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                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-12445
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 5:17-cv-00306-MCR-GRJ



VICTOR DONTAVIOUS STALLWORTH,

                                                             Plaintiff - Appellant,

                                   versus

WILKINS, et al.

                                                         Defendants - Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                              (January 17, 2020)

Before MARTIN, JORDAN, and TJOFLAT, Circuit Judges.

PER CURIAM:
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       Victor Stallworth, a pro se plaintiff, appeals the sua sponte dismissal of his

42 U.S.C. § 1983 civil rights complaint for failure to state a claim. After careful

review, we reinstate one of Stallworth’s First Amendment claims against Captain

Williams and Captain Billingsey and vacate the dismissal of his Eighth

Amendment claim against an unnamed mental health counselor. We affirm the

district court’s dismissal of all other claims.

                                              I.

       Stallworth, a Florida prisoner, filed a pro se civil rights complaint against

seven prison officials 1 under 42 U.S.C. § 1983. He alleged these officials violated

his rights under the First, Eighth, and Fourteenth Amendments. Stallworth

requested a declaratory judgment, compensatory and punitive damages, and “[a]ny

additional relief [the] court deems [j]ust[,] proper and equitable.”

       In his complaint, Stallworth asserted that prison officials began treating him

poorly after he filed grievances against correctional officers for taking his digital

radio. He says they threatened him with “excessive force and chemical agents,”

and spat on him through his cell window. Over the next five months, Stallworth

says various prison officials falsely accused him of participating in a prison riot



       1
         Stallworth’s original complaint named prison grievance coordinator Ms. Wilkins,
Assistant Warden Ponder, Captain Williams, Captain Billingsey, Captain Gainnie, Sergeant
Richardson, and Sergeant Heffell as defendants. All defendants were employees of Florida’s
Gulf Correctional Institution, where Stallworth was incarcerated at the time of the alleged
constitutional violations.
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and denied him a meatless diet, clean meal trays, cold drinking water, bedsheets,

clean laundry, a working ventilation fan, outdoor recreation, mental health care,

and medical attention. Stallworth filed over 20 formal and informal grievances

raising these issues. Stallworth also described that various officials failed to

respond to his formal and informal grievances and told Stallworth “maybe” he

would receive a diet change, clean meal trays, bedsheets, cold water, and outdoor

recreation “if [he] stop[ped] filing grievances.” Stallworth says he became “very

sick” and suffered “a few stomach viruses,” vomiting, fever, and constipation from

having to eat off meal trays covered in “black mold and mildew.”

      The court granted Stallworth leave to proceed in forma pauperis (“IFP”).

Because Stallworth was a prisoner proceeding IFP, a magistrate judge screened

Stallworth’s complaint under 28 U.S.C. § 1915(e) and found Stallworth failed to

state any plausible Fourteenth Amendment claims. The magistrate judge dismissed

Stallworth’s First and Eighth Amendment claims and instructed Stallworth to file

an amended complaint alleging physical injury in order to be eligible to receive

compensatory or punitive damages, as required by the Prison Litigation Reform

Act (“PLRA”). See 42 U.S.C. § 1997e(e) (“No federal civil action may be brought

by a prisoner . . . for mental or emotional injury suffered while in custody without

a prior showing of physical injury”). While the court noted Stallworth’s stomach

virus would qualify as a physical injury, it held Stallworth’s allegations did “not


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plausibly suggest that [the named prison officials] had anything to do with the dirty

meal trays or [Stallworth’s] grievance complaining about the meal trays.” The

court acknowledged Stallworth was also “entitled to seek nominal damages,”

because his complaint prayed for “any additional relief” the court found proper.

      Stallworth amended his complaint and maintained his request for declaratory

relief and compensatory and punitive damages, but dropped his prayer for “any

other relief.” The magistrate judge dismissed this “practically identical” amended

complaint for the same infirmities as before. The court gave Stallworth one more

chance to amend his complaint, warning him to forego compensatory or punitive

damages and advising him to seek nominal damages only.

