DAVIS v. HARDWOOD et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
LAVAROS DAVIS,
Plaintiff,
v. 	Case No.: 3:25cv125/AW/ZCB
HARWOOD, 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. 13). Plaintiff has now filed a second amended complaint. (Doc. 19).
The 	Court 	is 	required 	to 	screen 	Plaintiff’s 	second 	amended
complaint to determine if it is frivolous or malicious, fails to state a claim
upon 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
fails 	to 	state 	a 	claim 	against 	Defendants 	Diamond, 	Wadkins, 	and
Delarosa, 	Plaintiff’s 	claims 	against 	those 	Defendants 	should 	be
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dismissed. 	Additionally, Plaintiff’s First Amendment claim should be
dismissed for failure to state a claim upon which relief may be granted.1
I. Plaintiff’s Allegations2
Plaintiff’s second amended complaint names ten Defendants who
are 	employees 	at 	Santa 	Rosa 	Correctional 	Facility: 	(1) 	Sergeant
Harwood; (2) Sergeant Reeden; (3) Officer McDonald; (4) Officer Cambell;
(5) Officer Bear; (6) Lt. Hayes; (7) Nurse Gonzalez; (8) Mental Health
Counselor Diamond; (9) Mental Health Counselor Wadkins; and (10)
Nurse Delarosa. 	(Doc. 19 at 2-6). 	He sues them all in their individual
capacities. (Id.).
Plaintiff alleges that on September 28, 2024, he was in his cell
having 	a 	psychological 	emergency. 	(Doc. 	19 	at 	7). 	He 	claims 	he
repeatedly told Defendant Harwood that he was hearing voices and
wanted to kill himself. (Id.). Defendant Harwood allegedly did nothing.
1 The Court previously provided Plaintiff an opportunity to amend after
explaining to him deficiencies in his prior pleadings. 	(Docs. 9, 13).
Nonetheless, 	Plaintiff’s 	second 	amended 	complaint 	still 	contains
deficiencies. 	See generally Bryant v. Dupree, 252 F.3d 1161, 1163 (11th
Cir. 2001) (stating that a plaintiff typically “must be given at least one
chance to amend the complaint before the district court dismisses the
action”).
2 Plaintiff’s allegations are assumed true at this stage. DeVillier v. Texas,
601 U.S. 285, 288 n.1 (2024).
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(Id.). 	Plaintiff alleges he then “cut his left AC vein” and smeared blood
on the walls of his cell. 	(Id.). 	Plaintiff states Defendant Gonzalez,
McDonald, Harwood, and Cambell walked by his cell, saw the blood in
his cell, and did nothing. (Id. at 7-8).
After a few hours, Plaintiff claims he attempted to hang himself in
his cell. 	(Id. at 8). 	While Plaintiff was attempting to hang himself,
Defendant Hayes came to Plaintiff’s cell, instructed Plaintiff to cuff up,
and escorted Plaintiff to medical along with Defendants Reeden and
Bear. 	(Id.). 	Plaintiff was in the medical room with Defendants Reeden,
Bear, Gonzalez, and Hayes. 	(Id.). 	Plaintiff alleges Defendant Gonzalez
slapped him in the face several times when he told her he wanted to kill
himself. (Id.). He then alleges that Defendants Reeden and Bear began
punching him in the back of the head and body. 	(Id.). 	Plaintiff states
Defendant Hayes watched and laughed. (Id.). Plaintiff alleges Defendant
Hayes told Plaintiff that if he filed a grievance on the incident, the
grievance would go in the trash. 	(Id.). 	Plaintiff claims he received no
medical attention and was escorted back to his cell. (Id.).
Plaintiff alleges that two days later he stabbed himself and tried to
hang himself again. 	(Id. at 9). 	Plaintiff alleges that he filed multiple
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grievances over Defendants’ actions on September 31, 2024. 	(Id.). 	He
states that an unidentified officer came to his cell and ripped up his
grievances. (Id.).
Plaintiff 	brings 	a 	First 	Amendment 	retaliation 	claim 	against
Defendants Harwood, McDonald, Cambell, and Hayes. (Id. at 10-11). He
brings Eighth Amendment deliberate indifference and/or excessive force
claims against Defendants Harwood, Reeden, McDonald, Cambell, Bear,
Hayes, and Gonzalez. 	(Id. at 11). 	Plaintiff does not include any claims
against Defendants Diamond, Wadkins, or Delarosa in the “Statement of
Claims” 	section 	of 	the 	complaint 	form. 	Plaintiff 	seeks 	monetary
damages. (Id. at 10, 12).
