Holloman v. Manatee County Sheriff's Office et al

Filing 2

ORDER: Plaintiff's complaint 1 is DISMISSED pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which relief can be granted. The Clerk is directed to close this case. Signed by Judge James S. Moody, Jr on 6/1/2012. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CRAIG L. HOLLOMAN,
Plaintiff,
v.

Case No. 8:12-cv-1193-T-30EAJ

MANATEE COUNTY
SHERIFF’S OFFICE, et al.,
Defendants.
_________________________________/
ORDER
The Court has for its consideration the pro se prisoner Plaintiff’s “Sworn
Affidavit/Request for I.A. Investigation” (Dkt. 1) which the Court construes as a civil rights
complaint filed against Defendants pursuant to 42 U.S.C. § 1983 (Dkt. 1). The Court has
undertaken a preliminary screening of Plaintiff’s complaint in accord with 28 U.S.C. §
1915A. After doing so, the Court has determined that Plaintiff's complaint must be
dismissed.
The complaint alleges that on April 25, 2012, Defendants Boggs and Fiuza, deputies
with the Manatee County Sheriff’s Office, arrested Plaintiff. Before putting Plaintiff into
their police vehicle, Boggs and Fiuza searched Plaintiff. While searching Plaintiff, Boggs
grabbed and squeezed Plaintiff’s genitals. Plaintiff asked Boggs “what are you doing?”
Both Boggs and Fiuza responded “just be fucking quiet,” and pushed Plaintiff into the back
seat of their police vehicle. Boggs then told Plaintiff “you know, I really hate niggers who

