King v. Carlton

Filing 38

ORDER OF DISMISSAL re 36 Amended Complaint for Violation of Civil Rights. To the extent not otherwise disposed of, all pending motions are DENIED as moot. Closing Case. Signed by Judge Beth Bloom on 9/7/2021. See attached document for full details. (jao)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-21634-BLOOM
MATTHEW ALEXANDER KING,
Plaintiff,
v.
WARDEN CARLTON,
Defendant.
/
ORDER OF DISMISSAL
THIS CAUSE is before the Court upon a sua sponte review of the record. On August 11,
2021, Plaintiff Matthew Alexander King’s (“Plaintiff”) filed an Amended Complaint for Violation
of Civil Rights, ECF No. [36] (“Amended Complaint”).1 The Court has carefully reviewed the
Amended Complaint, the record in this case, the applicable law, and is otherwise fully advised.
For reasons set forth below, the Complaint is dismissed without prejudice and all other pending
motions are denied as moot.
I.

FACTUAL BACKGROUND
On April 28, 2021, Matthew Alexander King, a convicted felon, filed a pro se Petition

pursuant to 28 U.S.C. § 2241 seeking damages arising from constitutional challenges to the

1

The docket reflects that Plaintiff simultaneously filed two amended complaints, the instant Amended
Complaint, see ECF No. [36], and a pleading titled “Civil Rights Complaint,” see ECF No. [35]. The latter
was signed on July 2, 2021 but mailed on August 5, 2021. ECF No. [35] at 3-4. The Amended Complaint
was signed on May 26, 2021 but mailed on August 11, 2021. ECF No. [36] at 11, 18. Thus, under the
Mailbox Rule the court construes the Amended Complaint as the operative filing since it did not incorporate
by reference Plaintiff’s original pleading. Additionally, a review of the “Civil Rights Complaint” reveals
that it does not comply with Local Rule 15.1. See ECF No. [35] at 2; see also S.D. Fla. L.R. 15.1 (when
leave to amend is granted, a plaintiff “may not incorporate any prior pleading by reference.”). Thus, the
“Civil Rights Complaint” is not compliant with the Local Rules nor does it comport with federal rules
governing such filings. Thus, the Court treats the Amended Complaint as the operative complaint and
considers only the allegations raised therein.

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conditions of his confinement, rather than execution of his sentence. ECF No. [1]. As a result, the
Court determined that the Petition was an improperly filed federal habeas corpus petition. Rather
than dismiss the Petition, the Court granted Petitioner leave to file a civil rights complaint. See
generally ECF No. [4].
As a result, now before the Court for screening under the Prison Litigation Reform Act
(“PLRA”) is Plaintiff’s pro se amended civil rights complaint (“Amended Complaint”) pursuant
to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). 2 ECF No. [36].
Plaintiff sues Defendants FDC Warden Eugene Carlton, FDC Captain J. Weirich, FBI Agent John
Gill, and the United States Attorney’s Office (the “Defendants”) in their official capacity. ECF
No. [36] at 2-3.
Plaintiff complains of several different incidents. First, he alleges FBI and Miami-Dade
Police agents arrested him on June 26, 2018. Id. at 12. “Once I was placed in a police car[,] I
immediately invoked my constitutional right to counsel prior to any questioning by law
enforcement. This was recorded on two police body cameras.” Id. Plaintiff invoked his right to
counsel again after he arrived at Miami-Dade Police Station Five and was told he would “be given
an opportunity to speak with [counsel].” Id. After being informed that Plaintiff invoked his right
to counsel, FBI Agent John Gill and Miami-Dade Detective Parker approached Plaintiff in his

