Enriquez v. Department of Corrections et al

Filing 8

ORDER OF DISMISSAL dismissing Complaint pursuant to § 1915(e)(2), denying plaintiff's motions to proceed in forma pauperis. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 4/23/2009. (RKM)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION FRANK RAFAEL ENRIQUEZ, Plaintiff, vs. DEPARTMENT OF CORRECTIONS, JOHN DOE 1 THROUGH 6, DEPUTY Case No. 2:09-cv-2-FtM-29DNF

Defendants. ______________________________ ORDER OF DISMISSAL This matter comes before the Court upon review of Plaintiff's Complaint (Doc. #1, Complaint) filed pursuant to 42 U.S.C. § 1983 on January 2, 2009. Plaintiff seeks leave to proceed in forma

pauperis (Doc. #2, Motion) in this action. Plaintiff is proceeding pro se and is currently civilly detained at the Florida Civil Commitment Center (hereinafter "FCCC") pursuant to the State of Florida's Involuntary Commitment of Sexually Violent Predator's Treatment and Care Act ("Jimmy Ryce Act"). Stat. §§ 394.910-.913. Despite Plaintiff's non-prisoner status,1 the Court is See generally Fla.

required to review the pro se Complaint to determine whether the
The Court recognizes that certain portions of the Prison Litigation Reform Act are not applicable to Plaintiff as a civil detainee. Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002). The United States Court of Appeals for the Eleventh Circuit previously found that a district court did not error by dismissing a complaint filed by a civil detainee for failure to state a claim under the in forma pauperis statute, 28 U.S.C. Section 1915 (e)(2)(B). Id. at 1260. Other Courts have also found that section 1915(e)(2)(B) is not limited to prisoners, but applies to all persons proceeding in forma pauperis. See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001).
1

complaint is frivolous, malicious or fails to state a claim. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

See

In essence, § 1915(e)(2) is a

screening process, to be applied sua sponte and at any time during the proceedings. The Court, nonetheless, must read Plaintiff's pro se allegations in a liberal fashion. 1157, 1160 (11th Cir. 2003). A complaint filed in forma pauperis which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) is not Hughes v. Lott, 350 F.3d

automatically frivolous. ( 1 9 8 9 ).

Neitzke v. Williams, 490 U.S. 319, 328

Rather, the test for granting a § 1915 dismissal is Id.

whether the claim lacks arguable merit either in law or fact.

at 325; Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309 (11th Cir. 2002); Bilal v. Driver, 251 F.3d 1346 (11th Cir. 2001). Additionally, § 1915 requires dismissal when the legal theories advanced are "indisputably meritless," Nietzke, 490 U.S. at 327; when the claims rely on factual allegations which are "clearly baseless" Denton v. Hernandez, 504 U.S. 25, 32 (1992); or, when it

appears that the plaintiff has little or no chance of success. Bilal, 251 F.3d at 1349. Title 42 U.S.C. § 1983 imposes liability on anyone who, under color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws." To state a

claim under 42 U.S.C. § 1983, Plaintiff must allege: (1) Defendants deprived him of a right secured under the United States

-2-

Constitution or federal law, and (2) such deprivation occurred under color of state law. Arrington v. Cobb County, 139 F.3d 865,

872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1288 (11th Cir. 2001). and establish an In addition, Plaintiff must allege causal connection between the

affirmative

defendant's conduct and the constitutional deprivation. Marsh, 268 F.3d at 1059; Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995); Tittle v. Jefferson County Comm'n, 10 F.3d 1535, 1541 n.1 (11th Cir. 1994). A defendant who occupies a supervisory position

may not be held liable under a theory of respondeat superior in a § 1983 action. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 690-

692 (1978); Quinn v. Monroe County, 330 F.3d 1320, 1325 (11th Cir. 2003); Farrow v. West, 320 F.3d 1235 (11th Cir. 2003). Plaintiff files this action naming as Defendants the Florida Department of Corrections and six John Doe corrections officers in their individual and official capacities. allegations in the Complaint all stem Complaint at 1. from an incident The that

occurred on February 9, 2005, when Plaintiff says the residents at the FCCC were "peacefully protesting." Id. at 5. Plaintiff

alleges that officers from the Department of Corrections, including some who were a part of the "emergency response team," "stormed the FCCC at or about 6:30 a.m." Id. Plaintiff avers that these Id. at 6. him with

officers acted "hostile and threatening" to him. Plaintiff claims that a John Doe Defendant sprayed

chemical agents.

Id. at 4.

Plaintiff also contends that he was
-3-

taken to a confinement cell and was not brought to the medical department for a pre-confinement physical. Id. Plaintiff states

that the only "pre-confinement notice" he was given, stated, "You are a Threat." Id. at 9. As relief, Plaintiff seeks any relief judgment, and

deemed appropriate by the Court, a declaratory monetary damages. Id. at 11-12.