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
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acted unlawfully.” 	Id. 	“Where a complaint pleads facts that are merely
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. Defendants 	Diamond, 	Wadkins, 	and 	Delarosa 	should 	be
dismissed because Plaintiff fails to state any claim against
them.
As mentioned above, Plaintiff fails to identify any claims against
Defendants Diamond, Wadkins, or Delarosa. 	The three Defendants
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names are absent from the “Statement of Claims” section of the complaint
form. Plaintiff has had multiple opportunities to amend his complaint to
ensure he states a claim against each named Defendant, however, he has
failed to identify any claims against Defendants Diamond, Wadkins, or
Delarosa. Because Plaintiff fails to bring any claims against Defendants
Diamond, Wadkins, or Delarosa, these Defendants should be dismissed
from this action.
B. Plaintiff’s 	First 	Amendment 	retaliation 	claim 	against
Defendants 	Harwood, 	McDonald, 	Cambell, 	and 	Hayes
should be dismissed for failure to state a claim.
Plaintiff 	brings 	a 	First 	Amendment 	retaliation 	claim 	against
Defendants Harwood, McDonald, Cambell, and Hayes for threatening to
throw away his grievances and ripping up his grievances. (Doc. 19 at 10-
11). 	A plaintiff can prevail on a retaliation claim if “(1) his speech was
constitutionally protected; (2) [he] suffered adverse action such that the
administrator's allegedly retaliatory conduct would likely deter a person
of ordinary firmness from engaging in such speech; and (3) there is a
causal relationship between the retaliatory action and the protected
speech.” 	Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).
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Plaintiff fails to provide sufficient factual allegations that would
support a First Amendment claim against any of the four Defendants.
First, 	Plaintiff 	does 	not 	include 	any 	factual 	allegations 	implicating
Defendants Harwood, McDonald, Cambell, or Hayes in the ripping up of
his grievances. 	He only alleges that an unidentified officer tore up his
grievances 	in 	front of him. 	Plaintiff’s conclusory and unsupported
allegations of First Amendment retaliation do not satisfy the pleading
requirements. 	See Allen v. St. John, 827 F. App’x 1002, 1007 (11th Cir.
2020) 	(holding 	that 	inmate’s 	conclusory 	allegation 	that 	defendants
retaliated against him was not sufficient to state a § 1983 claim for
retaliation); see also Jones v. Gadsden Cnty. Schs., 755 F. App’x 954, 955
(11th Cir. 2019) (affirming dismissal of retaliation claim where plaintiff
had not provided a factual basis that would allow the court, even reading
liberally, to infer all three elements of a prima facie retaliation claim).
Second, as Plaintiff was previously informed, alleged verbal threats
are insufficient to state a claim. 	(See Doc. 9 at 9-10) (explaining that
Defendant Hayes’s threat that his grievance would be thrown away was
insufficient to state a constitutional violation); Hernandez v. Fla. Dep’t of
Corr., 281 F. App’x 862, 866 (11th Cir. 2008) (holding “allegations of
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verbal abuse and threats by the prison officers [do] not state a claim
because . . . verbal abuse alone is insufficient to state a constitutional
claim.”). 	Plaintiff’s claim that Defendant Hayes threatened to throw
away any grievances, without more, is insufficient to state a claim for a
constitutional 	violation. 	Accordingly, 	Plaintiff’s 	First 	Amendment
retaliation claim against Defendants Harwood, McDonald, Cambell, and
Hayes should be dismissed.
IV. Conclusion
For the reasons above, it is respectfully RECOMMENDED that:
1. 	Defendants 	Diamond, 	Wadkins, 	and 	Delarosa 	be
DISMISSED from this action under 28 U.S.C. § 1915(e)(2)(B)(ii) because
Plaintiff has failed to state a claim for relief against them.
2. 	Plaintiff’s 	First 	Amendment 	retaliation 	claim 	against
Defendants Harwood, McDonald, Cambell, and Hayes be DISMISSED
for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii).
3. 	This matter be recommitted to the undersigned for further
proceedings on Plaintiff’s Eighth Amendment claims against Defendants
Harwood, Reeden, McDonald, Cambell, Bear, Hayes, and Gonzalez.
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At Pensacola, Florida, this 18th day of February 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 	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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