Boyd v. Decker et al
ORDER denying 17 Sheriff Gualtieri's Motion to Dismiss; dismissing claims against other Defendants; and permitting specific claims to proceed to service of process, all in accordance with the attached order. The Clerk is directed to mail forms to Mr. Boyd, and Mr. Boyd must return completed forms within thirty (30) days. Signed by Judge William F. Jung on 7/29/2022. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 8:20-cv-2817-WFJ-SPF
OFFICER JEREMY HAYES,
OFFICER JEFF LEWIS,
CHIEF ANTHONY HOLLOWAY,
JUDGE MICHAEL F. ANDREWS,
CLASSIFICATION OFFICER MCWILLIAMS,
CLASSIFICATION OFFICER PAOLLILIO,
SHERIFF BOB GUALTIERI,
LAW CLERK APPEL
LAW CLERK BEAM, and
LAW CLERK NORLANDER,
Defendant Sheriff Bob Gualtieri moves to dismiss Plaintiff Thaddeus Boyd’s
Second Amended Complaint filed under 42 U.S.C. § 1983. (Docs. 12 and 17) Mr.
Boyd opposes dismissal of this action. (Doc. 24) For the reasons explained below,
dismissal with prejudice on the four grounds presented in the motion is not warranted,
and therefore the motion must be denied. Additionally, the Court has screened the
Second Amended Complaint for frivolity under 28 U.S.C. § 1915A and concludes that
three of Mr. Boyd’s claims may proceed for further development.
Mr. Boyd, who is proceeding pro se, alleges that his constitutional rights were
violated when he was a pretrial detainee at the Pinellas County jail. Mr. Boyd’s initial
Complaint was dismissed without prejudice to file an amended complaint on the
proper prisoner civil rights complaint form.
(Docs. 1 and 3)
In his Amended
Complaint, which was filed on the proper form, Mr. Boyd named 21 defendants and
alleged that his rights under the First, Third, Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments were violated. (Doc. 6) He asserted claims of retaliation,
unconstitutional conditions of confinement, and deliberate indifference to a serious
The Court conducted a comprehensive screening of the Amended Complaint,
as required under 28 U.S.C. § 1915A, and dismissed all of Mr. Boyd’s claims without
prejudice to the filing of a Second Amended Complaint. (Doc. 11) After thoroughly
explaining the legal standards governing Mr. Boyd’s claims, the Court cautioned Mr.
Boyd that he “must identify each claim for relief, clearly state relevant facts that
support each claim, and explain the involvement of each defendant in the alleged
constitutional violations.” (Id. at 12) The Court explained that the Second Amended
Complaint “must include all of Mr. Boyd’s claims” and would supersede the Amended
Complaint. (Id. at 14)
Mr. Boyd now proceeds on his Second Amended Complaint. (Doc. 12) Mr.
Boyd names 19 defendants and alleges that his rights under the First, Fourth, Sixth,
and Fourteenth Amendments were violated. The defendants named in the Second
Amended Complaint are not the same as those named in the initial Complaint or the
Amended Complaint. Mr. Boyd adds new defendants to the action, drops some
defendants from the action, and keeps some defendants.1 Mr. Boyd asserts claims of
retaliation, unconstitutional conditions of confinement, deliberate indifference to a
serious medical need, loss of personal property, slander, taunting, and denial of access
to the courts.
The Second Amended Complaint
Mr. Boyd alleges that, on June 30, 2020, he was detained and arrested on
charges of theft by Officers Hayes and Lewis, despite his protestations of innocence.
(Doc. 12 at 8) His personal items, including his cell phone, were taken. (Id.) Later,
Mr. Boyd wrote to the police department to complain about his missing phone. (Id.)
Officers Hayes and Lewis “remembered [his] phone yet neither of them know where
[his] phone went.” (Id.)
These defendants are added in the Second Amended Complaint: Hayes, Lewis, Holloway,
Ceriznos, Patruzi, Norlander, and Appel. These defendants are dropped from the Second
Amended Complaint: Decker, Bowman, Brinson, Serrano, Loftus, Renaker, Belvis,
McNally, and Salvadir. These defendants are listed in both the Amended and Second
Amended Complaint: Deboy, Judge Andrews, Corporal Andrews, McWilliams, Paollilio,
Dice, Hastings, Troutman, Moyer, Gualtieri, and Beam. Franjesivic is a defendant listed in
both the initial Complaint and the Second Amended Complaint, but not the Amended
Because of a previous incarceration in 2007 during which he was on red-dot
status, Mr. Boyd was “sped through booking” and placed in disciplinary confinement.
