Joe Sorensen v. Chris Nocco, et al

Filing

Opinion issued by court as to Appellant Joe Lee Sorensen. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-15241

Date Filed: 01/26/2017

Page: 1 of 6

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15241
Non-Argument Calendar
________________________
D.C. Docket No. 8:14-cv-00510-SDM-TBM
JOE LEE SORENSEN,
Plaintiff-Appellant,
versus
CHRIS NOCCO,
Sheriff, Pasco County Sheriff Office,
BRENDA CASE,
Dr.; Pasco Sheriff-Medical Section,
NURSE BURKE,
Pasco Sheriff-Medical Section,
NURSE CLEARY,
Pasco Sheriff-Medical Section,
Defendants-Appellees,
DEPUTY MEIRIS, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 26, 2017)

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Before MARCUS, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Joe Sorensen appeals pro se the district court’s order dismissing his
complaint for failure to state a claim upon which relief may be granted. Sorensen
was a pretrial detainee when he was attacked by another detainee. He brought suit
under 42 U.S.C. § 1983, alleging that he did not receive constitutionally sufficient
medical care. The district court dismissed Sorensen’s claims against Sheriff Chris
Nocco, the only remaining defendant, under Federal Rule of Civil Procedure
12(b)(6).1 The court held that Sorensen failed to allege Sheriff Nocco was
personally involved in, or deliberately indifferent to, the denial or delay of medical
care, or that a policy or lack of training at the jail caused the alleged violation of
his constitutional right to medical care. After careful review, we affirm.
I.
Sorensen was a pretrial detainee at Pasco County Detention Center
(“PCDC”) when he was attacked by another detainee on June 10, 2012.2 He was
examined by a nurse at PCDC. He told the nurse he had been hit in the face and
thought “his face [was] broke[n].” On June 11, he visited a doctor at PCDC, who

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The other defendants were either dismissed earlier in the litigation or not properly

served.
2

The following facts are alleged in Sorensen’s complaint. They are accepted as true for
the purposes of a motion to dismiss under Rule 12(b)(6). Brooks v. Warden, 800 F.3d 1295,
1300 (11th Cir. 2015).

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referred him to get an X-ray. The radiology report recommended a CT scan
because of the possibility of a fracture. On June 21, Sorensen was transported to
Pasco Regional Medical Center for a CT scan, which showed fractures of the
orbital rim and cheekbone. On June 27, he was taken to Oak Hill Hospital, where
a doctor diagnosed a fracture with displacement that “is already over two weeks
old and [] needs to be reduced and fixed A.S.A.P. . . . before fibrous union makes it
impossible to correct it.” The doctor also said “[i]t will take some time” for “nerve
function to return, if it does return.” On June 29, Sorensen underwent surgery,
which included placing two plates and nine screws on the right side of his face.
Sorensen alleges PCDC did not have a policy regarding medical
emergencies involving head and face injuries at the time he was attacked. He also
alleges PCDC failed to train its deputies for such a situation. He claims that
because of these failures, Sheriff Nocco was grossly negligent or deliberately
indifferent to his constitutional right to medical care. Sorensen had to wait almost
three weeks to receive surgery, despite constantly requesting immediate medical
care. Sorensen alleges he still has pain and numbness attributable to the delay in
his medical care.
II.
“We review de novo a district court’s dismissal of a complaint, under
Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim for relief . . . .”
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Starship Enterprises of Atlanta, Inc. v. Coweta Cty., 708 F.3d 1243, 1252 (11th
Cir. 2013). “[W]e accept all factual allegations as true and consider them in the
light most favorable to the plaintiff.” Brooks, 800 F.3d at 1300. “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) (per curiam).
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. 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. The
plausibility standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted
unlawfully. 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.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotation
omitted).
Sorensen argues that his complaint alleges two claims against Sheriff Nocco:
(1) that Sheriff Nocco failed to have policies and train deputies regarding medical
emergencies to the head or face, and (2) that Sheriff Nocco personally participated
in the constitutional deprivation because he was informed through various reports
of Sorensen’s injuries and failed to take the necessary steps to get immediate
medical care for Sorensen. Sorensen’s complaint contains no allegations that
Sheriff Nocco personally participated in the alleged constitutional deprivation.
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Thus, Sorensen’s argument against Sheriff Nocco for his personal participation
does not meet “the threshold requirement of [Federal] Rule [of Civil Procedure]
8(a)(2) that the plain statement possess enough heft to show that the pleader is
entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct.
1955, 1966 (2007) (quotation omitted and alteration adopted).
Sorensen’s remaining argument, which is reflected in the allegations of the
complaint, is regarding Sorensen’s claim against Sheriff Nocco in his official
capacity as sheriff of the PCDC for failure to have policies or training regarding
medical emergencies to the head or face. A plaintiff seeking to hold a municipal
actor liable under 42 U.S.C. § 1983 must prove that official municipal policy was
responsible for the action that caused his injury. Connick v. Thompson, 563 U.S.
51, 60–61, 131 S. Ct. 1350, 1359 (2011). “In limited circumstances, a local
government’s decision not to train certain employees about their legal duty to
avoid violating citizens’ rights may rise to the level of an official government
policy for purposes of § 1983.” Id. at 61, 131 S. Ct. at 1359. “[A] municipality’s
failure to train its employees in a relevant respect must amount to deliberate
indifference to the rights of persons with whom the untrained employees come into
contact.” Id. (alteration adopted and quotation omitted). “Deliberate indifference
is a stringent standard of fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Id., 131 S. Ct. at 1360 (alteration
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adopted and quotation omitted). To establish deliberate indifference, a plaintiff
must show that the municipal “policymakers are on actual or constructive notice
that a particular omission in their training program causes [municipal] employees
to violate citizens’ constitutional rights.” Id. To show this notice, a plaintiff
ordinarily must demonstrate “[a] pattern of similar constitutional violations by
untrained employees.” Id. at 62, 131 S. Ct. at 1360; accord Weiland v. Palm Beach
Cty. Sheriff’s Office, 792 F.3d 1313, 1328 (11th Cir. 2015).
Sorensen alleges only that policies and training were not in place and that
this oversight led to constitutionally deficient delays in his medical care.q
Assuming his allegations are true, as we must, they are still insufficient to state a
plausible claim for relief. Sorensen’s complaint makes no allegations that Sheriff
Nocco was on actual or constructive notice of the omissions in training or lack of
policies. See Weiland, 792 F.3d at 1328–29; Craig v. Floyd Cty., 643 F.3d 1306,
1310 (11th Cir. 2011) (“Proof of a single incident of unconstitutional activity is not
sufficient to impose liability against a municipality.” (quotation omitted)). Instead,
the complaint discusses only Sorensen’s own deficient treatment. Therefore, the
district court’s dismissal of Sorensen’s complaint was correct.
AFFIRMED.

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