2

In Bivens, the United States Supreme Court recognized for the first time an implied private action
for damages against federal officers for violations of certain constitutional rights. Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 66 (2001). A Bivens action is the federal counterpart of an action
under 42 U.S.C. ' 1983. An action for money damages may be brought against federal agents
acting under the color of their authority for injuries caused by their unconstitutional conduct. Proof
of causation between the official’s conduct and the alleged injury is necessary for there to be
liability. A plaintiff asserting a claim under Bivens must show the violation of a valid constitutional
right by a person acting under color of federal law. Accordingly, the proper defendants in a Bivens
claim are the federal officers who allegedly violated the plaintiff’s constitutional rights, not the
federal agency which employs the officers. FDIC v. Meyer, 510 U.S. 471, 485-86 (1994).
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holding cell and “proceeded to threaten [Plaintiff] into answering their questions.” Id. Plaintiff
continued to invoke his right to counsel but was told by Gill, “You’re not getting [expletive].” Id.
Gill threatened Plaintiff’s safety and the safety of his family, telling Plaintiff that he would
personally place Plaintiff’s one-year-old daughter in foster care. Id. Plaintiff, who had never been
arrested before, states that he “felt as if [he] had no choice but to comply.” Id.
Plaintiff alleges that Gill and “three other Miami-Dade detectives also forced/coerced a
false confession” to a pending state court case. Id. The United States Attorney’s Office (“USAO”)
attempted to hide the violation of Plaintiff’s rights by omitting the body camera footage from
discovery. Id. According to Plaintiff, “[t]he camera footage was obtained eight months after [his]
arrest. Id. Plaintiff asserts this act violated “protocol, ethics, [and] laws enforced under Brady v.
Maryland [and] the Constitution.” Id.
Plaintiff further alleges that on or about August 5, 2019, a “[W]alsh assignment” was
placed on Plaintiff’s Bureau of Prisons email account. Id. at 13. The assignment “was ordered by
the FBI [and] the United States Attorney’s Office” in violation of Plaintiff’s Fourteenth
Amendment Due Process rights. Id. Plaintiff contends that it has hindered him from
communicating directly with his defense counsel. Id. To communicate with his defense counsel,
Plaintiff must instead rely on handwritten letters and legal calls and visits, “[w]hich are often
delayed by BOP staff.” Id. When Plaintiff has received his legal mail, it has often already been
opened in violation of attorney client privilege. Id. Plaintiff also argues that the designation is “a
misuse of the [W]alsh [A]ct which was intended for sex crimes of which [he is] not indicted for.”
Id.
Plaintiff states that on October 4, 2020, he was placed in the FDC’s Special Housing Unit
(“SHU”). Id. Captain J. Weirich and two non-parties, Lieutenant Arroyo and Operations
Lieutenant Neo, told Plaintiff that the FBI and USAO ordered his placement in the SHU in order
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to monitor his communication activities. Id. Plaintiff argues that because the SHU placements are
intended for “disciplinary purposes,” his placement in the SHU was an improper and “an
unwarranted act of retaliation” in violation of his constitutional rights. Id. at 13-14. In the SHU,
Plaintiff’s communication with his attorney and access to the law library are limited. Id. at 14.
Plaintiff states that while in the SHU he has experienced “constant harassment by both
FDC officers [and] administrative staff” causing him stress, anxiety, and depression. Id. Plaintiff
describes three separate incidents of harassment. The first occurred in November 2020 when
Captain J. Weirich refused to allow Plaintiff to make an emergency call to his family after his
grandfather passed away. Id. The next incident involved a “mentally handicapped inmate who had
gotten into a fight with another inmate two hours prior” being placed in Plaintiff’s cell. Id. Plaintiff
was told by another officer that Captain J. Weirich ordered the housing arrangement. Id. After one
night, Plaintiff notified an officer that he felt threatened and Plaintiff was removed from the cell.
Id. at 15. Plaintiff told Captain J. Weirich that he could have been assaulted or killed, but he
laughed and told Plaintiff, “[t]hat’s no big deal, no one care [sic].” Id. Finally, in March 2021,
Plaintiff notified FDC administrative staff that he was a Jehovah’s Witness and required
unleavened bread and red wine in order to observe Passover. Id. Plaintiff’s request was denied. Id.
Administrative staff informed him that his “religion was not approved for such items” in violation
of his religious freedom. Id.
Plaintiff also asserts that the conditions in the SHU are “absolutely inhumane.” A majority
of the showers are covered in mold and mildew and there is “little-to-no hot water,” increasing the
risk that an inmate could catch pneumonia once he returns to his “frigid” cell. Id. at 16. Plaintiff
complains that the staff has not changed the linens in the SHU in at least five months. Id.
Additionally, Warden Carlton and Captain J. Weirich limit food rations to the SHU; consequently,
Plaintiff’s weight has dropped from 155 lbs. to 119 lbs. Id. at 14. They also limit hygiene access
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and personal care products, which have caused Plaintiff to have acne breakouts and hair loss. Id.
Those discrete incidents in the SHU, along with the existing conditions, have caused
Plaintiff stress and depression. Id. at 15. Plaintiff states that other inmates have undergone similar
harassment. In February 2021, because of the “constant harassment,” two other inmates committed
suicide, but the suicides were “covered up by the administrative staff at FDC Miami.” Id.
In light of the foregoing, Plaintiff seeks his constitutional rights “be upheld, hot food, [and]
fair treatment.” Id. at 5. He also seeks $100 million in compensatory damages. Id.
II.

LEGAL STANDARD
Plaintiff is proceeding in forma pauperis (“IFP”). ECF No. [8]. Therefore, the Court must

