WATSON v. KERPSACK

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
RAKIM JAMAL WATSON,
Plaintiff,
v. 	Case No.: 3:25cv2188/LC/ZCB
JEREMY P. KERPSACK, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
Plaintiff is a prisoner proceeding pro se and in forma pauperis in
this civil rights action under 42 U.S.C. § 1983. 	After performing its
screening duties under 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a)-(b), the
Court identified several deficiencies in Plaintiff’s amended complaint
(Doc. 5) and ordered Plaintiff to correct those deficiencies by filing a
second amended complaint. 	(Doc. 8). 	Plaintiff has now filed a second
amended complaint. (Doc. 9).
The 	Court 	is 	required 	to 	screen 	Plaintiff’s 	second 	amended
complaint to determine if it is frivolous or malicious, fails to state a claim
on which relief may be granted, or seeks monetary relief from immune
defendants. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a)-(b). Because Plaintiff’s
second amended complaint fails to state any plausible claims for relief
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and seeks monetary relief from immune Defendants, this matter should
be dismissed.
I. Plaintiff’s Allegations1
Plaintiff’s second amended complaint lists eight Defendants who
are employees and inmates of the Florida Department of Corrections
(FDOC): 	(1) Sergeant Jeremy P. Kerpsack; (2) inmate John Doe #1; (3)
inmate Jonathan Anderson; (4) Officer John Doe #2; (5) Officer John Doe
#3; (6) Officer Thomas E. Golden; (7) Lieutenant Lisa M. Brooks; and (8)
Assistant Warden Susan Dove. (Doc. 9 at 2-4). Plaintiff sues Defendants
Kerpsack and Dove in their individual and official capacities, while the
remaining Defendants are sued in only their individual capacities. (Id.).
Plaintiff’s allegations stem from his incarceration at Okaloosa
Correctional 	Institution. 	Plaintiff 	states 	that 	Defendant 	Kerpsack
provided false information in two disciplinary reports against Plaintiff.
(Doc. 9 at 5). 	The first disciplinary report was written in December of
2021 and accused Plaintiff of theft over $150. (Id.). Plaintiff asserts that
Defendant 	Kerpsack 	“falsely 	alleged” 	that 	Plaintiff 	stole 	another
1 Plaintiff’s allegations are assumed true at this stage. DeVillier v. Texas,
601 U.S. 285, 288 n.1 (2024).
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inmate’s tablet. 	(Id.). 	An investigation followed, and the inmate who
owned the tablet allegedly stated that Plaintiff did not steal the tablet.
(Id.). 	Plaintiff claims the tablet was never reported stolen and that the
other inmate left the tablet in Plaintiff’s cell. 	(Id.). 	Plaintiff states that
Defendant Kerpsack “purposely wrote this false report for retaliatory
purposes.” (Id.).
The 	second 	disciplinary 	report 	involved 	extortion 	of 	inmate
Defendant Jonathan Anderson. (Id.). Defendant Anderson was placed in
administrative confinement after he alleged an inmate was extorting him
for his food. 	(Id.). 	Defendant Kerpsack investigated the matter. 	(Id.).
On May 16, 2024, it was discovered that “a phone call was made on
Anderson’s phone record that didn’t connect.” 	(Id.). 	On May 4, 2024,
Plaintiff “used Anderson’s GTL Pin Code to make a call,” but the phone
number he dialed “never connected or picked up.” 	(Id. at 5-6). 	Plaintiff
states 	Defendant 	Kerpsack 	assumed 	Plaintiff 	extorted 	Defendant
Anderson because this phone number appeared on Plaintiff’s phone
records eleven times. 	(Id. at 6). 	Plaintiff claims Defendant Anderson
never told Defendant Kerpsack that Plaintiff extorted him. (Id.).
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Plaintiff alleges that Defendant Kerpsack “purposely framed him”
or racially discriminated against him by falsifying disciplinary reports.