      Stallworth amended his complaint a second time. Stallworth named two

new “John Doe” defendants: a “Food Service Supervisor” and a “Mental Health

Counselor.” Stallworth alleged the Food Service Supervisor violated his

Fourteenth Amendment right to due process by ignoring Stallworth’s repeated

grievances about the moldy food trays and his need for a meatless diet. Stallworth

also alleged the Mental Health Counselor violated his Eighth and Fourteenth

Amendment rights by ignoring Stallworth’s requests for mental health treatment

for “cold sweats, flash backs, hearing voices[,] and depression.” Stallworth

emphasized that he “had to [a]ttempt to commit[] suicide . . . just to get seen by

Mrs. John Doe Mental [H]ealth Counselor.”


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      The court dismissed his complaint once again, ruling that Stallworth did not

plausibly state Eighth or Fourteenth Amendment claims against the named

defendants and had not “compl[ied] with a Court order” to request nominal

damages for his First Amendment claims. The court dismissed Stallworth’s claims

against the John Doe defendants because Stallworth “cannot proceed with this case

solely against two unnamed [d]efendants.” This is Stallworth’s appeal.

                                          II.

      This Court reviews de novo the dismissal of a complaint for failure to state a

claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Mitchell v. Farcass, 112 F.3d 1483,

1489–90 (11th Cir. 1997). Dismissal under § 1915(e)(2)(B)(ii) is governed by the

same standard as dismissal under Federal Rule of Civil Procedure 12(b)(6). Id. To

prevent dismissal under Rule 12(b)(6), a plaintiff must allege sufficient facts to

state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). Claims are plausible when the

plaintiff pleads facts that allow the court “to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 1949 (2009). Pro se pleadings such as Stallworth’s are

liberally construed and held to a less stringent standard than counseled pleadings.

See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per

curiam).


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                                          III.

                                          A.

      Stallworth contends Grievance Coordinator Ms. Wilkins, Assistant Warden

Ponder, and the unnamed food service supervisor violated the Fourteenth

Amendment’s guarantee of due process by failing to acknowledge or respond to

his grievances, in violation of the prison’s procedures. However, “a prison

grievance procedure does not provide an inmate with a constitutionally protected

interest.” Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011) (per curiam).

Because Stallworth’s interest in the prison grievance procedures is not

constitutionally protected, he cannot state a claim that prison officials denied him

due process of law by violating these procedures. See id.

                                          B.

      Next, Stallworth argues he stated First Amendment retaliation claims against

seven prison officials: Captain Williams, Captain Billingsey, Captain Gainnie,

Sergeant Heffel, Sergeant Richardson, grievance coordinator Ms. Wilkins, and

Assistant Warden Ponder. We reverse the district court’s dismissal of Stallworth’s

retaliation claims against Captain Williams and Captain Billingsey stemming from

the allegedly filthy meal trays, but we affirm the district court’s dismissal of

Stallworth’s other First Amendment claims.




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      “First Amendment rights to free speech and to petition the government for a

redress of grievances are violated when a prisoner is punished for filing a

grievance concerning the conditions of his imprisonment.” Boxer X v. Harris, 437

F.3d 1107, 1112 (11th Cir. 2006). “A prisoner can establish retaliation by

demonstrating that the prison official’s actions were the result of his having filed a

grievance.” Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003) (quotation

marks omitted). “To state a [F]irst [A]mendment claim for retaliation, a prisoner

need not allege violation of a separate and distinct constitutional right.” Thomas v.

Evans, 880 F.2d 1235, 1242 (11th Cir. 1989). Thus, even though Stallworth fails

to state Eighth Amendment claims for many of the indignities he believes he has

suffered, see infra Part III.C.2, he plausibly states two First Amendment retaliation

claims on the same facts.