screen the Complaint under 28 U.S.C. § 1915(e)(2). See Farese v. Scherer, 342 F.3d 1223, 1228
(11th Cir. 2003) (per curiam). Under § 1915(e)(2)(B)(i), courts may dismiss frivolous claims that
are “based on an indisputably meritless legal theory” or “whose factual contentions are clearly
baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); see also Pullen v. Sec’y, Dep’t of Corr.,
No. 19-11797-C, 2019 WL 5784952, at *1 (11th Cir. Sept. 4, 2019) (“An action is frivolous if it
is without arguable merit either in law or fact.” (quoting Napier v. Preslicka, 314 F.3d 528, 531
(11th Cir. 2002))).
“A pleading that states a claim for relief must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under
§ 1915(e)(2)(B)(ii), the court must dismiss any IFP action when the prisoner’s complaint fails to
state a claim on which relief may be granted. The same standards govern dismissal for failure to
state a claim under Fed. R. Civ. P. 12(b)(6) and dismissal for failure to state a claim under
§ 1915(e)(2)(B)(ii). See Wright v. Miranda, 740 F. App’x 692, 694 (11th Cir. 2018). Thus, under
§ 1915(e)(2)(B)(ii), the court must dismiss a complaint that fails “to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
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plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
In reviewing the complaint under § 1915(e)(2)(B)(ii), the Court takes the allegations as
true and construes them in the most favorable light. See Hughes v. Lott, 350 F.3d 1157, 1159-60
(11th Cir. 2003); see also Maps v. Miami Dade State Att’y, 693 F. App’x 784, 785 (11th Cir. 2017)
(per curiam). Furthermore, courts hold complaints that pro se prisoners file to “less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972)
(per curiam). Yet a district court is not required to “rewrite an otherwise deficient pleading in order
to sustain an action.” Rodriguez v. Scott, 775 F. App’x 599, 602 (11th Cir. 2019) (per curiam)
(citation and internal quotations marks omitted).
Rule 10(b) further requires a party to “state its claims or defenses in numbered paragraphs,
each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). “A
shotgun pleading is a complaint that violates either Federal Rule of Civil Procedure 8(a)(2) or Rule
10(b), or both.” Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021). Notwithstanding the
leniency afforded to pro se litigants, it does not permit the litigant to file an impermissible
“shotgun” pleading.3 “The unifying characteristic of all types of shotgun pleadings is that they fail
to one degree or another, and in one way or another, to give the defendants adequate notice of the

3

The Eleventh Circuit has identified four rough types or categories of shotgun pleadings. See Weiland v.
Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015) (citations omitted). The most
common type of shotgun pleading is one “containing multiple counts where each count adopts the
allegations of all preceding counts, causing each successive count to carry all that came before and the last
count to be a combination of the entire complaint.” Id. The next most common type is a complaint that is
“replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of
action.” Id. The third type of shotgun pleading is one that does not separate into a different count each cause
of action or claim for relief. Id. Fourth, and finally, there is the relatively rare shotgun pleading that asserts
multiple claims against multiple defendants without specifying which of the defendants are responsible for
which acts or omissions or which of the defendants the claim is brought against. Id.

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claims against them and the grounds upon which each claim rests.” Id.
III.

DISCUSSION
Plaintiff sues various federal Defendants for violating his constitutional rights. In Bivens,

