AVERY v. FLORIDA DEPARTMENT OF CORRECTIONS et al

Page 1 of 10
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
MARQUAVIOUS AVERY,
Plaintiff,
v. 	Case No. 5:25-cv-282-TKW-MJF
FLORIDA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
Marquavious 	Avery, 	proceeding 	pro 	se, 	has 	filed 	an 	amended
complaint under 42 U.S.C. § 1983. Doc. 8. Avery claims that two prison
officials violated Avery’s right to due process when they placed Avery on
close management. The District Court should dismiss this civil action
because Avery fails to state a claim on which relief can be granted.
A VERY’S A MENDED COMPLAINT
Avery 	is an 	inmate of the 	Florida 	Department of Corrections
(“FDC”) 	housed 	at 	the 	Apalachee 	Correctional 	Institution. 	Avery’s
amended complaint names three Defendants: the FDC, Officer Steven
Gardner, and Warden David Maddox. Doc. 8 at 1–3.
Case 5:25-cv-00282-TKW-MJF Document 10 Filed 12/18/25 Page 1 of 10

Page 2 of 10
Avery 	alleges 	that 	on 	May 	17, 	2025, 	Gardner 	wrote 	Avery 	a
Disciplinary Report (DR #102-250732). Doc. 8 at 5, 15. The DR alleged
that as Gardner was exiting the front door of Y-Dormitory, Gardner
observed Avery receiving oral sex from visitor Ariel Johnson in the
outdoor visitation area. Id.
That same day, Gardner wrote an Incident Report (Incident Report
#102-2025-1224) about that incident. Id. at 6, 17. Gardner alleged in the
Incident Report that as Gardner was peering through a Y-Dormitory
window, he observed Avery pull the front of his pants down and visitor
Ariel Johnson lean forward and apply her mouth to Avery’s exposed
genitals. Id.
Based on Gardner’s allegations, on May 19, 2025, Warden Maddox
ordered that Avery’s and Johnson’s visitation be reviewed for suspension,
and 	that 	Avery 	be 	reviewed 	for 	close 	management 	and/or 	an
organizational transfer. Id. Close management is “the separation of an
inmate apart from the general population, for reasons of security or the
order and effective management of the institution, when the inmate,
through his or her behavior, has demonstrated an inability to live in the
Case 5:25-cv-00282-TKW-MJF Document 10 Filed 12/18/25 Page 2 of 10

Page 3 of 10
general population without abusing the rights and privileges of others.”
Fla. Admin. Code r. 33-601.800(1)(a).
On June 10, 2025, DR #102-250732 was overturned “due to a
technical 	error” 	and 	was 	removed 	from 	Avery’s 	file 	and 	the 	FDC
database. Id. at 19. On June 14, 2025, Gardner rewrote the Disciplinary
Report (DR #102-250991). Id. at 5, 16. In this DR, Gardner replicated the
allegations in the Incident Report. Id. at 16.
Avery was approved for close management based on the conduct
described in the Incident Report (#102-2025-1224). Id. at 6, 21. As a
result 	of 	that 	placement, 	Avery 	“has 	been 	subjected 	to 	harsher
confinement, suffred [sic] reputational harm and continues to endure
irreparable injury espicially [sic] as a psych 3 inmate.” Id. at 7.
Avery claims that Gardner and Maddox deprived Avery of due
process “by placing plaintiff of [sic] Close Management based solely on
Officer’s [sic] Gardner’s falsified statement.” Id. at 8. As relief, Avery
seeks 	damages 	and 	“removal of 	false 	reports 	and 	relief 	from 	close
management status.” Id.
Case 5:25-cv-00282-TKW-MJF Document 10 Filed 12/18/25 Page 3 of 10