(Doc. 12 at 9) He was “placed in a red jump suit [and] separated from all other
inmates.” (Id.) Mr. Boyd complained to Classification Specialists McWilliams and
Paollilio about his placement in disciplinary confinement. (Id.) He complained that
he was improperly classified as a predator despite having no sex charges against him.
(Id.) He “went back and forth with them for an entire year” but his concerns were
Mr. Boyd has a recorded disability from multiple gun-shots and a spinal injury.
(Doc. 12 at 12) He has “partial paralysis, spinal injury, and seizures.” (Id. at 9) His
“physical appearance [would] alert any sane person that [he is] disabled” and his
medical records “speak for themselves.” (Id.) He made several complaints about
“back pain, sneakers needed, astrophe[sic], limited mobility, and reported dangers of
being forced to use stairs.” 2 (Id.) Also, he complained about the lack of rails in the
shower and toilet. (Id.) He fell “on more than one occasion.” (Id.) He has had to
“defend [himself] from bullies.” (Id.) He advised staff “several times of discomfort
from having to go to and from a six by nine in leg irons and shackles.” (Id. at 12) He
complained to “medical” about his lack of mobility and “astrophe[sic] in his left ankle”
but his requests to be removed from red-dot status were ignored. (Id.)
Mr. Boyd was eventually granted a shoe pass on November 13, 2020. (Doc. 12 at 12).
On July 7, 2020, inmate Jacob Ceriznos spit on Mr. Boyd. 3 (Doc. 12 at 9)
Despite Mr. Boyd’s complaints about the incident, Deputy Dice issued Mr. Boyd a
(Id. at 9–10)
Deputy Deboy “packed [his] property then
distributed various items to inmates in Delta.” (Id. at 10) Corporal Andrews, Sergeant
Franjesivic, and Deputies Dice and Deboy “surrounded [him] and made intimidating
and provocative taunts to attempt to get [him] to be belligerent.” (Id.) Despite the
taunting, Mr. Boyd “remained calm” and was relocated. (Id.)
Mr. Boyd “was forced to remain on red dot for 6 months” and “remained on
administrative confinement for 8 months.” (Doc. 12 at 10) “This is where Sergeant
Patruzi, Sergeant Troutman, and Sergeant Hastings became involved.” (Id.) Sergeant
Hastings told Mr. Boyd that Sergeant Troutman would handle his case. (Id.) Sergeant
Troutman visited Mr. Boyd and gave him “a victim’s rights card however [he] filed no
After a disciplinary hearing, Mr. Boyd was given “5 days
confinement,” and Sergeant Patruzi told him not to appeal because he was already on
red-dot status. (Id.)
Mr. Boyd complained about his red dot classification but he “was still punished
further and kept on red-dot status as a retaliation [for] [his] grievance and exhaustion
To the extent Mr. Boyd intends to state a claim against inmate Ceriznos for allegedly spitting
on him on July 7, 2020, such claim must be dismissed with prejudice. “Section 1983 provides
judicial remedies to a claimant who can prove that a person acting under color of state law
committed an act that deprived the claimant of some right, privilege, or immunity protected
by the Constitution or law of the United States.” Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582
(11th Cir. 1995). Mr. Boyd has not alleged that Ceriznos, an inmate, is a state actor, nor does
it seem likely that he can assert facts demonstrating that he is a state actor.
of administrative remed[ies].” (Doc. 12 at 10) “The more [Mr. Boyd] brought
attention to [the] issue [it] would cause [him] more punishment.” (Id.) He wrote
Sheriff Gualtieri “on three occasions in reference to all of the above claims.” (Id.)
Captain Moyer responded to two of Mr. Boyd’s letters, but his response was “insolent
and negligent and a little insulting.” (Id. at 11) Captain Moyer taunted him and called
him a predator. 4 5 (Id.)