the United States Supreme Court “recognized for the first time an implied private action for
damages against federal officers” for violations of certain constitutional rights. See Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 66 (2001). However, “Bivens only applies to claims against federal
officers in their individual capacities; it does not create a cause of action for federal officers sued
in their official capacities.” See Sharma v. Drug Enforcement Agency, 511 F. App’x 898, 901 (11th
Cir. 2013) (citing Malesko, 534 U.S. at 69-71). Furthermore, a Bivens action cannot be brought
directly against the United States or against a federal agency. See FDIC v. Meyer, 510 U.S. 471,
472 (1994). Additionally, the Eleventh Circuit has held that Congress did not unequivocally waive
the United States’ sovereign immunity through the Religious Freedom and Restoration Act of 1993
(“RFRA”). See Davila v. Gladden, 777 F.3d 1198, 1210–11 (11th Cir. 2015). Therefore, the RFRA
does not authorize suits for money damages against the United States or against federal officers in
their official capacities. Id.
Moreover, “[C]ourts generally apply § 1983 law to Bivens cases.” Abella v. Rubino, 63
F.3d 1063, 1065 (11th Cir. 1995) (per curiam) (alteration added; citations omitted). However, the
scope of the Bivens remedy is limited. Historically, the Supreme Court has applied Bivens remedies
to only three categories of constitutional claims: (1) Unreasonable searches and seizures under the
Fourth Amendment (Bivens); (2) Gender discrimination under the Due Process Clause of the Fifth
Amendment (Davis v. Passman, 442 U.S. 228 (1979)); and (3) Cruel and unusual punishment
under the Eighth Amendment (Carlson v. Green, 446 U.S. 14 (1980)). See Ziglar v. Abbasi, 137
S. Ct. 1843, 1854-55 (2017).
Plaintiff does not clearly delineate his claims. After review of the Amended Complaint,
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construing the allegations liberally as afforded pro se litigants under Haines v. Kerner, 404 U.S.
519, 520-21 (1972) (per curiam), Plaintiff appears to assert the following claims: (1) Sixth
Amendment right to counsel against FBI Agent John Gill; (2) Brady violation for withholding
evidence against the USAO; (3) First Amendment access to the courts for the Walsh Assignment
against the FBI and the USAO; (4) First Amendment retaliation for placement in SHU against the
FBI and USAO; (5) Eighth Amendment conditions of confinement and limiting food rations
against FDC Warden Eugene Carlton and Captain J. Weirich; (6) RFRA and First Amendment
free exercise of religion claim against FDC administrative staff; and (7) harassment against
Captain J. Weirich. See generally ECF No. [36]. Plaintiff only seeks compensatory damages.
Plaintiff’s Amended Complaint is due to be dismissed for several reasons.
A. Shotgun Pleading
First, the Amended Complaint is subject to dismissal as a quintessential shotgun pleading.
Because the Amended Complaint identifies more than one Defendant, Plaintiff is required to
adhere to Fed. R. Civ. P. 10. Pursuant to Fed. R. Civ. P. 10(b), “[a] party must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” To promote clarity, “each claim founded on a separate transaction or occurrence
. . . must be stated in a separate count or defense.” Fed. R. Civ. P. 10(b). Here, Plaintiff’s allegations
are unclear because he raises claims in narrative form against multiple Defendants that are not
separated by counts. Plaintiff’s failure to do so also reveals that the Amended Complaint qualifies
as the third category of shotgun pleading for not separating into different paragraphs each count
or claim for relief. See Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321-23
(11th Cir. 2015). Therefore, the Amended Complaint must also be dismissed for failing to comply
with Fed. R. Civ. P. 10(b). See Barmapov, 986 F.3d at 1326 (“Because Barmapov’s second
amended complaint is ‘replete with conclusory, vague, and immaterial’ allegations, a defendant
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who reads the complaint would be hard-pressed to understand ‘the grounds upon which each claim
against him rests.’”) (citations omitted). Plaintiff has previously been given the opportunity to cure
deficiencies, see ECF No. [4], but he has failed to do so. For this alone, the Amended Complaint
is due to be dismissed.
B. Official Capacity and Supervisory Liability
As a preliminary matter, “Bivens only applies to claims against federal officers in their
individual capacities; it does not create a cause of action for federal officers sued in their official
capacities.” Sharma v. Drug Enf’t Agency, 511 F. App’x 898, 901 (11th Cir. 2013) (per curiam)
(citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69-71 (2001)). “Absent a waiver, sovereign
immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S.
471, 475 (1994) (citations omitted). Congress has the power to waive this immunity and consent
to suit, but such waivers must be explicit. In re Custom Contractors, LLC, 745 F.3d 1342, 1347
(11th Cir. 2014). Where there is no express waiver, a “jurisdictional bar” exists, and courts have
no power to proceed on a claim asserted against the federal government or one of its agencies. Id.;
see Gilliam v. U.S. Dep’t of Veterans Affs., 822 F. App’x 985, 991 (11th Cir. 2020) (“[W]hile [a
Bivens action] may provide a mechanism to sue individual federal agents for their constitutional
violations, it does not provide a cause of action against federal agencies.” (citing Meyer, 510 U.S.
at 484-86) (alterations added; emphasis in original)).
A plaintiff’s official capacity claims against an individual defendant are due to be
dismissed unless he can establish supervisor liability. Supervisory officials are not liable through
respondeat superior or vicarious liability for the unconstitutional acts of subordinates. Gonzalez v.
Reno, 325 F.3d 1228, 1234 (11th Cir. 2003). However, “a supervisor may be liable under Bivens
if ‘a reasonable person in the supervisor’s position would have known that his conduct infringed
upon the constitutional rights of the plaintiff . . . and his conduct was causally related to the
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constitutional violation committed by his subordinate.’” Fulwood v. Fed. Bureau of Prisons, 568
F. App’x 753, 756 (11th Cir. 2014) (per curiam) (citation omitted). “A causal connection may arise
when a history of widespread abuse puts a responsible supervisor on notice of the need to correct
an alleged deprivation, but he fails to; when a supervisor’s improper custom or policy results in
deliberate indifference to constitutional rights; or when facts suggest that a supervisor orders his
subordinates to act unlawfully or knows they will act unlawfully and fails to stop them.” Id.
(citation and internal quotation marks omitted). Here, Plaintiff has not alleged the existence of any
custom, policy or practice, or a history of widespread abuse. Thus, Plaintiff’s official capacity
claim against the named Defendants is dismissed. To the extent that Plaintiff alleges any personal
involvement by Defendants, those allegations are addressed below.
C. Misjoinder of Claims
Notably, Plaintiff raises numerous constitutional violations beginning in 2018 through on
or about March 2021. Specifically, in 2018, he alleges violations that occurred during his arrest;
in 2019, while confined at the Bureau of Prisons, he alleges a “Walsh Assignment” was unlawfully
placed on his email account; in 2020, Plaintiff alleges he was unlawfully placed in the SHU; in
2021, Plaintiff claims prison officials violated his right to religious freedom. See generally ECF
No. [36]. Clearly, events occurring in 2018 during the arrest are not related to events occurring
while confined at the BOP in 2019. More importantly, the allegations that in 2021 Plaintiff’s
freedom of religion rights were being violated do not relate to any of the prior incidents complained
of.
Under Fed. R. Civ. P. 20(a)(2), Defendants may be joined in one action if any right to relief
is asserted against them “jointly, severally, or in the alternative in respect of or arising out of the
same transaction, occurrence, or series of transactions or occurrences and if any question of law
or fact common to all [defendants] will arise in the action.” Fed. R. Civ. P. 20(a)(2) (alteration
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added). The joinder of parties is generally encouraged in the interest of judicial economy, subject
to the fulfillment of two prerequisites: (1) the persons who are joined as defendants must be
interested in claims that arise out of the same transaction or occurrence, or series of transactions
or occurrences; and (2) all the parties joined must share in common at least one question of law or
fact. Alexander v. Fulton Cnty., 207 F.3d 1303, 1323 (11th Cir. 2000), overruled other grounds,
Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003)).
The Eleventh Circuit has explained that the definition of “transaction” is flexible and can
comprehend a series of many occurrences that depend less upon the immediateness of their
connection and more upon the logical relationship. Id. (citation omitted). All “logically related”
events entitling a person to institute a legal action against another generally are regarded as
comprising a transaction or occurrence. Id. (citation omitted). The second requirement under Rule
20 is that “some question of law or fact be common to all parties,” but “does not require all
questions of law and fact raised by the dispute be common.” Id. at 1324 (emphasis in original;
citations omitted). It follows that under Rule 20(a)(2), a plaintiff may not bring multiple claims
against multiple parties in a single action unless the legal nexus is demonstrated with respect to all
defendants named in the action.
Further, although joinder is “strongly encouraged” and the rules are construed generously
toward “entertaining the broadest possible scope of action consistent with fairness of the parties,”
United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966), district courts enjoy equally broad
discretion to sever parties based on misjoinder, Alexander, 207 F.3d at 1323; see also Swan v. Ray,
293 F.3d 1252, 1253 (11th Cir. 2002) (per curiam) (“The district court has broad discretion to join
parties or not and that decision will not be overturned as long as it falls within the district court’s
range of choices.”).
Given the nature and time span involving the complained of events, Plaintiff cannot join in
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this action his claims regarding his arrest with his claim regarding his placement in the SHU and
his 2021 denial of religious beliefs claims as there is no “logical relationship between the claims.”
See Construction Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d 1334, 1337 n.6 (11th
Cir.1998) (citation and internal quotation marks omitted). Therefore, the Amended Complaint
must be dismissed without prejudice to refiling three separate actions. Nonetheless, as discussed
below, the Amended Complaint must be dismissed for failure to state a claim upon which relief
can be granted.
D. First Amendment Claims
Plaintiff raises several different First Amendment claims. He alleges that he was denied
access to the courts and the ability to confer with his defense counsel when the USAO and FBI
gave him a “Walsh Assignment” and placed him in the SHU. ECF No. [36] at 13. Plaintiff states
that his SHU placement was retaliatory. Id. at 13-14. Plaintiff also alleges that FDC administrative
staff violated his free exercise rights when he was denied unleavened bread and red wine to observe
Passover as a Jehovah’s Witness. Id. at 15. The Supreme Court has never recognized a First
Amendment Bivens claim. See Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never
held that Bivens extends to First Amendment claims.”).
“Because implied causes of action are disfavored, the Court has been reluctant to extend
Bivens liability ‘to any new context or new category of defendants.’” Iqbal, 556 U.S. at 676
(quoting Malesko, 534 U.S. at 68)). Before expanding Bivens liability, courts must engage in a
two-step inquiry. Johnson v. Burden, 781 F. App’x 833, 836-37 (2019) (per curiam). First, the
Court must determine whether the claim presents a new Bivens context, and if so, the Court must
determine whether “there are ‘special factors counseling hesitation in the absence of affirmative
action by Congress.’” Abbasi, 137 S. Ct. at 1857 (quoting Bivens, 403 U.S. at 396).

