[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10518 JULY 5, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 9:10-cv-80312-KAM
KENNETH COLEMAN,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
ST. LUCIE COUNTY JAIL,
DEPUTY O'BRIEN,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees,
LT. WILDS, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 5, 2011)
Before HULL, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Kenneth Coleman appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 civil rights complaint, in which he alleged that Officer O’Brien used
excessive force against him and that Lieutenant Wilds did not assist him when she
saw him being taken for medical treatment following the encounter with Officer
O’Brien. Coleman challenges (1) the district court’s dismissal of his claim against
Lieutenant Wilds under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief could be granted; and (2) the district court’s dismissal of his
complaint for failure to prosecute his claim against Officer O’Brien. After careful
review of the record and Coleman’s brief, we affirm the district court’s dismissal
of Coleman’s claims against Officer O’Brien and Lieutenant Wilds.
I.
Coleman argues that the district court erred in dismissing his claim against
Lieutenant Wilds under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief could be granted. We review de novo a district court’s
dismissal for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2), using the
same standards that govern dismissals under Federal Rule of Civil Procedure
12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Under those
2
standards, we accept the allegations in the complaint as true and construe them in
the light most favorable to the plaintiff. Timson v. Sampson, 518 F.3d 870, 872
(11th Cir. 2008). “Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). “[T]o
prevail on a civil rights action under § 1983, a plaintiff must show that he or she
was deprived of a federal right by a person acting under color of state law.”
Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
An allegation of an unjustified, brutal use of force against an inmate by a
guard states a claim under § 1983. See, e.g., Perry v. Thompson, 786 F.2d 1093
(11th Cir. 1986). Additionally, “an officer who is present at the scene and who
fails to take reasonable steps to protect the victim of another officer’s use of
excessive force, can be held liable for his nonfeasance.” Fundiller v. City of
Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985).
Coleman argues that the district court’s dismissal of his claim against
Lieutenant Wilds was erroneous because she witnessed his beating at the hands of
Officer O’Brien but failed to stop or report the misconduct. But in his complaint,
Coleman did not allege that Lieutenant Wilds observed the beating. Instead, the
complaint, even construed liberally, only alleges that Lieutenant Wilds saw
3
Coleman when he was being taken by force for medical treatment following the
beating and that she said and did nothing. The district court concluded that “the
fact that Wilds saw [Coleman] being taken to medical in cuffs, however roughly,
did not prompt a duty to interfere on her part.” We agree. Given that Coleman
failed to allege in his complaint that Lieutenant Wilds observed the alleged
beating by Officer O’Brien, he failed to a state claim against Lieutenant Wilds
under § 1983.
II.
Coleman also appears to argue that the district court should not have
dismissed the complaint for failure to prosecute after he failed to provide the court
with Officer O’Brien’s current address for service of process. The district court
may dismiss a claim if the plaintiff fails to prosecute it or comply with a court
order. See Fed. R. Civ. P. 41(b); Betty K Agencies, Ltd. v. M/V MONADA, 432
F.3d 1333, 1337 (11th Cir. 2005) (stating that a district court may sua sponte
dismiss a case under the authority of either Rule 41(b) or the court’s inherent
power to manage its docket). We review such a dismissal for abuse of discretion.
Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999).
Here, the United States Marshal returned the service of summons for Officer
O’Brien to the district court unexecuted, explaining that there was not enough
4
information in Coleman’s complaint to locate Officer O’Brien. The district court
then ordered Coleman to supply the court with a current address for Officer
O’Brien. When Coleman failed to do so, the district court dismissed the complaint
without prejudice.1 Coleman argues that the jail does not provide inmates with
staff addresses, and he is confined and is unable to obtain the address himself. But
given that Coleman failed to respond in any way to the district court’s order, we
cannot say that the district court abused its discretion in dismissing Coleman’s
complaint for failure to prosecute. See Fed. R. Civ. P. 41(b).
For all of these reasons, we affirm the dismissal of Coleman’s complaint.2
AFFIRMED.
1
Coleman did not file any objections to the magistrate judge’s report, which recommended
that the case be dismissed without prejudice for lack of prosecution.
2
Coleman named four defendants in his complaint: (1) St. Lucie County Jail; (2) Lieutenant
Wilds; (3) Officer O’Brien; and (4) Nurse Talbatath. As explained above, we affirm the dismissals
of Coleman’s claims against Lieutentant Wilds and Officer O’Brien. The district court also
dismissed Coleman’s claim against Nurse Talbatath, but Coleman does not challenge this ruling in
his brief and has therefore abandoned that issue on appeal. See Irwin v. Hawk, 40 F.3d 347, 347 n.1
(11th Cir. 1994). Although the district court never addressed Coleman’s claim against the St. Lucie
County Jail, Coleman’s brief to this Court, even construed liberally, does not challenge the dismissal
of his complaint on this basis. We therefore conclude that Coleman has also abandoned his claim
against the St. Lucie County Jail. See id.
5