(Id.). 	Plaintiff claims that Defendant Kerpsack’s report falsely stated
that Plaintiff used “his STG/Gang affiliation to force inmate Anderson to
allow him the use of his GTL Pin Code” to make phone calls. 	(Id.).
Plaintiff states that “[n]o one gave Kerpsack this information.” 	(Id.).
Plaintiff claims this shows Defendant Kerpsack knowingly fabricated the
disciplinary reports or based his conclusions on racial profiling. 	(Id.).
Plaintiff asserts that Defendant Anderson wrote a witness statement and
informal grievance that said he allowed inmates including Plaintiff to use
his phone pin code and that Plaintiff was not the one extorting him. (Id.).
Plaintiff alleges he was found guilty of both disciplinary reports and
was deprived of an impartial hearing. (Id.). Plaintiff states there was no
evidence to support the guilty findings, and the reports were not based
on Defendant Kerpsack’s personal knowledge. 	(Id. at 7). 	Defendants
John Doe #2 and John Doe #3 conducted a disciplinary hearing on the
theft disciplinary report. 	(Id. at 11). 	Plaintiff was found guilty of theft
and given sixty days in confinement. (Id. at 11-12). Defendants Golden
and Brooks conducted a disciplinary hearing on the extortion disciplinary
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report. (Id. at 12). Plaintiff was found guilty of extortion and given sixty
days 	in 	confinement. 	(Id.). 	Plaintiff 	appealed 	these 	findings 	to
Defendant Dove, and they were denied. 	(Id.). 	Plaintiff alleges he was
deprived 	of 	all 	property, 	including 	legal 	materials 	during 	his
confinement. 	(Id.). 	Plaintiff claims this impaired his ability to appeal
his criminal conviction. (Id. at 12-14).
Plaintiff’s 	second 	amended 	complaint 	brings 	Fourteenth
Amendment procedural due process claims. 	(Doc. 9 at 7-14). 	For relief,
Plaintiff seeks declaratory and injunctive relief, as well as compensatory
and punitive damages. (Id. at 14-16).
II. Statutory Screening Standard
To survive dismissal at the screening phase, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). 	The plausibility standard is
met only where the facts alleged enable “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” 	Id.
Plausibility means “more than a sheer possibility that a defendant has
acted unlawfully.” 	Id. 	“Where a complaint pleads facts that are merely
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consistent with a defendant’s liability, it stops short of the line between
possibility 	and 	plausibility 	of 	entitlement 	to 	relief.” 	Id. 	(internal
quotation marks omitted).
Whether a complaint states a plausible claim for relief is “a context-
specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. The Court is “not
bound to accept as true a legal conclusion couched as a factual allegation.”
Id. at 678 (internal quotation marks omitted). And “bare assertions” that
“amount to nothing more than a formulaic recitation of the elements” of
a claim “are conclusory and not entitled to be assumed true.” 	Id. at 681
(internal quotation marks omitted). “While legal conclusions can provide
the 	framework 	of 	a 	complaint, 	they 	must 	be 	supported 	by 	factual
allegations.” 	Id. at 679.
III. Discussion
A. Plaintiff’s official capacity claims are barred by sovereign
immunity.
Absent 	waiver 	or 	express 	congressional 	abrogation 	(neither 	of
which is present here), the doctrine of sovereign immunity bars a § 1983
plaintiff’s claims for monetary damages against employees of a State
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sued in their official capacities. 	Will v. Michigan Dep’t of State Police,
491 U.S. 58, 65, 71 (1989).
By suing Defendants Kerpsack and Dove—FDOC employees—in
their official capacities, Plaintiff has effectively sued the State of Florida.
Therefore, the official capacity damages claims brought by Plaintiff
against 	Defendants 	Kerpsack 	and 	Dove 	are 	barred 	by 	sovereign
immunity.2 	Gibson v. Doe, 629 F. App’x 868, 871 (11th Cir. 2015)
(affirming dismissal of official capacity damages claims against FDOC
officials on sovereign immunity grounds).