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1.

Retaliation Claims

As to the retaliation claims, the Court need not delve into the special factors analysis
because Plaintiff’s allegations are insufficient. A plaintiff must establish three elements to prevail
on a retaliation claim. Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). The plaintiff must
prove that: (1) “his speech or act was constitutionally protected”; (2) “the defendant's retaliatory
conduct adversely affected the protected speech”; and (3) “there is a causal connection between
the retaliatory actions and the adverse effect on speech.” Id. (quoting Bennett v. Hendrix, 423 F.3d
1247, 1250 (11th Cir. 2005)). To establish causation, the plaintiff must show that the defendant
was “subjectively motivated to discipline” the plaintiff for exercising his First Amendment rights.
Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir.2008).
A prisoner’s First Amendment rights are not coextensive with those of free citizens. See
Shaw v. Murphy, 532 U.S. 223, 229 (2001) (“We have thus sustained proscriptions of media
interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and
restrictions on inmate-to-inmate written correspondence.” (citations omitted)). Further, it is well
established that a prison inmate “retains those First Amendment rights that are not inconsistent
with his status as a prisoner or with the legitimate penological objectives of the corrections
system.” Pell v. Procuncier, 417 U.S. 817 822 (1974).
Here, Plaintiff has not alleged that he engaged in constitutionally protected speech, a
prerequisite to a retaliation claim. Nor has he alleged any causal connection between an adverse
effect on his protected speech and the alleged retaliatory SHU placement. See Davis v. United
States, 272 F. App’x 863, 867-68 (11th Cir. 2008) (finding federal prison official’s decision to
place prisoner in SHU for several weeks not retaliatory where prisoner disciplined after he became
belligerent and threatening upon learning of a cell transfer with an incompatible cellmate). Plaintiff
states only that he was told he was placed in the SHU so that the FBI and USAO could monitor
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his communication activities. ECF no. [36] at 13. Plaintiff’s allegations do not state a cognizable
retaliation claim.
2.