commit crimes against us police officers,” and “that [he] was the stupidest black criminal that
ever lived.”
Boggs drove Plaintiff to the Manatee County Sheriff’s Office. Boggs escorted
Plaintiff into the building and ordered Plaintiff to sit next to another detainee. After
completing paperwork, Fiuza transported Plaintiff and the other detainee in a police vehicle
to Manatee County Jail. While driving, Fiuza told Plaintiff and the other detainee that “he
will make it to the North Manatee County Jail in a record time.” During the transport, the
police vehicle was traveling up to 85-90 miles per hour.
Plaintiff claims that Boggs violated Plaintiff’s Fifth, Eighth, and Fourteenth
Amendment rights when Boggs made the racial slur against Plaintiff, and grabbed his
genitals during the search. Plaintiff also asserts that Fiuza violated his rights when he
endangered him and the public by driving the police vehicle at 85-90 miles per hour. As
relief, Plaintiff requests the Court order an internal affairs investigation of Boggs and Fiuza’s
actions (Dkt. 1 at 2), and assist Plaintiff in bringing criminal charges against Boggs and Fiuza
(Dkt. 1-1).
Discussion
Private citizens have “no judicially cognizable interest in the prosecution or
non-prosecution of another.” Otero v. United States Attorney General, 832 F.2d 141 (11th
Cir. 1997) (writ of mandamus could not issue to compel investigation and prosecution of
former Florida state attorney because private citizens have no judicially cognizable interest
in the prosecution or non-prosecution of another) (citing Linda R.S. v. Richard D., 410 U.S.
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614, 619 (1973)). Therefore, Plaintiff’s assertion that Defendants Boggs and Fiuza should
be prosecuted for their alleged conduct fails to state a claim upon which relief may be
granted.
To the extent Plaintiff requests the Court order the Manatee County Sheriff’s Office
to initiate an internal affairs investigation of Boggs and Fiuza’s actions, the Court construes
the request as a petition for the writ of mandamus. United States district courts have
jurisdiction in actions in the nature of mandamus pursuant to 28 U.S.C. § 1361 to compel
United States officials to perform their duties. See 28 U.S.C. § 1361 (“The district courts
shall have original jurisdiction of any action in the nature of mandamus to compel an officer
or employee of the United States or any agency thereof to perform a duty owed to the
plaintiff.”). The Manatee County Sheriff’s Office, however, is not a federal agency.
Moreover, jurisdiction under § 1361 is restricted to actions seeking to compel an
agency to perform a non-discretionary duty. See Heckler v. Ringer, 466 U.S. 602, 616 (1984)
(“The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to
provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only
if the defendant owes him a clear nondiscretionary duty.”) (emphasis added). It is well
settled that a writ of mandamus will not issue to compel discretionary acts like an agency’s
decision to initiate an investigation. See Einhorn v. DeWitt, 618 F.2d 347, 349 (5th Cir.
1980) (“a writ of mandamus cannot compel a discretionary action”); Otero, 832 F.2d 141
(writ of mandamus could not issue to compel investigation and prosecution of former state
attorney); Haenichen v. Reno, 26 Fed. Appx. 34, 35 (2d. Cir. 2001) (unpublished opinion)
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(“An individual may not compel officials at the Department of Justice to initiate an
investigation concerning the alleged criminal acts of another.”); Lovoi v. Department of
Justice, 679 F. Supp. 2d 12, 14 (D.D.C. 2010) (no right to an F.B.I. investigation); Jafree v.
Barber, 689 F.2d 640, 643 (7th Cir. 1982) (initiation of a criminal investigation by the F.B.I.
is “clearly a discretionary act” and district court did not have authority to issue writ of
mandamus to compel F.B.I. to investigate alleged criminal acts). Therefore, this Court lacks
jurisdiction to issue a writ of mandamus compelling the Manatee County Sheriff’s Office to
initiate an internal affairs investigation.
Finally, Plaintiff’s allegations fail to demonstrate a constitutional violation. To prevail
on a claim under 42 U.S.C. § 1983, Plaintiff must demonstrate (1) that defendants deprived
him of a right secured by the Constitution or federal law and (2) that such deprivation
occurred under color of state law. Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir.
1998). “The Constitution does not protect against all intrusions on one’s peace of mind. Fear
or emotional injury which results solely from verbal harassment or idle threats is generally
not sufficient to constitute an invasion of an identified liberty interest.” Pittsley v. Warish,
927 F.2d 3, 7 (1st Cir. 1991). Verbal abuse and harassment does not violate the Eighth
Amendment. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). “Verbal harassment
or abuse . . . is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.”
Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979). While the racial epithet Plaintiff
attributes to Boggs is undisputedly repugnant and unprofessional, it does not rise to the level
of a constitutional violation for purposes of § 1983.
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Next, to the extent Plaintiff alleges that Boggs grabbed Plaintiff’s genitals during the
search of Plaintiff’s person following the arrest,1 the allegations involve only a de minimus
use of force insufficient to state a constitutional violation.2 See, e.g., Bryan v. Spillman, 217
Fed. Appx. 882 (11th Cir. 2007) (de minimis force where officer conducted “rough search”
of suspects genitals); Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000) (de minimis force where
officer grabbed arrestee and searched his genitals in uncomfortable manner).
Lastly, with respect to Plaintiff’s claim that Fiuza transported him to the jail at speeds
of 85-90 miles per hour, Plaintiff again fails to allege a constitutional violation. See, e.g.,
Gallagher v. Ruggles, 856 F.2d 193 (6th Cir.1988) (unpublished opinion) (affirming district
court’s dismissal for failure to state a claim upon which relief can be granted detainee’s
complaint alleging defendants transported him at speeds exceeding the speed limit ); Young
v. Mich. Dep’t of Corr., 2007 U.S. Dist. LEXIS 54507, 2007 WL 2214520, at *2 (E.D. Mich.
July 27, 2007) (“Refusing to seat belt a prisoner during transport and then exceeding the
speed limit does not constitute an ‘excessive risk to inmate health or safety.’ Many people
drive without wearing a seatbelt, and speeding on the highway is a frequent occurrence.
Although driving fast is risky, it cannot be considered an ‘excessive’ risk.”) (citations
omitted); Jones v. Collins, 2006 U.S. Dist. LEXIS 35245, 2006 WL 1528882, at *2 (S.D. Ill.

1

“[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree
of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989).
2

“[T]he application of de minimis force, without more, will not support a claim for excessive force in
violation of the Fourth Amendment.” Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000).

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June 1, 2006) (“reckless driving . . . present[s], at best, [a] claim[] of negligence, but a
defendant can never be held liable under § 1983 for negligence”).
Accordingly, the Court ORDERS that:
1.

Plaintiff’s complaint (Dkt. 1) is DISMISSED pursuant to 28 U.S.C. § 1915A

for failure to state a claim upon which relief can be granted.
2.

The Clerk is directed to close this case.

DONE and ORDERED in Tampa, Florida on June 1, 2012.

SA:sfc
Copy to: Plaintiff pro se

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