As a result of his improper red-dot classification and lengthy detention in
disciplinary confinement, Mr. Boyd suffered muscle pain, join pain, nerve pain,
mobility reduction, and humiliation. (Doc. 12 at 12) Mr. Boyd seeks to recover
$500,000.00 in damages for inadequate conditions of confinement. (Id.) Also, he
seeks to recover $100,000.00 for the loss of his phone. (Id.)
Also, Mr. Boyd alleges he unsuccessfully sought unspecified injunctive relief against Judge
Michael F. Andrews. (Doc. 12 at 11) His request for injunctive relief appears to be related
to his criminal prosecution in state court and unrelated to his conditions of confinement. To
the extent that Mr. Boyd intends to state a claim against Judge Andrews in his capacity as the
presiding judge over his criminal prosecution, such claim must be dismissed with prejudice.
As the Court previously explained (Doc. 11 at 6), judges have immunity when they act in
their judicial capacity. See Sibley v. Lando, 547 F.3d 1067, 1070 (11th Cir. 2005).
Also, Mr. Boyd alleges that his legal mail has been tampered with and that he has been
denied access to the law library, envelopes, and copies of legal documents, causing him to
miss unspecified court deadlines. (Doc. 12 at 11) These allegations are liberally construed as
a claim of a violation of his constitutional right of access to the courts. However, this claim
was not asserted in the prior pleadings, and it is not “arising out of the same transaction,
occurrence, or series of transactions or occurrences” as the conditions-of-confinement claims
in this action. See Fed. R. Civ. P. 20(a)(2). Therefore, the access-to-courts claim, as asserted
against Law Clerks Norlander, Appeal, and Beam, is dismissed without prejudice to Mr. Boyd
asserting the claim in a new action with a new case number.
Gualtieri’s Motion to Dismiss
Despite not being formally served, Sheriff Gualtieri moves to dismiss this action
on four grounds.
Dismissal for failure to serve
First, Sheriff Gualtieri argues that this action should be dismissed because Mr.
Boyd has not timely served him (or any of the defendants), nor has he made any efforts
to do so. (Doc. 17 at 4–5) Dismissal on this basis is not warranted because Mr. Boyd
has been granted in forma pauperis status (Doc. 10), and the Court has not yet ordered
service to be made by a United States Marshal. Rance v. Rocksolid Granit USA, Inc., 583
F.3d 1284, 1286 (11th Cir. 2009) (“Together, Rule 4(c)(2)[, Federal Rules of Civil
Procedure,] and 28 U.S.C. § 1915(c) stand for the proposition that when a plaintiff is
proceeding in forma pauperis the court is obligated to issue plaintiff’s process to a
United States Marshal who must in turn effectuate service upon the defendants,
thereby relieving a plaintiff of the burden to serve process once reasonable steps have
been taken to identify for the court the defendant named in the complaint.”); see also
Giddens v. Brooks County, Ga., No. 21-11755, 2022 WL 836273, at * 6 (11th Cir. Mar.
21, 2022) (citing Rance, “When a plaintiff is proceeding IFP under section 1915, the
district court must order the USMS to effectuate service upon defendants, provided
that the plaintiff has made reasonable efforts to identify the defendants to be served.”).
Dismissal for failure to allege a physical injury
Next, Sheriff Gualtieri argues that this action should be dismissed because Mr.
Boyd fails to allege that Sheriff Gualtieri’s conduct caused him to suffer a physical
injury. (Doc. 17 at 6) This argument fails because the Prisoner Litigation Reform Act,
42 U.S.C. § 1997e(e), “does not bar a prisoner from recovering nominal damages
without a showing of physical injury.” Brooks v. Warden, 800 F. 3d 1295, 1308 (11th
Cir. 2015); see also Hoever v. Marks, 993 F.3d 1353, 1360 (11th Cir. 2021) (“The physical
injury requirement is not a bar to filing suit, only a limitation on recovery. And §
1997e(e) limits a prisoner only from recovering damages that redress, or compensate
him for, a mental or emotional injury, when no physical injury is shown.”).