Access to the Courts Claim

Similarly, Plaintiff’s access to the courts claims against the USAO and the FBI are
conclusory and do not contain adequate factual content to state a cognizable claim. It is well
established that “prisoners have a constitutional right of access to the courts.” Bounds v. Smith,
430 U.S. 817, 821 (1977). A violation occurs when a prison thwarts a prisoner’s ability to seek a
claim for redress. Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (per curiam). Further,
“actual injury” is a required constitutional prerequisite. Lewis v. Casey, 518 U.S. 343, 349 (1996).
Plaintiff states that the Walsh Assignment was placed on his BOP email account, hindering
communication with his defense counsel. ECF No. [36] at 13. Plaintiff did not allege an actual
injury. It is also not clear how the “Walsh Assignment” interfered with Plaintiff’s ability to
communicate with his defense attorney. In fact, Plaintiff does not allege that his communication
with his defense attorney was cut off—he states he was still able to communicate with his defense
counsel via legal visits, calls, and letters. Id. Plaintiff’s allegations are insufficient to state an access
to the courts claim. Al-Amin v. Smith, 511 F.3d 1317, 1333 (11th Cir. 2008) (denying access to the
courts claim where allegations of actual injury conclusory and plaintiff did not state how opening
his legal mail outside his presence compromised his legal cases).
3.

