6. Equal Protection Violation Allegation
Count Eight of the Complaint raises a Fourteenth Amendment claim based
on a “class of one” Equal Protection clause violation. Dkt. 1 at 21. While the
Supreme Court has recognized “class of one” equal protection claims, a plaintiff
can only establish a claim by showing he was “intentionally treated differently
from others similarly situated and that there is no rational basis for the difference
in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Here,
Count Eight of Plaintiff’s Complaint is merely a formulaic recitation of that legal
standard. See, e.g., Dkt. 1 at 21–22 (“Plaintiff has been treated differently from the
rest of the inmates . . . . [T]here is no legitimate government or institutional
interest[.]”). As a result, Plaintiff has failed to state a claim in this Count and it
must be dismissed. See Twombly, 550 U.S. at 555.

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7. Choking Allegations
In Count Ten, Plaintiff raises a claim for excessive force in violation of the
Eighth Amendment’s prohibition of infliction of cruel and unusual punishment.
Dkt. 1 at 23. For excessive force claims, the core inquiry is “whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam)
(citing Hudson v. McMillian, 503 U.S. 1, 7 (1992)). This inquiry involves “both a
subjective and objective component: (1) whether the ‘officials act[ed] with a
sufficiently culpable state of mind,’ and (2) ‘if the alleged wrongdoing was
objectively harmful enough to establish a constitutional violation.’” Tate v.
Rockford, 497 F. App’x. 921, 923 (11th Cir. 2012) (per curiam) (quoting Hudson,
503 U.S. at 8.).
Here, Plaintiff merely alleges that Defendant Harper “became angry and out
of professional character then grabbed the Plaintiff by the neck and choking him
until Plaintiff begged him to stop.” Dkt. 1 at 23. Vague and conclusory allegations
will not support an action under 42 U.S.C. § 1983. Hendrix v. Tucker, 535 F.
App’x. 803, 804–05 (11th Cir. 2013) (per curiam). Plaintiff does not sufficiently
allege that Defendant Harper has a culpable state of mind or that Defendant
Harper’s actions were objectively harmful. As such, Count Ten of the Complaint
must be dismissed for failure to state a claim.
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Then, in Count Twelve Plaintiff raises a failure to intervene claim against
Defendant Santiago for the same set of facts. Plaintiff alleges that Defendant
Santiago saw Defendant Harper choke Plaintiff and did not intervene. Dkt. 1 at 24.
But this Count must also be dismissed.
The standard for failure to intervene is well established in this Circuit: “An
officer who is present at the scene and who fails to take reasonable steps to protect
the victim of another officer’s use of excessive force, can be held liable for his
nonfeasance.” Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (internal
quotation omitted). “But it must also be true that the non-intervening officer was in
a position to intervene yet failed to do so.” Id. at 1331. Plaintiff does not allege that
Defendant Santiago was in any position to intervene in the interaction between
Defendant Harper and Plaintiff. As a result, Count Twelve must be dismissed for
failure to adequately state a claim for failure to intervene.

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CONCLUSION
The Court grants Defendants’ Motions to Dismiss (Dkts. 37 & 56) as to
Counts Three, Four (for the allegations related to withholding meals), Eleven, and
Thirteen with prejudice and grants the Motions to Dismiss for the remaining Counts
without prejudice. Plaintiff has thirty (30) days to file an amended complaint
consistent with this Order.
DONE AND ORDERED at Tampa, Florida, on February 20, 2020.

/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:
Counsel of Record
Plaintiff, pro se

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