Page 4 of 10
RELEVANT LEGAL STANDARDS
A. 	Screening Standard Under 28 U.S.C. § 1915A
Because Avery is a prisoner, the District Court is required to review
his 	amended complaint, 	identify cognizable 	claims and 	dismiss 	the
complaint, or any portion thereof, if the complaint “(1) is frivolous,
malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A(a)–(b).
To prevent dismissal for failure to state a claim, “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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Fed. R. Civ. P. 12(b)(6). “A claim has facial 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.” Iqbal, 556 U.S. at 678.
B. 	Section 1983 Standard
“A section 1983 claim is conditioned on two essential elements: first,
the conduct complained of must have been committed by a person acting
Case 5:25-cv-00282-TKW-MJF Document 10 Filed 12/18/25 Page 4 of 10

Page 5 of 10
under color of state law; second, this conduct must have deprived the
plaintiff of rights, privileges, or immunities secured by the Constitution
or the laws of the United States.” Whitehorn v. Harrelson, 758 F.2d 1416,
1419 (11th Cir. 1985) (citing 42 U.S.C. § 1983).
C. 	Due Process Standard
A due process claim has three elements: “(1) a deprivation of a
constitutionally-protected liberty or property interest; (2) state action;
and (3) constitutionally-inadequate process.” Grayden v. Rhodes, 345
F.3d 1225, 1232 (11th Cir. 2003) (citing Cryder v. Oxendine, 24 F.3d 175,
177 (11th Cir. 1994)).
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court
recognized 	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.” Id. at 478,
484. 	Without 	either 	the 	loss 	of 	gain-time 	credits 	or 	“atypical”
confinement, the Due Process Clause itself affords no protected liberty
Case 5:25-cv-00282-TKW-MJF Document 10 Filed 12/18/25 Page 5 of 10

Page 6 of 10
interest that requires procedural protections. Sandin, 515 U.S. at 487;
Kirby v. Siegelman, 195 F.3d 1285, 1290–91 (11th Cir. 1999).
D ISCUSSION
A. 	No Due Process Claim Arising from the DRs
Avery’s 	allegation 	that 	Gardner’s 	DRs 	deprived 	Avery 	of 	due
process 	fail 	to 	state 	a 	plausible 	claim 	for 	relief. 	Avery’s 	amended
complaint establishes that the first DR (#102-250732) was overturned
due to a technical error and was removed from Avery’s file and the FDC
database. Doc. 8 at 19. “If in fact there was a procedural deprivation, the
error was cured by the institutional appeals process.” Baker v. Rexroad,
159 F. App’x 61, 63 (11th Cir. 2005) (citing McKinney v. Pate, 20 F.3d
1550, 1557 (11th Cir. 1994)).
Avery implies, but does not allege, that he was convicted of the re-
written DR (#102-250991). Even if Avery was convicted, he fails to allege
that his punishment involved the revocation of gain-time, or “atypical”
confinement. 1 See Sandin, 515 U.S. at 485–87 (thirty days of disciplinary
segregation did not give rise to a protected liberty interest); Rodgers v.
1 	If 	Avery 	lost 	gain-time, 	his 	claims 	would 	be 	barred 	by 	Heck 	v.
Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641
(1997).
Case 5:25-cv-00282-TKW-MJF Document 10 Filed 12/18/25 Page 6 of 10

Page 7 of 10
Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998) (same concerning two
months in administrative confinement); Smith v. Reg’l Dir. Fla. Dep’t of
Corr., 368 F. App’x 9, 13 (11th Cir. 2010) (same as to forty-five days in
disciplinary confinement); Shaarbay v. Palm Beach Cnty. Jail, 350 F.
App’x 359, 361-62 (11th Cir. 2009) (same as to thirty days in disciplinary
confinement).
Avery’s failure to establish the deprivation of a constitutionally
protected liberty interest requires dismissal of his due-process claims
arising from the DRs.
B. 	No Due Process Claim Arising from Close Management
The same is true of Avery’s allegation that he was placed on Close
Management. “The Due Process Clause does not create an enforceable
liberty interest in freedom from restrictive confinement while a prisoner
is incarcerated.” Woodson v. Whitehead, 673 F. App’x 931, 933 (11th Cir.
2016) (first citing Hewitt v. Helms, 459 U.S. 460, 468 (1983); and then
Sandin, 515 U.S. at 484–87). Also, “[i]nmates . . . have no protected
liberty interest in a particular custody classification.” Mathews v. Moss,
506 F. App’x 981, 983–84 (11th Cir. 2013); see also Meachum v. Fano, 427
U.S. 215, 223–25 (1976) (discretionary transfer to maximum security
Case 5:25-cv-00282-TKW-MJF Document 10 Filed 12/18/25 Page 7 of 10