The RFRA and Free Exercise of Religion

Plaintiff alleges that he is a Jehovah’s Witness and his right to free exercise of his religion
was violated when the FDC administrative staff denied his request for unleavened bread and red
wine in order to observe Passover. ECF No. [36] at 15. Administrative staff informed him his
religion was not approved for such items, but he was permitted to have his Bible. Id.
Congress enacted the RFRA “in order to provide very broad protection for religious
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liberty.” Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2760 (2014). The RFRA prohibits
the “government” from “substantially burden[ing] a person’s exercise of religion even if the
burden results from a rule of general applicability,” unless the “government” can “demonstrate[]
that application of the burden to the person–(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
42 U.S.C. § 2000bb-1(a)-(b). The statute explicitly provides a cause of action against the
“government” for “appropriate relief.” Id. § 2000bb-1(c). “Government” is defined as “includ[ing]
a branch, department, agency, instrumentality, and official (or other person acting under color of
law) of the United States.” Id. § 2000bb-2(1).
The RFRA “prohibits ‘[g]overnment’ from [substantially burden[ing]’ a person’s exercise
of religion even if the burden results from a rule of general applicability unless the government
can demonstrate the burden ‘(1) is in furtherance of a compelling governmental interest; and (2) is
the least restrictive means of furthering that compelling governmental interest.’” City of Boerne v.
Flores, 521 U.S. 507, 515-516 (1997) (quoting 42 U.S.C. § 2000bb et seq.; brackets in original).
Thus, the plain language of the RFRA establishes that a plaintiff may bring claims for “appropriate
relief” against “persons,” either federal “officials” or those acting under color of federal law, whose
individual conduct substantially burdens one’s religious exercise. Nothing in the text of the RFRA
requires that the “official” or “person must be acting in furtherance of an official policy.” See Mack
v. Warden, Loretto FCI, 839 F.3d 286 (3d Cir. 2016).
Courts have held that the RFRA is permitted against individual officers, but to establish
liability, a plaintiff must show that his ability to practice his faith was substantially burdened. See
Turner v. Safley, 482 U.S. 78, 85 (1987); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995).
The Eleventh Circuit has defined a “substantial burden” as a burden that either compels a person
to engage in conduct that is forbidden by his religion or conduct that prohibits a person from
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engaging in conduct required by his religion. Cheffer, 55 F.3d at 1522. Governmental interference
must be more than an inconvenience; the burden must be substantial and significantly interfere
with a plaintiff’s practice of his religious beliefs. See Thornburgh v. Abbott, 490 U.S. 401, 418
(1989) (noting that O’Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987) found prison regulations
valid in part because the prisoners were permitted to participate in other Muslim religious
ceremonies).
As applied, Plaintiff refers only to the FDC administrative staff and has not named any
individual official in his Amended Complaint. This deficiency alone renders his free exercise claim
under the RFRA deficient. Further, Plaintiff has not adequately alleged that the practice of his
religion was “substantially burdened” by denial of red wine and unleavened bread to observe
Passover.
Therefore, his First Amendment and RFRA claims are dismissed for failure to state a claim
upon which relief can be granted.
E. Due Process Violation
Plaintiff alleges the USAO and FBI violated his Fourteenth Amendment due process rights
by giving him a “Walsh Assignment,” limiting his ability to communicate with his defense
counsel. As a preliminary matter, Plaintiff’s Fourteenth Amendment challenge cannot be sustained
in this Bivens action. Fourteenth Amendment claims are only justiciable against state actors, but
Plaintiff only sues federal actors. Thus, his Fourteenth Amendment claim is dismissed.
Even if Plaintiff had alleged a violation of his Fifth Amendment due process rights, the
result would be the same. “To state a cognizable claim for the denial of due process in connection
with prison discipline, a prisoner must show a protected liberty interest of which he was deprived
without minimum procedural protections.” Dean-Mitchell v. Reese, 837 F.3d 1107, 1112 (2016)
(citing Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974)). Plaintiff did not allege that he was
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prevented from communicating with his defense counsel, only that his ability to communicate with
defense counsel was limited to handwritten letters, legal calls, and visits. Plaintiff has not alleged
a protected liberty interest.
Furthermore, as previously summarized, Plaintiff has failed to allege either the existence
of a policy or custom or the personal involvement of an individual prosecutor or FBI Agent in
designating Plaintiff with a “Walsh Assignment.” See Iqbal, 566 U.S. at 677 (“[E]ach Government
official . . . is only liable for his or her own misconduct.” (alterations added)). Thus, Plaintiff’s due
process claims against the FBI and USAO are not cognizable and must be dismissed.
F. Sixth Amendment and Brady v. Maryland Claims
Plaintiff alleges FBI Agent John Gill violated his Sixth Amendment right to counsel.
Plaintiff states that following his arrest, he invoked his right to counsel. With this knowledge, FBI
Agent John Gill and non-party Miami-Dade Detective Parker approached Plaintiff in his holding
cell and threatened the safety of Plaintiff and his family. ECF No. [36] at 12. Plaintiff then gave a
“forced/coerced” confession to Gill to a pending state court case. Id. Plaintiff further alleges that
the FBI and USAO violated Brady v. Maryland, 373 U.S. 83 (1963) because they withheld body
camera footage of Plaintiff’s interrogation following his arrest. ECF No. [36] at 13. Both these
claims challenge the validity of federal conviction.
Under Heck v. Humphrey, 512 U.S. 477 (1994), a plaintiff may not bring a damages action
under Bivens if a judgment in the plaintiff’s favor would necessarily imply the invalidity of his
conviction or sentence. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.1995) (holding that Heck
applies both to 42 U.S.C. § 1983 actions filed by state prisoners and Bivens actions filed by federal
prisoners). Thus, unless Plaintiff can demonstrate that his conviction or sentence has already been
invalidated, his complaint must be dismissed. Heck, 512 U.S. at 487. But when “the plaintiff’s
action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment
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against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to
the suit.” Id. at 487 (emphasis in original; footnote call number omitted). For example, “[b]ecause
an illegal search or arrest may be followed by a valid conviction, a successful [Bivens] action for
Fourth Amendment search and seizure violations does not necessarily imply the invalidity of a
conviction. As a result, Heck does not generally bar such claims.” Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003) (alterations added; footnote call number omitted). Nevertheless, not all
constitutional claims fit this exception to Heck, rather, courts “must look both to the claims raised
. . . and to the specific offenses for which the . . . claimant was convicted.” Id. at 1160 n.2
(alterations added).
Because Plaintiff has not demonstrated that his conviction has been invalidated, let alone
identified charges, case number, or court, Heck bars Plaintiff’s claims. Should Plaintiff
successfully invalidate his conviction (or convictions), he may then institute a civil rights action
for damages in federal court. Thus, Plaintiff fails to state a claim upon which relief can be granted
arising from a Sixth Amendment or Brady violation. The claims are dismissed.
G. Eighth Amendment Claims
Plaintiff alleges that Captain J. Weirich and Warden Eugene Carlton violated his Eighth
Amendment rights in several ways.
Prison officials have a duty under the Eighth Amendment to “ensure that inmates receive
adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
To state an Eighth Amendment violation, a prisoner must allege facts to satisfy both an objective
and subjective inquiry regarding a prison official's conduct. Chandler v. Crosby, 379 F.3d 1278,
1289 (11th Cir. 2004). Under the “objective component,” a prisoner must allege a condition that
is sufficiently serious to violate the Eighth Amendment. Id. The challenged condition must be
extreme and must pose an unreasonable risk of serious damage to the prisoner's future health or
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safety. Id. The Eighth Amendment only guarantees that prisoners are provided with a minimal
civilized level of life's basic necessities. Id. Restrictive or even harsh conditions alone do not rise
to the level of an Eighth Amendment violation. Id.
Second, the prisoner must allege that the prison official, at a minimum, acted with a state
of mind that constituted deliberate indifference. Id. “[D]eliberate indifference has three
components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by
conduct that is more than mere negligence.” Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003)
(alteration added; internal quotation marks omitted).
“Under the Eighth Amendment, a prisoner is only entitled to reasonably adequate food.”
Hernandez v. Fla. Dep’t of Corr., 281 F. App’x. 862, 865 (11th Cir. 2008). “A prison does not
violate the Eighth Amendment by feeding a prisoner a minimal amount of food for a limited
number of days.” Id. (citing Novak v. Beto, 453 F.2d 661, 665, 668 (5th Cir. 1971)).
Plaintiff states that Warden Eugene Carlton and Captain J. Weirich limited his food rations
in the SHU and, as a result, his weight has dropped from 155 lbs to 119 lbs. ECF No. [36] at 14.
Plaintiff’s claim as plead cannot survive screening. Plaintiff has not alleged that Defendants had a
sufficiently culpable state of mind or that they knew Plaintiff faced a serious risk of harm from
food rationing. It is also unclear from the Amended Complaint if Plaintiff’s food rations were
limited as a result of a SHU policy.
The deprivation of basic sanitary conditions can constitute an Eighth Amendment
violation. Brooks v. Warden, 800 F.3d 1295, 1304 (11th Cir. 2015). Additionally, an Eighth
Amendment violation may arise from allegations regarding the temperature to which a prisoner is
exposed in prison, and the severity and duration of the exposure are relevant to the analysis.
Chandler, 379 F.3d at 1294-95. However, “a prisoner’s mere discomfort, without more, does not
offend the Eighth Amendment.” Id. at 1295.
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1.