B. Plaintiff cannot pursue claims against fictitious parties in
federal court.
As noted above, Plaintiff names as Defendants an unidentified
inmate—John Doe #1—and two unidentified prison officials—John Does
2 	Plaintiff argues that Defendants acted “outside the scope of their
employment” and thus “waived their sovereign immunity[.]”. 	(Doc. 9 at
4). 	But all of Plaintiff’s allegations involve conduct that occurred at the
prison where the FDOC Defendants are employed. Plaintiff’s conclusory
statement is insufficient to defeat sovereign immunity. 	See Andrews v.
Scott, No. 216CV814FTM99MRM, 2017 WL 3840431, at *10 (M.D. Fla.
Sept. 1, 2017) (“Plaintiff does not allege facts to establish that establish
that the Corizon employees acted outside the scope of their employment.
At best, Plaintiff makes conclusory statements concerning Corizon’s
record of negligence and recklessness.”), aff’d, 729 F. App’x 804 (11th Cir.
2018).
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#2 and #3. (Doc. 9 at 3). But importantly, as “a general matter, fictitious-
party pleading is not permitted in federal court.” Richardson v. Johnson,
598 F.3d 734, 738 (11th Cir. 2010). 	Although Plaintiff states that these
John 	Doe 	Defendants 	were 	involved 	in 	his 	prison 	disciplinary
proceedings 	(Doc. 	9 	at 	3), 	his 	description 	of 	these 	individuals 	is
insufficient to allow service of process. 	Id.; see also Williams v. DeKalb
Cnty. Jail, 638 F. App’x 976, 976-77 (11th Cir. 2016) (“A fictious name . .
. when the real defendant cannot be readily identified for service, is
insufficient to sustain a cause of action.”). Thus, Plaintiff’s claims against
John Does #1, #2, and #3 are subject to dismissal.3 	See Scott v. Miami
Dade Cnty., No. 21-13869, 2023 WL 4196925, at *7 (11th Cir. June 27,
2023) (“Scott only identified Officer Jane Doe by her title, which was an
3 See also Vielma v. Gruler, 808 F. App’x 872, 880 (11th Cir. 2020) (“[T]he
district court correctly concluded that Plaintiffs failed to describe the
John Doe defendants with enough specificity to enable service of process.
For some of the John Does, Plaintiffs provided no descriptions at all. The
remaining descriptions ranged in specificity from the highly generic (e.g.,
‘a male detective,’ ‘one of the officers at the hospital,’ or ‘an FBI Agent’)
to the ever-so-slightly less generic (e.g., ‘a female white officer about 5
feet 10–11 inches in height’ or ‘a middle-aged white male officer’). At best,
however, these descriptions include only general physical attributes and
a title that is held by many individuals. Thus, they fall well short of
enabling a process server to identify a specific individual.”) (cleaned up).
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insufficient description to allow him to maintain a claim against an
unnamed defendant.”).
C. Plaintiff cannot maintain § 1983 claims against the inmate
Defendants.
Plaintiff’s second amended complaint appears to name two inmates
of the Okaloosa Correctional Institution as Defendants—John Doe #1
and Jonathan Anderson. (Doc. 9 at 3). These inmates, however, are not
subject to liability under § 1983.
Section 1983 provides a remedy when a person acting under color
of state law deprives the plaintiff of a right, privilege, or immunity
secured by the U.S. Constitution or federal law. 	42 U.S.C. § 1983. 	A
plaintiff cannot recover under § 1983 against a defendant who was not
acting under color of state law. 	Myers v. Bowman, 713 F.3d 1319, 1329
(11th Cir. 2013). “The state action requirement is an element of a § 1983
claim that the plaintiff must prove in order to prevail.” 	Charles v.
Johnson, 18 F.4th 686, 694 (11th Cir. 2021).