Page 8 of 10
state prison did not give rise to a protected liberty interest); Moody v.
Daggett, 429 U.S. 78, 88 n. 9 (1976) (prisoners have “no legitimate . . .
constitutional entitlement” to particular classification status “sufficient
to invoke due process”).
Avery describes that CM subjected him to “harsher confinement,”
but he alleges no specific facts showing “atypical and significant hardship
. . . in relation to the ordinary incidents of prison life.” Sandin, 515 U.S.
at 478, 484; see also Mathews, 506 F. App’x at 984 (prisoner’s allegation
that he was placed on Close Management I, the most restrictive single
cell housing level, did not allege the deprivation of a protected liberty
interest; prisoner did not allege any specific facts showing that he was
confined in harsher conditions than inmates on close management status
generally); Holston v. Dawson, No. 22-11198, 2023 WL 7485227, at *6
(11th Cir. Nov. 13, 2023) (dismissing due process claim because prisoner
failed to allege how Close Management hearing itself was procedurally
inadequate).
Avery’s failure to establish that Defendants deprived him of a
constitutionally protected liberty interest requires dismissal of his due-
process claims arising from his placement on Close Management.
Case 5:25-cv-00282-TKW-MJF Document 10 Filed 12/18/25 Page 8 of 10

Page 9 of 10
C. 	No Due Process Claim Arising from Violation of FDC Rules
Avery's allegation that Gardner violated an FDC administrative
rule, Fla. Admin. Code r. 33-208.002, does not, on its own, rise to the level
of a violation of a constitutional right. Doc. 8 at 7.2 See Hewitt, 459 U.S.
at 469–70 (“[W]e have never held that statutes and rules governing daily
operation 	of 	a 	prison 	system 	confer 	any 	liberty 	interest 	in 	and 	of
themselves.”); Sandin, 515 U.S. at 481–82 (noting that many prison
regulations “are primarily designed to guide correctional officers in the
administration of a prison” and that “such regulations are not designed
to confer rights on inmates”); see also Mathews, 506 F. App’x at 984
(dismissing prisoner’s claim concerning prison officials’ alleged failure to
follow prison procedures).
Thus, Avery fails to establish a plausible due-process claim arising
from the alleged rule violation.
CONCLUSION
Because 	Avery 	fails 	to 	allege 	that 	he 	was 	deprived 	of 	a
constitutionally protected liberty interest, he fails to state a claim
under 	the 	Fourteenth 	Amendment’s 	Due 	Process 	Clause. 	A 	more
2 Rule 33-208.002 sets forth the “Rules of Conduct” for FDC personnel.
Case 5:25-cv-00282-TKW-MJF Document 10 Filed 12/18/25 Page 9 of 10

Page 10 of 10
carefully drafted complaint still would not state a plausible claim.
Thus, the undersigned respectfully RECOMMENDS that the District
Court:
1. 	DISMISS this civil action under 28 U.S.C. § 1915A(b) for
failure to state a claim on which relief can be granted.
2. 	DIRECT the clerk of court to enter judgment accordingly and
close this case file.
At Panama City, Florida, this 18th day of December, 2025.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C). 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. A party must serve a copy of any
objections on all other parties. A party who fails to
object to this 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. R. 3-1; 28 U.S.C. § 636.
Case 5:25-cv-00282-TKW-MJF Document 10 Filed 12/18/25 Page 10 of 10