Regardless, Mr. Boyd does, in fact, allege a physical injury. Although Mr. Boyd does
not allege that Sheriff Gualtieri himself physically injured Mr. Boyd, he sues Sheriff
Gualtieri in his supervisory capacity and alleges that, due to his improper red-dot
classification and lengthy detention in disciplinary confinement, he fell more than once
and suffered muscle pain, joint pain, nerve pain, and mobility reduction.
Dismissal for abuse of judicial process
Next, Sheriff Gualtieri argues that this action should be dismissed because
“[Mr.] Boyd lied to the Court about his prior lawsuits.” (Doc. 17 at 6) At the time
Mr. Boyd initiated this action, he had previously filed three cases in this federal court.
See Boyd v. Pinellas County Sheriff’s Office, 8:05-cv-1742-SDM-MAP (dismissed without
prejudice for failure to pay the filing fee or apply for in forma pauperis status and
failure to use the proper complaint form); Boyd v. Coats, 8:06-cv-161-SDM-EAJ
(dismissed without prejudice for failure to state a claim); and Boyd v. Coats, 8:06-cv293-RAL-TGW (dismissed without prejudice for failure to exhaust administrative
remedies). In his Second Amended Complaint, Mr. Boyd did not answer the question,
“Have you filed other lawsuits in state or federal court otherwise relating to the
conditions of your imprisonment?” and therefore did not disclose these prior federal
cases. (Doc. 12 at 16)
After initiating this action, Mr. Boyd filed two more cases in this federal court.
See Boyd v. St. Petersburg Police Dep’t, 8:21-cv-1839-KKM-AAS (dismissed without
prejudice for failure to timely file an amended complaint on the proper form); Boyd v.
Gilmore, 8:21-cv-2630-CEH-SPF (dismissed without prejudice for lack of prosecution).
Sheriff Gualtieri argues this is the kind of bad-faith recreational litigation that
28 U.S.C. § 1915 is intended to prevent.
“A dismissal with prejudice under § 1915 is an extreme sanction to be exercised
only in appropriate cases.” Young v. Sec’y Fla. Dept of Corrs., 380 F. App’x 939, 940
(11th Cir. 2010) (quotation omitted) (affirming dismissal with prejudice for failing to
disclose prior cases when the prisoner failed to cure the defect after being warned).
However, “while dismissal of an action with prejudice is a sanction of last resort, it is
appropriate in cases involving bad faith.” Dawson v. Lennon, 797 F.2d 934, 935 (11th
Dismissal with prejudice for abuse of judicial process is too extreme a sanction
under the circumstances presented here. Mr. Boyd failed to disclose prior federal
lawsuits that involved a different set of alleged facts that occurred approximately 15
years ago. Furthermore, Mr. Boyd represents—and the Court is unable to find
evidence to contradict—that this action is the only federal case in which he is actively
pursuing a civil rights claim based on the conditions of his confinement after his arrest
on June 30, 2020. (Doc. 24 at 9)
Sheriff Gualtieri’s reliance on Sheldon v. Rohrs, 406 F. App’x 340, 341 (11th Cir.
2010) is misplaced. In Sheldon, the appellate court affirmed the dismissal without
prejudice of a case initiated by a prisoner who checked “no” to the question on the
complaint form asking whether he had filed any other actions, when he had filed at
least four prior federal civil actions. The appellate court explained that dismissal
without prejudice was not an abuse of discretion because the prisoner “may refile his
complaint with a correct response to the questions asked.” Id. Here, Sheriff Gualtieri
is seeking dismissal with prejudice as a sanction for failure to disclose prior unrelated
lawsuits. Caselaw does not support dismissal with prejudice under these
Dismissal under Heck
Finally, Sheriff Gualtieri argues that Mr. Boyd’s claims that pertain to the
circumstances of his arrest, prosecution, and ultimate conviction are barred by Heck v.
Humphrey, 512 U.S. 477, 487–87 (1994). Heck is inapplicable because Mr. Boyd does
not assert claims pertaining to his arrest, prosecution, or conviction. Instead, his
claims concern the conditions of his confinement, and a judgment in his favor on these
claims would not necessarily imply the invalidity of his conviction and sentence.
Dismissal under Heck is not warranted.