Here, 	Plaintiff 	has 	failed 	to 	plausibly 	allege 	that 	the 	inmate
Defendants John Doe #1 and Jonathan Anderson acted under color of
state law for § 1983 purposes. 	Instead, it appears that Defendants are
inmates 	who 	were 	involved 	with 	Plaintiff’s 	prison 	disciplinary
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proceedings.4 	But inmates are not state actors under § 1983. 	Simon v.
Davis, No. CV423-302, 2023 WL 7498091, at *2 (S.D. Ga. Nov. 13, 2023)
(“[O]ther prisoners are not proper defendants in a 42 U.S.C. § 1983
case.”). 	Thus, Plaintiff’s § 1983 claims against Defendants John Doe #1
and Jonathan Anderson should be dismissed.
D. Plaintiff fails to plausibly allege Fourteenth Amendment
due process claims against Defendant Dove.
Government officials may not be held liable under § 1983 for the
unconstitutional 	conduct 	of 	their 	subordinates 	under 	a 	theory 	of
respondeat superior. 	Christmas v. Harris Cnty., Georgia, 51 F.4th 1348,
1355 (11th Cir. 2022). 	“Because vicarious liability is inapplicable to . . .
§ 	1983 	suits, 	a 	plaintiff 	must 	plead 	that 	each 	Government-official
defendant, through the official’s own individual actions, has violated the
Constitution.” 	Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Under Iqbal,
“each Government official, his or her title notwithstanding, is only liable
4 A private party can be treated as a state actor under § 1983 if (1) the
state coerced the private party to engage in the challenged conduct, (2)
the private party was performing a traditional governmental function, or
(3) the state and the private party were joint participants in a shared
enterprise. See Charles, 18 F.4th at 694 (explaining when a private party
can be treated as a state actor). 	Plaintiff’s allegations fail to plausibly
establish that any of these exceptions apply.
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for his or her own misconduct.” 	Id. at 677. 	Thus, “supervisory liability
under § 1983 occurs either when the supervisor personally participates
in 	the 	alleged 	unconstitutional 	conduct 	or 	when 	there 	is 	a 	causal
connection between the actions of a supervising official and the alleged
constitutional deprivation.” 	Christmas, 51 F.4th at 1355.
Causation may be established and supervisory liability imposed
“where the supervisor’s improper custom or policy results in deliberate
indifference to constitutional rights.” 	Ingram v. Kubik, 30 F.4th 1241,
1254 (11th Cir. 2022). 	“[T]o prove that a policy or its absence caused a
constitutional harm, a plaintiff must point to multiple incidents, or
multiple reports of prior misconduct by a particular employee.” Piazza v.
Jefferson Cnty., 923 F.3d 947, 957 (11th Cir. 2019) (cleaned up). 	And
allegations of a single incident of unconstitutional conduct cannot state a
claim for supervisory liability, even when the conduct involves several
subordinates. 	Id. at 957-58.
Causation can also be established by pleading facts “which support
an 	inference 	that 	the 	supervisor 	directed 	the 	subordinates 	to 	act
unlawfully or knew that the subordinates would act unlawfully and failed
to stop them from doing so.” Keating v. City of Miami, 598 F.3d 753, 762
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(11th Cir. 2010). 	The factual allegations must plausibly show that the
supervisory 	official 	acted 	with 	the 	same 	mental 	state 	required 	to
establish a constitutional violation against his subordinate. See Franklin
v. Curry, 738 F.3d 1246, 1250 (11th Cir. 2013).
As to personal participation, there are no plausible allegations that
Defendant Dove was involved with the disciplinary reports filed against
Plaintiff. 	Thus, Plaintiff has not plausibly alleged sufficient personal
participation by Defendant Dove to support any claims for supervisory
liability under § 1983. 	See Ingram, 30 F.4th at 1254 (“Plaintiffs must
instead allege that the supervisor, through his own actions, violated the
Constitution.”).