      Accepting the allegations in his complaint as true, Stallworth adequately

alleges Captain Williams and Captain Billingsey retaliated against him for filing

grievances by ignoring his complaints about filthy meal trays. Stallworth’s

amended complaint recounts that he filed an informal grievance on May 15, 2017,

about “the confinement trays not being washed and cleaned properly” and

containing “black mold and mildew.” This grievance, Stallworth says, was

ignored. Stallworth told Captain Williams about the black mold and mildew on the

meal trays three days later. Stallworth alleges Williams responded, “[S]top filing


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grievances and maybe you will get a clean tray.” The next day, Stallworth stopped

Captain Billingsey to report the dirty, mildewed, and moldy trays. Stallworth

alleges Billingsey said, “[S]top filing grievances and you will get a clean tray.”

Stallworth’s complaint also alleged “[t]he captains and sergeants mention[ed] in

this complaint ha[ve] the authority to . . . call food service” and order an alternate

meal “for any inmate.” Stallworth also says ordinarily “both captain’s [sic]

would’ve done their job” and presumably replaced his meal tray “if the meal trays

were missing portions of food, late[,] or not served at all,” but both captains

refused to replace his dirty trays.

      Stallworth plausibly states a claim that Captains Williams and Billingsey

refused Stallworth’s requests for a clean meal tray in retaliation for the grievances

Stallworth had filed. Because Stallworth alleges that he requested help for the

dirty meal trays and, in response, two prison officials denied help while expressing

displeasure with Stallworth’s grievances, there is a sufficient causal link between

the grievances and the denial of a clean meal tray. See Alvarez v. Sec’y, Fla.

Dep’t of Corr., 646 F. App’x 858, 864–65 (11th Cir. 2016) (per curiam)

(unpublished) (holding a prisoner plaintiff stated a retaliation claim by alleging he

filed a request to be transferred, an officer responded, “We have a place for you,”

and the prisoner was then placed in disciplinary confinement). Although the

district court found it significant that Stallworth did not allege Captain Williams


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and Captain Billingsey dirtied the trays themselves, officers may retaliate by

failing to carry out their duties. See Hilton v. Sec’y for Dep’t of Corr., 170 F.

App’x 600, 603–04 (11th Cir. 2005) (unpublished) (holding a prisoner stated a

retaliation claim by alleging officers “fail[ed] to notify him that family members

had arrived for visiting hours”). Notably, Stallworth alleged both captains had the

authority to “call food service and [place] order[s]” and that they supervised the

provision of meal trays. Accepting these facts as true, Stallworth states a claim

that Captains Williams and Billingsey retaliated against him in violation of the

First Amendment.

      Stallworth also successfully alleges that he can recover compensatory and

punitive damages for this retaliation. This Court has held that the PLRA requires a

prisoner plaintiff to allege he suffered more than de minimis physical injury to

recover compensatory or punitive damages. See Brooks v. Warden, 800 F.3d

1295, 1307 (11th Cir. 2015); see also 42 U.S.C. § 1997e(e). “[W]ell established

Eighth Amendment standards” guide our analysis of whether a physical injury is

de minimis. Harris v. Garner, 190 F.3d 1279, 1286–87 (11th Cir. 1999), reh’g en

banc granted, vacated in part on other grounds, 216 F.3d 970 (11th Cir. 2000).

      Stallworth has made a showing of physical injury that is not merely de

minimis. Stallworth alleged he became “very sick from the confinement trays

having mildew, black mold, and not being washed properly.” Stallworth says the


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filth on the trays caused him “to have a few stomach viruses, throw up, fever[,] and

constipation.” As a result of these injuries, Stallworth “had to go to sick call

twice” and sought medical attention a third time but was refused “because of his

complaints.” See Thompson v. Sec’y, Fla. Dep’t of Corr., 551 F. App’x 555, 557

n.3 (11th Cir. 2014) (per curiam) (unpublished) (observing the de minimis standard

has been met by “an observable or diagnosable medical condition requiring

treatment by a medical care professional” and concluding the plaintiff had “alleged

enough to avoid dismissal at this stage”). Stallworth’s maladies were not de

minimis. Compare id. at 556–57 (holding a prisoner’s allegations of “headaches,

weakness, cold sweats, dizziness, weight loss, numbness in [the] left arm, and high

blood sugar” “rose above the de minimis threshold”), with Harris, 190 F.3d at 1287

(“A ‘dry shave,’ without more, is simply not the kind of ‘injury’ that is cognizable

under section 1997e(e).”). Because Stallworth has alleged sufficient physical

injury within the meaning of § 1997e(e), the PLRA permits him to seek

compensatory and punitive damages for Captain Williams and Captain Billingsey’s

allegedly retaliatory actions in refusing his requests for clean meal trays.