SHU Conditions

Plaintiff alleges that the SHU conditions are “absolutely inhumane” and complains that the
showers are covered in mold, there is not enough hot water, and his access to hygiene products is
limited causing acne breakouts and hair loss. ECF No. [36] at 14. He also complains that the linens
in his cell have not been changed in five months, and that the “frigid” cell temperatures put him at
a risk of catching pneumonia. Id.
Plaintiff’s allegations constitute “mere discomfort” and do not rise to the level of a
constitutional violation. See Chandler, 379 F.3d at 1295. Furthermore, he has not alleged Warden
Eugene Carlton’s or Captain J. Weirich’s personal involvement in the deprivation of basic sanitary
conditions. Therefore, this claim must be dismissed.
2.

Failure to Keep Safe from Harm Claim

Next, Plaintiff alleges that Captain J. Weirich failed to protect him when he ordered a
mentally handicapped inmate, who had recently been in a fight, to be housed with Plaintiff. ECF
No. [36] at 14. The next day, Plaintiff told an officer he felt threatened and the inmate was
removed. Id. After Plaintiff was removed from the cell, he told Captain J. Weirich he could have
been hurt, and he responded by laughing and telling Plaintiff it was not a big deal and that no one
cares. Id. When officials become aware of a threat to an inmate’s health and safety, the Eighth
Amendment’s proscription against cruel and unusual punishment imposes a duty to provide
reasonable protection. Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (per curiam). A
constitutional violation occurs when an institutional officials’ deliberate indifference to a known
danger or risk exposes an inmate to objectively “sufficiently serious” harm. Farmer, 511 U.S. at
834. A danger of risk is “known” only if the institutional official is both “aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he . . .
draw[s] th[at] inference.” Id. at 837 (alterations added). Once it is established that an institutional
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official knew of a substantial danger or risk to an inmate, it must then be shown that the official
was deliberately indifferent to that risk. “[A]n Eighth Amendment claimant need not show that a
prison official acted or failed to act believing that harm actually would befall an inmate; it is
enough that the official acted or failed to act despite his knowledge of a substantial risk of harm.
Id. at 842 (alteration added).
Setting aside the issue of whether Captain J. Weirich actually ordered the inmate to share
a cell with Plaintiff, Plaintiff has not alleged that Captain J. Weirich was deliberately indifferent
to a known risk of harm. Plaintiff states that he informed another officer he felt threatened and he
was immediately removed from the cell. Thus, this claim must be dismissed.
3.

Verbal Threats

Finally, Plaintiff alleges that Captain J. Weirich refused to allow him to make an
emergency call to his family after his grandfather passed away. ECF No. [36] at 14. Plaintiff does
not state a constitutional violation. See Hernandez, 281 F. App’x at 866 (“[V]erbal abuse alone is
insufficient to state a constitutional claim.” (alteration added)). Thus, this claim must be dismissed.
IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Amended Complaint, ECF No. [36], is DISMISSED without prejudice for
failure to state a claim.
2. To the extent not otherwise disposed of, all pending motions are DENIED as moot.
3. The Clerk of Court is directed to CLOSE this case.

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DONE AND ORDERED in Chambers at Miami, Florida, on September 7, 2021.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
Matthew Alexander King, Pro Se
17576-104
Marion-USP
United States Penitentiary
Inmate Mail/Parcels
Post Office Box 1000
Marion, IL 62959

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