As to causation, Plaintiff makes no allegations that Defendant Dove
maintained any “improper custom or policy result[ing] in deliberate
indifference 	to 	constitutional 	rights.” 	Ingram, 	30 	F.4th 	at 	1254.
Plaintiff’s 	allegations 	about 	two 	seemingly 	isolated 	disciplinary
proceedings 	are 	insufficient 	to 	plausibly 	allege 	a 	policy 	or 	custom
supporting supervisory liability.5 See Piazza, 923 F.3d at 957 (“[T]o prove
5 See also Goebert v. Lee County, 510 F.3d 1312, 1332 (11th Cir. 2007)
(holding that plaintiff failed to meet the “extremely rigorous standard for
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that a policy or its absence caused a constitutional harm, a plaintiff must
point to multiple incidents or multiple reports of prior misconduct by a
particular employee. 	A single incident of a constitutional violation is
insufficient to prove a policy or custom even when the incident involves
several subordinates.”) (cleaned up). 	Accordingly, Plaintiff has failed to
plausibly allege any supervisory liability claims under § 1983 against
Defendant Dove.
E. Plaintiff fails to plausibly allege Fourteenth Amendment
due process claims against the remaining Defendants.
The Fourteenth Amendment’s Due Process Clause encompasses
two components, a substantive component and a procedural component.
Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013). 	Because
Plaintiff’s allegations involve prison disciplinary proceedings, it appears
he is asserting a procedural due process claim. 	See O’Bryant v. Finch,
637 F.3d 1207, 1213 (11th Cir. 2011). 	A procedural due process claim
“requires proof of three elements: (1) a deprivation of a constitutionally-
protected 	liberty 	or 	property 	interest; 	(2) 	state 	action; 	and 	(3)
supervisory liability” when she failed to show that any other inmates had
suffered the same alleged violation) (cleaned up).
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constitutionally-inadequate process.” Yarbrough v. Decatur Hous. Auth.,
941 F.3d 1022, 1026 (11th Cir. 2019).
Importantly, however, “the fact that prisoners retain rights under
the Due Process Clause in no way implies that these rights are not
subject to restrictions imposed by the nature of the regime to which they
have been lawfully committed.” 	Wolff v. McDonnell, 418 U.S. 539, 556
(1974). 	“Prison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in such
proceedings does not apply.” 	Id.
To the extent Plaintiff claims his rights were violated due to false
hearsay statements being used in the disciplinary proceedings (Doc. 9 at
7-10), Plaintiff is not entitled to the protections of the Confrontation
Clause during prison disciplinary proceedings. 	Dansby v. Babers, No.
2:14CV-070-WHA, 2015 WL 427108, at *7 (M.D. Ala. Feb. 2, 2015)
(stating 	that 	a 	“prison 	disciplinary 	proceeding 	is 	not 	a 	criminal
prosecution” meaning prisoners “in this context do not possess Sixth
Amendment rights to confront and cross-examine witnesses”) (cleaned
up). Accordingly, Plaintiff fails to plausibly allege any due process claims
based on the Sixth Amendment’s Confrontation Clause. 	See Clark v.
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Jones, No. 2:18-CV-160-ECM-KFP, 2021 WL 925879, at *11 (M.D. Ala.
Feb. 17, 2021) (granting summary judgment for defendants on prisoner’s
Confrontation Clause claim regarding prison disciplinary proceedings),
adopted, 2021 WL 922169 (M.D. Ala. Mar. 10, 2021).
Because Plaintiff has no claim under the Confrontation Clause, this
leaves 	Plaintiff’s 	allegations 	that 	Defendants 	initiated 	and 	found
Plaintiff guilty of false disciplinary charges. 	“The filing of a false
disciplinary charge, standing alone, does not state a constitutional claim.