Screening under 28 U.S.C. § 1915A
In his Second Amended Complaint, Mr. Boyd invokes his rights under the First,
Fourth, Sixth, and Fourteenth Amendments.6
He asserts claims of retaliation,
unconstitutional conditions of confinement, deliberate indifference to a serious
medical need, loss of personal property, slander, and taunting.
The Court previously set forth the applicable standards for a retaliation claim
arising under the First Amendment. (Doc. 11 at 7–8) Mr. Boyd alleges that he
complained about his red dot classification to Classification Specialists McWilliams
and Paollilio, and to Sergeants Patruzi, Troutman, and Hastings. He wrote letters to
Sheriff Gualtieri to which Captain Moyer responded, but he “was still punished further
and kept on red-dot status as a retaliation [for] [his] grievance and exhaustion of
administrative remed[ies].” (Doc. 12 at 10) These allegations are sufficient to proceed
to service of process on a retaliation claim against Classification Specialists
McWilliams and Paollilio, Sergeants Patruzi, Troutman, and Hastings, Sheriff
Gualtieri, and Captain Moyer.
The Court previously explained that the Fourth Amendment is inapplicable because Mr.
Boyd’s allegations concern events that occurred after he was arrested, while he was pretrial
detainee. (Doc. 11 at 8–9) Mr. Boyd may not pursue a claim arising under the Fourth
Amendment in this action. Also, the Court previously explained that this action presents no
plausible basis for relief under the Sixth Amendment. (Doc. 11 at 10) Mr. Boyd may not
pursue a claim arising under the Sixth Amendment in this action.
Unconstitutional conditions of confinement
The Court previously set forth the applicable standards for a claim based on
unconstitutional conditions of confinement. (Doc. 11 at 11) Mr. Boyd alleges that he
“was forced to remain on red dot for 6 months” and “remained on administrative
confinement for 8 months,” despite his repeated protestations about being
misclassified as a predator who must be housed in disciplinary confinement. He
alleges that, despite his obvious disabilities and limited mobility, he was held in
disciplinary confinement with no railing in the shower or toilet and was subjected to
mistreatment by other inmates. These allegations are sufficient to proceed to service
of process for further development of this conditions-of-confinement claim against
Classification Specialists McWilliams and Paollilio, Sergeants Patruzi, Troutman, and
Hastings, Sheriff Gualtieri, and Captain Moyer. See Melendez v. Sec’y, Fla. Dep’t of Corr.,
No. 21-13455, 2022 WL 1124753, at *10 (11th Cir. Apr. 15, 2022) (“[C]ertain
‘conditions of confinement may establish an Eighth Amendment violation in
combination when each would not do so alone, but only when they have a mutually
enforcing effect that produces the deprivation of a single, identifiable human need.’”)
(quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)).
Deliberate indifference to a serious medical need
The Court previously set forth the applicable standards for a claim based on
deliberate indifference to a serious medical need. (Doc. 11 at 11–12) Mr. Boyd alleges
that he suffers from an obvious, recorded disability, and that prison officials were
deliberately indifferent to his serious medical needs because they forced him to remain
in disciplinary confinement for an extended period despite his repeated complaints.
These allegations are sufficient to proceed to service of process for further development
of this deliberate indifference claim against Classification Specialists McWilliams and
Paollilio, Sergeants Patruzi, Troutman, and Hastings, Sheriff Gualtieri, and Captain
Loss of personal property
Mr. Boyd alleges that his cell phone was taken from him during his arrest and
ultimately “misplaced,” for which he seeks to recover $100,000.00. (Doc. 12 at 12)
Also, he alleges that Deputy Deboy “packed [his] property then distributed various
items to inmates in Delta.” (Id. at 10)
Mr. Boyd, however, may not pursue a claim for the loss of his personal property
in this action. “[T]he Due Process Clause simply is not implicated by a negligent act
of an official causing unintended loss of . . . property.” Daniels v. Williams, 474 U.S.
327, 328 (1986) (emphasis in original). And, “intentional deprivations [of property]
do not violate the [Due Process] Clause provided, of course, that adequate state postdeprivation remedies are available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Mr.