      Stallworth’s other retaliation claims, however, cannot proceed. Stallworth

has not alleged physical injury to support his claims that prison officials retaliated

by ignoring his grievances and denying him a meatless diet, cold drinking water,




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bed sheets, outdoor recreation, and clean laundry.2 While these retaliation claims

could be cognizable in an action for nominal damages, as the district court

identified, Stallworth’s second amended complaint does not request nominal

damages. Beyond that, Stallworth does not provide adequate support for his

allegation that Assistant Warden Ponder and grievance coordinator Ms. Wilkins

maintained “a policy and custom to shred grievances, throw them away, [and] fail

to respond to them in a threat of intimidation” to stop Stallworth from filing

grievances.3 Thus, the district court properly dismissed Stallworth’s remaining

claims that prison officials retaliated against him. See Harris, 190 F.3d at 1290

(affirming dismissal of claims for compensatory and punitive damages because the

claims were unsupported by an allegation of physical injury).




       2
         Stallworth’s amended complaint describes that eating meat served by the prison
“ma[de] him sick.” When he asked Captain Williams and Captain Billingsey to provide him a
meatless diet, Captain Billingsey “laughed” and both captains told him to stop filing grievances
and maybe he would receive a diet change. However, Stallworth does not describe the severity
or kind of sickness he suffered from eating meat. As a result, we cannot say his injury was more
than de minimis. Without more facts, we must affirm dismissal of this claim.
       3
          In support of his First Amendment retaliation claim against Assistant Warden Ponder
and Ms. Wilkins, Stallworth points to two declarations from fellow inmates, which Stallworth
filed along with his objections to the magistrate judge’s final report and recommendation. At
most, however, these affidavits reveal 1) Ponder ignored Stallworth’s in-person questions about
grievances and 2) a third prison official, Officer Owens, told Stallworth that his grievances were
“more food for Ms. Wilkins[’s] shredder.” Even at the motion to dismiss phase, these facts,
relating only to Stallworth’s grievances, do not plausibly evince a widespread policy of First
Amendment retaliation. See, e.g., Craig v. Floyd County, 643 F.3d 1306, 1312 (11th Cir. 2011)
(holding a prisoner’s “own experience [was] at most, proof of a single incident of
unconstitutional activity” and was not sufficient to impose liability under 42 U.S.C. § 1983
(alteration adopted and quotation marks omitted)).
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                                         C.

      Stallworth also argues he has stated claims that nine officers—Ms. Wilkins,

Assistant Warden Ponder, Captain Williams, Captain Billingsey, Captain Gainnie,

Sergeant Heffel, Sergeant Richardson, the unnamed food supervisor, and the

unnamed mental health counselor—violated the Eighth Amendment by creating

inhumane prison conditions.

      The Eighth Amendment prohibits “cruel and unusual punishments,” “the

unnecessary and wanton infliction of pain,” and “deliberate indifference to a

substantial risk of serious harm to a prisoner.” Bass v. Perrin, 170 F.3d 1312,

1316–17 (11th Cir. 1999) (quotation marks omitted). Harsh prison conditions,

“alone or in combination, may deprive inmates of the minimal civilized measure of

life’s necessities. Such conditions could be cruel and unusual under the

contemporary standard of decency.” Hamm v. DeKalb County, 774 F.2d 1567,

1572 (11th Cir. 1985) (quotation marks omitted).

                                         1.