The Constitution requires only that the plaintiff be afforded due process
at 	the 	institutional 	hearing 	(on 	the 	allegedly 	false 	charge), 	which
represents the plaintiff’s opportunity to expose falsities or inaccuracies.”
Hall v. Poppell, No. 2:20-CV-380-JES-MRM, 2021 WL 3602807, at *5
(M.D. Fla. Aug. 13, 2021).
There are “specific hearing procedures that prison disciplinary
panels must comply with to satisfy the standards of procedural due
process in the prison setting.” 	O’Bryant, 637 F.3d at 1213. 	“[P]risoners
must receive: (1) advance written notice of the charges against them; (2)
an opportunity for the inmate to call witnesses and present documentary
evidence, so long as doing so is consistent with institutional safety and
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correctional goals; and (3) a written statement by the factfinder outlining
the evidence relied on and the reasons for the disciplinary action.” 	Id.
Plaintiff’s 	second 	amended 	complaint 	provides 	no 	plausible
allegations that he did not receive advanced written notice of the charges
against him, that he was denied an opportunity to call witness or present
evidence, or that he did not receive a written statement outlining the
evidence 	behind 	and 	reasons 	for 	the 	disciplinary 	action.6 	Instead,
Plaintiff takes issue with Defendants initiating and finding him guilty of
disciplinary 	charges 	based 	on 	allegedly 	false 	information. 	Again,
however, the “filing of a false disciplinary charge, standing alone, does
not state a constitutional claim.” 	Poppell, 2021 WL 3602807, at *5.
Accordingly, Plaintiff fails to plausibly allege a Fourteenth Amendment
due process claim against Defendants.
Plaintiff primarily argues that his procedural due process rights
were violated because his disciplinary convictions were not based on
sufficient 	evidence—namely, 	that 	the 	evidence 	provided 	was 	false,
speculative, and not based on personal knowledge. 	(Doc. 9 at 7-11).
6 	Plaintiff admits that he received hearings on the two disciplinary
reports. (Doc. 9 at 11-12).
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Procedural 	due 	process 	requires 	that 	“the 	findings 	of 	the 	prison
disciplinary 	board 	are 	supported 	by 	some 	evidence 	in 	the 	record.”
Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445,
454 (1985). “Due process in this context does not require examination of
the entire record, independent assessment of the credibility of witnesses,
or weighing of the evidence. And the ‘some evidence’ standard is satisfied
by even a meager showing, so long as the record is not so devoid of
evidence as to render the tribunal’s determination arbitrary.” 	Smart v.
England, 93 F.4th 1283, 1290 (11th Cir. 2024) (cleaned up). 	In other
words, the “decision need only have some basis in fact.”7 Yarbrough, 941
F.3d at 1028 (cleaned up).
Though 	he 	disagrees 	with 	its 	truth, 	Plaintiff’s 	disciplinary
convictions were in fact based on “some evidence.” 	That evidence was
Defendant Kerpsack’s “statements in two of the Plaintiff’s disciplinary
7 To the extent Plaintiff argues that “substantial evidence” is required to
satisfy due process (Doc. 9 at 8-11), that argument lacks merit. 	See
Yarbrough, 941 F.3d at 1029 (“In the light of Holley’s specification of the
meaning of its use of the phrase ‘substantial evidence,’ we conclude that
where our precedents have used that phrase to denote a standard of
review mandated by procedural due process, they did so with the evident
intent of invoking the ‘some evidence’ standard employed by the Supreme
Court 	in 	Hill 	and 	its 	antecedents. 	They 	do 	not 	seek 	to 	apply 	the
substantial-evidence standard familiar from administrative law.”).