Initially, the Court addresses the six John Doe corrections officers that Plaintiff names as Defendants. The Federal Rules of

Civil Procedure do not explicitly allow plaintiffs to designate unknown individuals in complaints. prohibition against this practice. There is, however, no general See e.g. Bivens v. Six Unknown

Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 390 (1971). Courts have recognized, however, that fictitious parties eventually must be dismissed if discovery fails to yield their identities. See Kemper Ins. Co. v. Federal Express Corp., 115 F.Supp.2d 116, 125 (D. Mass. 2000), aff'd, 252 F.3d 509 (1st Cir.), cert. denied, 534 U.S. 1020 (2001)(collecting cases). In this case, Plaintiff

names six John Doe Defendants and the allegations concern incidents that allegedly occurred in February 2005. See generally Complaint. The Eleventh Circuit Court of Appeals has concluded that "a

plaintiff must commence a § 1983 claim arising in Florida within four years of the allegedly unconstitutional or otherwise illegal act." Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Thus, as of February 2009, the four-year statute of

Cir. 1999).

-4-

limitations expired and the Complaint is time-barred as to the John Doe Defendants. Plaintiff may believe that because he filed the Complaint in January 2009, that he can later amend the Complaint to specifically name the John Doe Defendants. Courts have ruled, however, that replacing "John Doe" defendants with specifically-named defendants constitutes a change in the parties sued and does not relate back to the date of the initial Complaint pursuant to Fed. R. Civ. P 15(c). See Wayne v. Jarvis, 197 F.3d 1098, 1102-03 (11th Cir.

1999)(citing Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468 (2d Cir. 1995)(finding "[w]e have stated that it is familiar law that `John Doe' pleadings cannot be used to circumvent statutes of limitations because replacing a `John Doe' with a named party in effect constitutes a change in the party sued.")(other citations omitted), over ruled on other grounds, Manders v. Lee, 338 F.3d 1304, 1328 (11th Cir. 2003); See also Gambuzza v. Gillum, Case No. 8:08-cv-1809-T-26TGW, 2009 WL 425954 (M.D. Fla. 2009)(finding fouryear statute of limitations prevented plaintiff from replacing John Doe defendants with named defendants); Danhi v. Charlotte County Sheriff's Dep't, Case No. 2:03-cv-628-FtM-99DNF, 2006 WL 2226323 *3-4 (M.D. Fla. 2006)(dismissing John Doe defendants sua sponte when the four-year statute of limitations had run and the claims were time barred). Lack of knowledge regarding the identities of

John Doe Defendants does not constitute "a mistake concerning the identity of the proper party." Wayne, 197 F.3d at 1103.
-5-

In this

case sub judice, Plaintiff waited until the eleventh hour, just shy of the statute of limitations expiration by one month, to file his Complaint. Nonetheless, Plaintiff still has not ascertained the

identities of the six John Doe Defendants prior to filing the action. in their With regard to the claims against the John Doe Defendants official and individual capacities, amending the to statute include of the

limitations

prevents

Plaintiff

from

specific names of the John Doe Defendants Complaint. Consequently, the Complaint must be dismissed. Plaintiff also names the Florida Department of Corrections as a Defendant. Department of The Complaint contains no allegations involving the Corrections, much less any allegations that a

governmental policy or custom was the moving force behind the alleged constitutional deprivation. Farred v. Hicks, 915 F.2d

1530, 1532-1533 (11th Cir. 1990)(citing Graham, 463 U.S. at 166; Monell, 436 U.S. at 694). It appears Plaintiff seeks to hold the

Department liable for the actions of the John Doe Defendants; however, there is no respondeat superior liability under § 1983. As such, the Department of Corrections is due to be dismissed. Additionally, Plaintiff's claims for monetary damages from the Department of Corrections are barred by the Eleventh Amendment. "The Eleventh Amendment protects a State from being sued in federal court without the State's consent." Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003), cert. denied, 540 U.S. 1107 (2004). "Unless

-6-

a State has waived its Eleventh Amendment immunity or Congress has overridden it, however, a State cannot be sued directly in its own name regardless of the relief sought." U.S. 159, 167, n. 14 (1985). Kentucky v. Graham, 473

This protection under the Eleventh

Amendment is afforded to the State, State agencies, and State officials sued in their official capacities, as it is well

established that a suit against a governmental officer in his official capacity is the same as a suit against the entity that employs the officer. Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986). See also Gamble v. Florida Dept. of Health and Rehab. The State of Florida Zatler, 802 Based on the

Serv., 779 F.2d 1509, 1512 (11th Cir. 1986).

has not waived sovereign immunity for § 1983 actions. F.2d at 400 (citing Gamble, 779 F.3d at 1513-20).

foregoing, the Court sua sponte dismisses this action. ACCORDINGLY, it is hereby ORDERED: 1. 2. The Complaint is dismissed pursuant to § 1915(e)(2). Plaintiff's motion for leave to proceed in forma pauperis

is DENIED. 3. The Clerk of Court shall terminate any pending motions;

enter judgment accordingly; and close this case. DONE AND ORDERED in Fort Myers, Florida, on this of April, 2009. 23rd day

-7-

SA: alj
Copies: All Parties of Record

-8-