      First, Stallworth’s complaint alleges the mental health counselor displayed

deliberate indifference to his declining mental health. See, e.g., Waldrop v. Evans,

871 F.2d 1030, 1036 (11th Cir. 1989) (“[P]rison officials have an obligation to take

action or to inform competent authorities once the officials have knowledge of a

prisoner’s need for medical or psychiatric care.”). Stallworth’s complaint alleges


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although he had a “mental health plan,” he was never seen by the mental health

counselor for “an initial interview” after arriving at the prison. Stallworth says he

later filed a request with the prison mental health counselor for mental health care

to treat his “cold sweats, flash backs, hearing voices[,] and depression,” but the

counselor never answered. Stallworth filed a formal grievance a few weeks after

that to draw attention to his request for mental health counseling, but this grievance

was also ignored. Stallworth says he attempted to commit suicide approximately

two weeks after this grievance, and only then was he seen by the mental health

counselor.

      This Court has previously held that deliberate indifference can manifest in

an official’s failure to provide adequate mental health care. See Steele v. Shah, 87

F.3d 1266, 1267–1270 (11th Cir. 1996) (holding a prison psychiatrist would

violate the Eighth Amendment by conducting a one-minute “initial screening” of

an inmate with a documented mental health treatment plan, then cancelling the

inmate’s medications). But we need not decide whether Stallworth states a claim

for deliberate indifference in the first instance. The district court dismissed this

Eighth Amendment claim because it ruled against Stallworth on all of his other

claims and concluded that Stallworth could not “proceed with this case solely

against . . . unnamed Defendants.” In this opinion, we reinstate one of Stallworth’s

First Amendment claims against Captain Williams and Captain Billingsey. See


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supra Part III.B. Stallworth is therefore now entitled to consideration of the merits

of his deliberate indifference claim and will have the opportunity to seek the

identity of the proper defendants through discovery. See Clark v. Putnam County,

168 F.3d 458, 463 (11th Cir. 1999) (declining to address an issue the district court

had not reached in the first instance); see also Brown v. Sikes, 212 F.3d 1205, 1209

n.4 (11th Cir. 2000) (acknowledging “the difficulties faced by a prisoner in

identifying alleged wrongdoers before filing a complaint” and noting appeals

courts “have directed district courts to assist prisoners in discovering the identity of

the proper defendants”). We therefore vacate and remand the district court’s

dismissal of Stallworth’s Eighth Amendment claim against the unnamed mental

health counselor for consideration in the first instance.

                                           2.

      We agree with the district court, however, that Stallworth’s other Eighth

Amendment claims do not pass muster. To start, Stallworth’s allegations about

poor ventilation in his cell do not give rise to an Eighth Amendment claim. While

“the Eighth Amendment applies to prisoner claims of inadequate cooling and

ventilation” Chandler v. Crosby, 379 F.3d 1278, 1294 (11th Cir. 2004), we have

held that “the Eighth Amendment is concerned with both the severity and the

duration of prisoner’s exposure to inadequate cooling and ventilation,” and “a

prisoner’s mere discomfort, without more, does not offend the Eighth


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Amendment,” id. at 1295 (quotation marks omitted). Stallworth alleges broken

exhaust fans made his cell “very hot” and “[s]auna”-like, “causing extreme

discomfort.” However, Stallworth does not allege details about how long the fans

were broken. Without facts indicating the duration of Stallworth’s discomfort, we

cannot say he stated a claim under the Eighth Amendment.

      Likewise, Stallworth has not stated an Eighth Amendment claim on the

grounds that he slept on an “unsanitary bare plastic mattress” without bedsheets for

one week. See Hamm, 774 F.2d at 1569, 1575 (holding that the fact a prisoner

“temporarily had to sleep upon a mattress on the floor or on a table is not

necessarily a constitutional violation,” even though “the floor and the linens

provided were unsanitary”).

      Neither does Stallworth state a claim that receiving food on moldy meal

trays violated the Eighth Amendment. While “[t]he Constitution requires that

prisoners be provided reasonably adequate food,” this Court has held that food

“occasionally contain[ing] foreign objects” and falling below food preparation

standards “does not amount to a constitutional deprivation.” Id. (quotation marks

omitted); see also Meyers v. Clarke, 767 F. App’x 437, 439 (4th Cir. 2019) (per

curiam) (unpublished) (holding prisoner’s allegations of “stale and moldy” food

insufficient to state an Eighth Amendment claim); Oliver v. Fuhrman, 739 F.