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reports.” 	(Doc. 9 at 5). 	Plaintiff argues that these allegations by
Defendant Kerpsack were false because Defendant inmates John Doe #1
and Anderson—at some point during the investigations—denied that
Plaintiff committed theft or extortion, respectively. 	But that does not
sustain a due process violation because Defendant Kerpsack’s allegations
against Plaintiff, even if false or incorrect, still constitute some evidence
that Plaintiff committed the infractions he was found guilty of.8 See Hill,
472 U.S. at 456-57 (finding disciplinary panel complied with due process
when convicting prisoner based on oral testimony and written report by
prison guard); 	see also Murray v. Givens, No. 6:17cv1195, 2018 WL
3463309, at *4 (N.D. Ala. May 14, 2018) (“Due process requires only that
an inmate be afforded a hearing on the charges against him. Therefore,
a prisoner’s allegation of false disciplinary charges fails to state a claim
8 Plaintiff argues that Defendant Kerpsack’s allegations must be false
because “both victims denied that the Plaintiff committed the violations,
and the only way Kerpsack could have had knowledge that the Plaintiff
committed these violations . . . [was] by the victims informing him [but]
not such statements were ever made.” 	(Doc. 9 at 9). 	The fact that the
two victims later denied that Plaintiff stole from or extorted them does
not 	preclude 	Defendant 	Kerpsack 	from 	conducting 	an 	independent
investigation into the matter. 	And Plaintiff merely speculates without
any factual support that Defendant Kerpsack could not have formed a
basis for his accusations except by the two victims’ statements.
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so long as due process was provided.”) (cleaned up), adopted, 2018 WL
3455692 (N.D. Ala. July 18, 2018).
Even if Plaintiff had plausibly alleged his procedural due process
rights were violated, “a defendant’s mere failure to comply with these
procedural protections does not give rise to a due process claim in every
situation.” Hall v. Samuels, No. 2:23cv414/JES’NPM, 2023 WL 5302328,
at *3 (M.D. Fla. Aug. 17, 2023). “Unless Plaintiff has been deprived of a
liberty interest, no due process protection is triggered.” 	Frederick v.
Murphy, No. 3:24CV240/TKW/ZCB, 2024 WL 4205623, at *3 (N.D. Fla.
Aug. 19, 2024), adopted, 2024 WL 4203490 (N.D. Fla. Sept. 16, 2024).
“In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court
recognized 	only 	two 	instances 	in 	which 	a 	prisoner 	may 	claim 	a
constitutionally protected liberty interest which implicates constitutional
due process concerns: (1) when actions of prison officials have the effect
of altering the inmate’s term of imprisonment, and (2) when a prison
restraint imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life. 	Feaster v. Bowers, No.
5:23-CV-310-TKW-MJF, 2024 WL 1515701, at *2 (N.D. Fla. Mar. 11,
2024) (cleaned up), adopted, 2024 WL 1516106 (N.D. Fla. Apr. 8, 2024).
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“Without either the loss of gain-time credits or ‘atypical’ confinement, the
Due Process Clause itself affords no protected liberty interest that
requires procedural protections.” 	Id.
Here, Plaintiff does not allege that the two disciplinary reports
resulted in a loss of gain-time credits. 	Nor does he allege that he was
subjected to any “atypical” confinement as a result of being found guilty
of the two disciplinary reports. Plaintiff claims that he was sentenced to
two sixty-day periods of confinement after he was found guilty of the two
disciplinary reports. 	(Doc. 9 at 11-12). 	Plaintiff argues that he was
denied 	all 	personal 	property—including 	certain 	legal 	materials—for
forty-four days in confinement and that this impaired his ability to
appeal his criminal conviction. 	(Id. at 12-13). 	But these allegations are
insufficient to state a plausible due process claim because he has not
alleged a loss of gain time credits or that his stays in confinement were
atypical when compared to other prisoners.9 See Smith v. Deemer, 641 F.
