Ross v. Jackson

Filing 17

ORDER denying as moot 11 Motion to modify; granting 12 Motion to dismiss; denying 13 Motion to Remand to State Court; denying as moot 14 Motion to stay; denying as moot 16 Motion for inquiry as to ruling. The Clerk of Court shall enter a final judgment in favor of Defendant and against Plaintiff and close this case. Signed by Judge Elizabeth A. Kovachevich on 6/10/2011. (JM)

UNITED
MIDDLE

STATES

DISTRICT

DISTRICT
TAMPA

OF

COURT

FLORIDA

DIVISION

DWIGHT ROSS,
Plaintiff,
v.

CASE NO.

VALERIE L.

8:10-CV-1813-T-17AEP

JACKSON,

etc.,

Defendant.

/

ORDER

This

cause

is

before

Dkt.

11

Motion to Modify Case Track

Dkt.

12

Motion

to

Dismiss

Dkt.

13

Motion

to

Remand

Dkt.
Dkt.

14
16

Motion to Stay Proceeding
Motion for Inquiry

In the Complaint,

the Court

Plaintiff Dwight Ross, pro se alleges that

Defendant Valerie L. Jackson,

and submitted

on:

deliberately and maliciously wrote

a false Florida Department of Corrections Charging

Disciplinary Report as to Dwight Ross,

resulting in Dwight Ross

being placed in confinement for thirty days,

loss of thirty days

gain time, forfeiture of twenty days gain time, denial of
telephone contact and visitation with his family during
confinement,

loss of weight from stress and emotional effects of

segregation, and which deprived Plaintiff Ross of his right to
liberty and violated Plaintiff's protection from cruel and
unusual punishment under the Eighth and Fourteenth Amendments.
Plaintiff Ross seeks a judgment for money damages against
Defendant Jackson in her individual capacity.

I.

Motion

to

Remand

Plaintiff Ross has moved to remand this case to Polk County
Circuit Court,

Tenth Judicial Circuit.

Plaintiff Ross argues

that Plaintiff's Complaint was filed pursuant to Sec. 768.28,
Florida Statutes,

to pursue Plaintiff's claim for damages against

Defendant Valerie L. Jackson in her individual capacity.

On its face,

the Complaint includes allegations of the

deprivation of federally protected rights by a person acting
under color of state law,
consideration,

along with other allegations.

the Court finds that this case was properly

removed on the basis of federal question jurisdiction.
therefore denies

II.

A.

Motion

to

After

Plaintiff's Motion

to

The Court

Remand.

Dismiss

Standard of

Review

"Under Federal Rule of Civil Procedure 8(a)(2),

a complaint

must contain a "short and plain statement of the claim showing
that the pleader is entitled to relief." "[D]etailed factual
allegations" are not required,
544,

555

matter,

(2007),

but

Bell Atlantic v. Twombly,

550 U.S.

the Rule does call for sufficient factual

accepted as true,

to "state a claim to relief that is

plausible on its face," Id., at 570.

A claim has facial

plausibility when the pleaded factual content allows the court to
drav;

the

reasonable

inference

the misconduct alleged.
underlie Twombly.

Id.,

First,

that

the

at 556.

defendant

is

liable

for

Two working principles

the tenet that a court must accept a

complaint's allegations as true is inapplicable to threadbare

recitals of a cause of action's elements,
conclusory statements.

Id.,

at 555.

supported by mere

Second,

only a complaint

that states a plausible claim for relief survives a motion to

dismiss.

Determining whether a complaint states a plausible

claim is context-specific,

requiring the reviewing court to drav;

on its experience and common sense.

Id. , at 556.

A court

considering a motion to dismiss may begin by identifying
allegations that,

because they are mere conclusions,

entitled to the assumption of truth.

provide the complaint's framework,
factual allegations.

allegations,

are not

While legal conclusions can

they must be supported by

When there are well-pleaded factual

a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to
relief.

See Ashcroft v.

Iabal.

(2009)(quoting Bell Atlantic v.

B.

129 S.Ct.
Twombly,

1937,

1955-1956

550 U.S.

544

(2007).

Discussion

Defendant Valerie L. Jackson requests that the Court dismiss
this case pursuant to Heck v. Humphrey,

512 U.S.

477

(1994),

which is applicable to claims surrounding prison disciplinary

proceedings.

Edwards v.

Wilkinson v.

Dotson.

Balisok.

544

U.S.

520 U.S. 641, 648

74,

81-82

(2005)(Sec.

(1977);
1983 action

barred if success necessarily demonstrates invalidity of
confinement or duration).
October 21,

2008 disciplinary report has not been overturned.

After investigation,
(Exhibits).
Sec.

Defendant Jackson argues that the

Plaintiff Ross was found guilty of the DR

Defendant Jackson argues that success in Plaintiff's

1983 suit would necessarily negate the underlying DR.

Defendant Jackson further argues that Plaintiff Ross cannot

recover compensatory or punitive damages,

3

if Plaintiff cannot

Case No. 8:10-CV-1813-T-17AEP

demonstrate physical injury.
v. Allen,

502 F.3d 1255,

See 42 U.S.C.

1271 (11th Cir.

Sec.

1997e(e); Smith

2007).

The Court notes that Plaintiff Ross did not file a response
to Defendant's Motion to Dismiss,

Remand,

but instead filed a Motion to

which the Court has denied.

After consideration,

Court grants Defendant Jackson's Motion to Dismiss,

the

with

prejudice.

Defendant Jackson requests the imposition of sanctions under
28 U.S.C.

Sec.

1915(e)(2)(3)

After consideration,

and Ch.

944.279,

Florida Statutes.

the Court finds that the dismissal of this

case with prejudice is a sufficient sanction.

ORDERED

that

Plaintiff's Motion

Accordingly,

for Remand

is denied,

Defendant Jackson's Motion to Dismiss is granted.

it is

and

The Clerk of

Court shall enter a final judgment in favor of Defendant and
against Plaintiff,

and close this case.

other pending motions as moot

(Dkts.

DONE AND ORDERED in Chambers,

/_&_ day of June, 2011.

Copies to:

All parties and counsel of record

The Court denies all

11, 14, 16).

in Tampa,

Florida on this