App’x 968, 969–70 (11th Cir. 2018) (per curiam) (unpublished) (holding that


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allegations of “toxic” food served on dirty dishes failed to state a claim); Williams

v. Berge, 102 F. App’x 506, 507 (7th Cir. 2004) (per curiam) (unpublished)

(holding the provision of “stale,” “moldy,” and “rancid” foods did not state claim).

Stallworth similarly does not state a claim that being refused an alternative, meat-

free meal violates the Eighth Amendment. See Robbins v. Robertson, 782 F.

App’x 794, 805 (11th Cir. 2019) (unpublished) (observing this Court has never

held that “the Eighth Amendment requires prison officials to indulge inmates’

dietary preferences”).

      Stallworth also has not sufficiently alleged that the lack of cold drinking

water in his cell for 14 days violated the Eighth Amendment. We have recognized

that “deprivation of potable water for several days is a denial of a basic need and

the minimal civilized measure of life’s necessities.” Spires v. Paul, 581 F. App’x

786, 793 (11th Cir. 2014) (per curiam) (unpublished) (alterations adopted and

quotation marks omitted). However, Stallworth did not allege that he was denied

all drinking water. He alleges he had no access to “cold drinking water.” Because

Stallworth’s complaint implies he had access to some drinking water, whether

lukewarm or hot, we cannot say Stallworth stated an Eighth Amendment claim on

these facts.

      Stallworth further alleges that while he was placed in administrative

confinement, he was denied outdoor recreation on at least six occasions, and, at


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some point, he went without outdoor recreation for six weeks. Stallworth says the

officers who denied him recreation told Stallworth he “shouldn’t have been

involve[d] with the June 21st[,] 2017 riot” and that Stallworth couldn’t “receive

outdoor recreation . . . for being housed in [the dorm] with inmates accused of

rioting.” These allegations fail to state an Eighth Amendment claim. This Court

has held that “complete denial . . . of outdoor exercise, although harsh, [does] not

violate the Eighth Amendment” when accompanied by “penological justification.”

Bass, 170 F.3d at 1316–17 (quotation marks omitted). Stallworth’s complaint

makes clear the officers had penological justification to withhold outdoor

recreation from Stallworth and other inmates accused of rioting. See id. (holding

prison had penological justification to deny outdoor exercise to inmates disciplined

for an escape attempt). We affirm the district court’s dismissal of this claim.

      Stallworth also alleges he could not “exchange [his] laundry” and was

unable to “wash [his] clothes or bed sheets” for 30 days. On the facts Stallworth

has pled, this state of affairs does not rise to the level of a constitutional violation.

Stallworth has not pled facts showing any harm or deprivation of necessities

resulting from the month-long lack of clean linens and clothing. Cf. Myers v. Ind.

Dep’t of Corr., 655 F. App’x 500, 503–04 (7th Cir. 2016) (per curiam)

(unpublished) (holding an inmate who “criticize[d] the laundering process” in the

prison didn’t “allege that it left any residue that might transmit serious diseases” or


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created “a serious health risk”). We thus affirm the district court’s dismissal of this

claim.

         Finally, we affirm the district court’s dismissal of Stallworth’s Eighth

Amendment claims against Assistant Warden Ponder and Ms. Wilkins, the

grievance coordinator. Stallworth argues Assistant Warden Ponder and Ms.

Wilkins should be vicariously liable for the Eighth Amendment violations of other

officers. However, supervisory officials may not be held vicariously liable under

§ 1983 for the unconstitutional acts of their subordinates. Cottone v. Jenne, 326

F.3d 1352, 1360 (11th Cir. 2003), abrogated in part on other grounds by Randall v.

Scott, 610 F.3d 701 (11th Cir. 2010).

         AFFIRMED IN PART, REVERSED IN PART, VACATED AND

REMANDED IN PART.




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