9 Plaintiff filed grievances in June of 2024 regarding not having his legal
materials in confinement. (Doc. 9 at 23-27). The appeal Plaintiff claims
he was impaired from litigating—5D2024-0657 (Fla. 5th DCA)—was
resolved after the 5th DCA affirmed Plaintiff’s conviction and sentence
on April 8, 2025. 	See 4/8/25 docket entry, 5D2024-0657 (Fla. 5th DCA);
https://acis.flcourts.gov/portal/court/d818ccfa-0288-4e77-9f0f-
daa6a4999a3a/case/ef5ba52e-6bdd-4c6f-b6c1-6ee3daa1c40f; 	Oliver 	v.
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App’x 865, 868-69 (11th Cir. 2016) (“His disciplinary hearing resulted in
no loss of good-time credit, and the conditions he alleged do not constitute
an 	atypical 	and 	severe 	hardship. 	Thus, 	Smith’s 	substantive 	and
procedural 	due 	process 	claims 	fail 	to 	implicate 	a 	constitutionally
protected liberty interest.”); Ferguson v. Buss, No. 4:10CV232-MP/WCS,
Fla., 803 F. App’x 305, 306 (11th Cir. 2020) (“The district court . . .
properly took judicial notice of dates from the state-court online docket
sheets and other state-court records.”). 	Plaintiff (and/or his attorney)
submitted numerous filings between August of 2024 and the affirmance
of his conviction and sentence on April 8, 2025. 	See No. 5D2024-0657
(Fla. 5th DCA) (docket). 	Plaintiff again submitted multiple filings
requesting rehearing in April and May of 2025—requests that were
denied on June 16, 2025. 	See id. 	Thus, Plaintiff cannot plausibly claim
that being deprived of his property for forty-four days in 2024 imposed
an atypical hardship or impaired his ability to pursue an appeal that was
not resolved until almost a year later. And it bears mentioning that the
individuals identified in Plaintiff’s grievances as the ones who denied him
his legal materials in confinement—(1) Sergeant Alozec and (2) T. Gregor
(Doc. 9 at 23-27)—are not Defendants in this action. 	There is no
indication that any of the named Defendants had anything to do with the
alleged denial of Plaintiff’s legal materials during his confinement. 	As
such, Plaintiff fails to establish the causation element of a § 1983 claim
regarding being denied certain legal materials while in confinement. See
Taylor v. Gray, No. 5:19cv62/MCR/MJF, 2020 WL 10052646, at *5 (N.D.
Fla. Mar. 2, 2020) (“Because Plaintiff was able to litigate the underlying
action, he has failed to plausibly allege that he suffered an actual injury
caused by any Defendant. Because Taylor has failed to allege an actual
injury and causation—and the record indicates that Taylor suffered no
injury caused by any Defendant—Taylor has failed to state a claim for a
denial of access to the courts.”), adopted, 2021 WL 2401387 (N.D. Fla.
June 10, 2021).
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2011 WL 3625703, at *1 (N.D. Fla. June 17, 2011) (“Plaintiff did not have
a liberty interest protected by procedural due process with regard to
placement into disciplinary confinement for 60 days.”), adopted, 2011 WL
3611407 (N.D. Fla. Aug. 17, 2011).
IV. Conclusion
For the reasons above, it is respectfully RECOMMENDED that:
1. 	Plaintiff’s 	second 	amended 	complaint 	(Doc. 	9) 	be
DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and 1915A(b)(1)-
(2) for failure to state a claim on which relief may be granted and for
seeking monetary relief against immune Defendants.
2. 	The Clerk of Court be directed to enter judgment accordingly
and close this case.
At Pensacola, Florida, this 20th day of January 2026.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice To The Parties
Objections to these proposed findings and recommendations must be filed
within fourteen days of the date of the Report and Recommendation. Any
different deadline that may appear on the electronic docket is for the
court’s internal use only and does not control. 	An objecting party must
serve a copy of the objections on all other parties. 	A party who fails to
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object to the magistrate judge’s findings or recommendations contained
in a report and recommendation waives the right to challenge on appeal
the 	district 	court’s 	order 	based 	on 	unobjected-to 	factual 	and 	legal
conclusions. 	See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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