Boyd alleges that the arresting officers “remembered [his] phone yet neither of them
know where [his] phone went,” and that Deputy Deboy gave his personal property to
other inmates. (Doc. 12 at 8 and 10) Even if, as suggested, these acts were intentional,
Mr. Boyd has an adequate post-deprivation remedy under state law. Under Florida
law, he can sue the individuals responsible for conversion of his personal property. See
Jackson v. Hill, 569 F. App’x 697, 698 (11th Cir. 2014) (affirming the dismissal of a
prisoner’s destruction of property claim against prison officials because the prisoner
could sue the officials for conversion). Because amendment of any claim based on the
loss of Mr. Boyd’s personal property would be futile, this loss of personal property
claim—as asserted against Officers Hayes and Lewis and Deputy Deboy, as well as
Chief of Police Anthony Holloway in his official capacity—is dismissed with
prejudice. Woldeab v. Dekalb Cty. Bd. of Educ., 885 F.3d 1289, 1291 (11th Cir. 2018)
(“[A] district court need not grant leave to amend when . . . a more carefully drafted
complaint could not state a claim.”) (quotations omitted).
Slander and taunting
Mr. Boyd alleges that Corporal Andrews, Sergeant Franjesivic, and Deputies
Dice and Deboy “surrounded [him] and made intimidating and provocative taunts to
attempt to get [him] to be belligerent.” (Doc. 12 at 10) Also, he alleges that Captain
Moyer taunted him and called him a predator. (Id. at 11) However, such conduct
does not rise to the level of a constitutional violation. See Hernandez v. Florida Dep’t of
Corr., 281 F. App’x 862, 866 (11th Cir. 2008) (holding that “verbal abuse alone is
insufficient to state a constitutional claim”); Edwards v. Gilbert, 867 F.2d 1271, 1274
n.1 (11th Cir. 1989) (noting that verbal taunts, alone, are insufficient to state a
constitutional violation); Munera v. Metro West Detention Ctr., 351 F. Supp. 2d 1353,
1362 (S.D. Fla. 2004) (“Verbal abuse and threats alone are not actionable as a matter
of law.”); Crenshaw v. City of Defuniak Springs, 891 F. Supp. 1548, 1555 (N.D. Fla.
1995) (holding that “verbal harassment and abusive language, while ‘unprofessional
and inexcusable,’ are simply not sufficient to state a constitutional claim under Section
1983”). Because amendment of any claim based on slander or taunting would be
futile, this claim—as asserted against Corporal Andrews, Sergeant Franjesivic,
Deputies Dice and Deboy, and Captain Moyer—is dismissed with prejudice. See
Woldeab, 885 F.3d at 1291.
Accordingly, it is ORDERED that:
1. Sheriff Gualtieri’s Motion to Dismiss (Doc. 17) is DENIED.
2. The claim of loss of personal property asserted against Officers Hayes
and Lewis, Deputy Deboy, and Chief Holloway is DISMISSED WITH
3. The claims of slander and taunting asserted against Corporal Andrews,
Sergeant Franjesivic, Deputies Dice and Deboy, and Captain Moyer are
DISMISSED WITH PREJUDICE.
4. The claim of denial of access to the courts asserted against Law Clerks
PREJUDICE to Mr. Boyd asserting the claim in a new action with a new
case number, as explained in footnote 2.
5. Any claim asserted against inmate Ceriznos is DISMISSED WITH
PREJUDICE as explained in footnote 3.
6. Any claim asserted against Judge Andrews is DISMISSED WITH
PREJUDICE as explained in footnote 4.
7. The claims of retaliation, deliberate indifference to a serious medical
need, and unconstitutional conditions of confinement asserted against
Classification Specialists McWilliams and Paollilio, Sergeants Patruzi,
Troutman, and Hastings, Sheriff Gualtieri, and Captain Moyer may
proceed to service of process.
8. The Clerk shall MAIL to Mr. Boyd the service of process forms. He must
comply with the instructions provided with the forms and must return
the completed forms within THIRTY DAYS. Following receipt of the
completed forms, the Court will, by separate order, direct the United
States Marshals Service to effect service of process. Mr. Boyd’s failure to
timely comply with this order will result in dismissal of this action
without further notice.
ORDERED in Tampa, Florida, on July 29, 2022.
COPIES FURNISHED TO:
Counsel of record and Plaintiff, pro se
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